Saturday, February 28, 2009

Riano's take on the Bar exam

In the Preface of his 2006 book "Evidence: A Restatement of the Bar," Dean Willard B. Riano gave an insightful view on how the Bar exam may be regarded.

"This work is anchored on the practical principle that a bar candidate does not have to know everything on each bar subject. It is not a requirement to pass the bar. It will never be. Also, the breadth and scope of bar examination topics yield to the conclusion that a profound knowledge of every nook and cranny of each bar principle is next to impossible."

I was planning to buy his two books on the rules of court last week but I was only able to get one on Evidence since the other one on Civil Procedure was out of stock. I highly recommend Dean Riano's books to law students and Bar reviewees.

Thursday, February 26, 2009

Two-Examiner Rule in the Bar

Starting this year's Bar exam, there will now be two examiners per Bar subject.

On February 3, 2009, the Supreme Court in an En Banc Resolution established the two-examiner rule for the 2009 Bar examination and thereafter.

Herein quoted is the resolution of the Court contained in a letter by the Supreme Court Clerk of Court Ma. Luisa D. Villarama and was received by the Office of the Bar Confidant on February 6, 2009.

"Bar Matter No. 1161 - Re: Proposed Reforms in the Bar Examinations. - The Court Resolved, upon the recommendation of the Committee on Legal Education and Bar Matters, to APPROVE the proposal of Atty. Ma. Cristina B. Layusa, Deputy Clerk of Court and Bar Confidant, regarding the (1) implementation of Paragraph 4 Part B of Bar Matter No. 1161, or the designation of two (2) examiners per Bar subject; and (2) increase in the honorarium of the examiners from P130.00 to P200.00 per booklet."

"Hence, every Bar subject shall be divided into two (2) parts - Part I and Part II. Each examiner shall be assigned a specific scope from which to formulate his/her questions. The time alloted for each Bar subject of four (4) hours for the morning subjects and three (3) hours for the afternoon subjects shall not change. In answering the questions, the Bar examinees have the discretion in utilizing the time alloted for answering. Thus, they may opt to begin answering a particular part of the examination which he or she feels is relatively easier than others."

"As with previous Bar examinations, only one set of test questionnaire and one examination booklet for each Bar subject shall be given to each Bar examinee. Each examination booklet shall also be divided into two (2) parts, marked as Part I and Part II, where the answers are to be written corresponding to Part I and Part II of the questionnaire, respectively. A separate card for the grades or rating received by the Bar examinee for each part of the examination shall be attached to the front cover of the booklets marked as Part I and Part II. Upon review and correction of the two examiners' respective part of the examination, the attached card shall be detached immediately thereafter before transmittal to the other examiner for review and correction of the other part of the examination. This is to ensure that the other examiners would not be influenced by the grade or rating given by the other."

"In this connection, there shall be an increase in the honorarium of the Bar examiners from P130.00 to P200.00 per booklet per Bar subject or P100 per booklet per examiner."

Sunday, February 22, 2009

Supreme Court makes it easier to annul marriages

Philippine Star
February 23, 2009

"A couple was freed from 13 years of conflict after the Supreme Court (SC) relaxed the guidelines for annulling marriages and declared their union void.

In granting Edward Kenneth Ngo Te’s petition to annul his marriage to Rowena Ong Gutierrez, the high court considered the psychiatric evaluation on the spouses.

Te was diagnosed to be suffering from “dependent personality disorder” while Gutierrez had “antisocial personality disorder.”

They were married on Oct. 23, 1996 and the SC noted the couple were “afflicted with grave, sever and incurable psychological incapacity,” as the SC stated in its ruling.

The SC said “psychological incapacity” as viewed under current jurisprudence is “totally inconsistent” with the way the concept was formulated under the Family Code.

Annulment of marriages, on the other hand, should not be limited to disorders as specified by the SC.

The SC had set the guidelines for courts to declare the nullity of marriages in the landmark case of Republic of the Philippines v. Court of Appeals and Molina.

“Far from what was intended by the Court, Molina has become a straitjacket, forcing all sizes to fit and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage,” the SC stated in the decision.

The SC said that in deciding cases of annulment of marriages subsequent to Molina, courts have applied the standards set in that case without regard to the Family Code’s clear intention that each case must be treated differently.

“Courts should interpret (Article 36 of the Family Code) on a case-to-case basis, guided by findings of experts and researches in psychological disciplines, and by decisions of Church Tribunals,” read the decision.

In the Te ruling, the SC adopted the separate opinion by the late Justice Teodoro Padilla in the Molina case for the judge to determine “psychological incapacity” in each case of annulment based on the facts at hand.

“The Court of Appeals must also avoid substituting its own judgment for that of the trial court,” read the decision, quoting the Padilla opinion.

The SC said the Molina case reflected the deluge of petitions for annulment of marriages and the Office of the Solicitor General’s description of Article 36 of the Family Code as the “most liberal divorce procedure in the world.”

“The intended consequence of Molina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundations of their families, our basic social institution,” read the decision.

In the Molina case, the SC made it hard for couples to have their marriages judicially declared void based on “psychological incapacity” as provided in Article 36 of the Family Code.

In declaring the Te marriage void, the SC has ruled that nullity of marriages based on “psychological incapacity” of either party should be handled on a “case-to-case basis,” not bound by the strict grounds specified in the Molina case.

However, the SC said it has not abandoned the Molina case.

“We simply declare that… there is a need to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36,” read the decision.

In Molina, the SC ruled that the burden of proof to show the nullity of the marriage belongs to the petitioner.

Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity, the SC added.

In Molina, the SC set out the following as the root cause of “psychological incapacity.”

Among them are grounds that are medically and clinically established, alleged in the complaint, and sufficiently proven by experts.

The decision must clearly state the grounds and the incapacity must be proven to have existed at the time of the marriage.

The SC said there must be evidence to show that the illness existed when the parties got married and the incapacity must also be shown to be medically or clinically permanent or incurable.

“Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolute against everyone of the same sex,” the SC said.

The SC stated the illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

Mild character peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes, the SC said.

“The illness must be shown as downright incapacity or inability, not refusal, neglect or difficulty, much less ill will,” the high court added.

Other root cause for incapacity must include:

• The essential marital obligations must be embraced by Article 68 up to 71 of the Family Code as regards the husband and wife, as well as Articles 220, 221 and 225 of the Family Code in regard to parents and their children;

• The non-compliance of these marital duties must be stated in the petition, proven by evidence and included in the decision;

• The interpretations of the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines, while not controlling, should be given great weight by the courts;

• The trial court must order the prosecuting attorney and the Solicitor General to appear as Counsel for the State;

• No decision should be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating his reasons for his agreement or opposition to the petition;

• The Solicitor General along with the prosecuting attorney shall submit the certification within 15 days from the date the case is deemed submitted for resolution by the court."

Sunday, February 8, 2009

Labor standards issues in call centers

Call center agents are one of the higher paid workers in the Philippines today. Unfortunately, this enticement of higher pay has probably led some call center employers into thinking they could trifle with their employees’ rights and welfare.

With the employment crisis, there’s the practice of requiring employees to work on double shifts, say from 1 a.m. to 10 a.m. and then 8 p.m. the same day to 5 a.m. the next day. Some employees render overtime work without corresponding adjustments made in their salary to compensate for the extra working hours.

The following questions arise:

1. Is the second shift considered overtime work?

2. If yes, can the call center require employees to work in the second shift?

On the first question, yes the second shift should be considered overtime work and thus employees working in double shifts are entitled to corresponding overtime pay and night-shift differential. Normal hours of work shall not exceed 8 hours a day, says the law. Hours worked however do not include meal time if the employee is completely freed from duties during her meal period, which shall not be less than 1 hour. If the work performed exceeds 8 hours a day, the employee is entitled to overtime pay equal to her regular salary (compute the hourly rate) plus at least 25% thereof. When the employee is required or allowed to work between 10pm and 6am, she is entitled to a night-shift differential of not less than 10% of her regular wage for each hour of work performed within that time.

The law says a “day” is understood to be the 24-hour period which starts from the time the employee regularly starts to work. It is not necessarily the ordinary calendar day (like Monday, Tuesday, etc.). Thus, in the call center’s case, if the employee starts working from 1 a.m. to 10 a.m., the work day of such employee is from 1 a.m. to 1 a.m. the following day. In other words, the period from 1 a.m. to 10 a.m. is the regular working hours or shift of the employee while the period from 1 a.m. to 1 a.m. the following day is her work day. Any work in excess of 8 hours within that 24 hour period is considered as overtime work regardless of whether the work covers two calendar days (e.g. Monday-Tuesday).

So where the employee is required to work from 1 a.m. to 10 a.m. and come back 8 p.m. on the same day for the 8 p.m. to 5 a.m. second shift, the hours between 8 p.m. to 1 a.m. the following day is considered as overtime work for 5 hours (or 4 hours, subtracting the 1-hour meal period). Aside from overtime pay, the employee should also be paid a night-shift differential for work actually rendered between 10 p.m. to 5 a.m..

Now, the call center might claim that the employee’s overtime pay was already integrated in her basic salary which is way above the minimum wage. May the employer and employee agree that the latter’s regular salary already includes the overtime pay, such that when the employee actually works overtime she cannot claim overtime pay? No, unless there is an express agreement to that effect. Thus, first there must be a clear written agreement knowingly and freely entered into by the employee, and secondly, the mathematical result shows that the agreed legal wage rate and the overtime pay, computed separately, are equal to or higher than the separate amounts legally due. (Damasco vs. NLRC, G.R. 115755, as cited by Azucena).

On the second question: If the second shift is considered overtime work, can the call center require employees to work in the second shift? No, an employer cannot legally require his employee to render overtime work except in certain urgent cases stated in the law. In any case, the employee is always entitled to overtime pay if work exceeds 8 hours in a 24-hour period.

Notably, an employee may belatedly demand for unpaid extra compensation. Anytime she can file a claim for unpaid salary, benefits or overtime compensation for work rendered months or years back. The law recognizes that fear of losing one’s job is sometimes a very strong factor that gags the employee from demanding payment for such extra services and it may take her months or years before she could be made to present a claim against her employer. (Luzon Stevedoring vs. Luzon Marine Dept. Union, 101 Phil. 257, as cited by Azucena)

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