LEGRES/LEGWRITING 2013-2014

NAME: JUANICO, LYAN DAVID M.

YEAR AND SEC.: 1F

I.D. NO.: L-130075

DATE: JULY 30, 2013

Legal Opinion
PAPER # 5

Date:

30 July 2013

To:

Ms. Arjean Marie Belco

From:

Mr. Lyan David M. Juanico

Re:

CONDEMNATION OF THE DISCRIMINATORY ACTS

DONE BY KLM ROYAL DUTCH AIRLINES AND BY ITS
EMPLOYEES AGAINST MS. ARJEAN MARIE BELCO

Dear Ms. Belco:

This legal opinion answers your query of why should the acts done by KLM
Royal Dutch Airlines and by its employees be condemned. This legal opinion also
discusses the relevant laws and jurisprudence that would sustain your cause of
action.

INTRODUCTION
Abraham Lincoln once said, Achievement has no color. 1 Success and
achievement can never be based solely on ones own color, race or community in
which he or she belongs. One of our innate abilities as humans is our ability to
perceive. By perception, we become aware of something by the use of our sight
and other senses. Perception brings us knowledge and understanding. However,
this perception also drives us to judge another solely on the basis of what we see.
This is where discrimination as to the race comes in. Technically, all of us have the
same anatomical structure. We have our heads placed above our necks and our feet
below, touching the ground. However, though we may be built in a common
manner, we are embellished and designed in a distinctive way. We are like houses
created by the same architect. We are built with the same foundation but are
designed depending on the different elements present like the location, budget and
others. We all have different skin tone, physical viability and appearances. Despite
the fact that we have more similarities in our anatomical structure, not all the
individuals showcase solidarity and respect towards other human beings. This is
brought about by the perception which was passed on by generations to
generations. Thus, the idea that some people coming from a certain race or nation
is better than the others. Sad to say, in this era of human rights and equality, this
scenario still exists.
1

http://www.goodreads.com/quotes/137323-achievement-has-no-color.

STATEMENT OF FACTS

Per our discussion and the documents you have shown me, the following are
the pertinent facts:

You were a delegate of the Philippines in the World Youth Day 2013 which
was held in Brazil from the 22 nd up to 28th of July this year. Your trip was
sponsored

by

two

non-profit

organizations,

GoodX.org

and

Cartwheel

Foundation.org. You were, however, a day late for your scheduled arrival for the
said event. The reason for this delay is you were not allowed to board the KLM
flight to Amsterdam en route to Rio de Janeiro at Malaysia's Kuala Lumpur
International Airport.

This happened on 20 July when Mr. Shawa, one of the employees of KLM
Royal Dutch Airlines, and his co-employees stopped you at the check-in counter.
They refused to process your check-in at the airport because based on their
personal assessments, you were not ready to travel and that they were doubtful of
your identity, notwithstanding the fact, that you have complete documents
supporting your flight and that these documents have already passed the scrutiny of

the Malaysian immigration. Mr. Shawa also questioned why you were travelling
through Malaysia and not via a direct flight from Manila. He also questioned why
your ticket was so cheap and why your passport is very new.

You offered an explanation by saying that it was your first time to travel and
that you were just a travelling scholar. Your sponsors bought the ticket to fly to
Rio through Malaysia because it is cheaper by $1,000. Obviously, any non-profit
organization would want to save money. However, it was only upon rebooking by
your sponsors that you were allowed to board the flight.

DISCUSSION OF RELATED LAWS AND JURISPRUDENCE

Rights of the Indigenous People

No less than the 1987 Constitution provides for the protection of
indigenous groups in our country. It states, The State recognizes and promotes
the rights of indigenous cultural communities within the framework of national
unity and development.2
Section 3(h) of RA 8371, otherwise known as the Indigenous Peoples
Rights Act (IPRA), defines Indigenous Cultural Communities (ICCs) or
Indigenous Peoples (IPs) as a group of people or homogenous societies identified
2

Section 22, Article II, 1987 Constitution.

by self-ascription and ascription by other, who have continuously lived as

organized community on communally bounded and defined territory, and who
have, under claims of ownership since time immemorial, occupied, possessed
customs, tradition and other distinctive cultural traits, or who have, through
resistance to political, social and cultural inroads of colonization, non-indigenous
religions and culture, became historically differentiated from the majority of
Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous
on account of their descent from the populations which inhabited the country, at
the time of conquest or colonization, or at the time of inroads of non-indigenous
religions and cultures, or the establishment of present state boundaries, who retain
some or all of their own social, economic, cultural and political institutions, but
who may have been displaced from their traditional domains or who may have
resettled outside their ancestral domains.

You belong to the Talaandig tribe found in Bukidnon which is a recognized

ICC in furtherance with the definition supplied above. The Talaandigs are one of
the indigenous groups in the province of Bukidnon, who has continued to preserve
and promote its distinctive customs, beliefs and practices despite the strong influx
of modernization and change. This group is found in different barangays and
municipalities surrounding the mountains of Kitanglad, specifically in the towns of

Lantapan and Talakag.3

Being a well-recognized ICC, Talaandigs are covered by RA 8371 and are

therefore swathed by the guarantees granted by the Act. RA 8371 expressly
provides:

Section 2(d). The State shall guarantee that members of the

ICCs/IPs regardless of sex, shall equally enjoy the full measure of
human rights and freedoms without distinctions or discriminations.

Section 2(e). The State shall take measures, with the participation
of the ICCs/IPs concerned, to protect their rights and guarantee
respect for their cultural integrity, and to ensure that members of the
ICCs/IPs benefit on an equal footing from the rights and
opportunities which national laws and regulations grant to other
members of the population.
Section 21. Equal Protection and Non-discrimination of ICCs/IPs.Consistent with the equal protection clause of the Constitution of the
Republic of the Philippines, the Charter of the United Nations, the
Universal Declaration of Human Rights including the Convention on
3

http://www.bukidnon.gov.ph/home/index.php/about-bukidnon/traditional-people/the-talaandig.

the Elimination of Discrimination Against Women and International

Human Rights Law, the State shall, with due recognition of their
distinct characteristics and identity, accord to the members of the
ICCs/IPs the rights, protections and privileges enjoyed by the rest of
the citizenry. It shall extend to them the same employment rights,
opportunities, basic services, educational and other rights and
privileges available to every member of the society. Accordingly, the
State shall likewise ensure that the employment of any form of force of
coercion against ICCs/IPs shall be dealt with by law.

The United Nations (UN) also recognizes the sacred and inviolable rights of
indigenous people in the UN Declaration on the Rights of Indigenous People.
Article 1 of the said document states, Indigenous peoples have the right to the full
enjoyment, as a collective or as individuals, of all human rights and fundamental
freedoms as recognized in the Charter of the United Nations, the Universal
Declaration of Human Rights and international human rights law.
It is crystal clear from the abovementioned laws that indigenous people have
rights and that they are all on the same footing with the rest of the human beings.
As such, no one can trample these rights on the account that they are superior or
above from these people.

Discrimination
The act of Mr. Shawa and his co-employees in preventing you from
boarding the plane, solely on account of your personal condition, which according
to them, makes you unfit for traveling, is an outright violation of these rights. Such
act constitutes discrimination. Discrimination, in its plain sense, means a
prejudicial outlook, action or treatment.4 In a decided case, it has been defined as
the antithesis of fairness and justice.5 What Mr. Shawa and his co-employees did
on the 20th of July patently contravenes the dictates of justice and fairness. Their
prejudicial outlook towards you prevented them from processing your check-in at
the airport. They also disenfranchised your right to travel, a zealously protected
right of everyone, regardless of color or race. The right to travel is the privilege of
a person to go where he pleases, without interference from any source.6

Contract of Carriage with KLM Royal Dutch Airlines

The facts are simple. Your sponsors brought a ticket from KLM Royal
Dutch Airlines and said company did not allow you to board. Is the former liable?
The answer is a resounding yes and this is supported by rendered cases by our
Miriam Webster Dictionary, 2013 edition.
Ang Ladlad LGBT vs. COMELEC, G.R. No. 190582, April 8, 2010.
6
1, Hector De Leon, Philippine Constitutional Law Principles and Cases (1999 ed.).
4
5

Supreme Court (SC). In SINGRAPORE AIRLINES LTD. V. FERNANDEZ7,

the SC held:
When an airline company issues a ticket to a passenger,
confirmed for a particular flight on a certain date, a contract of
carriage arises. The passenger then has every right to expect that he
be transported on that flight and on that date. If he does not, the
carrier opens itself to a suit for a breach of contract of carriage.

This principle is likewise embedded in JAPAN AIRLINES V.

SIMANGAN8. In this case, the SC further elucidated:
Where a passenger, despite his protestations and valid travel
documents, was unceremoniously bumped off by the airline, damage
was already done for which the airline can be held liable, even when
he was offered to fly the next day which offer did not cure the airline's
default. A common carrier ought to know the kind of valid documents
a passenger carries.
The aforementioned case also defined what constitutes a breach of contract
of carriage. The SC said:
In an action for breach of contract of carriage, all that is required of
7
8

417 SCRA 474 (2003).

552 SCRA 341 (2008).

plaintiff is to prove the existence of such contract and its nonperformance by the carrier through the latter's failure to carry the
passenger safely and on time to his destination.

Obviously, there exists a contract between you and KLM Royal Dutch
Airlines. It is a contract of carriage because it is one entered into for the
transportation of passengers by air9. Furthermore, said airline did not carry you to
the stipulated destination on time. In fact, it was only upon rebooking (a new
ticket was bought) that you were able to reach Brazil. Therefore, there is a breach
of contract of carriage on the part of KLM Royal Dutch Airlines.

Damages
Since there was a breach of contract, KLM Royal Dutch Airlines is liable
under Article 1170 of the New Civil Code of the Philippines which provides,
Those who in the performance of their obligation are guilty of fraud, negligence,
or delay, and those who in any manner contravene the tenor thereof, are liable
for damages. Moral damages may likewise be awarded since you suffered
mental anguish, serious anxiety, moral shock and social humiliation from the
discriminating act done by Mr. Shawa and his co-employees.10 Since there are
9

Article 1732, New Civil Code of the Philippines.

Article 2217, ibid.

10

moral damages, exemplary damages should also be granted by way of example or

correction for the public good.11

CONCLUSION AND RECOMMENDATION

It is well-established from the discussions above that the discriminatory

acts of the employees of KLM Royal Dutch Airlines violated your rights and that
there was a breach of contract of carriage on the part of said airline. These are
valid causes of action. Therefore, it is hereby recommended that an action should
be filed against KLM Royal Dutch Airlines for damages.

11

Article 2229, ibid.

Other Electronic Sources:

1.

http://www.philstar.com/headlines/2013/07/25/1011801/filipina-scholardiscriminated-airline-arrives-brazil

2.

http://www.gmanetwork.com/news/story/318388/lifestyle/people/new-eyesfor-18-year-old-arjean-of-talaandig-tribe

3.

http://www.sunstar.com.ph/breaking-news/2013/07/25/dfa-filipina-scholardiscriminated-airline-arrives-brazil-294353

4.

http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

5.

http://www.lawphil.net/judjuris/juri2008/apr2008/gr_170141_2008.html

6.

http://www.adobotalkph.com/2013/07/klm-racial-discrimination-pinayarjean-belco.html

7.

http://www.chanrobles.com/republicactno8371.htm#.UfdWytJTCD8

8. http://www.chanrobles.com/civilcodeofthephilippinesbook4.htm