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Paralegal Manual On Violence Against Women: Saligan Women's Unit and Mindanaw Branch
Paralegal Manual On Violence Against Women: Saligan Women's Unit and Mindanaw Branch
SALIGAN
1
Paralegal Manual on Violence against Women
3rd Edition
2007
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
2
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
3
INTRODUCTION,
I
PHILIPPINE “HERSTORY”
PHILIPPINE LEGAL SYSTEM,
INTRODUCTION TO LAW,
PHILOSOPHY OF PARALEGALISM,
II
SUBSTANTIVE LAWS
WOMEN’S 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,
4
IV
PARALEGAL SKILLS
CASE ANALYSIS,
LEGAL INTERVIEW,
AFFIDAVIT-MAKING,
LEGAL RESEARCH AND BIBLIOGRAPHY,
BALANCING LEGAL AND EXTRA-LEGAL TACTICS,
5
INTRODUCTION
This is the third edition of the women’s manual for paralegals. It has
undergone three revisions to include the most recent legislation
addressing women’s issues and concerns. As our society continues to
become more and more aware about women’s right, SALIGAN
continues to move forward with its advocacies towards women
empowerment.
6
To all the survivor of violence against women, paralegals, women’s
groups, women’s organization, who are one with us in our cause of
eliminating gender violence, oppression and discrimination, this
Manual is dedicated.
Women’s program
SALIGAN
SALIGAN-Mindanaw
I
PHILIPPINE “HERSTORY”
7
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 country’s 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.
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.
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.
8
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 extra-
marital 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 widow’s womb,
should there be any.
C. Commerce
5. to engage in business.
9
D. Political
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.
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 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.
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.
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:
2. contagious disease;
11
6. intentional or unjustifiable abandonment for more than a
year prior to the filing of the petition;
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;
Aside from this, the rights and obligations of the espouses were
spelled out under the New Civil Code. These are:
12
3. The purchase by the wife of jewelry and other precious
objects is voidable, unless her husband consents to the
transaction;
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:
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
c. Section 11
d. Section 14
14
2. The family domicile (residence) shall be chosen by 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:
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 women’s rights
that were also enacted. Some of these laws are:
It will be noted that most of our prevailing laws came from the
Spaniards and the Americans.
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.
17
PHILIPPINE LEGAL SYSTEM
The Executive
The Legislative
The Judiciary
I. EXECUTIVE
A. Nature
B. Composition
a. President
b. Vice-President
c. Cabinet: comprised of the department secretaries who
serve as Presidential advisers
18
4. Act as Commander-in-chief of the Armed Forces of the
Philippines;
II. LEGISLATURE
A. Nature
Composition
19
5. Declare the existence of a state of war;
6. Grant the President emergency powers;
7. Control the disbursement of public funds; and
8. 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
20
IV. INTER-RELATION AMONG THE BRANCHES
A. Executive
B. Judiciary
C. Legislature
21
2. With the Judiciary
V. LOCAL GOVERNMENT
A. Four Kinds
Barangay
Municipality
City
Province
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 Vice-
Governor or the Vice-Mayor, respectively.
2. Legislature
22
3. Judiciary
2. Barangay Assembly
a. Composition:
23
iv. Registered in the list of barangay assembly
members.
b. Meetings
c. Powers
3. Mandatory Consultation
4. Fund-sourcing
The LGU may extend financial assistance to NGOs and POs for:
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: don’t go
home late at night, don’t 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.”
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.
B. Informal Laws
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:
A. Concept
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.
27
development of moral character shall receive the support
of the government.
28
V. SOME POINTS
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
32
8. Genuine change can only be realized if it springs from
below, from people and communities belonging to the
basic sectors of society.
33
3. Towards changing society
B. Views on Change
34
masses when businesses, and the economy in general, become
better.
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;.
35
Legal aid is a form of charity to Views legal aid as an instrument
the unfortunate; of change in society;
Maintains a lawyer-client Encourages self-confidence and
relationship that is overly- collective action and discourages
dependent; and over-dependence on lawyers; and
36
II
SUBSTANTIVE LAWS
I. CONCEPT
II. CHARACTERISTICS
1. Inherent
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
3. Universal/ Equal
38
9. Right to marry and to found a family, equality of rights of
women and men as to marriage and its dissolution;
10. Entering into marriage only with free and full consent;
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.
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.
CASES AND
REMEDY:
40
Marriage Physical injuries,
Grave coercion,
threats
Violation of RA
9262
Abandonment Support Violation of RA
Damages 9262 None
Legal Separation
Emotional and Legal Separation Bigamy,
Financial Abuse concubinage
Declaration of
Absolute Nullity of Threats, grave
Marriage coercion
Violation of RA
9262
Sexual violence Damages Rape, acts of
lasciviousness,
seduction,
abduction,
unjust vexation,
slander by deed,
prostitution,
sexual
harassment
JURISDICTION Involves marital Determined by
relations the imposable
(annulment, legal penalty
separation,
support, custody, MTC : < or = 6
etc.):RTC years
(Family Courts) imprisonment
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
RTC : If within
Metro Manila and
debt or damage is
> P400,000; and if
outside Metro
Manila and debt or
damage is >
P200,000
VENUE Where the plaintiff Where the crime
42
resides or where was committed
the defendant
resides or maybe
found (at the
plaintiff’s option)
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
II. REQUISITES
A. Essential
B. Formal
44
This should take place in the presence of not less than two
(2) witnesses of legal age.
Psychological Incapacity
45
Marriages between relatives (Incestuous Marriages)
15. between the surviving spouse of the adopted child and the
adopter;
16. between the adopted child and the legitimate child of the
adopter;
18. between parties where one, with the intention to marry the
other, killed the other person’s spouse, or his/her own
spouse.
V. VOIDABLE MARRIAGES
46
What constitutes fraud:
47
48
PROVISIONAL ORDERS
1. spousal support
2. child support
3. child custody
4. visitation rights
5. hold departure order
6. protection order
1. 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:
49
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 court may direct the deduction of the provisional child support
from the salary of the parent or spouse.
3. Child Custody
50
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:
4. Visitation Rights
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.
51
6. Protection Order
52
LEGAL SEPARATION
53
II. GROUNDS FOR DENYING A PETITION FOR LEGAL
SEPARATION
1. Condonation
2. Consent
3. Connivance
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
6. Prescription
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.
55
5. No decrees of legal separation shall be based on a
stipulation of facts or a confession of judgment.
Where the court has determined that there are grounds for granting
the petition for legal separation:
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.
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:
57
separation, the spouses shall express in their
manifestation whether or not they agree to revive their
former property regime or choose a new regime.
58
PSYCHOLOGICAL INCAPACITY
I. CONCEPT
1. homosexuality or lesbianism;
2. immaturity or irresponsibility;
3. alcoholism;
4. epilepsy;
5. criminality;
6. battering;
7. abandonment.
59
III. GUIDELINES IN FILING THE PETITION FOR NULLITY
a. to live together;
b. to observe mutual love;
c. to observe mutual respect;
d. to observe fidelity;
60
e. to render mutual help and support;
f. to fix the family domicile;
g. 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.
h. to procreate children
i. to jointly support the family
1. Civil Status
2. Property Relations
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.
3. Status of Children
4. Custody of 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
I. CONCEPT
1. sustenance/food;
2. dwelling;
3. clothing;
4. medical attendance;
5. 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;
6. transportation shall include expenses inI going to and from
school, or to and from place of work.
1. the spouses;
64
5. legitimate brothers and sisters, whether of full or half-
blood.
1. the spouses;
2. the descendants in the nearest degree;
3. the ascendants in the nearest degree;
4. the 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.
65
V. PROPERTIES LIABLE FOR SUPPORT
1. the spouses;
2. the descendants in the nearest degree;
3. the ascendants in the nearest degree;
4. the brothers and sisters.
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.
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
PARENTAL AUTHORITY
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.
The purpose of the law in granting parental authority are the following:
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.
70
over the child although he may be granted visitation
rights.
V. SUBSTITUTE AUTHORITY
71
a. the surviving grandparent;
b. the oldest brother or sister, over twenty-one (21)
years of age, unless unfit or disqualified;
c. the child’s actual custodian, over twenty-one (21)
years of age, unless unfit or disqualified;
d. heads of children’s homes, orphanages, and similar
institutions (after summary judicial proceedings have
been conducted) in the case of foundlings,
abandoned, neglected or abused children.
2. Nature of liability
1. schools;
2. school administrators;
3. teachers; and
4. individuals, organizations, or institutions engaged
in child care.
72
VII. PROCEDURE THAT MAY BE TAKEN AGAINST
UNDISCIPLINED CHILDREN
2. Summary Hearing
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.
73
c. those acquired by gratuitous title such as donations
or inheritance;
d. fruits and income of the property of the child; and
e. insurance proceeds.
2. Bond
The rights of the parents over the fruits and income of the child’s
property shall be limited primarily to the child’s support and
secondarily to the collective daily needs of the family.
74
d. final judgment of court divesting the party concerned
of parental authority; and
e. judicial declaration of absence or incapacity of the
person exercising parental authority.
75
XI. REVOCATION OF THE SUSPENSION OF PARENTAL
AUTHORITY
1. Habeas Corpus
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
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 husband’s decision shall prevail.
I. PROPERTY REGIMES
1. Written;
79
III. EXAMPLES OF VOID AGREEMENTS
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.
80
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.
A. Concept
81
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.
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;
82
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
83
The spouses retain the ownership, possession, administration
and enjoyment of their exclusive properties.
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.
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;
86
VII. ADMINISTRATION OF THE COMMUNITY PROPERTY AND
CONJUGAL PARTNERSHIPof the Community Property and
Conjugal Partnership
87
3. When the marriage is annulled or declared void; or
XI. 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.
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:
89
INTRODUCTION TO CRIMINAL LAW
I. INTRODUCTION
1. Generality
2. Territoriality
3. Irretrospectivity
90
II. CRIMES
A. Felony
1. Deceit (dolo)
Elements:
1. Freedom of Action
2. Intelligence
3. Criminal Intent
2. Fault (culpa)
Elements:
1. Freedom of Action
2. Intelligence
3. Criminal Negligence
B. Degrees of Execution
1. Consummated
2. 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.
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.
C. Criminal Liability
1. Principal
2. Accomplice
92
Example: A taxi drivers who allowed his vehicle to be used
to kidnap someone.
3. Accessory
A. Justifying Circumstances
93
The justifying circumstances are as follows:
a. unlawful aggression;
b. reasonable necessity of the means employed to
prevent or repel it; and
c. lack of sufficient provocation on the part of the
person defending herself.
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.
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.
94
B. Exempting Circumstances
3. Over nine (9) years of age and under fifteen (15), unless
the person acted with discernment;*
Mitigating Circumstances
95
2. Under eighteen (18) years of age or over seventy (70)
years of age;
6. Passion or obfuscation;
D. Aggravating Circumstances
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;
97
18. Unlawful entry: an entrance which is effected by a way not
intended for the purpose;
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;
E. Alternative Circumstances
a. mitigating:
c. aggravating:
2. Intoxication
98
a. mitigating: if intoxication is not habitual or
subsequent to the plan to commit the felony
murder
arson
99
CRIMES RELATED TO VIOLENCE AGAINST WOMEN
Physical Injuries:
A person wounds, beats or assaults another
100
Serious When the victim becomes
Physical insane, imbecile, blind or 6 years, 1 day to
Injuries impotent 20 years
(Art. 263,
Revised Penal *qualified: if the
Code) 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
101
Slight Physical when the victim becomes 1-30 days
Injuries incapacitated for labor for
(Art. 266) one to nine (1-9) days or
requires medical attendance
for the same period
when the injuries do not 1-30 days or a
prevent her from working fine not
nor do they require medical exceeding P200
attendance and public
censure
ill-treatment by a deed 1-10 days or a
fine not
exceeding P50
Mutilation intentional deprivation, total 12 years, 1 day
(Art. 262) or partial, of some essential to 40 years
reproductive organ
intentional deprivation of 6 years, 1 day to
any other part of the body 12 years
B. WHEN THE WOMAN DIES
Parricide when the offender kills his 12 years, 1 day
(Art. 246) father, mother, or child, to 40 years or
whether legitimate or death*
illegitimate, or legitimate
ascendant or descendant or
legitimate spouse
102
the killing is not parricide and
Murder 12 years, 1 day
is attended by any of the
(Art. 248) to 40 years or
following circumstances: death*
1. Note: *RA 9346
(An Act
Prohibiting the
treachery, taking advantage of
imposition of the
superior strength, with the aid
death penalty in
of armed men, or employing
the Philippines)
means to weaken the defense,
provided that all
or use of means or persons to
crimes
insure or afford impunity;
punishable by
death shall be
2. in consideration of a price,
reduced to
reward or promise;
reclusion
perpetua.
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;
103
Homicide the killing is neither parricide 12 years, 1 day
(Art. 249) nor murder to 20 years
104
Light Threats threatening to commit a 1 month, 1 day
(Art. 283) wrong, which is not a crime, to 6 months (if
when the demand opr no condition was
condition imposed is not imposed in
followed making the
threat)
Other Light 1. threatening another with 1 month, 1 day
Threats a weapon or drawing a to 6 months
(Art. 285) weapon during a quarrel
2. threatening another, in
the heat of anger, with some
harm or constituting a crime 1 to 10 days or a
but not persisting in acting it fine not lower
out than P200
3. orally threatening to do
another any harm not
constituting a felony
Grave preventing another by 6 months, 1 day
Coercion (Art. means of violence, force or to 6 years and a
286) intimidation from doing fine not lower
something not prohibited by than P6,000
law; or
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 1. the woman is married; 2 years, 4
(Art. 333) months, 1 day to
2. she has sexual
6 years
intercourse with a man
other than her husband
105
Concubinage 1. the man is married; 6 months, 1 day
(Art. 334) to 4 years, 2
2. he committed any of the
months
following acts:
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 1. sexual intercourse under 20 years, 1 day
(Art. 266-A, any of the following to 40 years or
RPC as circumstances: *death (see
amended by murder)
a. use of force, threat or
Republic Act intimidation;
8353)
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 2. insertion of the penis into 6 years, 1 day to
(Art. 266-A, another person’s mouth 12 years
RPC as or anal orifice under any
amended by of the circumstances
Republic Act mentioned above (rape
8353) by sexual assault);
Rape 3.insertion of any instrument 6 years, 1 day to
(Art. 266-A, into another person’s 12 years
RPC as mouth or anal orifice
amended by under any of the
Republic Act circumstances mentioned
8353) above (rape by sexual
assault);
106
Sexual A. In the wWorkplace 1 to 6 months
Harassment and/or a fine
1. sexual favor is made as a
(RA 7877) ranging from
condition in the hiring or
P10,000 to
in the employment, re-
P20,000
employment 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;
2. demanding the sexual
favor impairs the
offended party’s 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 1. no sexual intercourse but 6 months, 1 day
Lasciviousnes there is a lascivious act; to 6 years
s (Art. 336) 2. the act is done under any
of the following
circumstances:
a. use of force, threat or
intimidation;
b. offended party is
deprived of reason;
c. offended party is under
12 years of age
Consented 1. there is a lascivious act; 1 month, 1 day
Acts of to 6 months
2. there is a relationship of
Lasciviousnes trust and authority
s between the perpetrator
and the victim;
3. the offended party is
either a:
a. virgin between 12
and 18 years of
age; or
b. widow of good
reputation
Qualified 1. there is sexual 6 months, 1 day
Seduction intercourse between the to 4 years, 2
(Art. 337) perpetrator and the months
victim;
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 1. there is sexual 1 month, 1 day
Seduction intercourse between the to 6 months
(Art. 338) offender and the victim;
2. the sexual intercourse
was committed by
means of deceit (usually
a promise to marry)
Forcible 2. the person abducted is 12 years, 1 day
Abduction any woman, regardless of to 20 years
(Art. 342) age, civil status or
reputation;
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. 4 the perpetrator had
lewd designs.;if the
victim is below 12 years
of age, there is no need
for absence of consent
109
Slander by 1. there was an act 1 day to 2 years,
Deed committed; 4 months
(Art. 359) 2. act casts dishonor,
discredit or contempt
upon the offended party
(since it was witnessed by
other persons).
110
REPUBLIC ACT 7610
I. PROHIBITED ACTS
A. Child Abuse
B. Child Prostitution
111
are deemed to be children exploited in prostitution and other sexual
abuse.
112
The following are NOT included:
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.
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
The penalty for an attempt to commit child trafficking shall be two (2)
degrees lower than that prescribed for consummated child trafficking.
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.
II. PENALTY
114
The penalty prescribed shall be imposed in its maximum period in the
following cases:
The court may also impose a fine for the rehabilitation of the child
victim.
115
REPUBLIC ACT 6955
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.
I. PROHIBITED ACTS
116
marriage to foreign nationals either on a mail-order basis
or through personal introduction for a fee;
II. PENALTY
117
REPUBLIC ACT 8505
RAPE VICTIM ASSISTANCE AND PROTECTION ACT
118
and responsibilities, gender sensitivity and legal management of
rape cases;
III. INVESTIGATION
A. By the Police
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.
119
C. By the Fiscal
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
120
REPUBLIC ACT 8369
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 Court’s
jurisdiction are criminal and civil cases filed by survivors of gender-
based violence that occur between family members.
The Family Courts shall have exclusive original jurisdiction to hear and
decide the following cases:
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.
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
woman’s personhood, integrity and freedom of
movement; and
A. Restraining Order
The court may order the defendant to give support while trial is
pending which may include:
123
III. YOUTH DETENTION HOMES
IV. COUNSELLING
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 child’s and
family’s 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”
I. Definition
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;
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;
127
prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;
128
The consent of the trafficked person to the intended exploitation is
irrelevant.
129
REPUBLIC ACT 9262
“ANTI -VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT
OF 2004”
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.
130
III. Battered Woman Syndrome as a 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.
131
1. 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
2. the woman’s child, legitimate or illegitimate
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 victim’s 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
intimidation
harassment
132
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
B. Bbattering
Aact of inflicting physical harm upon the woman or her child resulting
to physical and psychological or emotional distress
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
F. e. sSexual relationship
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 woman’s her care.
134
threatening to commit or committing,
personally or through another, any acts of
violence against the woman and her child;
135
- regardless of ownership
136
1. rRespondent to surrender the
firearm or deadly weapon for
appropriate disposition by the court
2. the revocation of respondent’s
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.
137
Protection Protection Orders)
Orders) Orders)
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
unavailable at
the time of the
issuance of the
BPO.
138
WHERE TO regional trial court
If the parties
APPLY metropolitan trial court
reside in the
municipal trial court
same
municipal circuit trial court
barangay, the
with territorial jurisdiction over
dispute shall
the place of residence of the
be brought for
petitioner
settlement in
said barangay;
If a family court exists in the
place of residence of the If the parties
petitioner, the application shall reside in
be filed with that court. different
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
study, shall be
brought in the
barangay
where such
139
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.
b) description of relationships
between petitioner and
140
respondent;
c) a statement of circumstances
of the abuse;
141
PERIOD FOR
ACTING ON The TPO must The BPO must
APPLICATION: After proper be issued on be issued on the
notice to the the date of the date of the filing
respondent, filing after ex after ex parte
the court shall parte determination of
conduct the determination the basis of the
hearing on the of the basis of application.
merits of the the application.
issuance of a
PPO in one (1)
day.
The non-
appearance of
respondent
despite proper
notice, or his
lack of a
lawyer, or non-
availability 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
lawyer for the
respondent
and
immediately
142
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;
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.
PRIORITY
Ex parte and adversarial Ex parte proceedings
hearings to determine the to determine the basis
basis of application for of application for
protection order shall have protection order shall
priority over all other have priority over all
proceedings. other proceedings.
144
The court shall schedule Barangay officials
and conduct hearings on shall schedule
application for protection proceedings on
order above all other application for
hearing and if necessary protection order
suspend other proceedings above all other
in order to hear business.
applications for a
protection order.
145
a fine ranging from Five of thirty (30)
Thousand Pesos days without
(P5,000.00) to Fifty prejudice to
Thousand Pesos any other
(P50,000.00) criminal or civil
action that the
and/or imprisonment of offended party
six (6) months. may file for
any of the acts
Violation of any provision of committed.
a TPO or PPO shall:
a complaint for
constitute contempt of violation of a
court punishable under BPO must be
Rule 71 of the Rules of filed directly
Court. with:
(that has
territorial
jurisdiction over
the barangay that
issued the BPO)
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
woman syndrome shall not be disqualified from having custody of her
children.
146
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.
X. RIGHTS OF VICTIMS
XI. DAMAGES
1. actual
2. compensatory
3. moral, and
4. exemplary damages.
147
XII. HOLD-DEPARTURE ORDER
Sanction:
148
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.
XVI. 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).
A. Courts
149
2. Confidentiality rRule as to VAWC cases
3. To undergo tTraining on VAWC
4. Refrain from AcConciliating or mediating VAWC cases i.e.
VAWC cases shall not be subject to Katarungang
Pambarangay and Conciliation/Mediation proceedings in
Court.
5. Confiscation of firearms or deadly weapon of respondent to
prevent him from using it against petitioner
6. Issuance of a Permanent or Temporary Protection Order
(PPO/TPO) when applied for by petitioner
7 Court to order the immediate personal service of TPO on
respondent by the court sheriff
8 Court to schedule a hearing on the issuance of a PPO prior
to or on the date of expiration of a TPO
9 To direct the Public Attorney’s Office (PAO) to represent
petitioner in applications for protection orders if petitioner
lacks the economic means to hire counsel
10 Court to appoint a lawyer for the respondent if he appears
without counsel during the hearing on the PPO
11 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
12 As much as possible, the court shall hear the application
for PPO within one (1) day
13 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
14 Court shall ensure immediate personal service of the PPO
to the respondent
15 Court must ensure that the Notice of Sanction is printed on
the protection order it issues
16 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
17 Court shall prioritize hearings for protection order
applications
18 MTCs, MeTCs or MCTCs having territorial jurisdiction over a
barangay shall hear complaints of violations of BPOs
B. Prosecutors/Court Personnel
1. Assistance in the preparation of applications for protection
orders by court personnel.
150
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 Attorney’s 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
151
10. Barangay officials shall prioritize hearings for protection
order applications
11. 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
12. Confiscate any deadly weapon in the perpetrator’s
possession within plain view
13. Transport or escort victims to a safe place of their choice
or to a clinic or hospital
14. 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
15. To undergo tTraining on VAWC
16. To observe the Cconfidentiality rRule as to VAWC cases
D. 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 victim’s physical, emotional,
or psychological injuries
b. properly record the victim’s 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
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2. DSWD or any appropriate government agency to provide
petitioner with permanent shelter and other social services
like counselling and rehabilitation when needed
3. Filing petitions for protection orders by social workers of
the DSWD or social workers of LGUs
4. 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
5. Ensure the sustained education and training of their
personnel on the prevention of VAWC
6. DSWD to provide rehabilative couselling for perpetrators
7. To undergo tTraining on VAWC
8. To observe the cConfidentiality rRule as to VAWC cases
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LAWS ON WOMEN WORKERS
154
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.
155
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;
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:
C.
156
Maternity benefits shall be paid only for the first four (4)
deliveries or miscarriages.
E.
G.
I.
157
The following are acts of discrimination:
COMPLAINT VENUE
1. Gender Discrimination National Labor Relations
Commission (NLRC)
2. Illegal Dismissal NLRC
4. Violations of CBA National Conciliation and
provisions: Mediation Board (NCMB) [in
a. serious violations case the union decides to go on
strike], NLRC or Voluntary
Arbitration,
158
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;
159
1. It is committed by an employer, manager, supervisor or
employee having influence or moral ascendancy over
another employee or applicant; and
Hence, in order to protect the woman worker, the law mandates that it
is the duty of every employer to:
160
1. right to work as an inalienable right of all human beings;
161
B. International Covenant on Economic, Social and Cultural
Rights
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.
162
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.
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.
163
CHAPTER 3
PROCEDURAL LAWS
CRIMINAL PROCEDURE
A. To the Police
164
against the accused with the Office of the Prosecutor for preliminary
investigation.
B. To the Prosecutor
1. Inquest
165
2. Preliminary Investigation
166
III. ARRESTS
A. Definition
B. Modes of Arrest
167
An arrest may be made by a police officer or any
person authorized by law.
168
iii. What can an officer do in case the person arrested is
inside a building?
2. Warrantless Arrests
169
c. Making a warrantless arrest
170
IV. SEARCH AND SEIZURE
A. Definition
171
ii. stolen or embezzled and other proceeds or fruits
of the offense
A peace officer.
172
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?
2. Warrantless search
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.
V. BAIL
A. Kinds of Bails
174
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
recognizance, a responsible member of the community guarantees the
appearance of the accused whenever required by the court.
5. escape
175
VI. ARRAIGNMENT
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.
VII. PRE-TRIAL
A. Definition
1. plea bargaining;
2. stipulation of facts;
176
VIII. TRIAL
C. Order of trial:
a. direct examination;
b. cross examination;
d. re-cross examination.
IX. JUDGMENT
177
X. APPEAL
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.
178
FLOWCHART OF CRIMINAL PROCEDURE (Trial Court Level)
CRIME
Complaint by the
offended party
MOTION TO QUASH
PRETRIAL
Plea Bargaining
Demurrer to Evidence
sufficient? DISMISSED
JUDGMENT
Acquittal Conviction
APPEAL
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RIGHTS OF THE ACCUSED
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 state’s
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
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.
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A. Right to remain silent
B. Right to counsel
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.
181
V. DURING TRIAL
182
D. The employment of physical, psychological, or degrading
punishment against any prisoner or detainee or the use of
inadequate penal facilities under subhuman conditions shall be
dealt with by law.
183
CIVIL PROCEDURE
I. INTRODUCTION
184
d. proof of legal capacity of the parties to sue and be
sued.
B. Case Raffle
After filing the action, the case shall be raffled to determine which
branch of the court will try the case.
C. Service of Summons
2. Purpose of summons:
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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.
1. What is an Answer:
2. Functions of an Answer:
F. 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.
187
the State during the trial on the merits to prevent
suppression or fabrication of evidence.
4. Reference to mediation:
H. Trial
1. What is trial:
2. Order of trial:
c.
d. Presentation of rebuttal evidence to refute/counter
the evidence submitted by the adverse party;
a. direct examination;
b. cross examination;
c. re-direct examination;
d. re-cross examination.
188
H. Judgment
I. Appeal
1. What is an appeal?:
2. Pre-condition:
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
II. ADMISSIBILITY
A. Direct
190
B. Circumstantial/ Indirect
C. Corroborative
D. Cumulative
E. Positive
F. Negative
191
Example: “I did not see Maria’s uncle enter her room at 1
o’clock in the morning.”
2. documentary evidence
3. testimonial evidence:
192
Example: The marriage contract was lost when the
petitioner’s house was burned down, or if she cannot
locate it despite diligent efforts to find it.
ii. Establish that the original document was lost without bad
faith on the part of the party presenting it;
1. by a copy;
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.
C. Hearsay Rule
Examples:
194
When is this rule Not APPLICABLE?
2. Common reputation
3. Res Gestae
195
5. Testimony at a former proceeding
6. Dying declaration
D. Opinion Rule
196
b. It is to prove the validity of an agreement to which
s/he was an attesting witness; and
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 latter’s 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.
197
2. Make a record of the date, time, place and persons within
the proximity at the time the articles were turned over to
you;
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.
198
leader, parent or relative. The lawyers can ask questions to the
child only through the facilitator.
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.
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
II. JURISDICTION
200
2. Where one party is a public officer or employee and the dispute
relates to the performance of his or her official functions;
201
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.
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;
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 women’s 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.
203
You may use the “T.A.R.P” method (Thing, Act, Right and
Prayer).
For example:
Example:
Facts:
204
Married couple (legally married or common-law relationship? If
married, when were they married?)
Have four children (What are the children’s names? What are
their ages?)
Example: Did Juana leave the conjugal home because she had
a lover or because she was beaten up by Turing, her husband?
Example:
205
LEGAL INTERVIEW
I. DEFINITION
206
A. Knowledge of the Law
C. Adequate Preparation
A. Proper Set-up
1. The environment
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.
208
story without feeling uncomfortable, the interviewer should
stop asking questions and allow the interviewee to tell her
story at her own pace.
A. On the interviewee
209
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.
B. On the interviewer
V. NOTE-TAKING
210
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.
a. Expression of message
Attention given
Stress level
Expectations that are rooted in:
- Culture
- Personal preferences
- Experiences
211
b. Reliability of memory
c. Retrieval of memory
c. Be serious; and
d. Make sure that the witness knows her role and the
role of the paralegal.
212
AFFIDAVIT-MAKING
I. CONCEPT
213
II. THE PARTS OF AN AFFIDAVIT
2. The scilicet
“SS”
“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.
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.
4. etc.”
215
In the last paragraph of the statement, the affiant must
state the reason(s) for executing the affidavit.
(signature)
Maria Mercedes Y Fulgoso
Affiant”
8. Jurat
(signature)
NOTARY PUBLIC
Until 31st of December 200__
PTR No. ________________
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
I. DEFINITION
A. Legal Research
B. Legal Bibliography
218
II. USES OF LEGAL RESEARCH
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.
219
B. Treaties: agreements entered into by countries
C. National Laws
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.
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
G. Opinion of experts
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.
C. Research on laws
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.
This method is used when the paralegal knows the category under
which the issue at hand is placed.
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.
1. Encyclopedia
a. American Jurisprudence
b. Corpus Juris Secundum
c. Venida, Philippine Encyclopedia of Law and
Jurisprudence
2. Reference Books
1. Subject approach
2. Text of Statutes
223
d. Vital Legal Documents of the New Society
e. Official Gazette
f. Philippine Permanent and General Statutes
a. Philippine Digest
b. Republic of the Philippines Digest
c. SCRA Quick Index
d. Velayo’s Digest of Supreme Court and Court of
Appeals decisions
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.
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.
B. Within the legal system, there are many limitations in looking for
effective responses to society’s problems:
225
A. Definition
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.
ADVANTAGES DISADVANTAGES
LEGAL 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 Sometimes, the
means to success of the
encourage many tactics depend on
people to act on a the level of support
certain issue (an
effective means for Cannot ascertain
learning and that the adverse
participating by the party will listen to
members of the the organization
organization) (adverse party may
choose to ignore
Can hasten the the act)
process of looking
for answers to the
legal problem
Guide questions:
227
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