Law, Truth and Justice
By: Leon L. Asa
Do not equate the law which is but the tool, with justice that is the ultimate goal.
Justice J.B.L. Reyes
Law and Justice are inseparable.
Senior Justice Isagani A. Cruz
Law, truth, and justice are inseparable. In litigation, the facts are established from the evidence adduced by the parties; the pertinent provision of the law is applied or interpreted; and after judicious consideration of the facts and the law, judgment is rendered.
The judgment represents the justice in the case. If the judgment is in consonance with the law and established facts, there is justice; if it is in derogation of the law and established facts, there is injustice.
Law defined
Law “in its specific and concrete sense is a rule of conduct, just, obligatory, formulated by legitimate power for common observance and benefit” (Lapitan vs. Philippine Charity Sweepstakes Office, 60 O.G. 6841).
St. Thomas Aquinas in his Summa Theologica said law is “a certain rule of reason for the purpose of the common good, laid down by him who is entrusted with the welfare of the community and promulgated.”
Cicero, the great Roman jurist-writer-philosopher, said: “Law is the highest reason implanted in nature, which commands what ought to be done and forbids the opposite” (De Legibus, I, vi).
Mr. Justice Oliver Wendell Holmes said: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” (Path of the Law, 10 Harvard Law Review, 457, 460 [1897]).
In this article, law is that which is enacted by the legislature, applied or interpreted by the courts, and enforced by the executive.
Publication of the law;
ignorance of the law
Article 2 of the New Civil Code provides that “laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided.”
Article 2 of the same Code provides that “ignorance of the law excuses no one from compliance therewith.”
The publication of mandatory and prohibitory laws is essential for the citizens to know their rights, duties, and obligations under the law. Without its publication, the citizens can rightfully plead ignorance of the law.
The maxim Ignorantia legis neminem excusat (ignorance of the law excuses no one) cannot be invoked by the citizen affected by the law after such law has been duly published and has taken effect. With its publication and effectivity, the citizens are presumed to know the law.
Nobody can escape its effects by alleging that he does not know its provisions. John Selden wrote: Ignorance of the law excuses no man: not that all men know the law, but because ‘its an excuse every man will plead, and no man can tell how to confute him. (Oxford Concise Dictionary of PRO-VERBS, Second Edition, p. 135.)
Truth
Truth or veritas is conformity to reality. It is the antithesis of falsity or error.
Truth is essential to justice for without truth there can be no justice. Truth is the foundation of justice; it is justice in action.
Mr. Justice Benjamin N. Cardozo said:
The half truths of one generation tend at times to perpetuate themselves in the law as the whole truths of another, when constant repetition brings it about that qualifications, taken once for granted, are disregarded or forgotten.
Lord Coke stated, “truth is the mother of justice.” Francis Bacon immortalized Pilate’s question to Christ when he wrote, “What is truth? said jesting Pilate; and would not stay for an answer.”
In this article, truth is synony-mous to established facts.
In his book Fountain of Justice (A Study in the Natural Law), Chief Justice John C. H. Wu carefully observed: The first requisite of a just judgment is that it must be based upon the facts. In fact, the popular notion of justice is inseparably bound up with truth.
Our imagination is excited and our hearts cheered up, whenever we observe that the truth is found out in a puzzling case. Solomon was called a wise man and a just judge mainly because of his ability to find the real facts. Nothing is so agonizing as to see an innocent person condemned; it is only a little less agonizing to see a murderer go free.
For justice is owed not only to the accused, but also to the victim of another’s crime. (Wu, Fountain of Justice, p. 241.) (Emphasis supplied.)
The wisdom of King Solomon and his ability to seek out the truth was clearly demonstrated in the famous case of two women who both claimed to be the mother of the living child.
The Holy Bible narrates: two women who were harlots came to the king, and stood before him.
And one woman said, “O my lord, this woman and I dwell in the same house; and I gave birth while she was in the house. “Then it happened, the third day after I had given birth, that this woman also gave birth. And we were together; there was no one with us in the house, except the two of us in the house. “And this woman’s son died in the night, because she lay on him.
“So she arose in the middle of the night and took my son from my side, while your maidservant slept, and laid him in her bosom, and laid her dead child in my bosom. “And when I rose in the morning to nurse my son, there he was, dead. But when I had examined him in the morning, indeed, he was not my son whom I had borne.” Then the other woman said, “No! But the living one is my son, and the dead one is your son.” And the first woman said, “No! But your son is the dead one, and my son is the living one.”
Then the king said, “Bring me a sword.” So they brought a sword before the king. And the king said, “Divide the living child in two, and give half to one, and half to the other.” Then the woman whose son was living spoke to the king, for she yearned with compassion for her son; and she said, “O my lord, give her the living child, and by no means kill him!” But the other said, “Let him be neither mine nor yours, but divide him.”
So the king answered and said, “Give the first woman the living child, and by no means kill him; she is his mother.”
And all Israel heard of the judgment which the king had rendered; and they feared the king, for they saw that the wisdom of God was in him to administer justice. (The New King James Version, 1 Kings 3:16-27.)
Trial of a case is not a
gladiatorial combat
Judge Horace Stern said:
I have never thought that the trial of a case should be in the nature of a gladiatorial combat, but rather that it should consist of a scientific investigation for the determination of the truth conducted as though in a laboratory, the judge being the general director of that investigation and the lawyers his helpful assistants. Under such circumstances suppres-sion of the truth is quite as reprehensible as an actual misstatement of facts.
Truth is the most difficult to ascertain because judges cannot fathom the recesses of the conscience of witnesses and cannot divine which of the conflicting testimonies is the truth. Furthermore, there are facts which are incredible but true. In the search for truth judges can only apply the rules of evidence, logic and human experience which, though useful, are not infallible guides.
Justice
“Justice is the constant and perpetual will to allot to every man his due” (ULPIAN, Digest [Justinian] i, I, 10).
According to Daniel Webster, “justice is the greatest interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. . . .” (Funeral Oration on Mr. Justice Story, 12 September 1845.)
Justice is symbolized by blindfolded Lady Justice holding a scale with one hand and a sword with the other. The blindfold represents the impartiality with which justice must conduct itself in all controversies – regardless of the parties involved therein. The sword indicates the sanction or punish-ment that may be meted out to the guilty party.
The administration of justice should not be undertaken with mechanical rigidity but must carefully consider and weigh the conditions or equities obtaining in each case.
Since justice must be tempered with mercy, the woman emphasizes the necessity of understanding and kindness. The scale or balance which she holds suggests that justice undertakes to maintain equilibrium or fairness of judgment.
The paramount aim of the law is to establish justice.
Law is but the tool and justice is the ultimate goal, according to Mr. Justice J.B.L. Reyes.
Don Vicente J. Francisco stated that justice is an indispensable element of law in its whole-some state or condition, in the same manner that reason and conscience and free will are essential parts of the normal nature of man.
Law stripped of the element of justice is nothing more than the com-mand of the sovereign, fitting the definition of it by Tolstoy as ‘Rules established by men who have control of organized power and which are enforced by the lash, prison, and even murder.’ Rule of law and rule of sheer might cannot by any means be equated with each other. (The Rule of Law and the Judiciary in the Philippines, a Paper submitted by Don Vicente J. Francisco as Philippine Delegate to the International Congress of Jurists, Committee No. 4-Judiciary, in New Delhi, India on 07 January 1959.)
Our courts apply or interpret the law. If the law is clear, courts simply apply the law.
The first and fundamental duty of the court is the appli-cation of the law according to its express terms, inter-pretation being called for only when such literal application is impossible. (Gonzaga vs. Court of Appeals, 51 SCRA 381.)
If the law is ambiguous and its literal application would result in clear injustice, the courts will look into the spirit of the law to serve the ends of justice. In this instance, courts adopt a liberal and reasonable interpretation of the law to avoid injustice or absurdity.
Mr. Justice George A. Malcolm underscores the spirit of the law over its letter:
If we must choose between a strict and literal interpretation of the law and a liberal and reasonable interpretation of the law, if we must choose between the letter of the law which killeth and the spirit of the law which giveth life, can any one doubt what our decision will be? (Ysip vs. Municipal Council of Cabiao, 43 Phil. 251.)
It is well settled that our courts are “courts of law and equity.” A court of equity is sometimes called a “court of conscience” (Zamboanga General Utilities Inc. vs. Tore, CV-69963, 30 July 1985 cited in Moreno, Philippine Law Dictionary, Third Edition, p. 224).
The Philippine Law Dictionary defines equity as follows:
EQUITY – As a complement of legal jurisdiction, that which seeks to reach and do complete justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent so to do.
Equity regards the spirit and not the letter, the intent and not the form, the substance rather than the circumstance, as it is variously expressed by different courts. (Air Manila Inc. v. Court of Industrial Relations, L-39742, 09 June 1978; 83 SCRA 589.) (Emphasis supplied.)
In the celebrated case of Aytona vs. Castillo (4 SCRA 1, 11), the Supreme Court, in considering the equity of the case, said: “Needless to say, there are instances wherein not only strict legality, but also fairness, justice and righteousness should be taken into account.”
Equity is resorted to in order to temper the harshness of the law.
Chief Justice Lord Mansfield aptly observed: If courts of law will adhere to the mere letter of law, the great men who preside in Chancery will ever devise new ways to creep out of the lines of the law, and temper with equity. (Doe d. Perrin v. Blake, 1 Coll. Jurid. 283, 321.)
In the leading case of Alonzo vs. Intermediate Court of Appeals, (150 SCRA 259, 28 May 1987), Senior Justice Isagani A. Cruz who penned the decision aptly said that the law should never be interpreted in such a way as to cause injustice but to reflect the will of the legislature so that justice may be done. He declared:
But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never be within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice.
Thus, we interpret and apply the law not independently but in consonance with justice. Law and justice are insepa-rable, and we must keep them so.
To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar cir-cumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. “Courts are apt to err by sticking too closely to the words of a law,” so we are warned, by Justice Holmes again, “where these words import a policy that goes beyond them.” While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature.
While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to “the letter that killeth” but to “the spirit that vivifieth,” to give effect to the lawmaker’s will.
In case of conflict between the letter and spirit of the law, the latter prevails in order to serve the ends of justice – that no man should profit from his own iniquity. The following famous case is a clear illustration of this principle of justice.
Chief Justice John C. H. Wu wrote:
One of the greatest decisions in American jurispru-dence was rendered by the New York Court of Appeals in 1889 (Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188). It was an ugly case, but a beautiful decision. Palmer had made a will bequeathing his estate to his grandson.
Some time later, the testator manifested some intention to revoke it. In order to prevent him from revoking the bequest, and to obtain speedy enjoyment and immediate possession of his property, the grandson, then a boy 16 years of age, murdered him by poisoning.
He was found guilty of murder and sent to jail. But the question in the instant case was, could he inherit the property bequested to him? His argument is that the testator is dead, that his will was made in due form, and has been admitted to probate, and that therefore it must have effect according to the letter of the law.
Judge Earl, speaking for the Court, conceded that the case did fall within the letter of the law, and that “It was the intention of the lawmakers that the donees in a will should have the property given to them.” “But,” he continued, “it could never have been their intention that a donee who murdered the testator to make the will operative should have any benefit under it.”
I am happy to find that Mr. Justice Cardozo, whom many have come to regard as the greatest judge of this century, had the highest admiration for the decision of Riggs v. Palmer. Commenting upon it, he said, “Conflicting principles were there in competition for mastery. One of them prevailed, and vanquished all the others.
There was the principle of the binding effect of a will disposing of the estate of a testator in conformity with law. The principle pushed to the limit of its logic, seemed to uphold the title of the murderer.
There was the principle that civil courts may not add to the pains and penalties of crimes. That, pushed to the limit of its logic, seemed again to uphold his title. But over against these was another principle, of greater generality, its roots deeply fastened in universal sentiments of justice, the principle that no man should profit from his own inequity or take advantage of his own wrong.
The logic of this principle prevailed over the logic of others. . . . The judicial process is there in microcosm. (Wu, Fountain of Justice, pp. 176 and 177.) (Emphasis supplied.)
Truth and justice should prevail over technicalities The rules of procedure and evidence are but tools to ascertain the truth which is the basis of justice. Technicalities should never be resorted to suppress or hide the truth. Suppression of the truth is deplorable because it leads to injustice.
In the memorable words of Justice Moreland in the famous case of Alonso vs. Villamor (16 Phil. 315, 321-322), a litigation is defined as follows: . . . a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done upon the merits.
Lawsuits, unlike duels, are not to be won by a rapier’s thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested rights in technicalities. (Emphasis supplied.)
In Berkenkotter vs. Court of Appeals (53 SCRA 228), the Supreme Court held the following:
Although there is no vested right in technicalities, in meritorious cases, a liberal (not literal) interpretation of the rules becomes imperative and technicalities should not be resorted to in derogation of the intent and purpose of the rules – the proper and just determination of a litigation.
Conclusion
Courts are tasked to apply or interpret the law, to establish the truth, and to render justice. Learning and dedication are required of the judge to attain substantial justice.
It is true, indeed, that on account of the imperfections incident to human nature perfect truth may not always be attained, and it is well understood that exact justice cannot, because of the inability of courts to obtain truth in entire fullness, be always administered. We are often compelled to accept approxi-mate justice as the best that courts can do in the admi-nistration of the law. But, while the law is satisfied with approximate justice where exact justice cannot be attained, the courts should recognize no rules which stop at the first when the second is in reach. (Beck, J., Schroeder v C., R.I. & P.R. Co., 47 Iowa 375, 379 [1877].)
Daniel Webster, the great American advocate and orator, said: Justice, Sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and so long as it is duly honored, there is a foundation for social security, general happiness and the improvement and progress of our race. And whoever labors on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself, in name and fame and character, with that which is and must be as durable as the frame of human society. (Funeral Oration on Mr. Justice Story, 12 September 1845 cited in M. Frances McNamara, 2,000 Famous Legal Quotations,
Sunday, February 8, 2009
Wednesday, February 4, 2009
Articles: Filipino Human Rights Victims
Filipino Human Rights Victims:
U.S. Court of Appeals Applies
“Equity and Good Conscience”
Against the Philippine Government
by
Manuel J. Laserna Jr. *
Introduction
In the very recent decision of the US 9th Circuit Court of Appeals promul-gated on May 4, 2006 involving the multi-billion peso money claim of the human rights victims of the infamous martial-law regime of the late Philippine Pres. Ferdinand Marcos, entitled of “MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC. vs. ENC CORPORATION, et. al.”, with companion cases, docketed as Case Nos. 04-16401, etc. (consolidated), the US 9th Circuit Court of Appeals affirmed the judgment of the federal district court of Hawaii awarding US $35 Million to the Class of Human Rights Victims of the regime of Pres. Marcos.
The amount represented the value of shares of stock in Arelma S.A., a shell Panamian corporation owned by Marcos.
The Philippine National Bank “held in escrow” the shares of Arelma under separate decisions of the Supreme Courts of Switzerland and the Philippines.
Merill Lynch Pierce Fenner and Smith, Inc. (Merill Lynch) was “the custodian of the assets of Arelma”.
The decision of the US 9th Circuit Court of Appeals also held that the Republic of the Philippines and the Presidential Commission on Good Government (PCGG), which likewise claimed the aforementioned amount, were “not indispensable parties under Rule 19 (b) of the US Federal Rules of Civil Procedure”.
Parties and Proceedings
Interpleader was begun on September 21, 2000 by Merrill Lynch, the custodian of the assets of Arelma, S.A. (Arelma), now amounting to approximately $35 million. The Merrill Lynch account was found by the district court to have been established in 1992 by a deposit of $2 million by Pres. Marcos.
The Republic was made a defendant in the interpleader and successfully asserted its sovereign immunity. (In re Republic of the Philippines, 309 F.3d 1143, 1149-52, 9th Cir., 2002).
The Republic now maintains that it is an indispensable party inasmuch as “the Arelma assets were acquired by Marcos illegally and never lawfully belonged to him but from the beginning of his acquisition belonged to the Republic”. (cf. R.A. No. 1379, s. 1955, “An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceeding Therefor”).
In the 2002 appeal to the US 9th Circuit Court of Appeals, it ruled that “the Republic was a necessary party but declined to rule that the Republic was indispensable”. (Republic of the Philippines, 309 F.3d at 1153).
Mariano Pimentel was the representative of 9,539 persons who brought suit against Pres. Marcos after his fall from power. In 1996 the class of human rights victims won a judgment against the estate of Pres. Marcos of nearly $2 Billion. (In re Estate of Ferdinand E. Marcos Human Rights Litigation, 103 F.3d 767 [9th Cir. 1996]).
The US 9th Circuit Court of Appeals stated: “This class, composed of victims of a rough and rapacious ruler (Pres. Marcos), who often exercised arbitrary power, is a group whose sufferings naturally evoke sympathy”.
The district court awarded all the Arelma assets to them.
Both Arelma and the Philippine National Bank, the escrow holder of its stock, contended that “Arelma was an indispensable party and that the district court lacked jurisdiction over Arelma”.
The Estate of Roger Roxas and the Golden Buddha Corp. also claimed the Arelma assets.
According to the US 9th Circuit Court of Appeals: “The Yamashita Treasure was discovered by Roxas and was stolen from Roxas by Marcos’s men. Roxas was tortured and imprisoned, giving rise to human rights claims valued at $6 million. Roxas formed a corporation to which he assigned his rights in the treasure. The Estate of Roger Roxas and the Corporation won an initial judgment against Imelda Marcos and the Estate of Ferdinand Marcos”. (Roxas v. Marcos, 969 P.2d 1209 [Haw. 1998]).
The Hawaii Supreme Court had “allowed Roxas’ judgment against Imelda Marcos to stand, while holding that the Estate of Ferdinand Marcos could not be bound by that judgment”. (Id. At 1244).
Roxas claimed the Arelma assets “both as a creditor of Marcos and on the basis
that the $2 million used by Marcos to set up the Merrill Lynch account were most probably derived from the Yamashita Treasure and can be traced to the property stolen from Roxas”, the US 9th Circuit Court of Appeals stated.
Analysis by the US 9th Circuit Court of Appeals
[1] The case is governed by Fed. R. Civ. P. 19, according to the Court of Appeals. The first section of the rule speaks of “persons needed for just adjudication.”
The Republic falls within this section because, as the rule puts the matter, the Republic “claims an interest relating to the subject of the action and is so situated that the disposition of the action in [its] absence may (i) as a practical matter impair or impede [its] ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of [its] claimed interest.”
Such a party should be joined to the action. [Rule 19(a)]. The rule goes on to prescribe what a court should do “whenever joinder is not feasible.” In such a case, “the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.
The factors to be considered by the court include: “first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.” [Rule 19(b)].
[2] The US 9th Circuit Court of Appeals stated that “the Republic is a necessary party in this procee-ding”. That determination meant that “for a just disposition of the assets it is necessary that the Republic participate”.
In ordinary speech, “a necessary party would be an indispensable party”. Rule 19 (b), however, “distinguishes between necessary and indispensable parties”. Rule 19 (b) indicates that “indispensability must meet a higher standard than necessity”.
Indispensability “can only be determined in the context of particular litigation.” [Provident Bank v. Patterson, 390 U.S. 102, 118 (1968)].
In determining indispensability, the US 9th Circuit Court of Appeals applied the criteria supplied by Rule 19 (b) itself: “equity and good conscience”. (Id. at 109). “Only if equity and good conscience require it is a necessary party also indispensable”, the Court of Appeals stated.
The phrase “equity and good conscience” in our judicial usage is coterminous with the first opinions of the United States Supreme Court, according to the US 9th Circuit Court of Appeals, citing Hollingsworth v. Ogle, 1 U.S. 257 (1788). It added: “Undoubtedly in its earlier usage
equity brought to mind a fairness sought by the chancery courts that transcended statutory law and “good conscience” referred to an interior moral arbiter regarded as the voice of God”. [See also: Montana v. Crow Tribe of Indians, 523 U.S. 696, 707 (1998)].
According to the US 9th Circuit Court of Appeals, Rule 19 of the Federal Rules of Civil Procedure emphasizes “the flexibility that a judge may find necessary in order to achieve fairness and the moral weighing that should attend the judge’s choice of solutions, a choice to be marked by “mercy and practicality.” [Hecht v. Bowles, 321 U.S. 321, 329 (1944)].
[3] Applying “equity and good conscience”, the US 9th Circuit Court of Appeals first explained that “the general rule is that a sovereign need not forfeit its immunity to protect its assertion of indispen-sability”. It stated that that “in the usual case of interpleader, the sovereign is immune and indispen-sable and so can cause dismissal of the action”, citing US cases involving Indian tribes entitled to sovereign immunity.
In Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990), the same Court of Appeals held that “where the Makah Indian Tribe sought a reallocation of fishing rights beyond the three-mile limit, any reallocation would affect the rights of 23 other Indian tribes whose sovereign immunity prevented them being made parties”.
In the said case, “prejudice to these tribes was inevitable; no relief could be shaped and no adequate remedy could be given that would remove the prejudice”. US 9th Circuit Court of Appeals continued: “In equity and good conscience, the case had to be dismissed for want of indis-pensable parties”.
The US 9th Circuit Court of Appeals continued: “A fortiori, when the sovereign is a foreign state, prejudice to it is a powerful consi-deration. However, under the guidance of equity and good conscience, it is not the sole consideration”.
[4] The Republic’s right in the United States to reclaim the spoils of office from Marcos has been unquestioned since Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) (en banc). The Republic had set up the PCGG to effect this end. However, according to the US 9th Circuit Court of Appeals, “despite the lapse of 18 years, the Republic has not obtained a judgment” that the ill-gotten wealth of Pres. Marcos belongs to it.
According to the Court, any judgment entered in the action would not bind the Republic because it was not a party to the action, consequently, if the Court would act in the case, “the Republic would remain free to sue for the Arelma assets in a forum of its choice”.
But even if the Republic would pursue its action against Merill Lynch in New York, it would “be confronted with the New York statute of limitations of six years for its underlying claim”. In practical effect, “a judgment in this action will deprive the Republic of the Arelma assets”.
The US 9th Circuit Court of Appeals stated: “It is now eighteen years since the 1988 decision and four years since we stayed this action.
The shares of Arelma have been since 1995 in escrow at the Philippine National Bank. In all this time, the Republic has not obtained a judgment that the assets in dispute belong to it. We do not hold the Republic guilty of laches, but we do note as an equitable conside-ration that its failure to secure a judgment affecting these assets is a factor to be taken into account. Any judgment entered in this action cannot bind the Republic because it is not a party to the action. See Idaho ex rel. Evans v. Oregon, 444 U.S. 380, 386 (1980). Consequently, if we act here, the Republic would remain free to sue for the Arelma assets in a forum of its choice.”
It added: “True, unless it acts with alacrity, the assets may be distributed after judgment here and be beyond recapture. After the assets are distributed, the Republic might seek the equivalent of the assets from their holder, Merrill Lynch, in New York where they were invested. But it would be confronted with the New York statute of limitations of six years for its underlying claim. See Stafford v. International Harvester Co., 668 F.2d 142, 147 (2d Cir. 1981); NY CPLR § 213 (misappropriation of public property).”
It further stated: “Tolling by Marcos’ time in office would not help it. The generous provision for recapture of the assets provided by the new constitution of the Philippines would not trump New York law. In practical effect, a judgment in this action will deprive the Republic of the Arelma assets.”
[5] The US 9th Circuit Court of Appeals noted the presence in the action of “victims of the former president of the Republic”. The class represented by Pimentel had “secured a judgment against Marcos of almost $2 billion, which the assets in dispute will scarcely satisfy”. Nonetheless, according to the Court, “the symbolic significance of some tangible recovery is not to be disregarded, and if the recovery is distributed pro rata among the individuals, it will have monetary meaning for the poor among them”.
The Court rejected the argument that the victims were Filipino citizens and should seek redress from the Philippine Government. It stated: “The counter consideration, that most of the victims are citizens of the Philippines and should find redress from their own government, is outweighed by the fact that the Republic has not taken steps to compensate these persons who suffered outrage from the extra-legal acts of a man who was the president of the Republic.
In good conscience, can we deny some small measure of relief to the class whose members have been found to have been grievously injured and who have the final judgment of a court assessing their wrongs and fixing their remedy?”
As to the late Roger Roxas, the Court held that he “was a victim, too”. His injury “was suffered before the date used to determine the class”. He, too, “has a judgment against Marcos, which resulted in an award of damages that has been affirmed on appeal”. [Roxas v. Marcos, 109 Hawaii 83 (2005)].
The question was: “Should Roxas, an early victim of Marcos, recover more in this action than the victims comprising the class?” (Note: Roxas’s claim that the assets could be traced to the Merrill Lynch account was not accepted by the district court, according to the US 9th Circuit Court of Appeals).
The Court held that “equity could assign him no more than the pro rata share due any class member; it is fair to treat him as entitled to this much and no more”.
[6] As a final consideration, the Court noted that “the res is in the United States”. As such, it could not be finally disposed of “except by the judgment of a court in the United States”.
Guided by existing US Supreme Court doctrines on “how a lawsuit involving assets in dispute would play out in the light of the decision made on interpleader” (Provident Bank, 390 U.S. 102 at 112-117), the US 9th Circuit Court of Appeals studied certain scenarios:
Scenario one: “We dismiss this action. Roxas sues Merrill Lynch in New York for the assets asserting conversion. The Republic inter-venes, asserting its claim.
The New York court holds the Republic barred by the six year statute of limitations. The court rejects the Republic’s appeal to toll the statute when Marcos was in office, because Marcos left in 1986; the court also finds that the post-Marcos consti-tution of the Republic does not affect the New York limitation on actions. Roxas takes the assets to the extent of his judgment”.
Scenario two: “The same, except the successful plaintiff in New York is Pimentel”.
Scenario three: “The plaintiff is the Republic. The Republic is time-barred. Pimental and Roxas inter-vene and obtain their proportionate share of the assets. Realistically, we cannot envisage a lawsuit in which the Republic will prevail”.
[7] The US 9th Circuit Court of Appeals stated: “In terms of the four factors set out by Rule 19(b) as included among those ‘to be considered,’ the Republic will not be prejudiced because it has no practical likelihood of obtaining the Arelma assets and so there is no need of lessening prejudice to it; judgment rendered in its absence will be adequate; if we dismiss the action for nonjoinder of the Republic, Pimentel and Roxas will be required to sue again in New York, a needless repetition that will not benefit the Republic. No injustice is done it if it now loses what it can never effectually possess.”
In fine, the US 9th Circuit Court of Appeals accordingly AFFIRMED the questioned judgment of the federal district court of Hawaii, modified to allot to Roxas a share of the assets no greater than that of any class member.
U.S. Court of Appeals Applies
“Equity and Good Conscience”
Against the Philippine Government
by
Manuel J. Laserna Jr. *
Introduction
In the very recent decision of the US 9th Circuit Court of Appeals promul-gated on May 4, 2006 involving the multi-billion peso money claim of the human rights victims of the infamous martial-law regime of the late Philippine Pres. Ferdinand Marcos, entitled of “MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC. vs. ENC CORPORATION, et. al.”, with companion cases, docketed as Case Nos. 04-16401, etc. (consolidated), the US 9th Circuit Court of Appeals affirmed the judgment of the federal district court of Hawaii awarding US $35 Million to the Class of Human Rights Victims of the regime of Pres. Marcos.
The amount represented the value of shares of stock in Arelma S.A., a shell Panamian corporation owned by Marcos.
The Philippine National Bank “held in escrow” the shares of Arelma under separate decisions of the Supreme Courts of Switzerland and the Philippines.
Merill Lynch Pierce Fenner and Smith, Inc. (Merill Lynch) was “the custodian of the assets of Arelma”.
The decision of the US 9th Circuit Court of Appeals also held that the Republic of the Philippines and the Presidential Commission on Good Government (PCGG), which likewise claimed the aforementioned amount, were “not indispensable parties under Rule 19 (b) of the US Federal Rules of Civil Procedure”.
Parties and Proceedings
Interpleader was begun on September 21, 2000 by Merrill Lynch, the custodian of the assets of Arelma, S.A. (Arelma), now amounting to approximately $35 million. The Merrill Lynch account was found by the district court to have been established in 1992 by a deposit of $2 million by Pres. Marcos.
The Republic was made a defendant in the interpleader and successfully asserted its sovereign immunity. (In re Republic of the Philippines, 309 F.3d 1143, 1149-52, 9th Cir., 2002).
The Republic now maintains that it is an indispensable party inasmuch as “the Arelma assets were acquired by Marcos illegally and never lawfully belonged to him but from the beginning of his acquisition belonged to the Republic”. (cf. R.A. No. 1379, s. 1955, “An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceeding Therefor”).
In the 2002 appeal to the US 9th Circuit Court of Appeals, it ruled that “the Republic was a necessary party but declined to rule that the Republic was indispensable”. (Republic of the Philippines, 309 F.3d at 1153).
Mariano Pimentel was the representative of 9,539 persons who brought suit against Pres. Marcos after his fall from power. In 1996 the class of human rights victims won a judgment against the estate of Pres. Marcos of nearly $2 Billion. (In re Estate of Ferdinand E. Marcos Human Rights Litigation, 103 F.3d 767 [9th Cir. 1996]).
The US 9th Circuit Court of Appeals stated: “This class, composed of victims of a rough and rapacious ruler (Pres. Marcos), who often exercised arbitrary power, is a group whose sufferings naturally evoke sympathy”.
The district court awarded all the Arelma assets to them.
Both Arelma and the Philippine National Bank, the escrow holder of its stock, contended that “Arelma was an indispensable party and that the district court lacked jurisdiction over Arelma”.
The Estate of Roger Roxas and the Golden Buddha Corp. also claimed the Arelma assets.
According to the US 9th Circuit Court of Appeals: “The Yamashita Treasure was discovered by Roxas and was stolen from Roxas by Marcos’s men. Roxas was tortured and imprisoned, giving rise to human rights claims valued at $6 million. Roxas formed a corporation to which he assigned his rights in the treasure. The Estate of Roger Roxas and the Corporation won an initial judgment against Imelda Marcos and the Estate of Ferdinand Marcos”. (Roxas v. Marcos, 969 P.2d 1209 [Haw. 1998]).
The Hawaii Supreme Court had “allowed Roxas’ judgment against Imelda Marcos to stand, while holding that the Estate of Ferdinand Marcos could not be bound by that judgment”. (Id. At 1244).
Roxas claimed the Arelma assets “both as a creditor of Marcos and on the basis
that the $2 million used by Marcos to set up the Merrill Lynch account were most probably derived from the Yamashita Treasure and can be traced to the property stolen from Roxas”, the US 9th Circuit Court of Appeals stated.
Analysis by the US 9th Circuit Court of Appeals
[1] The case is governed by Fed. R. Civ. P. 19, according to the Court of Appeals. The first section of the rule speaks of “persons needed for just adjudication.”
The Republic falls within this section because, as the rule puts the matter, the Republic “claims an interest relating to the subject of the action and is so situated that the disposition of the action in [its] absence may (i) as a practical matter impair or impede [its] ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of [its] claimed interest.”
Such a party should be joined to the action. [Rule 19(a)]. The rule goes on to prescribe what a court should do “whenever joinder is not feasible.” In such a case, “the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.
The factors to be considered by the court include: “first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.” [Rule 19(b)].
[2] The US 9th Circuit Court of Appeals stated that “the Republic is a necessary party in this procee-ding”. That determination meant that “for a just disposition of the assets it is necessary that the Republic participate”.
In ordinary speech, “a necessary party would be an indispensable party”. Rule 19 (b), however, “distinguishes between necessary and indispensable parties”. Rule 19 (b) indicates that “indispensability must meet a higher standard than necessity”.
Indispensability “can only be determined in the context of particular litigation.” [Provident Bank v. Patterson, 390 U.S. 102, 118 (1968)].
In determining indispensability, the US 9th Circuit Court of Appeals applied the criteria supplied by Rule 19 (b) itself: “equity and good conscience”. (Id. at 109). “Only if equity and good conscience require it is a necessary party also indispensable”, the Court of Appeals stated.
The phrase “equity and good conscience” in our judicial usage is coterminous with the first opinions of the United States Supreme Court, according to the US 9th Circuit Court of Appeals, citing Hollingsworth v. Ogle, 1 U.S. 257 (1788). It added: “Undoubtedly in its earlier usage
equity brought to mind a fairness sought by the chancery courts that transcended statutory law and “good conscience” referred to an interior moral arbiter regarded as the voice of God”. [See also: Montana v. Crow Tribe of Indians, 523 U.S. 696, 707 (1998)].
According to the US 9th Circuit Court of Appeals, Rule 19 of the Federal Rules of Civil Procedure emphasizes “the flexibility that a judge may find necessary in order to achieve fairness and the moral weighing that should attend the judge’s choice of solutions, a choice to be marked by “mercy and practicality.” [Hecht v. Bowles, 321 U.S. 321, 329 (1944)].
[3] Applying “equity and good conscience”, the US 9th Circuit Court of Appeals first explained that “the general rule is that a sovereign need not forfeit its immunity to protect its assertion of indispen-sability”. It stated that that “in the usual case of interpleader, the sovereign is immune and indispen-sable and so can cause dismissal of the action”, citing US cases involving Indian tribes entitled to sovereign immunity.
In Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990), the same Court of Appeals held that “where the Makah Indian Tribe sought a reallocation of fishing rights beyond the three-mile limit, any reallocation would affect the rights of 23 other Indian tribes whose sovereign immunity prevented them being made parties”.
In the said case, “prejudice to these tribes was inevitable; no relief could be shaped and no adequate remedy could be given that would remove the prejudice”. US 9th Circuit Court of Appeals continued: “In equity and good conscience, the case had to be dismissed for want of indis-pensable parties”.
The US 9th Circuit Court of Appeals continued: “A fortiori, when the sovereign is a foreign state, prejudice to it is a powerful consi-deration. However, under the guidance of equity and good conscience, it is not the sole consideration”.
[4] The Republic’s right in the United States to reclaim the spoils of office from Marcos has been unquestioned since Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) (en banc). The Republic had set up the PCGG to effect this end. However, according to the US 9th Circuit Court of Appeals, “despite the lapse of 18 years, the Republic has not obtained a judgment” that the ill-gotten wealth of Pres. Marcos belongs to it.
According to the Court, any judgment entered in the action would not bind the Republic because it was not a party to the action, consequently, if the Court would act in the case, “the Republic would remain free to sue for the Arelma assets in a forum of its choice”.
But even if the Republic would pursue its action against Merill Lynch in New York, it would “be confronted with the New York statute of limitations of six years for its underlying claim”. In practical effect, “a judgment in this action will deprive the Republic of the Arelma assets”.
The US 9th Circuit Court of Appeals stated: “It is now eighteen years since the 1988 decision and four years since we stayed this action.
The shares of Arelma have been since 1995 in escrow at the Philippine National Bank. In all this time, the Republic has not obtained a judgment that the assets in dispute belong to it. We do not hold the Republic guilty of laches, but we do note as an equitable conside-ration that its failure to secure a judgment affecting these assets is a factor to be taken into account. Any judgment entered in this action cannot bind the Republic because it is not a party to the action. See Idaho ex rel. Evans v. Oregon, 444 U.S. 380, 386 (1980). Consequently, if we act here, the Republic would remain free to sue for the Arelma assets in a forum of its choice.”
It added: “True, unless it acts with alacrity, the assets may be distributed after judgment here and be beyond recapture. After the assets are distributed, the Republic might seek the equivalent of the assets from their holder, Merrill Lynch, in New York where they were invested. But it would be confronted with the New York statute of limitations of six years for its underlying claim. See Stafford v. International Harvester Co., 668 F.2d 142, 147 (2d Cir. 1981); NY CPLR § 213 (misappropriation of public property).”
It further stated: “Tolling by Marcos’ time in office would not help it. The generous provision for recapture of the assets provided by the new constitution of the Philippines would not trump New York law. In practical effect, a judgment in this action will deprive the Republic of the Arelma assets.”
[5] The US 9th Circuit Court of Appeals noted the presence in the action of “victims of the former president of the Republic”. The class represented by Pimentel had “secured a judgment against Marcos of almost $2 billion, which the assets in dispute will scarcely satisfy”. Nonetheless, according to the Court, “the symbolic significance of some tangible recovery is not to be disregarded, and if the recovery is distributed pro rata among the individuals, it will have monetary meaning for the poor among them”.
The Court rejected the argument that the victims were Filipino citizens and should seek redress from the Philippine Government. It stated: “The counter consideration, that most of the victims are citizens of the Philippines and should find redress from their own government, is outweighed by the fact that the Republic has not taken steps to compensate these persons who suffered outrage from the extra-legal acts of a man who was the president of the Republic.
In good conscience, can we deny some small measure of relief to the class whose members have been found to have been grievously injured and who have the final judgment of a court assessing their wrongs and fixing their remedy?”
As to the late Roger Roxas, the Court held that he “was a victim, too”. His injury “was suffered before the date used to determine the class”. He, too, “has a judgment against Marcos, which resulted in an award of damages that has been affirmed on appeal”. [Roxas v. Marcos, 109 Hawaii 83 (2005)].
The question was: “Should Roxas, an early victim of Marcos, recover more in this action than the victims comprising the class?” (Note: Roxas’s claim that the assets could be traced to the Merrill Lynch account was not accepted by the district court, according to the US 9th Circuit Court of Appeals).
The Court held that “equity could assign him no more than the pro rata share due any class member; it is fair to treat him as entitled to this much and no more”.
[6] As a final consideration, the Court noted that “the res is in the United States”. As such, it could not be finally disposed of “except by the judgment of a court in the United States”.
Guided by existing US Supreme Court doctrines on “how a lawsuit involving assets in dispute would play out in the light of the decision made on interpleader” (Provident Bank, 390 U.S. 102 at 112-117), the US 9th Circuit Court of Appeals studied certain scenarios:
Scenario one: “We dismiss this action. Roxas sues Merrill Lynch in New York for the assets asserting conversion. The Republic inter-venes, asserting its claim.
The New York court holds the Republic barred by the six year statute of limitations. The court rejects the Republic’s appeal to toll the statute when Marcos was in office, because Marcos left in 1986; the court also finds that the post-Marcos consti-tution of the Republic does not affect the New York limitation on actions. Roxas takes the assets to the extent of his judgment”.
Scenario two: “The same, except the successful plaintiff in New York is Pimentel”.
Scenario three: “The plaintiff is the Republic. The Republic is time-barred. Pimental and Roxas inter-vene and obtain their proportionate share of the assets. Realistically, we cannot envisage a lawsuit in which the Republic will prevail”.
[7] The US 9th Circuit Court of Appeals stated: “In terms of the four factors set out by Rule 19(b) as included among those ‘to be considered,’ the Republic will not be prejudiced because it has no practical likelihood of obtaining the Arelma assets and so there is no need of lessening prejudice to it; judgment rendered in its absence will be adequate; if we dismiss the action for nonjoinder of the Republic, Pimentel and Roxas will be required to sue again in New York, a needless repetition that will not benefit the Republic. No injustice is done it if it now loses what it can never effectually possess.”
In fine, the US 9th Circuit Court of Appeals accordingly AFFIRMED the questioned judgment of the federal district court of Hawaii, modified to allot to Roxas a share of the assets no greater than that of any class member.
Thursday, December 18, 2008
Supreme Court Decision: Disability Compensation for Overseas Seafarers.
Supreme Court Decision: Disability Compensation for Overseas Seafarers.
SECOND DIVISION
G.R. No. 159887
BERNARDO REMIGIO, Petitioner,
-versus-
NATIONAL LABOR RELATIONS COMMISSION, C.F. SHARP CREW MGT., INC. & NEW COMMODORE CRUISE LINE, INC.,
Respondents.
Promulgated: April 12, 2006
DECISION
PUNO, J.:
Before us is a petition for review on certiorari seeking the reversal of the decision and resolution of the Court of Appeals (CA) in CA-G.R. No. 67782 which affirmed the March 22, 2001 Resolution4 of the National Labor Relations Commission (NLRC), awarding sickness allowance of US$3,400.00 to petitioner but denying his claim for disability benefits.
The facts are undisputed.
On November 27, 1997, petitioner Bernardo Remigio entered into a Contract of Employment with respondent C.F. Sharp Crew Manage-ment, Inc. (respondent agency), for and in behalf of its foreign principal, co-respondent New Commodore Cruise Line, Ltd. (respondent principal).
The contract provided that the terms and conditions of the standard employment contract governing the employment of all seafarers, approved per Department of Labor and Employment’s Department Order No. 33 and the Philippine Overseas Employment Administration’s Memorandum Circular No. 55, both Series of 1996 (1996 POEA SEC), were to be strictly and faithfully observed.
Under the contract, petitioner was to work as Musician II on board SS “Enchanted Isle,” a vessel owned and operated by respondent principal, for ten (10) months, at a basic monthly salary of US$857.00, overtime rate of US$257.00 per month and vacation leave with pay of three (3) days per month.
After petitioner passed the pre-employment medical examination, he joined the vessel and started performing his job as a drummer in December 1997.
On March 16, 1998, while the vessel was docked at the port of Cancun, Mexico, petitioner went ashore to attend to some personal matters.
While walking, petitioner suddenly felt severe chest pain and shortness of breath. He returned to the vessel and experienced another such episode on the same evening. When his chest pain recurred the following day, he went to the vessel’s infirmary where he again suffered from chest pain.
Petitioner was brought and confined for seven (7) days at the Grand Cayman Island Hospital. His pain worsened upon physical exertion but improved with rest. Thus, he was instructed to refrain from performing any kind of physical activity and to have a complete bed rest.
He rejoined the vessel on March 24, 1998.
Upon the vessel’s arrival at the port of New Orleans, Louisiana, U.S.A., petitioner was brought to the West Jefferson Medical Center for a more thorough check-up and evaluation. Dr. S. Kedia’s “impression” was that petitioner’s chest pains were “probable secondary to severe coronary artery disease.” Dr. Armengol Porta conducted a physical examination on petitioner, including a coronary angiogram, and found that he had several blockages in his coronary arteries.
A triple coronary artery bypass was performed on petitioner on April 2, 1998 by a Dr. Everson. On April 8, 1998, petitioner was transferred to the Marine Medical Unit for observation. After twelve (12) days of confinement, petitioner’s cardiologist found him “not fit for sea duty” and recommended for him to be “[r]epatriated to home port for follow up with a cardiologist.”
He was repatriated to Manila on April 23, 1998. In a letter dated April 27, 1998, Henry P. Desiderio, the manager of the Crewing Administration and Business Development Department of respondent agency, referred petitioner to the American Outpatient Clinic for medical check-up.
On May 13, 1998, petitioner, through counsel, sent a formal communication to respondent agency demanding payment of unpaid wages, sickness allowance and permanent total disability benefits.
The demand, however, was refused.
In a letter dated June 25, 1998 addressed to the manager of respondent agency, Jose Enrique P. Desiderio, the company-designated physician, Dr. Leticia C. Abesamis, of the American Outpatient Clinic wrote, viz:
Mr. B. Remigio who had Coronary Bypass (6x) abroad last April 2, 1998 has completed his cardiac rehabilitation here at the Phil. Heart Center. Stress done on June 23, 1998 shows functional capacity at 8 METS.
Lately he has been complaining of epigastric discomfort probably from Ecotrin. He has been on ulcer regimen. He may go back to sea duty as piano player or guitar player after 8-10 more months.
He was unfit from April 27, 1998 to June 25, 1998.12 (emphases supplied)
On November 12, 1998, petitioner filed the instant complaint for (a) recovery of permanent total disability benefits amounting to US$60,000.00; (b) actual and compensatory damages for loss of earning capacity in the amount of US$154,260.00; and (c) moral and exemplary damages and attorney’s fees.
Private respondents made an offer to settle the case at US$30,000.00 as evidenced by fax letters, to which petitioner made a counter-proposal of US$40,000.00.
No agreement was reached as the parties proceeded to submit their respective position papers and supporting evidence.
In support of his claims, petitioner submitted copies of:
a) his Contract of Employment with private respondents; b) communication of respondent principal to respondent agency informing the latter about petitioner’s “heart attack,” repatriation and replacement;
c) History and Physical Report of petitioner and Procedure Report of his cardiac catheterization;
d) receipts from a drugstore and the Philippine Heart Center; e) 2D Echocardiogram-Color Doppler Report; f) filled up form of the Exercise Testing and Cardiac Rehabilitation Laboratory of the Philippine Heart Center showing the results of the tests done on petitioner; and
g) the Discharge Summary of the Marine Medical Unit.
On the other hand, private respondents submitted copies of:
a) the Contract of Employment;
b) referral letter dated April 27, 1998 of respondent agency to the American Outpatient Clinic;
c) demand letter dated May 13, 1998 of petitioner’s counsel; and d) medical report of Dr. Leticia C. Abesamis of the American Outpatient Clinic addressed to the manager of respondent agency.
On September 15, 1999, Labor Arbiter Manuel R. Caday rendered his decision, the dispositive portion of which states:
WHEREFORE, premises considered, judgment is hereby rendered ordering the respondents jointly and severally to pay complainant, his sickness allowance in the amount of US$3,400.00.
All other claims are hereby dismissed for lack of merit.
SO ORDERED.
In ruling that petitioner is not entitled to disability benefits, Labor Arbiter Caday noted that the Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted under Section 30 of the 1996 POEA SEC does not provide for the payment of compensation benefits in cases of cardiac catheterization or heart bypass.
Even assuming that it was included, he held that no medical report was presented to show that petitioner’s disability was total and permanent as to be classified under Grade 1 of the said schedule of disability. Nonetheless, petitioner’s claim for sickness allowance was granted as there was no showing that private respondents paid petitioner’s basic wages after his repatriation, as provided under Section 20, B(3) of the 1996 POEA SEC.
Petitioner was awarded US$3,400.00 as sickness allowance, computed on the basis of his monthly wage of US$850.00 multiplied by four (4) months.
On appeal by petitioner, the NLRC affirmed the decision of the Labor Arbiter in toto. Petitioner filed a motion for reconsideration of the NLRC’s resolution, to no avail.
Accordingly, he filed a petition for certiorari with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order with the CA.
On March 31, 2003, the CA dismissed the petition.
The CA likewise did not find substantial evidence to prove that the heart ailment incurred by petitioner during the term of his employment resulted to his disability, i.e., rendered him incapable of further seeking employment as a musician or to follow a substantially gainful occupation.
It noted that petitioner’s medical records abroad never mentioned that his heart ailment resulted to a disability. Petitioner’s reliance on Dr. Abesamis’s letter dated June 25, 1998 that he (petitioner) was “unfit from April 27, 1998 to June 25, 1998” was found as insufficient to prove that petitioner’s earning capacity was either lost or diminished.
The statement that petitioner “may go back to sea duty as piano player or guitar player after 8-10 more months” was likewise found as insufficient to prove that petitioner was actually “sidelined” or that it was impossible for him to work and earn as a musician during the 8-10 months that he was not on board the vessel.
Finally, it considered that heart ailment is not included among the compensable sicknesses and injuries under the 1996 POEA SEC.
Petitioner’s motion for reconsideration with the CA was denied. Hence, this petition in which petitioner prays that he be awarded US$60,000.00 as permanent total disability benefits, US$3,428.00 as sickness allowance, attorney’s fees and costs of suit.
He assigns as lone error, the following:
THE DECISION OF THE HONORABLE COURT OF APPEALS DISMISSING PETITIONER’S PETITION FOR CERTIORARI AND AFFIRMING IN TOTO THE HONORABLE PUBLIC RESPONDENT AND DENYING PETITIONER’S MOTION FOR RECONSIDERATION IS CONTRARY TO LAW.
The main issue is whether petitioner is entitled to permanent total disability benefits.
At the outset, private respondents’ contention that the instant petition must be dismissed outright for being grounded on a question of fact must be rejected.
The issue of whether petitioner is entitled to permanent total disability benefits is a question of law as it calls for the correct application of the law and jurisprudence on disability benefits to the established facts on record.
It raises the following sub-issues, to wit:
1. Whether heart ailment suffered during the term of the contract is compensable under the 1996 POEA SEC even if there is no proof of work-connection; and
2. Whether the concept of permanent total disability under the Labor Code applies to the case of a seafarer’s claim for disability benefits under the 1996 POEA SEC.
First. In ruling that petitioner is not entitled to permanent total disability benefits, the Labor Arbiter and the CA considered that “cardiac catheterization,” “heart bypass,” or “heart ailment” is not found in the Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted under Section 30 of the 1996 POEA SEC. Petitioner contends that the schedule of disability under Section 30 of the 1996 POEA SEC is not exclusive.
Heart ailment, though not listed in the schedule, is compensable. Private respondents, on the other hand, concede that while petitioner’s illness is not listed under the 1996 POEA SEC, “this does not mean that the same is not compensable.”26 However, since “heart ailment” is not listed under Section 30 of the 1996 POEA SEC, it is not an “occupational disease.”
It was therefore incumbent upon petitioner to prove by substantial evidence that his illness was work-related. Having failed to do so, he is not entitled to disability benefits.
We find merit in petitioner’s argument.
Petitioner bases his claim for disability benefits under Section 20 in relation to Sections 30 and 30-A of the 1996 POEA SEC, viz:
Sec. 20. Compensation and Benefits
x x x
B. Compensation and Benefits for Injury or Illness
The liabilities of the employer when the seafarer suffers injury or illness during the term of his contract are as follows:
x x x
5. In case of permanent total or partial disability of the seafarer during the term of employment caused by either injury or illness[,] the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 30 of [t]his Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted.
Sec. 30. SCHEDULE OF DISABILITY OR IMPEDIMENT FOR INJURIES SUFFERED AND DISEASES OR ILLNESS CONTRACTED
x x x
CHEST-TRUNK-SPINE
1. Fracture of four (4) or more ribs resulting to severe limitation of chest expansion - Gr. 6
2. Fracture of four (4) or more ribs with intercostal neuralgia resulting in moderate limitation of chest expansion - Gr. 9
3. Slight limitation of chest expansion due to simple rib functional without myositis or intercostal neuralgia - Gr. 12
4. Fracture of the dorsal or lumber spines resulting to severe or total rigidity of the trunk or total loss of lifting power of heavy objects - Gr. 6
5. Moderate rigidity or two thirds (2/3) loss of motion or lifting power of the trunk - Gr. 8
6. Slight rigidity or one third (1/3) loss of motion or lifting power of the trunk - Gr. 11
7. Injury to the spinal cord as to make walking impossible without the aid of a pair of crutches - Gr. 4
8. Injury to the spinal cord as to make walking impossible even with the aid of a pair of crutches - Gr. 1
9. Injury to the spinal cord resulting to incontinence of urine and feces - Gr. 1
x x x
NOTE: Any item in the schedule classified under Grade 1 shall be considered or shall constitute total and permanent disability.
Sec. 30-A.
SCHEDULE OF DISABILITY ALLOWANCES
Impediment Grade Impediment
1 Maximum Rate x 120.00%
2 Maximum Rate x 88.81%
3 Maximum Rate x 78.36%
4 Maximum Rate x 68.66% 5 Maximum Rate x 58.96% 6 Maximum Rate x 50.00% 7 Maximum Rate x 41.80% 8 Maximum Rate x 33.59% 9 Maximum Rate x 26.12% 10 Maximum Rate x 20.15% 11 Maximum Rate x 14.93% 12 Maximum Rate x 10.45% 13 Maximum Rate x 6.72% 14 Maximum Rate x 3.74%
Maximum Rate: US$50,000
To be paid in Philippine Currency equivalent at the exchange rate prevailing during the time of payment. (emphases supplied)
“Disability” is generally defined as “loss or impairment of a physical or mental function resulting from injury or sickness.” Clearly, “disability” is not synonymous with “sickness” or “illness,” the former being a potential effect of the latter.
The schedule in Sec. 30 of the POEA SEC is a Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted. It is not a list of compensable sicknesses. Unlike the 2000 POEA SEC, nowhere in the 1996 POEA SEC is there a list of “Occupational Diseases.”
The unqualified phrase “during the term” in Section 20(B) of the 1996 POEA SEC covers all injury or illness occurring in the lifetime of the contract. The injury or illness need not be shown to be work-related. In Sealanes Marine Services, Inc. v. NLRC, we categorically held:
The argument of petitioners that since cancer of the pancreas is not an occupational disease it was incumbent upon Capt. Arante to prove that his working conditions increased the risk of contracting the same, is not meritorious.
It must be noted that his claims arose from the stipulations of the standard format contract entered into between him and SEACORP which, per Circular No. 2, Series of 198430 of respondent POEA was required to be adopted and used by all parties to the employment of any Filipino seamen (sic) on board any ocean-going vessel.
His claims are not rooted from the provisions of the New Labor Code as amended. Significantly, under the contract, compensability of the death or illness of seam[e]n need not be dependent upon whether it is work connected or not. Therefore, proof that the working conditions increased the risk of contracting a disease or illness, is not required to entitle a seaman who dies during the term thereof by reason of such disease or illness, of the benefits stipulated thereunder which are, under Section C(2) of the same Circular No.
2, separate and distinct from, and in addition to whatever benefits which the seaman is entitled to under Philippine laws. (emphasis supplied)
This principle was reiterated in the recent case of Seagull Shipmanagement and Transport, Inc. v. NLRC.
While indeed, the Labor Code’s provisions on disability benefits under the Employees’ Compensation Commission (ECC) require the element of work-relation for an illness to be compensable, the 1996 POEA SEC giving a more liberal provision in favor of the seafarer must apply.
As a rule, stipulations in an employment contract not contrary to statutes, public policy, public order or morals have the force of law between the contracting parties.
In controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the former’s favor.
The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, in consonance with the avowed policy of the State to give maximum aid and protection of labor.
Second. Is the Labor Code’s concept of permanent total disability applicable to the case at bar? Petitioner claims to have suffered from permanent total disability as defined under Article 192(c)(1) of the Labor Code, viz:
Art. 192 (c) The following disabilities shall be deemed total and permanent:
(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules; x x x
Petitioner likewise cites Vicente v. ECC35 and Abaya, Jr. v. ECC, both of which were decided applying the Labor Code provisions on disability benefits. Private respondents, on the other hand, contend that petitioner erred in applying the definition of “permanent total disability” under the Labor Code and cases decided under the ECC as the instant case involves a contractual claim under the 1996 POEA SEC.
Again, we rule for petitioner.
The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No. 247 to “secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith” and to “promote and protect the well-being of Filipino workers overseas.”
Section 29 of the 1996 POEA SEC itself provides that “[a]ll rights and obligations of the parties to [the] Contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory.”
Even without this provision, a contract of labor is so impressed with public interest that the New Civil Code expressly subjects it to “the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.”
Thus, the Court has applied the Labor Code concept of permanent total disability to the case of seafarers. In Philippine Transmarine Carriers v. NLRC, seaman Carlos Nietes was found to be suffering from congestive heart failure and cardiomyopathy and was declared as unfit to work by the company-accredited physician.
The Court affirmed the award of disability benefits to the seaman, citing ECC v. Sanico, GSIS v. CA, and Bejerano v. ECC42 that “disability should not be understood more on its medical significance but on the loss of earning capacity.
Permanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform, or any kind of work which a person of [his] mentality and attainment could do. It does not mean absolute helplessness.”
It likewise cited Bejerano v. ECC, that in a disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.
The same principles were cited in the more recent case of Crystal Shipping, Inc. v. Natividad.
In addition, the Court cited GSIS v. Cadiz45 and Ijares v. CA46 that “permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.”
Finally.
Applying the Labor Code concept of permanent total disability to the facts on record, is petitioner entitled to permanent total disability benefit?
Petitioner contends that the certification of the company-designated physician that he may go back to sea duty as a piano or guitar player after 8-10 months even if his job was a drummer proves that he suffered from permanent total disability and thus entitled to permanent total disability benefits of US$60,000.00 under the 1996 POEA SEC.
Private respondents, on the other hand, contend that:
1) petitioner did not present any proof that he suffered from permanent total disability, i.e., that his earning power is now reduced and that he is incapable of performing remunerative employment;
2) petitioner did not present any medical certificate showing that he suffered any disability;
3) on the contrary, the company-designated physician attested that petitioner could return to further sea duty;
4) even if he could not go back to sea duty, this does not mean that his earning capacity is impaired since as a musician, he may still perform on land; and
5) having admitted that he was a heavy smoker, petitioner is disqualified under Section 20(d) of the 1996 POEA SEC from recovering compensation for any incapacity or disability he suffered.
There are three kinds of disability benefits under the Labor Code, as amended by P.D. No. 626: (1) temporary total disability, (2) permanent total disability, and (3) permanent partial disability. Section 2, Rule VII of the Implementing Rules of Book V of the Labor Code differentiates the disabilities as follows:
Sec. 2. Disability.
(a) A total disability is temporary if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days, except as otherwise provided for in Rule X of these Rules.
(b) A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X47 of these Rules.
(c) A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body. (emphasis supplied)
In Vicente v. ECC:
x x x the test of whether or not an employee suffers from ‘permanent total disability’ is a showing of the capacity of the employee to continue performing his work notwith-standing the disability he incurred.
Thus, if by reason of the injury or sickness he sustained, the employee is unable to perform his customary job for more than 120 days and he does not come within the coverage of Rule X of the Amended Rules on Employees Compensability (which, in more detailed manner, describes what constitutes temporary total disability), then the said employee undoubtedly suffers from ‘permanent total disability’ regardless of whether or not he loses the use of any part of his body. (emphases supplied)
A total disability does not require that the employee be absolutely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue her usual work and earn therefrom.
On the other hand, a total disability is considered permanent if it lasts continuously for more than 120 days.
Thus, in the very recent case of Crystal Shipping, Inc. v. Natividad, we held:
Permanent disability is inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.
Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do.
It does not mean absolute helplessness. In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.
Applying the foregoing standards, we find that petitioner suffered from permanent total disability.
It is undisputed that petitioner started to suffer chest pains on March 16, 1998 and was repatriated on April 23, 1998 after having been found as “not fit for duty.”
The medical report dated June 25, 1998 of the company-designated physician, Dr. Abesamis, establishes the following facts, viz:
a) petitioner underwent a coronary bypass on April 2, 1998; b) petitioner was “unfit” from April 27, 1998 (date of referral) to June 25, 1998 (date of medical report);
c) petitioner may not return to sea duty within 8-10 months after June 25, 1998; and d) petitioner may return to sea duty as a piano or guitar player after 8-10 months from June 25, 1998.
These facts clearly prove that petitioner was unfit to work as drummer for at least 11-13 months from the onset of his ailment on March 16, 1998 to 8-10 months after June 25, 1998.
This, by itself, already constitutes permanent total disability. What is more, private respondents were well aware that petitioner was working for them as a drummer, as proven by the communication of respondent principal to respondent agency referring to petitioner as “drummer with our enchanted isle quartet.”
Thus, the certification that petitioner may go back specifically as a piano or guitar player means that the likelihood of petitioner returning to his usual work as a drummer was practically nil. From this, it is pristine clear that petitioner’s disability is total and permanent.
Private respondents’ contention that it was not shown that it was impossible for petitioner to play the drums during the 8-10 months that he was on land is specious.
To our minds, petitioner’s unfitness to work attached to the nature of his job rather than to its place of performance.
Indeed, playing drums per se requires physical exertion, speed and endurance. It demands the performance of hitting strokes and repetitive movements that petitioner, having undergone a triple coronary bypass, has become incapacitated to do.
The possibility that petitioner could work as a drummer at sea again does not negate the claim for permanent total disability benefits.
In the same case of Crystal Shipping, Inc., we held:
Petitioners tried to contest the above findings [of permanent total disability] by showing that respondent was able to work again as a chief mate in March 2001. (citation omitted) Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years.
The law does not require that the illness should be incurable. What is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability.56 (emphasis supplied)
That the company-designated physician did not specify that petitioner suffered from any disability should not prejudice petitioner’s claim for disability benefits.
In the first place, it is well to note that it was respondent agency which referred petitioner to the American Outpatient Clinic giving only the specific instruction that the designated physician indicate in the medical report “the estimated treatment period and the exam conducted.”
Moreover, what is important is that the facts stated in the medical report clearly constitute permanent total disability as defined by law. It is well-settled that strict rules of evidence are not applicable in claims for compensation and disability benefits.
Disability should not be understood more on its medical significance but on the loss of earning capacity. As in the case of Crystal Shipping, Inc., an award of permanent total disability benefits in the petition at bar would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.
We do not agree that petitioner’s admission that he was a heavy smoker is enough ground to disqualify him from entitlement to disability compensation under Section 20(D) of the 1996 POEA SEC, viz:
Section 20.D. No compensation shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer.
We have held that a worker brings with him possible infirmities in the course of his employment and while the employer is not the insurer of the health of the employees, he takes them as he finds them and assumes the risk of liability.
In the case at bar, it is noteworthy that petitioner’s habit of smoking was not a consideration when private respondents hired petitioner. It was likewise not shown that petitioner suffered from any form of ailment prior to the heart ailment he suffered during the course of his employment with private respondents.
While smoking may contribute to the development of a heart ailment, heart ailment may be caused by other factors such as working and living under stressful conditions. Thus, private respondents’ peremptory presumption, that petitioner’s habit of smoking heavily was the willful act which caused his illness and resulting disability, without more, cannot suffice to bar petitioner’s claim for disability benefits. Ruling otherwise would run contrary to the constitutional mandate to extend full protection to labor.
Having suffered from permanent total disability, petitioner is entitled to US$60,000.00 which is the amount due for permanent total disability under Section 30-A of the 1996 POEA SEC.
As to the claim for sickness allowance, petitioner prays that private respondents be held jointly and severally liable to pay him US$3,428.00, as opposed to the award of the Labor Arbiter, as affirmed by the NLRC and the CA, of only US$3,400.00.
We find this claim warranted by the undisputed fact on record that petitioner’s basic salary is US$857.00 per month. Multiplying the 120-day sickness allowance due petitioner on the basis of the correct monthly rate of US$857.00, he should be awarded US$3,428.00 as sickness allowance.
Under Article 2208 of the New Civil Code, attorney’s fees can be recovered in actions for the recovery of wages of laborers and actions for indemnity under employer’s liability laws. Attorney’s fees is also recoverable when the defendant’s act or omission has compelled the plaintiff to incur expenses to protect his interest.
Such conditions being present in the case at bar, we find that an award of attorney’s fees is warranted.
IN VIEW WHEREOF, the decision and resolution of the Court of Appeals in CA-G.R. No. 67782 dated March 31, 2003 and August 14, 2003, respectively, are REVERSED and SET ASIDE.
Private respondents are held jointly and severally liable to pay petitioner:
a) permanent total disability benefits of US$60,000.00 at its peso equivalent at the time of actual payment;
b) sickness allowance of US$3,428.00 at its peso equivalent at the time of actual payment; and c) attorney’s fees of ten percent (10%) of the total monetary award at its peso equivalent at the time of actual payment. Costs against private respondents.
SO ORDERED.
Sandoval-Gutierrez, Corona, Azcuna, and Garcia, JJ., concur.
1 Also referred to as New Commodore Cruise Line, Ltd. in some parts of the record.
2 Dated March 31, 2003; rollo, pp. 28-35.
3 Dated August 14, 2003; Id. at 64.
4 CA rollo, pp. 33-41.
5 Id. at 293.
6 Note that said POEA SEC has been revised by DOLE Department Order No. 4, Series of 2000 (2000 POEA SEC).
7 CA rollo, p. 206.
8 Id. at 202-204.
9 Id. at 48.
10 Id. at 88.
11 Id. at 89-90.
12 Id. at 241.
13 Id. at 186-187.
14 Id. at 190.
15 Id. at 36.
16 Id. at 190-215.
17 Id. at 87-91.
18 Id. at 44-56.
19 Id. at 56.
20 Supra note 4.
21 Id. at 2-28.
22 Rollo, p. 88.
23 Id. at 116.
24 Id. at 17.
25 See Chiang Kai Shek College v. CA, G.R. No. 152988, August 24, 2004, 437 SCRA 17 1, citing Republic v. Sandiganbayan, G.R. No. 102508, January 30, 2002, 375 SCRA 145.
26 Memorandum (For the Private Respondents); rollo, p. 172.
27 Labor Code, Art. 167(n).
1 Also referred to as New Commodore Cruise Line, Ltd. in some parts of the record.
2 Dated March 31, 2003; rollo, pp. 28-35.
3 Dated August 14, 2003; Id. at 64.
4 CA rollo, pp. 33-41.
5 Id. at 293.
6 Note that said POEA SEC has been revised by DOLE Department Order No. 4, Series of 2000 (2000 POEA SEC).
7 CA rollo, p. 206.
8 Id. at 202-204.
9 Id. at 48.
10 Id. at 88.
11 Id. at 89-90.
12 Id. at 241.
13 Id. at 186-187.
14 Id. at 190.
15 Id. at 36.
16 Id. at 190-215.
17 Id. at 87-91.
18 Id. at 44-56.
19 Id. at 56.
20 Supra note 4.
21 Id. at 2-28.
22 Rollo, p. 88.
23 Id. at 116.
24 Id. at 17.
25 See Chiang Kai Shek College v. CA, G.R. No. 152988, August 24, 2004, 437 SCRA 17 1, citing Republic v. Sandiganbayan, G.R. No. 102508, January 30, 2002, 375 SCRA 145.
26 Memorandum (For the Private Respondents); rollo, p. 172.
27 Labor Code, Art. 167(n).
28 See Sec. 32-A of the 2000 POEA SEC titled “Occupational Diseases.”
29 G.R. No. 84812, October 5, 1990, 190 SCRA 337, 346-347.
30 The 1984 POEA SEC and 1996 POEA SEC are similarly worded.
31 G.R. No. 123619, June 8, 2000, 333 SCRA 236, 242.
32 See Arts. 1306 and 1308 of the New Civil Code; Delos Santos v. Jebsen Maritime, Inc., G.R. No. 154185, November 22, 2005, citing Lagunsad vs. Soto, No. L-32066, August 6, 1979, 92 SCRA 476.
33 Mayon Hotel and Restaurant v. Adana, G.R. No. 157634, May 16, 2005, 458 SCRA 609, citing Nicario v. NLRC, G.R. No. 125340, September 17, 1998, 295 SCRA 619. (citation omitted)
34 Id., citing Sarmiento v. Employees’ Compensation Commission, No. L-68648, September 24, 1986, 144 SCRA 421.
35 G.R. No. 85024, January 23, 1991, 193 SCRA 190, 195.
36 G.R. No. 64255, August 16, 1989, 176 SCRA 507, 511.
37 E.O. No. 247, Sec. 3(i) and (j).
38 Art. 1700, New Civil Code. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.
39 G.R. No. 123891, February 28, 2001, 353 SCRA 47.
40 G.R. No. 134028, December 17, 1999, 321 SCRA 268, 270-271.
41 G.R. No. 117572, January 29, 1998, 285 SCRA 430, 436 and G.R. No. 116015, July 31, 1996, 260 SCRA 133, 138.
42 G.R. No. 84777, January 30, 1992, 205 SCRA 598, 602.
43 Ibid., citing Ulibas v. Republic, No. L-43320, June 30, 1978, 83 SCRA 819 and Roma v. WCC, No. L-43675, October 28, 1977, 80 SCRA 170.
44 G.R. No. 154798, October 20, 2005.
45 G.R. No. 145093, July 8, 2003, 405 SCRA 450, 454.
46 G.R. No. 105854, August 26, 1999, 313 SCRA 141, 149-150.
47 Rule X. Temporary Total Disability
SECTION 2. Period of entitlement [to Temporary Total Disability Benefit]
(a) The income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary
total disability shall be paid. However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System; x x x
48 Supra note 35.
49 Austria v. CA, G.R. No. 146636, August 12, 2002, 387 SCRA 216, 221, citing Gonzaga v. ECC, No. L-62287, January 31, 1984, 127 SCRA 443.
50 Rule XI, Section 1(b) of the Amended Rules on Employees Compensation.
51 Supra note 44.
52 Ibid., citing GSIS v. Cadiz, supra note 45; Ijares v. CA, supra note 46.
53 Ibid., citing Philippine Transmarine Carriers, Inc. v. NLRC, supra Note 39.
54 Ibid., citing Bejerano v. ECC, supra note 43.
55 CA rollo, p. 64.
56 Citing GSIS v. Cadiz, supra note 45.
57 CA Rollo, p. 88.
58 Philippine Transmarine Carriers, Inc. v. NLRC, supra note 39, citing NFD International Manning Agents, Inc. v. NLRC, G.R. No. 107131, March 13, 1997, 269 SCRA 486, 494.
59 Supra note 39.
60 Supra note 44.
61 Seagull Shipmanagement and Transport, Inc. v. NLRC, supra, citing More Maritime Agencies, Inc. v. NLRC, G.R. No. 124927, May 18, 1999, 307 SCRA 189.
62 Contract of Employment and the factual findings of the Labor Arbiter, NLRC and CA; CA rollo, pp. 34, 36, 45 and 63, rollo, p. 29.
SECOND DIVISION
G.R. No. 159887
BERNARDO REMIGIO, Petitioner,
-versus-
NATIONAL LABOR RELATIONS COMMISSION, C.F. SHARP CREW MGT., INC. & NEW COMMODORE CRUISE LINE, INC.,
Respondents.
Promulgated: April 12, 2006
DECISION
PUNO, J.:
Before us is a petition for review on certiorari seeking the reversal of the decision and resolution of the Court of Appeals (CA) in CA-G.R. No. 67782 which affirmed the March 22, 2001 Resolution4 of the National Labor Relations Commission (NLRC), awarding sickness allowance of US$3,400.00 to petitioner but denying his claim for disability benefits.
The facts are undisputed.
On November 27, 1997, petitioner Bernardo Remigio entered into a Contract of Employment with respondent C.F. Sharp Crew Manage-ment, Inc. (respondent agency), for and in behalf of its foreign principal, co-respondent New Commodore Cruise Line, Ltd. (respondent principal).
The contract provided that the terms and conditions of the standard employment contract governing the employment of all seafarers, approved per Department of Labor and Employment’s Department Order No. 33 and the Philippine Overseas Employment Administration’s Memorandum Circular No. 55, both Series of 1996 (1996 POEA SEC), were to be strictly and faithfully observed.
Under the contract, petitioner was to work as Musician II on board SS “Enchanted Isle,” a vessel owned and operated by respondent principal, for ten (10) months, at a basic monthly salary of US$857.00, overtime rate of US$257.00 per month and vacation leave with pay of three (3) days per month.
After petitioner passed the pre-employment medical examination, he joined the vessel and started performing his job as a drummer in December 1997.
On March 16, 1998, while the vessel was docked at the port of Cancun, Mexico, petitioner went ashore to attend to some personal matters.
While walking, petitioner suddenly felt severe chest pain and shortness of breath. He returned to the vessel and experienced another such episode on the same evening. When his chest pain recurred the following day, he went to the vessel’s infirmary where he again suffered from chest pain.
Petitioner was brought and confined for seven (7) days at the Grand Cayman Island Hospital. His pain worsened upon physical exertion but improved with rest. Thus, he was instructed to refrain from performing any kind of physical activity and to have a complete bed rest.
He rejoined the vessel on March 24, 1998.
Upon the vessel’s arrival at the port of New Orleans, Louisiana, U.S.A., petitioner was brought to the West Jefferson Medical Center for a more thorough check-up and evaluation. Dr. S. Kedia’s “impression” was that petitioner’s chest pains were “probable secondary to severe coronary artery disease.” Dr. Armengol Porta conducted a physical examination on petitioner, including a coronary angiogram, and found that he had several blockages in his coronary arteries.
A triple coronary artery bypass was performed on petitioner on April 2, 1998 by a Dr. Everson. On April 8, 1998, petitioner was transferred to the Marine Medical Unit for observation. After twelve (12) days of confinement, petitioner’s cardiologist found him “not fit for sea duty” and recommended for him to be “[r]epatriated to home port for follow up with a cardiologist.”
He was repatriated to Manila on April 23, 1998. In a letter dated April 27, 1998, Henry P. Desiderio, the manager of the Crewing Administration and Business Development Department of respondent agency, referred petitioner to the American Outpatient Clinic for medical check-up.
On May 13, 1998, petitioner, through counsel, sent a formal communication to respondent agency demanding payment of unpaid wages, sickness allowance and permanent total disability benefits.
The demand, however, was refused.
In a letter dated June 25, 1998 addressed to the manager of respondent agency, Jose Enrique P. Desiderio, the company-designated physician, Dr. Leticia C. Abesamis, of the American Outpatient Clinic wrote, viz:
Mr. B. Remigio who had Coronary Bypass (6x) abroad last April 2, 1998 has completed his cardiac rehabilitation here at the Phil. Heart Center. Stress done on June 23, 1998 shows functional capacity at 8 METS.
Lately he has been complaining of epigastric discomfort probably from Ecotrin. He has been on ulcer regimen. He may go back to sea duty as piano player or guitar player after 8-10 more months.
He was unfit from April 27, 1998 to June 25, 1998.12 (emphases supplied)
On November 12, 1998, petitioner filed the instant complaint for (a) recovery of permanent total disability benefits amounting to US$60,000.00; (b) actual and compensatory damages for loss of earning capacity in the amount of US$154,260.00; and (c) moral and exemplary damages and attorney’s fees.
Private respondents made an offer to settle the case at US$30,000.00 as evidenced by fax letters, to which petitioner made a counter-proposal of US$40,000.00.
No agreement was reached as the parties proceeded to submit their respective position papers and supporting evidence.
In support of his claims, petitioner submitted copies of:
a) his Contract of Employment with private respondents; b) communication of respondent principal to respondent agency informing the latter about petitioner’s “heart attack,” repatriation and replacement;
c) History and Physical Report of petitioner and Procedure Report of his cardiac catheterization;
d) receipts from a drugstore and the Philippine Heart Center; e) 2D Echocardiogram-Color Doppler Report; f) filled up form of the Exercise Testing and Cardiac Rehabilitation Laboratory of the Philippine Heart Center showing the results of the tests done on petitioner; and
g) the Discharge Summary of the Marine Medical Unit.
On the other hand, private respondents submitted copies of:
a) the Contract of Employment;
b) referral letter dated April 27, 1998 of respondent agency to the American Outpatient Clinic;
c) demand letter dated May 13, 1998 of petitioner’s counsel; and d) medical report of Dr. Leticia C. Abesamis of the American Outpatient Clinic addressed to the manager of respondent agency.
On September 15, 1999, Labor Arbiter Manuel R. Caday rendered his decision, the dispositive portion of which states:
WHEREFORE, premises considered, judgment is hereby rendered ordering the respondents jointly and severally to pay complainant, his sickness allowance in the amount of US$3,400.00.
All other claims are hereby dismissed for lack of merit.
SO ORDERED.
In ruling that petitioner is not entitled to disability benefits, Labor Arbiter Caday noted that the Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted under Section 30 of the 1996 POEA SEC does not provide for the payment of compensation benefits in cases of cardiac catheterization or heart bypass.
Even assuming that it was included, he held that no medical report was presented to show that petitioner’s disability was total and permanent as to be classified under Grade 1 of the said schedule of disability. Nonetheless, petitioner’s claim for sickness allowance was granted as there was no showing that private respondents paid petitioner’s basic wages after his repatriation, as provided under Section 20, B(3) of the 1996 POEA SEC.
Petitioner was awarded US$3,400.00 as sickness allowance, computed on the basis of his monthly wage of US$850.00 multiplied by four (4) months.
On appeal by petitioner, the NLRC affirmed the decision of the Labor Arbiter in toto. Petitioner filed a motion for reconsideration of the NLRC’s resolution, to no avail.
Accordingly, he filed a petition for certiorari with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order with the CA.
On March 31, 2003, the CA dismissed the petition.
The CA likewise did not find substantial evidence to prove that the heart ailment incurred by petitioner during the term of his employment resulted to his disability, i.e., rendered him incapable of further seeking employment as a musician or to follow a substantially gainful occupation.
It noted that petitioner’s medical records abroad never mentioned that his heart ailment resulted to a disability. Petitioner’s reliance on Dr. Abesamis’s letter dated June 25, 1998 that he (petitioner) was “unfit from April 27, 1998 to June 25, 1998” was found as insufficient to prove that petitioner’s earning capacity was either lost or diminished.
The statement that petitioner “may go back to sea duty as piano player or guitar player after 8-10 more months” was likewise found as insufficient to prove that petitioner was actually “sidelined” or that it was impossible for him to work and earn as a musician during the 8-10 months that he was not on board the vessel.
Finally, it considered that heart ailment is not included among the compensable sicknesses and injuries under the 1996 POEA SEC.
Petitioner’s motion for reconsideration with the CA was denied. Hence, this petition in which petitioner prays that he be awarded US$60,000.00 as permanent total disability benefits, US$3,428.00 as sickness allowance, attorney’s fees and costs of suit.
He assigns as lone error, the following:
THE DECISION OF THE HONORABLE COURT OF APPEALS DISMISSING PETITIONER’S PETITION FOR CERTIORARI AND AFFIRMING IN TOTO THE HONORABLE PUBLIC RESPONDENT AND DENYING PETITIONER’S MOTION FOR RECONSIDERATION IS CONTRARY TO LAW.
The main issue is whether petitioner is entitled to permanent total disability benefits.
At the outset, private respondents’ contention that the instant petition must be dismissed outright for being grounded on a question of fact must be rejected.
The issue of whether petitioner is entitled to permanent total disability benefits is a question of law as it calls for the correct application of the law and jurisprudence on disability benefits to the established facts on record.
It raises the following sub-issues, to wit:
1. Whether heart ailment suffered during the term of the contract is compensable under the 1996 POEA SEC even if there is no proof of work-connection; and
2. Whether the concept of permanent total disability under the Labor Code applies to the case of a seafarer’s claim for disability benefits under the 1996 POEA SEC.
First. In ruling that petitioner is not entitled to permanent total disability benefits, the Labor Arbiter and the CA considered that “cardiac catheterization,” “heart bypass,” or “heart ailment” is not found in the Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted under Section 30 of the 1996 POEA SEC. Petitioner contends that the schedule of disability under Section 30 of the 1996 POEA SEC is not exclusive.
Heart ailment, though not listed in the schedule, is compensable. Private respondents, on the other hand, concede that while petitioner’s illness is not listed under the 1996 POEA SEC, “this does not mean that the same is not compensable.”26 However, since “heart ailment” is not listed under Section 30 of the 1996 POEA SEC, it is not an “occupational disease.”
It was therefore incumbent upon petitioner to prove by substantial evidence that his illness was work-related. Having failed to do so, he is not entitled to disability benefits.
We find merit in petitioner’s argument.
Petitioner bases his claim for disability benefits under Section 20 in relation to Sections 30 and 30-A of the 1996 POEA SEC, viz:
Sec. 20. Compensation and Benefits
x x x
B. Compensation and Benefits for Injury or Illness
The liabilities of the employer when the seafarer suffers injury or illness during the term of his contract are as follows:
x x x
5. In case of permanent total or partial disability of the seafarer during the term of employment caused by either injury or illness[,] the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 30 of [t]his Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted.
Sec. 30. SCHEDULE OF DISABILITY OR IMPEDIMENT FOR INJURIES SUFFERED AND DISEASES OR ILLNESS CONTRACTED
x x x
CHEST-TRUNK-SPINE
1. Fracture of four (4) or more ribs resulting to severe limitation of chest expansion - Gr. 6
2. Fracture of four (4) or more ribs with intercostal neuralgia resulting in moderate limitation of chest expansion - Gr. 9
3. Slight limitation of chest expansion due to simple rib functional without myositis or intercostal neuralgia - Gr. 12
4. Fracture of the dorsal or lumber spines resulting to severe or total rigidity of the trunk or total loss of lifting power of heavy objects - Gr. 6
5. Moderate rigidity or two thirds (2/3) loss of motion or lifting power of the trunk - Gr. 8
6. Slight rigidity or one third (1/3) loss of motion or lifting power of the trunk - Gr. 11
7. Injury to the spinal cord as to make walking impossible without the aid of a pair of crutches - Gr. 4
8. Injury to the spinal cord as to make walking impossible even with the aid of a pair of crutches - Gr. 1
9. Injury to the spinal cord resulting to incontinence of urine and feces - Gr. 1
x x x
NOTE: Any item in the schedule classified under Grade 1 shall be considered or shall constitute total and permanent disability.
Sec. 30-A.
SCHEDULE OF DISABILITY ALLOWANCES
Impediment Grade Impediment
1 Maximum Rate x 120.00%
2 Maximum Rate x 88.81%
3 Maximum Rate x 78.36%
4 Maximum Rate x 68.66% 5 Maximum Rate x 58.96% 6 Maximum Rate x 50.00% 7 Maximum Rate x 41.80% 8 Maximum Rate x 33.59% 9 Maximum Rate x 26.12% 10 Maximum Rate x 20.15% 11 Maximum Rate x 14.93% 12 Maximum Rate x 10.45% 13 Maximum Rate x 6.72% 14 Maximum Rate x 3.74%
Maximum Rate: US$50,000
To be paid in Philippine Currency equivalent at the exchange rate prevailing during the time of payment. (emphases supplied)
“Disability” is generally defined as “loss or impairment of a physical or mental function resulting from injury or sickness.” Clearly, “disability” is not synonymous with “sickness” or “illness,” the former being a potential effect of the latter.
The schedule in Sec. 30 of the POEA SEC is a Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted. It is not a list of compensable sicknesses. Unlike the 2000 POEA SEC, nowhere in the 1996 POEA SEC is there a list of “Occupational Diseases.”
The unqualified phrase “during the term” in Section 20(B) of the 1996 POEA SEC covers all injury or illness occurring in the lifetime of the contract. The injury or illness need not be shown to be work-related. In Sealanes Marine Services, Inc. v. NLRC, we categorically held:
The argument of petitioners that since cancer of the pancreas is not an occupational disease it was incumbent upon Capt. Arante to prove that his working conditions increased the risk of contracting the same, is not meritorious.
It must be noted that his claims arose from the stipulations of the standard format contract entered into between him and SEACORP which, per Circular No. 2, Series of 198430 of respondent POEA was required to be adopted and used by all parties to the employment of any Filipino seamen (sic) on board any ocean-going vessel.
His claims are not rooted from the provisions of the New Labor Code as amended. Significantly, under the contract, compensability of the death or illness of seam[e]n need not be dependent upon whether it is work connected or not. Therefore, proof that the working conditions increased the risk of contracting a disease or illness, is not required to entitle a seaman who dies during the term thereof by reason of such disease or illness, of the benefits stipulated thereunder which are, under Section C(2) of the same Circular No.
2, separate and distinct from, and in addition to whatever benefits which the seaman is entitled to under Philippine laws. (emphasis supplied)
This principle was reiterated in the recent case of Seagull Shipmanagement and Transport, Inc. v. NLRC.
While indeed, the Labor Code’s provisions on disability benefits under the Employees’ Compensation Commission (ECC) require the element of work-relation for an illness to be compensable, the 1996 POEA SEC giving a more liberal provision in favor of the seafarer must apply.
As a rule, stipulations in an employment contract not contrary to statutes, public policy, public order or morals have the force of law between the contracting parties.
In controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the former’s favor.
The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, in consonance with the avowed policy of the State to give maximum aid and protection of labor.
Second. Is the Labor Code’s concept of permanent total disability applicable to the case at bar? Petitioner claims to have suffered from permanent total disability as defined under Article 192(c)(1) of the Labor Code, viz:
Art. 192 (c) The following disabilities shall be deemed total and permanent:
(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules; x x x
Petitioner likewise cites Vicente v. ECC35 and Abaya, Jr. v. ECC, both of which were decided applying the Labor Code provisions on disability benefits. Private respondents, on the other hand, contend that petitioner erred in applying the definition of “permanent total disability” under the Labor Code and cases decided under the ECC as the instant case involves a contractual claim under the 1996 POEA SEC.
Again, we rule for petitioner.
The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No. 247 to “secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith” and to “promote and protect the well-being of Filipino workers overseas.”
Section 29 of the 1996 POEA SEC itself provides that “[a]ll rights and obligations of the parties to [the] Contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory.”
Even without this provision, a contract of labor is so impressed with public interest that the New Civil Code expressly subjects it to “the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.”
Thus, the Court has applied the Labor Code concept of permanent total disability to the case of seafarers. In Philippine Transmarine Carriers v. NLRC, seaman Carlos Nietes was found to be suffering from congestive heart failure and cardiomyopathy and was declared as unfit to work by the company-accredited physician.
The Court affirmed the award of disability benefits to the seaman, citing ECC v. Sanico, GSIS v. CA, and Bejerano v. ECC42 that “disability should not be understood more on its medical significance but on the loss of earning capacity.
Permanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform, or any kind of work which a person of [his] mentality and attainment could do. It does not mean absolute helplessness.”
It likewise cited Bejerano v. ECC, that in a disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.
The same principles were cited in the more recent case of Crystal Shipping, Inc. v. Natividad.
In addition, the Court cited GSIS v. Cadiz45 and Ijares v. CA46 that “permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.”
Finally.
Applying the Labor Code concept of permanent total disability to the facts on record, is petitioner entitled to permanent total disability benefit?
Petitioner contends that the certification of the company-designated physician that he may go back to sea duty as a piano or guitar player after 8-10 months even if his job was a drummer proves that he suffered from permanent total disability and thus entitled to permanent total disability benefits of US$60,000.00 under the 1996 POEA SEC.
Private respondents, on the other hand, contend that:
1) petitioner did not present any proof that he suffered from permanent total disability, i.e., that his earning power is now reduced and that he is incapable of performing remunerative employment;
2) petitioner did not present any medical certificate showing that he suffered any disability;
3) on the contrary, the company-designated physician attested that petitioner could return to further sea duty;
4) even if he could not go back to sea duty, this does not mean that his earning capacity is impaired since as a musician, he may still perform on land; and
5) having admitted that he was a heavy smoker, petitioner is disqualified under Section 20(d) of the 1996 POEA SEC from recovering compensation for any incapacity or disability he suffered.
There are three kinds of disability benefits under the Labor Code, as amended by P.D. No. 626: (1) temporary total disability, (2) permanent total disability, and (3) permanent partial disability. Section 2, Rule VII of the Implementing Rules of Book V of the Labor Code differentiates the disabilities as follows:
Sec. 2. Disability.
(a) A total disability is temporary if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days, except as otherwise provided for in Rule X of these Rules.
(b) A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X47 of these Rules.
(c) A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body. (emphasis supplied)
In Vicente v. ECC:
x x x the test of whether or not an employee suffers from ‘permanent total disability’ is a showing of the capacity of the employee to continue performing his work notwith-standing the disability he incurred.
Thus, if by reason of the injury or sickness he sustained, the employee is unable to perform his customary job for more than 120 days and he does not come within the coverage of Rule X of the Amended Rules on Employees Compensability (which, in more detailed manner, describes what constitutes temporary total disability), then the said employee undoubtedly suffers from ‘permanent total disability’ regardless of whether or not he loses the use of any part of his body. (emphases supplied)
A total disability does not require that the employee be absolutely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue her usual work and earn therefrom.
On the other hand, a total disability is considered permanent if it lasts continuously for more than 120 days.
Thus, in the very recent case of Crystal Shipping, Inc. v. Natividad, we held:
Permanent disability is inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.
Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do.
It does not mean absolute helplessness. In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.
Applying the foregoing standards, we find that petitioner suffered from permanent total disability.
It is undisputed that petitioner started to suffer chest pains on March 16, 1998 and was repatriated on April 23, 1998 after having been found as “not fit for duty.”
The medical report dated June 25, 1998 of the company-designated physician, Dr. Abesamis, establishes the following facts, viz:
a) petitioner underwent a coronary bypass on April 2, 1998; b) petitioner was “unfit” from April 27, 1998 (date of referral) to June 25, 1998 (date of medical report);
c) petitioner may not return to sea duty within 8-10 months after June 25, 1998; and d) petitioner may return to sea duty as a piano or guitar player after 8-10 months from June 25, 1998.
These facts clearly prove that petitioner was unfit to work as drummer for at least 11-13 months from the onset of his ailment on March 16, 1998 to 8-10 months after June 25, 1998.
This, by itself, already constitutes permanent total disability. What is more, private respondents were well aware that petitioner was working for them as a drummer, as proven by the communication of respondent principal to respondent agency referring to petitioner as “drummer with our enchanted isle quartet.”
Thus, the certification that petitioner may go back specifically as a piano or guitar player means that the likelihood of petitioner returning to his usual work as a drummer was practically nil. From this, it is pristine clear that petitioner’s disability is total and permanent.
Private respondents’ contention that it was not shown that it was impossible for petitioner to play the drums during the 8-10 months that he was on land is specious.
To our minds, petitioner’s unfitness to work attached to the nature of his job rather than to its place of performance.
Indeed, playing drums per se requires physical exertion, speed and endurance. It demands the performance of hitting strokes and repetitive movements that petitioner, having undergone a triple coronary bypass, has become incapacitated to do.
The possibility that petitioner could work as a drummer at sea again does not negate the claim for permanent total disability benefits.
In the same case of Crystal Shipping, Inc., we held:
Petitioners tried to contest the above findings [of permanent total disability] by showing that respondent was able to work again as a chief mate in March 2001. (citation omitted) Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years.
The law does not require that the illness should be incurable. What is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability.56 (emphasis supplied)
That the company-designated physician did not specify that petitioner suffered from any disability should not prejudice petitioner’s claim for disability benefits.
In the first place, it is well to note that it was respondent agency which referred petitioner to the American Outpatient Clinic giving only the specific instruction that the designated physician indicate in the medical report “the estimated treatment period and the exam conducted.”
Moreover, what is important is that the facts stated in the medical report clearly constitute permanent total disability as defined by law. It is well-settled that strict rules of evidence are not applicable in claims for compensation and disability benefits.
Disability should not be understood more on its medical significance but on the loss of earning capacity. As in the case of Crystal Shipping, Inc., an award of permanent total disability benefits in the petition at bar would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.
We do not agree that petitioner’s admission that he was a heavy smoker is enough ground to disqualify him from entitlement to disability compensation under Section 20(D) of the 1996 POEA SEC, viz:
Section 20.D. No compensation shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer.
We have held that a worker brings with him possible infirmities in the course of his employment and while the employer is not the insurer of the health of the employees, he takes them as he finds them and assumes the risk of liability.
In the case at bar, it is noteworthy that petitioner’s habit of smoking was not a consideration when private respondents hired petitioner. It was likewise not shown that petitioner suffered from any form of ailment prior to the heart ailment he suffered during the course of his employment with private respondents.
While smoking may contribute to the development of a heart ailment, heart ailment may be caused by other factors such as working and living under stressful conditions. Thus, private respondents’ peremptory presumption, that petitioner’s habit of smoking heavily was the willful act which caused his illness and resulting disability, without more, cannot suffice to bar petitioner’s claim for disability benefits. Ruling otherwise would run contrary to the constitutional mandate to extend full protection to labor.
Having suffered from permanent total disability, petitioner is entitled to US$60,000.00 which is the amount due for permanent total disability under Section 30-A of the 1996 POEA SEC.
As to the claim for sickness allowance, petitioner prays that private respondents be held jointly and severally liable to pay him US$3,428.00, as opposed to the award of the Labor Arbiter, as affirmed by the NLRC and the CA, of only US$3,400.00.
We find this claim warranted by the undisputed fact on record that petitioner’s basic salary is US$857.00 per month. Multiplying the 120-day sickness allowance due petitioner on the basis of the correct monthly rate of US$857.00, he should be awarded US$3,428.00 as sickness allowance.
Under Article 2208 of the New Civil Code, attorney’s fees can be recovered in actions for the recovery of wages of laborers and actions for indemnity under employer’s liability laws. Attorney’s fees is also recoverable when the defendant’s act or omission has compelled the plaintiff to incur expenses to protect his interest.
Such conditions being present in the case at bar, we find that an award of attorney’s fees is warranted.
IN VIEW WHEREOF, the decision and resolution of the Court of Appeals in CA-G.R. No. 67782 dated March 31, 2003 and August 14, 2003, respectively, are REVERSED and SET ASIDE.
Private respondents are held jointly and severally liable to pay petitioner:
a) permanent total disability benefits of US$60,000.00 at its peso equivalent at the time of actual payment;
b) sickness allowance of US$3,428.00 at its peso equivalent at the time of actual payment; and c) attorney’s fees of ten percent (10%) of the total monetary award at its peso equivalent at the time of actual payment. Costs against private respondents.
SO ORDERED.
Sandoval-Gutierrez, Corona, Azcuna, and Garcia, JJ., concur.
1 Also referred to as New Commodore Cruise Line, Ltd. in some parts of the record.
2 Dated March 31, 2003; rollo, pp. 28-35.
3 Dated August 14, 2003; Id. at 64.
4 CA rollo, pp. 33-41.
5 Id. at 293.
6 Note that said POEA SEC has been revised by DOLE Department Order No. 4, Series of 2000 (2000 POEA SEC).
7 CA rollo, p. 206.
8 Id. at 202-204.
9 Id. at 48.
10 Id. at 88.
11 Id. at 89-90.
12 Id. at 241.
13 Id. at 186-187.
14 Id. at 190.
15 Id. at 36.
16 Id. at 190-215.
17 Id. at 87-91.
18 Id. at 44-56.
19 Id. at 56.
20 Supra note 4.
21 Id. at 2-28.
22 Rollo, p. 88.
23 Id. at 116.
24 Id. at 17.
25 See Chiang Kai Shek College v. CA, G.R. No. 152988, August 24, 2004, 437 SCRA 17 1, citing Republic v. Sandiganbayan, G.R. No. 102508, January 30, 2002, 375 SCRA 145.
26 Memorandum (For the Private Respondents); rollo, p. 172.
27 Labor Code, Art. 167(n).
1 Also referred to as New Commodore Cruise Line, Ltd. in some parts of the record.
2 Dated March 31, 2003; rollo, pp. 28-35.
3 Dated August 14, 2003; Id. at 64.
4 CA rollo, pp. 33-41.
5 Id. at 293.
6 Note that said POEA SEC has been revised by DOLE Department Order No. 4, Series of 2000 (2000 POEA SEC).
7 CA rollo, p. 206.
8 Id. at 202-204.
9 Id. at 48.
10 Id. at 88.
11 Id. at 89-90.
12 Id. at 241.
13 Id. at 186-187.
14 Id. at 190.
15 Id. at 36.
16 Id. at 190-215.
17 Id. at 87-91.
18 Id. at 44-56.
19 Id. at 56.
20 Supra note 4.
21 Id. at 2-28.
22 Rollo, p. 88.
23 Id. at 116.
24 Id. at 17.
25 See Chiang Kai Shek College v. CA, G.R. No. 152988, August 24, 2004, 437 SCRA 17 1, citing Republic v. Sandiganbayan, G.R. No. 102508, January 30, 2002, 375 SCRA 145.
26 Memorandum (For the Private Respondents); rollo, p. 172.
27 Labor Code, Art. 167(n).
28 See Sec. 32-A of the 2000 POEA SEC titled “Occupational Diseases.”
29 G.R. No. 84812, October 5, 1990, 190 SCRA 337, 346-347.
30 The 1984 POEA SEC and 1996 POEA SEC are similarly worded.
31 G.R. No. 123619, June 8, 2000, 333 SCRA 236, 242.
32 See Arts. 1306 and 1308 of the New Civil Code; Delos Santos v. Jebsen Maritime, Inc., G.R. No. 154185, November 22, 2005, citing Lagunsad vs. Soto, No. L-32066, August 6, 1979, 92 SCRA 476.
33 Mayon Hotel and Restaurant v. Adana, G.R. No. 157634, May 16, 2005, 458 SCRA 609, citing Nicario v. NLRC, G.R. No. 125340, September 17, 1998, 295 SCRA 619. (citation omitted)
34 Id., citing Sarmiento v. Employees’ Compensation Commission, No. L-68648, September 24, 1986, 144 SCRA 421.
35 G.R. No. 85024, January 23, 1991, 193 SCRA 190, 195.
36 G.R. No. 64255, August 16, 1989, 176 SCRA 507, 511.
37 E.O. No. 247, Sec. 3(i) and (j).
38 Art. 1700, New Civil Code. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.
39 G.R. No. 123891, February 28, 2001, 353 SCRA 47.
40 G.R. No. 134028, December 17, 1999, 321 SCRA 268, 270-271.
41 G.R. No. 117572, January 29, 1998, 285 SCRA 430, 436 and G.R. No. 116015, July 31, 1996, 260 SCRA 133, 138.
42 G.R. No. 84777, January 30, 1992, 205 SCRA 598, 602.
43 Ibid., citing Ulibas v. Republic, No. L-43320, June 30, 1978, 83 SCRA 819 and Roma v. WCC, No. L-43675, October 28, 1977, 80 SCRA 170.
44 G.R. No. 154798, October 20, 2005.
45 G.R. No. 145093, July 8, 2003, 405 SCRA 450, 454.
46 G.R. No. 105854, August 26, 1999, 313 SCRA 141, 149-150.
47 Rule X. Temporary Total Disability
SECTION 2. Period of entitlement [to Temporary Total Disability Benefit]
(a) The income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary
total disability shall be paid. However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System; x x x
48 Supra note 35.
49 Austria v. CA, G.R. No. 146636, August 12, 2002, 387 SCRA 216, 221, citing Gonzaga v. ECC, No. L-62287, January 31, 1984, 127 SCRA 443.
50 Rule XI, Section 1(b) of the Amended Rules on Employees Compensation.
51 Supra note 44.
52 Ibid., citing GSIS v. Cadiz, supra note 45; Ijares v. CA, supra note 46.
53 Ibid., citing Philippine Transmarine Carriers, Inc. v. NLRC, supra Note 39.
54 Ibid., citing Bejerano v. ECC, supra note 43.
55 CA rollo, p. 64.
56 Citing GSIS v. Cadiz, supra note 45.
57 CA Rollo, p. 88.
58 Philippine Transmarine Carriers, Inc. v. NLRC, supra note 39, citing NFD International Manning Agents, Inc. v. NLRC, G.R. No. 107131, March 13, 1997, 269 SCRA 486, 494.
59 Supra note 39.
60 Supra note 44.
61 Seagull Shipmanagement and Transport, Inc. v. NLRC, supra, citing More Maritime Agencies, Inc. v. NLRC, G.R. No. 124927, May 18, 1999, 307 SCRA 189.
62 Contract of Employment and the factual findings of the Labor Arbiter, NLRC and CA; CA rollo, pp. 34, 36, 45 and 63, rollo, p. 29.
Sunday, December 14, 2008
SEC Memorandum: Circular 1, 2 & 3
SEC memorandum
circular no. 1
Series of 2006
Guidelines on the Filing of Functional Currency Financial Statements
The Commission is its meeting of January 10, 2006, resolved to issue this Circular to guide companies whose functional currency (i.e., the currency of the primary economic environment in which the company operates) is other than the Philippine peso and which company file financial statements expressed in that functional currency.
1. The company’s determination of its functional currency shall be made in accordance with PAS
21, The Effects of Changes in Foreign Exchange Rates.
2. A company that files for the first time financial statements denominated in a currency other than Philippine pesos (“functional currency FS”) for statutory reporting purposes shall notify the Commission that it shall file such financial statements, with an assessment that supports the determination of its functional currency. Please see attached Annex “A” for an illustrative notification.
3. The notification shall be signed by the company’s chief executive officer and chief financial officer. It shall be accompanied by a report from the company’s external auditor indicating his/her assessment that the company’s determination of its functional currency was made in accordance with PAS 21. Please see attached Annex “B” for an illustrative report of the external auditor.
4. A company whose functional currency is other than the Philippine peso that chooses to present financial statements expressed in Philippine peso shall submit financial statements expressed in both its functional currency and in Philippine peso. The company shall (a) translate its functional currency financial state-ments into Philippine pesos in accordance with PAS 21 and (b) submit a notification to the Commission in accordance with paragraphs (2) and (3) above.
5. The notification shall be filed within forty-five (45)days after the end of the year in which the company intends to initially present a functional currency FS.
6. In the case of a change in functional currency, the company shall file a notice indicating the proposed change including the reasons thereof within thirty (30) days after the end of year in which the change occurred.
The notice shall be signed and accompanied by a report of the company’s external auditor in the manner described in paragraph (3) above.
The submission of the said notice is without prejudice to any objection that the Commission may raise on the proposed change taking into account the previous representations by the company and the principles set forth under PAS 21.
This Circular shall be published in two (2) newspapers of general circulation in the Philippines and shall take effect fifteen (15) days after the date of the last publication.
Failure to comply with the foregoing Guidelines shall render the financial statements of the company non-compliant with the applicable rules and shall subject the company concerned to the appropriate sanctions provided for in the existing laws.
Signed on behalf of the Commission on January 11, 2006, Mandaluyong City, Philippines.
(Sgd.) FE B. BARIN
Chairperson
Annex “A”
Illustrative Notification
to the SEC on Filing of Functional Currency Financial Statements
To: Securities and Exchange Commission
Pursuant to the requirement of paragraph (6)(c) of SRC Rule 68, (name of Company) notifies the Commission that it will file its financial statements expressed in (indicate functional currency) starting in (year).
I. Determination of Functional Currency Please present the following financial data to reflect the primary economic environment of the company:
a. Revenues (at least for the immediately preceding 2 years)
Year 1 Year 2
In Currency % In Currency %
Total Revenue per xxx xx xxx xx
audited financial
statements
Revenues in original
currencies
a. U.S. Dollars xxx xx xxx xx
b. Japanese Yen xxx xx xxx xx
c. Euro Dollars xxx xx xxx xx
d. Others (specify by currency)
b. Cost and Expenses (at least for the immediately preceding 2 years)
Year 1 Year 2
In Currency % In Currency %
Total Cost and xxx xx xxx xx
expenses per
audited financial
statements
Cost and expenses
in original
currencies
a. U.S. Dollars xxx xx xxx xx
b. Japanese Yen xxx xx xxx xx
c. Euro Dollars xxx xx xxx xx
d. Others (specify by currency)
c. If the factor/s relied upon is other than those falling under paragraphs (a) & (b), discuss such other factors considered as allowed under PAS 211. Attach relevant support as deemed necessary.
2. Conclusion
Based on the consideration of the above factors, which are set forth in PAS 21, The Effects of Changes in Foreign Exchange Rates, the Company has determined that its functional currency is the (indicate functional currency).
Signed under oath by:
_______________________ ____________________
Chief Executive Officer Chief Finance Officer
NOTARY PUBLIC
1 The following factors may also provide evidence of an entity’s functional currency;
a. The currency in which funds from financing activities (i.e., leasing debt and equity instruments ) are generated.
b. The currency in which receipts from operating activities are usually obtained.
The following additional factors are considered in determining the functional currency of a foreign operation and whether its functional currency is the same as that if the reporting entity (the reporting entity, in this context, being the entity that has the foreign operation as its subsidiary, branch, associate or joins venture):
a. whether the activities of the foreign operation are carried out as an extension of the reporting entity, another than being carried out with a significant degree of autonomy. An example of the farmer is when the foreign operation only sells goods imported from the reporting entity and remits the proceeds to it. An example of the latter is when the operation accumulate cash and other monetary items, incurs expenses, generates income and arranges borrowings, all substantially in its local currency.
b. whether transactions with the reporting entity are a high or a low proportion of the foreign operations activities.
c. whether cash flows from the activities of the foreign operation directly affect the cash flows of the reporting entity and are readily available for remittance to it.
d. whether cash flows from the activities of the foreign operation are sufficient to service existing and normally expected debt obligations without funds being made available by the reporting entity.
Illustrative Report of External Auditor to
Accompany Company’s
Notification to the SEC on Filing of Functional Currency Financial Statements
To: (name of Company)
This report is issued in connection with (name of company)’s notification to the Securities and Exchange Commission (SEC) that it will file its financial statements expressed in (indicate functional currency) starting in (year).
We have reviewed (name of company)’s determination of its functional currency as described in its Notification to the SEC and we have assessed that the Company’s determination of its functional currency was made in accordance with PAS 21, The Effects of Charges in Foreign Exchange Rates.
Name and signature of Independent CPA
BOA Registration Number
SEC Accreditation Number (if any)
Date
Address
SEC memorandum
circular no. 3
Series of 2006
TO : ALL CONCERNED
SUBJECT : PRINCIPAL OFFICE ADDRESS; ADDRESS OF EACH INCORPORATOR, DIRECTOR, TRUSTEE, OR PARTNER
In line with the “full disclosure” requirement of existing laws, all corporations and partnerships applying for registration with the Securities and Exchange Commission should state in their Articles of Incorporation or Articles of Partnership the (i) specific address of their principal office, which shall include, if feasible, the street number, street name, barangay, city or municipality; and (ii) specific residence address of each incorporator, stockholder, director, trustee, or partner.
“Metro Manila” shall no longer be allowed as address of the principal office.
Additionally, all corporations are required to state in their General Information Sheet the specific residence address of each stockholder, officer, director or trustee.
Filings that do not comply with the foregoing requirements shall be considered as non-complaint with existing rules and regulations.
This Circular shall take effect after publication in a newspaper of general circulation.
Mandaluyong City, Philippines. 16 February 2006.
(Sgd.) FE B. BARIN
Chairperson
circular no. 1
Series of 2006
Guidelines on the Filing of Functional Currency Financial Statements
The Commission is its meeting of January 10, 2006, resolved to issue this Circular to guide companies whose functional currency (i.e., the currency of the primary economic environment in which the company operates) is other than the Philippine peso and which company file financial statements expressed in that functional currency.
1. The company’s determination of its functional currency shall be made in accordance with PAS
21, The Effects of Changes in Foreign Exchange Rates.
2. A company that files for the first time financial statements denominated in a currency other than Philippine pesos (“functional currency FS”) for statutory reporting purposes shall notify the Commission that it shall file such financial statements, with an assessment that supports the determination of its functional currency. Please see attached Annex “A” for an illustrative notification.
3. The notification shall be signed by the company’s chief executive officer and chief financial officer. It shall be accompanied by a report from the company’s external auditor indicating his/her assessment that the company’s determination of its functional currency was made in accordance with PAS 21. Please see attached Annex “B” for an illustrative report of the external auditor.
4. A company whose functional currency is other than the Philippine peso that chooses to present financial statements expressed in Philippine peso shall submit financial statements expressed in both its functional currency and in Philippine peso. The company shall (a) translate its functional currency financial state-ments into Philippine pesos in accordance with PAS 21 and (b) submit a notification to the Commission in accordance with paragraphs (2) and (3) above.
5. The notification shall be filed within forty-five (45)days after the end of the year in which the company intends to initially present a functional currency FS.
6. In the case of a change in functional currency, the company shall file a notice indicating the proposed change including the reasons thereof within thirty (30) days after the end of year in which the change occurred.
The notice shall be signed and accompanied by a report of the company’s external auditor in the manner described in paragraph (3) above.
The submission of the said notice is without prejudice to any objection that the Commission may raise on the proposed change taking into account the previous representations by the company and the principles set forth under PAS 21.
This Circular shall be published in two (2) newspapers of general circulation in the Philippines and shall take effect fifteen (15) days after the date of the last publication.
Failure to comply with the foregoing Guidelines shall render the financial statements of the company non-compliant with the applicable rules and shall subject the company concerned to the appropriate sanctions provided for in the existing laws.
Signed on behalf of the Commission on January 11, 2006, Mandaluyong City, Philippines.
(Sgd.) FE B. BARIN
Chairperson
Annex “A”
Illustrative Notification
to the SEC on Filing of Functional Currency Financial Statements
To: Securities and Exchange Commission
Pursuant to the requirement of paragraph (6)(c) of SRC Rule 68, (name of Company) notifies the Commission that it will file its financial statements expressed in (indicate functional currency) starting in (year).
I. Determination of Functional Currency Please present the following financial data to reflect the primary economic environment of the company:
a. Revenues (at least for the immediately preceding 2 years)
Year 1 Year 2
In Currency % In Currency %
Total Revenue per xxx xx xxx xx
audited financial
statements
Revenues in original
currencies
a. U.S. Dollars xxx xx xxx xx
b. Japanese Yen xxx xx xxx xx
c. Euro Dollars xxx xx xxx xx
d. Others (specify by currency)
b. Cost and Expenses (at least for the immediately preceding 2 years)
Year 1 Year 2
In Currency % In Currency %
Total Cost and xxx xx xxx xx
expenses per
audited financial
statements
Cost and expenses
in original
currencies
a. U.S. Dollars xxx xx xxx xx
b. Japanese Yen xxx xx xxx xx
c. Euro Dollars xxx xx xxx xx
d. Others (specify by currency)
c. If the factor/s relied upon is other than those falling under paragraphs (a) & (b), discuss such other factors considered as allowed under PAS 211. Attach relevant support as deemed necessary.
2. Conclusion
Based on the consideration of the above factors, which are set forth in PAS 21, The Effects of Changes in Foreign Exchange Rates, the Company has determined that its functional currency is the (indicate functional currency).
Signed under oath by:
_______________________ ____________________
Chief Executive Officer Chief Finance Officer
NOTARY PUBLIC
1 The following factors may also provide evidence of an entity’s functional currency;
a. The currency in which funds from financing activities (i.e., leasing debt and equity instruments ) are generated.
b. The currency in which receipts from operating activities are usually obtained.
The following additional factors are considered in determining the functional currency of a foreign operation and whether its functional currency is the same as that if the reporting entity (the reporting entity, in this context, being the entity that has the foreign operation as its subsidiary, branch, associate or joins venture):
a. whether the activities of the foreign operation are carried out as an extension of the reporting entity, another than being carried out with a significant degree of autonomy. An example of the farmer is when the foreign operation only sells goods imported from the reporting entity and remits the proceeds to it. An example of the latter is when the operation accumulate cash and other monetary items, incurs expenses, generates income and arranges borrowings, all substantially in its local currency.
b. whether transactions with the reporting entity are a high or a low proportion of the foreign operations activities.
c. whether cash flows from the activities of the foreign operation directly affect the cash flows of the reporting entity and are readily available for remittance to it.
d. whether cash flows from the activities of the foreign operation are sufficient to service existing and normally expected debt obligations without funds being made available by the reporting entity.
Illustrative Report of External Auditor to
Accompany Company’s
Notification to the SEC on Filing of Functional Currency Financial Statements
To: (name of Company)
This report is issued in connection with (name of company)’s notification to the Securities and Exchange Commission (SEC) that it will file its financial statements expressed in (indicate functional currency) starting in (year).
We have reviewed (name of company)’s determination of its functional currency as described in its Notification to the SEC and we have assessed that the Company’s determination of its functional currency was made in accordance with PAS 21, The Effects of Charges in Foreign Exchange Rates.
Name and signature of Independent CPA
BOA Registration Number
SEC Accreditation Number (if any)
Date
Address
SEC memorandum
circular no. 3
Series of 2006
TO : ALL CONCERNED
SUBJECT : PRINCIPAL OFFICE ADDRESS; ADDRESS OF EACH INCORPORATOR, DIRECTOR, TRUSTEE, OR PARTNER
In line with the “full disclosure” requirement of existing laws, all corporations and partnerships applying for registration with the Securities and Exchange Commission should state in their Articles of Incorporation or Articles of Partnership the (i) specific address of their principal office, which shall include, if feasible, the street number, street name, barangay, city or municipality; and (ii) specific residence address of each incorporator, stockholder, director, trustee, or partner.
“Metro Manila” shall no longer be allowed as address of the principal office.
Additionally, all corporations are required to state in their General Information Sheet the specific residence address of each stockholder, officer, director or trustee.
Filings that do not comply with the foregoing requirements shall be considered as non-complaint with existing rules and regulations.
This Circular shall take effect after publication in a newspaper of general circulation.
Mandaluyong City, Philippines. 16 February 2006.
(Sgd.) FE B. BARIN
Chairperson
Friday, December 5, 2008
Department of Justice: Articles; Capital Punishment Revisited
Department of Justice
Articles: Capital Punishment, Revisited
By Rodolfo A. Arizala
I. Introduction
The question of Capital Punishment or death penalty has resurfaced recently like a chronic pain in the socio-political life of the nation.
It was probably provoked by the commutation of death sentences to life imprisonment of more than one thousand convicts announced by the President of the Philippines on Easter Sunday or Resurrection, followed by a certification as urgent a piece of legislation (House Bill 4826) on the elimination of Capital Punishment from our statute books.
The issue on the “pro” and “con” of the elimination of capital punishment has been debated and discussed long time ago. As a matter of fact in 1970, this writer published an article in the UST Law Review, (Vol. XX, No. 4, March-April 1970 issue), “Should Capital Punishment Be Abolished?” This was followed by an updated article in April 1990 which appeared in the Manila papers (The Philippine Daily Inquirer and the Philippine Journal) under the title: “Capital Punishment Should Not Be Restored.”
In view, however, of the renewed interest on the issue of Capital Punishment and the provision in the 1987 Philippine Constitution that death penalty shall not be imposed “unless for compelling reasons involving heinous crime, the Congress provides for it,” it is relevant to take a second look at the subject of Capital Punishment by retracing its history and develop-ment from the early period up to the present.
But before we take a second look at the subject, let us first define what is capital punishment. Capital punishment may be defined as the “imposition of the death penalty on offenders found guilty of certain major crimes.”
The method of execution is generally done either by hanging, gas chamber, electrocution, firing squad or lethal injection. In the Philippines Republic Act No. 8177 mandates that death sentence shall be carried out through lethal injection.
II. Early History; UN Back-ground Study
The movement to abolish capital punishment in civilized countries is not new. Since the days of Beccaria, a theoretical controversy on the question on capital punishment has been going on. And as early as 1651, George Fox had raised the issue of death penalty. He advocated in his pamphlet “To the Parliament and Commonwealth of England” that death penalty should be applied only in cases of murder. However, the first case of total abolition of death penalty by statute started from the eighteenth century. In 1876, for example, under the direct inspiration of Beccaria, Leopold II of Tuscanny promulgated his famous code abolishing death penalty.
The following year, Joseph II of Austria promulgated his penal code doing away with capital punishment.
In modern times, the question of capital punishment, of the laws and practices relating to it, and of the effects of capital punishment and its abolition thereof on the rate of criminality, was taken up by the United Nations. Thus, on 20 November 1959, during the 14th session of the UN General Assembly, a resolution was adopted
inviting the Economic and Social Council to initiate a study on the question. And the Economic and Social Council on 6 April 1960, adopted resolution No. 747 (XXIX) stating that the council should be provided with a factual review of the various aspects of the question of capital punishment and requested the UN Secretary General to prepare such a review.
The said resolution also provided that the Secretary General may consult, as he deemed appropriate, the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders set up under General Assembly Resolution 415 (V).
In UN Resolution No. 1918 (XVIII), the General Assembly requested the Economic and Social Council to ask the Committee on Human Rights to study the report on capital punishment and the comments on it of the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders (E/3724) and to make such recom-mendations on the matter as it deemed appropriate.
III. Report on Capital Punish-ment
Justice March Ancel of the French Supreme Court and Director of the Criminal Science of the Institute of Comparative Law of Paris, prepared a report on capital punishment based on the replies of two questionnaires sent by the UN Secretary General, in addition to whatever information he (Justice Ancel) has already gathered personally on the subject.
The two questionnaires were:
1) A questionnaire requesting infor-mation on the laws, regulations and practices in force on capital punishment sent to members and certain non-member states;
2) A questionnaire requesting infor-mation on the deterrent effect of the death penalty and on the consequences of its abolition, sent to national correspondents of the Secretariat in the field on the prevention of crime and the treatment of offenders, and to non-governmental organizations.
In his report, Justice Ancel classified the countries or territories as follows:
1). Countries and territories which have kept the death penalty; and
2) Countries and territories which have abolished the death penalty. The latter group is divided into three categories: 1) Abolitionist de jure; 2) Abolitionist de facto; and 3) Almost completely abolitionist.
Abolitionist de jure are those countries in which the death penalty has been abolished by an expressed constitutional or legislative pro-visions such as Argentina, Australia, Austria, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Germany, etc.
Abolitionist de facto are those countries whose positive law (penal code or special statute) makes provision for death penalty and where sentences of death are passed but never carried out because of established custom, such as in Belgium, Liechtenstein, Luxemburg, and the Vatican State.
Almost completely abolitionist are those countries or territories in which the death penalty is provided only for offenses committed in certain exceptional circumstances and in which capital punishment has, in fact, virtually disappeared such as in New South Wales, Nicaragua, and in certain States of the United States like Michigan, North Dakota and Rhode Island.
In this connection, it may be asked: “To what category our country belongs?
Under the Philippine Revised Penal Code, law and jurisprudence, the following offenses are examples which may be punishable by death: parricide (Art. 246); kidnapping or detention to extort ransom (Art. 267, as amended by RA No. 19); robbery with homicide (Art. 294, para 1 ); murder (Art. 248); treason (Art. 114); collaboration with the enemy (Art. 120, para 3); qualified piracy (Art. 123); if a person is injured or killed as a result or on occasion of cattle rustling (Sec. 8, PD 533); use of explosives in fishing and if it causes loss of human life (Sec. 3(a) & (b) PD 534); and if death results from the commission of arson (Sec. 5; PD 1613).
To these were added subversion, unlawful possession of firearms, hijacking, embezzlement, and drug-related offenses.
However, death penalty is not imposed ; 1) when the guilty person is more than70 years old (Art. 14); 2) when eight justices of the Supreme Court failed to confirm the death penalty imposed by the lower court (Sect. 9, Judiciary Act of 1948).
It is also observed that under Philippine laws, if death penalty is imposed by the lower court, the case is automatically appealed to the Supreme Court by virtue of Rule 122, Section 9, Rules of Court of the Phillippines. The execution of death sentence is suspended in the following cases: 1) a woman within three years following the sentence;
2) while the woman is pregnant. In case of a person older than 70 years old, the death sentence shall be commuted to the penalty of reclusion perpetua (Art. 83 & 40), and in case of insanity which developed after the trial but before serving sentence, it suspend the sentence with respect to personal penalty. If a minor is under 16 years old, the court shall suspend all further proceedings and shall commit such minor to the custody of a public or private benevolent or charitable institution (Art. 80).
The 1987 Constitution of the Philippines abolished capital punishment. Section 19(1), Article III thereof provides as follows: “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua.”
Because of the aforequoted provision of the Philippine Constitution, it may be said that the Philippines in 1987 has joined the “Abolitionist de Jure” group those countries in which death penalty has been abolished by an express constitutional or legislative provision. Commissioner Joaquin G. Bernas, S.J., in his book The Constitution of the Republic of the Philippines, A Commentary, (Vol I, First Edition, 1987, p. 443) commenting on the aforequoted provision said: “By a show of hands the abolition of the death penalty was approved 19-18. On motion of Commissioner Rodrigo nominal voting was called and the outcome was still for abolition, 22-17.”
However, because of an amendment authored by one of the Commissioners, death penalty may be reimposed if “for compelling reasons involving heinous crimes, the Congress hereafter provides for it.”
Pursuant to such provision in the 1987 Constitution, in December 1993, to address the rising criminality and incidence of heinous crimes, Republic Act No. 7659 was passed reimposing the death penalty.
Said Death Penalty Law lists a total of 46 crimes punishable by death; 25 of these are death mandadtory while 21 are death eligible. With the amendment of Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), there are now 52 capital offenses, 30 of which are death mandatory and 22 are death eligible in our statute books.
In a 2004 survey conducted by FLAG (Free Legal Association Group), it was reported that of the 1,121 death row inmates whose death sentences were recently commuted by the President to life imprisonment, 22 percent or 198 of them were convicted of murder and/or parricide; 45 percent (405) were found guilty of rape; 14.5 percent (129) of kidnapping; 11 percent (101) of robbery; 0.4 percent(4) of carnapping; 0.8 percent (7) of bribery; and three percent (26) of violation of dangerous drugs laws.
In view of the reimposition of death penalty in 1993 through Republic Act No. 7659, some observers opined that the Philippines belong to the group of countries which is “almost completely abolitionist” if not a country which has kept the death penalty.
IV. Arguments for and against Capital Punishment
A. In favor of Capital Punishment
1. It has deterrent effect.
2. Atonement – death penalty is the only just punishment for the gravest crimes.
3. Public opinion remains generally favorable to capital punishment and the police and prison officials believe in its effectiveness.
4. A particularly potent weapon is needed in dealing with dangerous criminals to protect society.
5. Confinement for life or imprisonment would be more and cruel punishment than death because perpetual imprisonment leaves no hope to the offender.
6. Execution of the offender represents a saving of public funds because taxpayers are not called upon to pay for the indefinite maintenance of anti-social crimi-nals.
B. Against Capital Punishment
1. Sanctity of human life. Since it is wrong to kill, the state should be the first one to respect human life.
2. The modern tendency is to regard penalties as having no object other than prevention and punish-ment and this could be achieved other than taking human life.
3. Death penalty has no deterrent effects as shown by statistics. Abolition of death penalty, on the other hand, does not lead to increase the crimes.
4. Death penalty is a sort of judicial or legal murder, and it debases justices.
5. Death penalty is a form of cruelty and inhumanity. Doctors report that even the most efficient methods do not result in instantaneous painless death. It affects not only the criminal but also his families and relatives with mark of infamy.
6. Society can protect itself by other means.
V. General Observations.
A. In countries /territories where death penalty exists.
The modern tendency is more and more to drop the mandatory character of the death penalty. And in many legal systems, the death sentence is mandatory only for certain specific crimes or in certain special courts. As a general rule, only in cases of capital murder or crimes against the external security or integrity of the state death penalty is mandatory. A death sentence may not be imposed if the offender is granted pardon. The pardoning power is generally vested in the head of the state such as king, president, and sometimes even in the governor of a state or province.
B. In countries / territories in which death penalty is not applied.
It has been observed that the number of countries in which offenses other than murder are punishable by death is declining, and that the abolition of death penalty does not have the immediate effect of appreciably increasing the incidence of crime.
In some countries such as those in Scandinavia and Latin America, the deterrent effect of death penalty is not demonstrated. However, the trend towards an authoritarian system of criminal law has checked the slow movement towards gradual abolition of death penalty. Consequently, death penalty, especially for political crimes, has reappeared in countries where it had once been abolished.
VI. Conclusion
During the 23rd session of the UN General Assembly, it adopted resolution 2393 (XXIII) inviting all governments of member states of the United Nations to inform the Secretary General of the steps taken concerning the possible abolition of the death penalty. Said UN Resolution is an indication of the collective interest of the international community towards this problem.
According to reports 123 countries, including members of the European Union, have already abolished death penalty. The issue, therefore, of Capital Punishment is not new but it has been studied, discussed and debated long time ago. It is up for member states of the United Nations which have not yet made a firm or final decision on the subject to do it now in pursuance of UN Resolutions on the subject.
As stated earlier, by virtue of the 1987 Constitution, the Philippines has adopted the policy of “abolitionist de jure” with respect to capital punishment. However, Congress may reimpose death penalty if there are compelling reasons involving “heinous crimes”. Consequently in 1993, through Republic Act No. 7659, death penalty was reimposed in the Philippines.
Personally, the author believes that capital punishment should be completely abolished for reasons already stated in this article – sanctity of human life; death penalty has no deterrent effects; and society can protect itself by other means. This could be done by amending the present Constitution and / or passing the necessary legislation. And that is left to the wisdom of Congress and those who may undertake Constitutional amendments or revisions.
Articles: Capital Punishment, Revisited
By Rodolfo A. Arizala
I. Introduction
The question of Capital Punishment or death penalty has resurfaced recently like a chronic pain in the socio-political life of the nation.
It was probably provoked by the commutation of death sentences to life imprisonment of more than one thousand convicts announced by the President of the Philippines on Easter Sunday or Resurrection, followed by a certification as urgent a piece of legislation (House Bill 4826) on the elimination of Capital Punishment from our statute books.
The issue on the “pro” and “con” of the elimination of capital punishment has been debated and discussed long time ago. As a matter of fact in 1970, this writer published an article in the UST Law Review, (Vol. XX, No. 4, March-April 1970 issue), “Should Capital Punishment Be Abolished?” This was followed by an updated article in April 1990 which appeared in the Manila papers (The Philippine Daily Inquirer and the Philippine Journal) under the title: “Capital Punishment Should Not Be Restored.”
In view, however, of the renewed interest on the issue of Capital Punishment and the provision in the 1987 Philippine Constitution that death penalty shall not be imposed “unless for compelling reasons involving heinous crime, the Congress provides for it,” it is relevant to take a second look at the subject of Capital Punishment by retracing its history and develop-ment from the early period up to the present.
But before we take a second look at the subject, let us first define what is capital punishment. Capital punishment may be defined as the “imposition of the death penalty on offenders found guilty of certain major crimes.”
The method of execution is generally done either by hanging, gas chamber, electrocution, firing squad or lethal injection. In the Philippines Republic Act No. 8177 mandates that death sentence shall be carried out through lethal injection.
II. Early History; UN Back-ground Study
The movement to abolish capital punishment in civilized countries is not new. Since the days of Beccaria, a theoretical controversy on the question on capital punishment has been going on. And as early as 1651, George Fox had raised the issue of death penalty. He advocated in his pamphlet “To the Parliament and Commonwealth of England” that death penalty should be applied only in cases of murder. However, the first case of total abolition of death penalty by statute started from the eighteenth century. In 1876, for example, under the direct inspiration of Beccaria, Leopold II of Tuscanny promulgated his famous code abolishing death penalty.
The following year, Joseph II of Austria promulgated his penal code doing away with capital punishment.
In modern times, the question of capital punishment, of the laws and practices relating to it, and of the effects of capital punishment and its abolition thereof on the rate of criminality, was taken up by the United Nations. Thus, on 20 November 1959, during the 14th session of the UN General Assembly, a resolution was adopted
inviting the Economic and Social Council to initiate a study on the question. And the Economic and Social Council on 6 April 1960, adopted resolution No. 747 (XXIX) stating that the council should be provided with a factual review of the various aspects of the question of capital punishment and requested the UN Secretary General to prepare such a review.
The said resolution also provided that the Secretary General may consult, as he deemed appropriate, the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders set up under General Assembly Resolution 415 (V).
In UN Resolution No. 1918 (XVIII), the General Assembly requested the Economic and Social Council to ask the Committee on Human Rights to study the report on capital punishment and the comments on it of the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders (E/3724) and to make such recom-mendations on the matter as it deemed appropriate.
III. Report on Capital Punish-ment
Justice March Ancel of the French Supreme Court and Director of the Criminal Science of the Institute of Comparative Law of Paris, prepared a report on capital punishment based on the replies of two questionnaires sent by the UN Secretary General, in addition to whatever information he (Justice Ancel) has already gathered personally on the subject.
The two questionnaires were:
1) A questionnaire requesting infor-mation on the laws, regulations and practices in force on capital punishment sent to members and certain non-member states;
2) A questionnaire requesting infor-mation on the deterrent effect of the death penalty and on the consequences of its abolition, sent to national correspondents of the Secretariat in the field on the prevention of crime and the treatment of offenders, and to non-governmental organizations.
In his report, Justice Ancel classified the countries or territories as follows:
1). Countries and territories which have kept the death penalty; and
2) Countries and territories which have abolished the death penalty. The latter group is divided into three categories: 1) Abolitionist de jure; 2) Abolitionist de facto; and 3) Almost completely abolitionist.
Abolitionist de jure are those countries in which the death penalty has been abolished by an expressed constitutional or legislative pro-visions such as Argentina, Australia, Austria, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Germany, etc.
Abolitionist de facto are those countries whose positive law (penal code or special statute) makes provision for death penalty and where sentences of death are passed but never carried out because of established custom, such as in Belgium, Liechtenstein, Luxemburg, and the Vatican State.
Almost completely abolitionist are those countries or territories in which the death penalty is provided only for offenses committed in certain exceptional circumstances and in which capital punishment has, in fact, virtually disappeared such as in New South Wales, Nicaragua, and in certain States of the United States like Michigan, North Dakota and Rhode Island.
In this connection, it may be asked: “To what category our country belongs?
Under the Philippine Revised Penal Code, law and jurisprudence, the following offenses are examples which may be punishable by death: parricide (Art. 246); kidnapping or detention to extort ransom (Art. 267, as amended by RA No. 19); robbery with homicide (Art. 294, para 1 ); murder (Art. 248); treason (Art. 114); collaboration with the enemy (Art. 120, para 3); qualified piracy (Art. 123); if a person is injured or killed as a result or on occasion of cattle rustling (Sec. 8, PD 533); use of explosives in fishing and if it causes loss of human life (Sec. 3(a) & (b) PD 534); and if death results from the commission of arson (Sec. 5; PD 1613).
To these were added subversion, unlawful possession of firearms, hijacking, embezzlement, and drug-related offenses.
However, death penalty is not imposed ; 1) when the guilty person is more than70 years old (Art. 14); 2) when eight justices of the Supreme Court failed to confirm the death penalty imposed by the lower court (Sect. 9, Judiciary Act of 1948).
It is also observed that under Philippine laws, if death penalty is imposed by the lower court, the case is automatically appealed to the Supreme Court by virtue of Rule 122, Section 9, Rules of Court of the Phillippines. The execution of death sentence is suspended in the following cases: 1) a woman within three years following the sentence;
2) while the woman is pregnant. In case of a person older than 70 years old, the death sentence shall be commuted to the penalty of reclusion perpetua (Art. 83 & 40), and in case of insanity which developed after the trial but before serving sentence, it suspend the sentence with respect to personal penalty. If a minor is under 16 years old, the court shall suspend all further proceedings and shall commit such minor to the custody of a public or private benevolent or charitable institution (Art. 80).
The 1987 Constitution of the Philippines abolished capital punishment. Section 19(1), Article III thereof provides as follows: “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua.”
Because of the aforequoted provision of the Philippine Constitution, it may be said that the Philippines in 1987 has joined the “Abolitionist de Jure” group those countries in which death penalty has been abolished by an express constitutional or legislative provision. Commissioner Joaquin G. Bernas, S.J., in his book The Constitution of the Republic of the Philippines, A Commentary, (Vol I, First Edition, 1987, p. 443) commenting on the aforequoted provision said: “By a show of hands the abolition of the death penalty was approved 19-18. On motion of Commissioner Rodrigo nominal voting was called and the outcome was still for abolition, 22-17.”
However, because of an amendment authored by one of the Commissioners, death penalty may be reimposed if “for compelling reasons involving heinous crimes, the Congress hereafter provides for it.”
Pursuant to such provision in the 1987 Constitution, in December 1993, to address the rising criminality and incidence of heinous crimes, Republic Act No. 7659 was passed reimposing the death penalty.
Said Death Penalty Law lists a total of 46 crimes punishable by death; 25 of these are death mandadtory while 21 are death eligible. With the amendment of Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), there are now 52 capital offenses, 30 of which are death mandatory and 22 are death eligible in our statute books.
In a 2004 survey conducted by FLAG (Free Legal Association Group), it was reported that of the 1,121 death row inmates whose death sentences were recently commuted by the President to life imprisonment, 22 percent or 198 of them were convicted of murder and/or parricide; 45 percent (405) were found guilty of rape; 14.5 percent (129) of kidnapping; 11 percent (101) of robbery; 0.4 percent(4) of carnapping; 0.8 percent (7) of bribery; and three percent (26) of violation of dangerous drugs laws.
In view of the reimposition of death penalty in 1993 through Republic Act No. 7659, some observers opined that the Philippines belong to the group of countries which is “almost completely abolitionist” if not a country which has kept the death penalty.
IV. Arguments for and against Capital Punishment
A. In favor of Capital Punishment
1. It has deterrent effect.
2. Atonement – death penalty is the only just punishment for the gravest crimes.
3. Public opinion remains generally favorable to capital punishment and the police and prison officials believe in its effectiveness.
4. A particularly potent weapon is needed in dealing with dangerous criminals to protect society.
5. Confinement for life or imprisonment would be more and cruel punishment than death because perpetual imprisonment leaves no hope to the offender.
6. Execution of the offender represents a saving of public funds because taxpayers are not called upon to pay for the indefinite maintenance of anti-social crimi-nals.
B. Against Capital Punishment
1. Sanctity of human life. Since it is wrong to kill, the state should be the first one to respect human life.
2. The modern tendency is to regard penalties as having no object other than prevention and punish-ment and this could be achieved other than taking human life.
3. Death penalty has no deterrent effects as shown by statistics. Abolition of death penalty, on the other hand, does not lead to increase the crimes.
4. Death penalty is a sort of judicial or legal murder, and it debases justices.
5. Death penalty is a form of cruelty and inhumanity. Doctors report that even the most efficient methods do not result in instantaneous painless death. It affects not only the criminal but also his families and relatives with mark of infamy.
6. Society can protect itself by other means.
V. General Observations.
A. In countries /territories where death penalty exists.
The modern tendency is more and more to drop the mandatory character of the death penalty. And in many legal systems, the death sentence is mandatory only for certain specific crimes or in certain special courts. As a general rule, only in cases of capital murder or crimes against the external security or integrity of the state death penalty is mandatory. A death sentence may not be imposed if the offender is granted pardon. The pardoning power is generally vested in the head of the state such as king, president, and sometimes even in the governor of a state or province.
B. In countries / territories in which death penalty is not applied.
It has been observed that the number of countries in which offenses other than murder are punishable by death is declining, and that the abolition of death penalty does not have the immediate effect of appreciably increasing the incidence of crime.
In some countries such as those in Scandinavia and Latin America, the deterrent effect of death penalty is not demonstrated. However, the trend towards an authoritarian system of criminal law has checked the slow movement towards gradual abolition of death penalty. Consequently, death penalty, especially for political crimes, has reappeared in countries where it had once been abolished.
VI. Conclusion
During the 23rd session of the UN General Assembly, it adopted resolution 2393 (XXIII) inviting all governments of member states of the United Nations to inform the Secretary General of the steps taken concerning the possible abolition of the death penalty. Said UN Resolution is an indication of the collective interest of the international community towards this problem.
According to reports 123 countries, including members of the European Union, have already abolished death penalty. The issue, therefore, of Capital Punishment is not new but it has been studied, discussed and debated long time ago. It is up for member states of the United Nations which have not yet made a firm or final decision on the subject to do it now in pursuance of UN Resolutions on the subject.
As stated earlier, by virtue of the 1987 Constitution, the Philippines has adopted the policy of “abolitionist de jure” with respect to capital punishment. However, Congress may reimpose death penalty if there are compelling reasons involving “heinous crimes”. Consequently in 1993, through Republic Act No. 7659, death penalty was reimposed in the Philippines.
Personally, the author believes that capital punishment should be completely abolished for reasons already stated in this article – sanctity of human life; death penalty has no deterrent effects; and society can protect itself by other means. This could be done by amending the present Constitution and / or passing the necessary legislation. And that is left to the wisdom of Congress and those who may undertake Constitutional amendments or revisions.
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