ANTI-TORTURE ACT OF 2009

REPUBLIC ACT N0. 9745 is known as the "ANTI-TORTURE ACT OF 2009".

Under Section 3 of the Act, TORTURE is defined as (a) an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; (b) punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or (c) intimidating or coercing him/her or a third person.

The reason the violation may be based on DISCRIMINATION of any kind.

The pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a PERSON IN AUTHORITY or AGENT of a person in authority.

It does NOT include pain or suffering arising only from, inherent in or incidental to LAWFUL SANCTIONS.

More specifically, as per Section 4 of the Act, torture shall include, but shall not be limited to, the following:

(a) PHYSICAL TORTURE is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as:

(1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach;

(2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten;

(3) Electric shock;

(4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s);

(5) The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation;

(6) Being tied or forced to assume fixed and stressful bodily position;

(7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals;

(8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.;

(9) Dental torture or the forced extraction of the teeth;

(10) Pulling out of fingernails;

(11) Harmful exposure to the elements such as sunlight and extreme cold;

(12) The use of plastic bag and other materials placed over the head to the point of asphyxiation;

(13) The use of psychoactive drugs to change the perception, memory. alertness or will of a person, such as:

(i) The administration or drugs to induce confession and/or reduce mental competency; or

(ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and

(14) Other analogous acts of physical torture; and

(b) "MENTAL/PSYCHOLOGICAL TORTURE" refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as:

(1) Blindfolding;

(2) Threatening a person(s) or his/fher relative(s) with bodily harm, execution or other wrongful acts;

(3) Confinement in solitary cells or secret detention places;

(4) Prolonged interrogation;

(5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner;

(6) Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed;

(7) Maltreating a member/s of a person's family;

(8) Causing the torture sessions to be witnessed by the person's family, relatives or any third party;

(9) Denial of sleep/rest;

(10) Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will;

(11) Deliberately prohibiting the victim to communicate with any member of his/her family; and

(12) Other analogous acts of mental/psychological torture.

Section 6 provides that a state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" SHALL NOT AND CAN NEVER BE INVOKED AS A JUSTIFICATION for torture and other cruel, inhuman and degrading treatment or punishment.

Under Section 7 of the Act, SECRET DETENTION PLACES , SOLITARY CONFINEMENT, INCOMMUNICADO or other similar forms of detention, where torture may be carried out with IMPUNITY are PROHIBITED.

Section 8. commands that any CONFESSION, ADMISSION or STATEMENT obtained as a result of TORTURE shall be INADMISSIBLE in evidence in ANY PROCEEDINGS, except if the same is used as evidence against a person or persons accused of committing torture.

Under Section 9 of the Act, a VICTIM of torture shall have the following RIGHTS in the INSTITUTION OF A CRIMINAL COMPLAINT FOR TORTURE:

(a) To have a prompt and an impartial investigation by the CHR and by agencies of government concerned such as the Department of Justice (DOJ), the Public Attorney's Office (PAO), the PNP, the National Bureau of Investigation (NBI) and the AFP.

A PROMPT INVESTIGATION shall mean a maximum period of sixty (60) WORKING DAYS from the time a complaint for torture is filed within which an investigation report and/or resolution shall be completed and made available.

An APPEAL whenever available shall be resolved within the SAME PERIOD prescribed herein,

(b) To have sufficient government protection against all forms of harassment; threat and/or intimidation as a consequence of the filing of said complaint or the presentation of evidence therefor.

In which case, the State through its appropriate agencies shall afford security in order to ensure his/her safety and all other persons involved in the investigation and prosecution such as, but not limited to, his/her lawyer, witnesses and relatives; and

(c) To be accorded sufficient protection in the manner by which he/she testifies and presents evidence in any fora in order to avoid further trauma.

Under Section 10 of the Act, a writ of HABEAS CORPUS or writ of AMPARO or writ of HABEAS DATA proceeding, if any, filed on behalf of the victim of torture or other cruel, degrading and inhuman treatment or punishment shall be DISPOSED OF EXPEDITIOUSLY and any order of release by virtue thereof, or other appropriate order of a court relative thereto, shall be EXECUTED OR COMPLIED WITH IMMEDIATELY.

Section 11 of the Act provides that the CHR and the PAO shall render legal assistance in the investigation and monitoring and/or filing of the complaint for a person who suffers torture and other cruel, inhuman and degrading treatment or punishment, or for any interested party thereto.

The victim or interested party may also seek legal assistance from the Barangay Human Rights Action Center (BHRAC) nearest him/her as well as from human rights nongovernment organizations (NGOs).

Section 12 of the Act provides that BEFORE AND AFTER INTERROGATION , every person arrested, detained or under custodial investigation shall have the RIGHT TO BE INFORMED OF HIS/HER RIGHT TO DEMAND PHYSICAL EXAMINATION by an INDEPENDENT AND COMPETENT DOCTOR of his/her OWN CHOICE.

If such person cannot afford the services of his/her own doctor, he/she shall he PROVIDED BY THE STATE with a COMPETENT AND INDEPENDENT DOCTOR to conduct physical examination.

The State shall endeavor to provide the victim with PSYCHOLOGICAL EVALUATION if available under the circumstances.

If the person arrested is a FEMALE, she shall be attended to preferably by a FEMALE DOCTOR .

Furthermore, any person arrested, detained or under custodial investigation, including his/her immediate family, shall have the RIGHT TO IMMEDIATE ACCESS TO PROPER AND ADEQUATE MEDICAL TREATMENT.

The PHYSICAL EXAMINATION and/or PSYCHOLOGICAL EVALUATION of the victim shall be contained in a MEDICAL REPORT, duly SIGNED by the ATTENDING PHYSICIAN , which shall include in detail his/her medical history and findings, and which shall he ATTACHED TO THE CUSTODIAL INVESTIGATION report. Such report shall be considered a PUBLIC DOCUMENT.

Any person who does not wish to avail of the rights under this provision may KNOWINGLY AND VOLUNTARILY WAIVE such rights in WRITING , executed in the PRESENCE AND ASSISTANCE of his/her COUNSEL.

Section 13 of the Act identifies who are riminally liable for torture..

It.provides that any person who ACTUALLY PARTICIPATED OR INDUCED ANOTHER in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who COOPERATED IN THE EXECUTION of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be LIABLE AS PRINCIPAL.

Any superior military, police or law enforcement officer or senior government official who ISSUED AN ORDER to any lower ranking personnel TO COMMIT TORTURE for whatever purpose shall be held EQUALLY LIABLE AS PRINCIPALS.

The IMMEDIATE COMMANDING OFFICER of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held LIABLE AS A PRINCIPAL to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any ACT or OMISSION , or NEGLIGENCE committed by him/her that shall have led, assisted, ABETTED or ALLOWED, whether directly or indirectly, the commission thereof by his/her subordinates.

If he/she HAS KNOWLEDGE of or, owing to the circumstances at the time, SHOULD HAVE KNOWN that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, DESPITE SUCH KNOWLEDGE, did not take PREVENTIVE OR CORRECTIVE ACTION either before, during or immediately after its commission, when he/she HAS THE AUTHORITY TO PREVENT OR INVESTIGATE allegations of torture or other cruel, inhuman and degrading treatment or punishment but FAILED to prevent or investigate allegations of such act, whether DELIBERATELY or due to NEGLIGENCE shall also be LIABLE AS PRINCIPALS.

Any PUBLIC OFFICER OR EMPLOYEE shall be liable as an ACCESSORY if he/she HAS KNOWLEDGE that torture or other cruel, inhuman and degrading treatment or punishment is being committed and WITHOUT HAVING PARTICIPATED therein, either as principal or accomplice, TAKES PART SUBSEQUENT to its commission in any of the following manner:

(a) By themselves PROFITING from or ASSISTING the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment;

(b) By CONCEALING the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or

(c) By harboring, concealing or ASSISTING in the ESCAPE of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment:

Provided, That the accessory acts are done with the ABUSE of the official's public functions.

Section 14 is the PENALTY CLAUSE of the Act.

(a) The penalty of RECLUSION PERPETUA shall be imposed upon the PERPETRATORS of the following acts:

(1) Torture resulting in the death of any person;

(2) Torture resulting in mutilation;

(3) Torture with rape;

(4) Torture with other forms of sexual abuse and, in consequence of torture, the victim shall have become insane, imbecile, impotent, blind or maimed for life; and

(5) Torture committed against children.

(b) The penalty of RECLUSION TEMPORAL shall be imposed on those who commit any act of MENTAL/PSYCHOLOGICAL TORTURE resulting in insanity, complete or partial amnesia, fear of becoming insane or suicidal tendencies of the victim due to guilt, worthlessness or shame.

(c) The penalty of PRISON CORRECCIONAL shall be imposed on those who commit any act of torture resulting in PSYCHOLOGICAL , MENTAL and EMOTIONAL HARM other than those described in paragraph (b) of this section. '

(d) The penalty of PRISON MAYOR in its medium and maximum periods shall be imposed if, in consequence of torture, the victim shall have lost the power of SPEECH or the power to HEAR or to SMELL ; or shall have lost an EYE , a HAND , a FOOT , an ARM or a LEG ; or shall have lost the use of any such member; or shall have become PERMANENTLY INCAPACITATED for labor.

(e) The penalty of PRISON MAYOR in its minimum and medium periods shall be imposed if, in consequence of torture, the victim shall have become DEFORMED or shall have lost any part of his/her body other than those aforecited, or shall have lost the use thereof, or shall have been ill or INCAPACITATED for labor for a period of more than ninety (90) DAYS.

(f) The penalty of PRISON CORRECCIONAL in its maximum period to PRISON MAYOR in its minimum period shall be imposed if, in consequence of torture, the victim shall have been ILL or INCAPACITATED for labor for mare than thirty (30) DAYS but not more than ninety (90) DAYS.

(g) The penalty of PRISON CORRECCIONAL in its minimum and medium period shall be imposed if, in consequence of torture, the victim shall have been ill or incapacitated for labor for thirty (30) DAYS OR LESS.

(h) The penalty of ARREST MAYOR shall be imposed for acts constituting CRUEL, INHUMAN or DEGRADING TREATMENT or PUNISHMENT as defined in Section 5 of this Act.

(i) The penalty of PRISON CORRECCIONAL shall be imposed upon those who establish, operate and maintain SECRET DETENTION PLACES and/or effect or cause to effect SOLITARY CONFINEMENT, INCOMMUNICADO or other similar forms of PROHIBITED DETENTION as provided in Section 7 of this Act where torture may be carried out with impunity.

(j) The penalty of ARREST MAYOR shall be imposed upon the responsible officers or personnel of the AFP, the PNP and other law enforcement agencies for failure to perform his/her duty to maintain, submit or make available to the public an updated list of detention centers and facilities with the corresponding data on the prisoners or detainees incarcerated or detained therein, pursuant to Section 7 of this Act.

Section 15 provides that torture is a separate and independent crime.

Torture as a crime SHALL NOT ABSORB or SHALL NOT BE ABSORBED by any other crime or felony committed as a CONSEQUENCE , or as a MEANS in the conduct or commission thereof.

In which case, TORTURE shall be treated as a SEPARATE AND INDEPENDENT CRIMINAL ACT whose penalties shall be imposable WITHOUT PREJUDICE to any other criminal liability provided for by DOMESTIC AND INTERNATIONAL LAWS.

Section 16 provides that in order not to depreciate the crime of torture, persons who have committed any act of torture SHALL NOT BENEFIT FROM ANY SPECIAL AMNESTY LAW or similar measures that will have the effect of EXEMPTING them from any criminal proceedings and sanctions.

Section 17 provodes that no person shall be expelled, returned or EXTRADITED TO ANOTHER STATE where there are substantial grounds to believe that such person shall be in danger of being subjected to torture.

For the purposes of determining whether such grounds exist, the Secretary of the Department of Foreign Affairs (DFA) and the Secretary of the DOJ, in coordination with the Chairperson of the CHR, shall take into account all relevant considerations including, where applicable and not limited to, the existence in the requesting State of a consistent pattern of gross, flagrant or mass violations of human rights.

Under Section 18 of the Act, any person who has suffered torture shall have the right to claim for COMPENSATION as provided for under REPUBLIC ACT NO. 7309: Provided, That in no case shall compensation be any lower than Ten thousand pesos (P10,000.00).

Victims of torture shall also have the right to claim for COMPENSATION from such OTHER FINANCIAL RELIEF PROGRAMS that may be made available to him/her under existing law and rules and regulations.

Section 19 of the Act commands the Department of Social Welfare and Development (DSWD), the DOJ and the Department of Health (DOH) and such other concerned government agencies, and human rights organizations to formulate a COMPREHENSIVE REHABILITATION PROGRAM for VICTIMS of torture and their families.

The DSWD, the DOJ and thc DOH shall also call on human rights nongovernment organizations duly recognized by the government to actively participate in the formulation of such program that shall provide for the physical, mental, social, psychological HEALING AND DEVELOPMENT OF VICTIMS of torture and their families.

Toward the attainment of RESTORATIVE JUSTICE , a PARALLEL REHABILITATION program for persons who have COMMITTED torture and other cruel, inhuman and degrading punishment shall likewise be formulated by the same agencies.

Section 22 provides that the provisions of the REVISED PENAL CODE insofar as they are applicable shall be SUPPLE TORY to this Act.




Moreover, if the commission of any crime punishable under Title Eight (Crimes Against Persons) and Title Nine (Crimes Against Personal Liberty and Security) of the Revised Penal Code is ATTENDED by any of the acts constituting torture and other cruel, inhuman and degrading treatment or punishment as defined herein, the PENALTY to be imposed shall be in its MAXIMUM PERIOD.

ENFORCED OR INVOLUNTARY DISAPPEARANCE -

REPUBLIC ACT NO. 10353, known as the "Anti-Enforced or Involuntary Disappearance Act of 2012″, declares that the State values the DIGNITY of every human person and guarantees full respect for HUMAN RIGHTS.

It declares that highest priority shall be given to the ENACTMENT OF MEASURES for the enhancement of the right of all people to HUMAN DIGNITY, the prohibition against SECRET DETENTION places, SOLITARY CONFINEMENT, INCOMMUNICADO, or other SIMILAR FORMS OF DETENTION, COMPENSATION AND REHABILITATION for the victims and their families.

More particularly, it penalizes the use of TORTURE , FORCE , VIOLENCE , THREAT , INTIMIDATION or ANY OTHER MEANS which VITIATE THE FREE WILL of persons ABDUCTED , ARRESTED , DETAINED , DISAPPEARED or otherwise REMOVED FROM THE EFFECTIVE PROTECTION OF THE LAW .

Furthermore, it declares that the State adheres to the principles and standards on the absolute condemnation of human rights violations set by the 1987 PHILIPPINE CONSTITUTION and various international instruments such as, but not limited to, the INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR), and the CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CAT), to which the Philippines is a STATE PARTY.

Section 3 of the Act defines "ENFORCED OR INVOLUNTARY DISAPPEARANCE" as the ARREST , DETENTION , ABDUCTION or any other form of DEPRIVATION OF LIBERTY committed by AGENTS OF THE STATE or by persons or groups of persons ACTING WITH THE AUTHORIZATION , SUPPORT OR ACQUIESCENCE OF THE STATE, followed by a REFUSAL TO ACKNOWLEDGE the deprivation of liberty or by CONCEALMENT of the FATE OR WHEREABOUTS of the disappeared person, which places such person OUTSIDE THE PROTECTION OF THE LAW.

Section 4 of the Act provides for the principle of NONDEROGABILITY OF THE RIGHT AGAINST ENFORCED OR INVOLUNTARY DISAPPEARANCE, which means that the RIGHT against enforced or involuntary disappearance and the fundamental SAFEGUARDS for its prevention SHALL NOT BE SUSPENDED UNDER ANY CIRCUMSTANCE INCLUDING POLITICAL INSTABILITY, THREAT OF WAR, STATE OF WAR OR OTHER PUBLIC EMERGENCIES.

Under Section 5 of the Act, an "ORDER OF BATTLE" or ANY ORDER of similar nature, OFFICIAL OR OTHERWISE , from a superior officer or a public authority causing the COMMISSION of ENFORCED OR INVOLUNTARY DISAPPEARANCE is UNLAWFUL and CANNOT BE INVOKED AS A JUSTIFYING OR EXEMPTING CIRCUMSTANCE.

Any person receiving such an order shall have the RIGHT TO DISOBEY IT.

Section 6 of the Act establishes the RIGHT OF ACCESS TO COMMUNICATION.

It shall be the ABSOLUTE RIGHT of any person deprived of liberty to have IMMEDIATE ACCESS to any form of COMMUNICATION available in order for him or her to INFORM his or her FAMILY, RELATIVE , FRIEND , LAWYER or ANY HUMAN RIGHTS ORGANIZATION on his or her WHEREABOUTS AND CONDITION.

Section 10 provides that all persons detained or confined shall be placed solely in OFFICIALLY RECOGNIZED AND CONTROLLED PLACES OF DETENTION OR CONFINEMENT where an official up-to-date REGISTER of such persons shall be maintained. RELATIVES, LAWYERS, JUDGES, OFFICIAL BODIES and ALL PERSONS WHO HAVE LEGITIMATE INTEREST in the whereabouts and condition of the persons deprived of liberty shall have FREE ACCESS TO THE REGISTER.

All information contained in the register shall be regularly or upon request REPORTED to the CHR or ANY OTHER AGENCY of government tasked to monitor and protect HUMAN RIGHTS and shall be made AVAILABLE TO THE PUBLIC.

Section 12 of the Act provides that all proceedings pertaining to the issuance of the WRITS OF HABEAS CORPUS, AMPARO AND HABEAS DATA shall be dispensed with EXPEDITIOUSLY. As such, all courts and other concerned agencies of government shall give PRIORITY to such proceedings.

Moreover, any order issued or promulgated pursuant to such WRITS or their respective proceedings shall be EXECUTED AND COMPLIED WITH IMMEDIATELY.

Section 13 empowers the CHR or its duly authorized representatives to conduct regular, independent, unannounced and UNRESTRICTED VISITS to or INSPECTION of ALL PLACES OF DETENTION AND CONFINEMENT.

More importantly, Section 14 of the Act provides that the immediate COMMANDING OFFICER of the unit concerned of the AFP or the immediate senior official of the PNP and other law enforcement agencies shall be held LIABLE as a PRINCIPAL to the crime of enforced or involuntary disappearance for acts COMMITTED BY HIM OR HER that shall have led, assisted, ABETTED or ALLOWED , whether DIRECTLY OR INDIRECTLY , the commission thereof BY HIS OR HER SUBORDINATES.

If such commanding officer HAS KNOWLEDGE of or, owing to the circumstances at the time, SHOULD HAVE KNOWN that an enforced or involuntary disappearance is being committed, or has been committed by SUBORDINATES or by OTHERS WITHIN THE OFFICER’S AREA OF RESPONSIBILITY and, despite such knowledge, DID NOT TAKE PREVENTIVE OR COERCIVE ACTION either before, during or immediately after its commission, when he or she has the authority TO PREVENT OR INVESTIGATE allegations of enforced or involuntary disappearance but FAILED TO PREVENT OR INVESTIGATE such allegations, whether DELIBERATELY or due to NEGLIGENCE, shall also be held LIABLE AS PRINCIPAL .

Under Section 15 of the Act, the penalty of RECLUSION PERPETUA and its ACCESSORY PENALTIES shall be imposed upon the following persons:

(1) Those who DIRECTLY COMMITTED the act of enforced or involuntary disappearance;

(2) Those who DIRECTLY FORCED , INSTIGATED , ENCOURAGED or INDUCED OTHERS TO COMMIT the act of enforced or involuntary disappearance;

(3) Those who COOPERATED in the act of enforced or involuntary disappearance BY COMMITTING ANOTHER ACT without which the act of enforced or involuntary disappearance would not have been consummated;

(4) Those OFFICIALS who ALLOWED the act or ABETTED in the consummation of enforced or involuntary disappearance when it is WITHIN THEIR POWER TO STOP OR UNCOVER THE COMMISSION thereof; and

(5) Those who COOPERATED in the EXECUTION of the act of enforced or involuntary disappearance by previous or simultaneous acts.

The same section provides that the penalty of RECLUSION TEMPORAL and its ACCESSORY PENALTIES shall be imposed upon those who shall COMMIT the act of enforced or involuntary disappearance in the ATTEMPTED STAGE as provided for and defined under ARTICLE 6 of the REVISED PENAL CODE.

The penalty of RECLUSION TEMPORAL and its ACCESSORY PENALTIES shall also be imposed upon persons who, HAVING KNOWLEDGE of the act of enforced or involuntary disappearance and WITHOUT HAVING PARTICIPATED therein, either as principals or accomplices, TOOK PART SUBSEQUENT TO ITS COMMISSION in any of the following manner:

(1) By themselves PROFITING from or ASSISTING the offender TO PROFIT from the EFFECTS of the act of enforced or involuntary disappearance;

(2) By CONCEALING the act of enforced or involuntary disappearance and/or DESTROYING the EFFECTS or INSTRUMENTS thereof in order to PREVENT ITS DISCOVERY ; or

(3) By HARBORING , CONCEALING or ASSISTING in the ESCAPE of the PRINCIPAL/S in the act of enforced or involuntary disappearance, PROVIDED such accessory acts are done with the ABUSE OF OFFICIAL FUNCTIONS.

The penalty of PRISON CORRECTIONAL and its ACCESSORY PENALTIES shall be imposed against persons who DEFY , IGNORE or UNDULY DELAY COMPLIANCE with any ORDER duly issued or promulgated pursuant to the WRITS OF HABEAS CORPUS , AMPARO and HABEAS DATA or their respective proceedings.

Under Section 16 of the Act, GOVERNMENT OFFICIALS AND PERSONNEL who are found to be PERPETRATORS of or PARTICIPANTS IN ANY MANNER in the commission of enforced or involuntary disappearance as a result of a PRELIMINARY INVESTIGATION conducted for that purpose shall be PREVENTIVE SUSPENDED OR SUMMARILY DISMISSED from the service, depending on the strength of the evidence so presented and gathered in the said preliminary investigation or as may be recommended by the investigating authority.

As to the CIVIL ASPECT of the crime, Section 17 of the Act provides that the act of enforced or involuntary disappearance shall render its PERPETRATORS and the STATE AGENCIES which ORGANIZED, ACQUIESCED in or TOLERATED such disappearance LIABLE UNDER CIVIL LAW.

Section 18 provides for the doctrine of INDEPENDENT LIABILITY.

The CRIMINAL LIABILITY of the offender under the Act shall be INDEPENDENT of or WITHOUT PREJUDICE to the prosecution and conviction of the offender for any violation of REPUBLIC ACT NO. 7438 (RIGHTS of Person Arrested, Detained or Under Custodial Investigationsl), REPUBLIC ACT NO . 9745, (TORTURE and Other Cruel, Inhuman and Degrading Treatment or Punishment), and applicable provisions of the REVISED PENAL CODE.

Section 19 establishes the doctrine of NONEXCLUSIVITY OR DOUBLE JEOPARDY UNDER INTERNATIONAL LAW.

Any investigation, trial and decision IN ANY PHILIPPINE COURT , or body for any violation of the Act shall be WITHOUT PREJUDICE to any investigation, trial, decision or any other legal or administrative process before any appropriate INTERNATIONAL COURT OR AGENCY under applicable INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW.

Under Section 20 of the Act, ANY OFFENDER who VOLUNTEERS INFORMATION that leads to the DISCOVERY of the victim of enforced or involuntary disappearance or the PROSECUTION of the offenders without the victim being found shall be EXEMPT FROM ANY CRIMINAL AND/OR CIVIL LIABILITY under this Act: provided, that said offender DOES NOT APPEAR TO BE THE MOST GUILTY.

Section 21 of the Act applies the CONTINUING OFFENSE rule.

An act constituting enforced or involuntary disappearance shall be considered a CONTINUING OFFENSE as long as the perpetrators CONTINUE TO CONCEAL the fate and whereabouts of the disappeared person and such circumstances have not been determined with certainty.

An important provision of the Act is Section 22 (STATUTE OF LIMITATIONS) thereof which provides that the PROSECUTION of persons responsible for enforced or involuntary disappearance SHALL NOT PRESCRIBE UNLESS THE VICTIM SURFACES ALIVE. In which case, the prescriptive period shall be TWENTY-FIVE (25) YEARS from the date of such REAPPEARANCE.

Section 23 provides that persons who are CHARGED with and/or GUILTY of the act of enforced or involuntary disappearance SHALL NOT BENEFIT from any SPECIAL AMNESTY LAW or other similar EXECUTIVE MEASURES that shall exempt them from any penal proceedings or sanctions.

Section 25. of the Act provides no person shall be expelled, returned or EXTRADITED to another State where there are SUBSTANTIAL GROUNDS TO BELIEVE that such person SHALL BE IN DANGER OF BEING SUBJECTED TO enforced or involuntary disappearance.

For purposes of determining whether such grounds exist, the Secretary of the Department, of Foreign Affairs (DFA) and the Secretary of the Department of Justice (DOJ) in coordination with the Chairperson of the CHR, shall take into account all relevant considerations including where applicable and not limited to, the existence in the requesting State of a consistent pattern of gross, flagrant or mass violations of human rights.

Section 26 provides that the VICTIMS of enforced or involuntary disappearance who surface alive shall be entitled to MONETARY COMPENSATION , REHABILITATION and RESTITUTION OF HONOR AND REPUTATION.

Such RESTITUTION OF HONOR AND REPUTATION shall include immediate EXPUNGING OR RECTIFICATION of any DEROGATORY RECORD, INFORMATION OR PUBLIC DECLARATION /STATEMENT on his or her person, personal circumstances, status, and/or organizational affiliation by the appropriate government or private agency or agencies concerned.

The IMMEDIATE RELATIVES of a victim of enforced or involuntary disappearance, within the fourth civil degree of consanguinity or affinity, may also claim for COMPENSATION as provided for under REPUBLIC ACT NO. 7309, entitled "An Act Creating a BOARD OF CLAIMS under the Department of Justice for VICTIMS of Unjust Imprisonment or Detention and Victims of Violent Crimes and For Other Purposes", and OTHER RELIEF PROGRAMS OF THE GOVERNMENT.

The PACKAGE OF INDEMNIFICATION for both the VICTIMS and the IMMEDIATE RELATIVES within the FOURTH CIVIL DEGREE OF CONSANGUINITY OR AFFINITY shall be WITHOUT PREJUDICE to OTHER LEGAL REMEDIES that may be available to them.

Under Section 28 of the Act, the DOJ, the DSWD, the CHR, the Families of Victims of Involuntary Disappearance (FIND) and the Families of Desaparecidos for Justice (Desaparecidos), IN CONSULTATION WITH other human rights organizations, shall JOINTLY PROMULGATE the RULES AND REGULATIONS for the effective IMPLEMENTATION of the Act and shall ensure the FULL DISSEMINATION of the same TO THE PUBLIC.

REPUBLIC ACT NO. 7438, c. 1992 - RIGHTS of persons ARRESTED, DETAINED or under CUSTODIAL INVESTIGATION

UNDER Section 2 of REPUBLIC ACT NO. 7438, c. 1992, the RIGHTS of persons ARRESTED, DETAINED or under CUSTODIAL INVESTIGATION, which all public officers must respect, are as follows:

(a) Any person arrested detained or under custodial investigation shall AT ALL TIMES BE ASSISTED BY COUNSEL.

(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall INFORM the latter, in a LANGUAGE KNOWN to and UNDERSTOOD by him, of his RIGHTS to REMAIN SILENT and to have COMPETENT AND INDEPENDENT COUNSEL, PREFERABLY of his OWN CHOICE, who shall at all times be ALLOWED TO CONFER PRIVATELY with the person arrested, detained or under custodial investigation. If such person CANNOT AFFORD the services of his own counsel, he MUST BE PROVIDED with a COMPETENT AND INDEPENDENT COUNSEL by the investigating officer.

(c) The CUSTODIAL INVESTIGATION REPORT shall be reduced to WRITING by the investigating officer, provided that before such report is SIGNED, OR THUMBMARKED if the person arrested or detained does not know how to read and write, it shall be READ AND ADEQUATELY EXPLAINED to him by HIS COUNSEL or by the assisting counsel provided by the investigating officer in the LANGUAGE OR DIALECT KNOWN to such arrested or detained person, OTHERWISE, such investigation report shall be NULL AND VOID and of NO EFFECT WHATSOEVER.

(d) Any EXTRAJUDICIAL CONFESSION made by a person arrested, detained or under custodial investigation shall be IN WRITING and SIGNED by such person IN THE PRESENCE OF HIS COUNSEL or in the latter's absence, upon a valid WAIVER, and in the PRESENCE OF ANY OF THE PARENTS , ELDER BROTHERS AND SISTERS , his SPOUSE , the MUNICIPAL MAYOR, the MUNICIPAL JUDGE, DISTRICT SCHOOL SUPERVISOR, or PRIEST OR MINISTER of the gospel as CHOSEN BY HIM.

OTHERWISE , such EXTRAJUDICIAL CONFESSION shall be INADMISSIBLE AS EVIDENCE IN ANY PROCEEDING.

(e) Any WAIVER by a person arrested or detained under the provisions of ARTICLE 125 of the REVISED PENAL CODE, or under custodial investigation, shall be IN WRITING and SIGNED by such person IN THE PRESENCE OF HIS COUNSEL.

OTHERWISE the WAIVER shall be NULL AND VOID and of NO EFFECT.

(f) Any person arrested or detained or under custodial investigation shall be ALLOWED VISITS by or CONFERENCES WITH any member of his IMMEDIATE FAMILY, or any MEDICAL DOCTOR or PRIEST OR RELIGIOUS MINISTER chosen by him or by any member of his immediate family or by his counsel, or by ANY NATIONAL NON-GOVERNMENTAL ORGANIZATION DULY ACCREDITED by the COMMISSION ON HUMAN RIGHTS of by any INTERNATIONAL NON-GOVERNMENTAL ORGANIZATION DULY ACCREDITED by the OFFICE OF THE PRESIDENT .

The person's "IMMEDIATE FAMILY " shall include 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.

As used in this Act, "CUSTODIAL INVESTIGATION " shall include the practice of issuing an "INVITATION " to a person who is investigated in connection with an offense he is SUSPECTED to have committed, WITHOUT PREJUDICE TO THE LIABILITY OF THE "INVITING " OFFICER FOR ANY VIOLATION OF LAW.

Section 3 of the Act provides that IN THE ABSENCE OF ANY LAWYER, NO CUSTODIAL INVESTIGATION SHALL BE CONDUCTED and the suspected person can only be detained by the investigating officer in accordance with the provisions of ARTICLE 125 of the Revised Penal CODE (maximum of 12, 18 or 36 hours, depending on the classification of the felony).

Section 4 of the Act provides that any arresting public officer or employee, or any investigating officer, who FAILS TO INFORM any person arrested, detained or under custodial investigation of his RIGHT TO REMAIN SILENT and to HAVE COMPETENT AND INDEPENDENT COUNSEL preferably of his own choice, shall suffer a FINE of Six thousand pesos (P6,000.00) OR a penalty of IMPRISONMENT of not less than eight (8) YEARS but not more than TEN (10) YEARS, OR BOTH.

The penalty of PERPETUAL ABSOLUTE DISQUALIFICATION shall also be imposed upon the investigating officer who has been PREVIOUSLY CONVICTED OF A SIMILAR OFFENSE.

The SAME PENALTIES shall be imposed upon A PUBLIC OFFICER OR EMPLOYEE , or ANYONE ACTING UPON ORDERS OF SUCH INVESTIGATING OFFICER or in his place, who FAILS to provide a COMPETENT AND INDEPENDENT COUNSEL to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel.

The same section further provides that ANY PERSON who OBSTRUCTS , PREVENTS or PROHIBITS ANY LAWYER, any member of the IMMEDIATE FAMILY of a person arrested, detained or under custodial investigation, or any MEDICAL DOCTOR or PRIEST or RELIGIOUS MINISTER chosen by him or by any member of his immediate family or by his counsel, from VISITING AND CONFERRING PRIVATELY with him, or from EXAMINING AND TREATING him, or from MINISTERING TO HIS SPIRITUAL NEEDS , AT ANY HOUR OF THE DAY or, in URGENT cases, of the NIGHT shall suffer the penalty of imprisonment of not less than FOUR (4) YEARS nor more than SIX (6) YEARS , AND a FINE of four thousand pesos (P4,000.00).

Note that the same section provides that ANY SECURITY OFFICER with custodial responsibility over any detainee or prisoner may undertake such REASONABLE MEASURES as may be NECESSARY to SECURE his SAFETY and PREVENT HIS ESCAPE.

SUBSTANTIVE CONTENT OF THE RIGHT TO SUFFRAGE.

WHAT is involved in this case is the MOST SACRED OF SPEECH FORMS: expression by the electorate that tends TO ROUSE THE PUBLIC TO DEBATE CONTEMPORARY ISSUES.


"Embedded in the TARPAULIN, however, are OPINIONS expressed by petitioners. It is a SPECIE OF EXPRESSION PROTECTED BY OUR FUNDAMENTAL LAW. It is an expression designed to invite attention, CAUSE DEBATE , and hopefully, PERSUADE. It may be motivated by the interpretation of petitioners of their ecclesiastical duty, but their parishioner’s actions will have very real secular consequences. Certainly, PROVOCATIVE MESSAGES DO MATTER FOR THE ELECTIONS.

What is involved in this case is the MOST SACRED OF SPEECH FORMS: expression by the electorate that tends TO ROUSE THE PUBLIC TO DEBATE CONTEMPORARY ISSUES. This is NOT speech by candidates or political parties to entice votes. It is a portion of the electorate telling candidates the conditions for their election. It is the SUBSTANTIVE CONTENT OF THE RIGHT TO SUFFRAGE.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is PROTECTED as a FUNDAMENTAL AND PRIMORDIAL RIGHT by our Constitution. The expression in the medium chosen by petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is hereby made permanent. The ACT OF THE COMELEC in issuing the assailed notice dated February 22, 2013 and letter dated February 27, 2013 is DECLARED UNCONSTITUTIONAL.

SO ORDERED.


MARVIC M.V.F. LEONEN
Associate Justice


WE CONCUR:

MARIA LOURDES P.A. SERENO
Chief Justice


ANTONIO T. CARPIO
Associate Justice 

PRESBITERO J. VELASCO, JR.
Associate Justice

TERESITA J. LEONARDO-DE CASTRO
Associate Justice 

ARTURO D. BRION*
Associate Justice

DIOSDADO M. PERALTA
Associate Justice 

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO
Associate Justice 

MARTN S. VILLARAMA, JR.
Associate Justice

JOSE PORTUGAL PEREZ
Associate Justice 

JOSE CATRAL MENDOZA
Associate Justice

BIENVENIDO L. REYES
Associate Justice

 ESTELA M. PERLAS-BERNABE
Associate Justice. "


Read :

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,

vs.

COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.

EN BANC, G.R. No. 205728, January 21, 2015

COMELEC has NO LEGAL BASIS to regulate EXPRESSIONS made by PRIVATE CITIZENS

"Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the power to regulate the tarpaulin. However, all of these provisions pertain to CANDIDATES AND POLITICAL PARTIES. Petitioners are NOT CANDIDATES. Neither do they belong to any political party. COMELEC does not have the authority to regulate the enjoyment of the PREFERRED RIGHT to FREEDOM OF EXPRESSION exercised by a NON-CANDIDATE in this case."


Read :

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,

vs.

COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.

EN BANC, G.R. No. 205728, January 21, 2015

Satire and free speech

"The twin TARPAULINS consist of SATIRE of political parties. Satire is a "literary form that employs such devices as SARCASM, IRONY and RIDICULE to deride prevailing vices or follies," and this may target any individual or group in society, private and government alike. It seeks to effectively communicate a greater purpose, often used for "POLITICAL AND SOCIAL CRITICISM" "because it tears down facades, deflates stuffed shirts, and UNMASK HYPOCRISY. . . . NOTHING IS MORE THOROUGHLY DEMOCRATIC THAN TO HAVE THE HIGH-AND-MIGHTY LAMPOONED AND SPOOFED." Northrop Frye, wellknown in this literary field, claimed that satire had two defining features: "one is WIT OR HUMOR founded on fantasy or a sense of the GROTESQUE AND ABSURD, the other is an object of attack." Thus, satire frequently uses EXAGGERATION, ANALOGY , and OTHER RHETORICAL DEVICES."


Read :

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,

vs.

COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.

EN BANC, G.R. No. 205728, January 21, 2015

Unconstitutional regulation of speech, expression

"REGULATION OF SPEECH in the context of electoral campaigns made by persons who are NOT CANDIDATES or who do not speak as members of a political party which are, taken as a whole, PRINCIPALLY ADVOCACIES OF A SOCIAL ISSUE that the public must consider during elections is UNCONSTITUTIONAL. Such regulationn is inconsistent with the guarantee of according the fullest possible range of opinions coming from the electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not amount toan election paraphernalia to be validly regulated by law.

REGULATION OF ELECTION PARAPHERNALIA will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object. THE REGULATION MUST ONLY BE WITH RESPECT TO THE TIME , PLACE , AND MANNER OF THE RENDITION OF THE MESSAGE. IN NO SITUATION MAY THE SPEECH BE PROHIBITED OR CENSORED ON THE BASIS OF ITS CONTENT. FOR THIS PURPOSE, IT WILL NOT MATTER WHETHER THE SPEECH IS MADE WITH OR ON PRIVATE PROPERTY.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal message in the twin tarpaulins of petitioners consists of a SOCIAL ADVOCACY."


Read :

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,

vs.

COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.

EN BANC, G.R. No. 205728, January 21, 2015

https://lawphil.net/judjuris/juri2015/jan2015/gr_205728_2015.html

RIGHT TO PROPERTY

THE act of COMELEC in seeking to restrain petitioners from posting the tarpaulin in THEIR OWN PRIVATE PROPERTY is an impermissible encroachment on the RIGHT TO PROPERTY. -


"RIGHT TO PROPERTY

Other than the right to freedom of expression and the meaningful exercise of the right to suffrage, the present case also involves one’s right to property.

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating to election propaganda by applying such regulations to private individuals. Certainly, any provision or regulation can be circumvented. But we are not confronted with this possibility. Respondents agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed, during the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of petitioners. Their right to use their property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz:

Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of the laws. (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted is "so broad that it encompasses even the citizen’s private property." Consequently, it violates Article III, Section 1 of the Constitution which provides thatno person shall be deprived of his property without due process of law. This court explained:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, except inthe common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on his own front dooror on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do. Respondents ordered petitioners, who are private citizens, to remove the tarpaulin from their own property. The absurdity of the situation is in itself an indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no expression when there is no place where the expression may be made. COMELEC’s infringement upon petitioners’ property rights as in the present case also reaches out to infringement on their fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It must also acknowledge a private individual’s right to exercise property rights. Otherwise, the due process clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election propaganda in private property without the consent of the owners of such private property. COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we find that the act of the respondents in seeking to restrain petitioners from posting the tarpaulin in their own private property is an impermissible encroachments on the right to property."


Read:

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,

vs.

COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.

EN BANC, G.R. No. 205728, January 21, 2015

https://lawphil.net/judjuris/juri2015/jan2015/gr_205728_2015.html

Evasion of income tax is a crime involving moral turpitude

"ZARI v. FLORES, Adm. No. (2170-MC) P-1356, November 21, 1979, 94 SCRA 317, 323, is one case that has provided jurisprudence its own list of crimes involving MORAL TURPITUDE, namely: adultery, concubinage, rape, arson, EVASION OF INCOME TAX, barratry, bigamy, blackmail, bribery, criminal conspiracy to smuggle opium, dueling, embezzlement, extortion, forgery, libel, making fraudulent proof of loss on insurance contract, murder, mutilation of public records, fabrication of evidence, offenses against pension laws, perjury, seduction under the promise of marriage, estafa, falsification of public document, and estafa thru falsification of public document."

EDGAR Y. TEVES, Petitioner, vs. THE COMMISSION ON ELECTIONS and HERMINIO G. TEVES, Respondents. EN BANC. G.R. No. 180363,. April 28, 2009.

https://lawphil.net/judjuris/juri2009/apr2009/gr_180363_2009.html

The filing of a "fraudulent return with intent to evade tax" is a crime involving moral turpitude as it entails willfulness and fraudulent intent on the part of the individual. The same, however, cannot be said for "failure to file a return" where the mere omission already constitutes a violation.

"x x x.

"On the other hand, the eight cases filed against respondent Ferdinand Marcos II involve four charges for violation of Section 45 (failure to file income tax returns) and four charges for violation of Section 50 (non-payment of deficiency taxes) of the National Internal Revenue Code of 1977 (NIRC).

It is a matter of record, that in CA-G.R. CR No. 18569,36 the CA acquitted respondent Ferdinand Marcos II of all the four charges for violation of Section 50 and sustained his conviction for all the four charges for violation of Section 45. It, however, bears to stress, that the CA only ordered respondent Marcos II to pay a fine for his failure to file his income tax return. Moreover, and as admitted by petitioner,37 said decision is still pending appeal.

Therefore, since respondent Ferdinand Marcos II has appealed his conviction relating to four violations of Section 45 of the NIRC, the same should not serve as a basis to disqualify him to be appointed as an executor of the will of his father. More importantly, even assuming arguendo that his conviction is later on affirmed, the same is still insufficient to disqualify him as the "failure to file an income tax return" is not a crime involving moral turpitude.

In Villaber v. Commision on Elections,38 this Court held:

As to the meaning of "moral turpitude," we have consistently adopted the definition in Black's Law Dictionary as "an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals."

In In re Vinzon, the term "moral turpitude" is considered as encompassing "everything which is done contrary to justice, honesty, or good morals."

x x x x

We, however, clarified in Dela Torre vs. Commission on Elections that "not every criminal act involves moral turpitude," and that ''as to what crime involves moral turpitude is for the Supreme Court to determine."39


Moreover, In De Jesus-Paras v. Vailoces:40

Indeed, it is well-settled that "embezzlement, forgery, robbery, and swindling are crimes which denote moral turpitude and, as a general rule, all crimes of which fraud is an element are looked on as involving moral turpitude" (58 C.J.S., 1206).

The "failure to file an income tax return" is not a crime involving moral turpitude as the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual. This conclusion is supported by the provisions of the NIRC as well as previous Court decisions which show that with regard to the filing of an income tax return, the NIRC considers three distinct violations: (1) a false return, (2) a fraudulent return with intent to evade tax, and (3) failure to file a return.

The same is illustrated in Section 51(b) of the NIRC which reads:

(b) Assessment and payment of deficiency tax – xxx

In case a person fails to make and file a return or list at the time prescribed by law, or makes willfully or otherwise, false or fraudulent return or list x x x. (Emphasis Supplied)


Likewise, in Aznar v. Court of Tax Appeals,41 this Court observed:

To our minds we can dispense with these controversial arguments on facts, although we do not deny that the findings of facts by the Court of Tax Appeals, supported as they are by very substantial evidence, carry great weight, by resorting to a proper interpretation of Section 332 of the NIRC. We believe that the proper and reasonable interpretation of said provision should be that in the three different cases of (1) false return, (2) fraudulent return with intent to evade tax, (3) failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time within ten years after the discovery of the (1) falsity, (2) fraud, and (3) omission. Our stand that the law should be interpreted to mean a separation of the three different situations of false return, fraudulent return with intent to evade tax, and failure to file a return is strengthened immeasurably by the last portion of the provision which segregates the situations into three different classes, namely, "falsity," "fraud" and "omission."42 (Emphasis Supplied)


Applying the foregoing considerations to the case at bar, the filing of a "fraudulent return with intent to evade tax" is a crime involving moral turpitude as it entails willfulness and fraudulent intent on the part of the individual. The same, however, cannot be said for "failure to file a return" where the mere omission already constitutes a violation. Thus, this Court holds that even if the conviction of respondent Marcos II is affirmed, the same not being a crime involving moral turpitude cannot serve as a ground for his disqualification.

X x x. "


REPUBLIC OF THE PHILIPPINES, Petitioner, vs. FERDINAND R. MARCOS II and IMELDA R. MARCOS, Respondents. 

G.R. Nos. 130371 &130855, August 4, 2009.

https://lawphil.net/judjuris/juri2009/aug2009/gr_130371_2009.html

WHEN JUSTICE IS A NUMBERS GAME.

AT the end of the day, the sad reality is that JUSTICE IS A NUMBERS GAME.

It is true whether we refer to the independent constitutional bodies like Comelec, COA, and CSC, or the dynasties-infested and pork barrel-fed Congress, or the collegial judicial bodies (Supreme Court, Court of Appeals, Sandiganbayan and Court of Tax Appeals), or the collegial quasi-judicial, administrative, regulatory and decision-making bodies of the government like the NLRC, SEC, Napolcom, Insurance Commission, ERC, and many others.

When greed, raw power, dirty partisan politics and corrupt hidden agenda rule society and the corridors of power, the tenets of justice, fair play, equity, equality, wisdom and the common good miserably fail.

A biased, corrupt or partisan justice, arbitrator, commissioner or regulator, once bought, remains bought.

He subjectively interprets the evidence and the law, according to his prejudices and preconceptions, sanitized by the magic aura of legalese, rituals, formalities and technicalities.

He can easily find the necessary jurisprudence and precedents -- which are oftentimes replete with doctrinal, logical and philosophical contradictions -- to justify his unfair and prejudiced conclusions.

That is how human society works. Sad but true.

I speak from tortuous and painful experience as a senior citizen and as a trial lawyer and former law professor and pre-Bar reviewer since my admission to the Philippine Bar in 1985.

You ask me, what is the remedy of the oppressed society?

My answer is the will, vigilance and determination of the SOVEREIGN PEOPLE, FROM WHOM ALL GOVERNMENTAL AUTHORITY EMANATES, as enunciated in the Constitution.

The POWER OF THE PEOPLE is the most fundamental principle that sustains a genuine democratic republic.

What form shall the struggle take?

Each historical phase of a nation calls for unique and specific actions and creates its own particular heroes.

An old senior citizen, like me, always hopes, waits, and dreams -- even as, sometimes, in the middle of my evening prayers, I can do nothing but cry alone for my motherland.

MANUEL LASERNA JR. 

Taxability of campaign contributions - Atty Rodel C. Unciano

"Proceeding now to the taxability of campaign contributions, as circularized in Revenue Memorandum Circular (RMC) 38-2018 and as reiterated in RMC 31-2019, campaign contributions are not included in the taxable income of the candidate to whom they were given, the reason being that such contributions were given not for the personal expenditure or enrichment of the concerned candidate, but for the purpose of utilizing such contributions for the campaign. In order to be considered as exempt from income tax, the contributions must be utilized to cover a candidate’s expenditures for his/her electoral campaign.

Unutilized/excess campaign funds, that is, campaign contributions net of the candidate’s campaign expenditures, shall be considered as subject to income tax, and must be included in the candidate’s taxable income in the income tax return filed for the subject taxable year.

As a condition for the deductibility of the campaign expenditures, any candidate or political party or party-list group must file with the Commission on Elections (Comelec) a Statement of Contributions and Expenditures required under the Omnibus Election Code. Any candidate or political party or party-list group, whether winner or loser, who fails to comply with this requirement shall be automatically precluded from claiming such expenditures as deductions from the campaign contributions, making the entire amount directly subject to income tax.

Every candidate and treasurer of the political parties or party-list groups shall submit the Statement of Contributions and Expenditures to the Comelec and Revenue District Officer where the candidates or political parties or party-list groups are registered within 30 days after the election.

Income payments made by political candidates and political parties or party-list groups on their purchases of goods and services as campaign expenditures shall be subject to the five percent (5%) creditable withholding tax (CWT). Income payments made by individuals or juridical persons for their purchases of goods and services intended to be given as campaign contribution to political parties and candidates shall likewise be subject to five percent (5%) creditable withholding tax.

Expenses that were not subjected to the five percent (5%) CWT are not considered utilized campaign funds, and the candidates, political parties or party-list groups are precluded from claiming such expenditures as deductions from their campaign contributions. As such, the full amount corresponding to said expense shall be reported as unutilized campaign funds subject to income tax.

Under the Omnibus Election Code, contributions in cash or in kind to any candidates, political parties, or party-list groups are exempt from the imposition of Donor’s Tax. Only those donations or contributions that have been utilized/spent during the campaign period as set by the Comelec are exempt from donor’s tax. Donations utilized before or after the campaign period are subject to donor’s tax and not deductible as political contribution on the part of the donor.

***

THE  AUTHOR is a partner of DU-BALADAD AND ASSOCIATES LAW OFFICES (BDB Law), a member-firm of WTS Global.

The article is for general information only and is not intended, nor should be construed as a substitute for tax, legal or financial advice son any specific matter. Applicability of this article to any actual or particular tax or legal issue should be supported therefore by a professional study or advice. If you have any comments or questions concerning the article, you may e-mail the author at rodel.unciano@bdblaw.com.ph or call 8403-2001 local 140."

Read :

Taxability of campaign contributions
By Atty Rodel C. Unciano

https://www.bdblaw.com.ph/index.php/newsroom/articles/tax-law-for-business/799-taxability-of-campaign-contributions

Political campaign contributions

"Section 14 of R.A. No. 7166 entitled "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" provides as follows:

Statement of Contributions and Expenditures: Effect of Failure to File Statement. - Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and ITEMIZED STATEMENT OF ALL CONTRIBUTIONS AND EXPENDITURES in connection with the election.

NO person ELECTED to any public office SHALL ENTER UPON THE DUTIES OF HIS OFFICE until he has FILED the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act.

EXCEPT candidates for elective BARANGAY office, failure to file the statements or reports in connection with electoral contributions and expenditures as required herein shall constitute an ADMINISTRATIVE OFFENSE for which the offenders shall be liable to pay an ADMINISTRATIVE FINE ranging from One Thousand Pesos ( P1,000.00) to Thirty Thousand Pesos (P30,000.00), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender.

It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures.

For the commission of a SECOND OR SUBSEQUENT OFFENSE under this Section, the administrative fine shall be from Two Thousand Pesos (P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to PERPETUAL DISQUALIFICATION TO HOLD PUBLIC OFFICE (Emphasis supplied).

To implement the provisions of law relative to election contributions and expenditures, the COMELEC promulgated on January 13, 1992 Resolution No. 2348 (Re: Rules and Regulations Governing Electoral Contributions and Expenditures in Connection with the National and Local Elections on

May 11, 1992). The pertinent provisions of said Resolution are:

Sec. 13. Statement of contributions and expenditures: Reminders to candidates to file statements. Within five (5) days from the day of the election, the Law Department of the Commission, the regional election director of the National Capital Region, the provincial election supervisors and the election registrars shall advise in writing by personal delivery or registered mail all candidates who filed their certificates of candidacy with them to comply with their obligation to file their statements of contributions and expenditures in connection with the elections. Every election registrar shall also advise all candidates residing in his jurisdiction to comply with said obligation (Emphasis supplied).

Sec. 17. Effect of failure to file statement. (a) No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning candidates fails to file the statement required within the period prescribed by law.

(b) Except candidates for elective barangay office, failure to file statements or reports in connection with the electoral contributions and expenditures as required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos (P1,000) to Thirty Thousand Pesos (P30,000), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender.

For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two Thousand Pesos (P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.

Petitioner argues that he cannot be held liable for failure to file a statement of contributions and expenditures because he was a "non-candidate," having WITHDRAWN his certificates of candidacy three days after its filing. Petitioner posits that "it is . . . clear from the law that candidate must have entered the political contest, and should have either won or lost" (Rollo, p. 39).

Petitioner's argument is without merit.

Section 14 of R.A. No. 7166 states that "EVERY CANDIDATE" has the obligation to file his statement of contributions and expenditures.

Well-recognized is the rule that WHERE THE LAW DOES NOT DISTINGUISH, courts should not distinguish, Ubi lex non distinguit nec nos distinguere debemos (Philippine British Assurance Co. Inc. v. Intermediate Appellate Court, 150 SCRA 520 [1987]; cf Olfato v. Commission on Elections, 103 SCRA 741 [1981]). NO DISTINCTION is to be made in the application of a law where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636 [1946]).

In the case at bench, as the LAW MAKES NO DISTINCTION OR QUALIFICATION as to whether the candidate PURSUED his candidacy or WITHDREW the same, the term "EVERY CANDIDATE" must be deemed to refer not only to a candidate who pursued his campaign, but also to one who withdrew his candidacy.

The COMELEC, the body tasked with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall (The Constitution of the Republic of the Philippines, Art. IX(C), Sec. 2[1]), issued Resolution No. 2348 in implementation or interpretation of the provisions of Republic Act No. 7166 on election contributions and expenditures. Section 13 of Resolution No. 2348 categorically refers to "all candidates who filed their certificates of candidacy."

Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use of the word "shall" in a statute implies that the statute is MANDATORY, and imposes a DUTY which may be enforced , particularly if public policy is in favor of this meaning or where public interest is involved. We apply the general rule (Baranda v. Gustilo, 165 SCRA 757 [1988]; Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608 [1952]).

The state has an interest in seeing that the electoral process is clean, and ultimately expressive of the true will of the electorate. One way of attaining such objective is to pass legislation regulating contributions and expenditures of candidates, and compelling the publication of the same. Admittedly, contributions and expenditures are made for the purpose of influencing the results of the elections (B.P. Blg. 881, Sec. 94; Resolution No. 2348, Sec. 1). Thus, laws and regulations prescribe what contributions are prohibited (B.P. Blg. 881, Sec. 95, Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg. 881, Sec. 96), and what expenditures are authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution No. 2348, Sec. 7) or lawful (Resolution No. 2348, Sec. 8)."

Read:

G.R. No. 115245 July 11, 1995

JUANITO C. PILAR, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

https://lawphil.net/judjuris/juri1995/jul1995/gr_115245_1995.html

When the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation.

"Xxx. In Rizal Commercial Banking Corporation v. Intermediate Appellate Court10 the Court enunciated:

It bears stressing that the first and fundamental duty of the Court is to apply the law. When the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. As has been our consistent ruling, where the law speaks in clear and categorical language, there is no occasion for interpretation; there is only room for application (Cebu Portland Cement Co. v. Municipality of Naga, 24 SCRA 708 [1968])

Where the law is clear and unambiguous, it must be taken to mean exactly what it says and the court has no choice but to see to it that its mandate is obeyed (Chartered Bank Employees Association v. Ople, 138 SCRA 273 [1985]; Luzon Surety Co., Inc. v. De Garcia, 30 SCRA 111 [1969]; Quijano v. Development Bank of the Philippines, 35 SCRA 270 [1970]).

Only when the law is ambiguous or of doubtful meaning may the court interpret or construe its true intent.l^vvphi1.net Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time. A statute is ambiguous if it is admissible of two or more possible meanings, in which case, the Court is called upon to exercise one of its judicial functions, which is to interpret the law according to its true intent."


G. R. No. 120721 February 23, 2005

MANUEL G. ABELLO, JOSE C. CONCEPCION, TEODORO D. REGALA, AVELINO V. CRUZ, petitioners,
vs.
COMMISSIONER OF INTERNAL REVENUE and COURT OF APPEALS, respondents.

https://lawphil.net/judjuris/juri2005/feb2005/gr_120721_2005.html

Gift tax on political campaign contributions

"Eighth Issue

Petitioners next contend that tax laws are construed liberally in favor of the taxpayer and strictly against the government. This rule of construction, however, does not benefit petitioners because, as stated, there is here no room for construction since the law is clear and unambiguous.

Finally, this Court takes note of the fact that subsequent to the donations involved in this case, Congress approved REPUBLIC ACT NO. 7166 on NOVEMBER 25, 1991, providing in SECTION 13 thereof that POLITICAL/ELECTORAL CONTRIBUTIONS, DULY REPORTED to the COMMISSION ON ELECTIONS, are NOT SUBJECT TO the payment of any GIFT TAX. This all the more shows that the political contributions herein made are subject to the payment of gift taxes, since the same were made PRIOR TO the exempting legislation, and Republic Act No. 7166 provides NO RETROACTIVE EFFECT on this point.

WHEREFORE, the petition is DENIED and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED.

No costs.

SO ORDERED."

G.R. No. 120721 February 23, 2005
MANUEL G. ABELLO, JOSE C. CONCEPCION, TEODORO D. REGALA, AVELINO V. CRUZ, petitioners,
vs.
COMMISSIONER OF INTERNAL REVENUE and COURT OF APPEALS, respondents.

https://lawphil.net/judjuris/juri2005/feb2005/gr_120721_2005.html

Mediation and JDR in civil cases

"Xxx.

Mediation and JDR in civil cases

Tranquil G.S. Salvador III
January 14, 2022
The Manila Standard

Mediation is a method of settling disputes outside a court setting where a neutral third party, known as a mediator, acts as a link between the parties (Barron’s Law Dictionary). In the Philippines, court-annexed mediation (CAM) is conducted by referring the parties to the mediator of the Philippine Mediation Center Unit (PMCU) accredited by the Supreme Court.

On the other hand, Judicial Dispute Resolution (JDR) is the process wherein a judge known as the JDR Judge employs conciliation, mediation, or early neutral evaluation in order to settle a case at the pre-trial stage (Definition, Philippine Judicial Academy). Under the 2019 Amendment to the Rules of Civil Procedure (ARCP), the JDR judge is a judge other than the judge originally assigned to hear and try the case.
e CAM must be terminated no later than 30 days from the receipt of the referral order from the court and the JDR no later than 15 days from the receipt of such a referral order (Section 8, Chapter 2B and Section 3, 2C, A.M. No. 19-10-20-SC). If both the CAM and JDR are unsuccessful, the trial will proceed on the dates agreed upon during the pre-trial before the judge originally assigned to handle the case (Sections 8 and 9, Rule 18, ARCP).

The CAM shall be mandatory for all ordinary civil cases, including mediatable permissive or compulsory counterclaim or cross-claim. It shall also be mandatory for all special civil actions, except Declaratory Relief (Rule 63), Review of Decisions of COA or COMELEC (Rule 64), Certiorari, Prohibition and Mandamus (Rule 65), Quo Warranto (Rule 66), and Contempt (Rule 71) (Section 1(a)(b), Chapter 1).

CAM is mandatory in special proceedings cases involving the settlement of estate where the dispute involves claims against the estate, or the distribution or partition of the estate in intestate proceedings; and cases involving issues under the Family Code and other laws, in relation to support, custody, visitation, property relations, guardianship of minor children, and other issues which can be the subject of a compromise agreement (Section 1(c)(d), Chapter 1).
Intellectual property cases, commercial or intra-corporate controversy cases, and environmental cases are all mandated to go through CAM (Section 1(e)(f)(g), Chapter 1). However, environmental cases are not required to undergo JDR unless the judge of the court to which the case was originally filed is convinced that settlement is still possible (Section 2(a), Chapter 1).

All cases subject of CAM and appealed cases from the first level courts or metropolitan/municipal trial courts may be referred to JDR in areas declared as JDR sites. (Section 2(a)(b), Chapter 1). The other cases that may be referred to JDR are: (a) settlements of estate, testate and intestate; (b) cases of forcible entry and unlawful detainer; (c) civil cases involving title to, or possession of, or interest over real property; and (d) habeas corpus cases decided by the metropolitan/municipal trial courts in the absence of any Regional Trial Court Judge (Section 2(1) to (4), Chapter 1).

In all other actions or proceedings where compromise is not prohibited by law and there is a likelihood of settlement, either or both of the parties may, by oral manifestation or written motion after the pre-trial/preliminary conference, or at any stage of the proceedings, request the court to refer their dispute to CAM and JDR, provided that there are still factual issues to be resolved (Section 3, Chapter 1).

There are cases that cannot be resolved by a compromise and therefore may not be referred to CAM and JDR. These are: (a) cases involving the civil status of persons; validity of a marriage or legal separation, any grounds for legal separation, future support, the jurisdiction of courts, and future legitime; (b) habeas corpus petitions; (c) probate of a will; and (d) cases with pending applications for restraining orders or preliminary injunctions (Section 4, Chapter 1).

However, for marriage cases where the parties inform the court that they have agreed to undergo mediation on some aspects of the case, the court may allow mediation on the custody of minor children, separation of property, or support pendente lite. By mutual consent of the parties, restraining orders and preliminary injunctions can also be subject to mediation (Section 4, Chapter 1).

It shall be the duty of the Judge during Pre-Trial/Preliminary Conference to orient the parties and counsels on: (a) the CAM process; (b) their mandatory appearance during the mediation proceedings; (c) their duty to negotiate in good faith and to exert earnest efforts to settle the case; and (d) the consequences of and sanctions for failure to appear before the PMCU or any misconduct or misbehavior committed during the mediation proceedings (Section 2(a)(b), Chapter 2A).

The Judge shall inform the parties that in case there is no settlement during CAM, the case may be referred to another court for JDR if the former is convinced that settlement is still possible. The parties will be informed that the JDR Judge may conduct a non-binding early neutral evaluation on the merits of their respective cases (Section 2(c)(d), Chapter 2A).the initial appearance of the parties and counsels for CAM, the PMCU shall require them to present proof of payment of mediation fees and assist them in selecting a mutually acceptable mediator from among the roster of mediators in the PMCU (Sections 2 and 3, Chapter 2B). If the parties cannot jointly select a common mediator, the PMCU shall, in the presence of the parties, choose the mediator by lot from among the mediators present at the unit (Section 4, Chapter 2B).

The PMCU shall submit a Mediator’s Report to the court specifying the result of the mediation (Section 12, Chapter 2B). If a compromise agreement is reached by the parties, the judgment of the court approving the compromise agreement shall contain a statement that it was rendered through CAM. This is to distinguish the CAM judgment from the JDR judgment and vice versa. (Section 13, Chapter 2B, Section 9, Chapter 2C).

Upon receipt of the Mediator’s Report stating that no settlement was reached in CAM, the referring judge shall determine, in the hearing set for this purpose, if settlement is still possible, and if he is convinced that it is, refer the case to the JDR Judge (Section 1, Chapter 2C). Only those judges who have undergone skills-based training in JDR procedures and stationed in areas declared as JDR sites, are authorized to conduct JDR (Section 4, Chapter 2C).

The JDR Judge shall then conduct the JDR process as mediator, conciliator, and/or neutral evaluator to actively assist and facilitate negotiations among the parties for them to settle their dispute. As mediator and conciliator, he facilitates the settlement discussions between the parties to reconcile their differences (Section 5, Chapter 2C).

As a neutral evaluator, he assesses the relative strengths and weaknesses of each party’s case and makes a non-binding and impartial evaluation to guide the parties to a fair and mutually acceptable settlement of their dispute. If the case is not settled in JDR, the JDR Judge shall accomplish the JDR Report and return the case to the Judge for the continuation of the proceedings in court (Sections 5 and 8, Chapter 2C).

The trial court shall impose the following sanctions in case parties and counsels fail to appear during CAM or JDR proceedings: (a) dismissal of the case, when there is failure of the plaintiff and counsel to appear without valid cause; or (b) ex-parte presentation of plaintiff’s evidence and dismissal of the defendant’s counterclaim when there is failure of the defendant and counsel to appear without valid cause (Section 5, Chapter 2D).

The court may, likewise, impose other sanctions, including but not limited to censure, reprimand, contempt, or reimbursement by the absent party of the costs of the appearing party, including attorney’s fees for that day up to treble such costs, which are payable on or before the date of the re-scheduled setting. In the exercise of its sound discretion, the trial court may lift, set aside, or modify the sanctions previously imposed (Section 5 and 6, Chapter 2D).

Any and all matters discussed or communications made, including requests for mediation, and documents presented during CAM and JDR shall be privileged and confidential. The mediator or JDR Judge shall not, in any manner, record the proceedings. No transcript or minutes of the mediation proceedings shall be taken. If personal notes are taken for guidance, the notes shall be destroyed. Should such records exist, the same shall also be privileged and confidential (Section 7, Chapter 2D).

Parties to a dispute must take advantage of the CAM and JDR in order to save their and the court’s time and resources. It may not look like a complete victory for either the complainant or defendant based on the reliefs sought in their respective pleadings but it may terminate the case that causes anxiety, sleepless nights and emotional distress. Hence, it is a win-win solution.

Xxx."

Source:

https://manilastandard.net/opinion/columns/footnotes-by-tranquil-g-s-salvador-iii/314065991/mediation-and-jdr-in-civil-cases.html

Summary judgments in forfeiture cases

"Xxx.

Petitioners’ sham denials justify the application of summary judgment

As already settled in the Swiss Deposits Decision and reiterated in the discussion above as the law of the case, the lawful income of the Marcoses is only USD 304,372.43. As discussed in paragraph 9 of the Petition for Forfeiture, Annex V-21-b states that Arelma’s assets as of 19 May 1983 were worth USD 3,369,975.00.63 The entirety of the lawful income of the Marcoses represents only 9% of the entire assets of Arelma, which petitioners remain unable to explain.

In their Answer to the Petition for Forfeiture, petitioners employ the same tactic, consisting of general denials based on a purported lack of knowledge regarding the whereabouts of the Arelma assets. Paragraph 32 of the said pleading states:

Respondents specifically DENY paragraph 59 of the Petition insofar as it alleges that the Marcoses used their cronies and engaged in laundering their filthy riches for being false and conclusory of the truth being that the Marcoses did not engage in any such illegal acts and that all the properties they acquired were lawfully acquired; and specifically DENY the rest for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents are not privy to the alleged transactions.64

This particular denial mimics petitioners’ similar denials of the allegations in the forfeiture Petition pertaining to the Swiss accounts and is practically identical to paragraphs 7 to 37 of the Answer. The Swiss Deposits Decision has characterized these as "sham" denials:

17. Respondents specifically DENY paragraph 18 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs.

18. Respondents specifically DENY paragraph 19 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs and that they are not privy to the activities of the BIR.

19. Respondents specifically DENY paragraph 20 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs.

20. Respondents specifically DENY paragraph 21 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs.

21. Respondents specifically DENY paragraph 22 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents cannot remember with exactitude the contents of the alleged ITRs.

22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents clandestinely stashed the country's wealth in Switzerland and hid the same under layers and layers of foundation and corporate entities for being false, the truth being that Respondents aforesaid properties were lawfully acquired.

23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and 30 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegation since Respondents were not privy to the transactions regarding the alleged Azio-Verso-Vibur Foundation accounts, except that as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were lawfully acquired.

24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36,37, 38, 39, 40, and 41 of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegations since Respondents are not privy to the transactions and as to such transaction they were privy to they cannot remember with exactitude the same having occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were lawfully acquired.

25. Respondents specifically DENY paragraphs 42, 43, 44, 45, and 46, of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegations since Respondents were not privy to the transactions and as to such transaction they were privy to they cannot remember with exactitude the same having occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were lawfully acquired.

26. Respondents specifically DENY paragraphs 49, 50, 51 and 52, of the Petition for lack of knowledge or information sufficient to form a belief as to the truth of the allegations since Respondents were not privy to the transactions and as to such transaction they were privy to they cannot remember with exactitude the same having occurred a long time ago, except that as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were lawfully acquired.

Upon careful perusal of the foregoing, the Court finds that respondent Mrs. Marcos and the Marcos children indubitably failed to tender genuine issues in their answer to the petition for forfeiture. A genuine issue is an issue of fact which calls for the presentation of evidence as distinguished from an issue which is fictitious and contrived, set up in bad faith or patently lacking in substance so as not to constitute a genuine issue for trial. Respondents' defenses of "lack of knowledge for lack of privity" or "(inability to) recall because it happened a long time ago" or, on the part of Mrs. Marcos, that "the funds were lawfully acquired" are fully insufficient to tender genuine issues. Respondent Marcoses' defenses were a sham and evidently calibrated to compound and confuse the issues.65 (Emphasis supplied.)

In the case at bar, petitioners give the same stock answer to the effect that the Marcoses did not engage in any illegal activities, and that all their properties were lawfully acquired. They fail to state with particularity the ultimate facts surrounding the alleged lawfulness of the mode of acquiring the funds in Arelma (which totaled USD 3,369,975.00 back in 1983), considering that the entirety of their lawful income amounted only to USD 304,372.43, or only 9% of the entire Arelma fund. Then, as now, they employ what the Court in G.R. No. 152154 characterized as a "negative pregnant," not just in denying the criminal provenance of the Arelma funds, but in the matter of ownership of the said funds. As discussed by the Court in the first Republic case, cited by the Sandiganbayan:

Evidently, this particular denial had the earmark of what is called in the law on pleadings as a negative pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. Stated otherwise, a negative pregnant is a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, it has been held that the qualifying circumstances alone are denied while the fact itself is admitted.66

Due to the insufficiency of petitioners’ denial of paragraph 59 which in effect denies only the qualifying circumstances, and by virtue of the Court’s ruling in the Swiss Deposits Decision, petitioners are deemed to have admitted the factual antecedents and the establishment of Arelma. In paragraph 32 of their Answer, they only deny the first few sentences of paragraph 59, while conveniently neglecting to address subparagraphs 1 to 5 and the opening bank documents described in 5 (a) to (d) of the Petition for Forfeiture. Paragraphs 1 and 2 of the Petition discusses the establishment of a Panamanian company to be named either "Larema, Inc. or Arelma, Inc., or Relma, Inc.;" the appointment of several people as directors; and the opening of a direct account with Merrill Lynch. Paragraphs 3 to 5 also of the Petition for Forfeiture detail correspondences between a "J.L. Sunier" and a letter addressed to Malacañang with the salutation "Dear Excellency."

Regarding the averment of petitioners that they lack knowledge sufficient to form a belief as to the truth of the above allegations in the Petition for Forfeiture, the Court’s discussion in the Swiss Deposits Decision bears reiterating:

Here, despite the serious and specific allegations against them, the Marcoses responded by simply saying that they had no knowledge or information sufficient to form a belief as to the truth of such allegations. Such a general, self-serving claim of ignorance of the facts alleged in the petition for forfeiture was insufficient to raise an issue. Respondent Marcoses should have positively stated how it was that they were supposedly ignorant of the facts alleged.67

Petitioners cannot escape the fact that there is manifest disparity between the amount of the Arelma funds and the lawful income of the Marcoses as shown in the ITRs filed by spouses Marcos. The Swiss Deposits Decision found that the genuineness of the said ITRs and balance sheets of the Marcos spouses have already been admitted by petitioners themselves:

Not only that. Respondents’ answer also technically admitted the genuineness and due execution of the Income Tax Returns (ITRs) and the balance sheets of the late Ferdinand E. Marcos and Imelda R. Marcos attached to the petition for forfeiture, as well as the veracity of the contents thereof.

The answer again premised its denials of said ITRs and balance sheets on the ground of lack of knowledge or information sufficient to form a belief as to the truth of the contents thereof. Petitioner correctly points out that respondents' denial was not really grounded on lack of knowledge or information sufficient to form a belief but was based on lack of recollection. By reviewing their own records, respondent Marcoses could have easily determined the genuineness and due execution of the ITRs and the balance sheets. They also had the means and opportunity of verifying the same from the records of the BIR and the Office of the President. They did not.

When matters regarding which respondents claim to have no knowledge or information sufficient to form a belief are plainly and necessarily within their knowledge, their alleged ignorance or lack of information will not be considered a specific denial. An unexplained denial of information within the control of the pleader, or is readily accessible to him, is evasive and is insufficient to constitute an effective denial.68 (Footnotes omitted.)

We find that petitioners have again attempted to delay the goal of asset recovery by their evasiveness and the expedient profession of ignorance. It is well-established that a profession of ignorance about a fact that is necessarily within the pleader’s knowledge or means of knowing is as ineffective as no denial at all. On a similar vein, there is a failure by petitioners to properly tender an issue, which as correctly ruled by the Sandiganbayan, justifies the Republic’s resort to summary judgment.

Summary judgment may be allowed where there is no genuine issue as to any material fact and where the moving party is entitled to a judgment as a matter of law.69 In Yuchengco v. Sandiganbayan, the Court has previously discussed the importance of summary judgment in weeding out sham claims or defenses at an early stage of the litigation in order to avoid the expense and loss of time involved in a trial, viz:

Even if the pleadings appear, on their face, to raise issues, summary judgment may still ensue as a matter of law if the affidavits, depositions and admissions show that such issues are not genuine. The presence or absence of a genuine issue as to any material fact determines, at bottom, the propriety of summary judgment. A "genuine issue", as differentiated from a fictitious or contrived one, is an issue of fact that requires the presentation of evidence. To the party who moves for summary judgment rests the onus of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial. 70

Even if in the Answer itself there appears to be a tender of issues requiring trial, yet when the relevant affidavits, depositions, or admissions demonstrate that those issues are not genuine but sham or fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for plaintiff.71

Summary judgment, or accelerated judgment as it is sometimes known, may also call for a hearing so that both the movant and the adverse party may justify their positions. However, the hearing contemplated (with 10-day notice) is for the purpose of determining whether the issues are genuine or not, not to receive evidence of the issues set up in the pleadings. In Carcon Development Corporation v. Court of Appeals, 72 the Court ruled that a hearing is not de riguer. The matter may be resolved, and usually is, on the basis of affidavits, depositions, and admissions. This does not mean that the hearing is superfluous; only that the court is empowered to determine its necessity.

It is the law itself that determines when a summary judgment is proper. Under the rules, summary judgment is appropriate when there are no genuine issues of fact that call for the presentation of evidence in a full-blown trial.1âwphi1 Even if on their face the pleadings appear to raise issues, when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed by the rules must ensue as a matter of law. What is crucial to a determination, therefore, is the presence or absence of a genuine issue as to any material fact. When the facts as pleaded appear uncontested or undisputed, then summary judgment is called for.73

Guided by the principles above indicated, we hold that under the circumstances obtaining in the case at bar, summary judgment is proper. The Sandiganbayan did not commit a reversible error in granting the corresponding 2004 Motion for Summary Judgment filed by respondent. The latter is well within its right to avail itself of summary judgment and obtain immediate relief, considering the insufficient denials and pleas of ignorance made by petitioners on matters that are supposedly within their knowledge.

These denials and pleas constitute admissions of material allegations under paragraph 59 of the Petition for Forfeiture – a tact they have employed repeatedly in Civil Case No. 0141. As discussed, the purpose of summary judgment is precisely to avoid long drawn litigations and useless delays.74 We also affirm the Sandiganbayan’s findings that the moving party, the Republic, is now entitled to judgment as a matter of law.

WHEREFORE, the instant Petition is DENIED. The Decision dated 2 April 2009 of the Sandiganbayan is AFFIRMED. All assets, properties, and funds belonging to Arelma, S.A., with an estimated aggregate amount of USD 3,369,975 as of 1983, plus all interests and all other income that accrued thereon, until the time or specific day that all money or monies are released and/or transferred to the possession of the Republic of the Philippines, are hereby forfeited in favor of Respondent Republic of the Philippines.

Xxx."

G.R. No. 189434 April 25, 2012

FERDINAND R. MARCOS, JR. Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, represented by the Presidential Commission on Good Government, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 189505

IMELDA ROMUALDEZ-MARCOS, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.

Link:
https://www.lawphil.net/judjuris/juri2012/apr2012/gr_189434_2012.html