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Paralegal Manual on Violence Against Women

SALIGAN
Womens Unit and Mindanaw branch

Paralegal Manual on Violence against Women


3rd Edition
2007
Prepared and Published by SALIGAN
with the support of CORDAID
Cover illustration: Sandra B. Torrijos
SALIGAN
(Sentro ng Alternatibong Lingap Panligal)
a legal resource NGO doing developmental legal work
with farmers, workers, the urban poor, women and local
communities
MAIN OFFICE
G/F Cardinal Hoffner Building
Social Development Complex
Ateneo de Manila University
Loyola Heights, Quezon City
Tel: (+632) 426-6001 loc. 4858-4860
Telefax: (+632) 426-6124
saligan@saligan.org
www.saligan.org

BIKOL BRANCH
G/F Abonal-Soria Building
Mayflower Street, Naga City
Tel: (+63-54) 473-1295
bikol@saligan.org
MINDANAW BRANCH
Door 1 No. 422 Champaca Street
Juna Subdivision
Matina, Davao City
Tel: (+63-82) 298-4161
saliganmindanaw@saligan.org
saligan_mindanaw@yahoo.com

INTRODUCTION,
I
PHILIPPINE HERSTORY
PHILIPPINE LEGAL SYSTEM,
INTRODUCTION TO LAW,
PHILOSOPHY OF PARALEGALISM,
II
SUBSTANTIVE LAWS
WOMENS RIGHTS ARE HUMAN RIGHTS,
COMPARISON OF CIVIL AND CRIMINAL CASES,
MARRIAGE,
PROVISIONAL ORDERS,
LEGAL SEPARATION,
PSYCHOLOGICAL INCAPACITY,
SUPPORT,
PARENTAL AUTHORITY,
PROPERTY RELATIONS,
INTRODUCTION TO CRIMINAL LAW,
CRIMES RELATED TO VIOLENCE AGAINST WOMEN,
REPUBLIC ACT 7610: SPECIAL PROECTION OF CHILDREN AGAINST
CHILD ABUSE, EXPLOITATION AND DISCRIMINATION ACT,
REPUBLIC ACT 6955: MAIL-ORDER BRIDE ACT,
REPUBLIC ACT 8505: RAPE VICTIM ASSISTANCE AND PROTECTION ACT,
REPUBLIC ACT 8369: ESTABLISHING FAMILY COURTS,
REPUBLC ACT 9208: ANTI-TRAFICKING IN PERSONS ACT OF 2003,
REPUBLIC ACT 9262: ANTI-VIOLENCE AGAINST WOMEN AND CHILDREN
ACT OF 2004,
LAWS ON WOMEN WORKERS,
III
PROCEDURAL LAWS
CRIMINAL PROCEDURE,
RIGHTS OF THE ACCUSED,
CIVIL PROCEDURE,
EVIDENCE,
KATARUNGANG PAMBARANGAY,

IV
PARALEGAL SKILLS
CASE ANALYSIS,
LEGAL INTERVIEW,
AFFIDAVIT-MAKING,
LEGAL RESEARCH AND BIBLIOGRAPHY,
BALANCING LEGAL AND EXTRA-LEGAL TACTICS,

INTRODUCTION
This is the third edition of the womens manual for paralegals. It has
undergone three revisions to include the most recent legislation
addressing womens issues and concerns. As our society continues to
become more and more aware about womens right, SALIGAN
continues to move forward with its advocacies towards women
empowerment.
As SALIGAN, as an organization, celebrates its 20 th anniversary this
year, we deem it proper to go back to original intent of this manual
when it was first published in 1999
The law, according to some, is an instrument of the
powerful in the perpetration of their power in society.
Oftentimes, it is likewise used as a control mechanism of
the State to stop the powerless from challenging the
unequal and unjust distribution of resources and political
power.
The other view holds that the law can be an instrument of
change in society towards equality and full development of
the basic sectors, but there are spaces therein for
advocacy towards change. Law then becomes an arena
for struggle where the sectors can push for their interest
and protect their rights. SALIGAN is an organization that
believes and upholds this view.
The gender ideology where women are regarded as
secondary to men pervades so much of our societys
systems and culture.
Violence against women is a
manifestation of this ideology. It is in this context that the
Womens Unit of SALIGAN launched a series of trainings
with the primary objective of forming paralegals from the
basic sectors who would address the issue of gender-based
violence. These paralegals are expected to protect rights
that are based on prevailing laws and advocate for reform
of policies and laws that are contrary to the human rights
of women. From the ranks of workers, urban poor and the
peasants, valiant women all from Luzon, Visayas and
Mindanao graduated from the trainings that were
conducted. (Excerpt from Message, Manual for Paralegals
1999)

To all the survivor of violence against women, paralegals, womens


groups, womens organization, who are one with us in our cause of
eliminating gender violence, oppression and discrimination, this
Manual is dedicated.
Womens program
SALIGAN
SALIGAN-Mindanaw

I
PHILIPPINE HERSTORY

The law which is reflective of our prevailing culture has already


been documented. The present laws on women or laws affecting
gender issues are products of our countrys history. It is imperative
upon paralegals to realize that the laws which govern us and those
that we criticize are based on the accounts of our nation which has
already undergone various chapters of history.
I.

PRE-COLONIAL PERIOD (BEFORE 1521)

The political order in what is now known as the Philippines before the
Spaniards came is very different from the present. There was no
central government in the whole archipelago, and there was no single
set of laws that governed the country. Rather, each barangay had
their own leaders women and men and its own laws were
implemented within its jurisdiction. Often, these laws were not written.
Formal and informal laws were not distinguishable from each other.
There are many accounts from various historians that say that the
relationship between women and men was more egalitarian during this
period. Ownership over natural resources was communal and not
private. Hunting for the daily sustenance of the family was a joint
responsibility of women and men. The same is true with the
administration of the household and the community. Divorce can be
granted to both women and men. It was also during this period when
the babaylan revered women spiritual leaders.
II.

SPANISH COLONIZATION (1521 1898)

When the Spaniards came to the Philippines in the 186th century, they
brought with them a foreign religion, culture and set of laws. No
legislature was set up in the islands. Instead, the colonizers
implemented laws that were issued by the Spanish King, through Royal
Decrees. There was a union of the State and the Church. The law for of
one is the law offor the other.
Under the Spanish laws that were implemented here, women were
categorized with children and the imbecile. Under these laws, women
are not capable of independent and rational thinking. There are only
two roles that they are fit to do in society, and these are being a nun
and a mother.

A.

Education

Women were not allowed to study, except for those courses and in
those institutions that allowed them to prepare for their future roles as
mothers or nuns.
B.

Family

The law gave the men the power to be kings in their families. Under
the concept of pater familias, the wife and the children are under the
authority of the father/ husband. The women could not engage in any
economic, political, or cultural activity, except if they have the consent
of their husbands. The properties of the spouses were under the
control of the husband.
If the wife was unfaithful to her husband, she would be liable for the
crime of adultery. Iif it is the husband who was unfaithful, the extramarital affair should be scandalous in order for the man to be held
liable for the crime of concubinage.
If a husband dies, it is illegal for the wife to re-marry within 301 days
after his death. The purpose of this law is to protect the husband and
his family, by ensuring the paternity of the child in the widows womb,
should there be any.
C.

Commerce

In commerce, the concept of pater familias also applies, whereby, the


women were under the authority of the men in their lives. Women
were prohibited to do the following specific acts, among others,
without the consent of their husbands:
1. to enter into contracts;
2. to own and acquire properties;
3. to appear before the courts and sue;
4. to register and publish literary and scientific works; and
5. to engage in business.

D.

Political

The right to vote was not conferred to women. In short, women


had no voice in political issues. When Filipinos were allowed to hold
positions as cabezas de barangay and other positions in the
community, women were not given the same right.
When the Spanish colonial rule ended, their laws were not totally
abrogated. For example, the Penal Code, the Civil Code, the Code of
Commerce, and the Marriage Law continued to be in force eventhough
the Philippines was placed under the American rule.
III.

AMERICAN COLONIAL RULE (1898-1941 / 1944-1946)

The Philippines was placed under the Americans when they defeated
the Spaniards in the Spanish-American War. The prevailing laws in the
Philippines that came from Spain, however, remain in force. But the
political laws were suspended and were later changed by the
Americans.
One of the biggest influences of the Americans in the Philippines in the
area of law is the Constitution. The Philippine Constitutions 1935,
1973 and 1987 are greatly influenced by the American Constitution.
The Philippine legal system the whole structure of the government is
based on the American system.
One of the new rights conferred to women was the right to vote in
elections. But even thisis rights was not freely given to women. They
had to fight for this right by mobilizing, filing a petition and winning in
a referendum.
The American policy with respect to the education of women was
more lenient than that of the Spaniards. Public education was free to
both women and men. College academic courses that were previously
closed to women were made accessible to them.
Under Act 2710, Filipino citizens could get a divorce from their spouses
under any of the two exclusive grounds: (a) the woman is guilty of
adultery, or (b) the man is guilty of concubinage.

10

UnderAs for criminal law, the Revised Penal Code was enacted and
became effective in 1932. Under this law, discrimination against
women continued to prevail. For example, marital infidelity was
considered a criminal act, but the standard applied to women was
different from that applied to men. On the one hand, adultery was a
crime committed by married women who had sexual intercourse with
men other than their husbands. On the other hand, in order for men to
be held liable for the crime of concubinage, they should have engaged
in sex with another woman under scandalous circumstances. Mere
sexual intercourse would not make the husband criminally liable. Aside
from this, the penalty imposable for adultery is heavier forthan that
imposable for concubinage.
Then, from 1935-1945, a Commonwealth Government was set up in
the Philippines, in anticipation of the setting up of a republic. But in
1941, the Japanese came and established their Imperial Government
in the country.
IV.

JAPANESE OCCUPATION (19411944)

Even if this period is short, it brought so much pain and suffering to


the womenfolk. One of which was the Japanese Imperial Governments
policy of rounding up women and forcing them provide sexual services
to the Japanese troops. Thus, there were many comfort women from
Asian countries that were occupied by the Japanese.
In the field of Civil Law, the Japanese provided nine (9) other grounds
for the filing of divorce under Executive Order No. 141 (E.O. 141) in
addition to the two grounds under Act No. 2710. These additional
grounds were as follows:
1.

attempt on the life of the petitioner;

2.

contagious disease;

3.

insanity that is incurable;

4.

conviction by final judgment that carries with it the penalty


of imprisonment for more than six (6) years;

5.

repeated infliction of physical violence on the petitioner,


such that, the spouses could no longer live together
without putting the petitioner in danger;
11

6.

intentional or unjustifiable abandonment for more than a


year prior to the filing of the petition;

7.

intentional leaving from the conjugal home by the


respondent for three (3) consecutive years prior to the
filing of the petition;

8.

contracting a subsequent marriage while the first marriage


is still subsisting; and

9.

inflicting gross insult to the petitioner, where


cohabitation of the spouses is no longer practical.

the

Executive Order NoO. 141 was effective in the Philippines until 23


October 1944, when the re-establishment of the Commonwealth
Government was declared.
V.

REPUBLIC (1945 1986)

In, 1944, through divorce, Act No 2710, divorce became effective once
again until it was superseded by the New Civil Code on 30 August
1950. Uunder the New Civil Code, divorce was no longer allowed but
spouses were allowed to separate under the concept of legal
separation. When the court declares the legal separation of spouses,
they could already live apart, however, their marital ties are not
severed. The only grounds for legal separation are as follows:
(a) adultery;
(b) concubinage; and
(c) attempt on the life of the petitioner by the respondent.
Aside from this, the rights and obligations of the espouses were
spelled out under the New Civil Code. These are:
1.

The husband shall fix the residence of the family;

2.

The husband is responsible for the support of the family


while the wife manages the affairs of the household;

12

3.

The purchase by the wife of jewelry and other precious


objects is voidable, unless her husband consents to the
transaction;

4.

The wife may exercise any profession or engage in


business. However, the husband may object if:
a.

his income is sufficient for the family;

b.

the objection is based on serious and valid grounds.

5.

The husband shall be the administrator of the conjugal or


community property of the spouses;

6.

The wife cannot, without her husbands consent, accept


any gift, donation or inheritance, except from her
ascendants, descendants, parents-in-law, and collateral
relatives within the fourth civil degree;

7.

As a general rule, the wife cannot sue and be sued without


her husband joining her.

In 1975, the National Commission on the Role of Filipino Women


(NCRFW) was established as an agency under the Office of the
President. To a large extent, the establishment of said agency was
brought about by the growing strength of the womens movement in
the international sphere. This movement was able to push for the
declaration of 1975 as The International Year of Women and 1976
1985 as the Decade of Women.
VI.

1986 PRESENT

When the 1973 Constitution was changed after the EDSA I political
revolution, there were many provisions on women that were
incorporated in the 1987 Constitution. Examples of these provisions
are the following:
Article II: Declaration of Principles and State Policies
a.

Section 12

13

The State recognizes the sanctity of the family and shall protect
and strengthen the family as an inviolable social institution. It
shall equally protect the life of the mother and the life of the
unborn from conception, the natural and primary right and duty
of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
government.
b.

Section 14

The State shall recognize the role of women in nation-building,


and shall ensure the fundamental equality before the law of
women and men.
Article XIII: Social Justice and Human Rights
c.

Section 11

The State shall adopt an integrated and comprehensive


approach to health development which shall endeavor to make
essential goods, health and other social services available to all
the people at affordable cost. There shall be priority for the
needs of the under-privileged, sick, elderly, disabled, women
and children. X
d.

Section 14

The State shall protect working women by providing safe and


healthful working conditions, taking into account their maternal
functions, and such facilities and opportunities that will enhance
their welfare and enable them to realize their full potential in the
service of the nation.
On 3 August 1988, the Family Code became effective and it amended
some of the very important provisions of the New Civil Ccode that
pertain to the rights opf women. Some of the rights that were
introduced in the Family Code are:
1.

The administration of the conjugal or community property shall


be jointly shared by the husband and wife;

14

2.

The family domicile (residence) shall be chosen by the husband


and the wife;

3.

The wife may exercise any profession, or engage in any business


activity, even without the consent of the husband, except if
there is a valid, serious and moral ground;

4.

The management of the household affairs shall be shared by


both husband and wife;

5.

The obligation to render support to the family rests on both the


husband and the wife.

The Family Code also provides that the spouses may separate when
there is a declaration of legal separation by the court. The grounds for
legal separation are as follows:
1.

Repeated physical violence or grossly abusive conduct directed


against the petitioner, a common child or a child of the
petitioner;

2.

Physical violence or moral pressure to compel the petitioner to


change religious or political affiliation;

3.

Attempt of the respondent to corrupt or induce the petitioner, a


common child or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;

4.

Final judgment sentencing the respondent to imprisonment of


more than six (6) years, even if pardoned;

5.

Drug addiction or habitual alcoholism of the respondent;

6.

Lesbianism or homosexuality of the respondent;

7.

Contracting by the respondent of a subsequent bigamous


marriage, whether in the Philippines or abroad;

8.

Sexual infidelity or perversion;

9.

Attempt by the respondent against the life of the petitioner; or

10.

Abandonment of the petitioner by the respondent without


justifiable cause for more than one (1) year.
15

The Family Code also introduced a new provision concerning the


separation of spouses under Article 36. Under this provision, a
marriage may be declared void if one of the spouses is found to be
psychologically incapacitated to perform the essential marital
obligations.
Outside of the Family Code, there were other laws on womens rights
that were also enacted. Some of these laws are:
1.

Republic Act 7192 ( Women in Nation-Building Act,


1992), provided women the right to enter into contracts of
insurance,m get passportsm, visa or other documents
needed in traveling, even without the consent of their
husbands. Thjey were also given the right to study in
military schools.

2.

Republic Act 6725 (Strengthening Prohibition on


Discrimination vs Women, 1989), which clarified the rule
against discrimination against women in terms of wages,
promotion and access to trainings.

3.

Republic Act 7877 (Anti-Sexual Harassment Act, 1995),


which criminalized sexual harassment in workplaces and
school.

4.

Republic Act 8353 (Anti-Rape Law, 1997), which


expanded the very limited definition of rape in the Revised
Penal Code and re-classified it from Crimes against
Chastity to Crimes against Persons.

VII. SOME POINTS FOR REFLECTION


A.

Our laws are largely foreign in origin.


It will be noted that most of our prevailing laws came from the
Spaniards and the Americans.

B.

Change in the laws is a protracted process.


It will also be noted that it takes so long to change the law. Even
ifs the changing times call for an amendment or a repeal of the
16

law, it takes quite a while to have a responsive rule. For


example, even if more women have been doing more productive
work, i.e. working outside the household, it was only in 1988
that there has been a repeal of the rule allowing men to control
the academic activities of their wives.
C.

The law reflects values in our culture.


Remember that the law merely reflects the prevailing values of
society at the time of its enactment. Thus, it becomes even more
arduous to change a law if the culture has not changed. For
example, the Anti-Rape Law had a difficult time in Congress
because the societys and legislators (most of whom are men)
view on women and of rape have not substantially changed.

17

PHILIPPINE LEGAL SYSTEM

The law does not exist in a vacuum. It subsists within a legal


system. Who makes the laws, who implements the laws, and who
interprets the laws, are important aspects of the study of law. It is
indispensable for paralegals to have a full grasp and appreciation of
the structure and operation of our government as the machinery for
rule-making, rule-implementation and rule-adjudication.
The legal system of the Philippines pertains to the entire system
provided for by the Constitution and other laws relating to the
framework of government and its administration. In general, there are
three (3) branches of government:
The Executive
The Legislative
The Judiciary

I.

EXECUTIVE

A.

Nature

Executive power is vested in the President by the people. The power of


the President is delegated to the cabinet secretaries.
B.

Composition
a.
b.
c.

C.

President
Vice-President
Cabinet: comprised of the department secretaries who
serve as Presidential advisers

Some of the Duties/Powers of the President


1.

Dutifully implement the law;

2.

Appoint particular government officials;

3.

Exercise control over all departments, bureaus, and


officers;

18

4.

Act as Commander-in-chief of the Armed Forces of the


Philippines;

5.

Grant executive clemency which includes pardon,


amnesty, reprieves, commutations, remission of fines and
forfeitures;

6.

Enter into contracts or guarantees foreign loans;

7.

Submit to Congress a budget as basis for the General


Appropriations Act; and

8.

Address Congress at the opening of its regular session and


appear before it at any other time.

II.

LEGISLATURE

A.

Nature
Congress has two (2) chambers:
1.
2.

the Senate and


the House of Representatives.

Composition
Senate:

24 members elected at-large

House of Representatives:
1.
2.
C.

presently,
members

comprises

of

230

207 District Representatives


23 Party-list Representatives

Some of the Duties/ Powers of Congress


1. Enact, amend and repeal laws;
2. Decide all contests relating to the election, returns and
qualifications of its respective members;
3. Confirm the Presidents appointees through the Commission
on Appointments;
4. Conduct inquiries in aid of legislation;
19

5.
6.
7.
8.

Declare the existence of a state of war;


Grant the President emergency powers;
Control the disbursement of public funds; and
Serve as tribunal for impeachment proceedings against the
President, Vice-President, the Commission on Audit, the
Civil Service Commission and the Commission on Elections,
and the Ombudsman.

III.

JUDICIARY

A.

Nature

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been grave
abuse of discretion on the part of any branch or instrumentality of the
government.
B.

Composition

The Supreme Court is composed of 1 Chief Justice and 14 Associate


Justices. The lower courts are composed of judges appointed by the
President.
C.

Some of the Duties/ Powers of the Judiciary


1.
2.
3.
4.
5.
6.

7.

Decide controversies between parties;


Judicial review: determine whether a government official
or agency has acted with grave abuse of discretion;
Hear and decide cases affecting ambassadors, other public
ministers, and consuls, and petitions for certiorari, quo
warranto, mandamus and habeas corpus;
Appoint temporary judges of lower courts;
Order a change of venue or place of trial;
Promulgate
rules
concerning
the
protection
and
enforcement of constitutional rights, procedure in all
courts, the admission to the practice of law, and legal
assistance to the underprivileged; and
Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.

20

IV.

INTER-RELATION AMONG THE BRANCHES

The importance of the existing form of government is the presence of


separation of powers. With this, there is likely to have check and
balance among the different branches since each department is
separate and independent from the others.
A.

Executive
1.

With the legislature


a.
b.

2.

B.

With the judiciary


a.
because of executive clemency, court decisions may be
altered; and
b.
appoints the members of the Supreme Court and other
courts.
Judiciary
1.
2.

C.

has veto power; and


the proposed budget submitted to Congress is the basis
for the appropriations bill.

may invalidate executive orders or laws passed by


Congress by declaring them as unconstitutional; and
determine whether the acts of the executive or the
legislative were performed within their authority or with
grave abuse of discretion

Legislature
1.

With the Executive


a.
b.
c.
d.
e.

may override the veto power of the President by a


2/3 vote of all its members;
may declare the Presidents election as void;
may review or revoke the Presidents declaration of
martial law;
may grant emergency powers to the President; and
through the Commission on Appointments , approves
Presidential appointees.
21

2.

With the Judiciary


a.
b.

3.

prescribes the qualifications of lower court judges;


and
may enact new laws that will provide new
interpretations for cases already decided by the
court.

With both the Executive and the Judiciary


a.

fixes the salary of the President, Vice-President and


judges.

V.

LOCAL GOVERNMENT

A.

Four Kinds
Barangay
Municipality
City
Province

B.

Branches of Local Government


1.

Executive

The chief executives are the Governor (for the province), Mayor
(for the municipality and city), and the Punong Barangay (for
the barangay). Except in the barangay level, the Chief Executive
in the provinces, municipality or city is assisted by the ViceGovernor or the Vice-Mayor, respectively.
2.

Legislature

The councilors of the local government units enact the


ordinances and resolutions that constitute the law within the
province, municipality, city or barangay concerned. These
ordinances and resolutions are passed by the councilors when
they convene as a legislative body. It is the Vice-Governor or
Vice-Mayor or Punong Barangay, as the case may be, who
presides over their respective councils.
22

3.

Judiciary

The Judiciary has no existing counterpart at the local


government level. However, in the barangay level, there is the
so-called Katarungang Pambarangay where members of the
same community try to settle disputes through conciliation
proceedings.
C.

Participation of the women sector (and other sectors) in the


barangay
1. Local Special Bodies
The law mandates that the NGOs must be represented in
the local special bodies such as:
a.

Local Development Council (LDC): not less than


of all its members must be from NGOs operating in
the community;

b.

Prequalification, Bids and Awards Committee: two


(2) representatives of the NGOs that are members
of the LDC; a CPA from the private sector;

c.

Local School Board: a representative from the local


federation of the Parent-Teacher Association (PTA);

d.

Local Health Board:


a representative
NGO involved in the health services.

from

an

2. Barangay Assembly
a.

Composition:
i.

all actual residents of the barangay (for at least


6 months)

ii.

15 years of age or over;

iii.

Filipino (whether natural-born or naturalized);


and

23

iv.
b.

Meetings
i.
ii.

c.

Registered in the list of barangay assembly


members.

at least twice a year; and


called by either the Punong Barangay, at least
four (4) members of the sangguniang
barangay or at least 5% of all the members of
the barangay assembly.

Powers
i.

recommend ordinances to the sangguniang


barangay;

ii.

approve a resolution for the exercise of


initiative to directly propose, enact or amend
any ordinance; and

i.

hear and pass upon the semestral report of the


sanggunaing barangay concerning its activities
and finances.

3. Mandatory Consultation
Consultation with the residents of the LGU before
implementation of projects affecting the community.

the

4. Fund-sourcing
The LGU may extend financial assistance to NGOs and POs for:
a.
b.
c.

delivery of basic services;


livelihood and skills development projects; and
improvement of local projects or business.

5. Initiative and Referendum


Adoption of the legal processes of Initiative and Referendum to
directly propose or amend ordinances.
24

INTRODUCTION TO LAW

What is the concept of law and what are its elements? Where do laws
come from? Why does a law continue to take effect even if the people
think that it is unjust? Even before the paralegal takes on her
responsibilities as such, she has to discover first the use of law in her
life and in the lives of women she expects to assist. It is better that
she is first introduced to the concept of law.
I.

KINDS OF LAWS

A.

Formal Laws

Formal laws or the laws of the society are usually written. Examples of
formal laws are: the Family Code, the Revised Penal Code and others.
B.

Informal Laws

Informal laws refer to the customs and traditions of the people. These
customs and traditions guide the lives of the people. While these are
not usually written down and there is no obligation to comply with
these laws, there are sanctions for not observing them. Examples of
informal laws which govern the right conduct of women are: dont go
home late at night, dont be too friendly with men, be subservient to
your husbands, etc. If a woman does not observe these laws, she is
subjected to sanctions: she is considered a bad woman.
Control over womens lives is made possible through these laws. If
aActually, it is the informal laws that are used more often and more
effectively for this purpose. Usually, informal laws are the bases for the
formal laws.
II.

WHERE LAWS COME FROM

A.

Formal Laws

25

Formal laws are made by legislators in the national level, the


legislators are the Senators and the Representatives who are elected
to the Congress of the Philippines. There are also local legislators.
These are the councilors from the barangay, city, municipality and
provincial levels.
Formal laws can only be enacted by the above-mentioned
persons because it is only they who have the authority and duty to
enact laws. They are recognized by society as legislators. Thus, when
they enact laws, these laws are to be observed by everybody. Ordinary
citizens cannot enact laws because they are not authorized and given
the same duty, except through the limited process of initiative.
If the sexes of the legislators are disaggregated, it becomes
apparent that most of the people authorized to enact formal laws are
men.
B.

Informal Laws

While informal laws are collectively developed by the members


of society without need of a formal authorization, it is still the mens
viewpoint and opinion which are considered in the formulation of these
laws. This is because mens status in society is higher than that of
women, and thus, it is their voice which is chiefly, if not exclusively,
considered.

III. ELEMENTS OF FORMAL LAWS


1.

Rules regarding the conduct of people;

2.

Formed by an authorized entity, particularly the legislative


branch of government;

3.

Obligation to comply with the rules among all those who are
covered by the rules; and

4.

Written.

26

IV.

EXAMPLES OF LAWS IN THE PHILIPPINES

Titles of the formal laws of the Philippines and the periods during
which they were enacted:
PERIOD
American Period
(1898-1946)
Republic (1946 1967)
Marcos Regime
(1967 1986)

1986 Freedom Constitution


(February 1986 1987)
1987 Constitution
(1987 - present)
V.

THE 1987 CONSTITUTION

A.

Concept

TITLE OF LAWS
Act
Commonwealth Act
Republic Act
Batas Pambansa
Presidential Decree (enacted
by the President under his
legislative powers)
Executive Order (from the
President because there was
no legislature yet)
Republic Act

The Constitution is the highest law in the country. This means that all
laws must conform to the Constitution. Otherwise, the law may be
declared unconstitutional, and consequently, voided by the court.
B.

Provisions in the 1987 Constitution that Affect the Women and


the Family
1.

Article II: Declaration of Principles and State Policies


Section 12.
The State recognizes the sanctity of the
family and shall protect and strengthen the family as an
inviolable social institution. It shall equally protect the life
of the mother and the life of the unborn from conception,
the natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the

27

development of moral character shall receive the support


of the government.
Section 14.
The State shall recognize the role of
women in nation-building, and shall ensure the
fundamental equality before the law of women and men.
2.

Article XIII: Social Justice and Human Rights


Section 14.
The State shall protect working women
by providing safe and healthful working conditions, taking
into account their maternal functions, and such facilities
and opportunities that will enhance their welfare and
enable them to realize their full potential in the service of
the nation.

3.

Article XV: The Family


Section 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen
its solidarity actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is
the foundation of the family and shall be protected by the
State.
Section 3. The State shall defend:
(1)
The right of spouses to found a family in
accordance with their religious convictions and the
demands of responsible parenthood;
(2)
The right of children to assistance including proper
care and nutrition, and special protection from all forms of
neglect, abuses, cruelty, exploitation and other conditions
prejudicial to their development;
(3)
The right of the family to a family living wage and
income; and
(4)
The right of families or family associations to
participate in the planning and implementation of policies
and programs that affect them.

28

V.

SOME POINTS

1.

The policy of the State is the protection and preservation of


marriage, even if a woman is suffering within an unjust and
violent family.

2.

Notwithstanding the beautiful words found in the Cconstitution


that talk about the rights and protection of women, (for
example, equality of men and women before the law), these
provisions are not effectively implemented.

3.

Our concerted actions are necessary in order to put into effect


some of the provisions that recognize womens rights.

29

30

PHILOSOPHY OF PARALEGALISM
31

Paralegalism is one of the important concepts in alternative lawyering.


The use of the law as a means for protecting basic human rights of
women requires a conscienticized society and individuals who can
guide others in the use of the law. The qualifications, duties and tasks
of a paralegal areis important part of the paralegal training.
I.

CONCEPT

A paralegal is an individual who is knowledgeable about the legal skills


but who is not a lawyer. She/he works according to the legal needs of
the peoples organization without having to ask for direct assistance
from a lawyer.
II.

BASES FOR PARALEGALISM

A.

The Social Responsibilities


1.

Lack of capacity of the different basic sectors to


protect their interests;

2.

Low number of lawyers cannot support the total


needs of sectors;

3.

Only the rich has the means to hire lawyers to protect


their interest;

4.

Most lawyers work within the framework of and are


supportive of the present system of inequality;

5.

Remedy given by the client-lawyer relationship is only


temporary;

6.

Most people are dependent on the lawyer in the


protection of their rights;

7.

There is a need to know and use the law in order to


change the present inequitable system of society;

32

8.

B.

Genuine change can only be realized if it springs from


below, from people and communities belonging to the
basic sectors of society.

Bases for the formation of paralegals


1.

People should not passively accept the present legal and


social system;

2.

The over-dependence of people on lawyers supports the


present social system. The basic sectors of society should
protect their interest and in order to do this, they should
not be overly dependent on lawyers; and

3.

Paralegalism is a necessary element where people are


working within the premises of the law but would want to
work for structural change.
QUERY:

Aside from the above, what other bases can


you think of for paralegalism?

III. THE PARALEGAL


A.

Some of the Duties of the Paralegal


1.

With the court


a.
b.
c.

2.

Gathering evidence necessary for the resolution of


the case;
Interviewing witnesses; and
Following-up the cases pending before the court

With the basic sectors of society


a.
b.
c.
d.

Organizing peoples organizations;


Explaining to people their rights and the laws
affecting their sector;
Presenting the inadequacy of the law and its
implementation; and
Awareness-raising and organizing of the basic
sectors.

33

3.

Towards changing society


a.
b.
c.
d.

4.

Solidarity with citizens in looking for solutions to


social problems;
Promoting a different kind of relationship between
lawyer and client strive for a relationship that is
not overly-dependent;
Continuous organization for the purpose of preparing
people in their struggle for their rights; and
Advocating for laws that promote the rights of the
basic sector.

Together with the lawyer


a.
b.

Helping people in the quest for solutions to their


problems; and
Mobilizing people in order to hasten the struggle for
their rights.

QUERY:

In our desire to frorm paralegals, can you take


on the responsibilities of a paralegal that
are mentioned above?
In your opinion, which of these tasks and
responsibilities are difficult to take on?
Why?

QUERY:

How would you explain to the other members


of your community the meaning and
responsibilities of a paralegal?
Can they expect you to be a model paralegal?
In what way?

B.

Views on Change

1.

Charity There is are no intention to change the societal


structures. This view accepts the present structures, without
seeing its limitations. The assistance extended is only
temporary, only for particular cases, and only for as long as the
individual client needs it. Legal assistance is viewed as a free
service to be given away to the unfortunate victims of society.

2.

Developmental - It embraces the view that there is a need for


change. But change most come from above or from those who
have the power. The effects of the change shall be felt by the
34

masses when businesses, and the economy in general, become


better.
As a consequence of the assistance to be provided to people, it
is expected that their social status shall get better. However,
there is no intention to change the whole system. Rather, it is
hoped that in maximizing the resources and enhancing the skills
of people, more will be benefited.
3.

Liberationist Genuine change can only come about if there is


a thorough structural change. Thus, it is necessary to strengthen
and mobilize the basic sectors. Change comes from a
conscienticized and strong movement of workers, farmers and
the urban poor.
QUERY:

IV.

In your experience, is the notion of effecting


change still a popular notion?
If yes, how does the majority view change?
Why is their view that way?

TRADITIONAL LEGAL AID VERSUS ALTERNATIVE LEGAL


AID

TRADITIONAL LEGAL AID

ALTERNATIVE LEGAL AID

Accepts without question the Recognizes that there is inequality


legitimacy of the legal system and in the societal structure;
the social milieu in which it
thrives;
Recognizes that all laws are Does not accept all laws as true
legitimate. These laws must be and legitimate, holds the view that
implemented to the fullest;.
there is a need to change the
oppressive laws;.
Thinks that injustice in society is Reasons out that it is structural
due to the human frailty and to inequality which is the root of
the wrong implementation of injustice in society;
laws;.

35

Legal aid is a form of charity to


the unfortunate;
Maintains
a
lawyer-client
relationship
that
is
overlydependent; and

Views legal aid as an instrument


of change in society;
Encourages self-confidence and
collective action and discourages
over-dependence on lawyers; and

Does not promote any strategic Has a perspective of changing the


change in the societal structures.
societal structures.

36

II
SUBSTANTIVE LAWS
An effective paralegal should have an adequate knowledge of the
laws that affect the sector that she works with and the issues that she
advocates for. The contents of the second chapter of this manual are
the laws that are found in the Revised Penal Code, Family Code, Labor
Code and special laws that are connected to the issue of violence
against women.

WOMENS RIGHTS ARE HUMAN RIGHTS


The rights of women against gender-based violence are
anchored on their basic human rights. When women seek to uphold
and protect their rights against violence, it is not to demand for new
forms of rights. Instead, they are just rightfully pursuing the
implementation of the rights which are afforded to every person. Most
of these basic human rights can be found in international documents
that are recognized by the community of nations.
I.

CONCEPT

Human rights are the totality of rights possessed by every


individual as human beings.
II.

CHARACTERISTICS

1.

Inherent

Human rights are rights basic to all human beings.

37

Unlike ordinary rights, the existence of human rights does not depend
on any event, or decision of a government or any individual.
2.

Inalienable

Human rights are possessed by individuals from the moment of birth.


Being inherent, these rights are inseparable from our personhood and
not merely granted by any law or directive. They may not be sold,
pledged, donated or transferred to others, nor be revoked by any
person or government. These rights are not lost by the mere lapse of
time even if they are not asserted, expressed, or exercised.
3.

Universal/ Equal

Human rights makes no distinction as to race, gender or religion.


These rights are enjoyed by all persons regardless of gender, race,
color, belief, religion, language, political opinion, national or social
origin and status in life.
III. EXAMPLES OF HUMAN RIGHTS
A.

Universal Declaration of Human Rights (1948)


1.

Freedom and equality in dignity and rights of all human


beings

2.

Entitlement of all persons to all the rights and freedoms


without distinction as to race, color, sex, language,
religion, political or other opinion;

3. Right to life, liberty and security of persons;


4. Right against slavery or servitude;
5. Prohibition against torture or cruel, inhuman or degrading
treatment by punishment;
6. Right to recognition everywhere as a person before the law;
7. Equality before the law and equal protection of the law;
8. Right to an effective remedy by the competent national
tribunals for violation of fundamental rights;
38

9. Right to marry and to found a family, equality of rights of


women and men as to marriage and its dissolution;

IV.

10.

Entering into marriage only with free and full consent;

11.

Entitlement of the family as the natural and fundamental


group/unit to protection by society and the State;

12.

Right to own property;

13.

Right to freedom of thought, conscience and religion;

14.

Right to freedom of opinion and expression;

15.

Right to work; right to just and favorable compensation;

16.

Right to rest and leisure;

17.

Right to a standard of living adequate for the health and


well-being of oneself and family;

18.

Special assistance and protection to mothers and children;

19.

Right to education;

20.

Right to freely participate in the cultural life of the


community.

UNITED NATIONS DECLARATION ON THE ELIMINATION


OF VIOLENCE AGAINST WOMEN (1993)

In 1993, the United Nations ratified an international document


recognizing violence against women as an issue. According to this
Declaration:
Article 1. Violence against women means any act of genderbased violence that results in, or is likely to result in, physical,
sexual or psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or private life.

39

Article 2. Violence against women shall be understood to


encompass, but not limited to physical, sexual and psychological
violence occurring in the family and within the general
community, including battering, sexual abuse of female children
in the household, dowry-related violence, marital rape, female
genitalia mutilation and other traditional practices harmful to
women, non-spousal violence, rape, sexual abuse, sexual
harassment and intimidation at work, in educational institutions
and elsewhere, trafficking in women and forced prostitution, and
violence perpetrated or condoned by the State.
COMPARISON OF CIVIL AND CRIMINAL CASES
A victim of violence can file a case against her aggressor. She can
either file a criminal or a civil case or both. There are vital differences
between a civil and a criminal case. The governing laws, the
procedures, the weight of evidence required to win a case are different
for a civil case and a criminal cases. The most fundamental difference
between the two is the remedy that a victim can obtain from the court.
ASPECT
PARTIES
INVOLVED

CIVIL
Private individuals:
Plaintiff
and
Defendant,
Petitioner
and
Respondent

CRIMINAL
The
State
(People of the
Philippines) and
private individual
(accused)

SUBSTANTIVE
LAWS

New Civil Code

Revised
Code

Penal

Family Code
PROCEDURAL
LAWS

Civil Procedure

Special Laws
Criminal
Procedure

CASES AND
REMEDY:
Battering

Legal Separation

Homicide,
parricide,
Declaration
of murder,
Absolute Nullity of
40

Marriage

Physical injuries,
Grave coercion,
threats

Abandonment
Emotional and
Financial Abuse

Support
Damages
Legal Separation
Legal Separation

Violation of RA
9262
Violation of RA
9262 None
Bigamy,
concubinage

Declaration
of
Absolute Nullity of Threats,
Marriage
coercion

Sexual violence

JURISDICTION

grave

Violation of RA
9262
Damages
Rape, acts of
lasciviousness,
seduction,
abduction,
unjust vexation,
slander by deed,
prostitution,
sexual
harassment
Involves
marital Determined
by
relations
the
imposable
(annulment,
legal penalty
separation,
support,
custody, MTC : < or = 6
etc.):RTC
years
(Family Courts)
imprisonment
Ejectment
RTC : > 6 years
(unlawful detainer imprisonment
or forcible entry):
MTC
Involves title to, or
possession of or
interest
in
real
property (right of
41

way):
MTC : If value of
real
property
located
outside
Metro Manila is <
or = P20,000; and
if value of real
property
located
within Metro Manila
is < or = P50,000
RTC : If value of
real
property
located
outside
Metro Manila is >
P20,000;
and if
value
of
real
property
located
within Metro Manila
is > P50,000
Involves collection
of
debt
or
damages:
MTC : If within
Metro Manila and
debt or damage is
< or = P400,000;
and if outside Metro
Manila and debt or
damage is < or =
P200,000

VENUE

RTC : If within
Metro Manila and
debt or damage is
> P400,000; and if
outside
Metro
Manila and debt or
damage
is
>
P200,000
Where the plaintiff Where the crime
42

resides or where was committed


the
defendant
resides or maybe
found
(at
the
plaintiffs option)
Where
the
real
property is situated
FILING OF THE
COMPLAINT
EFFECT OF
JUDGMENT

Court (docket)
Payment of support

Police
Prosecutor
Imprisonment
and/or fine

Declaration relating
to civil status or Civil
damages
property
(in case the civil
case
was
Declaration relating instituted
with
to
custody
of the
criminal
children
case)
Civil damages
No
imprisonment
nor fine

43

MARRIAGE
One of the laws a paralegal must study is the Family Code that became
effective on 4 August 1988. Considering the prevalence of battery and
other forms of violence within the family, it is necessary for a paralegal
to determine whether the parties involved are legally married. The
rules governing marriage is an important training component in the
study of violence against women.
I.

DEFINITION

Marriage is a special contract of permanent union between a man and


a woman entered into in accordance with law for the establishment of
conjugal and family life. It is the foundation of the family and an
inviolable social institution whose nature, consequences and incidents
are governed by law and not subject to stipulation.
II.

REQUISITES

A.

Essential
a.
1.
legal capacity of the parties : a male and a
female, both should be at least 18 years old
a.

i.

18-21 20 years old: parental

consent is required
b.

21-25 years old: only parental advice is

necessary
2.
B.

consent freely given in the presence of the solemnizing


officer

Formal
1.

authority of the solemnizing officer

2.

a valid marriage license, except in cases provided by law

3.

marriage ceremony: the appearance of the contracting


parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife.
44

This should take place in the presence of not less than two
(2) witnesses of legal age.
III. EFFECTS OF ABSENCE OR DEFECT IN THE REQUISITES

IV.

1.

Absence of any of the essential or formal requisites:


marriage is void ab initio;

2.

Defect in the essential requisites: marriage is voidable;

3.

Irregularity in the formal requisites: marriage is valid but


the party responsible for the irregularity shall be liable
(civilly, administratively, and criminally).

VOID MARRIAGES
Absence of any one of the essential or formal requisites:
1.

a party is not of legal age: (below eighteen (18) years of


age);

2.

the solemnizing officer had no legal authority to perform


marriages, unless either o r both parties believed in good
faith that he had the legal authority to do so;

3.

there was no valid marriage license;

4.

bigamous or polygamous marriages;

5.

the marriage was contracted through mistake of one of the


parties as to the identity of the other;

6.

subsequent marriages where the judgment of annulment


or nullity of the marriage has not been recorded in the
appropriate civil registry;

Psychological Incapacity
7.

one of the parties is psychologically incapacitated to


comply with the essential marital obligations;

45

Marriages between relatives (Incestuous Marriages)


8.

between ascendants and descendants of any degree;

9.

between brothers and sisters, whether of full or half-blood;

Marriages against public policy

V.

10.

between collateral blood relatives up to the 4 th civil degree


(nephew/niece, aunt/uncle and first cousins)

11.

between step-parents and step-children

12.

between parents-in-law and children-in-law

13.

between the adopting parent and the adopted child;

14.

between the surviving spouse of the adopted parent and


the adopted child;

15.

between the surviving spouse of the adopted child and the


adopter;

16.

between the adopted child and the legitimate child of the


adopter;

17.

between adopted children of the same adopter;

18.

between parties where one, with the intention to marry the


other, killed the other persons spouse, or his/her own
spouse.

VOIDABLE MARRIAGES
1.

where the party seeking the annulment was between 1821 years of age and the marriage was contracted without
the consent of his/her parents or guardian;

2.

where one of the parties was of unsound mind;

3.

where the consent of either party was obtained by fraud;

46

What constitutes fraud:


a.

non-disclosure of a previous conviction by final


judgment of a crime involving moral turpitude;

b.

concealment by the wife of the fact that at the time


of the marriage, she was pregnant by a man other
than her husband;

c.

concealment of sexually transmissible disease,


regardless of its nature, existing at the time of the
marriage;

d.

concealment of drug addiction, habitual alcoholism,


homosexuality or lesbianism, existing at the time of
marriage.

4.

where consent of either party was obtained through force,


intimidation or undue influence;

5.

where either party was physically incapable of


consummating the marriage with the other, and such
incapacity continues and appears to be incurable;

6.

where either party was afflicted with sexually-transmissible


disease found to be serious and appears to be incurable.

47

48

PROVISIONAL ORDERS

Under the rules covered by A.M. No. 02-11-12-SC issued by the


Supreme Court, which took effect on 15 March 2003, the provisional
orders for support, custody, visitation rights, hold-departure and
protection orders may be availed of during the pendency of cases for
legal separation, declaration of nullity of marriage and annulment.
From the word "provisional", these orders are intended to temporarily
resolve the issues of support, custody, visitation rights, etc. while the
court has yet to make a final declaration on the main case for legal
separation or declaration of nullity of marriage or annulment.
At any time during the proceeding for legal separation or declaration of
nullity of marriage or annulment, the court, by itself or upon the
request of any of the parties or guardian, may issue the following
provisional orders with or without need of a hearing. These orders
may be enforced immediately, and for such period and conditions as
the court may determine. However, the court shall provide only for the
support of the spouses and the support and custody of the common
children, if there are no adequate provisions in a written agreement.

I.

Provisional Orders that may be issued:


1.
2.
3.
4.
5.
6.

1.

spousal support
child support
child custody
visitation rights
hold departure order
protection order

Spousal Support

For spousal support, the court may be guided by the following factors
in determining the amount of support that a spouse is entitled:

standard of living of the spouses during the marriage


whether the spouse seeking support has custody of a child
whose circumstances make it appropriate for that spouse not to
seek outside employment

49

the comparative financial resources of the spouses


the needs and obligations of each spouse
the contribution of each spouse to the marriage
the age and health of the spouses
the physical and emotional conditions of the spouse
the ability of the supporting spouse to give support; and
such other factors as the court may determine.

The court may direct the deduction of the provisional spousal support
from the salary of the parent or spouse.
2.

Child Support

For child support, the court may require either or both parents to give
an amount necessary for the support, maintenance and education of
the child, and the amount shall be in proportion to the means of the
giver and to the needs of the child.
The court may also consider the following factors in determining the
amount of provisional support:

the financial resources of the parents


the physical and emotional health of the child and his /or her
special needs
the standard of living the child has been accustomed to; and
the non-monetary contributions that the parents will make
toward the care and well-being of the child.

The court may direct the deduction of the provisional child support
from the salary of the parent or spouse.
3.

Child Custody

In determining the rightful custody of the child, the court shall


consider the best interests of the child and shall give paramount
consideration to the material and moral welfare of the child.
The court may likewise consider the following factors:

the agreement of the parties

50

the desire and ability of each parent to foster an open and loving
relationship between the child and the other parent
the child's health, safety and welfare
any history of child or spousal abuse on the part of the parent
seeking custody, and also on the part of any person having an
intimate relationship with either parent
the nature and frequency of contact with both parents
habitual use of alcohol or regulated substances
marital misconduct
the most suitable physical, emotional, spiritual, psychological
and educational environment; and
the preference of the child, if over seven years of age and of
sufficient discernment, unless the parent chosen is unfit

The court may award the provisional custody to the following persons
and in accordance with the following order of preference:
1. to both parents, jointly
2. to either parent, taking into account the factors mentioned
above and the preference of the child over seven years of age,
unless the parent chosen is unfit
3. to the surviving grandparent, or if there are several of them, to
the grandparent chosen by the child over seven years of age and
of sufficient discernment, unless the grandparent is unfit or
disqualified
4. to the eldest brother or sister over twenty-one years of age,
unless he or s/he is unfit or disqualified
5. to any other person deemed by the court suitable to provide
proper care and guidance for the child
4. Visitation Rights
Appropriate visitation rights shall be provided to the parent who is not
awarded provisional custody, unless found unfit and disqualified by the
court.
5. Hold- Departure Order
While the main case for legal separation or declaration of nullity of
marriage or annulment is pending, no child of the parties shall be
brought out of the country without prior order from the court.

51

In this regard, the court may issue a hold departure order addressed
to the Bureau of Immigration and Deportation, directing it not to allow
the departure of the child from the Philippines without the permission
of the court.
6. Protection Order
The court may issue an Order of Protection requiring any person:
1. to stay away from the home, school, business, or place of
employment, or from any other specific place designated by the
court, of the child, other parent or any other party;
2. to refrain from harassing, intimidating, or threatening such child
or other parent or any person to whom custody of the child is
awarded;
3. to refrain from committing acts that create an unreasonable risk
to the health, safety, or welfare of the child;
4. to permit a parent, or a person entitled to visitation, to visit the
child at stated period;
5. to permit a party to enter the residence during a specified period
of time in order to take personal belongings not otherwise
contested before the court;
6. to comply with such other orders as are necessary for the
protection of the child.

52

LEGAL SEPARATION
One of the remedies available to women suffering from violent marital
relationships is legal separation. The legal basis for which can be found
in the Family Code of the Philippines. The Family Code provides for the
grounds for legal separation. There are ten grounds for a petition for
legal separation. Most of these grounds display different forms of
violence against women.
I.

GROUNDS FOR LEGAL SEPARATION


1.

Repeated physical violence or grossly abusive conduct


directed against the petitioner, a common child or a child
of the petitioner;

2. Physical violence or moral pressure to compel the petitioner


to change religious or political affiliation;
3. Attempt of the respondent to corrupt or induce the petitioner,
a common child or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or
inducement;
4. Final judgment sentencing the respondent to imprisonment
of more than six (6) years, even if pardoned;
5. Drug addiction or habitual alcoholism of the respondent;
6. Lesbianism or homosexuality of the respondent;
7.

Contracting by the respondent of a subsequent bigamous


marriage, whether in the Philippines or abroad;

8. Sexual infidelity or perversion;


9. Attempt by the respondent against the life of the petitioner;
or
10.

Abandonment of the petitioner by the respondent without


justifiable cause for more than one (1) year.

53

II.

GROUNDS FOR
SEPARATION
1.

DENYING

PETITION

FOR

LEGAL

Condonation

Condonation is the forgiveness, expressed or implied, given after


the occurrence of the act or offense that constitutes the ground
for legal separation.
Condonation is expressed when it is manifested in words or in
writing. For example, the wife wrote her husband a letter telling
him that she is willing to take him back despite his womanizing.
Implied condonation is seen from the acts of the innocent spouse
that show forgiveness. If a spouse knew that a ground for legal
separation existed but nevertheless cohabited or had sexual
intercourse with the other, the law recognizes this as an act of
implied condonation.
2.

Consent

Consent is the permission or willingness to agree the


commission of the offense or act complained of. Consent is given
before the act is committed. It may likewise be expressed or
implied. For example, an agreement that either spouse may live
with another without interference from the other.
3.

Connivance

Connivance is not just giving consent to the other spouse to


commit an offense or act but also participating in the act that
will constitute the ground for legal separation. For example, the
husband hired a detective to observe and then seduce his wife.
Later, the husband files a petition for legal separation against the
wife on sexual infidelity. The petition may be dismissed because
the husband connived with the other man in seducing the wife.

4.

Mutual Guilt

54

In case of mutual guilt, both parties committed acts that


constitute grounds for legal separation (in pari delicto). Since
both spouses are guilty, the law treats them as if there was no
aggrieved party.
5.

Collusion

There is collusion if the parties conspire to fabricate a ground for


legal separation when in fact none exists.
6.

Prescription

Prescription is the extinction or loss of the right to file an action


for failure to file the same within the period fixed by law. A
petition for legal separation prescribes, when the petition is not
filed within five (5) years from the time of the occurrence of the
cause.
III. RULES IN HEARING AN ACTION FOR LEGAL SEPARATION
1.

The petition shall be filed in the Family Court of the


province or city where the petitioner or respondent has
been residing for at least six (6) months prior to the date
of filing, at the election of the petitioner.

2.

The petition shall not be tried before six (6) months have
elapsed since its filing as to give the parties an opportunity
for reconciliation. However, if the ground involves domestic
violence, the six-month period shall be waived and the
petition shall be heard immediately;

3.

The court shall not hear the case unless it has taken steps
toward the reconciliation of the parties and is fully
satisfied, despite such efforts, that reconciliation is highly
improbable.

4.

The respondent will not be declared in default even if he


fails to file an Answer but the court will proceed to hear
the case.

5.

No decrees of legal separation shall be based on a


stipulation of facts or a confession of judgment.
55

6.

IV.

The court shall order the prosecuting attorney or fiscal to


determine whether there is collusion between the parties
and to ensure that evidence is not fabricated or
suppressed.

EFFECTS OF A DECREE OF LEGAL SEPARATION

Where the court has determined that there are grounds for granting
the petition for legal separation:
1.

The spouses shall be entitled to live separately from each


other but the marriage bonds shall not be severed;
After the filing of the petition for legal separation and even
before the promulgation of a court decision, the spouses
are allowed to live separately from each other.

2.

The absolute community of property or conjugal


partnership of gains shall be dissolved and liquidated. The
guilty spouse shall have no right to any share in the net
profits earned by the absolute community or conjugal
partnership. His/her share shall be forfeited in favor of the
common children or, if there are none, the children of the
guilty spouse by a previous marriage or, in default of
children, the innocent spouse.

3.

The court, after rendering a decision granting the petition,


shall issue the decree of legal separation only after the
registration of:
(a)

(b)

The entry of judgment granting the petition for


legal separation in the Civil Registries where the
marriage was celebrated and where the Family Court
is located; and
The approved partition and distribution of the
properties of the spouses in the proper Register of
Deeds.

56

4.

The custody over the minor children shall be awarded to


the innocent spouse by the court subject to the following
rules and taking into consideration the best interest of the
children:
No child below seven (7) years of age shall be
separated from his or her mother unless there are
compelling reasons to award custody to the father or
other persons. If the child is over seven (7) years of
age, the court shall inquire which parent the child
wishes to remain with, and the choice of the child
shall respected, unless the parent chosen is unfit.

5.

The guilty spouse is disqualified to frominherit from the


innocent spouse.

6. The innocent spouse may revoke the donations given by


him/her in favor of the guilty spouse. In order to give
legal effect to the revocation, the action to revoke the
donation must be brought within five (5) years from the
date the decision granting the petition for legal separation
has become final.
The designation of the guilty spouse as beneficiary in any
insurance policy may also be revoked after the issuance of
the decree of legal separation, even if such designation be
stipulated as irrevocable.

V.

EFFECT OF RECONCILIATION BETWEEN THE SPOUSES


If the spouses should reconcile, they should file in court a joint
manifestation under oath that they have reconciled. Depending
on when the reconciliation took place, a decree of reconciliation
shall be issued by the court, subject to the following rules:
1.

If it occurred while the action for legal separation is


pending, the court shall immediately issue an order
terminating the proceeding.

2.

If it occurred after the rendition of judgment granting the


petition but before the issuance of the decree of legal
separation, the spouses shall express in their manifestation
57

whether or not they agree to revive their former property


regime or choose a new regime.
The court shall immediately issue a decree of
reconciliation
declaring
that
the
legal
separation
proceeding is set aside and specifying the property regime
under which the spouses are covered.
3.

If the spouses reconciled after the issuance of the Decree,


upon motion, the court shall issue a decree of
reconciliation which declares that the Decree is set aside
but the separation of property and any forfeiture of the
share of the guilty spouse already effected subsists, unless
the spouses have agreed to revive their former property
regime or adopt a new regime.

58

PSYCHOLOGICAL INCAPACITY
Another important remedy found in the Family Code that is relevant to
the issue of violence against a legally married woman is the provision
in Article 36 of the said Code. Even if it is not expressly stated in
Article 36 that violence against women is a ground for filing a case, it
can be inferred that infliction of violence against the wife is a clear
manifestation of psychological incapacity to perform the essential
marital obligations required of a spouse. The Family Code does not
provide a definition of psychological incapacity, and because of this,
the judge is granted wide latitude of discretion to decide whether or
not the circumstances of the case fall under the provision of Article 36.
Nevertheless, the Supreme Court has already provided guidelines for
petitions filed under Article 36 of the Family Code.

I.

CONCEPT

According to Article 36 of the Family Code, the marriage is void where


one of the parties is psychologically incapacitated to comply with the
essential marital obligations of marriage. The psychological incapacity
must be present at the time of the celebration of the marriage
although it may become manifest only after its solemnization.
II.

MANIFESTATIONS OF PSYCHOLOGICAL INCAPACITY

Psychological incapacity may manifest itself in many forms. The law


itself does not make an enumeration of these manifestations to give
the court a wider discretion in interpreting this provision on a case-tocase basis.
However, Canon Law, from which the concept of
psychological incapacity was derived, provides some examples, such
as:
1.
2.
3.
4.
5.
6.
7.

homosexuality or lesbianism;
immaturity or irresponsibility;
alcoholism;
epilepsy;
criminality;
battering;
abandonment.
59

III. GUIDELINES IN FILING THE PETITION FOR NULLITY


1.

The petition shall be filed in the Family Court of the


province or city where the petitioner or the respondent has
been residing for at least six (6) months prior to the date
of the filing, at the election of the petitioner.

2.

Either party, even the one psychologically incapacitated,


may file the petition.

3.

The burden of proof to show the nullity of the marriage


rests on the petitioner. In case of doubt, the court shall
resolve in favor of the existence and continuation of the
marriage in order to promote the policy of the State that
the family is an inviolable social institution.

4.

The root cause of the psychological incapacity must be:


a.
b.
c.
d.

medically or clinically identified;


alleged in the petition;
sufficiently proven by experts; and
cClearly explained in the decision.

5.

The incapacity must be proven to be existing at the time of


the celebration of the marriage.

6.

Such incapacity must also be shown to be medically or


clinically permanent or incurable.

7.

Such illness must be grave enough to bring about the


disability of the party to assume the essential obligations
of marriage.

8.

Under the Family Code, the following are the essential


marital obligations, which if not complied with, are
considered as a ground for annulment:
a.
b.
c.
d.

to
to
to
to

live together;
observe mutual love;
observe mutual respect;
observe fidelity;
60

e.
f.
g.

h.
i.

IV.

to render mutual help and support;


to fix the family domicile;
with respect to children: to provide support, to
educate and instruct them by right precept and good
example, to impose discipline, to represent them in
all matters affecting their interests, etc.
to procreate children
to jointly support the family

9.

While the church annulment is not controlling or decisive,


interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines shall be
given great respect by our courts.

10.

The trial court must order the prosecuting attorney or


fiscal and the sSolicitor gGeneral to appear as counsel for
the State. No decision shall be rendered unless the
sSolicitor gGeneral issues a certification, which will be
quoted in the decision, stating his/her agreement or
opposition to the petition. Tthe certification shall be
submitted within fifteen (15) days from the date the case
is deemed submitted for resolution.

EFFECTS OF DECLARATION OF NULLITY OF MARRIAGE


BASED ON PSYCHOLOGICAL INCAPACITY
1.

Civil Status

The marital relations between the spouses shall be severed.


Consequently, both of the parties are allowed to remarry. Iif the
woman used her erstwhile husbands surname, she may resume
using her maiden name as her surname.
2.

Property Relations

Since the marriage was void, no absolute community of property


or conjugal partnership of gains was established. Tthe property
relations between the parties will be governed by the rules on
co-ownership.
The properties acquired by the parties while they lived together
shall be owned by them in equal shares. Even if one of the
parties did not participate in the acquisition of any property but
61

because his/her efforts consisted in the care and maintenance of


the family and of the household, s/he is still entitled to an equal
share.
Only properties acquired during cohabitation shall be owned in
common. Income derived from their separate properties are
excluded.
When one of the parties is in bad faith, his/her share shall be
forfeited in favor of their common children or descendants. In
the absence of children or descendants, such share shall belong
to the innocent party.
3.

Status of Children

Children conceived or born before the declaration of nullity of


marriage are legitimate.
4.

Custody of Children

The custody of minor children shall be awarded to the innocent


spouse but the paramount consideration shall be the best
interest of the children.
When the child is below seven (7) years of age, custody shall be
awarded to his/her mother unless there are compelling reasons
to award custody to the father or another person. If the child is
above seven (7) years of age, the court shall take into
consideration the choice of the child, unless the chosen parent is
considered unfit.

62

63

SUPPORT
Financial support to herself and her children is one of the serious
problems that beset a wife after deciding to sever her violent marital
relationship with her husband. In many cases, a woman is incapable of
living alone because she is unable to support herself and her children.
Because of this, they are forced to stay in the relationship despite its
distressful nature.
I.

CONCEPT

The concept underlying support is the obligation of persons to take


care and attend to the welfare of their close relatives.
II.

WHAT IS INCLUDED IN SUPPORT

Support comprises everything indispensable for:


1.
2.
3.
4.
5.
6.

sustenance/food;
dwelling;
clothing;
medical attendance;
education of the persons entitled to be supported which
includes schooling or training for some profession, trade or
vocation, even beyond the age of majority;
transportation shall include expenses inI going to and from
school, or to and from place of work.

III. PERSONS OBLIGED TO GIVE SUPPORT


1.

the spouses;

2.

legitimate ascendants and descendants;

3.

parents and their legitimate children and the legitimate


and illegitimate children of the latter;

4.

parents and their illegitimate children and the legitimate


and illegitimate children of the latter; and

64

5.

legitimate brothers and sisters, whether of full or halfblood.

6.

brothers and sisters not legitimately related, whether of


the full or half-blood, are likewise bound to support each
other, except when the need for support of the brother or
sister, being of age, is due to a cause imputable to the
claimants fault or negligence.

Whenever two or more persons are obliged to give support, the


liability shall devolve upon the following persons in the order herein
provided:
1.
2.
3.
4.

the
the
the
the

spouses;
descendants in the nearest degree;
ascendants in the nearest degree;
brothers and sisters.

When the obligation to give support falls upon two or more persons,
the payment of support shall be divided between them in proportion to
the resources of each.
When there are more than one person demanding support from the
same person, and the latter does not have sufficient means to satisfy
all claims, the above-mentioned order shall be followed. However, if
the persons claiming support should be the spouse and the child, the
child shall be preferred over the spouse.
IV. Rules on Support, if furnished by a person not obliged to
give it:
When, without the knowledge of the person obliged to give support, it
is given by a stranger, the latter shall have a right to claim the same
from the former, unless it appears that s/he gave it without the
intention of being reimbursed.
When the person obliged to support another unjustly refuses or fails to
give support when urgently needed by the latter, any third person may
furnish support to the needy individual. And such person has the right
to seek reimbursement from the person obliged to give support. This
shall particularly apply when the parents of a minor unjustly refuse to
support or fail to give support to the child when urgently needed.

65

V.

PROPERTIES LIABLE FOR SUPPORT


A.

Between legitimate ascendants and descendants whether


legitimate or illegitimate; and brothers and sisters,
whether legitimately or illegitimately related:
Only the separate property of the person obliged to give
support shall be answerable. Iin case such person has no
separate property, the absolute community or conjugal
partnership, if financially capable, shall advance the
support. This shall be deducted from the share of the
spouse obliged to give support upon the liquidation of the
absolute community or conjugal partnership.

B.

Between the spouses and their children


During the proceedings for legal separation or annulment
of marriage, the spouses and their children shall be
supported from the properties of the absolute community
or conjugal partnership. The obligation of mutual support
between the spouses ceases after final judgment is
rendered granting the petition. However, in the case of
legal separation, the court may order the guilty spouse to
give support to the innocent one from his separate
property.

IV.

Whenever two or more persons are obliged to give


support, the liability shall devolve upon the following
persons in the order herein provided:
1.
2.
3.
4.

the
the
the
the

spouses;
descendants in the nearest degree;
ascendants in the nearest degree;
brothers and sisters.

When the obligation to give support falls upon two or more


persons, the payment of the same shall be divided between
them in proportion to the resources of each.
V.

When two or more persons have the right to receive


support from the same person:

66

When there are more than one person demanding support from
the same person, and the latter does not have sufficient means
to satisfy all claims, the order previously stated (under V above)
shall be followed. However, if the persons claiming support
should be the spouse and the child, the child shall be preferred
over the spouse.
VI.

AMOUNT OF SUPPORT

The amount of support that may be ordered by the court shall be in


proportion to the resources or means of the giver and the necessities
of the recipient.
The amount of support may be reduced or increased proportionately
according to the reduction or increase of the necessities of the
recipient and the resources of the giver.
Contractual support (i.e. when the parties enter into an extra-judicial
settlement) shall be subject to adjustments in case of changes in the
circumstances which the parties failed to foresee or consider when the
contract or agreement was executed or entered into.
VII. WHEN SUPPORT IS DEMANDABLE
The obligation to give support shall be demandable from the time the
person who has a right to receive the same needs it for maintenance,
but it shall not be paid, except from the date of demand, judicial or
extra-judicial.
Payment shall be made within the first five (5) days of each
corresponding month. When the recipient dies, his or her heirs shall
not be obliged to return what s/he has already received.
The person obliged to give support shall have the option of either
paying the allowance fixed or receiving and maintaining in the family
dwelling the person who has the right to receive support. Tthe latter
option cannot be availed of in case there is a moral or a legal obstacle.

67

68

VI.

Support furnished by a person not obliged to give it

When, without the knowledge of the person obliged to give


support, it is given by a stranger, the latter shall have a right to claim
the same from the former, unless it appears that s/he gave it without
the intention of being reimbursed.
When the person obliged to support another unjustly refuses or
fails to give support when urgently needed by the latter, any third
person may furnish support top the needy individual. And such person
has the right to seek reimbursement from the person obliged to give
support. This shall particularly apply when the parents of a minor
unjustly refuse to support or fail to give support to the child when
urgently needed.

PARENTAL AUTHORITY

The authority and responsibility of parents to their children and the


obligation of children to their parents are governed by the provisions of
the Family Code. The issue of violence at home requires understanding
of the scope and extent of this authority. The custody of children is
one of the major issues that spouses need to address in case of their
separation.

69

I.

CONCEPT

Parents have the natural right and duty to take care of their children.
This duty includes caring for the person and property of minor
children.
For their part, children have the duty to observe respect and reverence
toward their parents. They are obliged to obey them as long as they
are under their parental authority.
II.

PURPOSE OF AUTHORITY

The purpose of the law in granting parental authority are the following:
a.
b.

to care for and rear children for civic consciousness and


efficiency; and
to develop the moral, mental and physical character and
well-being of children.

Parents shall be civilly liable for the injuries and damages caused by
the acts and omissions of their minor children living in their company
and under their parental authority. However, they may avoid liability if
they can show that they have exercised the diligence required under
particular circumstances.
Parental authority and responsibility may not be renounced or
transferred, except in the cases authorized by law, such as those
enumerated below (See IVD, VE,IXG & XIH).
III. WHO EXERCISES PARENTAL AUTHORITY
1.

Over legitimate children


The father and the mother shall jointly exercise parental
authority. In case of disagreement, the fathers decision
shall prevail, unless there is a judicial order to the
contrary.

2.

Over illegitimate children

70

Illegitimate children shall be under the parental authority


of their mother. Under the law, the father has no authority
over the child although he may be granted visitation rights.
IV.

CIRCUMSTANCES
AUTHORITY
1.

THAT

MAY

AFFECT

PARENTAL

In case of absence or death of either parent, the parent


present shall continue exercising parental authority.
Parental authority is not affected by the remarriage of the
surviving spouse, unless the court appoints another person
to be the guardian of the person or property of the
children.

2.

In case of separation of the parents, the parent designated


by the Court shall exercise parental authority.
In making the designation, the Court shall take into
account all relevant considerations, especially the choice of
the child over seven (7) years of age. If the child is less
than seven (7) years old, authority shall be exercised by
the mother, unless there are compelling reasons for
granting the authority to another person.

3.

In case of death, absence or unsuitability of the parents,


the surviving grandparent shall exercise substitute parental
authority.
In case there are several grandparents survive, the court
will designate the grandparent who shall exercise
substitute parental
authority, taking into account all
relevant considerations, especially the choice of the child
over seven (7) years of age, unless the person chosen is
unfit.

V.

SUBSTITUTE AUTHORITY

71

1.

In default of parents or af judicially appointed guardian,


the following persons shall exercise substitute parental
authority in the order indicated:
a.
b.
c.
d.

2.

the surviving grandparent;


the oldest brother or sister, over twenty-one (21)
years of age, unless unfit or disqualified;
the childs actual custodian, over twenty-one (21)
years of age, unless unfit or disqualified;
heads of childrens homes, orphanages, and similar
institutions (after summary judicial proceedings have
been conducted) in the case of foundlings,
abandoned, neglected or abused children.

Nature of liability
The parents, judicial guardians or the persons exercising
substitute parental authority over the minor shall be
subsidiarily liable.

VI.

SPECIAL PARENTAL AUTHORITY


Individuals or institutions with special parental authority
1.
2.
3.
4.

schools;
school administrators;
teachers; and
individuals, organizations, or institutions engaged
in child care.

The above-mentioned persons and institutions shall have special


parental authority and responsibility over minor children while
they are under their supervision, instruction or custody. The
scope extends to all authorized activities whether inside or
outside the premises of the school. However, once the children
has passed the minority age or as soon as they have been
officially removed from the school or institution, the special
parental authority and responsibility ceases.
Individuals and institutions given special parental authority are
principally and solidarily liable for damages caused by the acts or
omissions of the minor, unless it is proven that they exercised
the proper diligence required under particular circumstances.
72

VII.

PROCEDURE THAT MAY


UNDISCIPLINED CHILDREN
1.

BE

TAKEN

AGAINST

Filing of the Petition

The parents or, in their absence or incapacity, the individual,


entity or institution exercising parental authority, may petition
the Regional Trial Court where the child resides, for an order
providing for disciplinary measures over the child.
2.

Summary Hearing

A summary hearing shall be conducted wherein the petitioner


and the child shall be heard. The child shall be entitled to the
assistance of counsel.
3.

Judgment by the court

If, after trial, the court finds that the petitioner is at fault, or
when the circumstances so warrant, it may order the deprivation
or suspension of parental authority or adopt such other
measures as it may deem just and proper.
The child shall be committed in entities or institutions engaged in
childcare for not more than thirty (30) days. The parent
exercising parental authority shall not interfere with the care of
the child whenever committed but shall provide for his or her
support.
Upon proper petition or at its own instance, the court may
terminate the commitment of the child, whenever just and
proper.
VIII.

EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY


OF THE CHILDREN
1.

Property of the child


a.

those earned or acquired with the childs work or


industry;

73

b.
c.
d.
e.
2.

those acquired through sale, barter or other onerous


title;
those acquired by gratuitous title such as donations
or inheritance;
fruits and income of the property of the child; and
insurance proceeds.

Bond

Where the value of the property or the annual income of the


child exceeds P50,000, the parent concerned must furnish a
bond not less than 10% of the value of the property or the
annual income. If the value of the property or annual income
does not exceed P50,000, parental authority may be exercised
even without a bond.
3.

Uses for the childs property

The property of the child shall be devoted exclusively to the


childs support and education except, if the title or document of
transfer provides for other purposes, the property shall be used
as provided.
The rights of the parents over the fruits and income of the childs
property shall be limited primarily to the childs support and
secondarily to the collective daily needs of the family.
IX.

TERMINATION
AUTHORITY
1.

DEPRIVATION

OF

PARENTAL

Grounds for permanent termination of parental authority:


a.
b.
c.
d.

2.

OR

death of the parents;


death of the child;
emancipation of the child (when the child reaches 18
years of age); and
subjecting the child or allowing the child to be
subjected to sexual abuse.

Termination that may be revived by judgment


a.

adoption of the child;


74

b.
c.
d.
e.

appointment of a general guardian;


judicial declaration of abandonment of the child;
final judgment of court divesting the party concerned
of parental authority; and
judicial declaration of absence or incapacity of the
person exercising parental authority.

The above-enumerated grounds are not permanent, thus may be


restored or returned to the parents or persons originally
exercising it. Thus, under the following instances, parental
authority is revived:
a. if the adoption is judicially rescinded and the child
has not yet reached the age of majority, parental
authority is reinstated to the parents by nature
b. in case of termination of guardianship over the child,
parental authority is restored to the persons
previously exercising it, if the child is still a minor
c. in case of a judicial restoration of parental authority
to the abandoning parent upon the latters return
d. in case of judicial restoration of parental authority to
the person judicially divested of it
e. in case of judicial restoration of the parental
authority to the absent parent who has returned or
to an incapacitated person who has regained his or
her capacity.
X.

SUSPENSION OF PARENTAL AUTHORITY


1.
2.
3.
4.
5.
6.

conviction of the parent of a crime which carriesd with it


the penalty of civil interdiction;
treating the child with excessive harshness or cruelty;
giving the child corrupting orders, counsel or example;
compelling the child to beg; and
subjecting the child or allowing the child to be subjected to
acts of lasciviousness.
tolerating the commission of the above-mentioned acts by
third persons.

The court shall deprive the guilty party of parental authority if


the degree of the aforementioned circumstances are grave or
serious or when the welfare of the child demands such
deprivation. Where only one parent is guilty, the other one who
is innocent may not be deprived of the custody of the child.
75

XI.

REVOCATION
AUTHORITY

OF

THE

SUSPENSION

OF

PARENTAL

The suspension or deprivation may be revoked and the parental


authority revived in a case filed for such purpose or in the same
proceeding if the Court finds that the cause for the suspension or
termination has ceased and will not be repeated.
XII. REMEDIES WHEN THE WOMAN IS DEPRIVED OF THE
CUSTODY OVER HER CHILD
1.

Habeas Corpus

The objective of a petition for habeas corpus is to obtain a writ


or an order issued by the court directing the respondent to
present in court the body of the person detained at the time and
place specified in the writ. This petition may be filed if the
rightful custody of the child is withheld without due cause.
2.

Petition for Custody

The mother may also file a petition to obtain custody of her


child. The issue of custody is likewise resolved in the decision of
the court in petitions for legal separation, annulment or
declaration of nullity of marriage. Even in the absence of these
petitions and if neither parent is inclined to file a similar petition,
either of them may still file a petition for custody over the child.
The court shall not separate a child below seven (7) years of age
from his or her mother, unless there are compelling reasons to
do so. The best interest of the child shall be the paramount
consideration but the court shall also inquire and take into
account the choice of the child, should s/he be over seven (7)
years old.

76

77

PROPERTY RELATIONS
One of the effects of marriage has something to do with the acquisition
and administration of properties or the property relations of the
spouses. The law allows the parties to make their own rules to govern
their economic relationship through the execution of a marriage
settlement. Their property relations shall be primarily governed by
their marriage settlement if one has been executed. If none, the same
will be governed by the system of absolute community of property.
Even though the rules on property relations have been changed by the
Family Code, wherein both spouses have equal rights in the
administration of their properties, there are still provisions in the Code
78

contending that, in case of conflicting decisions on the administration


and utilization of the properties, the husbands decision shall prevail.
I.

PROPERTY REGIMES

The property relations between the spouses shall be governed by their


pre-nuptial agreement or, in its absence, by the provisions of the
Family Code. The possible property regimes are the following:
1.
2.
3.
4.
5.
II.

Absolute community of property;


Conjugal partnership of gains;
Complete separation of properties;
Combination of the above regimes; and
Any other regime (ex. dowry system)

REQUISITES OF A VALID PRE-NUPTIAL AGREEMENT


1.

Written;

2.

Signed by the parties;

3.

Executed before the celebration of the marriage;

4.

Any modification must be in writing, signed by the parties


and executed before the celebration of marriage;

5.

Only the spouses can be parties to the agreement;

6.

The marriage must be validly


execution of the agreement;

7.

The agreement must be registered in the local civil registry


in order to affect third persons;

8.

The agreement must embrace all propertiesy owned by the


spouses in accordance with the rules provided by law,
except those excluded by law; and

9.

It must not be contrary to law, morals, good customs,


public policy or public order.

celebrated

after

the

79

III.

IV.

EXAMPLES OF VOID AGREEMENTS


a.

Provision prohibiting the parties to marry another even


after the marriage is dissolved;

b.

Provision stating that the parties may live separately;

c.

Provision stating that an unfaithful spouse shall pay a fine;

d.

Provision prohibiting a party from seeking separation


despite the existence of legal grounds;

e.

Provision stating that the property of the spouses shall be


administered by a third party;

f.

Provision stating that all properties of the wife shall go to


the husband (or vice versa).

ABSOLUTE COMMUNITY OF PROPERTY


In the marriage settlements, the future spouses may agree upon
the regime of absolute community of property. In the absence of
a marriage settlement, or when the regime agreed upon is void,
the system of absolute community of property shall also govern.
Under this regime, the spouses shall jointly own all the property
they possessed before their marriage and acquired after the
marriage, except those properties excluded by law or in the
marriage settlement. Upon the dissolution of the marriage, the
net remainder of the properties shall be divided equally between
the spouses and their heirs.
1.

Commencement of the community regime


The absolute community of property between spouses shall
commence at the precise moment that the marriage is
celebrated. Any stipulation, express or implied, for the
commencement of the community regime at any other
time shall be void.

2.

Properties constituting the community property

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The community property shall consist of all the property


owned by the spouses at the time of the celebration of the
marriage or acquired thereafter.
Property acquired during the marriage is presumed to
belong to the community, unless it is proven that it is one
of those excluded therefrom.
3.

V.

Properties excluded from the community property


a.

Property that was donated to or inherited by either


spouse during the marriage, and the income from
the property unless, it is expressly provided by the
donor, testator or grantor, that they shall form part
of the community property;

b.

Property for personal and exclusive use of either


spouse; however, jewelry shall form part of the
community property; and

c.

Property acquired before the marriage by either


spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if any,
of such property.

CONJUGAL PARTNERSHIP OF GAINS

A. Concept
a.

The husband and wife places in a common fund:


i.
ii.
iii.

the proceeds, products, fruits and income from their


separate properties;
those properties acquired by either or both spouses
through their efforts; and
those properties acquired by either or both spouses
by chance (like prizes won from lottery)

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b.

Upon the dissolution of the marriage or of the partnership,


the net gains or benefits obtained by either or both
spouses shall be divided equally between them, unless
otherwise agreed in the marriage settlements.
Under the conjugal partnership, the exclusive properties of
the spouses shall remain separate and distinct from the
properties they acquired during the marriage.

B. Conjugal partnership property


a. Those acquired during the marriage at the expense of the
common fund, whether the acquisition be for the
partnership, or for only one of the spouses;
i. In order to determine whether the property is to be
considered a conjugal partnership property or an
exclusive property, it is important to determine the
source of the capital. If the money came from the
common fund, the property acquired belongs to the
conjugal partnership.
2. Those obtained from the labor, industry, work or profession of
either or both of the spouses;
Pensions and retirement benefits, where premium payments
were deductible from the salary of the retiring spouse, are
included in the conjugal partnership.
3. Income and other benefits due or received during the marriage
from the common property, as well as the net fruits from the
exclusive property of each spouse.
But upon the dissolution of the conjugal partnership, any fruits
received from the separate property of either spouse shall be
exclusively owned by her/him.
4. The share of either spouse in the hidden treasure when the law
awards to the finder or owner of the property where the treasure
is found;
5. Those acquired through occupation such as fishing or hunting;

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6. Livestock existing upon the dissolution of the partnership in excess


of the number of each kind brought to the marriage by either
spouse; and
7. Those which are acquired by chance, such as winnings from
gambling or betting, however, losses shall be borne exclusively by
the loser-spouse.
C. Exclusive property of the spouses
1. That which is brought to the marriage as his or her own
(excluded from the common fund);
2. That which each acquires during the marriage by gratuitous
title, except for:
a.

property acquired by gratuitous title from third


persons, such as by gift or simple donations;

b.

property acquired by onerous title, according to the


following:
i.

by redemption:
ownership depends
whoever has the right to redeem;

on

ii.

by barter: depends on who owns the traded


property;

iii.

by sale: if the funds used were the exclusive


money of one of the spouses, the purchased
property shall remain separate from the
conjugal partnership;

iv.

by onerous donation: if the property was


donated to only one of the spouses, it shall be
separate from the conjugal partnership and the
charges advanced by the partnership shall be
borne by his/her exclusive property.

3. That which is acquired by right of redemption, by barter or by


exchange with property belonging to only one of the spouses.
4. That which is purchased with exclusive money of the wife or
of the husband
83

The spouses retain the ownership, possession, administration


and enjoyment of their exclusive properties.
During the marriage, either spouse may transfer the
administration of his or her exclusive property to the other by
means of a public instrument, which shall be recorded in the
Registry of Deeds of the place where the property is located.
D. Property bought on installment
1. If the property bought on installments is paid partly form
exclusive funds of either or both spouses and partly from
conjugal funds, full ownership shall belong to the buyer/s,
if full ownership was vested before the marriage. Any
amount advanced by the partnership shall be reimbursed
by the owner upon the liquidation of the partnership.
2. If the property bought on installments is paid partly form
exclusive funds of either or both spouses and partly from
conjugal funds, full ownership shall belong to the conjugal
partnership, if the full ownership was vested during the
marriage. Any amount advanced by the spouse shall be
reimbursed by the partnership.
E. Ownership of Improvements made on a property
1.

The ownership of improvements, whether for utility or


adornment, made on the separate property of the spouses
at the expense of the partnership or through the acts or
efforts of either or both spouses shall pertain to the
conjugal partnership or to the original owner-spouse,
subject to the following rules:
a. When the cost of the improvements made
by the conjugal partnership and any
resulting increase in value are more than
the value of the property at the time of the
improvement, the entire property of the
spouses shall belong to the conjugal
partnership, subject to reimbursement by
the partnership of the value of the property
of the owner-spouse at the time of
improvement;
84

b. But if the resulting increase in value is less


than the value of the property at the time of
the improvement, the property shall be
retained in ownership by the owner-spouse,
subject to reimbursement to the partnership
for the cost of the improvement.
In either case, the ownership of the entire property shall
be vested upon the reimbursement which shall be made at
the time of the liquidation of the conjugal partnership.
VI.

CHARGES UPON AND OBLIGATIONS OF THE COMMUNITY


PROPERTY
AND
CONJUGAL
PARTNERSHIPof
the
community property and conjugal partnership

A.

Both community property and conjugal partnership


1. Support of the spouses, their common
legitimate children of either spouse.

children,

and

The support of illegitimate children shall be borne by the


separate property of the parent-spouse but if there are no
separate properties or if such is insufficient, the
community property and the conjugal partnership shall
advance the support which shall be deducted from the
share of the spouse with illegitimate children upon the
liquidation of the community property or and conjugal
partnership.
2. All debts and obligations contracted during the marriage by
the designated administrator-spouse for the benefit of the
community property and conjugal partnership or by both
spouses or by one of them with the consent of the other.
While spouses usually administer their properties jointly,
this provision pertains to cases whereby one is designated
the administrator-spouse under a pre-nuptial agreement or
in cases of the legal incapacity or absence of one of the
spouses.

85

3. Debts and obligations contracted by either spouse without the


consent of the other to the extent that the family may
have been benefited;
4. All taxes, linens, charges and expenses, including major and
minor repairs upon the community property and conjugal
partnership property;
5. All taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse;
6. Expenses to enable either spouse to start or complete a
professional, vocational or other activity for selfimprovement;
7. Debts incurred before the marriage by either spouse insofar
as they have redounded to the benefit of the family;
8. The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive
purpose of starting or completing a professional, vocational
or other activity for self-improvement;
9. Expenses of litigation between the spouses, unless the suit is
found to be groundless.
If the community property or conjugal partnership property is
insufficient to cover the foregoing liabilities, the spouses shall be
solidarily liable for the unpaid balance with their separate properties.
B.

Obligations of the conjugal partnership of gains

Aside from those enumerated above, the conjugal partnership shall be


liable for the following obligations in case the spouse who is bound
should have no or insufficient exclusive property. But payments made
shall be considered as advances that will be deducted from the
spouses share at the time of the liquidation of the partnership.
1. Personal debts contracted by the husband or the wife before
the marriage other than those falling under #g7 above;
2. Support of illegitimate children of either spouse; and
3. Liability of either spouse for a crime or quasi-delict.
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VII. ADMINISTRATION OF THE COMMUNITY PROPERTY AND


CONJUGAL PARTNERSHIPof the Community Property and
Conjugal Partnership
1.

In both regimes, the administration and enjoyment of the


properties shall belong to both spouses, jointly. In case of
disagreement, the husbands decision shall prevail but the wife
may seek recourse in the courts for proper remedy.

2.

A spouse may assume sole powers of administration in the event


that the other spouse is incapacitated or unable to participate in
the administration (such as when the spouse is working abroad).

VIII. DISPOSITION, SALE, OR MORTGAGE OF PROPERTY


1.

The authority to dispose, sell or mortgage property shall belong


to both spouses jointly.

2.

In case one spouse is designated as an administrator of the


property, the disposition, sale or mortgage of property requires
his/her consent.

3.

Any disposition, sale or mortgage without the written consent of


the other spouse or authority of the court shall be void. However,
the transaction shall be considered as a continuing offer on the
part of the consenting spouse and the third person. This may be
perfected as a binding contract upon the acceptance by the other
spouse or authorization by the court before the offer is
withdrawn by either or both offerors.

IX.

DISSOLUTION OF THE COMMUNITY PROPERTY AND


CONJUGAL PARTERNSHIPof the Community Property and
Conjugal Partnership

The community property and conjugal partnership terminates under


any of the following circumstances:
1.

Upon the death of either spouse;

2.

When there is a decree of legal separation;


87

X.

3.

When the marriage is annulled or declared void; or

4.

In case of judicial separation of property during the


marriage

EFFECT OF SEPARATION DE FACTO

There is separation de facto or separation in fact when the spouses


are separated without going through the courts. This kind of
separation shall not affect either the community property or the
conjugal partnership, except that:

XI.

1.

The spouse who leaves the conjugal home or refuses to


live therein, without just cause has no right to be given
support;

2.

When the law requires the consent of one spouse to any


transaction, judicial authorization shall be obtained in a
summary proceeding;

3.

In the absence of sufficient community or conjugal


property, the separate property of both spouses shall be
solidarily liable for the support of the family. The spouse
present shall, upon proper petition in a summary
proceeding, be given judicial authority to administer or
dispose or mortgage any specific separate property of the
other spouse and use its fruits or proceeds to satisfy the
latters share.

ABANDONMENT

A spouse is deemed to have abandoned the other when he has left the
conjugal dwelling without any intention of returning.
The spouse who has left the conjugal dwelling for a period of three (3)
months or who has failed within the same period to give any
information as to his whereabouts shall be prima facie presumed to
have no intention of returning to the conjugal dwelling.
88

In such case, the abandoned spouse may petition the court for:
a. receivership;
b. judicial separation of property; or
c. authority as sole administrator of the community property or
conjugal partnership, subject to such precautionary
conditions as the court may impose.
XII.

SEPARATION OF PROPERTIES

The following rules shall govern if there is an expressed declaration in


the marriage settlements that the property regime of the spouses shall
be complete separation of property. These rules shall also govern when
the court orders the separation of property.
1.

The separation of property between the spouses during the


marriage shall not take place, except by judicial order or when
stipulated in the marriage settlement.

2.

Each or both spouses may file a petition with the court for the
dissolution of the community property or conjugal partnership
based on any of the following causes:
a.

That the spouse of the petitioner has been sentenced to a


penalty which carries with it civil interdiction;

b.

That the spouse of the petitioner has been judicially


declared an absentee;

c.

That loss of parental authority of the spouse of the


petitioner has been decreed by the court;

d.

That the spouse of petitioner has abandoned the latter or


failed to comply with his obligations to the family; and

e.

That at the time of the petition, the spouses have been


separated in fact for at least one year and reconciliation is
highly improbable.

89

INTRODUCTION TO CRIMINAL LAW


The institution of a criminal action is one of the remedies available to a
survivor of violence it may be in the form of battery, rape, or sexual
harassment. Aside from a civil action, the survivor can file a criminal
action in order to subject her offender to imprisonment and/or fine as
penalties for the willlfull abuse of her right. Introduction to criminal law
is essential to help us understand the characteristics, and the various
concepts and principles of criminal law.
I.

INTRODUCTION
A.

Characteristics of Criminal Law


1.

Generality

Criminal laws apply to all persons who live or sojourn in


the Philippines, irrespective of age, gender, color, race,
belief or personal status.
2.

Territoriality

Penal laws are enforceable within the Philippine territory,


including its atmosphere, interior waters and maritime
zones.
In exceptional cases, criminal laws may be enforced
outside
the
Philippine
jurisdiction
(extra-territorial
application).

3.

Irretrospectivity

The law shall not apply to acts or omissions committed


before its effectivity. However, if it is favorable to the
accused who is not a habitual delinquent or when the law
provides, it shall have retroactive effect.

90

II.
i.

CRIMES

Felony
Felony is an act or omission punishable by law. It is committed
by means of deceit or fault.
1.

Deceit (dolo)

The act is performed with deliberate intent.


Elements:
2.
Freedom of Action
3.
Intelligence
4.
Criminal Intent
2.

Fault (culpa)

The wrongful act results from imprudence, negligence, lack of


foresight or lack of skill.
Elements:
1.
Freedom of Action
2.
Intelligence
3.
Criminal Negligence
1.
1.

Degrees of Execution

Consummated

All elements necessary for the accomplishment of the


crime are present.
Example: Rolly stabbed
(consummated parricide)]
2.

his

wife

Maria.

Maria

died.

Frustrated

91

All acts that would result in the crime where performed but
causes independent of the will of the perpetrator prevented the
accomplishment of the crime.
Example: Rolly stabbed his wife Maria but she survived
because someone rushed her to the hospital for treatment.
(frustrated parricide)
3.

Attempted

The offender had started to commit the crime but not all
the elements to accomplish the crime were performed by reason
of some cause or accident other than his/her own spontaneous
desistance.
Example: Rolly wanted to kill his wife, Maria. He was
about to stab her with a knife when someone saw him and
seized his weapon. (attempted parricide)
C.

Criminal Liability

A person who commits a crime may be held liable as a principal,


accomplice or accessory.
1.

Principal
There are three (3) kinds:
a. Principal by direct participation: takes a direct part
in the execution of the act
b. Principal by inducement: directly forces or induces
others to commit the crime
c. Principal by indispensable cooperation: cooperates
in the commission of the offense by another act
without which it would not have been accomplished.

2.

Accomplice
An accomplice is a person who is not a principal but
cooperates in the execution of the crime by previous orf
simultaneous acts.
92

Example: A taxi drivers who allowed his vehicle to be used


to kidnap someone.
3.

Accessory
An accessory is a person who, having knowledge of the
commission of the crime butr without participating therein
as a principal or accomplice, subsequently takes part in its
commission by any of the following acts:
a.

by profiting himself or assisting the offender to profit


from the crime;

b.

by concealing or destroying evidence or effects or


instruments of the crime in order to prevent its
discovery;

c.

by harboring, concealing or assisting in the escape of


the principal where the accessory is a:

public officer: who


functions;

private person: the offender is either guilty


of treason, parricide, murder or attempt on
the life of the Chief Executive or is a
habitual criminal.

abused

his

public

III. FACTORS TO CONSIDER IN DETERMINING CRIMINAL


LIABILITY
A.

Justifying Circumstances
When justifying circumstances are present, the actor does not
incur criminal liability nor any civil liability since the act was done
in accordance with law.
93

The justifying circumstances are as follows:


1.

Self-defense: acting in defense of ones person or rights


provided there was:
a.
b.
c.

2.

unlawful aggression;
reasonable necessity of the means employed to
prevent or repel it; and
lack of sufficient provocation on the part of the
person defending herself.

Defense of a relative: acting in defense of the person or


rights of a spouse, ascendants, descendants, or
legitimate/natural/ adopted brothers or sisters, uncles and
aunts, first cousins.

Elements:
a.
unlawful aggression
b.
reasonable necessity of the means employed to
prevent or repel it; and
c.
in case the provocation was given by the person
attacked, the one making the defense had no part
therein.
3.

Defense of stranger: acting in defense of the person or


rights of a stranger

Elements:
a.
unlawful aggression;
b.
reasonable necessity of the means employed to
prevent or repel it; and
c.
the person defending was not induced by revenge,
resentment, or other evil motive.
4.

Avoidance of a greater evil: doing an act which causes


damage to another in order to avoid evil or injury feared to
be greater than that done to avoid it.

5.

Fulfillment of duty or lawful exercise of right

Example:
6.

A policeman who shot an attacking escaped convict.

Obedience to a lawful order by a superior


94

B.

Exempting Circumstances

Whenever an exempting circumstance is present, there is a crime


committed but there is no criminal liability because of the presence of
extra-ordinary circumstances. This occurs when an element of deceit is
absent (freedom of action, intelligence, criminal intent)
1.

Insanity or imbecility, unless the person acted during a


lucid interval;

2.

Under nine (9) years of age; *

3.

Over nine (9) years of age and under fifteen (15), unless
the person acted with discernment;*

Note: * Under RA 9344 (Juvenile Justice System and Welfare


Act of 2006) all persons under fifteen (15) years of age shall be
exempt from criminal liability but shall be subject to an
intervention program.
4.

Causing an injury by mere accident without fault or intent


of causing it while performing a lawful act with due care;

5.

Acting under the compulsion of an irresistible force;

6.

Acting under the impulse of an uncontrollable fear;

7.

Failing to perform an act required by law when prevented


by some lawful cause.

Mitigating Circumstances
A mitigating circumstance reduces the criminal liability of the accused.
The following are the circumstances recognized by law:
1.

Absence of an
circumstances;

element

of

justifying

or

exempting

95

D.

2.

Under eighteen (18) years of age or over seventy (70)


years of age;

3.

No intent to commit so grave a wrong;

4.

Sufficient provocation or threat on the part of the offended


party immediately preceding the act;

5.

Immediate vindication of a grave offense committed


against the offender, a spouse or relatives (descendants,
ascendants, legitimate, natural or adopted brothers or
sisters);

6.

Passion or obfuscation;

7.

Voluntary surrender to the authorities or plea of guilt


before the presentation of evidence for the prosecution;

8.

Being deaf and dumb, blind, or suffering from some


physical defect which restricts ones means of action,
defense or communication with others;

9.

Illness that diminishes will power;

10.

Other analogous circumstances.

Aggravating Circumstances

Whenever any of the aggravating circumstances is present, the


criminal liability as reflected by the penalty is increased. These are:
1.

Taking advantage of ones public position;

2.

In contempt of or with insult to the public authorities;

3.

With insult or in disregard of the respect due to the


offended party on account of her rank/age/sex; or in the
dwelling of the offended party, if the latter has not given
provocation;

4.

With abuse of confidence or obvious ungratefulness;

96

5.

In the palace or presence of the Chief Executive, or where


public authorities are engaged in the discharge of their
duties, or in a place dedicated to religious worship;

6.

Nighttime, or in an uninhabited place, or byh a band [when


the crime is committed by (more than three(3) armed
persons], )whenever such circumstances facilitate the
commission of the offense;

7.

On the occasion of a conflagration, shipwreck, earthquake,


epidemic, or other calamity or misfortune;

8.

With the aid of armed men or persons to whoeinsure or


afford impunity;

9.

Recidivism: a recidivist is one who, at the time of trial for a


crime, was previously convicted by final judgment of
another crime embraced within the same title of the
Revised Penal Code;

10.

Reiteracion or Habituality: The offender was previously


punished for an offense to which the law attaches an equal
or greater penalty or for two or more crimes to which it
attaches a lighter penalty;

11.

In consideration of a price, reward, or promise;

12.

By means of inundation, fire, poison, explosion, stranding


or intentional damage of a vessel, derailment of a
locomotive, or by the use of any other artifice involving
great waste and ruin;

13.

With evident premeditation;

14.

Craft, fraud, or disguise is employed;

15.

Taking advantage of superior strength or employing means


to weaken the defense;

16.

With treachery: employing means, methods, or forms


which tend directly and specially to insure the execution of
the crime without risk to oneself;

17.

Employing means or bringing about circumstances which


add ignominy to the natural effects of the act;

97

E.

18.

Unlawful entry: an entrance which is effected by a way not


intended for the purpose;

19.

Breaking a wall, roofk, floor, door, or window;

20.

With the aid of persons under fifteen (15) years of age or


by means of motor vehicle, motorized watercraft, airships
or other similar means;

21.

With cruelty or deliberate augmentation of the wrong done


by causing other wrong not necessary for the commission
of the crime.

Alternative Circumstances

Alternative circumstances may either mitigate or aggravate criminal


liability. These circumstances are:
1.

Relationship: When the offended party is the spouse,


ascendant, descendant, brother or sister (legitimate or
adopted) or relative by affinity in the same degree
a.

2.

mitigating:
i.

in crimes against property; and

ii.

in crimes against persons when the offended party


is a descendant

b.

exempting: in crimes of theft, estafa or malicious


mischief

c.

aggravating:
i.

in crimes against persons when the offended party


is an ascendant;

ii.

in crimes against chastity irrespective of the


degree/level of relationship between the offended
party and the accused

Intoxication

By intoxication is meant that the offenders mental faculties must


be affected by drunkenness.
98

3.

a.

mitigating: if intoxication is not habitual


subsequent to the plan to commit the felony

or

b.

aggravating :when the drunkenness is habitual or


intentional

Degree of instruction and education

In the degree of instruction and education of the offender, the


court considers not only illiteracy but the lack of intelligence of
the offender.
a.

b.

mitigating: generally, lack of formal instruction or


low degree of intelligence is mitigating. But it shall
not be mitigating in the following offenses:

murder

crimes against property

crimes against chastity

arson

aggravating: in case the accused used his skills or


education to commit the crime

99

CRIMES RELATED TO VIOLENCE AGAINST WOMEN

Since time immemorial, violence against women has incessantly been


a problem in the Philippine society. There are provisions under our
Revised Penal Code defining various crimes on violence against
women, including the appropriate penalty imposed on the offender.
Included in this part are crimes on physical abuse and other forms of
maltreatment within the domicile. Moreover, crimes relating to sexual
exploitation and abuse of women are also pertinent in our
understanding of the laws on violence against women. However, there
are provisions in the Revised Penal Code that may be viewed as unjust
to women because of the limited definition and inappropriate penalties
for the corresponding crimes.
The table below shall give a paralegal an overview and general
knowledge as to what crime may be imputed to an accused. However,
it must be noted that the crimes listed below is of general application
and does not consider the relationship between the victim and the
accused. Conversely, R.A. 9262 (Anti-Violence Against Women and
their Children Act) considers the intimate relationship between the
accused and the victim. However, this distinction does not make R.A.
9262 and the crimes under the Revised Penal Code mutually exclusive.
In fact, one may use as a basis for filing a case of violation of RA 9262
any of the crimes (listed below) that may be found in the Revised
Penal Code. In any case, the victim is given a wide spectrum as to
what law she will rely upon in the case she will file since she can
always look for the corresponding crime in the Revised Penal Code or
apply R.A. 9262.

CRIMES RELATED TO VIOLENCE AGAINST WOMEN

CRIMES
A.

ELEMENTS

PENALTY

WHEN THE WOMAN IS HARMED

Physical Injuries:
A person wounds, beats or assaults another
100

Serious
When the victim becomes
Physical
insane,
imbecile,
blind or
Injuries
impotent
(Art.
263,
Revised Penal
Code)

Less
Serious
Physical
Injuries
(Art. 265)

6 years, 1 day to
20 years
*qualified: if the
victim
is
the
father, mother or
child
whether
legitimate
or
illegitimate, or a
legitimate other
ascendant
or
other
descendant,
or
the
legitimate
spouse of the
perpetrator

when the victim loses the


use of speech or the power
to hear or to smell, or loses
the an eye, a hand, a foot,
an arm, or a leg, or the use
of any such member, or
becomes incapacitated for
the work which she was
habitually engaged in

2
years,
4
months, 1 day to
6 years

when the victim becomes


deformed, or loses any other
part of her body or its use,
or
becomes
ill
or
incapacitated to work for a
period of more than ninety
(90) days

6 months, 1 day
to 4 years, 2
months

when the victim becomes


incapacitated for ten (10)
days or more (but not more
than 30 days), or requires
medical attendance for the
same period

1 month, 1 day
to 6 months

*qualified:
4
years, 2 months,
1 day to 12 years

*qualified:
2
years, 4 months,
1 day to 6 years

101

Slight Physical
Injuries
(Art. 266)

Mutilation
(Art. 262)

when the victim becomes


incapacitated for labor for
one to nine (1-9) days or
requires medical attendance
for the same period

1-30 days

when the injuries do not


prevent her from working
nor do they require medical
attendance

1-30 days or a
fine
not
exceeding P200
and
public
censure

ill-treatment by a deed

1-10 days or a
fine
not
exceeding P50

intentional deprivation, total


or partial, of some essential
reproductive organ

12 years, 1 day
to 40 years

intentional deprivation of
any other part of the body

6 years, 1 day to
12 years

B. WHEN THE WOMAN DIES


Parricide
(Art. 246)

when the offender kills his


father, mother, or child,
whether
legitimate
or
illegitimate, or legitimate
ascendant or descendant or
legitimate spouse

12 years, 1 day
to 40 years or
death*

102

Murder
(Art. 248)

the killing is not parricide and


is attended by any of the
following circumstances:

12 years, 1 day
to 40 years or
death*

1.

Note: *RA 9346


(An
Act
Prohibiting
the
imposition of the
death penalty in
the Philippines)
provided that all
crimes
punishable
by
death shall be
reduced
to
reclusion
perpetua.

treachery, taking advantage of


superior strength, with the aid
of armed men, or employing
means to weaken the defense,
or use of means or persons to
insure or afford impunity;
2. in consideration of a price,
reward or promise;
3. by means of inundation,
fire,
poison,
explosion,
shipwreck, stranding of a
vessel, derailment or assault
upon
a
street
car
or
locomotive, fall of an airship,
by means of motor vehicles, or
with the use of any other
means involving great waste
and ruin;
4. on occasion of any of the
calamities enumerated in #3,
or of an earthquake, eruption
of
a
volcano,
destructive
cyclone, epidemic or other
public calamity;
5. with evident premeditation;
and
6. with cruelty, by deliberately
and inhumanly augmenting the
suffering of the victim, or
outraging or scoffing at her
person or corpse.

103

Homicide
(Art. 249)

the killing is neither parricide


nor murder

12 years, 1 day
to 20 years

C. WHEN THE WOMAN IS THREATENED


Grave Threats
(Art. 282)

threatening to commit a
crime upon the person,
honor, or property of the
victim or of her family

The penalty next


lower in degree
for the crime the
offender
threatened
to
commit if the
threat was made
with a condition
and the offender
attained
his
purpose
The penalty two
degrees
lower
than
that
prescribed
for
the
crime
threatened to be
committed if the
threat was made
with a condition
but the offender
did not attain his
purpose1 month,
1
day
to
6
months
if
no
condition
was
imposed
in
making
the
threat

104

Light Threats
(Art. 283)

threatening to commit a
wrong, which is not a crime,
when
the
demand
opr
condition imposed is not
followed

1 month, 1 day
to 6 months (if
no condition was
imposed
in
making
the
threat)

Other
Light
Threats
(Art. 285)

1. threatening another with


a weapon or drawing a
weapon during a quarrel

1 month, 1 day
to 6 months

2. threatening another, in
the heat of anger, with some
harm or constituting a crime
but not persisting in acting it
out

1 to 10 days or a
fine not lower
than P200

3. orally threatening to do
another
any
harm
not
constituting a felony
Grave
Coercion (Art.
286)

preventing
another
by
means of violence, force or
intimidation
from
doing
something not prohibited by
law; or

6 months, 1 day
to 6 years and a
fine not lower
than P6,000

compelling
another
by
means of violence, force or
intimidation to do something
against her will, whether
right or wrong
D. WHEN THERE IS SEXUAL INFIDELITY
1. the accused is a married 6 years, 1 day to
Bigamy
person;
(Art. 349)
12 years
2. he got married again to
another person while his
first
marriage
is
still
subsisting
Adultery
(Art. 333)

1. the woman is married;


2. she
has
sexual
intercourse with a man
other than her husband

2
years,
4
months, 1 day to
6 years

105

Concubinage
(Art. 334)

1. the man is married;


2. he committed any of the
following acts:

6 months, 1 day
to 4 years, 2
months

a. kept a mistress in the


conjugal dwelling; or
b. had sexual intercourse
with
another
woman
under
scandalous
circumstances; or
c. cohabited with another
woman in any other place
E. SEXUAL CRIMES
Rape
(Art.
266-A,
RPC
as
amended
by
Republic
Act
8353)

1. sexual intercourse under


any of the following
circumstances:
a. use of force, threat or
intimidation;

20 years, 1 day
to 40 years or
*death
(see
murder)

b. offended party is
deprived of reason or
otherwise unconscious;
c. by means of fraudulent
machination;
d. offended party is under
12 years of age

Rape
(Art.
266-A,
RPC
as
amended
by
Republic
Act
8353)

2. insertion of the penis into


another persons mouth
or anal orifice under any
of
the
circumstances
mentioned above (rape
by sexual assault);

6 years, 1 day to
12 years

Rape
(Art.
266-A,
RPC
as
amended
by
Republic
Act
8353)

3.insertion of any instrument


into
another
persons
mouth or anal orifice
under
any
of
the
circumstances mentioned
above (rape by sexual
assault);

6 years, 1 day to
12 years

106

Sexual
Harassment
(RA 7877)

A. In the wWorkplace
1. sexual favor is made as a
condition in the hiring or
in the employment, reemployment or continued
employment, in granting
favorable compensation,
terms,
conditions,
promotions, or privileges;
or the refusal to grant
sexual favor results in
discrimination or other
adverse effects on the
offended party;

1 to 6 months
and/or
a
fine
ranging
from
P10,000
to
P20,000

2. demanding the sexual


favor
impairs
the
offended partys rights or
privileges under existing
labor laws;
3. the sexual favor results in
an intimidating, hostile,
or offensive environment
for the offended party.
B. In educational or training
institutions
1. demanding sexual favor
on one under the care,
custody or supervision of
the offender;
2. sexual favor is demanded
by a teacher or tutor on a
student, apprentice, or
trainee;
3. the sexual favor is made
a condition to the giving
of a passing grade, or the
granting of honors and
scholarships,
or
the
payment
of
stipends,
allowances
or
other
benefits
4.
107

Acts
of
Lasciviousnes
s (Art. 336)

2. no sexual intercourse but


there is a lascivious act;

6 months, 1 day
to 6 years

3. the act is done under any


of
the
following
circumstances:
a. use of force, threat or
intimidation;
b. offended
party
deprived of reason;

is

c. offended party is under


12 years of age
Consented
Acts
of
Lasciviousnes
s

1. there is a lascivious act;


2. there is a relationship of
trust
and
authority
between the perpetrator
and the victim;
3. the offended
either a:
a.

party

is

virgin between 12
and 18 years of age;
or
b. widow of
reputation

Qualified
Seduction
(Art. 337)

1 month, 1 day
to 6 months

good

1. there
is
sexual
intercourse between the
perpetrator
and
the
victim;

6 months, 1 day
to 4 years, 2
months

2. the victim is a virgin


between 12 years of age
and 18 years of age;
3. there is a relationship of
trust
between
the
perpetrator and the victim

108

Simple
Seduction
(Art. 338)

1.

there
is
sexual
intercourse between the
offender and the victim;

1 month, 1 day
to 6 months

2. the sexual intercourse


was
committed
by
means of deceit (usually
a promise to marry)
Forcible
Abduction
(Art. 342)

2. the person abducted is


any woman, regardless of
age,
civil
status
or
reputation;

12 years, 1 day
to 20 years

3. the abduction is against


her will;
if the victim is below 12
years of age, there is no
need for absence of
consent

4.

Consented
Abduction
(Art. 343)

4 the perpetrator had


lewd
designs.;if the
victim is below 12 years
of age, there is no need
for absence of consent

1. the offended party is a


virgin over 12 and under
18 years of age;

6 months, 1 day
to 6 years

2. the offended party was


taken away with her
consent;
3. the perpetrator had lewd
designs.
Unjust
Vexation
or
Other
Light
Coercions
(Art. 287)

1. there
was
committed
perpetrator;

an
by

act
the

1 to 30 days

2. the act unjustly annoyed


or irritated the innocent
person.

109

Slander
Deed
(Art. 359)

Prostitution
(Art. 202)

by

1. there
was
committed;

an

act

1 day to 2 years,
4 months

2. act
casts
dishonor,
discredit
or
contempt
upon the offended party
(since it was witnessed by
other persons).
The perpetrator is a woman
who:

1 to 30 days

1. habitually
engages
in
sexual
intercourse
or
other lascivious acts; and
2. receives money or profit
in exchange for such act.

110

REPUBLIC ACT 7610


SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE,
EXPLOITATION, AND DISCRIMINATION ACT

Republic Act 7610 (the Special Protection Of Children Against


Child Abuse, Exploitation, and Discrimination Act) was enacted in
1994. This special law defines the concepts of abuse, exploitation and
discrimination of children. The girl-child is vulnerable to crimes like
molestation, seduction, physical abuse and incestuous rape. Thus, it is
important to understand the protection provided to children under this
Act and the limitations of this law.

I.

PROHIBITED ACTS

A.

Child Abuse

Any maltreatment, whether habitual or not, of the child which includes


any of the following:

B.

1.

Psychological and physical abuse, neglect, cruelty, sexual


abuse and emotional maltreatment;

2.

Any act by deeds or wordks which debases, degrades or


demeans the intrinsic worth and dignity of a child as a
human being;

3.

Unreasonable deprivation of his/her


survival, such as food and shelter; or

4.

Failure to immediately give medical treatment to an


injured child resulting in serious impairment of his/her
growth and development or in his/her permanent
incapacity or death.

basic

needs

for

Child Prostitution

Children, whether male or female, who, for money or profit, or any


other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious conduct,
111

are deemed to be children exploited in prostitution and other sexual


abuse.
The following persons shall be penalized:
1.

C.

Those who engage in or promote, facilitate or induce child


prostitution which include, but are not limited to the
following:
a.

Acting as a procurer of a child prostitute;

b.

Inducing a person to be a client of a child prostitute


by means of a written or an oral advertisements or
other similar means;

c.

Taking advantage of influence or relationship to


procure a child prostitute;

d.

Threatening or using violence towards a child to


engage him/her as a prostitute; or

e.

Giving monetary consideration, goods or other


pecuniary benefit to a child with the intent to engage
such child in prostitution.

2.

Those who commit the act of sexual intercourse or


lascivious conduct with a child exploited in prostitution or
subjected to other sexual abuse;

3.

Those who derive profit or advantage therefrom, whether


as manager or owner of the establishment where the
prostitution takes place.

Attempt to Commit Child Prostitution

There is an attempt to commit child prostitution under any of the


circumstances mentioned in #B. 1 (above) whenever a person, who,
not being a relative of a child, who is 10 years or more his junior, is
found alone with said child inside the room or cubicle of a house, an
inn, hotel, motel, pension house, apartelle, or other similar
establishments, vessel, vehicle, or any other hidden or secluded area
under circumstances which would lead a reasonable person to believe
that the child is about to be exploited in prostitution and other sexual
abuse.

112

The following are NOT included:


1.

Relatives of the child within the 4th civil degree (whether by


consanguinity or affinity) or other relations recognized by
law, custom, or tradition; or

2.

Any person, merely fulfilling a social, moral or legal


obligation.

There is an attempt to commit child prostitution under any of the


circumstances mentioned in #B. 2 (above), whenever a person is
receiving services from a child in a sauna bath, massage parlor, health
club and other similar establishments.
The penalty to be imposed for an attempt to commit child prostitution
shall be two (2) degrees lower than that prescribed for consummated
child prostitution.

D.

Child Trafficking

Any person who shall engage in trading and dealing with children
including, but not limited to, the act of buying and selling of a child for
money or for any other consideration, or barter shall be criminally
liable.

E.

Attempt to Commit Child Trafficking


There is an attempt to commit child trafficking:
1. When a child travels alone in a foreign country without valid
reason eand without a clearance issued by the Department of
Social Welfare and Development (DSWD) or a written permit or
justification from the childs parents or legal guardian;
2. When a pregnant mother executes an affidavit of consent for
adoption for a consideration;
3. When a person, agency, establishment or child-caring institution
recruits women or couples to bear children for the purpose of
child-trafficking;

113

4. When a doctor, hospital or clinic official or employee, nurse,


midwife, local civil registrar or any other person simulates birth
for the purpose of child trafficking; or
5. When a person engages in the act of finding children among
low-income families, hospitals, clinics, nurseries, day-care
centers, or other child-caring institutions who can be offered for
the purpose of child trafficking.
The penalty for an attempt to commit child trafficking shall be two (2)
degrees lower than that prescribed for consummated child trafficking.

F.

Obscene Publications and Indecent Shows

Any person who shall hire, employ, use, persuade, induce or coerce a
child to perform in obscene exhibitions and other indecent shows,
whether live or through a video, pose or model in obscene publications
or pornographic materials or to sell or distribute the said material shall
be criminally liable.

G.

Other Acts of Abuse

Any person who shall use, coerce, force or intimidate a streetchild or


any other child to:
a.

beg or use begging as a means of living;

b.

act as a conduit or middlemen in drug trafficking or


pushing; or

c.

conduct any illegal activities;

shall likewise be criminally liable under this law.

II.

PENALTY

The penalty to be imposed depends on the act committed. The


maximum penalty imposable is 20 years and 1 day while the minimum
penalty is 8 years and 1 day.

114

The penalty prescribed shall be imposed in its maximum period in the


following cases:
1.

When the offender has been previously convicted under


the law;

2.

When the offender is a corporation, partnership or


association, the officer or employee responsible for the
violation of this law shall suffer the penalty imposed;

3.

When the perpetrator is an ascendant, parent, guardian,


stepparent or collateral relative within the second degree
of consanguinity or affinity, or a manager or owner of an
establishment which has no license to operate or its license
has expired or has been revoked;

4.

When the offender is a public officer or employee. And in


addition, the penalty of suspension or perpetual or
temporary absolute disqualification may also be imposed to
said public officer or employee.

When the offender is a foreigner, he shall be deported after service of


sentence and forever barred from entry into the country.
The court may also impose a fine for the rehabilitation of the child
victim.

115

REPUBLIC ACT 6955


MAIL ODER BRIDE ACT

Poverty in the Philippines has become the motive why many of our
Filipino women dream of an affluent and comfortable life in other
countries. One way to realize this dream is to have a foreigner pen pal
who will eventually ask the woman to marry him, carry her away to his
country and consequently, alleviate her from poverty. But this is not
what always happens. More often than not, Filipino women who marry
foreigners are subjected to abuse, battery, involuntary servitude and
are forced to indulge in prostitution by their foreigner husband. And
because these Filipino women live in other countries, they are left
without any protection against these abuses.
When the womens movement ignited its campaign against trafficking
in women, the Congress responded through the enactment of Republic
Act 6955 (the Mail-Order Bride Act), which was enacted in 1990,
penalizes persons and associations which place Filipino women in
jeopardy under this scheme of mail-order bride.

I.

PROHIBITED ACTS

A.

It is unlawful for a person, natural or juridical, association, club


or any other entity to commit, directly or indirectly, any of the
following acts:
1.

To establish or carry on a business which has for its


purpose the matching of Filipino women for marriage to
foreign nationals either on a mail-order basis, or through
personal introduction;

2.

To advertise, publish, print or distribute or cause the


advertisement, publication, printing or distribution of any
brochure, flyer, or any propaganda material calculated to
promote any of the prohibited acts;

3.

To solicit, enlist or in any manner attract or induce any


Filipino woman to become a member of any club or
association whose objective is to match women for
116

marriage to foreign nationals either on a mail-order basis


or through personal introduction for a fee;
4.

To use the postal service to promote the prohibited acts in


subparagraph 1 above.

B.

It is unlawful for the manager or officer-in-charge or advertising


manager of any newspaper, magazine, television or radio station,
or other media, or of an advertising agency, printing company or
other similar entities, to knowingly allow, or consent to, the acts
prohibited under this law.

II.

PENALTY

A.

In case the offender is an association, club, partnership,


corporation, or any other entity, its incumbent officers who
knowingly participated in the violation shall be held liable.

B.

The penalty to be imposed shall be:


1.

imprisonment for 6 years and 1 day to 8 years; and

2.

a fine ranging from P8,000 to P20,000.

117

REPUBLIC ACT 8505


RAPE VICTIM ASSISTANCE AND PROTECTION ACT

Apart from redefining the crime of rape under theRepublic Act


8353 (the Anti-Rape Act of 1997), the Congress also enacted Republic
Act 8505 (the Rape Victim Assistance and Protection Act.) Under this
law, the state mandates various agencies of the government to
establish a Rape Crisis Center in every province and city in the
country. Republic Act 8505 also provides for the services that rape
victims can avail of from these crisis centers. Furthermore, the law
prescribes the rules to be followed in the investigation of rape cases.

I.

RAPE CRISIS CENTER

A rape crisis center shall be established in every province and city by


the Department of Social Welfare and Development (DSWD),
Department of Health (DOH), Department of Interior and Local
Government (DILG), Department of Justice (DOJ), and a lead nongovernmental organization (NGO). The center shall be located in a
government hospital or health clinic or in any other suitable place.
II.

PURPOSES FOR ESTABLISHING A RAPE CRISIS CENTER

a.

Providing rape victims with psychological counseling, medical


and health services, including their medico-legal examination;

b.

Securing free legal assistance or service, when necessary, for


rape victims;

c.

Assisting rape victims in the investigation to hasten the arrest of


offenders and the filing of cases in court;

d.

Ensuring the privacy and safety of rape victims;

e.

Providing psychological counseling and medical


whenever necessary for the family of the rape victims;

f.

Developing and undertaking a training program for law


enforcement officers, public prosecutors, lawyers, medico-legal
officers, social workers, and barangay officials on human rights

services

118

and responsibilities, gender sensitivity and legal management of


rape cases;
g.

Adopting and implementing a program for the recovery of rape


victims.

III. INVESTIGATION
A.

By the Police

A womens desk must be established in every police precinct


throughout the country. to provide aA police woman toshall conduct
investigation of complaints of women rape victims.
The police officer must:
1.

immediately refer the


inquest/investigation;

case

to

the

prosecutor

for

2.

arrange for counseling and medical services for the


offended party; and

3.

immediately make a report on the action taken.

It shall be the duty of the police officer to ensure that only persons
exclusively authorized by the offended party shall be allowed inside the
room where the investigation is being conducted.

B.

By the Medico-Legal Officer

The medico-legal officer must be of the same gender as the offended


party.
It shall be the duty of the medico-legal officer to ensure that only
persons expressly authorized by the offended p[arty shall be allowed
inside the room where the medical or physical examination is being
conducted.

119

C.

By the Fiscal

The preliminary investigation or inquest of a female rape victim must


be assigned to female prosecutors.

IV.

OTHER PROTECTIVE MEASURES

A.

Privacy of the Parties

The right to privacy of the offended party and the accused shall be
respected at all stages (investigation by the police, examination of the
medico-legal officer, preliminary investigation by the fiscal, and trial by
the judge). Towards this end, the police officer, medico-legal officer,
prosecutor,
or
the
court,
may
order
that
the
investigation/examination/trial shall be conducted under closed doors.
It may likewise be ordered that the name and personal circumstances
of the offended party and/or the accused and such other
circumstances or information shall not be disclosed to the public.

B.

Rape Shield

In prosecutions for rape, evidence of the past sexual conduct of the


complainant, or any opinion thereoff or of his/her reputation shall not
be admitted, unless, and only to the extent that the court finds, that
such evidence is material and relevant to the case.

120

REPUBLIC ACT 8369


AN ACT ESTABLISHING FAMILY COURTS

The State mandates through Republic Act 8369 (Family Courts Act of
1997), the establishment of a Family Court in every province and city
in the country. In case the city is the capital of the province, the Family
Court shall be established in the municipality with the highest
population. In accordance with this law, cases and disputes on family
relations are to be litigated in these special courts since such courts
are expected to be competent in handling cases involving violence
within the domiciles. Included in the scope of Family Courts
jurisdiction are criminal and civil cases filed by survivors of genderbased violence that occur between family members.

I.

JURISDICTION OF THE FAMILY COURTS

The Family Courts shall have exclusive original jurisdiction to hear and
decide the following cases:
1.

Note:

Criminal cases, where one or more of the accused is below 18


years of age but not less than 9 years of age, or where one or
more of the victims is a minor at the time of the commission of
the offense;
Republic Act 9344 (Juvenile Justice and Welfare Act of
2006), provides that a child-offender fifteen (15) years of
age or under at the time of the commission of the offense
shall be exempt from criminal liability, thus, such childoffender will no longer be held for trial but instead, be
subjected to an intervention program. If the child-accused
is above fifteen (15) years but below eighteen (18) years
of age shall likewise be exempt from criminal liability and
be subjected to an intervention program , unless he/she
has acted with discernment, in which case, such child shall
be subjected to a diversion program without undergoing
court proceedings. However, where the penalty prescribed
for the crime committed exceeds six (6) years
imprisonment, the diversion measures may be resorted to
only by the court. Where the maximum penalty prescribed

121

by law for the crime charged is imprisonment of not more


than twelve (12) years and/or a fine of whatever amount,
the court shall, before arraignment, determine whether or
not diversion is appropriate.
2.

Petitions for guardianship, custody of children, habeas corpus


involving children;

3.

Petitions for adoption of children and the revocation thereof;

4.

Petitions for annulment of marriage, declaration of nullity of


marriage, and those relating to marital status and property
relations of husband and wife, or those living together under
different status and agreements, and petitions for dissolution of
conjugal partnership of gains;

5.

Petitions for support and/or acknowledgment;

6.

Summary judicial proceedings under the Family Code such as:


a.

declaration
marriage;

of

presumptive

death

for

subsequent

b.

delivery of presumptive legitimes of common children upon


the judgment of annulment or declaration of absolute
nullity of marriage of the spouses;

c.

petitions of fixing the family domicile


disagreement between the spouses;

d.

petitions against the exercise of a profession, occupation,


business or activity of spouse;

e.

complaints against the decision of the husband with


respect to the administration of the community property
and petitions to obtain court authority to encumber or
dispose of specific property;

in

case

of

7.

Petitions for the constitution of the family home;

8.

Cases against minors cognizable under the Dangerous Drugs


Act;

9.

Violations of RA 7610; and

10.

Cases of domestic violence against:

122

a.

women:

acts of gender-based violence that results, or


are likely to result in physical, sexual, or
psychological harm or suffering to women; and
other forms of physical abuse such as battering
or threats and coercion which violate a
womans personhood, integrity and freedom of
movement; and

b.

children:

these include the commission of all forms of


abuse, neglect, cruelty, exploitation, violence
and discrimination and all other conditions
prejudicial to development.

II.

SPECIAL PROVISIONAL REMEDIES

A.

Restraining Order

In cases of violence among immediate family members living in the


same domicile or household, the Family Court may issue a restraining
order against the accused or defendant upon a verified application by
the complainant or victim for relief from abuse.

B.

Temporary Custody of Children

The court may order the temporary custody of children to an individual


or an institution.

C.

Support pendete lite

The court may order the defendant to give support while trial is
pending which may include:
1.

salary deduction; and

2.

use of the conjugal home and other properties.

123

III. YOUTH DETENTION HOMES


1. The local government unit shall establish youth detention homes
to separate youth offenders from adult criminals. The Family
Court judge shall have direct control and supervision of these
youth detention homes.
2. Under Republic Act 9344, Youth Detention Homes may also be
established by private and NGOs licensed and accredited by the
DSWD, in consultation with Juvenile Justice and Welfare Council
(JJWC).
3. Alternatives to detention and institutional care shall be made
available to the accused including counseling, recognizance, bail
and others.

IV.

COUNSELLING

Under the guidance of the DSWD, a Social Services and Counseling


Division (SSCD) shall be established in each judicial region as the
Supreme Court may deem necessary based on the number of juvenile
and family cases existing in such jurisdiction.

V.

PROTECTIVE MEASURES

All hearings and conciliation of the child and family cases shall be
treated in a manner consistent with the promotion of the childs and
familys dignity and worth. And their privacy shall be respected at all
stages of the proceedings. Records of the cases shall be dealt with
utmost confidentiality and the identity of the parties shall not be
divulged, unless necessary and with authority of the judge.

124

REPUBLIC ACT 9208


ANTI-TRAFFICKING IN PERSONS ACT OF 2003
One of the more serious form of violence against women (VAW) is
trafficking in persons for purposes of exploitation. However, like most
legal reforms pertaining to women, a great length of time intervened
before R.A. 9208 was passed into law. As a punitive law, R.A. 9208
penalizes not only the recruiter, harborer or dealer of trafficked victims
for purposes prostitution, sexual exploitation, pornography, forced
labor, slavery, involuntary servitude or debt bondage, or the removal
or sale of organs, but also the patrons or customers who benefitted
from the services of the trafficked persons. Perhaps R.A. 9208s most
striking provision lies in its treatment of trafficked persons as victims
and not as criminals for the crimes connected with the acts of
trafficking, regardless of the victims consent to said acts.

I.

Definition

Trafficking in Persons refers to the recruitment, transportation,


transfer or harboring, or receipt of persons with or without the victims
consent or knowledge, within or across national borders by means of
threat or use of force, or other forms of coercion, abduction, fraud,
deception, abuse of power or position, taking advantage of the
vulnerability of the person, or, the giving or receiving of payments or
benefits to achieve the consent of the person having control over
another person for the purpose of exploitation or the prostitution of
others or other forms of sexual exploitation, forced labor or services,
slavery, involuntary servitude or the sale or removal of organs.

II.

Punishable Acts

A. Acts of Trafficking in Persons


It is unlawful for any person, natural or juridical, to commit any of the
following acts:
1.

To recruit, transport, transfer, harbor, provide or receive a person


by any means for the purpose of prostitution, pornography,
sexual exploitation, forced labor, slavery, involuntary servitude or
debt bondage;

125

2.

To introduce or match for money or profit any person, or any


Filipino woman to a foreign national, for marriage for the
purpose of acquiring, buying, offering, selling or trading him/her
to engage in prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt bondage;

3.

To offer or contract marriage for the purpose of acquiring,


buying, offering, selling or trading them to engage in
prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;

4.

To undertake or organize tours and travel plans consisting of


tourism packages or activities for the purpose of prostitution,
pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;

5.

To maintain or hire a person to engage in prostitution or


pornography;

6.

To adopt or facilitate the adoption of persons for the purpose of


prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;

7.

To recruit, hire, adopt, transport or abduct a person, by means of


threat or use of force, fraud, deceit, violence, coercion or
intimidation for the purpose of removal or sale of organs of said
persons;

8.

To recruit, transport or adopt a child to engage in armed


activities in the Philippines or abroad.

Penalty:

Imprisonment of 20 years and a fine of P1,000,000


P2,000,000.

B. Acts that Promote Trafficking in Persons


The following acts which promote or facilitate trafficking in persons,
shall be unlawful:
1.

To knowingly lease or sublease, use or allow to be used any


house, building or establishment for the purpose of promoting
trafficking in persons;

126

2.

To produce, print and issue or distribute unissued, tampered or


fake counseling certificates, registration stickers of any
government agency that issues these certificates and stickers as
proof of compliance with government requirements for the
purpose of promoting trafficking in persons;

3.

To advertise, publish, print, broadcast or distribute by any


means, including the use of information technology and the
internet, of any brochure, flyer, or any propaganda material that
promote trafficking in persons;

4.

To assist in the conduct of misrepresentation or fraud for the


purpose of facilitating the acquisition of clearances and
necessary exit documents from government agencies for the
purpose of promoting trafficking in persons;

5.

To facilitate, assist or help in the exit and entry of persons


from/to the country at international and local airports, territorial
boundaries and seaports who are in possession of fraudulent
travel documents for the purpose of promoting trafficking in
persons;

6.

To confiscate, conceal or destroy the passport, travel documents


and personal documents or belongings of trafficked persons in
furtherance of trafficking or to prevent them from leaving the
country or seeking redress from the government or appropriate
agencies;

7.

To knowingly benefit from, financial or otherwise, or make use


of, the labor or services of a person held to a condition of
involuntary servitude, forced labor or slavery.

Penalty:

Imprisonment of 15 years and a fine of P500,000


P1,000,000

C. Qualified Trafficking in Persons


1.

when the trafficked person is a child;

2.

when the adoption is effected through the Inter-Country


Adoption Act of 1995 and said adoption is for the purpose of

127

prostitution, pornography, sexual exploitation, forced labor,


slavery, involuntary servitude or debt bondage;
3.

when the crime is committed by a syndicate, or in a large scale;


a crime is syndicated when it is done by three (3) or more
individuals; a crime is considered large-scale when there are
three (3) or more offended parties;

4.

when the offender is an ascendant, parent, sibling, guardian or a


person who exercises authority over the trafficked person;

5.

when the offense is committed by a public officer or employee;

6.

when the trafficked person is recruited to engage in prostitution


with any member of the military or law enforcement agencies;

7.

when the offender is


enforcement agencies;

8.

when by reason or on occasion of the act of trafficking in


persons, the offended party dies, becomes insane, suffers
mutilation or is afflicted with HIV or AIDS.

Penalty:

a member

of the

military

or law

Life Imprisonment and a fine of P2,000,000 P5,000,000

D. Use of Trafficked Persons


Any person who buys or engages the services of trafficked persons
shall be penalized.
Penalty:

First offense 6 months community service and a fine of


P50,000
Second and subsequent offense imprisonment of 1 year
and a fine of P100,000

III. Legal Protection to Trafficked Persons


Trafficked persons shall be recognized as victims of the act/s of
trafficking. They shall not be penalized for the crimes directly related
to the acts of trafficking or in obedience to the order made by the
trafficker.
128

The consent of the trafficked person to the intended exploitation is


irrelevant.
The government shall establish and implement preventive, protective
and rehabilitative programs for trafficked persons.

129

REPUBLIC ACT 9262


ANTI -VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT
OF 2004
The road to the enactment of the Anti-VAWC Act has been
riddled with so many pitfalls and potholes too many to mention. Thus,
its enactment into law definitely serves as the salve to heal the
wounds that countless women have endured throughout all those
years of absence. From Maria Teresa Carlson to Marivic Genosa, this
law is truly a celebration of victory for all the victims, survivors, and
advocates against VAW. Its provisions on the issuance of protection
orders and the recognition of the battered woman syndrome serve as
highly vital tools in the continuing fight against VAW. Also worth noting
is the very wide range of acts considered as acts of violence, which
aims to give more justice to VAW victims, as compared to the lipservice crimes in the Revised Penal Code.

REPUBLIC ACT 9262 IN GENERAL


I.

VAWC as a Public Crime

Violence against women and their children shall be considered as a


public offense which means that a complaint may be filed by any
citizen having personal knowledge of the circumstances involving the
commission of the crime.
II.

Where may cases for VAWC be filed

Cases on violence against women and children shall be filed with the
Regional Trial Court designated as a Family Court of the place where
the crime was committed. Said court shall have the original and
exclusive jurisdiction over these cases.
When there is no designated Family Court in the place where the
offense was committed, the case shall be filed in any Regional Trial
Court, where the crime or any of its elements was committed, at the
option of the complainant.

130

III. Battered Woman Syndrome as a Defense


Victim-Survivors who are found by the courts to be suffering from
battered woman syndrome shall not incur any civil or criminal liability
notwithstanding the absence of any of the elements for the justifying
circumstance of self-defense under the Revised Penal Code. The courts
shall be assisted by expert psychiatrists/psychologists in determining
the same.
IV.

Prohibited Defense

Being under the influence of alcohol, any illicit drug, or any other
mind-altering substance shall not be a defense for the commission of
any of the crimes constituting violence against women and children.
V.

Exemption from Liability of Intervening Persons

In every case of violence against women and their children, any


person, whether a private individual, police authority or barangay
official, who, acting in accordance with law, responds or intervenes
without using violence or restraint more than that necessary to ensure
the safety of the victim, shall not be liable for any criminal, civil or
administrative liability resulting from the case.
VI.

Program for Perpetrators

The DSWD shall provide rehabilitative counseling and treatment to


perpetrators/abusers towards learning constructive ways of coping
with anger and emotional outbursts and reforming their ways. When
necessary, the offender shall be ordered by the Court to submit to
psychiatric treatment or confinement.
VII. DEFINITION OF TERMS
vA.

Violence against women and their children


any act/s committed by any person against:
131

1.

2.

a woman who is:


a. a. his wife or former wife, or
b.
with whom the person has or had a sexual or dating
relationship, or
c.
with whom he has a common child; or
d.
or
the womans child, legitimate or illegitimate

committed within or without the family abode which result in or


is likely to result in physical, sexual, psychological harm or
suffering, economic abuse, threats of such acts, battery, assault,
coercion, harassment or deprivation of liberty. It includes, but is
not limited, to the following acts:
a.

physical violence: bodily or physical harm

b.

sexual violence: any act which is sexual in nature, which


includes, but is not limited to:

rape
sexual harassment
acts of lasciviousness
treating a woman or her child as a sex object
making demeaning and sexually suggestive remarks
physically attacking the sexual parts of the victims body
forcing her/him to watch obscene publications and
indecent shows
forcing the woman or her child to do indecent acts and/or
make films thereof
forcing the wife and mistress/lover to live in the conjugal
home or sleep together in the same room with the abuser
causing the victim to engage in sexual activity by force,
threat or coercion
prostituting the woman or her child

c.

psychological violence: acts or omissions causing mental or


emotional suffering to the victim, such as, but not limited
to:

intimidation

132

d.

economic abuse: acts that make a woman financially


dependent which includes, but is not limited to:

withdrawal of financial support


preventing the victim from engaging in any legitimate
profession, occupation, business or activity ( except: when
the other spouse/partners objects on valid, serious and
moral grounds)
deprivation of financial resources and the right to conjugal,
community or property owned in common
destroying household property
controlling the victims own money or properties

B.

harassment
stalking
damage to property
public ridicule or humiliation
repeated verbal abuse
marital infidelity
causing or allowing the victim to witness the physical,
sexual or psychological abuse of a family member
causing or allowing the victim to witness pornography in
any form
to causing or allowing the victim to witness abusive injury
to pets
unlawful or unwanted deprivation of the right to custody
and/or visitation of common children

Bbattering

Aact of inflicting physical harm upon the woman or her child resulting
to physical and psychological or emotional distress
C.

c.

bBattered woman syndrome

Sscientifically defined pattern of psychological and behavioral


symptoms found in women living in battering relationships as a result
of cumulative abuse
D.

Sstalking
133

An intentional act committed by a person who, knowingly and without


lawful justification follows the woman or her child or places the
woman or her child under surveillance directly or indirectly or a
combination thereof.
E.

Ddating relationship

aA situation wherein the parties:


1.
live together as husband and wife without the benefit of
marriage, or
2.
are romantically involved over time and on a continuing
basis during the course of the relationship
A casual acquaintance or ordinary socialization between two individuals
in a business or social context is not a dating relationship.
F.

e.

sSexual relationship

Aa single sexual act which may or may not result in the


bearing of a common child.
G.

cChildren

Those below eighteen (18) years of age or older but are incapable of
taking care of themselves. It includes biological children of the victim
and other children under the womans her care.
VIII.

ON PROTECTION ORDERS:

MAIN
FEATURES

PROTECTION ORDER - an order issued to


prevent further acts of violence against a
woman or her child.
It is also an order
granting other necessary relief. The purpose of
the relief is to safeguard the victim from
further harm, minimize any disruption in the
victims daily life, and facilitate the opportunity
and ability of the victim to independently
regain control over her life.
134

RELIEFS

a)

Prohibition
of
the
respondent
from
threatening to commit or committing,
personally or through another, any acts of
violence against the woman and her child;

b) Prohibition of the respondent from:


harassing
annoying
telephoning
contacting or communicating with the
petitioner - directly or indirectly.
c) Removal and exclusion of the respondent
from the residence of the petitioner.
regardless of ownership of the residence
either temporarily (for the purpose of
protecting
the
petitioner),
or
permanently where no property rights
are violated.
- if respondent must remove personal
effects from the residence, the court
shall direct a law enforcement agent to.
The law enforcement agent shall:
1.
accompany
the
respondent to the residence
2.
remain
at
the
residence
until
respondent
has
gathered his things
3.
and escort respondent
from the residence
d) Directing the respondent to stay away from
petitioner and any designated family or
household member (at a distance specified
by the court) and also from their:
residence
school
place of employment
any specified place frequented by the
petitioner and any designated family or
household member.
e) Directing lawful possession and use by

135

petitioner of an automobile and other


essential personal effects.
- regardless of ownership
Directing the appropriate law enforcement
officer to:
accompany the petitioner to their
residence
ensure that the petitioner is safely
restored to the possession of the
automobile and other essential personal
effects
supervise
the
petitioners
or
respondents
removal
of
personal
belongings
f) Granting a custody of the child/children to
the petitioner
temporary or permanent custody
g) Directing the respondent to provide
support to the woman and/or her child if
entitled to legal support.
Notwithstanding other laws to the
contrary, the court shall order an
appropriate percentage of the income or
salary of the respondent:
1. to be withheld regularly by the
respondents employer
2. and to be automatically remitted
directly to the woman

The respondent or his employer


liable for indirect contempt of
they:
1. fail to remit and/or
2. withhold
3. delay
in the remittance of support
woman and/or her child
justifiable cause.

shall be
court if

to the
without

136

h) Prohibition of the respondent from any use


or possession of any firearm or deadly
weapon. The court shall order:
1.
rRespondent to surrender the
firearm
or
deadly
weapon
for
appropriate disposition by the court
2.
the revocation of respondents
license
3.
disqualification of respondent to
apply for any license to use or possess a
firearm.

If the offender is a
law enforcement agent, the court shall
order:
- the offender to surrender his firearm,
and
- direct the appropriate authority to
investigate on the offender and take
appropriate action on the matter.

i) Restitution for actual damages caused by


the violence inflicted, including: (but not
limited to):

property damage

medical expenses

childcare expenses

loss of income
j) Directing the DSWD or any appropriate
agency:
to provide petitioner temporary shelter
and other social services that petitioner
may need.
k) Other forms of relief that the court may
deem necessary to protect and provide for
the safety of the petitioner and any
designated family or household member

provided the petitioner and any


designated family or household member
approve such relief.

137

KINDS

PPO
(Permanent
Protection
Orders)

TPO
(Temporary
Protection
Orders)

BPO (Barangay
Protection
Orders)

NATURE

The protection
order
issued
by the court
after
notice
and hearing

The protection
order
issued
by the court
on the date of
the filing of
the
application. It
is
granted
after ex parte
determination
that
such
order should
be issued.

The protection
order
against
the perpetrator
ordering him to
desist
from
causing
physical harm
or threatening
to
cause
physical harm
to the woman
or her child.

The court may BPO MAY BE


grant a TPO ISSUED BY:
based on any,
some or all of Punong
the
reliefs
Barangay
mentioned in Any available
this Act.
Barangay
Kagawad
if the Punong
Barangay
is
unavailable to
act
on
the
application for
BPO,
order
must
be
accompanied by
an
attestation
by
the
Barangay
Kagawad
that
the
Punong
Barangay was
138

unavailable at
the time of the
issuance of the
BPO.
WHERE
APPLY

TO regional trial court


metropolitan trial court
municipal trial court
municipal circuit trial court
with territorial jurisdiction over
the place of residence of the
petitioner

If the parties
reside in the
same
barangay, the
dispute
shall
be brought for
settlement
in
said barangay;

If a family court exists in the


place of residence of the If the parties
in
petitioner, the application shall reside
different
be filed with that court.
barangays
in
the same city
or municipality,
the
dispute
shall be settled
in
the
barangay
where
the
respondent or
any one of the
respondents
actually
resides, at the
choice of the
complainant;
Disputes
arising at the
workplace
where
the
contending
parties
are
employed or at
the institution
where
such
parties
are
enrolled
for

139

study, shall be
brought in the
barangay
where
such
workplace
or
institution
is
located; and
Any
objection
relating
to
venue shall be
raised
before
the
Punong
Barangay
during
the
proceedings
before
him.
Failure to do so
shall
be
deemed
a
waiver of such
objections. (SC
Rules)
PROCEDURE
1.
The application for
a
protection order must be:
in writing,
signed, and
verified under oath by the
applicant.
2.

It may be filed as:


an independent action
an incidental relief in any
civil or criminal case which
involves issues of violence
against women and children.

3.
The
application
shall
contain
the
following
information:

140

a) names and addresses


petitioner and respondent;

of

b) description of relationships
between
petitioner
and
respondent;
c) a statement of circumstances
of the abuse;
d) description of the
requested by petitioner.
e) request for
reasons for such;

counsel

reliefs
and

f)
request
for
waiver
of
application fees until hearing;
g) attestation that there is no
pending
application
for
a
protection order in another
court.
If applicant is not the victim,
the
application
must
be
accompanied by an affidavit of
the applicant attesting to the
following:
a) facts showing the authority of
the petitioner to file the petition;
b) circumstances of the abuse
suffered by the victim, and
c) the circumstances of consent
given by or refusal to consent of
the offended party to file the
petition. (SC Rules)
An application for protection
order filed with a court shall be
considered an application for
141

both TPO and PPO.

PERIOD FOR
ACTING ON
APPLICATION:

After
proper
notice to the
respondent,
the court shall
conduct
the
hearing on the
merits of the
issuance of a
PPO in one (1)
day.

The TPO must


be issued on
the date of the
filing after ex
parte
determination
of the basis of
the application.

The BPO must


be issued on the
date of the filing
after ex parte
determination of
the basis of the
application.

The
nonappearance of
respondent
despite proper
notice, or his
lack
of
a
lawyer, or nonavailability of
his lawyer shall
not
be
a
ground
for
rescheduling or
postponing the
hearing on the
merits of the
issuance
of
PPO.
If
the
respondent
appears
without
counsel,
the
court
shall
appoint
a

142

lawyer for the


respondent
and
immediately
proceed
with
the hearing.
In case the
respondent
fails to appear
despite proper
notice,
the
court
shall
allow ex parte
presentation of
evidence
by
the
applicant
and
render
judgment
on
the basis of
the
evidence
presented.

143

WHO MAY FILE


a)

the offended party;

b)

parents or guardians of the offended party;

c)

ascendants, descendants or collateral


relatives within the fourth civil degree of
consanguinity or affinity;

d)

officers or social workers of the DSWD or


social workers of local government units;

e)

police officers, preferably those in charge of


women and childrens desks;

f)

punong barangay or barangay kagawad;

g)

lawyer, counselor, therapist or healthcare


provider of the petitioner;

h)

at least two (2) concerned responsible


citizens of the city or municipality where the
violence occurred and who has personal
knowledge of the offense committed.

ENFORCEABILITY

PPO is enforceable anywhere in the Philippines and


it is effective until revoked by a court upon
application of the person in whose favor the order
was issued.
TPO issued enforceable anywhere in the Philippines
and it is effective for thirty (30) days but may be
renewable as need arises.
BPO shall be effective for fifteen (15) days.
PRIORITY
Ex parte and adversarial
hearings to determine the
basis of application for
protection order shall have
priority over all other
proceedings.

Ex parte proceedings
to determine the basis
of application for
protection order shall
have priority over all
other proceedings.
144

The court shall schedule


and conduct hearings on
application for protection
order
above all other
hearing and if necessary
suspend other proceedings
in
order
to
hear
applications
for
a
protection order.
BOND

Barangay officials
shall schedule
proceedings on
application for
protection order
above all other
business.

The court may order any


person against whom a
protection order is issued
to:
give a bond to keep the
peace
to present two sufficient
sureties
who
will
undertake
that
respondent
will
not
commit
the
violence
sought to be prevented
Should the respondent fail
to give the required bond,
he shall be detained for:
not more than six (6)
months [if prosecuted for
acts punishable under
Section 5(a) to 5(f)]

VIOLATIONS

not exceeding thirty (30)


days [ if for acts punishable
under section 5(g) to 5(i)].
Violation
on
the Violation of a BPO
enforcement of TPOs and shall
be
PPOs shall be punishable punishable by:
with:

145

a fine ranging from Five


Thousand
Pesos
(P5,000.00)
to
Fifty
Thousand
Pesos
(P50,000.00)
and/or imprisonment of
six (6) months.
Violation of any provision of
a TPO or PPO shall:

imprisonment
of thirty (30)
days
without
prejudice
to
any
other
criminal or civil
action that the
offended party
may file for
any of the acts
committed.

constitute contempt of a complaint for


violation of a
court punishable under
BPO must be
Rule 71 of the Rules of
filed
directly
Court.
with:
without prejudice to any
- municipal trial
other criminal or civil
court
action that the offended
- metropolitan
party may file for any of
trial court
the acts committed.
- municipal
circuit
trial
court
(that
has
territorial
jurisdiction
over
the barangay that
issued the BPO)

IX.

CUSTODY OF CHILDREN

RULES:
The woman victim of violence shall be entitled to the custody and
support of her child/children. A victim who is suffering from battered

146

woman syndrome shall not be disqualified from having custody of her


children.

X.

1.

Children below seven (7) years old or older but with


mental or physical disabilities shall automatically be given
to the mother, with right to support, unless the court finds
compelling reasons to order otherwise.

2.

In no case shall custody of minor children be given to the


perpetrator of a woman who is suffering from Battered
Woman Syndrome.

RIGHTS OF VICTIMS

In addition to their rights under existing laws, the victim of


violence against women and their children shall have the following
rights:
1.

to be treated with respect and dignity

2.

to avail of legal assistance from the Public Attorneys Office


(PAO) of the Department of Justice (DOJ) or any public legal
assistance office;

3.

to be entitled to support services from DSWD and LGUs;

4.

to be entitled to all legal remedies and support as provided for


under the Family Code;, and

5.

to be informed of their rights and services available to them


including their right to apply for a protection order.

XI.

DAMAGES
Any victim of violence shall be entitled to:
1.
2.
3.
4.

actual
compensatory
moral, and
exemplary damages.

147

XII. HOLD-DEPARTURE ORDER


A court shall expedite the process of issuance of a hold-departure
order in cases prosecuted under this Act.

XIII. EXEMPTION FROM PAYMENT OF DOCKET FEE AND OTHER


EXPENSES
The petitioner or applicant is exempt from payment of filing fee,
transcript of stenographic notes and other fees if:

the victim is indigent, or

there is an immediate necessity due to imminent danger or


threat of danger to act on an application for a protection order

XIV. MANDATORY SERVICES


The DSWD
1.
2.
3.
4.

and LGUs shall provide the victims:


temporary shelter
counseling and psycho-social services
recovery, rehabilitation programs
livelihood assistance

The DOH shall provide medical assistance to the victim.

XV.

ENTITLEMENT TO LEAVE

Victims of violence shall be entitled to take a paid leave of absence up


to ten (10) days.

Tthe leave shall be in addition to other paid leaves under the


Labor Code and the Civil Service Rules and Regulations

Tthe leave may be extendible when there is a need for extension


(as specified in the protection order).
148

Sanction:

Aany employer who shall prejudice the right of the person


to avail the benefit of leave shall be penalized in
accordance with the provisions of the Labor Code and Civil
Service Rules and Regulations.

Aany employer who shall prejudice any person for assisting


a co-employee who is a victim of violence against women
shall likewise be liable for discrimination.

XVI. CONFIDENTIALITY
All records pertaining to cases of violence against women and
their children including those in the barangay shall be confidential.
All public officers and employees and public or private clinics or
hospitals shall respect the right of privacy of the victim.
Any person who publishes or causes to be published (in any
format) the name, address, telephone number, school, business
address, employer or other identifying information of the victim or an
immediate family member without their consent shall be liable for
contempt of court.
Penalty for violation of confidentiality:
Any person who violates this provision shall suffer the penalty of:
1.
one (1) year imprisonment, and
2.
a fine of not more than Five Hundred Thousand Pesos
(P500,000.00).

XVII.DUTIES AND RESPONSIBILITIES UNDER THE ANTI-VAWC


LAW
A.

Courts

149

1.
2.
3.
4.

5.
6.
7
8
9
10
11

12
13
14
15
16

17
18

RTCs designated as Family Courts shall


exercise exclusive and original jurisdiction over VAWC
cases
Confidentiality rRule as to VAWC cases
To undergo tTraining on VAWC
Refrain from AcConciliating or mediating VAWC cases i.e.
VAWC cases shall not be subject to Katarungang
Pambarangay and Conciliation/Mediation proceedings in
Court.
Confiscation of firearms or deadly weapon of respondent to
prevent him from using it against petitioner
Issuance of a Permanent or Temporary Protection Order
(PPO/TPO) when applied for by petitioner
Court to order the immediate personal service of TPO on
respondent by the court sheriff
Court to schedule a hearing on the issuance of a PPO prior
to or on the date of expiration of a TPO
To direct the Public Attorneys Office (PAO) to represent
petitioner in applications for protection orders if petitioner
lacks the economic means to hire counsel
Court to appoint a lawyer for the respondent if he appears
without counsel during the hearing on the PPO
If respondent fails to appear on the hearing of the PPO, the
court shall allow ex parte presentation of evidence by the
applicant and render judgment based on the evidence
presented
As much as possible, the court shall hear the application
for PPO within one (1) day
Court to extend or renew the effectivity of a TPO for thirty
(30) days at a time, until final judgment on the application
for PPO is issued
Court shall ensure immediate personal service of the PPO
to the respondent
Court must ensure that the Notice of Sanction is printed on
the protection order it issues
Court shall immediately proceed to hear cases for legal
separation when violence is alleged as a ground therefor,
and shall not apply the six-month cooling-off period as
mandated by Art. 58 of the Family Ccode
Court shall prioritize hearings for protection order
applications
MTCs, MeTCs or MCTCs having territorial jurisdiction over a
barangay shall hear complaints of violations of BPOs

150

B.

Prosecutors/Court Personnel
1.
Assistance in the preparation of applications for protection
orders by court personnel.
2.
Must communicate
with the victim in a language
understood by the woman her or her child.
3.
Must inform the victim of her/his rights, including legal
remedies available and the procedure, privileges for
indigent clients.
4.
When directed by court, the Public Attorneys Office (PAO)
shall represent the petitioner in applications for protection
orders, if petitioner lacks the economic means to hire
counsel
5.
If PAO determined that the petitioner can afford to hire a
counsel, it shall facilitate the legal representation of
petitioner.
6.
To undergo tTraining on VAWC
7.
To observe the Cconfidentiality Rule as to VAWC cases

C.

Barangay Officials/Law Enforcers


1.

2.
3.
4.
5.
6.
7.

Enforcement
of
Protection
Orders
(temporary
or
permanent) by lLaw eEnforcers
a.
accompanying respondent to gather his things from
petitioners residence
b.
accompanying petitioner to the residence of the
parties to ensure that petitioner is safely restored to
the possession of her personal effects
c.
supervise the petitioner or respondents removal of
his/her personal belongings
Issuance and eEnforcement of Barangay Protection Orders
(BPO) by barangay officers
Personal service by Punong Barangay or Barangay
Kagawad or any designated barangay official of the BPO to
the respondent
Prohibition aAgainst cConciliation
Filing petitions for protection orders by police officers or
barangay officials (Punong Barangay or Barangay
Kagawad)
Assistance in the preparation of applications for protection
orders by barangay officials
Assistance in the application for protection orders by law
enforcement agents

151

8.
9.
10.
11.

12.
13.
14.

15.
16.
D.

Assistance in the service of TPOs by law enforcement


agents
Barangay officials must ensure that the Notice of Sanction
is printed on the protection order they issue
Barangay officials shall prioritize hearings for protection
order applications
Respond immediately to calls for help or protection of the
victim by entering the dwelling, if necessary, whether or
not a protection order has been issued, to ensure the
safety of the victims
Confiscate any deadly weapon in the perpetrators
possession within plain view
Transport or escort victims to a safe place of their choice or
to a clinic or hospital
Arrest the suspected perpetrator even without warrant
a.
when any of the acts of violence (as defined) is
occurring
b.
when he/she has personal knowledge that an act of
abuse has just been committed and imminent danger
exists to the life and limb of the victim
To undergo tTraining on VAWC
To observe the Cconfidentiality rRule as to VAWC cases

Healthcare Providers
1.
Filing petitions for protection orders
2.
Once he/s/he suspects abuse or has been informed by the
victim of violence, he/s/he shall:
a.
properly document the victims physical, emotional,
or psychological injuries
b.
properly record the victims suspicions, observations,
and circumstances of the examination or visit
c.
automatically provide the victim free of charge a
medical certificate concerning the examination or
visit
d.
safeguard the records and make them available to
the victim upon request and at actual cost
e.
provide the victim immediate and adequate notice of
rights and remedies under RA 9262 Act, and the
services available to them
3.
To undergo tTraining on VAWC
4.
To observe the cConfidentiality rRule as to VAWC cases

152

E.

Local Government Units/Government Agencies


1.
2.
3.
4.

5.
6.
7.
8.

Appropriate government agency to investigate respondent


if he is a law enforcement officer
DSWD or any appropriate government agency to provide
petitioner with permanent shelter and other social services
like counselling and rehabilitation when needed
Filing petitions for protection orders by social workers of
the DSWD or social workers of LGUs
Establish programs such as education and information
campaigns or seminars and symposia on the nature,
causes, incidence and consequences of violence and its
impact on society
Ensure the sustained education and training of their
personnel on the prevention of VAWC
DSWD to provide rehabilative couselling for perpetrators
To undergo tTraining on VAWC
To observe the cConfidentiality rRule as to VAWC cases

153

LAWS ON WOMEN WORKERS

Another branch of law that a paralegal should give consideration


to is the law on labor. Our Labor Code contains provisions applicable to
women workers. These laws may be traced from the principles and
policies enunciated in our Constitution and other international
documents.
One of the significant laws pertaining to violence against women in
relation to labor is
Republic
Act
7877
(the
Anti-Sexual
Harassment Act of 1995). This law pertains to a type of violence
against women that are perpetrated in establishments and workplaces.
The important features of Republic Act 7877 will be discussed in this
chapter, however, it was also mentioned in the section on crimes
related to violence against women.
II.

CONSTITUTIONAL PROVISIONS ON WOMEN WORKERS

A.

Article II:

Declaration of Principles and State Policies

Section 14. The State recognizes the role of women in nationbuilding and shall ensure the fundamental equality before the
law of women and men.
Section 18. The State affirms labor as a primary social economic
force. It shall protect the rights of workers and promote their
welfare.

B.

Article XIII:

Social Justice and Human Rights

Section 3. The State shall afford full protection to labor, local


and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.
Section 11. The
State
shall
adopt
an
integrated
and
comprehensive approach to health development which shall
endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There shall

154

be priority for the needs of the underprivileged, sick, elderly,


disabled, women and children. The State shall endeavor to
provide free medical care to paupers.
Section 14. The State shall protect working women by providing
safe and healthful working conditions, taking into account their
maternal functions, and such facilities and opportunities that will
enhance their welfare and enable them to realize their full
potential in the service of the nation.

III. RIGHTS
OF
WOMEN
PHILIPPINE LAWS
A.

WORKERS

ACCORDING

TO

Nightwork Prohibition (Art. 130, Labor Code)

No woman, regardless of age, shall be employed or suffered to work,


with or without compensation:
1.

In any industrial undertaking between 10:00 p.m. and


6:00 a.m. of the following day;

2.

In any commercial or non-industrial undertaking, other


than agricultural, between 12 m.n. and 6 a.m. of the
following day;

3.

In any agricultural undertaking at nighttime unless she is


given a period of rest of not less than nine (9) consecutive
hours.

The prohibition shall NOT apply in the following cases:


1.

In case of actual or impending emergencies caused by


serious accident, fire, flood, typhoon, earthquake,
epidemic or other disasters or calamity, to prevent loss of
life and property, or in case of force majeure or imminent
danger to public safety;

2.

In case of urgent work to be performed on machineries,


equipment or installation to avoid serious loss which the
employer would suffer;

155

B.

3.

Where the work is necessary to prevent serious loss of


perishable goods;

4.

Where the woman employee holds a responsible position of


managerial or technical nature, or has been engaged to
provide health and welfare service;

5.

Where the nature of the work requires the manual skill and
dexterity of women workers and the same cannot be
performed with equal efficiency by male workers;

6.

Where the women employees are immediate members of


the family operating the establishment or undertaking; and

7.

Under other analogous cases exempted by the Secretary of


Labor in appropriate regulations.

Facilities for Women (Art. 132)

The Secretary of Labor shall establish standards that will ensure the
safety and health of women employees. In appropriate cases, s/he
shall, by regulations, require any employer to:
1.

Provide seats proper for women and permit them to use


such seats when they are free from work and during
working hours, provided they can perform their duties in
this position without detriment to efficiency;

2.

To eEstablish separate toilet rooms and lavatories for men


and women and provide at least a dressing room for
women;

3.

ETo establish a nursery in a workplace for the benefit of


women employees;

4.

To dDetermine the appropriate minimum age and other


standards for retirement or termination in special
occupations such as those of flight attendants and the like.

C.
D.

Right to Maternity Leave (Social Security Law)


1. Maternity leave with pay shall be:

156

a.

60 days for normal delivery; or

b.

78 days in case of caesarian delivery.

Maternity benefits shall be paid only for the first four (4)
deliveries or miscarriages.
2. Conditions for availing of the maternity leave benefits
A female employee who is a member of the Social Security
System (SSS) is entitled to maternity benefits if:
a.

the employee was employed at the time of her


pregnancy, child-birth or miscarriage;

b.

she has paid at least three (3) monthly contributions


in the twelve-month period immediately preceding
the semester of her child-birth or miscarriage; and

c.

the employer was notified of the pregnancy and such


notice was transmitted to the SSS.

E.
F.

Right to Bargain Ccollectively with Rrespect to Tterms and


Cconditions of Eemployment (Art. 252)

G.
H.

Right to Family Planning Services (Art. 134)

Establishments employing at least two hundred (200) workers are


required by law to provide free family planning services to their
employees. These services shall include, but are not limited to, the
application or use of contraceptive pills and intrauterine devices (IUD).
In coordination with other agencies of government engaged in the
promotion of family planning, the DOLE shall develop and prescribe
incentive bonus schemes to encourage family planning among female
workers.
I.
J.

Right Against Discrimination on the Basis of Gender (Art.


135)
157

It shall be unlawful to discriminate against any woman employee with


respect to terms and conditions of work solely on account of her sex.
The following are acts of discrimination:

K.

a.

payment of lesser compensation, including wage, salary or


other form of remuneration and fringe benefits, to a
female employee as against a male employee, for work of
equal value, and

b.

favoring a male employee over a female employee with


respect to promotion, training opportunities, study and
scholarship grants solely on account of their sexes.

Right to Seek Redress

In case of violation of a woman employees rights, a complaint may be


filed and remedy sought through any of the following courts, agency or
group:
COMPLAINT
1. Gender Discrimination
2. Illegal Dismissal
4.
Violations
of
provisions:
a. serious violations

VENUE
National
Labor
Relations
Commission (NLRC)
NLRC
CBA National
Conciliation
and
Mediation Board (NCMB) [in
case the union decides to go on
strike], NLRC or Voluntary
Arbitration,

b. slight violations
4. Maternity Benefits
5. Sexual Harassment

GGrievance Machinery
Grievance Machinery
Regular court and/or Committee
on Decorum and Investigation
6. Violations of conditions of Regional
Office
of
the
work
Department
of
Labor
and
Employment

H.

Right to Security of Tenure (Art. 136 and 137)

158

1.

2.

It shall be the unlawful for an employee to (Art. 137):


a.

Deny any woman employee the benefits provided for by


law or to discharge any woman employee for the purpose
of preventing her from enjoying any of the benefits
provided under the law;

b.

Discharge such woman on account of her pregnancy, or


while on leave or in confinement due to her pregnancy; or

c.

Discharge or refuse the admission of such woman upon


returning to her work for fear that she may again be
pregnant.

Stipulations against marriage (Art.136)


The following acts are prohibited:

I.

a.

Requiring as a condition of employment or continuation of


employment that a woman employee shall not get
married;

b.

Stipulating that upon getting married, a woman employee


shall be deemed resigned or separated or to actually
dismiss or discharge her by reason of her marriage; or

c.

Discriminating or prejudicing a woman employee merely by


reason of her marriage.

Right to Organize and Collective Action

This includes the right to join, organize or assist in the formation of a


union and the right to strike.

J.

Right against Sexual Harassment (RA 7877)

Under Republic Act 7877, sexual harassment is considered a crime


when committed in the workplace or when it involves two persons
having working relations.

159

In order for an act to be considered punishable under Republic Act


7877, the following conditions must be present:
1.

It is committed by an employer, manager, supervisor or


employee having influence or moral ascendancy over
another employee or applicant; and

2.

A sexual favor is made a condition in the hiring or in the


continued employment of an individual, or in granting
favorable compensation, terms, conditions, promotions, or
privileges; or the refusal to grant sexual favor adversely
affects the employee; or

3.

When the act would impair the employees rights or


privileges under existing labor laws; or

4.

When the act would result in an intimidating, hostile, or


offensive environment for the employee.

Hence, in order to protect the woman worker, the law mandates that it
is the duty of every employer to:
1.

Promulgate
rules
and
regulations
against
sexual
harassment in the workplace in consultation with the union
and employees;

2.

Create a committee on decorum and investigation of cases


of sexual harassment. The committee shall be composed of
at least one (1) representative each from the
management, the union, if any, the employees from the
supervisory rank, and from the rank and file employees.

III.

INTERNATIONAL INSTRUMENTS
WOMEN WORKERS

ON

THE

A.

Convention on the Elimination of


Discrimination Against Women (CEDAW)

All

RIGHTS

OF

Forms

of

This convention was adopted on 18 December 1977 and it took


effect on 3 September 1981. It aims to eliminate all forms of
discrimination against women in the political, economic, social, civil
and cultural fields.

160

The State shall take all appropriate measures to eliminate


discrimination against women in the field of employment. Particularly,
the State affirms the following rights of women workers:
1. right to work as an inalienable right of all human beings;
2. right to the same employment opportunities, including the
application of the same criteria for selection in matters of
employment;
3. right to free choice of profession and employment, the right
to promotion, job security and all benefits and conditions
of service and the right to receive vocational training;

4. right to equal remuneration, including benefits, and to equal


treatment in respect of work of equal value;
5. right to social security, particularly in cases of retirement,
unemployment, sickness, invalidity and old age and other
incapacity to work, as well as the right to paid leave;
6. right to protection of health and to safety in working
conditions, including the safeguarding of the function of
reproduction.
In order to prevent discrimination against women on the grounds
of marriage or maternity, the State shall take appropriate measure to:
1.

prohibit dismissal on the ground of pregnancy or of


maternity leave and discrimination in dismissals on the
basis of marital status;

2.

introduce maternity leave with pay or with comparable


social benefits without loss of former employment,
seniority or social allowances;

3.

encourage the provision of the necessary supporting social


services to enable parents to combine family obligations
with work responsibilities and participation in public life, by
promoting the establishment and development of a
network of childcare facilities;

4.

provide special protection to women during pregnancy in


types of work proven to be harmful to them.

161

B.

International Covenant on Economic, Social and Cultural


Rights

This covenant was adopted on 16 December 1966 and it took effect


on 3 January 1976.All rights that are protected under this covenant
cannot be denied to anyone by reason of her race, color, gender,
language, religion, political beliefs, nationality, and social status.
Some of the rights that are given protection under this covenant are
the right to life, right to participate in public activities, freedom to form
and join in organizations and freedom to peaceful assembly. The State
shall likewise ensure that both men and women equally receive
protection of their civil and political rights.

C.

ILO1 Convention No. 89 Concerning Night work on Women


Employed in Industry, Revised 1948

Adopted on 9 July 1948 and it took effect on 27 February 1951. This


convention prohibits night industry work for women. The term night
signifies a period of at least eleven (11) consecutive hours, including
an interval of at least seven (7) hours falling between 10 p.m. and 7
a.m.
The prohibition shall NOT apply in the following instances:

1.

where only members of the same family are employed;

2.

when there occurs an interruption of work which was


impossible to foresee and is not of a recurring character;

3.

when there are raw materials which are subject to rapid


deterioration and such night work is necessary to preserve
said materials from certain loss;

4.

when the woman holds a managerial or technical position;

5.

when the woman is employed in health and welfare


services and is not ordinarily engaged in manual work.

International Labour Organisation

162

D.

ILO Convention NO. 100 Concerning Equal Remuneration


for Men and Women Workers for Work of Equal Value

Adopted on 29 June 1951 and it took into effect on 23 May 1953, this
instrument aims to ensure the application to all workers of the
principle of equal remuneration for men and women workers for work
of equal value and to eliminate discrimination on remuneration based
on sex.
The Member-States promise to establish rates of remuneration without
discrimination based on sex and to undertake measures to promote
objective appraisal of jobs on the basis of the work to be performed.

E.

ILO Convention No. 111 Concerning Discrimination in


Respect of Employment and Occupation

This convention was adopted on 25 June 1958 and it took into effect
on 15 June 1960. The objective of the convention is the declaration
and pursuit of national policies designed to promote equality of
opportunity and treatment in respect of employment and occupation.
F.
G.
ILO Convention No. 122 Concerning Employment Policy
This instrument was adopted on 9 June 1964 and it took into effect on
15 June 1966. The convention seeks the establishment by the
Member-States of policies that will promote full and productive
employment for all and the right of choice as regards employment. The
aim is to ensure that individuals have the opportunity to display their
skills in securing employment without restrictions based on color, sex,
religion, political opinion, national origin or social status.

163

CHAPTER 3
PROCEDURAL LAWS

If the woman decides to fights against violence in the context of and


using the legal system, she should consider the fact that she should
consider the fact that she is expected to observe some rules in the
process of having her complaint resolved in court. Most of these rules
are found in the Revised Rules of Court.

CRIMINAL PROCEDURE

A victim of violence may file a case in court against her offender or


aggressor. In order that a corresponding penalty be imposed against
the offender, a complaint has to be filed first with the police or
prosecutor. If the nature of the complaint falls under the jurisdiction of
the Katarungang Pambarangay, the complaint needs to undergo the
conciliation process required in the barangay before the complainant
may file the action with the police or prosecutor. In either case, after
the complaint has been filed, the case will go through athe long
process before the judge hears the case and before the appropriate
penalty is imposed on the offender. This process indubitably long,
costly and tedious needs to be endured by every survivor who opted
to seek justice through our legal system.

I.

REPORTING THE CRIME

A.

To the Police

The police may obtain information on the commission of a crime


through their own observation or from a complaint by interested
persons. A police investigation is then conducted upon receipt of the
complaint.
A police investigation is an inquiry conducted by a police investigator
to determine whether probable cause exists for filing a complaint

164

against the accused with the Office of the Prosecutor for preliminary
investigation.
B.

To the Prosecutor

Any interested person may file a criminal complaint with the


prosecutor who shall conduct an inquest or preliminary investigation.
Note: Under the Revised Rules on Criminal Procedure, which took
effect on 1 December 2000, the complaint or information may
still be filed directly with the Municipal Trial Courts and Municipal
Circuit Trial Courts. However, this rule was changed by AM No.
05-8-26-SC, which took effect on 3 October 2005. The said SC
Circular provided that judges of first level courts (i.e. Municipal
Trial Court and Municipal Circuit Trial Courts) are no longer
included among those who may conduct preliminary
investigations.
1.

Inquest

An inquest is an informal and summary investigation conducted


by a prosecutor in criminal cases where the person arrested or
detained without a warrant of arrest is under investigation to
determine whether sufficient evidence exists for their continued
detention and prosecution in court.
The inquest must be concluded within the following periods to be
reckoned from the time of arrest:
a.

within 12 hours, for crimes punishable with imprisonment


from 1 day to 30 days;

b.

within 18 hours, for crimes punishable with imprisonment


from 1 month and 1 day to 6 months;

c.

within 36 hours, for crimes punishable with imprisonment


from 6 months and 1 day to death.

Note: The above-mentioned hours should be understood to mean


working hours only and runs only during working days.
If there is no complaint filed within the above periods, the detaining
officers may be held liable for the crime of arbitrary detention.
165

2.

Preliminary Investigation

A preliminary investigation is an inquiry or proceeding for the


purpose of determining whether there is sufficient ground to believe
that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial.
The persons who may conduct a preliminary investigation are the
following:
a.
b.
c.

II.

Provincial or City Prosecutors


State Pprosecutors; and
Other officers authorized by law (such as prosecutors of
the Office of the Ombudsman)

FILING OF A CRIMINAL COMPLAINT

When the inquest officer or investigating prosecutor a probable cause


to file a case against the respondent, an information shall be prepared
and forwarded to the city or provincial prosecutor for appropriate
action.
If the officer conducting the preliminary investigation believes that
probable cause exists to hold the accused for trial, an information
shall be filed in the court having jurisdiction over the case.
1.

Cases falling within the jurisdiction of the Regional Trial Court:


Offenses punishable with imprisonment exceeding six (6)
years

2.

Cases within the jurisdiction of the Municipal Trial Court:


a.

Violations of city or municipal ordinances committed


within their territorial jurisdiction;

b.

Offenses
punishable
with
exceeding six (6) years.

imprisonment

not

166

III. ARRESTS
A.

Definition

Arrest is the taking of a person into custody in order that he may be


bound to answer for the commission of an offense. An arrest may be
made by:

B.

1.

an actual restraint of the person to be arrested; or

2.

his voluntary submission to the custody of the person


making the arrest.

Modes of Arrest
1. Arrest with warrant

A warrant of arrest is an order issued by the court commanding a


peace officer to arrest the person specified therein.
Requisites est of a valid warrant of arrest

a.
i.

Existence of probable cause in relation to a particular


crime:
Probable Cause: such facts and circumstances that
would lead a reasonable and prudent person to
believe that a crime has been committed and that
the accused is probably guilty thereof.

b.

ii.

Personal determination by
existence of probable cause;

judge

as

to

the

iii.

Examination under oath or affirmation of the


complainant and witnesses she may produce; and

iv.

Particular description of the person or persons to be


arrested.

Execution of a warrant of arrest


i.

Who may execute a warrant of arrest?

167

An arrest may be made by a police officer or any


person authorized by law.
i.

When should the warrant be executed?


After the warrant has been delivered to a peace
officer, the head of the office to whom the warrant of
arrest was delivered for execution shall cause the
warrant to be executed within ten (10) days from its
receipt. Within then (10) days after the expiration of
the period, the officer shall then make a report to
the judge who issued the warrant. In case of his
failure to execute the warrant, he shall state the
reasons therefore.
A warrant of arrest does not become stale even after
the lapse of ten (10) days. It is valid and effective
until arrest has been made or the warrant has been
lifted by the court.

c.

Making an arrest by virtue of a warrant


i.

When may an arrest be made?


An arrest may be made on any day and at any time
of the day or night.

ii.

Must the warrant be presented when making the


arrest?
The officer need not have the warrant in his or
her possession at the time of the arrest. But after
the arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as
practicable.

ii.

May an officer seeking assistance in effecting the


arrest?
An officer making a lawful arrest may orally summon
as many persons as s/he deems necessary to aid
him or her in making the arrest. A person so
summoned must aid him/her when s/he can render
assistance without detriment to himself/herself.
168

iii.

What can an officer do in case the person arrested is


inside a building?
An officer making the arrest may break into any
building or enclosure in which the person to be
arrested is or is reasonably believed to be. But this
can only be done ifs s/he is refused admittance after
announcing his/her authority and purpose. After
entering the building or enclosure, s/he may break
out to liberate himself/herself.

2. Warrantless Arrests
As a general ruile, arrests must be made by virtue of a warrant
of arrest. Thus, warrantless arrests are considered as mere
exceptions to the general rule. Pursuant to this, there should
only be few instances when arrests may be validly made without
a warrant.
a.

b.

When may a person be arrested without a warrant?


i.

When, in the presence of the person making the


arrest, the person to be arrested has committed, is
actually committing, or is attempting to commit an
offense;

ii.

When an offense has just been committed and the


arrestor has probable cause to believe, based on
personal knowledge of facts and circumstances, that
the person to be arrested has committed it;

iii.

When the person to be arrested is a prisoner who


has escaped from a penal establishment or place
where he is serving final judgment or temporarily
confined while his case is pending.

Who may make a warrantless arrest?


i.

Peace officer; and

ii.

Private Person.

169

c.

Making a warrantless arrest


i.

When may an arrest be made?


An arrest may be made on any day and at any time
of the day or night.

ii.

May an officer seek assistance in effecting the


arrest?
If an officer effects the arrest, s/he may orally
summon as many persons as s/he deems necessary
to aid him/her in making the arrest.
A person so summoned must aid him/her when s/he
can render assistance without detriment to
himself/herself.

iii.

What can an officer do in case the person arrested is


inside a building?
If an officer effects the arrest, s/he may break into
any building or enclosure in which the person to be
arrested is or is reasonably believed to be. But this
can only be done ifs s/he is refused admittance after
announcing his/her authority and purpose. After
entering the building or enclosure, s/he may break
out to liberate himself/herself.

d.

Rights of a person under arrest

A person arrested must be informed of the cause of the arrest


and the fact that a warrant of art has been issued against him.
He must also be informed in the language known to and
understood by him of his right to remain silent and his right to
have an independent and competent counsel preferably of his
own choice, who shall at all times be allowed to confer privately
with the accused. If he cannot afford to hire his own counsel, he
shall be provided with one.

170

IV.

SEARCH AND SEIZURE

A.

Definition

A search is any physical entry by a peace officer or any authorized


person into a protected or private place for the purpose of making an
examination.

B.

Kinds of searches and seizures


1.

Search and seizure by virtue of a search warrant

A search warrant is an order in writing issued in the name of the


People of the Philippines, signed by a judge and directed to a
peace officer, commanding him or her to search for personal
property described therein and bring it before the court.
a.

Requisites of a valid search warrant


i.

existence of probable cause in connection with


one specific offense
Probable Cause: such facts and circumstances
which would lead a reasonable and prudent
person to believe that a crime has been
committed and that the things to be seized are
in the place to be searched.

b.

ii.

personal determination by the judge as to the


existence of probable cause;

iii.

examination under oath and affirmation of the


complainant and the witnesses that she may
produce;

iv.

particular description of the place


searched and things to be seized.

to

be

Personal property that may be seized


i. subject of the offense

171

ii. stolen or embezzled and other proceeds or fruits


of the offense
iii. used or intended to be used as the means of
committing an offense
iv. evidence in plain view

c.

Serving the search warrant


When should the search warrant be served?
The search warrant must be served within ten (10)
days from its date of its issuance. After such period,
it shall be void.

d.

Conducting the search and seizure


i.

Who may conduct the search and seizure by


virtue of a search warrant?
A peace officer.

ii.

When should the search be made?


The warrant must direct that it be served in
the day time. If there is an affidavit asserting
that the property is on the person or in the
place ordered to be searched, a direction may
be inserted that it may be served at any time
of the day or night.

iii.

How will a house, room or premise be searched?


The search must be made in the presence of
the lawful occupant or any member of his
family. In their absence, it may be made in
the presence of two (2) witnesses of sufficient
age and discretion residing in the same locality.

iv.

What can a peace officer do when s/he is not


allowed to enter or search despite giving notice
of his/her authority and purpose?
172

The officer has the right to break open any


outer or inner door or window of a house or
any part of a house to execute the warrant or
liberate
himself/herself
when
unlawfully
detained therein.
v.

What must the officer do after conducting the


search and seizure?
The officer must give the lawful occupant of
the premises a detailed receipt of the property
seized. In the latters absence, the receipt
must be left in the place where the seized
property was found in the presence of at least
two (2) witnesses of sufficient age and
discretion residing in the same locality.

2.

Warrantless search

As a general rule, any search and seizure must be made by


virtue of a search warrant. Therefore, warrantless searches and
seizures are mere exceptions to the general rule. Pursuant to
this, there should be only a few instances when searched and
seizures may be made without a warrant.
a.

Valid warrantless searches and seizures


i.

incidental to a lawful arrest;

ii.

made on motor vehicles;

iii.

with the consent of the owner;

iv.

involves prohibited articles in plain view (ex.


Shabu, unlicensed firearm), which was
discovered inadvertently and the illegality is
apparent;

v.

involves smuggled articles.

173

Although the search and seizure may be validly made without a


warrant under any of these circumstances, it must still comply
with the basic requisite that probable cause exists.

b.

Effects of invalid searches and seizures


i.

V.

any evidence obtained shall be inadmissible in


any court proceceding;

ii.

the officer who conducted the search may be


held liable for the crime of illegal search;

iii.

damages may be claimed under Art. 32 of the


Civil Code for the violation of a right included
in the bill of rights guaranteed under the
Constitution.

BAIL

Bail is a security given for the temporary release of a person in


custody of the law. This is conditioned upon his appearance before any
court whenever so required.
An accused is entitled to bail as a matter of right, except when he is
charged with a capital offense or an offense punishable by reclusion
perpetua, when the evidence of guilt is strong.
A.

Kinds of Bails
1.

Cash bond: furnished by the accused

2.

Property bond: furnished by the accused. (Examples:


real property that shall be given as security for the amount
of the bail.

3.

Corporate surety:posted by the surety company

Instead of posting bail, the accused may ask the court to release him
on recognizance in case the crime charged carries an imposable
penalty of not more than one month and/or a fine of P1,000. In

174

recognizance, a responsible member of the community guarantees the


appearance of the accused whenever required by the court.
B.

Bail may be filed in:


1.

The court where case is pending; in absence or


unavailability of judge thereof, with any judge of the RTC,
MeTC, MTC or MCTC in the province, city, or municipality of
arrest.; or

2.

If accused is arrested in a province, city or municipality


OTHER THAN where the case is pending, bail may be filed
in any RTC of said place. If no RTC judge is available, bail
may be filed with any MTC, MeTC or MCTC judge therein.
The filing of an application for bail not a bar to objections
on illegal arrest, invalid arrest warrant, lack of or irregular
preliminary investigation for the charge against the
accused, provided that accused raises them before
entering a plea. The court shall then resolve the matter as
early as practicable but not later than the start of the trial
of the case.

C.

VI.

Grounds for cancellation of the bail bond


1.

surrender of the accused

2.

proof of death of the accused

3.

acquittal or dismissal of the case

4.

execution of the judgment of conviction

5.

escape

6.

upon order of the court

ARRAIGNMENT

175

After the information has been filed, the accused shall personally
appear before the court for arraignment. Arraignment shall be made in
open court by the judge or clerk by furnishing the accused with a copy
of the complaint or information, reading the same in the language or
dialect known to him and asking him whether he pleads guilty or not
guilty.
During or before the arraignment, the accused may file a:
1. motion for a bill of particulars: a motion asking for a clearer
and more definite information to enable the accused to
properly plead and prepare for trial;
2. motion to quash information or complaint

VII.

PRE-TRIAL

A.

Definition

Pre-trial is a mandatory conference between the parties, with their


counsel, held in the presence of the judge. The court orders this before
commencing trial in order to expedite the proceedings or to simplify
the issues without dispensing with justice.

B.

Subjects considered during pre-trial


1.

plea bargaining;

2.

stipulation of facts;

3.

marking for identification of evidence of the parties;

4.

waiver of objection to admissibility of evidence;

5.

modification of the order of trial if the accused admits the


charge but interposes a lawful defense;

6.

such matters as will promote a fair and expeditious trial of


the criminal and civil aspects of the case.

VIII. TRIAL
176

A.

Trial is an investigation process resulting in a judgment of a legal


controversy or dispute.

B.

In criminal cases, the complainant is the State and the


prosecutor controls the prosecution. However, the private
complainant may employ the services of a private prosecutor.

C.

Order of trial:
1.

The prosecution shall present evidence to prove the


charge;

2.

The accused may present evidence to prove his defense;

3.

The parties may respectively present rebutting evidence


only to refute/counter the evidence of the adverse party;

4.

The parties may submit their respective memorandum. The


memorandum contains a summary of all the evidence and
arguments presented by the parties in the course of trial.
The order of trial may be modified if the accused admits
the act or omission charged but raises a lawful defense.
There will be a reverse trial whereby the accused will
commence the presentation of evidence.

5.

IX.

Steps in examining a witness:


a.

direct examination;

b.

cross examination;

c.

re-direct examination; and

d.

re-cross examination.

JUDGMENT

A judgment is the final adjudication of the court on the guilt or


innocence of the accused.

X.

APPEAL
177

Appeal is the act of elevating a lower courts judgment or decision for


review by a higher court. An appeal is taken by filing a written notice
of appeal which contains the judgment or decision of the lower court,
the errors committed by said lower court, the appellants (appealing
party) supporting arguments and the relief/s prayed for.
Any party to the case may appeal from a final judgment or order of the
court, except when id it would place the accused in double jeopardy.
Double jeopardy is exposing the accused to the risk of punishment for
the same offense. For example, the prosecution may not appeal a
judgment of acquittal.
Note: The Rules on Criminal Procedure as amended by A.M. No. 00-503-SC, which took effect on October 15, 2004, provides that in
all cases where the death penalty is imposed by the trial court,
the records shall be forwarded to the Court of Appeals for
automatic review. However, this rule is now no longer applicable
pursuant to Republic Act 9346, which was approved on June 24,
2006, since under the said law, imposition of death penalty is
already prohibited. Therefore, there will no longer be automatic
review of cases to the Court of Appeals since it is only when the
death penalty is imposed that there will be an automatic review.

FLOWCHART OF CRIMINAL PROCEDURE (Trial Court Level)


CRIME
ARREST w/o Warrant

POLICE INVESTIGATION

178

Complaint by the
offended party
INQUEST
DISMISSED

PRELIMINARY INVESTIGATION

Probable Cause?

FILING OF
INFORMATION

ProbableCause?

ARREST with Warrant/Commitment Order

MOTION TO QUASH

ARRAIGNMENT

sufficient?

DISMISSED
DISMISSE

DdD
PLEA (guilty)

PLEA (not guilty)


PRETRIAL

Plea Bargaining
Plead guilty
to a lesser
offense

Agree/
Reject

PRESENTATION OF
PROSECUTION EVIDENCE

TRIAL

Demurrer to Evidence
sufficient?

DISMISSED

PRESENTATION OF DEFENSE EVIDENCE


JUDGMENT
Acquittal

Conviction
APPEAL

RIGHTS OF THE ACCUSED

179

One of the things that paralegals, who will participate in the conduct of
the case, must know is the rights of the accused in a criminal case. It
is imperative to know all these rights because the accused, before
being adjudged guilty or innocent, must have enjoyed the states
observance of what we call the due process of law. Under this
concept, the accused cannot be convicted of a crime and be imposed
on with a penalty without affording him the rights the rights he is
entitled during the trial of his criminal case.

I.

PRIOR TO ARREST

A.

Right against unreasonable searches and seizures

The right to be secure in ones house, papers, and effects against


unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable.
B.

Privacy of communication and correspondence

The privacy of communication and correspondence shall be inviolable,


except upon lawful order of the court, or when public safety or order
requires otherwise.

II.

DURING ARREST

Warrant issued upon probable cause and after personal determination


by the judge
Search warrants and warrants of arrest shall issue only upon probable
cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses she
may produce, and particularly describing the place to be searched and
the persons or things to be seized.

III. DURING INVESTIGATION


A.

Right to remain silent

180

Any person under investigation for the commission of an offense has


the right to remain silent.
B.

Right to counsel

The person under investigation has the right to be assisted by a


competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided
with one. This right cannot be waived, except in writing and in the
presence of counsel.
C.

Right against torture

No torture, force, violence, threat, intimidation or any other means


which vitiate the free will shall be used. Secret detention places,
solitary, incommunicado, or other similar forms of detention are
prohibited.
D.

Right against illegally obtained evidence

Any confession or admission obtained in violation of the right to


counsel and the right to be informed of ones rights shall be
inadmissible in evidence.

IV.

DURING DETENTION

Right to Bail
Before conviction, all persons have the right to bail, except those
charged with offenses punishable by death or reclusion perpetua, when
evidence of guilt is strong. The right to bail shall not be impaired even
when the privileged of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
The filing for an application for bail is not a bar to objections on illegal
arrest, invalid arrest warrant, lack of or irregular preliminary
investigation for the charge against the accused.

V.

DURING TRIAL
181

A.

Free access to the courts and quasi-judicial bodies and adequate


legal assistance shall not be denied to any person by reason of
poverty.

B.

No person shall be held to answer for a criminal offense without


due process of law.

C.

In all criminal prosecutions, the accused shall be presumed


innocent until the contrary is proved, and shall enjoy the right to
be heard by himself and counsel, to be informed of the nature
and cause of the accusation against him, to have speedy,
impartial and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. Trial shall
proceed, notwithstanding the absence of the accused, provided
that he has been duly notified and his failure to appear is
unjustified.

D.

All persons shall have the right to a speedy disposition of their


cases before all judicial, quasi-judicial, or administrative bodies.

E.

No person shall be compelled to be a witness against himself.

F.

Any evidence obtained in violation of these rights shall be


inadmissible for any purpose in any proceeding.

VI.

AFTER JUDGMENT

A.

No person shall be detained solely by reason of his political


beliefs and aspirations.

B.

No involuntary servitude in any form shall exist, except as


punishment for a crime.

C.

Excessive fines shall not be imposed, nor cruel, degrading or


inhuman punishment inflicted, neither shall death penalty be
imposed, unless for compelling reasons involving heinous crimes,
and the Congress provides for it.

D.

The employment of physical, psychological, or degrading


punishment against any prisoner or detainee or the use of
182

inadequate penal facilities under subhuman conditions shall be


dealt with by law.
E.

No person shall be twice put in jeopardy of punishment for the


same offense. If the act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.

F.

No ex post facto law or bill of attainder shall be enacted.


An ex post facto law is a law punishing acts already committed.
For example, it is unjust to punish a person for an act which was
not yet considered a crime at the time of its commission.
A bill of attainder is a legislative act which inflicts punishment
without judicial trial. It is considered unjust to punish an
individual because of his character or membership in an
association. Punishment must be brought about by a wrongful
act or behavior. Thus, a law may not be enacted prescribing the
imprisonment of all union presidents.

183

CIVIL PROCEDURE

If a survivor of violence chooses to file a petition for legal


separation or dissolution of marriage, or obtain custody of her
child/ren, or recover damages for the injury caused by the violence
inflicted against her, she can bring a civil action before the courts.
Filing a civil case requires the observance of the rules on Civil
Procedure. Hence, it is necessary that a paralegal and a survivor must
understand the intricacies in the procedure for filing a civil case.

I.

INTRODUCTION

Preliminary matters that


commencing an action in court:
a.
b.
c.
d.

should

be

considered

before

What are the causes of action?


Which court has jurisdiction over the case?
Where is the venue for the action?
Who are the parties to the case?

II.

CIVIL PROCEDURE

A.

Filing and payment of the requisite legal fees


1.

Where to file:
iin the docket section of the court having
jurisdiction over the case.

2.

Contents of the complaint or petition:


a.

a plain, concise and direct statement of the ultimate


facts (the important and substantial facts which
either directly form the basis of the plaintiffs primary
right and duty or directly make up the wrongful acts
or omissions of the defendant)

b.

specific relief/s sought from the court;

c.

names and residences of both parties;

184

d.

proof of legal capacity of the parties to sue and be


sued.

In case the action is based on a document, it is important


that the substance of the document is stated in the
petition and the original or a copy thereof is attached to
the petition as an exhibit or the copy set forth in the
petition.
B.

Case Raffle

After filing the action, the case shall be raffled to determine which
branch of the court will try the case.
A raffle is conducted to ensure that there is no collusion and there will
be an objective resolution of the case. It prevents the judges from
selecting the cases they will hear and decide. It likewise prevents the
parties from choosing the judges whom they want to hear their cases.
C.

Service of Summons
1.

What are summons:


It is a document directed to the defendant, signed by the
clerk of court under seal and containing the name of the
court and the names of the parties to the action and
requires the defendant to file his Answer within fifteen (15)
days from receipt of the summons, otherwise the court will
declare him in default and may grant the plaintiff the relief
applied for.

2.

Purpose of summons:
Service of summons is necessary in order that the court
will acquire jurisdiction over the person of the defendant,
unless he voluntarily submits him/herself to the jurisdiction
of the court by the filing of his answer. If no summons was
received and the case went on to trial, the entire
proceedings shall be void including the judgment rendered
by the court.
185

The principle behind this is due process. If the defendant


respondent was not notified of the petition filed against
him and he was not given the opportunity to present his
defense, the whole process shall not be considered valid
and legal.
D.

Filing of the Answer


1.

What is an Answer:
It is a pleading in which the defendant sets forth his
defenses.

2.

Functions of an Answer:
a.

simplifies and clarifies the issues;

b.

prevents a favorable judgment for the claimant


petitioner by setting forth defenses.

3. `Effect of failure to file an Answer:


The respondent may be declared in default. However, in
petitions for legal separation, annulment, and declaration of
nullity of marriage, the court shall not order a respondent in
default, despite his failure to file an Answer.
E.

F.

Effect of order of default


1.

The court may render judgment in default, granting the


relief sought by the petitioner, unless the court requires
the petitioner to submit evidence;

2.

The party in default shall be entitled to notice of


subsequent proceedings but not to take part in the trial.

Pre-trial
1.

What is pre-trial:

186

It is a mandatory conference between the parties, with


their counsel, held in the presence of the judge. It is
conducted after the last pleading has been served and
filed, at the instance of the plaintiff. It is required in order
to expedite the proceedings or to simplify the issues
without dispensing with justice.
2.

Points considered during pre-trial:


a.
b.
c.
d.
e.
f.
g.
h.
i.

3.

possibility of an amicable settlement between the


parties;
simplification of the issues;
necessity or desirability of amendments to the
Petition or Answer;
possibility of obtaining stipulations or admissions of
facts and of documents;
number of witnesses;
advisability of a preliminary reference of issues to a
commissioner
propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action
should a valid ground therefore be found to exist
advisability or necessity of suspending the
proceedings
other matters as may aid the court in the prompt
disposition of the action.

Effect of a partys failure to appear during pretrial:


If the petitioner fails to appear personally, the case shall
be dismissed. If the respondent fails to appear, the
petitioner may be allowed to present evidence ex parte.
This means that the court will receive evidence from one
party only and may render judgment solely on the basis of
the evidence submitted.
In petitions for annulment, declaration of nullity of
marriage and legal separation, in case the respondent fails
to appear, the pre-trial shall proceed but the court shall
require the public prosecutor to investigate the nonappearance of the respondent. If there is no collusion, the
court shall require the public prosecutor to intervene for

187

the State during the trial on the merits to prevent


suppression or fabrication of evidence.
4.

Reference to mediation:
At the pre-trial, the court may refer the issues to a
mediator who shall assist the parties in reaching an
agreement on matters not prohibited by law. In case
mediation is not availed of or where it fails, the court shall
proceed with the pre-trial.

H.

Trial
1.

What is trial:
Trial is the process o f investigation and judgment of a
legal controversy or dispute.

2.

Order of trial:
a.

Presentation of petitioners evidence in support of


her complaint;

b.

Presentation of respondents evidence in support of


his defense;

c.
d.
e.

3.

Presentation of rebuttal evidence to refute/counter


the evidence submitted by the adverse party;
Submission of a partys memorandum. The
memorandum contains a summary of all the
evidence and arguments presented by the parties in
the course of trial.

Steps in examining a witness:


a.
b.
c.
d.

direct examination;
cross examination;
re-direct examination;
re-cross examination.

188

H.

Judgment

A judgment is a final adjudication by the court on the claims and


defenses raised by the parties during trial.
I.

Appeal
1.

What is an appeal?:
Appeal is the act of elevating a lower courts judgment or
decision for review by a higher court. This is taken by filing
a written notice of appeal containing the judgment or
decision of the lower court, the errors committed by said
lower court, the appellants (appealing party) supporting
arguments, and the relief/s sought for.

2.

Pre-condition:
In petitions for annulment, declaration of nullity of
marriage and legal separation, no appeal from the decision
of the lower court shall be allowed, unless the appellant
has filed a motion for reconsideration or a motion for new
trial within 15 days from notice of judgment.

3.

Who may appeal?


The Notice of Appeal may be filed by the aggrieved party
or by the Solicitor General.

4.

When appeal should appeal be filed?


The notice of appeal may be filed within 15 days from
notice of the denial of the motion for reconsideration or
new trial.

189

EVIDENCE
To utilize our
justice system, there are certain rules that must to
be understood and followed. One of these rules has something to do
with the evidence that is presented in courts. The judge, in hearing the
case, should be guided by these rules. The Rules on Evidence likewise
prescribe rules in submitting and objecting to the evidence being
presented before the judge, which the lawyers on both parties must be
aware of. These rules must be followed, whether the case filed before
the court is a civil or a criminal action.
I.

DEFINITION

Evidence is the means of determining or discovering in a judicial


proceeding the truth respecting a matter of fact.
II.

ADMISSIBILITY

Evidence is admissible only if it is:


A.

Competent:
It is not among those excluded by law or
prohibited by the rules on evidence;

B.

Relevant:
It has a relation to the fact in issue based on
logic and the pleadings; and

C.

Material:
allegation.

It may establish the truth or falsity of a fact or

III. KINDS OF EVIDENCE


A.

Direct
It establishes a fact without the need to refer to inferences or
implications.
Example:

I saw him hit Maria.


I saw Pedro rape Maria.

190

B.

Circumstantial/ Indirect
It does not directly prove an allegation but such evidence tends
to establish its probability.
Example:

C.

After I heard Maria scream, I saw Pedro leaving the


backyard from where Marias screams seemed to be
coming from. This may be taken as evidence that
Pedro was the one who raped Maria.

Corroborative
It strengthens evidence already presented by means of other
evidence that proves the allegation.
Example:

D.

When Maria arrived home, I noticed that her dress


was tattered. This testimony corroborates the earlier
testimony of Maria that she had been raped.

Cumulative
An additional evidence of the same kind as those already
presented which establishes the same issue.
Example:

E.

Two individuals saw Maria being beaten up by her


husband. The testimonies of these two persons are
considered cumulative.

Positive
It is positivesible when a witness states that an event occurred
or that s/he knows it transpired.
Example:

F.

I saw Marias uncle enter her room at 1 oclock in


the morning.

Negative
It is negative evidence when an individual declares that s/he did
not witness the event or s/he does not know what actually
happened.
191

Example:

I did not see Marias uncle enter her room at 1


oclock in the morning.

IV.

SOURCES OF EVIDENCE (based on the type of evidence)

1.

object (real) evidence:


It is directly addressed to the senses of the court, such as
material or physical things. For example, gun.

2.

documentary evidence
Writings or any material containing letters, words, numbers,
figures, symbols or other modes of written expressions offered
as proof of their contents. For example, marriage certificate.

3.

testimonial evidence:
Declarations
deposition.

V.

or

statements

of

witnesses.

For

example,

SOME RULES OF EVIDENCE


A.

Best Evidence Rule

When the subject of the inquiry is the contents of a document,


the only evidence admissible is the original document itself.
Example: If the evidence proving a valid marriage is a
marriage contract, only its original can be presented.

When is this rule Not APPLICABLE?


1.

When the original is lost, destroyed or cannot be produced


in court?

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Example: The marriage contract was lost when the


petitioners house was burned down, or if she cannot
locate it despite diligent efforts to find it.
2.

When the original is in the custody or under the control of


the other party and the latter fails to produce it after
reasonable notice.
Example: In a legal separation case, the respondent does
not present the car registration in spite of the courts order.
Hence, the petitioner may present a photocopy of such
document.

3.

When the original is a public record or is recorded in


public office for which a certified copy will be sufficient.
Example:

death certificate

Secondary evidence may be presented when the original


document is unavailable.
How is this secondary evidence presented?

B.

i.

Prove the execution or existence of the document;

ii.

Establish that the original document was lost without bad


faith on the part of the party presenting it;

iii.

Prove the contents of the document by any of the following


means:
1.

by a copy;

2.

by a recital of its contents in some authentic


document; or

3.

by the testimony of witnesses.

Parol Evidence Rule

When the terms of an agreement have been reduced to writing, no


evidence shall be admissible other than the contents of the written
agreement.
193

Example: When the spouses are separated and they executed an


agreement providing for support, the provisions of such agreement
must be the terms by which the parties are bound. They cannot allege
that there are other terms not stated in the agreement or that the
terms written on the agreement are different from those that they had
agreed upon.
When is this rule Not APPLICABLE?
a.

When there is a mistake in the written agreement, or if it fails to


express the true intent and agreement of the parties, or the
issue is the validity of the written agreement.
Example:

b.

There is a typographical or clerical error.

When there is an intrinsic ambiguity in the written agreement.


Example: Under the agreement, the estranged husband is
bound to give his wife support for their childrens daily school
expenses. Tuition fees were not mentioned. There is an
ambiguity because the agreement may refer only to allowances,
food and transportation fare.

C.

Hearsay Rule

An individual may only testify on matters based on his/her personal


knowledge., tThus, s/he can only testify on the matters that s/he
actually saw, smelled, tasted, heard or touched.
Examples:
a.
b.
c.
d.
e.

I saw Pedro hit Maria.


I caught a whiff of Pedro who smelled of liquor.
I took a puff of what Pedro was smoking and it tasted like
marijuana.
I heard Maria crying.
I touched and felt the bump on Marias head after Pedro
beat her.

194

When is this rule Not APPLICABLE?


1. Declaration against interest
A declaration against ones own interest, which the
declarant would not have made if s/he did not believe it to
be true, may be used against the declarant if made by a
person deceased, out of the country or unable to testify.
Example: While Pedro was alive, I heard him say that
Sharon was his illegitimate daughter.
2. Common reputation
This refers to facts, existing previous to the controversy, of
public or general interest more than thirty (30) years old,
or respecting marriage or moral character.
Example: Boy Bagsik is known as a troublemaker in our
community.
3. Res Gestae
These are statements made by a person while a startling
occurrence is taking place. They may also be expressed
immediately prior or subsequent to the unexpected
incident. In order to be admissible, the utterance must
refer to the startling event that transpired.
Example: While Pedro was beating up his wife Maria, I
heard someone cry out, Pedro pushed Maria down the
stairs! The person who made the statement and who
probably saw Pedro push Maria need not testify. The
person who heard it may testify on the statement.
4. Entries in the course of business
Entries referring to a transaction, if made by a person in
the performance of a duty, may be presented as evidence.
It is necessary that the person who made the entry must
be deceased, out of the country, or unable to testify.

195

5. Testimony at a former proceeding


The testimony of a witness given in a former case or
proceeding involving the same parties and subject matter
may be given in evidence against the adverse party who
had the opportunity to cross-examine the witness and the
witness is deceased, out of the country or unable to testify.
6. Dying declaration
The statement made by a dying person and his/her
declaration pertains to the cause and surrounding
circumstances of his/her death.
Example: Mario chanced upon a dying woman. Before
the woman died, she told Mario that Boy Bagsik raped and
stabbed her. Mario may testify on the statements made by
the dead victim.
D.

Opinion Rule
The opinion of a witness is not admissible in evidence.
Example: I believe that Marias husband planned to kill her.
The witness must establish the circumstances which lead
him/her to believe that Marias husband had planned to kill her.
When is this rule Not APPLICABLE?
1.

The opinion of an expert witness may be received in


evidence.
Example: Opinion of a medico-legal officer or psychiatrist
regarding his/her examination of the complainant.

2.

The opinion of an ordinary witness may be received in


evidence IF:
a.

It is to identify a handwriting with which s/he has


sufficient familiarity;

196

E.

b.

It is to prove the validity of an agreement to which


s/he was an attesting witness; and

c.

It is to testify on the mental sanity of a person with


whom s/he is sufficiently acquainted.

Marital Disqualification Rule


During the marriage, neither the husband nor the wife may
testify for or against the other without the consent of the
affected spouse, except in a civil case by one against the other,
or in a criminal case for a crime committed by one against the
other or the latters direct descendants or ascendants. This
disqualification shall cease upon the dissolution of marriage
brought about by divorce, death, annulment of marriage, or
declaration of absolute nullity of marriage.

F.

Marital Privilege Rule


The husband or the wife cannot be examined without the
consent of the other as to any communication received in
confidence by one from the other. The disqualification exists
even after the death of the spouse or dissolution of the
marriage.

VI.

IMPLICATIONS FOR THE PARALEGALS

A.

In preparing the statements of the witnesses, the paralegal must


ensure that:

B.

1.

Only true accounts and not mere opinions are


stated;

2.

The testimony of the witnesses are based on their own


personal knowledge.

In taking custody of articles/objects that may be used in


evidence:
1.

Request the witness to put a label/ mark on it;


197

C.

2.

Make a record of the date, time, place and persons within


the proximity at the time the articles were turned over to
you;

3.

Take a picture of the object immediately if possible.

In taking pictures, drafting plans or drawing sketches:


1. Note when it was taken and the persons who witnessed the
taking of the picture, the drafting of the plans or the
drawing of the sketches;
2. Ask the person who took the picture or drafted the plan or
drew the sketch to sign it.

VII. RULE ON THE EXAMINATION OF A CHILD WITNESS


A child witness is any person who at the time of giving testimony is
below 18 years old, or is 18 years old or over but is unable to fully
take care of herself/himself or protect herself/himself from abuse,
neglect, cruelty, etc. because of a physical or mental disability or
condition.
The following rules shall apply to the examination of a child who is a
victim of a crime, an accused, or a witness to a crime:
1.

The court may appoint a guardian for the child.

2.

Competency to testify: Every child is presumed qualified to be a


witness; but the court shall conduct a competency examination
when there is substantial doubt regarding the ability of the child
to perceive or distinguish truth from falsehood. The examination
shall be conducted only by the judge. The lawyers can only
submit questions to the judge.

3.

When a child does not understand English or Filipino, an


interpreter may be appointed by the court.

4.

If a child does not understand or respond to the questions, the


court may appoint a facilitator who may be a child psychologist,
psychiatrist, social worker, guidance counselor, teacher, religious
198

leader, parent or relative. The lawyers can ask questions to the


child only through the facilitator.
5.

Support persons may accompany the child to the witness stand.

6.

The child may use dolls, puppets, drawings, mannequins, or any


other appropriate demonstrative device to assist him/her in
his/her testimony.

7.

The lawyer may be prohibited from approaching the child if the


latter is fearful or intimated.

8.

The court may allow the child to testify in a narrative form.


Leading questions may be allowed. Objections should be made in
a manner so as not to confuse, frighten or intimidate the child.

9.

When a child testifies, the public may be excluded from the


courtroom.

10.

The testimony of a child may be taken in a room outside the


court and be televised to the court by live-link television.

11.

The chair on the witness stand or the screen may be placed in


such a manner that the child cannot see the accused while
testifying.

12.

If the child cannot testify in open court, the testimony may be


taken and preserved by videotape.

13.

All records concerning child witnesses shall be kept confidential.

14.

The child may refuse to testify on personal information


concerning his/her character which might endanger his/her life
or that of his/her family.

15.

In child abuse cases, videotaped and audiotaped in-depth


investigative or disclosure interviews may be admitted as
evidence.

16.

Evidence to prove that the alleged victim engaged in other


sexual behavior or sexual predisposition are not admissible in
court.

199

KATARUNGANG PAMBARANGAY
Before a civil or criminal case can be filed before the courts, the
survivor must go through the process prescribed in the Katarungang
Pmambarangay, unless the nature of her complaint is not included in
the jurisdiction of the Lupong Tagapamayapa. The purpose of the
Katarungang Pambarangay is to provide a venue for settlement of
disputes among the parties who reside in the same municipality or city.
It is important to know which types of disputes are within and outside
the scope of the Katarungang Pambarangay, and the process of
settling disputesd under this system.

I.

CONCEPT

One of the guiding principles of the Local Government Code is the


strengthening of the local governments and decentralization of the
powers of the national government. Towards this end, the city and
municipal governments were given the opportunity to settle disputes
between residents in their barangays. The existing law on the
Katarungang
Pambarangay
(Presidential
Decree
1508)
was
incorporated in the Local Government Code of 1991.
Another reason for the creation of the Katarungang
Pambarangay is to regulate the number of cases in the regular courts.
There will be no need to file a case in court if the parties enter into an
amicable settlement at the barangay level.
II.

JURISDICTION

All disputes between parties residing in the same city or municipality


must be brought before the Katarungang Pambarangay except for
disputes d enumerated below.
III. DISPUTES THAT MAY PROCEED DIRECTLY TO COURT
1.

Where one party is the government;

200

2.

Where one party is a public officer or employee and the dispute


relates to the performance of his or her official functions;

3.

Offenses where there is no private offended party;

4.

Where one party is a corporation, partnership or a juridical


entity;

5.

Where the dispute involves real properties located in different


cities or municipalities unless the parties agree to submit their
differences to amicable settlement by an appropriate lupon;

6.

Offenses punishable by imprisonment exceeding one (1) year or


a fine exceeding one thousand pesos (P1,000.00);

7.

Disputes involving parties parties who actually reside in


barangays of different cities or municipalities except where such
barangay units adjoin each other and the parties agree to submit
their differences by an appropriate lupon;

8.

Criminal cases where the accused is under detention;

9.

Petitions for habeas corpus or where a person has been arrested


or detained without legal basis;

10.

Where the action is coupled with provisional remedies such as


preliminary injuction, attachment, delivery of personal property
and support pendente lite; and

11.

Such other classes of disputes which the President of the


Philippines may determine as outside the jurisdiction of the
Katarungang Pambarangay.

IV.

VENUE FOR AMICABLE SETTLEMENT

1.

If the parties reside in the same barangay, their dispute shall be


brought before the lupon of their barangay;

2.

If the parties reside in different barangays within the same city


or municipality, the dispute shall be brought in the barangay
where the respondent resides.

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V.

PROCEDURE FOR AMICABLE SETTLEMENT

The barangay is not a court. It cannot render a decision and order the
parties to comply with such decision. The process before the
Katarungang Pambarangay is merely one of conciliation and if the
parties fail to reach a settlement, the barangay has no authority to
arrest a party or impose its own decision.
1.

Filing of a complaint, verbally or in writing, with the punong


barangay (who is also the lupon chair);

2.

Issuance of summons to the respondent, with notice to the


complainant, to afford him the opportunity to explain his side.
The parties may bring their own witnesses but cannot appear
with the assistance of counsel;

3.

If the parties fail to reach a settlement within fifteen (15) days


from their first meeting, the lupon chair will set a date for the
constitution of the pangkat tagpagkasundo;

4.

The pangkat will convene within three (3) days from its
constitution. If the parties still fail to reach an agreement with
fifteen (15) days from the day the pangkat convened, it may be
extended fror another period which shall not exceed fifteen (15)
days to give them sufficient time to arrive at a settlement;

5.

If an agreement is reached at any level (either the lupon or


pangkat), the amicable settlement shall be reduced to writing
and signed by the parties. The terms of the amicable settlement
must be complied with and it may be enforced by the lupong
tagapamayapa within six (6) months from the date of
settlement. After the lapse of such time, the party must proceed
to the regular courts for its enforcement.
If the parties fail to reach an agreement, the secretary of the
barangay will issue a certification to file action in court.

6.

The prescriptive period for any legal action shall be suspended


while the dispute is under conciliation in the barangay. The
prescriptive period shall resume only upon receipt by the
complainant of the certification to file action.
202

7.

If the dispute faiils within the jurisdiction of the Katarungang


Pambarangay but is brought directly to court, the action will not
be entertained and the case will be dismissed unless a certificate
to file action is presented.

CHAPTER 4
PARALEGAL SKILLS
After going through the substantive laws and the procedural rules that
apply in criminal and civil cases, it is but necessary to focus on the
skills that a paralegal is expected to possess. Case analysis,
conducting legal interviews, preparing affidavits, and doing legal
research are some of these skills. It is likewise important for the
paralegal to understand and live by the rules on ethics that stand as
guidelines in her advocacy for womens rights within the framework of
the legal system.

CASE ANALYSIS
One of the basic skills that a paralegal needs to learn is case analysis.
Not all disputes can be filed as a case in court. Not all instances of
violence and abuse can be brought before the court. There are
disputes where there is no cause of action. This is why a paralegal is
expected to know how to analyze a case.
In disputes that can be brought to the court, case analysis will help in
strengthening the case. The paralegal would know what issues need to
be raised, what evidence needs to be presented to the court, and what
arguments need to be researched.

I.

FIND OUT IF THERE IS A CAUSE OF ACTION


203

You may use the T.A.R.P method (Thing, Act, Right and
Prayer).
That is involved in the case
Act that caused the case to be filed
Right that was violated or obligation that was
not complied with
What remedy do you which the court to grant
for the aggrieved party?

THING:
ACT:
RIGHT:
PRAYER:
For example:
a.

A person is sideswiped by a car.

Thing:
Act:
Right:
Prayer:
b.

A coconut tree is cut.

Thing:
Act:
Right:
Prayer:
II.

the car
sideswiping
the right to expect other people to obey traffic rules
damages

coconut tree
cutting the tree
land tenure, peaceful possession of the land
damages

KNOW THE FACTS

Example:
Attorney, I am beaten up by my husband. This happens whenever he
comes home drunk, and that is often. He does not give money to me,
then he beats me up and our 4 children as well. It is hard enough do
not know how to budget the income that I earn as a market vendor,
and then he does this to me.
Facts:
Look for the important information, such as:

204

Married couple (legally married or common-law relationship? If


married, when were they married?)

Have four children (What are the childrens names? What are
their ages?)

Regular beating from the husband (How regular is the beating?


When did it start? How does the husband inflict violence on the
wife?)

Husband has no work (since when has he not been working?)

III. KNOW THE ISSUE


There are three kinds of issues:
1.

Legal - What is the right interpretation of the law?


Example: Is the infliction of physical violence as manifestation
of psychological incapacity under Article 36 of the Family Code?

2.

Factual - From the two contradicting versions of facts by the


parties, which version is true? What is the chronological
sequence of events?
Example: Did Juana leave the conjugal home because she had
a lover or because she was beaten up by Turing, her husband?

3.

Both legal and factual - An encompassing issue covers both legal


and factual issues.
Example:
a.

Legal issue: Is there abandonment when a woman leaves


the conjugal home because she is subjected to beatings by
her husband?

b.

Factual issue: Is the woman really subjected to beatings?


Is the husbands psychological incapacity grave and
incurable?

205

LEGAL INTERVIEW
The interview of a VAW survivor and her (possible) witness is
conducted to gather information that would help in building a case.
Because of this, legal interviewing is one of the most basic skills that a
paralegal is expected to learn and master. The paralegal is one of the
first persons that a survivor will get to talk to even before a lawyer
and therefore, the information that the paralegal gathers from the
survivor is a basis for the documents that will be drawn up and the
steps that will be undertaken.
Remember that legal interviewing is different from psychological
counseling. In the latter, the purpose is to show to the survivor that
she has someone to turn to in facing her problem, whether she files a
case or not. In legal interview, it is likewise important to show to the
survivor-interviewee that the paralegal conducting the interview is a
friend. However, the main purpose of the interview is the gathering of
data or information for the case.
I.

DEFINITION

Legal interview is the communication of two or more persons that is


primarily intended to gather information that may be used for a case
or for an issue that is legal in nature.
The elements of a legal interview are:

II.

1.

It takes place between an interviewer and an interviewee;

2.

The issue that is given attention has a legal aspect. The


problem at hand is a legal problem of the interviewee or of
another person; and

3.

The interviewer, who may be a paralegal or a lawyer,


presents her opinion as to the possible legal remedies.

REQUISITES OF AN INTERVIEWER

206

A.

Knowledge of the Law


It is not necessary that the interviewer be an expert in the law.
The basic requirement is for the interviewer to connect the
problem of the interviewee to the law.

B.

Knowledge of the purpose of the interview


This is important in order for the interviewer to know what data
or information to look for during the interview. This way, time is
not wasted dwelling on information that is not very important to
the problem being addressed.

C.

Adequate Preparation
Before the scheduled interview, the interviewer should have an
idea on what questions need to be answered by the interviewee
and what will be the flow of the interview questions. It would
help if the interviewer has a questionnaire or interview forms at
hand. However, it is also important that the interviewer does not
stick to the questions in the interview forms only, especially if
there are other questions that need to be answered. There are
instances where the questions have to be expanded in order to
have a better understanding of the facts and issues involved.

III. SOME POINTS FOR THE INTERVIEWER TO REMEMBER


A.

Proper Set-up
1.

The environment
The place where the interview shall be held should have
some privacy and should be comfortable. Arrange seats in
such a way that the interview becomes more personal.
(For example, do not place anything that physically divides
the interviewer and the interviewee, like a table.)
It is also important that the decorations and other objects
inside the venue appear to be neutral. Take out any object
that may distract the attention of the interviewee.

2.

Emotional preparedness

207

It is important that the interviewer and the interviewee are


comfortable with each other. This is important so that the
interviewer gets information that needs to be gathered
from the interviewee.
The interviewer has the obligation to foster a relationship
with the interviewee that is based on trust. The interview
will not be fruitful if there is no trust between the
interviewer and the interviewee. If there is no trust, the
information gathered may not be accurate.
B.

Initiating the interview


The interviewer should explain at the outset the importance of
being open and of having information that is both complete and
accurate.
The interviewer should make sure that the interviewee is
comfortable. This can be done by talking about other things first
until the interviewee has rested and is no longer nervous about
the interview.
There are two ways of initiating the interview, depending on the
circumstances of the interview:
1. Let the interviewee start telling her story. The interviewer
may encourage the interviewee to say whatever it is that
she is thinking or whatever it is that is bothering her. This
method is good in winning the trust of the interviewee. On
the other hand, this method may take too long. before iIt
can be expected that the interviewee will say many facts
that are not even relevant to her legal problem. But if the
pros and cons of this method are weighed, it will become
apparent that this method is still effective because the
interviewer will get information that may help in
understanding and pursuing the case or legal problem.
Furthermore, the interviewer may get an idea of what the
interviewee expects of her.
2. If the interviewee is having a hard time talking during the
interview, or if she is uncomfortable talking about her legal
problem, it may be better to have the interviewer start the
interview by propounding questions to the interviewee. But
if there comes a point where the interviewee can tell her
208

story without feeling uncomfortable, the interviewer should


stop asking questions and allow the interviewee to tell her
story at her own pace.
C.

Information that the interviewer should get


It is important that the interviewer has a clear idea of what
information needs to be gathered during the interview. This will
dictate the flow of the whole interview.
The interviewer should treat with confidentiality the information
she was able to gather from the interviewee, especially if the
information is on very sensitive matters. At the outset, the
interviewer should assure the interviewee that whatever she
says during the interview shall, as much as possible, be treated
with confidentiality. This assurance may facilitate the interviewee
to disclose important information.

D.

Manner of conducting the interview

If it is necessary to write down notes while conducting the


interview, it is important to explain this to the interviewee.

As much as possible, do not interrupt the interviewee while


she is relating her story.

Watch out for legal angles in the story.

Refrain, as much as possible, from giving your personal


opinion or judgment about the interviewees previous
acts.

Be sensitive about non-verbal communication, like being


restless or the refusal to talk about certain issues.

IV.

COMMON PROBLEMS IN CONDUCTING LEGAL INTERVIEWS

A.

On the interviewee

209

B.

1.

Usually, the interviewee does not know all the facts and
incidents relevant to the to the issue. And even if she
knows them, she may have difficulty relating them to the
interviewer in an orderly manner. There are also instances
where, due to nervousness of fear of being judged, the
interviewee finds it difficult to tell the exact story. In these
cases, it is important for the interviewer to be patient,
respectful, and persistent.

2.

The interviewee may also have a hard time recalling the


relevant events and the chronology of the same. This is
especially true if she is under stress and/or if a long period
of time has elapsed between the events and the interview
date.

3.

The interviewee may have a hidden need for attention or


sympathy. She may be afraid that she will be judged as a
bad person by the interviewer if she discloses everything
to the latter. This problem may also crop up if there is lack
of trust on the part of the interviewee towards the
interviewer.

On the interviewer

V.

1.

The interviewer may fail to recognize the weaknesses or


limitations of the interviewee;

2.

The interviewer may overly rely on verbal communication


as a source of information that may be received from nonverbal communication;

3.

The interviewer may suffer from lack of sympathy;

4.

The interviewers lack of trust in the interviewee will also


prevent a meaningful and open interview from being
conducted.

NOTE-TAKING

It is important to have notes about the information gathered from the


legal interview, because it will serve as a record to which the
interviewer can refer during the course of the research. In order to
prevent any feeling of discomfort on the part of the interviewee, note210

taking can be done right after the interview (and not during)., if the
interviewer has a very good memory. Note-taking during the interview
may be done if the reason for such act is explained to the interviewee.
The interviewer must also relieve the interviewee of any apprehension
that some of what she says is being ignored by the interviewer; thus,
it is important that the interviewer takes down notes from the start of
the interview.
VI.

THINGS TO WATCH OUT FOR DURING THE INTERVIEW


1.

Remember that sometimes, the actual events and the


chronology thereof may be presented differently by
someone who has another version in mind of what had
transpired;

2.

All conversations go through the following process and


there may be difficulties encountered in each step:
a.

Expression of message

b.

Receipt of the message

3.

Source of the message


Manner of expressing the message

Recipient of the message


Understanding/ appreciation of the message

The information given by the witnesses depending on the


reliability of their memory. In some cases, there will be
errors in recalling the event. The following factors may
affect the ability to recall events:
a.

Receipt of the message

Attention given
Stress level
Expectations that are rooted in:
Culture
Personal preferences
Experiences

211

4.

b.

Reliability of memory

c.

Retrieval of memory

Choosing the witnesses


a.
b.

It is easier for the judge to believe a witness who is


amiable;
The perception of the judge is affected by the words
chosen by the witness:

5.

Use of the words perhaps, maybe;


Repeating that which has been said before,
which may be perceived as an indicator of
uncertainty in what the witness is saying;
Use of rhetoricss which mean nothing in
substance; and
The tone of the voice used.

Dos and donts


a.

Dont contradict the version of the client;

b.

Refrain from making any personal judgments on the


interviewee;

c.

Be serious; and

d.

Make sure that the witness knows her role and the
role of the paralegal.

212

AFFIDAVIT-MAKING
An affidavit is a document that is frequently used in cases and other
legal proceedings. More often than not, the paralegal will encounter an
affidavit during the course of her work in connection with a case she is
supporting. A survivor of violence against women most probably would
have to execute an affidavit, especially if she chooses to file a criminal
case against the perpetrator. Thus, the affidavit is a basic document
that a paralegal needs to know how to make. The paralegal will find
out that affidavit-making is a simple and easy task and can easily be
mastered.
I.

CONCEPT

The affidavit is a document that states something about a certain


event. It is executed by a person called the affiant, who states her
personal knowledge about a certain event.
The statement made by the affiant is sworn to in order to verify that
what is written in the document is true and correct and is based on her
personal knowledge. And because this is a sworn statement, the
document is considered a public document. This means that if and
when the document is used in a particular case, it may be presented or
introduced in evidence without need of proving first that it was duly
executed by the affiant. And also because it is a sworn statement, the
affiant may be prosecuted for the crime of perjury, if she is found to
have made an untrue statement under the affidavit.
The affidavit may narrate a certain event that is needed to be
disclosed or told by the affiant. Because of this, the affidavit is
considered to be a frequently used legal form that a paralegal needs to
be familiarized with. Thus, it is necessary for the paralegal to master
the skill of affidavit-making.

213

II.

THE PARTS OF AN AFFIDAVIT


1.

The place of execution


Republic of the Philippines}
________________ City }
This is found in the uppermost left corner of the document.
From reading the place of execution, the reader will be
able to check if the notary public was within his/her
jurisdiction when s/he administered the oath of the affiant.

2.

The scilicet
SS
The scilicet is written on the space beside the place of
execution. Scilicet is taken from the Latin terms scire
licet, which means namely, to wit or in particular.
This is written on the affidavit to show the particular place
where the document was executed.

3.

The title of the document


Affidavit
The title is written on the center after the space where the
place of execution is written. It is important to place the
title so that at first glance, the reader will be advised that
the document s/he is holding is an affidavit.

4.

Personal circumstances of the affiant


I, Maria Fulgoso y Mercedes, of legal age,
single/married, and a resident of 123 Maria
del Barrio Street, Mexico, Pampanga, after
having been sworn in accordance with law,
do hereby depose and state that:

214

The personal circumstances of the affiant are written on


the first part of the affidavit. The name of the affiant, her
nationality, her age (or the fact that she is or is not of legal
age). her civil status and her residence are all written on
this part of the affidavit. The second part of the paragraph
states that the affiant freely and willfully executed the
affidavit.
5.

The body of the affidavit


1.

My husband is Sergio Fulgoso, of


legal age and a resident of 123 Maria
del Barrio Street, Mexico, Pampanga;

2.

We were married at the Quezon City


Hall on 31 May 1990 before Hon. RTC
Judge Jaime Salazar of Quezon City;

3.

We have 2 children, namely Corazon


and Angelica Fulgoso. Corazon was
born on 23 January 1992 and Angelica
on 30 March 1993;

4.

etc.

After writing the personal circumstances of the affiant, the


affiant then states the allegations that are related to the
particular event which is being related. These allegations
must be of the affiants personal knowledge. It is better if
the body is written in such a way that there are numbers
to the paragraphs and the events are chronologically
arranged. In order to have a clearer statement of facts, it
is suggested that each paragraph should contain only one
idea or point.
6.

The last paragraph in the body of the affidavit


6.
This statement is executed in order to
attest to the truth of the foregoing and for
the purpose of filing a complaint for physical
injuries against my husband, Sergio
Fulgoso.

215

In the last paragraph of the statement, the affiant must


state the reason(s) for executing the affidavit.

7.

The signature of the affiant


IN WITNESS WHEREOF, I have hereunto
affixed my signature this ___ day of ____,
200_, in ______.
(signature)
Maria Mercedes Y Fulgoso
Affiant
The signature of the affiant should be affixed after the last
paragraph of the body of the affidavit. The signature
affirms the fact that the affidavit was executed by the
affiant. It is also necessary that the affiant state the date
ad place when she affixed her signature to the affidavit.

8.

Jurat
SUBSCRIBED AND SWORN TO before me this ____ day of
____, 200__, the affiant exhibiting to me her Community
Tax Certificate No. _______ issued on _____ at ______.
(signature)
NOTARY PUBLIC
Until 31st of December 200__
PTR No. ________________
Doc. No. ___
Page No. ___
Book No. ___
Series of 200__.

216

The jurat is the certification of an official who is


authorized to administer oaths that the statement was
signed and subscribed before him/her. The community tax
certificate of the affiant, its date and place of issuance
must also be stated.

217

LEGAL RESEARCH AND BIBLIOGRAPHY

Research is an important task of a paralegal. Research skills can


be used for a particular case filed in court, for a negotiation, or for a
certain issue confronting the community, the union, or any other
organization. In legal research, the paralegal particularly looks for the
answer to a particular legal problem, or for data that would help in
answering a legal issue. Truth is, the time consumed by lawyers and
judges in doing research work is much more than that allotted for
hearings in the courtroom. As long as the paralegal recognizes that
books are friends and tools, she will have a fruitful, time doing
research work.

I.

DEFINITION

A.

Legal Research

Legal research refers to the process undertaken in order to seek


answers to legal questions. The answers to these questions are found
in law books, principles of law, or court decisions that are related to
the legal issue at hand. Because it is impossible for anybody to know
all the laws, principles and court decisions, it is imperative that the
paralegal knows how to have access to them, whenever she needs
them. The process of looking for these answers is called legal
research.
B.

Legal Bibliography

The use of books is an important component of legal research.


Because there are so many laws and books relating to these laws, it is
important for the paralegal to know how she can look for the books
that may provide the answer to the legal question that needs to be
answered. The science of studying books on laws is called legal
bibliography.
218

II.

USES OF LEGAL RESEARCH

A paralegal performs many tasks that require legal research.


Some examples of tasks that involve legal research are the following:
1.

preparation for a case;

2.

preparation for a negotiation (for extra-judicial settlement


on matters like support, custody, collective bargaining
agreement, grievance and lobbying for particular bill or
policy);

3.

knowledge about particular rights and obligations: for


trainings and for publications (information-dissemination).

III. SOURCES OF LAW


A.

The Constitution

The Constitution is the highest law of the land. This means that
all laws and issuances, court decisions and government policies should
not be contrary to the Constitution.
The Constitution may be formulated and amended by
representatives of the citizens. These representatives are elected by
their constituencies in order to serve in the Constitutional Convention.
In lieu of a constitutional convention, the President may also form a
Constitutional Commission, the members of which are appointed by
him. Congress may also convene as a constituent body that can
introduce amendments or overhaul the Constitution. Whatever method
used, the discussions of the elected or appointed members of the body
which wrote or amended the constitution should be available to the
paralegal. These proceedings are recorded by the government. The
library of the College of Law of the University of the Philippines has
copies of these proceedings.

219

B.

Treaties: agreements entered into by countries

Whenever the Philippines enters into a treaty, it should abide by


the provisions of the treaty. For example, there are International Labor
Organization (ILO) Conventions that were ratifies by the Philippine
government regarding the rights of women workers. These
conventions and other treaties that were entered into by the Philippine
government should be bases for the advocacy of new laws or policies
of the government. Thus, it is imperative that we know the contents of
these treaties.
Copies of the treaties entered into by the Philippine government
are found in the Department of Foreign Affairs (DFA) and the Senate
(because all treaties should be ratified by said chamber of Congress
body in order to be recognized as part of Philippine laws).
C.

National Laws

Usually, national laws are enacted by the legislative branch of


government, the Philippine Congress. These laws may come in the
form of special laws or codes. A code is a collection of laws or rules
that usually cover only one particular topic or issue. Examples of codes
that have been enacted are the New Civil Code, Family Code, Revised
Penal Code, Child and Youth Welfare Code, Labor Code and
Administrative Code.
Official copies of laws may be found in the Bills and Index section of
the lower House and also in the Senate. If there is a need to research
the deliberations and debates of the legislators concerning a particular
law, the paralegal can conduct her research at the Secretariat of any of
the two chambers of Congress and ask for the records and journals.
D.

Ordinances

Ordinances are another kind of law. This kind of law is enacted by the
legislative bodies of local governments, the sanggunians. Ordinances
are considered law although their effectivity is limited to the local
community that is covered by the jurisdiction of the sanggunian which
enacted them. The secretary of the concerned local government unit
should have copies of the ordinances passed by the respective
sanggunian.
E.

Rules issued by the departments


220

Rules and regulations issued by the difference departments of the


Executive branch in order to implement the national laws are likewise
sources of law. Examples of these rules are the implementing Rules
and Regulations, Administrative Orders and Administrative Circulars. If
the paralegal needs copies of the rules, she should go to the concerned
department and ask for copies. from.
F.

Case law

Under the concept of stare decisis, decisions of the Supreme Court


are considered part of the law of the country. This kind of law has the
force and effect of law because they are the official interpretation of
the law. Decisions promulgated by the Supreme Court are written and
may be read by the public on the advanced sheets that are found in
the Supreme Court. These decisions are also published in the Supreme
Court Reports Annotated (SCRA), although advanced sheets are issued
earlier than SCRA volumes. Before year 1961, decisions of the
Supreme Court are published in the Philippine Reports.
G.

Opinion of experts

Opinions of experts in particular fields of law are also used as


arguments in a case or legislative/ policy advocacy. Experts are
lawyers recognized as authorities by the other lawyers, judges and
other sectors in the legal profession. These experts have had the
opportunity to study and analyze the details of a particular branch of
law. Examples of Filipino experts are Arturo Tolentino, Fernandez and
J.B.L. Reyes for civil law; Chan, Alcantara, Azucena for labor law; Luis
B. Reyes for criminal law. Aside from these, there are some others who
may be considered experts in different branches of law. Most of the
experts have published books where they expound their own
interpretations of the law. These published books may be found in the
libraries of different law schools.

IV.

PROCEDURE IN LEGAL RESEARCH

A.

Analysis of the factslaw

Before conducting the actual research, the paralegal should look at the
data that are already in her hands. These data are the base of
information related to the legal issue at hand. For example, before the
221

paralegal looks up cases and experts opinions on the issue of


psychological incapacity, she should first know what are the behavioral
manifestations that were exhibited by the husband of the survivor. This
is where legal interview becomes meaningful, so that the paralegal will
know what facts are relevant in building the case.
B.

Identification of issue(s)

After gathering all the data, the paralegal now analyzes the data and
identifies issues that need to be answered.
For example, if the research is related to a particular case, the
following questions may guide the paralegals in identifying the issues:
1.

What is the source of conflict between the parties? What


are they fighting about?

2.

What provision(s) of law should be used in the resolution


of the case?

3.

How would these provision(s) be applied in the light of this


case?

C.

Research on laws

1.

Statute or Case Method

This method is used if the paralegal knows the title of the case or the
title of the law that provides an answer to the issue at hand.
2.

Topic or Analytical Method

This method is used when the paralegal knows the category under
which the issue at hand is placed.
3.

Words and Phrases Method

This method is useful when the resolution of the issue requires a


clarification of definitions of certain words or phrases.
V.

LEGAL BIBLIOGRAPHY

222

Most of the following books are found in the U.P. Law Library. Anybody
can use the library as long as a letter of request is presented to the
librarian.
A.

For the meanings of words and phrases


1. Ballentines Law Dictionary
2. Blacks Law Dictionary
3. Nolledo, Dictionary of Legal Terms

B.

For a deeper understanding of the issue


1.

Encyclopedia
a.
b.
c.

2.

of

Law

and

Reference Books
a.
b.
c.
d.

C.

American Jurisprudence
Corpus Juris Secundum
Venida, Philippine Encyclopedia
Jurisprudence

Arturo Tolentino, Civil Code


Luis Reyes, Criminal Law
Ernesto Pineda, Family Code
Alicia Sempio-Dy, Family Code

For contents of laws


1.

Subject approach
a.
b.
c.
d.
e.
f.

2.

Philippine Annotated Laws


Philippine Permanent and General Statutes
Moran, Index to Republic Acts
Presidential Decrees, Guide to Subject Index
Feliciano, Subject Guide to PDs (1972-1975)
Vital Legal Documents

Text of Statutes
a.
b.
c.

Public Laws by the Philippine Commission


Public Laws of the Commonwealth
Laws and Resolutions of the Republic
Philippines

of

the

223

d.
e.
f.
D.

Vital Legal Documents of the New Society


Official Gazette
Philippine Permanent and General Statutes

For case law


1.

Supreme Court decisions that are chronologically arranged


a.
b.
c.

2.

Subject Approach: Supreme Court decisions arranged


according to subject
a.
b.
c.
d.

VI.

Philippine Reports (1901-1961)


Official Gazette (1961-present)
Supreme Court Reports Annotated (1961-present)

Philippine Digest
Republic of the Philippines Digest
SCRA Quick Index
Velayos Digest of Supreme Court and Court of
Appeals decisions

SOME GUIDELINES IN LEGAL RESEARCH

A. A.

Use the proper steps in conducting the research.

B. Start from the latest, working your way to the earliest.


C. Always write down the title of the book that is the source of the
information, the name of the author or editor of the book, the
year in which it was published, and the page on which the
information was taken.

BALANCING LEGAL AND EXTRA-LEGAL TACTICS

Not all disputes can be coursed through a legal battle. There are
also legal issues that can be successfully brought to the extra-legal (or
metal-legal) arena. This arena is neither legal nor illegal. The advocacy
224

is not within the framework of the legal system, but it does not also
disregard this system. Fact is, there are many legal issues that can be
attacked by the paralegals by means of extra-legal tactics. some forms
of this kind of tactics are found below. also listed below are the
advantages and the limitations of extra-legal tactics. A good paralegal
needs to know how to balance the legal and extra-legal tactics.
I.

PRINCIPLES AND ASSUMPTIONS

A.

The law reflects and supports the system that is prevailing within
the society in which the law thrives. Thus, the limitations of the
system is also reflected in the application of the law. The law is
not sufficient and is not always an effective response to the
problems of society. If the paralegals work is limited only to the
legal arena, the gains that may be reaped in her quest for
justice and genuine societal transformation may also be very
limited.

B.

Within the legal system, there are many limitations in looking for
effective responses to societys problems:
1.

The bureaucracy and very slow mechanism of government


agencies;

2.

The technical nature of the law that may be used by


powerful and cunning sectors to their advantage; and

3.

The propensity of the bureaucracy to ignore the true


situation of society and instead, to focus only on laws,
regulations and administrative issuances.

C.

The law can be an effective tool in changing society if it has the


support and is relevant to the basic sectors of society.

D.

Legal tactics should be considered as support only to


the
organizing effort of the basic sectors and should be used under
this framework. The sectors should not confine their struggle to
the legal arena.

II.

WHAT ARE EXTRA-LEGAL TACTICS?

225

A.

Definition

Extra-legal tactics refer to those that are intended to resolve a


problem through acts that are outside the legal processes set by law.
B.

Concept
1.

The tactics are not legal because they are outside the
processes set by law. However, this does not make the
tactics illegal or against the law. In most cases, they are
protected by the right to freedom of expression or other
basic human rights.

2.

There is danger though that they may be the cause of a


case or disciplinary action being filed against the actor(s),
because the acts are between the legal and illegal.

3.

In many cases, extra-legal tactics need the support of


many people in order to be effective.

III. EXTRA-LEGAL AND LEGAL TACTICS

LEGAL

ADVANTAGES
DISADVANTAGES
The
order
or The procedure can
decision of a court
be prolonged and
has the force of
expensive.
law.
Can be used as a
The adverse party is
tool in order to
compelled
to
block a remedy to
confront the issue
the problem
and answer the
accusation.
The results usually
depend
on
the
Do not need the
lawyer.
support of many
people (except for Cannot affect the
the person who
interest
of
the
filed the case)]
adverse
party
unless the case is
won

226

EXTRA-LEGAL

Can be used as a
means
to
encourage
many
people to act on a
certain issue (an
effective means for
learning
and
participating by the
members of the
organization)

Can
hasten
the
process of looking
for answers to the
legal problem

Are not hampered


by the limitations
that are presented
in legal processes

Sometimes,
the
success
of
the
tactics depend on
the level of support
Cannot
ascertain
that the adverse
party will listen to
the
organization
(adverse party may
choose to ignore
the act)

Guide questions:
1.

For the legal tactics


a. Does the complainant/plaintiff have strong evidence in
support of the case?
b. Do the laws support the allegations of the
complainant/plaintiff?
c. Can the complainant/ plaintiff spare more time in
seeking a resolution to her case?
d. Are the tactics being adopted in response to the illegal
acts of the adverse party?

2.

For the extra-legal tactics

227

a. Is the support group for the extra-legal tactics strong,


comprehensive and active?
b. If needed, can the members of the organization stand
the prolonged procedure?
c. Are all the members of the organization united in the
employment of these guidelines?
d. Will the adverse party feel the negative effects brought
about by the extra-legal tactics?
e. Are the members of the organization emotionally
prepared to respond if and when the adverse party
retaliates?
f. Are the tactics employed appropriate to the members of
the organization?
g. Are the members aware what they are fighting for?
h. Are they organized and will they be able to respond for
the issue at hand?

228