Tuesday, September 1, 2015
See - De Lima mum on ‘deal’ with Iglesia | Inquirer News
"x x x.
Expressing fears of a whitewash, Samson’s lawyers Trixie Cruz-Angeles and Ahmed Paglinawan, in a statement, called on President Aquino and Interior Secretary Mar Roxas to disclose the alleged agreement to the public.
“What is the nature of this agreement? What are its conditions and terms? It is our client who had unintentionally set off these events by filing his case, yet somehow we have not been included in this so-called agreement. Assuming of course there is one,” they said.
“There are two things you need to do, sirs, speaking as part of the body you call your bosses. First is to be transparent with your agreement. Tell us whether or not you’ve sold our client down the river or tell us if you haven’t. But you need to disclose this to us. A criminal case is not a political pawn. The law provides that it cannot be compromised. The president can grant pardons and issue clemency and amnesty. But you do NOT have the power to refuse prosecution,” they added
The two lawyers also said they wanted the government to assure Samson and his family that their complaint would be given due process and treated fairly.
“[Y]ou must guarantee our client a fair hearing at preliminary investigation. The fear now is that given the so-called agreement, a finding of ‘no probable cause’ to make this nightmare go away for the INC’s Sanggunian is a very real possibility,” they said.
The lawyers warned that the non-disclosure of the alleged agreement and the secret talks that led to it might also hurt the government’s credibility in resolving the cases filed by Samson.
“[Y]ou would not have raised so many doubts had you been transparent with these proceedings, had you included our client. Whether you stood up to defend him, or sold him out, he had and has the right to know. Instead, you conducted it in secret, and now you have made your ability to deliver justice subject to a very real, very reasonable suspicion,” they said.
Angeles and Paglinawan also said they were not surprised that INC leaders were very vocal about the understanding reached with the government.
“The idea is to make the public feel that they had flexed their muscle and the government has responded in a manner favorable to them. The idea is to make us feel that in relation to whatever it is they were rallying for (or against), the government has capitulated. And sadly that capitulation may involve trampling on the rights of our client,” they said.
x x x."
Read more: http://newsinfo.inquirer.net/717992/de-lima-mum-on-deal-with-inc-aquino-urged-to-come-clean-on-issue#ixzz3kPwst0xJ
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Iglesia ni Cristo: Marcos babies goose-stepping to the front of the line | The Society of Honor by Joe America
See - Iglesia ni Cristo: Marcos babies goose-stepping to the front of the line | The Society of Honor by Joe America
"x x x.
Well, I tell you, it is a funny way to run a religion, one that calls itself Christian, where compassion and goodness of heart is generally expected to rule one’s value system. You know, mercy and compassion, as that other Christian, the Pope of the Catholic Church, put it.
The Iglesia ni Cristo rulers . . . er, sorry . . . leaders claim their cause (which is mainly to get the Secretary of the Department of Justice to butt out of their affairs) is a matter of separation of church and state. Well, that is a matter for the courts to sort out, it seems to me. I don’t understand what realm of civility calls for storm troopers.
The leaders claim it is an internal affair. The criminal complaint was filed by a non-member of the church. He used to be a member, but now he is not. By definition, it is not an internal affair.
The good Secretary De Lima is supposed to do, what, exactly? Ignore the law that says she must enforce the law, because the entitled leaders of the Church are exercising their impunity and have the storm troopers with which to do it?
Do you know what the Iglesia ni Cristo leaders say about the traffic jams? “Blame it on our enemies.”
Ah, that would be the State’s representatives then. Their enemy is the Philippines.
To me, this is very simple.
And it is, at the root, very tragic.
It is tragic that the leaders of the Iglesia ni Cristo church would choose war, not peace, in the name of God. This is an ISIS mentality. It is tragic that they hold they are above the law, for whatever sorry justification they can muster up. It is tragic that innocent people will likely be hurt.
Secretary Roxas set forth clear guidelines: maximum tolerance within the laws to preserve the well-being of others.
x x x."
BusinessWorld | The Supreme Court lost the chance to strengthen the Bill of Rights when it granted bail to Enrile
See - BusinessWorld | The Supreme Court lost the chance to strengthen the Bill of Rights when it granted bail to Enrile
"x x x.
Thus, in letters, statements, and court pleadings, we repeatedly asked the same key questions: “Doesn’t this practice of immediately denying bail to an accused charged with a capital offense, upend and undermine the constitutional presumption of innocence?” “Doesn’t the presumption of innocence require that the State should instead immediately admit the accused to bail until and unless the state proves that the evidence of guilt is strong?”
Our campaign to reform procedure was of course unmarred by any victory, especially in court. This was, after all, the very procedure established and enabled in the Rules of Court. And it still is, at present under Section 7, Rule 14 of the Rules of Court, which provides that “[n]o person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.”
The courts obliged, never mind that this particular rule of court was, on its face, already a distortion of the Constitutional command that “[A]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.”
But while we always lost this argument, I never ceased believing in the idea that the right to bail can still be better served by reforming our criminal procedure, even if its latest advocate was Senator Juan Ponce Enrile, a man who so profoundly personified a regime that had done so much to harm civil liberties and human rights in the Philippines.
The Supreme Court had a singular opportunity, in resolving the Senator’s petition, to definitively strengthen the right to bail by redefining the procedure for its exercise in relation to the presumption of innocence. Had the Supreme Court seized that opportunity to declare that the accused, even those charged with capital offenses, should henceforth be allowed to bail and freedom until the state succeeds in showing that its evidence is strong, it would have returned criminal procedure to its libertarian moorings in the Bill of Rights, and truly reconciled the right to bail to the constitutional presumption of innocence.
Indeed, had the Supreme Court chosen this course, the consequent freeing of Senator Enrile would have been a modest price to pay because then, all Filipinos, Senators and farmers alike, would at last be truly entitled to bail as a matter of right and would at last be truly presumed innocent as promised them by their Constitution.
But the Court, courtesy of the majority decision, chose to do something else altogether. It chose instead to free the Senator on the basis of an argument he did not make, and reasoning that, in this lawyer’s opinion, only further dislodges the Bill of Rights from its proper place in the center of the administration of justice.
The majority admitted the senator’s request for bail because he was old and supposedly ill, and because he was allegedly not a flight risk. But jurisprudence instructs that “flight risk” is relevant in the grant or denial of bail only when the seeker of bail is in danger of extradition to another country and thus irrelevant where the accused is not to be extradited but tried for a capital offense in the Philippines. In the latter situation, the sole measure of entitlement to bail remains to be the one provided in the Constitution: the strength or weakness of the evidence of guilt.
There is, to be sure, a 1946 Supreme Court decision which suggests that bail may be granted an accused who is seriously ill. But the majority simply ignored the several inconvenient truths that should have cautioned against the invocation of this dated precedent in favor of the senator. To begin with, he himself did not feel sufficiently ill to raise the state of his health in his plea for bail. Also, there was no competent evidence, tested in proper judicial proceedings, of his true afflictions and their gravity. Finally, and in any event, the Sandiganbayan had already made adequate provision for any deterioration in his health.
Bail is discretionary only after conviction, and only under certain, strictly defined circumstances. On the other hand, bail is a matter of right before conviction, even in capital offenses, except only when the evidence of guilt is strong. But the Supreme Court allowed the senator to post bail without any judicial finding that the evidence of his guilt was not strong. In so doing, the Court had effectively removed the right to bail from the careful calibrations in the Constitution and in statue and case law, and relocated it to the treacherous reaches of magisterial discretion.
The decision to grant bail was liberally couched in the vestments of compassionate justice and human rights. Ironically, however, to the extent that compassionate discretion has only rarely -- if ever -- been exercised in favor of the poor, marginalized, and nameless, human rights has not at all been well served in this instance.
Rafael A. L. Aquino is a partner in the Santos Parungao Aquino and Santos Law Offices, a member of the Free Legal Assistance Group, married to another lawyer, and the father of a young lady who is not interested in becoming a lawyer.
x x x."
Sunday, August 30, 2015
"x x x.
Social media is abuzz with the large protest by the Iglesia ni Cristo (INC), first at the Department of Justice (DOJ) compound in Manila on Thursday, and now at the Edsa-Ortigas-Shaw area. As a result, widespread traffic was experienced by motorists and commuters who planned on enjoying the long weekend and payday weekend.
Because of the large scale of the protest (INC members from as far as Bicol, Nueva Ecija, Pangasinan, Zambales and Batangas joined the rally), politicians, journalists, and other personalities aired their thoughts via social media.
Ira Panganiban, a veteran journalist whose credentials range from ABS-CBN to Inquirer Radio, was not impressed. According to a viral list he posted on Facebook:
1. Everyone has to right to free expression.
2. Everyone has the right not to be inconvenienced by their neighbors.
3. When a crime or transgression of the law is committed, authorities must be allowed to investigate.
4. Separation of church and state is a doctrine created to PREVENT THE CHURCH from meddling in state affairs. Read your history and law books.
5. Filing of criminal charges are state affairs not church affairs.
6. Disruption of peace and order, blocking road routes, leaving trash after a public event, and just being a general pest to the public are violation of the law and just ordinary human decency.
7. Calling people who do not agree with you names and threatening them with harm and indecent action is called BIGOTRY.
According to members of INC, they are protesting the DOJ after Justice Secretary Leila de Lima ordered an investigation on the illegal detention case filed by expelled INC minister Isaias Samson against some of its leaders. Samson said he was accused of being behind a blog exposing alleged corruption in the church. Their battle cry: to uphold the separation of church and state.
x x x."
Read more at http://www.wheninmanila.com/viral-veteran-journalist-shares-his-thoughts-on-the-inc-rally/#wPOgcky6hdj7QMvU.99
See - Leila de Lima: Justice without fear or favor | Opinion, News, The Philippine Star | philstar.com
"x x x.
"x x x.
During her speech before members of the Makati Business Club, Secretary de Lima talked about inclusive justice. She said:
“Justice cannot be for the few, or the rich, or the well connected. It must be for every man, woman and child regardless of social, economic or political background. Justice must not be corroded, it cannot be partial, it ought to be complete.
Inclusive justice, in truth, often imposes a heavy burden upon those mandated to implement it, for it requires equal application to all regardless – and at times precisely because – of the status of those who find themselves the subject of its scrutiny. The words ‘Justice without fear or favor’ takes on a whole new dimension when those who ought to have acted within the bounds of law, and should have shown utmost respect for it are the ones caught flouting it... thus becomes incumbent upon us, the vanguards of justice to discharge the sacred duty of proving that no one is above the law – not those in the executive, the legislative or judicial branch of government – and that no one can defy it with impunity. After, all between justice and impunity, there can be no choice.“
But, in front of the most prominent businessmen in the country she talked of a greater challenge especially for those who are rich and powerful. She called this responsibility of the elite as “inner justice.”
“Above all, though, we can only hope to succeed as collective only when the one essential component of “inclusive justice” is in place. This is the requirement of ‘inner justice.’ There is inner justice when we treat our spouses and children with respect and love. There is inner justice when we refuse to pay bribes regardless of the cost or inconvenience. There is inner justice when we give clear instructions to our lawyers, agents to not cut corners or engage in under the table transactions for the sake of business. There is inner justice when we stop rationalizing our actions but instead discern on what truly is the right thing to do. “
Institutionalizing the rule of law is not the sole responsibility of the government, but of the whole society, especially the rich and the powerful. Justice without fear or favor can only be attained if the people especially the elite accepts this challenge of “inner justice.”
x x x."
Bouncing checks; BP Blg. 22; accused acquitted because he had previously paid in full the amount of the dishonored check before the filing of the Information in court.
ARIEL T. LIM vs. PEOPLE OF THE PHILIPPINES, G.R. No. 190834, November 26, 2014
“x x x.
Thus, the present petition wherein petitioner posits that jurisprudence dictates the dismissal of the criminal case against him on the ground that he has fully paid the amount of the dishonored checks even before the Informations against him were filed incourt. Petitioner mainly relies on Griffith v. Court of Appeals, 428 Phil. 878 (2002).6 The Office of the Solicitor General (OSG) likewise recommends the acquittal of petitioner, opining that Griffith7 is applicable to the present case.
The Court finds the petition meritorious.
In Griffith,the Court acquitted the accused therein due to the fact that two years before the filing of the Information for violation of B.P. No. 22, the accused had, in effect, paid the complainant an amount greater than the value of the bounced checks. The CA held that the factual circumstances in Griffith are dissimilar from those in the present case. The Court disagrees with such conclusion.
The CA found Griffith inapplicable to the present case, because the checks subject of this case are personal checks, while the check involved in Griffithwas a corporate check and, hence, some confusion or miscommunication could easily occur between the signatories of the check and the corporate treasurer. Although the factual circumstances in the present case are not exactly the same as those in Griffith, it should be noted that the same kind of confusion giving rise to petitioner's mistake very well existed in the present case. Here, the check was issued by petitioner merely as a campaign contribution to Castor's candidacy. As found by the trial court, it was Castor who instructed petitioner to issue a "Stop Payment" order for the two checks because the campaign materials, for which the checks were used as payment, were not delivered on time. Petitioner relied on Castor's word and complied with his instructions, as it was Castor who was supposed to take delivery of said materials. Verily, it is easy to see how petitioner made the mistake of readily complying with the instruction to stop payment since he believed Castor's word that there is no longer any valid reason to pay complainant as delivery was not made as agreed upon. Nevertheless, two months after receiving the demand letter from private complainant and just several days after receiving the subpoena from the Office of the Prosecutor, accused issued a replacement check which was successfully encashed by private complainant.
The CA also took it against petitioner that he paid the amount of the checks only after receiving the subpoena from the Office of the Prosecutor, which supposedly shows that petitioner was motivated to pay not because he wanted to settle his obligation but because he wanted to avoid prosecution. This reasoning is tenuous, because in Griffith, the accused therein did not even voluntarily pay the value of the dishonored checks; rather, the complainant was paid from the proceeds of the invalid foreclosure of the accused's property. In said case, the Court did not differentiate as to whether payment was made before or after the complaint had been filed with the Office of the Prosecutor. It only mattered that the amount stated in the dishonored check had actually been paid before the Information against the accused was filed in court. In this case, petitioner even voluntarily paid value of the bounced checks. The Court, therefore, sees no justification for differentiating this case from that of Griffith. Records show that both in Griffith and in this case, petitioner had paid the amount of the dishonored checks before the filing of the Informations in court. Verily, there is no reason why the same liberality granted to the accused in Griffith should not likewise be extended to herein petitioner. The precept enunciated in Griffith is herein reiterated, to wit:
While we agree with the private respondent that the gravamen of violation of B.P. 22 is the issuance of worthless checks that are dishonored upon their presentment for payment, we should not apply penal laws mechanically. We must find if the application of the law is consistent with the purpose of and reason for the law. Ratione cessat lex, et cessat lex. (When the reason for the law ceases, the law ceases.) It is not the letter alone but the spirit of the law also that gives it life. This is especially so in this case where a debtor’s criminalization would not serve the ends of justice but in fact subvert it. The creditor having collected already more than a sufficient amount to cover the value of the checks for payment of rentals, via auction sale, we find that holding the debtor’s president to answer for a criminal offense under B.P. 22 two years after said collection is no longer tenable nor justified by law or equitable considerations.
In sum, considering that the money value of the two checks issued by petitioner has already been effectively paid two years before the informations against him were filed, we find merit in this petition. We hold that petitioner herein could not be validly and justly convicted or sentenced for violation of B.P. 22. x x x8 (Emphasis supplied)
In the more recent case of Tan v. Philippine Commercial International Bank, 575 Phil. 485 (2008)9 the foregoing principle articulated in Griffith was the precedent cited to justify the acquittal of the accused in said case. Therein, the Court enumerated the elements for violation of B.P. Blg. 22 being "(1) The accused makes, draws or issues a check to apply to account or for value; (2) The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment."10 To facilitate proving the second element, the law created a prima facie presumption of knowledge of insufficiency of funds or credit, which is established when it is shown that the drawer of the check was notified of its dishonor and, within five banking days thereafter, failed to fully pay the amount of the check or make arrangements for its full payment. If the check, however, is made good or the drawer pays the value of the check within the five-day period, then the presumption is rebutted. Evidently, one of the essential elements of the violation is no longer present and the drawer may no longer be indicted for B.P. Blg. 22. Said payment within the period prescribed by the law is a complete defense.
Generally, only the full payment of the value of the dishonored check during the five-day grace period would exculpate the accused from criminal liability under B.P. Blg. 22 but, as the Court further elaborated in Tan:
In Griffith v. Court of Appeals, the Court held that were the creditor had collected more than a sufficient amount to cover the value of the checks representing rental arrearages, holding the debtor's president to answer for a criminal offense under B.P. Blg. 22 two years after the said collection is no longer tenable nor justified by law or equitable considerations. In that case, the Court ruled that albeit made beyond the grace period but two years prior to the institution of the criminal case, the payment collected from the proceeds of the foreclosure and auction sale of the petitioner's impounded properties, with more than a million pesos to spare, justified the acquittal of the petitioner.
x x x x.
In the present case, PCIB already extracted its proverbial pound of flesh by receiving and keeping in possession the four buses – trust properties surrendered by petitioner in about mid 1991 and March 1992 pursuant to Section 7 of the Trust Receipts Law, the estimated value of which was "about P6.6 million." It thus appears that the total amount of the dishonored checks – P1,785,855.75 – , x x x was more than fully satisfied priorto the transmittal and receiptof the July 9, 1992 letter of demand. In keeping with jurisprudence, the Court then considers such payment of the dishonored checks to have obliterated the criminal liability of petitioner.
It is consistent rule that penal statutes are construed strictly against the State and liberally in favor of the accused. And since penal laws should not be applied mechanically, the Court must determine whether the application of the penal law is consistent with the purpose and reason of the law. x x x11 (Underscoring supplied)
Thus, although payment of the value of the bounced check, if made beyond the 5-day period provided for in B.P. Blg. 22, would normally not extinguish criminal liability, the aforementioned cases show that the Court acknowledges the existence of extraordinary cases where, even if all the elements of the crime or offense are present, the conviction of the accused would prove to be abhorrent to society's sense of justice. Just like in Griffith and in Tan,12petitioner should not be penalized although all the elements of violation of B.P. Blg. 22 are proven to bepresent. The fact that the issuer of the check had already paid the value of the dishonored check after having received the subpoena from the Office of the Prosecutor should have forestalled the filing of the Information incourt. The spirit of the law which, for B.P. Blg. 22, is the protection of the credibility and stability of the banking system, would not be served by penalizing people who have evidently made amends for their mistakes and made restitution for damages even before charges have been filed against them. In effect, the payment of the checks before the filing of the informations has already attained the purpose of the law.
It should be emphasized as well that payment of the value of the bounced check after the information has been filed in court would no longer have the effect of exonerating the accused from possible conviction for violation of B.P. Blg. 22. Since from the commencement of the criminal proceedings in court, there is no circumstance whatsoever to show that the accused had every intention to mitigate or totally alleviate the ill effects of his issuance of the unfunded check, then there is no equitable and compelling reason to preclude his prosecution. In such a case, the letter of the law should be applied to its full extent.
Furthermore, to avoid any confusion, the Court's ruling in this case should be well differentiated from cases where the accused is charged with estafa under Article 315, par. 2(d) of the Revised Penal Code, where the fraud is perpetuated by postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. In said case of estafa, damage and deceit are the essential elements of the offense, and the check is merely the accused's tool in committing fraud. In such a case, paying the value of the dishonored check will not free the accused from criminal liability. It will merely satisfy the civil liability of the crime but not the criminal liability.
In fine, the Court holds that herein petitioner must be exonerated from the imposition of penalties for violation of B.P. Blg. 22 as he had already paid the amount of the dishonored checks six (6) months before the filing of Informations with the court. Such a course of action is more in keeping with justice and equity.
X x x.”
“x x x.
R E P L Y
(In Re: Plaintiff’s OPPOSITION, Dated xxx, to Defendants’ Pending “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”
THE DEFENDANTS, by counsel, respectfully state:
1. It will be recalled that in the Defendants’ pending “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”, the Defendants prayed, thus:
“WHEREFORE, in the interest of justice, it is respectfully prayed that, for the legal and factual reasons stated hereinabove:
1. The ORDER, dated xxx, be RECALLED and REVOKED; and
2. The grant of a Preliminary Injunction stated thereunder in favor of the Plaintiff be DISSOLVED.
FURTHER, the Defendants respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.”
2. It will likewise be recalled that in the subsequent related motion of the Defendants, entitled “VERIFIED AD CAUTELAM SUPPLEMENTAL MOTION (In Relation to the Defendants Pending “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”, dated xxx)”, which is also pending before this Court, they prayed, thus:
“WHEREFORE, in the interest of justice, it is respectfully prayed that, after notice and hearing:
1. This “VERIFIED AD CAUTELAM SUPPLEMENTAL MOTION (In Relation to the Defendants Pending “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”, dated xxxx)” be noted and considered, by way of ad cautelam remedy, to form part of the proceedings and the resolution of the pending motion filed by the
Defendants, entitled “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”, dated xxx, which has been set for motion hearing on xxx.
2. In the event that the Defendants’ pending “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”, dated xxx, is denied by the Court on the ground that [a] the Plaintiff has indeed posted an injunction bond and [b] that a formal Writ of Preliminary Injunction, if any, has indeed by issued by the Court to enforce its Order, dated xxxx, by way of ad cautelam remedy, an Order be issued allowing the Defendants to post a COUNTER-BOND to recall the Order, dated xxx, and to lift the Writ of Preliminary Injunction issued thereunder, if any. (Sec. 6, Rule 58).
FURTHER, the Defendants respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.”
3. Furthermore, in relation to the pending COUNTERBOND ISSUE, it will be recalled that the Defendants have likewise subsequently filed “URGENT EX PARTE MOTION FOR LEAVE OF COURT TO PRESENT EVIDENCE TO PROVE THE FACTUAL ISSUES IN SUPPORT OF THE “INJUNCTION COUNTERBOND” ISSUE UNDER SEC. 6, RULE 58”, which is also pending before this Court.
It prays for the following reliefs:
“WHEREFORE, premises considered, it is respectfully prayed that the Defendants, thru Counsel, be granted leave of Court to present Testimonial and Document Evidence to prove the Factual Issues referred to and provided in Sec. 6 of Rule 58 for purposes of the “Injunction Counterbond” Issue.
FURTHER, it is respectfully prayed that the resolution by the Court of the aforecited pending Motion (i.e., “VERIFIED AD CAUTELAM SUPPLEMENTAL MOTION (In Relation to the Defendants Pending ‘URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER’, dated xxx)”, dated xxx, be held in abeyance, pending presentation of Testimonial and Documentary Evidence by the Defendants to prove the said Factual Issues alleged therein.
FINALLY, the Defendants respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.”
4. Please note that the Plaintiff’s OPPOSITION, supra, dwelled only with respect to the first pending motion, supra, that is, Defendants’:
“URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER”.
5. It will be noted that the Court, during the hearing held on xxx, had ordered the Plaintiff to file its Oppositions to all the pending four (4) motions of the Defendants.
6. The Defendants deny the theory of the Plaintiff that the Defendants’ pending “URGENT MOTION TO RECALL AND REVOKE THE ORDER, DATED xxx; AND TO DISSOLVE THE PRELIMINARY INJUNCTION THEREUNDER” is allegedly a disguised motion for reconsideration.
6.1. The subject matter of all of the foregoing pending motions of the Defendants do not refer to the validity or merits of the past Preliminary Injunction Order issued by the Court (which are proper subjects for a seasonable motion for reconsideration).
6.2. Instead, the said pending motions of the Defendants refer to the new purely legal and new purely procedural issues of:
6.2.1. UNENFORCEABILITY of the Preliminary Injunction Order due to:
(a) The lack of a Bond;
(b) The vagueness of the legal nature of the past TRO Cash Bond posted by the Plaintiff; and
(c) The applicability of the past TRO Cash Bond to the subsequent Preliminary Injunction Order of the Court; - and
6.2.2. The total absence of a formal Writ of Preliminary Injunction that shall enforce the Preliminary Injunction Order as mandated by the Rule 58.
6.3. All of the above new legal and procedural issues were not existing at the time of the issuance of the past TRO and the subsequent Preliminary Injunction Order.
7. At any rate, upon further inquiry with the Defendants, the undersigned Counsel has learned that the Plaintiff had indeed posted a Cash Bond, but the same was posted only for purposes of the past Temporary Restraining Order (TRO) issued by the Court.
7.1. There is no formal Order showing that the said TRO Cash Bond has been recognized by the Court as the Plaintiff’s continuing Cash Bond in support of the subsequent Preliminary Injunction ordered by the Court.
7.2. As far as the Record goes, the said Cash Bond was posted by the Plaintiff for purposes of the earlier 20-day TRO issued by the Court.
7.2.1. The legal lifespan of the said TRO had long expired.
7.3. The Record does not show that the Plaintiff has filed a Manifestation/Motion seeking recognition of the past TRO Cash Bond as its equivalent Cash Bond for purposes of the subsequent Preliminary Injunction ordered by the Court.
7.4. Nor is there an extant Order in the Record expressly and specifically recognizing the past TRO Cash Bond as to constitute the new Preliminary Injunction Cash Bond of the Plaintiff.
8. The Defendants reiterate the following facts and issues for consideration by the Court, as raised in all their Injunction-related pending motions, thus:
8.1. Nothing in the Record shows that the Court has issued a formal Writ of Preliminary Injunction to this very date.
8.1.1. A Writ is mandatory to enforce a Preliminary Injunction Order under Rule 58.
8.2. The Order, dated xxx, in effect, remains on inactive status (effectively on archived status) to this very date.
8.3. For lack (or non-issuance) of a formal Writ of Preliminary Injunction, the aforecited Order remains and ought to be deemed UNENFORCEABLE.
8.4. For lack of (i.e., failure to post) the mandatory Preliminary Injunction Bond (different and separate from a TRO Bond), all the injunctive commands stated in the aforementioned Order against the Defendants remain and ought to remain UNENFORCEABLE.
8.5. The Plaintiff pursues the implementation of the of Preliminary Injunction Order, despite its non-enforceability:
8.5.1. To unjustly paralyze and injure the administration, leadership and operations of the defendants, as the incumbent members and officers of the Board of Directors of the xxx Subdivision Homeowners Association, Inc. (xxx) in actual control of the xxx Water Co., Inc. - affiliated water system, water facilities, and water connections serving the homeowners of the said village;
8.5.2. To unjustly mislead the homeowners of the village that the Plaintiff is in good standing or has a legal basis to be the accredited/contracted Operator of the xxx water system, facilities, and connections.
8.5.3. To ignore the fact that the xxx board resolution granting to the Plaintiff the power to operate the water system, facilities, and connections of the village had been REVOKED in xxx by the xxx
Board composed of the Defendants as Directors and Officers, which the General Membership had subsequently ratified.
8.5.4. To unjustly cause huge demoralization, confusion, vexation, alarms and destructive disunity among the innocent homeowners of xxx and within the very leadership core of the Association.
9. At any rate, the Defendants have invoked and hereby continue to invoke their right to post a COUNTERBOND in their aforecited pending motions for the purpose of lifting the Preliminary Injunction Order.
9.1. This is a factual issue that would require evidence presentation by the Defendants.
9.2. The Defendants, in their aforecited pending motions, have invoked their right to present evidence to prove compliance with Sec. 6, Rule 68.
9.3. They must prove whether they are entitled to the lifting of the Preliminary Injunction Order subject to the posting of a Counterbond as allowed by Sec. 6, Rule 58.
10. Sec. 6, Rule 58 (Grounds for objection to, or for motion of dissolution of, injunction or restraining order) provides, inter alia, that:
“(t)he injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified”.
11. To protect the due process rights of the Defendants, they hereby reiterate that they intent to present evidence to prove compliance with the foregoing provision of Rule 58, that is:
(a) That a preliminary injunction “x x x if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order.”
(b) That “if it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.”
WHEREFORE, it is respectfully prayed that all of the pending motions of the Defendants enumerated in Paragraphs 1, 2 and 3 of this Reply, supra, be GRANTED en toto as prayed for in the said pending motions, subject to the qualifying prayer stated in the following paragraph, infra.
FURTHER, the Defendants respectfully pray that the issue of :
(a) whether to recall of the Preliminary Injunction Order and
(b) whether to allow the Defendants to post a COUNTERBOND in order to lift the Preliminary Injunction be DEFERRED by the Court until such time that the Defendants shall have completed their evidence presentation to prove their compliance with substantive and procedural requirements of Sec. 6, Rule 58, supra.
xxx, xxx, 2015.
Counsel for Defendants
Unit 15, Star Arcade, C. V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel. Nos. 8725443 & 8462539
X x x.”
“x x x.
R E P L Y
(In Re: Plaintiff’s OPPOSITION, Dated xxx, to the Defendants’ Pending URGENT AD CAUTELAM MOTION TO DENY DUE COURSE TO AND EXPUNGE PLAINTIFF’S MOTION TO CITE RESPONDENTS FOR INDIRECT CONTEMPT)
THE DEFENDANTS, by counsel, respectfully state:
1. In the defendants’ pending URGENT AD CAUTELAM MOTION TO DENY DUE COURSE TO AND EXPUNGE PLAINTIFF’S MOTION TO CITE RESPONDENTS FOR INDIRECT CONTEMPT, they prayed for the following reliefs:
“x x x.
WHEREFORE, in the interest of justice and for the legal reasons cited hereinabove, it is respectfully prayed that, after notice and hearing, an Order be issued:
1. GRANTING the Defendants’ herein “URGENT AD CAUTELAM MOTION TO DENY DUE COURSE TO AND TO EXPUNGE PLAINTIFF’S “MOTION TO CITE RESPONDENTS FROBERG, CRUZ, GARCIA, JUSI, JUANER AND DAVID FOR INDIRECTT CONTEMPT”, DATED MAY 26, 2015;
2. DENYING DUE COURSE to the Plaintiff’s aforecited Motion;
3. EXPUNGING from the Record the aforecited Plaintiff’s Motion;
4. RECALLING AND REVOKING the previous Order, dated xxx, setting the Plaintiff’s Motion for hearing before the Court on xxx at xxx, and all such subsequent Orders issued thereafter;
5. X x x.
6. By way of Ad Cautelam Relief, GRANTING the Defendants, by counsel, a reasonable time, e.g. 15 days, to file their formal COMMENT to the Plaintiff’s pending Motion to Cite the Defendants for Indirect Contempt if and when this Ad Cautelam Motion of the Defendants is denied, the period to file the said Comment to be counted from date of receipt of the Order, if any, denying this Motion.
7. Further, by way of Ad Cautelam Relief, GRANTING the Defendants sufficient time to PRESENT both TESTIMONIAL AND DOCUMENTARY EVIDENCE, in chief and in rebuttal phases, to prove the lack of merit of Plaintiff’s pending Motion, if and when this Motion of the Defendants is denied.
FURTHER, the Defendants respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.
X x x.”
2. The defendants hereby reiterate the foregoing prayers in this Reply.
2.1. Further, they hereby adopt, by incorporation and reference, the foregoing prayers into this Reply.
3. The 2005 case of JOSE C. LEE AND ALMA AGGABAO, et. al. vs. REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 85, et. al., G.R. No. 146006, April 22, 2005, cited by the Plaintiff, appears to be not on all fours with the pending incident before this Court.
3.1. The abovecited case of Lee, et. al. vs. RTC involved private respondents’ omnibus motion to cite petitioners in indirect contempt of the Supreme Court (SC) for their refusal to comply with the final and executory decision of the SC.
3.2. In the said case, the SC noted that on July 9, 2004, the February 23, 2004 decision became final and executory, and was recorded in the book of entries of judgments.
3.3. On October 1, 2004, an alias writ of execution was issued by the intestate court (the court of origin).
3.4. In said writ, the deputy sheriffs were ordered to enforce the August 11 and 29, 1997 and July 6, 2000 orders of the intestate court.
3.5. Instead of complying with the writ, petitioners filed on October 15, 2004, a motion to suspend execution/period of compliance by reason of supervening events, raising the following arguments: (1) the intestate court had already revoked the appointment of private respondent as special administratrix; (2) there was a need to lay down the legal procedure in the implementation of the writ and (3) there must be a declaration that the price per share of the 2,029 shares was only P1,000 which was its book value at the time the shares were sold in 1989 and 1991.
3.6. Private respondent went back to the SC and filed the pending omnibus motion to cite the petitioners for indirect contempt asserting that petitioners made a travesty of the final and executory decisions of the Lower Courts and the SC when they refused to comply with the Alias Writ of Execution issued by the Lower Court.
3.7. In the said case the SC stated, citing Remman Enterprises, Inc. v. CA, 335 Phil. 1150 (1997), that “Section 3, Rule 71 of the Rules of Court outlines the procedural requisites before the accused may be punished for indirect contempt: (1) the filing of a written charge and (2) an opportunity to be heard by himself or counsel”; that “all that the law requires is that there is a charge in writing duly filed in court and an opportunity given to the person charged to be heard by himself or counsel; that “what is important is that the alleged contemner be granted an opportunity to meet the charges against him and to be heard in his defense”; and that “petitioners were given this opportunity; they in fact filed their Opposition”.
3.8. The said case involved an obstinate refusal on the part of the petitioners to abide by the SC’s February 23, 2004 decision, the SC added.
3.9. The SC recalled therein that in its February 23, 2004 decision, it had admonished the petitioners not to further delay the execution of the Orders of the intestate court dated August 11 and August 29, 1997.
4. It will be noted, though, that in the 2008 case entitled IN THE MATTER OF THE CONTEMPT ORDERS AGAINST LT. GEN. JOSE M. CALIMLIM AND ATTY. DOMINGO A. DOCTOR, JR., G.R. No. 141668, August 20, 2008, the SC discussed the proper procedure for indirect contempt.
4.1. The SC stated that Sections 3 and 4, Rule 71 of the Rules of Court provide the procedure to be followed in case of indirect contempt.
4.1.1. First, there must be an order requiring the respondent to show cause why he should not be cited for contempt.
4.1.2. Second, the respondent must be given the opportunity to comment on the charge against him.
4.1.3. Third, there must be a hearing and the court must investigate the charge and consider respondents answer.
4.1.4. Finally, only if found guilty will respondent be punished accordingly.
4.2. In the said case, Judge Cruz-Avisado failed to observe the proper procedure in the exercise of the power to punish for indirect contempt.
4.2.1. The SC stated that, first, there can be no indirect contempt absent any prior written charge.
4.2.2. In the 19 November 1999 Order, Judge Cruz-Avisado only ordered petitioners to explain their failure to bring Pitao before the RTC for his scheduled arraignment.
4.2.3. The 19 November 1999 Order did not yet amount to a show-cause order directing petitioners to explain why they should not be cited for indirect contempt.
4.2.4. The SC stated that absent an order specifically requiring petitioners to show cause why they should not be punished for contempt, Judge Cruz-Avisado had no authority to punish petitioners.
4.3. The SC further stated that if the answer to the contempt charge is satisfactory, the contempt proceedings end.
4.3.1. The SC stated that even if it considered the 19 November 1999 Order sufficient to charge petitioners with indirect contempt, petitioners still could not be punished for contempt because Judge Cruz-Avisado found petitioners explanation satisfactory.
4.3.2. It added that only in cases of clear and contumacious refusal to obey should the power to punish for contempt be exercised.
4.3.3. It stated that absent any finding that petitioners contumaciously refused to comply with the orders of the RTC, Judge Cruz-Avisado had no reason to punish petitioners for indirect contempt.
4.4. Lastly, the SC stated that there must be a hearing conducted on the contempt charge.
4.4.1. In the said case, no hearing was ever conducted, the SC found.
4.4.2. After receiving petitioners Compliance, Judge Cruz-Avisado immediately issued the 11 December 1999 Order, the SC added.
4.4.3. Petitioners were not afforded full and real opportunity to be heard, the SC stated.
4.4.4. The SC also stated that “since a contempt charge partakes of the nature of a criminal prosecution and follows the proceedings similar to criminal prosecution, judges must extend to the alleged contemner the same rights accorded to an accused.”
4.4.5. It added that Judge Cruz-Avisado “should have given petitioners their day in court and considered the testimony and evidence petitioners might offer”.
5. The 2007 case of ROMEO T. AQUINO vs. JENNIFER NG, G.R. NO. 155631, July 27, 2007 is on all fours with the pending motion of the defendants.
It is the applicable jurisprudence in the instant pending incident.
5.1. In the aforecited case of Aquino vs. Ng, the underlying case a quo was Civil Case No. 98-0870, an action for Collection of Sum of Money with Damages filed by respondent against Doughmix, Inc. (Doughmix), represented by petitioner as its General Manager.
5.2. In its Decision dated August 23, 1999, the RTC held Doughmix liable to respondent in the amount of
P360,357.00 plus legal
interest, attorney's fees and costs of suit.
5.3. The RTC Decision became final and executory for failure of Doughmix to file a notice of appeal on time and pay the appropriate docket fees.
5.4. Upon motion of respondent, the RTC, in its Order dated October 12, 1999, granted the issuance of a writ of execution.
5.5. It appears, however, that the writ of execution was returned unsatisfied.
5.6. Respondent then filed a motion to recall petitioner, asking for the appearance of petitioner for a conference before the RTC.
5.7. The RTC granted respondent's motion and ordered petitioner to appear before it on December 9, 1999.
5.8. Petitioner, however, failed to appear on said date, prompting respondent to file a motion to cite him in contempt.
5.9. In an Order dated March 15, 2000, the RTC granted respondent's motion and cited petitioner for indirect contempt.
5.10. Subsequently, said Order was recalled and set aside by the RTC per its Order dated May 29, 2000 when petitioner appeared and testified before it on said date and gave the address of Doughmix.
5.11. Failing to implement the writ of execution, and it appearing that petitioner furnished an incorrect address of Doughmix, respondent filed a Motion to Reinstate the Contempt Order Against the Defendant.
5.12. The RTC then conducted a summary hearing where petitioner claimed that he made an honest mistake in giving a wrong address of Doughmix.
5.13. In the assailed Order dated October 3, 2000, the RTC reiterated its ruling finding petitioner in contempt.
5.14. Thus, petitioner filed a special civil action for certiorari with the CA, questioning the orders issued by the RTC.
5.15. In a Decision dated January 31, 2002, the CA dismissed the petition for lack of merit. Petitioner filed a motion for reconsideration, but this was denied by the CA in a Resolution dated October 9, 2002.
5.16. In the aforementioned case of Aquino v. Ng, the SC stated that “Section 3, Rule 71 of the 1997 Rules of Civil Procedure, as amended, specifically outlines the procedural requisites before one may be punished for indirect contempt, to wit: (1) the filing of a written charge and (2) the opportunity to be heard given to the accused himself or his counsel.”
In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. (Emphasis and underscoring supplied)
5.19. It added that in the case before it, petitioner's first indirect contempt citation was initiated by respondent “through a mere Motion to Cite Defendant in Contempt.”
5.20. In the said case, the SC found that after the RTC recalled the contempt citation, respondent initiated anew another contempt charge against petitioner “by filing a Motion to Reinstate the Contempt Order Against the Defendant”.
The requirement of a verified petition is mandatory. Justice Florenz D. Regalado, Vice-Chairman of the Revision of the Rules of Court Committee that drafted the 1997 Rules of Civil Procedure explains this requirement:
1. This new provision clarifies with a regulatory norm the proper procedure for commencing contempt proceedings. While such proceeding has been classified as a special civil action under the former Rules, the heterogeneous practice, tolerated by the courts, has been for any party to file a mere motion without paying any docket or lawful fees therefor and without complying with the requirements for initiatory pleadings, which is now required in the second paragraph of this amended section.
x x x x x x x x x
Henceforth, except for indirect contempt proceedings initiated motu proprio by order of or a formal charge by the offended court, all charges shall be commenced by a verified petition with full compliance with the requirements therefor and shall be disposed of in accordance with the second paragraph of this section. (Emphasis supplied).
5.23. The SC stated that, moreover, “the RTC failed to observe the standards of due process when it first cited petitioner for contempt of court.”
5.23.1. It stressed that “indirect contempt proceedings partake of the nature of a criminal prosecution; hence, strict rules that govern criminal prosecutions also apply to a prosecution for criminal contempt; the accused is to be afforded many of the protections provided in regular criminal cases; and proceedings under statutes governing them are to be strictly construed.”
5.23.2. The SC added that the “records do not bear any indication that petitioner was afforded an opportunity to rebut the charges against him when he was first charged by respondent with contempt.”
5.23.4. The SC stated that there was no question that petitioner's disobedience to the RTC's lawful order constitutes indirect contempt of court.
5.23.5. This, however, “was not a license for the RTC to disregard petitioner's rights”, it stated.
5.23.6. It added that the trial court “should have held a hearing in order to provide petitioner with the opportunity to state his defense and explain his side”.
5.23.7. It held that “a hearing affords the contemner the opportunity to adduce before the court documentary or testimonial evidence in his behalf”.
5.23.8. The hearing will also allow the court “a more thorough evaluation of the defense of the contemner, including the chance to observe the accused present his side in open court and subject his defense to interrogation from the complainants or the court itself”, the SC added.
WHEREFORE, it is respectfully prayed that the defendants’ prayers in its pending “URGENT AD CAUTELAM MOTION TO DENY DUE COURSE TO AND EXPUNGE PLAINTIFF’S MOTION TO CITE RESPONDENTS…FOR INDIRECT CONTEMPT” be GRANTED en toto as prayed for in the said pending motion.
xxx City, xxx, 2015.
Counsel for Defendants
Unit 15, Star Arcade, C. V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel. Nos. 8725443 & 8462539
X x x.”