Law Innovations (Philippines)

Updates in Philippine law, upgrades for the Filipino lawyer

How UP Diliman Implemented Its Own Automated Voting System

Posted by Oli Reyes on February 18, 2010

(Note: Atty. Ferdinand Rafanan, Director of the COMELEC Law Department, has accepted the invitation of Law Innovations to speak on the 2010 automated national elections at its first MCLE Series (36-hours full credit) scheduled for 11, 12, 18 & 19 March 2010. E-mail for more details)

As the Philippines prepares for its first automated national elections in May 2010, we may as well look to the University of the Philippines-Diliman, which has implemented automated voting for all its local student university-wide elections since 2009. While the framework of the U.P. Diliman voting system (dubbed “Halalan”) requires no paper ballots and is thus radically different from that which will be utilized in our own national polls, it may be a source of inspiration and future lessons as our country adjusts to the prospect of an automated electoral future.

With the assistance of U.P. College of Law Secretary Solomon Lumba, I was able to interview the current Project Manager of Halalan, Rystraum Gamonez, a second year Computer Science student at the U.P. College of Engineering. Rystraum explained that Halalan was developed after members of his campus organization, the UP Linux Users Group (UnPLUG), were watching a typically prolonged tabulation of paper ballots for the University Student Council election, wondering whether an automated voting system for the campus was possible. They scoured the Internet for available election software for their purposes, only to find none. To their credit, they decided then to develop one themselves, and the software they developed was used, first in local College of Engineering elections, then by three other colleges in their own local council elections, before it was finally adopted by the entire university for the student council elections of 2009. The efforts of the developers of Halalan have hardly remained anonymous. For developing the Halalan software, UnPLUG won an award during the 2006 Software Freedom Day, a worldwide celebration of Free and Open Source Software initiated by Software Freedom International and co-sponsored then by IBM. The prize — an IBM Power5 server which is currently used as the central server for Halalan. The team of developers who invented Halalan: Waldemar Bautista, Ralph Justin Arce, John Michael Bitanga, Vanessa Rose Castro, Wigi Vei Oliveros, Antonio Mari San Miguel, DJ Sison, Carlo Santos and Orly Tarun.

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Full Text of Anti-Child Pornography Act of 2009

Posted by Oli Reyes on November 20, 2009

Last 17 November 2009, President Arroyo signed into law Republic Act No. 9775, which will be better known as the “Anti-Child Pornography Act of 2009”. This landmark legislation was lobbied for by children’s rights advocates, including the UNICEF. We have obtained from the House of Representatives website a copy of the bill as finally approved by both Houses of Congress last 13 October 2009, and will be reproducing the full text below. Should we find deviations between this copy and the final text of the law, we will correct our copy immediately.  But before that, a few of my own personal observations on the new law.

One remarkable aspect about the new law is how extensively it involves the community  in the enforcement of its provisions. As expected, ISPs and every Internet content host in the Philippines (yes, that includes bloggers) is required to take active measures to block child pornography, and even to report incidences thereof to the authorities. At the same time, internet cafes, schools, offices and service providers are mandated to “install blocking system or software to prevent transmittal of or access to the child pornography materials”.  Also similarly engaged are any “[p]hoto developers, information technology (IT) professionals, credit card companies and banks, and any person who has direct knowledge of any child pornography activities”, they to report such child pornography activity within 7 days from discovery to the authorities, or else pay a fine. And there is that rather broad warning that “[i]t shall be unlawful for a person to knowingly facilitate the commission of any of the prohibited or unlawful acts under any of the provisions of this Act.” This extensive community involvement is laudable, though I can’t think of any other enforcement against criminalized activity in the Philippines that similarly engages by mandate of law so wide a swath of society

A child under the law is defined as 18 years old and below. Apart from the intuitive and urgently needed criminalization of pornographic acts involving real children, the law also classifies as child pornography a “digital image, computer image or computer-generated image that is indistinguishable from that of real children engaging in an explicit sexual activity”, and a “representation of a person who is, appears to be, or is represented as being a child, the dominant characteristic of which is the depiction, for a sexual purpose, of: the sexual organ or the anal region, or a representation thereof; or the breasts, or a representation of the breasts, of a female person.” The inclusion of virtual or 2-d representation of children had raised a howl among fans of Japanese “hentai”. (See Edward Baylon on Japanator and Anime News Network) Still, while the depiction of minors engaged in sexual activity in medium such as anime is considered pornographic and criminal, it would not necessarily follow that less blatant acts such as, for example, the depiction of breasts is necessarily criminal. With respect to “any representation of the sexual parts of a child”, the depiction must be “for primarily sexual purposes” in order to be considered pornographic; and in ascertaining “primarily sexual purposes”, the law requires to be taken into account, among others, “[t]he work taken as a whole imbued within its context, manner or presentation, intention and culture, lascivious, literary, artistic, political and scientific value.”

Nonetheless, the U.S. Supreme Court in 2002 took issue with parts of the U.S. Child Pornography Prevention Act of 1996 insofar as that law prohibited “sexually explicit images that appear to depict minors but were produced without using any real children”. In Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002), the U.S. Supreme Court, voting 6-3-1, declared those restrictions as overbroad and unconstitutional. The following passage from Justice Anthony Kennedy’s majority opinion, which pointed out that such recent films as Baz Luhrmann’s Romeo & Juliet & American Beauty might be considered pornographic under the new law, are worth looking into:

The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea–that of teenagers engaging in sexual activity–that is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age.  This is higher than the legal age for marriage in many States, as well as the age at which persons may consent to sexual relations. It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on their own inclination or because they are victims of sexual abuse.

Both themes–teenage sexual activity and the sexual abuse of children–have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9 (“She hath not seen the change of fourteen years”). In the drama, Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pictures, some of which suggest that the teenagers consummated their relationship. E.g., Romeo and Juliet (B. Luhrmann director, 1996). Shakespeare may not have written sexually explicit scenes for the Elizabethean audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene.

Contemporary movies pursue similar themes. Last year’s Academy Awards featured the movie, Traffic, which was nominated for Best Picture. See Predictable and Less So, the Academy Award Contenders, N. Y. Times, Feb. 14, 2001, p. E11. The film portrays a teenager, identified as a 16-year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. See “American Beauty” Tops the Oscars, N. Y. Times, Mar. 27, 2000, p. E1. In the course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man.

Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute’s prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work’s redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene…

These concerns nonetheless should not detract from the very real evil which the new law prevents – the actual exploitation of real children through pornography. This new law might make the Internet less free-wheeling, but it makes society more safe.

Full text of the Anti-Child Pornography Act of 2009 after the jump. Read the rest of this entry »

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List of Pleadings Which Must Be Verified (Update #1)

Posted by Oli Reyes on November 19, 2009

Every law student knows of the urgency of the verification requirement; that a defective or absent verification when required may be cause of the outright junking of the pleading so impaired. Many clients have ended up befuddled, if not outraged, at seeing their complaints dismissed due to improper verification. Indeed, the verification requirement has been the cause for minor paranoia among lawyers in the Philippines, and the prudential rule has emerged that whenever in doubt, verify.

(Another common, often fatal flaw in verification is the continued adherence by some lawyers to the now obsolete rule that a pleading may be verified as “true and correct based on knowledge or belief”. Since the adoption of A.M. No. 00-2-10-SC, amending Section 4,  Rule 7  of the 1997 Rules of Civil Procedure, pleadings must know be verified as “true and correct based on personal knowledge or based on authentic records.”)

Still, as a general rule, pleadings need not be verified, and it is only when required by statute or a procedural rule that a pleading should be verified. What follows below, for the benefit of practictioners, is a comprehensive list of pleadings filed before the courts or quasi-judicial agencies that are required to be verified. Read the rest of this entry »

Posted in Procedural | Tagged: , | 7 Comments »

Are Campaign Contributions Subject to Donor’s Tax?

Posted by Oli Reyes on November 17, 2009

With the Philippine campaign season approaching, it is worth asking whether campaign contributions are subject to the donor’s tax which is generally assessed on all gifts pursuant to the National Internal Revenue Code.

The quick answer is “No”. Section 13 of Republic Act No. 7166 explicitly provides that “[a]ny provision of law to the contrary notwithstanding any contribution in cash or in kind to any candidate or political party or coalition of parties for campaign purposes, duly reported to the Commission [on Elections] shall not be subject to the payment of any gift tax.” The phrase “duly reported to the Commission” establishes an important caveat, and it is very arguable that such contributions which were not reported to the COMELEC may be subject to the donor’s tax. Who is bound to “duly report to the COMELEC” for the purposes of Section 13? Both the campaign donor and the candidate/political party receiving the campaign contributions are duty-bound under law to report these contributions with the COMELEC. Under Section 99 of the Omnibus Election Code (B.P. 881), the person who gives campaign contributions is obliged to file with the COMELEC not later than thirty days after the election “a report under oath stating the amount of each contribution, the name of the candidate, agent of the candidate or political party receiving the contribution, and the date of the contribution.” At the same time, under Section 14 of Republic Act No. 7166, within the same thirty-day period, the candidate and the treasurer of the political party are also obliged to file “the full, true and itemized statement of all contributions and expenditures in connection with the election.” Read the rest of this entry »

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Full Text of Anti-Torture Act of 2009

Posted by Oli Reyes on November 16, 2009

President Arroyo signed into law last 10 November 2009, Republic Act No. 9745, known as the “Anti-Torture Act of 2009“. It is a remarkable law in many respects, and one that should be counted as a step towards the right direction. For example, it classifies the practice of waterboarding as torture (See Section 4[a][5]); and one remembers the considerable debate in the United States during the Bush Administration whether the practice was indeed torture.

What you see below is the full text of the Anti-Torture Act of 2009, as taken from the House/Senate Bill that was submitted to the President for signature last October 15. A PDF copy of the bill is also available on the website of the House of Representatives.

Full text of the Anti-Torture Act of 2009 after the jump. Read the rest of this entry »

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The Most Important U.S. Anti-Discrimination Law In the Last Two Decades

Posted by Oli Reyes on November 16, 2009

The U.S. Genetic Information Nondiscrimination Act has been called by the New York Times as “the most important new antidiscrimination law in two decades”. It was enacted in 2008, but takes effect only next week.

The two most prominent targets of the new law are employers and health insurers. The GINA prohibits employers from requiring genetic testing or taking into account one’s genetic background for purposes of hiring, firing or promotion. Health insurers from using such genetic information or requiring genetic testing in order to deny coverage or increase/decrease health premiums.

In this age where genetic information is increasingly more intimate in revealing one’s biological makeup and future, people of have become more queasy in divulging their personal genetic information. The GINA alleviates these fears and imposes restrictions on how such information can be used to inflict pecuniary pain. The GINA likewise aligns with the very concerns that led to the recognition to a constitutional right to privacy — the right to be let alone.

It is easy to foresee that similar legislation will emerge in the Philippines, especially for the purpose of enforcing similar restrictions on the health insurance industry. Such legislation will generally be popular, privacy rights being concerns that held close to one’s heart.

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When Grandparents May Be Liable for Legal Support to Grandchildren

Posted by Oli Reyes on November 14, 2009

May grandparents be liable to provide legal support to their grandchildren even if the children already receive support from their father (who himself is the son of said grandparents)? The Supreme Court, in Spouses Lim v. Lim (G.R. No. 163209, 30 October 2009), ruled that grandparents may be so liable under the Civil Code under particular circumstances.

The case arose after the son of the petitioner-spouses saw his wife and three school-age kids leave him after he was caught “in a compromising position” with another woman. In the subsequent petition for support, it was not only the son, but also the paternal grandparents (the petitioner-spouses) who were sued. A determinative factor that led the Supreme Court to rule that even the grandparents were liable to support their grandchildren (though not to their estranged daughter-in-law) was the finding that the husband was able to provide support of only 6,000 pesos a month, which was insufficient to meet his children’s basic needs, and the fact that the wife herself was “unable to discharge her obligation to provide sufficient legal support to her children, then all school-bound.”

Some brief passages from the Court’s decision reveal the rationale behind this ruling:

Relying on provisions found in Title IX of the Civil Code, as amended, on Parental Authority, petitioners theorize that their liability is activated only upon default of parental authority, conceivably either by its termination or suspension during the children’s minority. Because at the time respondents sued for support, Cheryl and Edward exercised parental authority over their children, petitioners submit that the obligation to support the latter’s offspring ends with them.

Neither the text of the law nor the teaching of jurisprudence supports this severe constriction of the scope of familial obligation to give support. In the first place, the governing text are the relevant provisions in Title VIII of the Civil Code, as amended, on Support, not the provisions in Title IX on Parental Authority. While both areas share a common ground in that parental authority encompasses the obligation to provide legal support, they differ in other concerns including the duration of the obligation and its concurrence among relatives of differing degrees. Thus, although the obligation to provide support arising from parental authority ends upon the emancipation of the child, the same obligation arising from spousal and general familial ties ideally lasts during the obligee’s lifetime.. Also, while parental authority under Title IX (and the correlative parental rights) pertains to parents, passing to ascendants only upon its termination or suspension, the obligation to provide legal support passes on to ascendants  not only upon default of the parents but also for the latter’s inability to provide sufficient support.

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