Tuesday, January 30, 2018

If you're arrested or detained, know these rights: "The Constitution remains in effect even in times of emergency, such as during martial law. This means that rights during arrest or detention remain in place." - By Michael Bueza @mikebueza


See - https://www.rappler.com/newsbreak/iq/170936-rights-arrested-detained-persons



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MANILA, Philippines – The 1987 Constitution guarantees that no Filipino shall be deprived of life, liberty, or property without due process of law.

As long as a citizen abides by the law, he or she should not be in trouble.


But what if you're apprehended by authorities for some reason – or in times of emergency, like the recent declaration of martial law in Mindanao – you're picked up due to supposed security concerns?

Remember, the Constitution remains in effect – even during those times. Along with relevant laws and issuances, the Constitution makes sure citizen's rights continue to be respected.

Article III, Section 12 of the 1987 Constitution (also known as the Bill of Rights) states that any person under investigation for the commission of a crime or offense "shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice."

If you can't afford a lawyer, the state will provide you with one.

The right to remain silent is emphasized because any statement you give can be used against you in court.

Likewise, it is your right to call or have access to a lawyer at all times throughout the ordeal of arrest or detention.

These rights cannot be waived "except in writing and in the presence of counsel," says the Constitution.

More rights

If you're being arrested you should know these additional rights:
Know the reason for your arrest at the time of your arrest via an arrest warrant, which you should ask for
Ask for the identity and authority of the arresting officer
Be promptly brought before a judge and be "entitled to a trial within a reasonable time" or to be entitled to release subject to guarantees to appear for trial
Demand physical examination by an independent and competent doctor of your choice before and after interrogation, as stated in Republic Act 9745 or the Anti-Torture Act

A manual on law enforcement for citizens prepared by the Philippine National Police, in fact, says that prior to release or any change of custody, "you will...be physically examined."

Lawyer Marlon Manuel of the Alternative Law Groups, a coalition of legal resource non-governmental organizations,said that physical examination is already part of the police's booking procedures immediately after an arrest.

The Free Legal Assistance Group (FLAG), in its primer on human rights, also recommends that you stay calm, not resist arrest or offer any physical resistance, and ask a relative, friend or even anybody to witness the arrest. Make sure to get the witness' name and address.

FLAG also suggests you ask the arresting officer where you will be brought, and be accompanied by the witness of your arrest. Do not agree to be blindfolded.

If authorities invite you for questioning, say you will first consult your lawyer, who will arrange a date, time, and place for your questioning. If they insist on taking you with them, their acts become tantamount to an arrest.

This is different from custodial investigation, where you are taken into police custody for interrogation because you are "considered a suspect, and therefore are being investigated as a potential accused in a criminal case," said Manuel. "Usually, custodial investigation follows warrantless arrest."

"In short, if the invitation [for questioning] is not really an invitation but more of a deprivation of liberty, it becomes equivalent to custodial investigation," he added.

Warrantless arrest

Authorities may conduct a warrantless arrest, but only on the following grounds:
When the person to be arrested has committed, is actually committing, or is attempting to commit an offense in the presence of an arresting officer
When an offense has just been committed and the arresting officer has probable cause (based on personal knowledge of facts and circumstance) to believe that the person to be arrested has committed a crime
When the person has escaped prison/detention, or escaped while being transferred to another facility

If you're arrested without a warrant, you can only be detained for:
12 hours, for light offenses, which are punishable by light penalties
18 hours, for less grave offenses, punishable by correctional penalties
36 hours, for grave offenses, punishable by capital penalties

As a general rule, inquest proceedings – where a civilian prosecutor determines the legality of an arrest – are included in these time periods.

During detention

If you are arrested or detained, you are entitled to the following rights, according to FLAG:
Be treated as a human being
Due process, including being informed of written regulations in the detention center, and not being subjected to harsh, excessive or inhuman punishment such as corporal punishment or solitary confinement
Receive visits from family, friends, and lawyers
Practice your religion
Adequate food, clothing, and healthful accommodations
Be furnished with or to procure reading or writing materials
Be kept separate from convicts serving sentence
Speedy, impartial, and public trial, as likewise provided by the Constitution

According to Republic Act 7438, a person arrested, detained or under custodial investigation shall be allowed visits by:
Any member of his/her immediate family
A doctor/priest/religious minister chosen by him/her, the immediate family or by his/her counsel
Any nongovernmental organization accredited by the Commission on Human Rights (for national NGOs) or the Office of the President (for international NGOs)

RA 7438 defines a person's immediate family as "his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward."

Illegal acts

The following acts are illegal, according to the Bill of Rights of the Constitution:
Unreasonable searches and seizures
Use of torture, force, violence, threat, intimidation, or any other means which vitiate or impair the free will
Use of secret detention places, solitary, incommunicado, or other similar forms of detention
Use of a confession or admission obtained in violation of Article III, Section 17 of the Constitution, which says, "No person shall be compelled to be a witness against himself"
Detention solely by reason of his political beliefs and aspirations
Involuntary servitude in any form (except as a punishment for a crime whereof the party shall have been duly convicted)
Imposition of excessive fines
Infliction of cruel, degrading or inhuman punishment
Imprisonment for debt or non-payment of a poll tax

– Rappler.com


References: 1987 Constitution, International Covenant on Civil and Political Rights, Republic Act 7438, Republic Act 9745, a 2001 advisory of the Commission on Human Rights, "Know Your Rights" primer by the Free Legal Assistance Group (FLAG), "Know Your Rights: A Citizen Primer on Law Enforcement" by the Philippine National Police and Hanns Sidel Foundation
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R.A. 6770, Ombudsman Act of 1989



See - R.A. 6770 - lawphil.net


Republic Act No. 6770 November 17, 1989

AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

Section 1. Title. — This Act shall be known as "The Ombudsman Act of 1989".

Section 2. Declaration of Policy. — The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, efficiency, act with patriotism and justice and lead modest lives.

Section 3. Office of the Ombudsman. — The Office of the Ombudsman shall include the Office of the Overall Deputy, the Office of the Deputy for Luzon, the Office of the Deputy for the Visayas, the Office of the Deputy for Mindanao, the Office of the Deputy for the Armed Forces, and the Office of the Special Prosecutor. The President may appoint other Deputies as the necessity for it may arise, as recommended by the Ombudsman.

Section 4. Appointment. — The Ombudsman and his Deputies, including the Special Prosecutor, shall be appointed by the President from a list of at least twenty-one (21) nominees prepared by the Judicial and Bar Council, and from a list of three (3) nominees for each vacancy thereafter, which shall be filled within three (3) months after it occurs, each of which list shall be published in a newspaper of general circulation.

In the organization of the Office of the Ombudsman for filling up of positions therein, regional, cultural or ethnic considerations shall be taken into account to the end that the Office shall be as much as possible representative of the regional, ethnic and cultural make-up of the Filipino nation.

Section 5. Qualifications. — The Ombudsman and his Deputies, including the Special Prosecutor, shall be natural-born citizens of the Philippines, at least forty (40) years old, of recognized probity and independence, members of the Philippine Bar, and must not have been candidates for any elective national or local office in the immediately preceding election whether regular or special. The Ombudsman must have, for ten (10) years or more, been a judge or engaged in the practice of law in the Philippines.

Section 6. Rank and Salary. — The Ombudsman and his Deputies shall have the same ranks, salaries and privileges as the Chairman and members, respectively, of a Constitutional Commission. Their salaries shall not be decreased during their term of office.

The members of the prosecution, investigation and legal staff of the Office of the Ombudsman shall receive salaries which shall not be less than those given to comparable positions in any office in the Government.

Section 7. Term of Office. — The Ombudsman and his Deputies, including the Special Prosecutor, shall serve for a term of seven (7) years without reappointment.

Section 8. Removal; Filling of Vacancy. —

(1) In accordance with the provisions of Article XI of the Constitution, the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.

(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process.

(3) In case of vacancy in the Office of the Ombudsman due to death, resignation, removal or permanent disability of the incumbent Ombudsman, the Overall Deputy shall serve as Acting Ombudsman in a concurrent capacity until a new Ombudsman shall have been appointed for a full term.n case the Overall Deputy cannot assume the role of Acting Ombudsman, the President may designate any of the Deputies, or the Special Prosecutor, as Acting Ombudsman.

(4) In case of temporary absence or disability of the Ombudsman, the Overall Deputy shall perform the duties of the Ombudsman until the Ombudsman returns or is able to perform his duties.

Section 9. Prohibitions and Disqualifications. — The Ombudsman, his Deputies and the Special Prosecutor shall not, during their tenure, hold any other office or employment. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. They shall not be qualified to run for any office in the election immediately following their cessation from office. They shall not be allowed to appear or practice before the Ombudsman for two (2) years following their cessation from office.

No spouse or relative by consanguinity or affinity within the fourth civil degree and no law, business or professional partner or associate of the Ombudsman, his Deputies or Special Prosecutor within one (1) year preceding the appointment may appear as counsel or agent on any matter pending before the Office of the Ombudsman or transact business directly or indirectly therewith.

This disqualification shall apply during the tenure of the official concerned. This disqualification likewise extends to the law, business or professional firm for the same period.

Section 10. Disclosure of Relationship. — It shall be the duty of the Ombudsman, his Deputies, including the Special Prosecutor to make under oath, to the best of their knowledge and/or information, a public disclosure of the identities of, and their relationship with the persons referred to in the preceding section.

The disclosure shall be filed with the Office of the President and the Office of the Ombudsman before the appointee assumes office and every year thereafter. The disclosures made pursuant to this section shall form part of the public records and shall be available to any person or entity upon request.

Section 11. Structural Organization. — The authority and responsibility for the exercise of the mandate of the Office of the Ombudsman and for the discharge of its powers and functions shall be vested in the Ombudsman, who shall have supervision and control of the said office.

(1) The Office of the Ombudsman may organize such directorates for administration and allied services as may be necessary for the effective discharge of its functions. Those appointed as directors or heads shall have the rank and salary of line bureau directors.

(2) The Office of the Overall Deputy shall oversee and administer the operations of the different offices under the Office of Ombudsman.t shall likewise perform such other functions and duties assigned to it by the Ombudsman.

(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff. The Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman.

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon the authority of the Ombudsman, have the following powers:

(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan;

(b) To enter into plea bargaining agreements; and

(c) To perform such other duties assigned to it by the Ombudsman.

The Special Prosecutor shall have the rank and salary of a Deputy Ombudsman.

(5) The position structure and staffing pattern of the Office of the Ombudsman, including the Office of the Special Prosecutor, shall be approved and prescribed by the Ombudsman. The Ombudsman shall appoint all officers and employees of the Office of the Ombudsman, including those of the Office of the Special Prosecutor, in accordance with the Civil Service Law, rules and regulations.

Section 12. Official Stations. — The Ombudsman, the Overall Deputy, the Deputy for Luzon, and the Deputy for the Armed Forces shall hold office in Metropolitan Manila; the Deputy for the Visayas, in Cebu City; and the Deputy for Mindanao, in Davao City. The Ombudsman may transfer their stations within their respective geographical regions, as public interest may require.

Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people.

Section 14. Restrictions. — No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law.

Section 15. Powers, Functions and Duties. — The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.t has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;

(2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties;

(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglect to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: provided, that the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer;

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its rules of procedure, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action;

(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents;

(6) Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2), (3) and (4) hereof, when circumstances so warrant and with due prudence: provided, that the Ombudsman under its rules and regulations may determine what cases may not be made public: provided, further, that any publicity issued by the Ombudsman shall be balanced, fair and true;

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government, and make recommendations for their elimination and the observance of high standards of ethics and efficiency;

(8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records;

(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein;

(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided;

(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein.

The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of money and/or properties.

Section 16. Applicability. — The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office.

Section 17. Immunities. — In all hearings, inquiries, and proceedings of the Ombudsman, including preliminary investigations of offenses, nor person subpoenaed to testify as a witness shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and/or other records on the ground that the testimony or evidence, documentary or otherwise, required of him, may tend to incriminate him or subject him to prosecution: provided, that no person shall be prosecuted criminally for or on account of any matter concerning which he is compelled, after having claimed the privilege against self-incrimination, to testify and produce evidence, documentary or otherwise.

Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office.

Any refusal to appear or testify pursuant to the foregoing provisions shall be subject to punishment for contempt and removal of the immunity from criminal prosecution.

Section 18. Rules of Procedure. —

(1) The Office of the Ombudsman shall promulgate its rules of procedure for the effective exercise or performance of its powers, functions, and duties.

(2) The rules of procedure shall include a provision whereby the Rules of Court are made suppletory.

(3) The rules shall take effect after fifteen (15) days following the completion of their publication in the Official Gazette or in three (3) newspapers of general circulation in the Philippines, one of which is printed in the national language.

Section 19. Administrative Complaints. — The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;

(3) Are inconsistent with the general course of an agency's functions, though in accordance with law;

(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5) Are in the exercise of discretionary powers but for an improper purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.

Section 20. Exceptions. — The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that:

(1) The complainant has an adequate remedy in another judicial or quasi-judicial body;

(2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman;

(3) The complaint is trivial, frivolous, vexatious or made in bad faith;

(4) The complainant has no sufficient personal interest in the subject matter of the grievance; or

(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of.

Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.

Section 22. Investigatory Power. — The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.

In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities.

Section 23. Formal Investigation. —

(1) Administrative investigations conducted by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with due process.

(2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees, which shall be determined within the period prescribed in the civil service law. Any delay without just cause in acting on any referral made by the Office of the Ombudsman shall be a ground for administrative action against the officers or employees to whom such referrals are addressed and shall constitute a graft offense punishable by a fine of not exceeding Five thousand pesos (P5,000.00).

(3) In any investigation under this Act the Ombudsman may: (a) enter and inspect the premises of any office, agency, commission or tribunal; (b) examine and have access to any book, record, file, document or paper; and (c) hold private hearings with both the complaining individual and the official concerned.

Section 24. Preventives Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

Section 25. Penalties. —

(1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules provided therein shall be applied.

(2) In other administrative proceedings, the penalty ranging from suspension without pay for one (1) year to dismissal with forfeiture of benefits or a fine ranging from Five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charges.

Section 26. Inquiries. —

(1) The Office of the Ombudsman shall inquire into acts or omissions of a public officer, employee, office or agency which, from the reports or complaints it has received, the Ombudsman or his Deputies consider to be:

(a) contrary to law or regulation;

(b) unreasonable, unfair, oppressive, irregular or inconsistent with the general course of the operations and functions of a public officer, employee, office or agency;

(c) an error in the application or interpretation of law, rules or regulations, or a gross or palpable error in the appreciation of facts;

(d) based on improper motives or corrupt considerations;

(e) unclear or inadequately explained when reasons should have been revealed; or

(f) inefficient performed or otherwise objectionable.

(2) The Officer of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission.t shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor.f it finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two (72) hours from receipt thereof.f the answer is found satisfactory, it shall dismiss the case.

(3) When the complaint consists in delay or refusal to perform a duty required by law, or when urgent action is necessary to protect or preserve the rights of the complainant, the Office of the Ombudsman shall take steps or measures and issue such orders directing the officer, employee, office or agency concerned to:

(a) expedite the performance of duty;

(b) cease or desist from the performance of a prejudicial act;

(c) correct the omission;

(d) explain fully the administrative act in question; or

(e) take any other steps as may be necessary under the circumstances to protect and preserve the rights of the complainant.

(4) Any delay or refusal to comply with the referral or directive of the Ombudsman or any of his Deputies, shall constitute a ground for administrative disciplinary action against the officer or employee to whom it was addressed.

Section 27. Effectivity and Finality of Decisions. — (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:

(1) New evidence has been discovered which materially affects the order, directive or decision;

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: provided, that only one motion for reconsideration shall be entertained.

Findings of fact by the Officer of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require.

Section 28. Investigation in Municipalities, Cities and Provinces. — The Office of the Ombudsman may establish offices in municipalities, cities and provinces outside Metropolitan Manila, under the immediate supervision of the Deputies for Luzon, Visayas and Mindanao, where necessary as determined by the Ombudsman. The investigation of complaints may be assigned to the regional or sectoral deputy concerned or to a special investigator who shall proceed in accordance with the rules or special instructions or directives of the Office of the Ombudsman. Pending investigation the deputy or investigator may issue orders and provisional remedies which are immediately executory subject to review by the Ombudsman. Within three (3) days after concluding the investigation, the deputy or investigator shall transmit, together with the entire records of the case, his report and conclusions to the Office of the Ombudsman. Within five (5) days after receipt of said report, the Ombudsman shall render the appropriate order, directive or decision.

Section 29. Change of Unjust Laws. — If the Ombudsman believes that a law or regulation is unfair or unjust, he shall recommend to the President and to Congress the necessary changes therein or the repeal thereof.

Section 30. Transmittal/Publication of Decision. — In every case where the Ombudsman has reached a decision, conclusion or recommendation adverse to a public official or agency, he shall transmit his decision, conclusion, recommendation or suggestion to the head of the department, agency or instrumentality, or of the province, city or municipality concerned for such immediate action as may be necessary. When transmitting his adverse decision, conclusion or recommendation, he shall, unless excused by the agency or official affected, include the substance of any statement the public agency or official may have made to him by way of explaining past difficulties with or present rejection of the Ombudsman's proposals.

Section 31. Designation of Investigators and Prosecutors. — The Ombudsman may utilize the personnel of his office and/or designate or deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him herein provided shall be under his supervision and control.

The Ombudsman and his investigators and prosecutors, whether regular members of his staff or designated by him as herein provided, shall have authority to administer oaths, to issue subpoena and subpoena duces tecum, to summon and compel witnesses to appear and testify under oath before them and/or bring books, documents and other things under their control, and to secure the attendance or presence of any absent or recalcitrant witness through application before the Sandiganbayan or before any inferior or superior court having jurisdiction of the place where the witness or evidence is found.

Section 32. Rights and Duties of Witness. —

(1) A person required by the Ombudsman to provide the information shall be paid the same fees and travel allowances as are extended to witnesses whose attendance has been required in the trial courts. Upon request of the witness, the Ombudsman shall also furnish him such security for his person and his family as may be warranted by the circumstances. For this purpose, the Ombudsman may, at its expense, call upon any police or constabulary unit to provide the said security.

(2) A person who, with or without service or compulsory process, provides oral or documentary information requested by the Ombudsman shall be accorded the same privileges and immunities as are extended to witnesses in the courts, and shall likewise be entitled to the assistance of counsel while being questioned.

(3) If a person refuses to respond to the Ombudsman's or his Deputy's subpoena, or refuses to be examined, or engages in obstructive conduct, the Ombudsman or his Deputy shall issue an order directing the person to appear before him to show cause why he should not be punished for contempt. The contempt proceedings shall be conducted pursuant to the provisions of the Rules of Court.

Section 33. Duty to Render Assistance to the Office of the Ombudsman. — Any officer or employee of any department, bureau or office, subdivision, agency or instrumentality of the Government, including government-owned or controlled corporations and local governments, when required by the Ombudsman, his Deputy or the Special Prosecutor shall render assistance to the Office of the Ombudsman.

Section 34. Annual Report. — The Office of the Ombudsman shall render an annual report of its activities and performance to the President and to Congress to be submitted within thirty (30) days from the start of the regular session of Congress.

Section 35. Malicious Prosecution. — Any person who, actuated by malice or gross bad faith, files a completely unwarranted or false complaint against any government official or employee shall be subject to a penalty of one (1) month and one (1) day to six (6) months imprisonment and a fine not exceeding Five thousand pesos (P5,000.00).

Section 36. Penalties for Obstruction. — Any person who willfully obstructs or hinders the proper exercise of the functions of the Office of the Ombudsman or who willfully misleads or attempts to mislead the Ombudsman, his Deputies and the Special Prosecutor in replying to their inquiries shall be punished by a fine of not exceeding Five thousand pesos (P5,000.00).

Section 37. Franking Privilege. — All official mail matters and telegrams of the Ombudsman addressed for delivery within the Philippines shall be received, transmitted, and delivered free of charge: provided, that such mail matters when addressed to private persons or nongovernment offices shall not exceed one hundred and twenty (120) grams. All mail matters and telegrams sent through government telegraph facilities containing complaints to the Office of the Ombudsman shall be transmitted free of charge, provided that the telegram shall contain not more than one hundred fifty (150) words.

Section 38. Fiscal Autonomy. — The Office of the Ombudsman shall enjoy fiscal autonomy. Appropriations for the Office of the Ombudsman may not be reduced below the amount appropriated for the previous years and, after approval, shall be automatically and regularly released.

Section 39. Appropriations. — The appropriation for the Office of the Special Prosecutor in the current General Appropriations Act is hereby transferred to the Office of the Ombudsman. Thereafter, such sums as may be necessary shall be included in the annual General Appropriations Act.

Section 40. Separability Clause. — If any provision of this Act is held unconstitutional, other provisions not affected thereby shall remain valid and binding.

Section 41. Repealing Clause. — All laws, presidential decrees, letters of instructions, executive orders, rules and regulations insofar as they are inconsistent with this Act, are hereby repealed or amended as the case may be.

Section 42. Effectivity. — This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or in three (3) newspapers of general circulation in the Philippines.

Approved: November 17, 1989.

Monday, January 29, 2018

Police 'Tokhangers' can't arrest drug users [?]

Sunday, January 28, 2018

What is "Swiss Challenge" in public procurement system? What is the legal stand of the Government Procurement Policy Board [GPPB] thereon?


See - 
https://www.facebook.com/attymannylasernajr/posts/1571668476252836 
https://www.facebook.com/lcmlawlaspinascity/


"x x x.

Read -

"2007-03-08

NPM 004-2007
Requesting Entity: Department of Social Welfare and Development

Issues Concern: Swiss Challenge

Whether procuring entities may adopt the Swiss Challenge system in its procurement transactions.

[T]he Swiss Challenge system is more appropriately applied outside the framework of a competitive public bidding. It is initiated by an unsolicited proposal or when the original proponent makes an offer to the government without any formal or informal request from the former. To ensure that the original proponent's scheme is superior, third parties are allowed to challenge said scheme during a designated period. The original party then gets the right to counter-match any superior offers given by the third party.

R.A. 9184 and its IRR-A do not legally sanction the adoption and use of the Swiss Challenge system. We believe that R.A. 9184 does not prescribe this system since the conduct of public bidding already ensures that the lowest complying and responsive bid or the highest rated and responsive bid, as the case may be, is the most favorable bid to the government. Adoption of the Swiss Challenge system after conduct of public bidding may thus be considered redundant.

x x x."

See -
1. http://www.gppb.gov.ph/opinions/view_nonpolicy.php?id=379
[GPPB Non-Policy Opinions]



Addenda:


1. http://www.gppb.gov.ph/issuances/Resolutions/06-2014.pdf

[GPPB RESOLUTION NO. 06-2014 - ADOPTING AN OFFICIAL POSITION RELATIVE TO THE PROPOSED AMENDMENT OF REPUBLIC ACT (RA) NO. 9184 THROUGH SENATE BILL NO. 1653, RECOGNIZING SWISS CHALLENGE OR PRICE MATCHING SCHEME IN GOVERNMENT PROJECTS NOT COVERED BY RA 6957, AS AMENDED BY RA 7718].

2. http://newsinfo.inquirer.net/…/duterte-no-more-public-biddi….

["Duterte: No more public bidding on big projects"
By: Allan Nawal, Frinston Lim - @inquirerdotnet Philippine Daily Inquirer / 07:07 AM January 28, 2018]

3. http://www.gppb.gov.ph/…/…/Resolution%20No.%2019.%202016.pdf.

["The rules or guidelines in the conduct of Competitive Challenge or Swiss Challenge modality should be laid down, since this method is not prescribed under RA 9184 and its IRR. There should be clarity whether Swiss Challenge will be adopted as an alternative method of procurement under RA 9184, since it would not be practical for public procurement under RA 9184 and its IRR. This is because of the requirement for procuring entities to identify projects in its Project Procurement Management Plan and Annual Procurement Plan. Further, this is a new concept which is yet to be introduced in the public procurement system of the country, that may pose challenges in the established norms of our procurement processes. The proposed Swiss Challenge will be appropriately covered or governed by RA 7718 or the BOT Law and not RA No. 9184."].

4. https://www.senate.gov.ph/…/PB%202008-05%20-%20Plugging%20t…

["C. Procurement and the BOT law

The BOT scheme has been employed by government to finance critical facilities in power, road and rail transport among others, in the face of severe government budget constraints.

The weaknesses in the BOT Law, however, make the procurement system prone to corruption and scams. Most of the procured infrastructure projects that were marred with controversies in the Philippines were “unsolicited proposals.”

Under the BOT law, unsolicited proposals are subject to Swiss challenge, a method used to ensure that the government gets the best possible deal.

Under the scheme, the government invites competitors to improve on the deal offered by the original proponent. The original proponent would then get the right to win the deal by merely matching any better terms offered by his competitors ‐‐ a right he holds by virtue of having proposed a project that the government had not thought of by itself.

Some big‐ticket projects that have undergone a Swiss challenge included the Argentine firm IMPSA’s Caliraya‐Botocan‐Kalayaan power plant, the Philippine International Air, Terminal Company’s. (PIATCo) NAIA Terminal 3 and the Universal MRT Corporation’s MRT‐7 line.

In the case of the NBN project, however, Amsterdam Holdings Inc. (AHI) owned by Jose de Venecia III, which claimed to be the original proponent of the project, never even got to the Swiss challenge phase. In early 2007, AHI officials complained to the Department of Transportation and Communications (DOTC) that its proposal for a build‐operate‐own (BOO) project ‐‐ a subtype of the BOT scheme ‐‐ had been ignored while it awarded the very same project to China's ZTE Corporation shortly after. ZTE's proposal was to be funded by a US$329‐million government‐to‐government loan, which did not go through a competitive selection process, with both the supplier and creditor having been chosen by the Chinese government.

DOTC officials explained that owing to the sensitivity of the government information the project would handle, they decided to do it on a Government to Government transaction as against the initial plan of a BOT scheme.

Furthermore, the project cost went up from US$262 million to US$329 million because its coverage was expanded from only the 1st to 3rd class municipalities to that including the 6th class municipalities. "].

5. Section 4-A, Republic Act No. 6957, as amended. - A Swiss challenge is a form of public procurement in some (usually lesser developed) jurisdictions which requires a public authority (usually an agency of government) which has received an unsolicited bid for a public project (such as a port, road or railway) or services to be provided to government, to publish the bid and invite third parties to match or exceed it. x x x Some Swiss challenges also allow the entity which submitted the unsolicited bid itself then to match or better the best bid which comes out of the Swiss challenge process. It is a form of regulating public procurement. http://en.wikipedia.org/wiki/Swiss_challenge.

6. "ROLEX SUPLICO, Petitioner, versus NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, et. al.", G.R. No. 178830, July 14, 2008; DISSENTING OPINION by CARPIO, J.:

"Even in a Build-Operate-Transfer project where the proponent provides all the capital with no government guarantee on project loans, the law requires public bidding in the form of a Swiss challenge.[46] With more reason should a project financed by a tied loan to the government be subject to public bidding. There is no sound reason why the Philippine government should allow its foreign creditor in an already tied loan to handpick the supplier of goods and services."

7. http://www.neda.gov.ph/wp-cont…/…/2013/12/IRR-of-RA-9184.pdf

[GPPB Resolution No.03-2009, dated 22 July 2009. - APPROVING THE REVISED IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 9184].

x x x."

Friday, January 26, 2018

30 Major Doctrines in Remedial Law to remember always - http://www.projectjurisprudence.com/



See - Lawyers NEVER Forget 30 Major Doctrines in Remedial Law - 
http://www.projectjurisprudence.com/2017/12/lawyers-never-forget-30-major-doctrines.html

"x x x.

The following are basic doctrines, principles, rules and theories in remedial law that all law students and bar candidates should remember.

[1] AUTER ACTION PENDANT: It refers to the situation where two actions are pending between the same parties for the same cause of action, so that one of them becomes unnecessary and vexatious. It is based on the policy against multiplicity of suits.

[2] BERRY RULE: Filing of motion for new trial based on newly discovered evidence which cannot be produced in court despite exercise of due diligence, and if considered would probably alter the outcome of the case.

[3] BUBBLE BURST THEORY: The rule on presumption of law shall not apply in case there is evidence to the contrary.

[4] CHAIN OF CUSTODY: Is "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction." (see also: People vs. Alivio, G.R. No. 177771, May 30, 2011).

[5] CONTINUING THREAT: In order that writ of amparo can be issued, the threat on the right to life liberty or security must be actual and continuing and not merely imaginary, thereby depriving the petitioner of his said right from the inception up to the termination of the case.

[6] FALSA DEMONSTRATIO NON NOCET: It is a rule which states that where there are two descriptions in a deed, the one as it were, super added to the other, and one description being complete and sufficient in itself, and the other which is subordinate and super added is incorrect, the incorrect description or feature or circumstance of the description is rejected as a surplusage, and the complete and correct description is allowed to stand alone. (Please see: Myers vs. Ladd, 26 Ill, 515, 417)

[7] FRESH PERIOD: It is a procedural law as it prescribes a fresh period of 15 days within which an appeal may be made in the event that the motion for reconsideration is denied by the lower court. Following the rule on retroactivity of procedural laws, the “fresh period rule” should be applied to pending actions, such as the present case. (Priscilla Alma Jose vs. Ramon Javellana, et al., G.R. No. 158239, January 25, 2012)

[8] FRUIT OF THE POISONOUS TREE: The warrant issued by the judge did not comply with the requisites of the law, and therefore, void, or when the search made without warrant is unjustifiable, whether it is found or discovered afterwards, cannot be used as evidence against the suspect. The items or articles obtained are the “fruits of a poisoned tree.”(People vs. Burgos, 144 SCRA 1; People vs. Montilla, 285 SCRA 703; Manalili vs. CA, 280 SCRA 400)

[9] HYPOTHETICAL ADMISSION or PRESUMPTION OF TRUTH: When a motion to dismiss is filed, the material allegations of the complaint are deemed to be hypothetically admitted. This hypothetical admission, extends not only from the relevant and material facts well pleaded in the complaint, but also to inferences that may be fairly deduced from them. (The Municipality of Hagonoy, Bulcan, et al. vs. Hon. Simeon Dumdum, Jr., G.R. No. 168289, March 22, 2010)

[10] IMMUTABILITY OF JUDGMENT: Once the judgment becomes final and executory, it can no longer be amended, set aside, or disturbed

[11] INDEPENDENT RELEVANT STATEMENT: Regardless of the truth or falsity of a statement, when what is relevant is the fact that such statement has been made, the hearsay rule does not apply and the statement may be shown. (Jose Espinelia.k.aDaniloEspineli vs. People of the Philippines, G.R. No. 179535, June 9, 2014)

[12] INTERLOCKING CONFESSION: These are extrajudicial confessions which were independently made without collusion, are identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latter’s actual participation in the commission of the crime.

[13] JUDICIAL COURTESY: “[d]ue respect for the Supreme Court and practical and ethical considerations should have prompted the appellate court wait for the final determination of the petition [for certiorari] before taking cognizance of the case and trying to render moot exactly what was before this [C]ourt.” The principle of judicial courtesy applies only “if there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court.”(Juan Trajano aka Johnny vs. Uniwide Sales Warehouse ClubG.R. 190253, June 11, 2014)

[14] LAW OF THE CASE: It has been defined as the opinion delivered on a former appeal, and means, more specifically, that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court.

[15] MATERIAL DATES: Under the material dates rule, a petition must alleged three (3) material dates which is necessary which are as follows: 1) The date when the judgment or final order or resolution was received; 2) The date when the motion for reconsideration or new trial was filed; and 3) The date when the notice of the denial thereof was received. (Great Southern Maritime Services Corporation vs. Acuna, 452 SCRA 422, February 28, 2005)

[16] NON-PROSEQUITUR: Once a case is dismissed for failure to prosecute, the dismissal has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal.

[17] NON-SUITED: Failure of the plaintiff to appear on the scheduled pre-trial conference would result to the dismissal of the case with prejudice, unless otherwise ordered by the court to be without prejudice.

[18] PARTY AUTONOMY: Parties have the freedom to expressly stipulate or agree by virtue of written agreement on how their disputes will be settled by submitting their differences to an arbitrator before an action may be commenced in court.


[19] PRESUMED IDENTITY APPROACH: Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as ours. (ATCI Overseas Corporation, Amalia G. Ikdal And Ministry Of Public Health-Kuwait Vs. Ma. JosefaEchin, G.R. No. 178551, October 11, 2010)


[20] PRIMARY JURISDICTION: When an administrative body is clothed with original and exclusive jurisdiction, courts are utterly without power and authority to exercise concurrently such jurisdiction. Accordingly, all the proceedings of the court in violation of that doctrine and all orders and decisions reached are null and void. (Manolito Agra, et al., vs. Commission on Audit, G.R. No. 167807, December 6, 2011)


[21] RECOUPMENT: A compulsory counterclaim arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim which does not require the presence of a third person over whom the court cannot acquired jurisdiction;


[22] RELAXED ADMISSIBILITY OF EVIDENCE : In the proper resolution of the case, the court has the discretion to admit a rather inadmissible evidence provided it has a relation to other evidence already presented which is relevant to the fact in issue in the case.


[23] RES JUDICATA IN PRISON GREY: Accused cannot be twice put in jeopardy of an offense, acquittal or conviction in either one will bar the prosecution for another offense, or his was terminated without the express consent of the accused.


[24] SET-OFF: A permissive counterclaim does not arise out of and is not connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim which required the presence of a third person for its adjudication;


[25] SEXUAL ABUSE SHIELD: The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and(2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception.— Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible.


[26] STATUTE OF NON-CLAIMS: Immediately after granting letters testamentary or administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of court which shall state the time of the filing of the claim against estate, which shall not be more than twelve (12) months but less than six (6) months after the date of first publication of the notice, but before distribution is entered, upon application of an unpaid creditor who failed to file his claim, the court on cause shown may allow the claim to be filed within the time not exceeding one (10 month.


[27] STRONG ARM OF EQUITY: At times referred to as the “Strong Arm of Equity,” [the Court has] consistently ruled that there is no power the exercise of which is more delicate and which calls for greater circumspection than the issuance of an injunction. It should only be extended in cases of great injury where courts of law cannot afford an adequate or commensurate remedy in damages; “in cases of extreme urgency; where the right is very clear; where considerations of relative inconvenience bear strongly in complainant’s favor; where there is a willful and unlawful invasion of plaintiff’s right against his protest and remonstrance, the injury being a continuing one, and where the effect of the mandatory injunction is rather to re-establish and maintain a pre-existing continuing relation between the parties, recently and arbitrarily interrupted by the defendant, than to establish a new relation.”(Thunder Security and Investigation Agency vs. National Food Authority, supra)


[28] TRANSCENDENTAL IMPORTANCE: Suspension of the rules of procedure in case the subject matter of the action is of great importance/involving national interest;


[29] TWO-DISMISSAL: When the notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim.


[30] VIATORY RIGHT OF WITNESS: If the witness resides more than 100 km from the place where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his case is pending, then he cannot be compelled to attend the trial. The right is available only in CIVIL cases.
x x x."

Death of accused pending trial/appeal; effect as to criminal and civil liabilities - http://www.projectjurisprudence.com/


Villareal v. People, G.R. No. 151258 , February 1, 2012. [Consolidated with: G.R. No. 154954; G.R. No. 155101; G.R. Nos. 178057 & 178080].
“x x x.

In a Notice dated 26 September 2011 and while the Petition was pending resolution, this Court took note of counsel for petitioners Notice of Death of Party.

According to Article 89(1) of the Revised Penal Code, criminal liability for personal penalties is totally extinguished by the death of the convict. In contrast, criminal liability for pecuniary penalties is extinguished if the offender dies prior to final judgment. The term "personal penalties" refers to the service of personal or imprisonment penalties, while the term "pecuniary penalties" (las pecuniarias) refers to fines and costs, including civil liability predicated on the criminal offense complained of (i.e., civil liability ex delicto). However, civil liability based on a source of obligation other than the delict survives the death of the accused and is recoverable through a separate civil action.

Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for both personal and pecuniary penalties, including his civil liability directly arising from the delict complained of. Consequently, his Petition is hereby dismissed, and the criminal case against him deemed closed and terminated.

x x x.”



Double jeopardy - http://www.projectjurisprudence.com/


People v. Court of Appeals, G.R. No. 154954 , February 1, 2012. [ARTEMIO VILLAREAL v. PEOPLE OF THE PHILIPPINES; CONSOLIDATED WITH: G.R. No. 154954; G.R. No. 155101; G.R. Nos. 178057 & 178080, February 1, 2012].


“x x x.

The rule on double jeopardy thus prohibits the state from appealing the judgment in order to reverse the acquittal or to increase the penalty imposed either through a regular appeal under Rule 41 of the Rules of Court or through an appeal by certiorari on pure questions of law under Rule 45 of the same Rules.

As we have reiterated in People v. Court of Appeals and Galicia, a verdict of acquittal is immediately final and a reexamination of the merits of such acquittal, even in the appellate courts, will put the accused in jeopardy for the same offense.

This prohibition, however, is not absolute. The state may challenge the lower courts acquittal of the accused or the imposition of a lower penalty on the latter in the following recognized exceptions: (1) where the prosecution is deprived of a fair opportunity to prosecute and prove its case, tantamount to a deprivation of due process; (2) where there is a finding of mistrial; or (3) where there has been a grave abuse of discretion.

The third instance refers to this Courts judicial power under Rule 65 to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies when the state seeks the imposition of a higher penalty against the accused. We have also recognized, however, that certiorari may be used to correct an abusive judgment upon a clear demonstration that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. The present case is one of those instances of grave abuse of discretion.

The appellate court relied on our ruling in People v. Penesa in finding that the four accused should be held guilty only of slight physical injuries. According to the CA, because of "the death of the victim, there can be no precise means to determine the duration of the incapacity or medical attendance required. The reliance on Penesa was utterly misplaced.

On the contrary, the CAs ultimate conclusion that Tecson, Ama, Almeda, and Bantug were liable merely for slight physical injuries grossly contradicts its own findings of fact. According to the court, the four accused "were found to have inflicted more than the usual punishment undertaken during such initiation rites on the person of Villa. It then adopted the NBI medico-legal officers findings that the antecedent cause of Lenny Villas death was the "multiple traumatic injuries" he suffered from the initiation rites. Considering that the CA found that the "physical punishment heaped on Lenny Villa was serious in nature, it was patently erroneous for the court to limit the criminal liability to slight physical injuries, which is a light felony.

Article 4(1) of the Revised Penal Code dictates that the perpetrator shall be liable for the consequences of an act, even if its result is different from that intended. Thus, once a person is found to have committed an initial felonious act, such as the unlawful infliction of physical injuries that results in the death of the victim, courts are required to automatically apply the legal framework governing the destruction of life. This rule is mandatory, and not subject to discretion.

Attributing criminal liability solely to Villareal and Dizon as if only their acts, in and of themselves, caused the death of Lenny Villa is contrary to the CAs own findings. From proof that the death of the victim was the cumulative effect of the multiple injuries he suffered, the only logical conclusion is that criminal responsibility should redound to all those who have been proven to have directly participated in the infliction of physical injuries on Lenny. The accumulation of bruising on his body caused him to suffer cardiac arrest. Accordingly, we find that the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug criminally liable for slight physical injuries. As an allowable exception to the rule on double jeopardy, we therefore give due course to the Petition.

X x x.”

Thursday, January 25, 2018

Government Explained

Freedom of religion and conscience

Women's Rights as Human Rights

Equal Justice?

How The Economic Machine Works by Ray Dalio

Rights & Resistance: Civil Liberties During Wartime

The Worst Crimes Committed By Diplomats

Police Body Cameras

Ending the Rohingya crisis: what will it take?

What is Social Justice?

Tax Havens for the Rich

Equality as an Ideal

Why Thieves Hate Free Markets - Learn Liberty

Prisoner Reentry Into Society: Jeremy Travis

Tyranny of the Status Quo - Beneficiaries

The Legitimate Role of Government in Free Society

Thomas Sowell - Why Drugs Should Be Legalized

Power of the Market - Freedom

Reforming the corporate income tax: Tax shareholders instead of corporations

Power of the Market - Social Security

Milton Friedman - Equality and Freedom

Supremely Partisan: How Raw Politics Tips the Scales in the US Supreme Court

What is critical thinking?

Government Transparency: Become a Watchdog Using FOIA

How To Write A Security Report That Will Get You Promoted!

Use of Informants in the War on Drugs

The Rise of Populism

What Is Self-Ownership?

How to Act in Court: Hearings, Conferences, Motions, and More!

Inside Media: State of the First Amendment

Why the Constitution Had to Be Destroyed | Thomas J. DiLorenzo

How the Law Is Used to Destroy Equality and Protect the Powerful

Revolutionizing the Procurement of Legal Services

Drowning in debt? Here are some potential lifelines

How Can Lawyers Solve the Access to Justice Problem?

From Desktop Search to Video Conferencing: Technology for Solo and Small...

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Bar Exam Woes

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The Importance of Legal Writing

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The Use of Body Cameras by Law Enforcement

30 Tips to Enhance Your Paralegal Career

Can Cops Search Your Cell Phone? | Learn Liberty

Myth of the Rational Voter

Crimes Against Humanity

Building Bridges Not Walls: The Intersection of Immigration and Labor

Betrayal : Abuse in the Catholic Church

A General Theory of Church and State | Prof. Florin T. Hilbay

Crime and the Constitution: Arrest, Trial, Incarceration

ILO 1948 Convention No. 87 - Freedom of Association and Protection of the Right to Organise


C087 - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
Convention concerning Freedom of Association and Protection of the Right to Organise (Entry into force: 04 Jul 1950)

Adoption: San Francisco, 31st ILC session (09 Jul 1948) 

- Status: Up-to-date instrument (Fundamental Convention).Convention may be denounced: 04 Jul 2020 - 04 Jul 2021

Preamble

The General Conference of the International Labour Organisation,

Having been convened at San Francisco by the Governing Body of the International Labour Office, and having met in its Thirty-first Session on 17 June 1948;

Having decided to adopt, in the form of a Convention, certain proposals concerning freedom of association and protection of the right to organise, which is the seventh item on the agenda of the session;

Considering that the Preamble to the Constitution of the International Labour Organisation declares "recognition of the principle of freedom of association" to be a means of improving conditions of labour and of establishing peace;

Considering that the Declaration of Philadelphia reaffirms that "freedom of expression and of association are essential to sustained progress";

Considering that the International Labour Conference, at its Thirtieth Session, unanimously adopted the principles which should form the basis for international regulation;

Considering that the General Assembly of the United Nations, at its Second Session, endorsed these principles and requested the International Labour Organisation to continue every effort in order that it may be possible to adopt one or several international Conventions;

adopts this ninth day of July of the year one thousand nine hundred and forty-eight the following Convention, which may be cited as the Freedom of Association and Protection of the Right to Organise Convention, 1948:

PART I. FREEDOM OF ASSOCIATION

Article 1

Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions.

Article 2

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

Article 3

1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

Article 4

Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority.

Article 5

Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers.

Article 6

The provisions of Articles 2, 3 and 4 hereof apply to federations and confederations of workers' and employers' organisations.

Article 7

The acquisition of legal personality by workers' and employers' organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 hereof.

Article 8

1. In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.

2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.

Article 9

1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.

2. In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.

Article 10

In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.

PART II. PROTECTION OF THE RIGHT TO ORGANISE

Article 11

Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.

PART III. MISCELLANEOUS PROVISIONS

Article 12

1.In respect of the territories referred to in Article 35 of the Constitution of the International Labour Organisation as amended by the Constitution of the International Labour Organisation Instrument of Amendment 1946, other than the territories referred to in paragraphs 4 and 5 of the said article as so amended, each Member of the Organisation which ratifies this Convention shall communicate to the Director-General of the International Labour Office with or as soon as possible after its ratification a declaration stating:

(a) the territories in respect of which it undertakes that the provisions of the Convention shall be applied without modification;

(b) the territories in respect of which it undertakes that the provisions of the Convention shall be applied subject to modifications, together with details of the said modifications;

(c) the territories in respect of which the Convention is inapplicable and in such cases the grounds on which it is inapplicable;

(d) the territories in respect of which it reserves its decision.

2. The undertakings referred to in subparagraphs (a) and (b) of paragraph 1 of this Article shall be deemed to be an integral part of the ratification and shall have the force of ratification.

3. Any Member may at any time by a subsequent declaration cancel in whole or in part any reservations made in its original declaration in virtue of subparagraphs (b), (c) or (d) of paragraph 1 of this Article.

4. Any Member may, at any time at which the Convention is subject to denunciation in accordance with the provisions of Article 16, communicate to the Director-General a declaration modifying in any other respect the terms of any former declaration and stating the present position in respect of such territories as it may specify.

Article 13

1. Where the subject-matter of this Convention is within the self-governing powers of any non-metropolitan territory, the Member responsible for the international relations of that territory may, in agreement with the government of the territory, communicate to the Director-General of the International Labour Office a declaration accepting on behalf of the territory the obligations of this Convention.

2. A declaration accepting the obligations of this Convention may be communicated to the Director-General of the International Labour Office:

(a) by two or more Members of the Organisation in respect of any territory which is under their joint authority; or

(b) by any international authority responsible for the administration of any territory, in virtue of the Charter of the United Nations or otherwise, in respect of any such territory.

3. Declarations communicated to the Director-General of the International Labour Office in accordance with the preceding paragraphs of this Article shall indicate whether the provisions of the Convention will be applied in the territory concerned without modification or subject to modifications; when the declaration indicates that the provisions of the Convention will be applied subject to modifications it shall give details of the said modifications.

4. The Member, Members or international authority concerned may at any time by a subsequent declaration renounce in whole or in part the right to have recourse to any modification indicated in any former declaration.

5. The Member, Members or international authority concerned may, at any time at which this Convention is subject to denunciation in accordance with the provisions of Article 16, communicate to the Director-General a declaration modifying in any other respect the terms of any former declaration and stating the present position in respect of the application of the Convention.

PART IV. FINAL PROVISIONS

Article 14

The formal ratifications of this Convention shall be communicated to the Director-General of the International Labour Office for registration.

Article 15

1. This Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the Director-General.

2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-General.

3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratifications has been registered.

Article 16

1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered.

2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter, may denounce this Convention at the expiration of each period of ten years under the terms provided for in this Article.

Article 17

1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organisation of the registration of all ratifications, declarations and denunciations communicated to him by the Members of the Organisation.

2. When notifying the Members of the Organisation of the registration of the second ratification communicated to him, the Director-General shall draw the attention of the Members of the Organisation to the date upon which the Convention will come into force.

Article 18

The Director-General of the International Labour Office shall communicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications, declarations and acts of denunciation registered by him in accordance with the provisions of the preceding articles.

Article 19

At such times as it may consider necessary the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.

Article 20

1. Should the Conference adopt a new Convention revising this Convention in whole or in part, then, unless the new Convention otherwise provides:

(a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention, notwithstanding the provisions of Article 16 above, if and when the new revising Convention shall have come into force;

(b) as from the date when the new revising Convention comes into force this Convention shall cease to be open to ratification by the Members.

2. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.

Article 21

The English and French versions of the text of this Convention are equally authoritative.

See - http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312232

DOCUMENTING PROPERTY RIGHTS IN THE PHILIPPINES WITH DRONE TECHNOLOGY

See - https://www.atlasnetwork.org/news/article/documenting-property-rights-in-the-philippines-with-drone-technology - atlasnetwork.org.

"x x x.

There are 24 million land parcels in the Philippines, and only half of them are titled. People without clearly defined property rights can’t make prudent long-range economic plans, so the Foundation for Economic Freedom, Inc., an Atlas Network partner based in the Philippines, has worked to document Filipino citizens’ property claims with its Technology for Property Rights (TPR) project, which advocates the use of small unmanned aerial systems (SUAS), or “drones,” as a tool for land surveying. Other TPR project partners represent both the private sector (Skyeye, Micro Aerial Projects, the Asia Foundation, and the Omidyar Network) and the public sector (Land Management Bureau, Municipality of Cordova, and the Department of Environment and Natural Resources).

“Participation in the formal land market is one of the biggest obstacles to economic freedom in the Philippines,” said Rene Sanapo, team leader for FEF’s Technology for Property Rights Project. “There are an estimated 10–12 million untitled land parcels. Without titles, people don’t have security of tenure, are not investing in their lands because they fear losing it. That keeps the value of properties down. They are also not able to optimize the use of their lands as collateral, which prevents them from raising the capital needed to make significant personal, family or business investments.”

Before FEF began its reform efforts, roughly only 5,000 new property titles were granted each year. At that rate, it would have taken more than 100 years to document all the untitled land in the Philippines. Thanks to FEF’s efforts, Republic Act No. 10023 passed in 2010, enabling any Filipino citizen who occupies residential land to apply for a “Free Patent Title” for that land. Even under the new act, however, only 50,000 to 60,000 new titles are granted each year. At that pace it will still take far too long to title the millions of parcels that remain.

A significant barrier to acquiring land titles in the Philippines is the difficulty with which subdivision surveys are conducted. These subdivision surveys divide tracts of land into smaller parcels, and are required in order to obtain a land title. The current method of conducting these subdivision surveys, however, is time-intensive and costly.

The TPR project conducted a 10-day pilot study in Cordova, Cebu, to determine whether drones can be used in conducting the subdivision surveys — and whether they could be cost-effective, time-efficient, and compliant with government accuracy standards.

“Currently, subdivision surveys are done using conventional surveying instruments (such as total stations) and global navigation satellite system (GNSS) receivers, or the combination of both,” FEF reports. “However, these instruments are unfavorable in crowded urban settings where subdivision surveys are normally conducted because these tools require point-to-point visibility and enough satellite signal reception.”

Special GNSS receivers and GPS platforms attached to the drones allow land surveys to be conducted with greater precision, and without needing to create ground control points (GCPs). After the drones’ picture-gathering flights are finished, the photographs are processed and incorporated into geographic information system (GIS) programs.

The study determined that drones could cover the same ground in 10 minutes that had previously taken six hours with conventional GCP use. Expanding the use of drones in land surveying could expedite the land titling process throughout the Philippines, and eliminate significant barriers to fuller economic participation.

“We’re helping to remove this obstacle by helping people to get titles to lands,” Sanapo said. “Access to titles is like a table standing on several legs — among these legs are legislation, institutional arrangements, data, and technology. The foundation's work with RA 10023 strengthened the legislation leg; our work on LGU-DENR partnerships is for the institutional leg; and our work with drones enhances the technology leg. By providing new technology for cheaper and faster subdivision surveys we hope to make it easier for Filipinos to get titles to their own lands.”

x x x."

Wednesday, January 24, 2018

Chinese Assertiveness in the South China Sea: Harbinger of Things to Come?

Chinese Assertiveness in the South China Sea: Harbinger of Things to Come?

US Navy: China is clearly militarizing the South China Sea

Populist leaders undermine democracy in these 4 ways. - Washington Post



See - Populist leaders undermine democracy in these 4 ways. Would a President Trump?

"x x x.

What is populism?
Populism is a political discourse that imagines a struggle between a good and virtuous “people” and a nefarious establishment. A populist is a charismatic leader who uses this kind of thinking to mobilize large numbers of people to gain and hold power. Populists can be either on the left or on the right; the outlook combines with a variety of other ideologies or issues.

[Why Donald Trump’s ‘rigged elections’ warning could actually make his supporters less likely to vote]

Populists have achieved extraordinary success around the world in the past 30 years, with Hugo Chávez in Venezuela and Silvio Berlusconi in Italy being two of the best-known cases. We have each analyzed this historical record to learn what happens to democracy when populists come to power.

In one study, Paul Kenny (with Christian Houle) examined populist and non-populist governments in Latin America from 1982 to 2012. In another, Kirk Hawkins and Saskia Ruth (with Nathaniel Allred) analyzed the impact of populist rule on liberal democracy in Europe and the Americas in the 21stcentury. Although our analyses were conducted using slightly different measures of populism and different statistical models, we had very similar findings. The results are sobering.


1. Checks and balances on the executive branch are eroded
Ordinarily, even in presidential systems, legislatures oversee a range of government functions, such as approving budgets, sanctioning treaties and giving the authority for war. Courts uphold the rule of law, free from arbitrary political interference. In many democracies, other government institutions — electoral agencies, central banks or ombudsmen — have partial independence so they can protect government functions from partisan bias. Liberal democracy relies on these institutional and legal constraints on the executive branch.

[White Christian America is dying]

Populists systematically evade and override these checks on executive power. Populist presidents in Peru, Venezuela and elsewhere have stacked judiciaries and overridden constitutional term limits. Ecuador’s Rafael Correa rewrote the country’s constitution, emasculating the Congress in the process.

These cases are not exceptions. While it’s hard to put a precise number on the extent of this decline, Houle and Kenny, using a common measure of judicial independence, find that after four years of populist rule, courts have 34 percent less independence than they would have under a typical democratic government. Using a broader measure of constraints on the executive — an index that includes several of the institutional checks and balances noted above — they find that after four years of populist rule, these checks on the executive are 17 percent lower than under a regular democracy, while the rule of law is 22 lower.


2. There’s less media freedom
Even the most minimal democracy has to be guarded by certain protections for free speech or it won’t function properly. If citizens cannot communicate freely and if the media can’t report on the government’s actions, the government cannot be held to proper account.

[The Republicans’ big gerrymander could backfire in a major way]

However, populists are unusually sensitive to criticism from the media, which they see as elite subversion of the people’s will, and they frequently threaten or restrict media outlets. Examples abound. In Turkey, Recep Tayyip Erdogan has imposed such draconian restrictions on media freedom that virtually any criticism of the president is a criminal offense — and these restrictions have gotten stronger in the crackdown after the recent coup attempt.

Using a common measure of media freedom, Allred, Hawkins, and Ruth find that on average, two terms of populist rule resulted in a 13 percent decline in media freedom.

3. Civil liberties are lost
Civil liberties refer to freedom of expression and belief; rights to associate freely and form organizations, and personal autonomy and other individual rights. Civil liberties in Venezuela have been increasingly constrained under the government of Chávez and Maduro, with NGOs and other critics of the government facing regular harassment and legal sanctions.

Allred, Hawkins, and Ruth found that civil liberties decline systematically under populist rule. Using a standard index of civil liberties, they found that two terms of populist rule resulted in a decline of 9 percent.

4. The quality of elections declines
For democracy to work, incumbents and challengers must play by the same rules. Incumbents can’t use their power to change the electoral rules, grab more campaign funding from the public trough, or get more media exposure through state-controlled outlets.

Because populists see their opponents in diabolical terms, and because they think they represent a unified will of the people, they are tempted to violate these rules. In Hungary, the government of Viktor Orbán adapted new electoral rules that benefited the ruling party and passed constitutional amendments that constrained the opposition’s political advertising.

[Lots of Americans agree with Donald Trump about ‘rigged elections’]

Using a cross-national data set, Allred, Hawkins, and Ruth find that on average, after two terms of populist rule, the quality of elections declines by 15 percent.

x x x."