Tuesday, December 29, 2009

Last hope; virtues of a chief justice.

I am sad to note, as many foreign observers do, that the social institutions in the Philippines do not effectively and genuinely serve the common good because they have been monopolized since time immemorial by corrupt and violent political dynasties which are supported by private armies, soldiers and policemen.

These deluded dynastic leaders brazenly pretend to be the epitomes of divine wisdom and models of morality and equity. They arrogantly live under the delusion that they are God-anointed saviors of Philippine democracy. Their delusion is encouraged and aggravated by their paid religious advisers and propagandists in the private mass media who do nothing but glorify and praise their empty press releases and ribbon-cutting photos.

In such a dire situation, the only, the sole and the last hope of the suffering common masses is the “justice system” of their country.

Such a justice system, if it were to serve its real purpose, must be led, motivated, inspired and disciplined by a morally courageous, wise, independent, intelligent and honest chief justice.

I repeat, the justice system is the last, the only, and the sole hope of a terminally sick republic, like the Philippines, which is under siege on a daily basis from all adversarial fronts and whose every shallow and difficult breath is one step closer to the frightening edges of a sad and painful death.

Deprive the hungry, ignorant and sick citizens of a poor country of their hopeless quest for truth and justice and I assure you that you will naturally generate a powerful mass desperation of such a momentum and scale that will inevitably wreak havoc to a political system that does nothing but enrich the pockets and fatten the bellies of its corrupt leaders and their equally corrupt spiritual advisers.

Mass desperation produces an internal revolution which, although not physically violent by and in itself, will definitely radiate earth-shaking, radical, and painful (but cleansing and purifying) consequences and lessons to such a downtrodden nation and its hierarchy of fake, insane and corrupt leaders.

What are the true virtues of a model chief justice, who is ultimately the final hope and the last resort of a desperate people?

Read below the recent column of my fellow FEU Law alumnus and former Philippine Supreme Court Chief Justice Artemio Panganiban.

And while reading it, pray for the political and socio-psychological salvation of the Filipinos.

With Due Respect
Chief Justice of the Philippines
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 19:11:00 12/26/2009

IN times of turmoil and crisis, our people have learned to depend on the Supreme Court for direction and salvation. Normally, they should really look to their elected leaders, the president and the members of Congress. Ironically however, the abusive and illegal acts complained of by our people come mainly from executive officials. Under these circumstances, our people inevitably turn to the chief justice to lead the Supreme Court in protecting their rights. What are the CJ’s functions?

1. Primus inter pares. Among the 15 members of our Supreme Court, the CJ is the primus inter pares (first among equals) who presides over its sessions, controls the flow of its proceedings, shapes its agenda, summarizes the discussions and influences the direction and pace of the Court’s work. Nonetheless, the CJ has only one vote. Thus, the CJ relies on moral ascendancy and persuasive skill, not on a boss-subordinate relationship, to sway the Court.

2. Leader of the entire judiciary. The CJ is not just the primus in the highest court. He is also the chief executive officer (or CEO) of the entire judiciary composed of 2,000 lower court judges and 26,000 judicial employees nationwide. He is the leader who inspires, motivates and moves them to work unceasingly, to rise above their puny limitations, to excel beyond themselves and to achieve collectively their loftiest dreams and highest aspirations.

While the jurist in him impels the CJ to follow tradition, to uphold precedents and stabilize judicial thought, the leader in him requires him to innovate, to re-engineer, and to invent new and better ways of moving forward the judicial branch.
3. Passionate reformer and action person. Because the judiciary, like the two other branches of government, must cope with the fast changing judicial, social, economic and technological environment, the CJ must have a passion for reforms to assure speedy and equal justice for all.

This mission requires not only knowledge of law but also interaction with other offices, agencies, persons—both public and private—and even with foreign governments and international institutions. Also, to keep up with the Information Age, the judiciary must automate and computerize.

How to interact with officials and citizens, some of whom may have pending cases in the courts, without arousing public suspicion is a really sensitive balancing act. To be able to do this, the CJ, more than any other official, must rely on deep public trust in his personal integrity and independence.

4. Leader of the bar. Because supervision over the practice of law is vested in the Supreme Court by the Constitution, all lawyers look up to the CJ for guidance in their profession. This is why all bar associations want to listen to the CJ, especially a new one, for direction and inspiration.

5. Academic and maestro. As ex-officio chair of the Philippine Judicial Academy, the CJ is viewed as a guru, who is expected to make the continuing education of judges a passion and vocation. For this reason and because of lack of government resources, the CJ, without compromising judicial independence and integrity, is often constrained to turn to outside assistance.

6. Mover and shaker. As chairperson of the Judicial and Bar Council (JBC), the CJ is expected to find new and better ways of searching for, screening and selecting applicants for judgeships. This job is critical. The need for quality judgments begins with quality judges.

This imperative impels the CJ to move into nonjudicial endeavors, like working for better compensation, better security, and better working conditions and facilities for judges. Only by securing better pay, better security and better facilities will the JBC be able to entice the best and the brightest attorneys to join the judiciary.
7. Administrator, manager and financial wizard. The Constitution vests in the Supreme Court “administrative supervision over all courts and the personnel thereof,” as well as the appointment of its officials and employees.

This means that the CJ must be a visionary administrator, efficient manager and sensible financial wizard all at the same time. Several laws, like the Administrative Code and the General Appropriations Act, place on the CJ the responsibility of steering the entire judicial department. The Judiciary Development Fund Law (PD 1949) and the Special Allowance for the Judiciary (SAJ) Law (RA 9227) give the CJ the “exclusive sole power” to disburse the JDF and SAJ funds.

8. Role model and exemplar of public service. Our people, especially the young, look up to the CJ as an exemplar and role model. Because of our inquisitive media and open society, every public official is subjected to minute scrutiny. In their search for heroes, our people often look up to the CJ as their choice of an upright public servant.

Especially during these periods of political wrangling, civic groups and non-partisan organizations turn to the chief justice to grace their seminars and inductions. They find solace and peace in his quiet persona.

In sum, the CJ is expected to lead our highest court in its critical role as the last bulwark of democracy. Beyond that, he attends to many sensitive, non-judicial leadership duties that take him to the farthest corners of the country. That is why he is more accurately addressed as the Chief Justice of the Philippines, not just Chief Justice of the Supreme Court.


From the ranks

I do not personally know the background of the newly appointed associate justice of the Philippine Supreme Court in the person of Jose Perez except my knowledge of his position as the Court Administrator of the Supreme Court at the time of his appointment and except for the fact I met him during a group meeting that I had once attended a few years back at the Philippine Judicial Academy to discuss with the top officials of the academy the idea of spreading the worthy concept of the “180-Day Express Court System” which the Las Pinas City Bar Association (LPBA), Inc. was pushing in support of the innovative advocacy of then Las Pinas City Executive Judge Bonifacio Sanz Maceda. Read below a news item on the recent appointment of Justice Perez, for your information.

New SC justice completes rise through the ranks
By Norman Bordadora
Philippine Daily Inquirer
First Posted 01:09:00 12/26/2009

MANILA, Philippines - President Macapagal-Arroyo has appointed Court Administrator Jose Perez to the Supreme Court, tribunal spokesperson Jose Midas Marquez announced Friday.

Marquez said Perez will fill the vacancy left by retired Senior Associate Justice Leonardo Quisumbing in November. In the process, Perez will become the 167th justice of the Supreme Court.

Only the seat left by Associate Justice Minita Chico-Nazario remains vacant after she retired this month from the 15-person tribunal.

“I have no reason to doubt his independent-mindedness,” said Sen. Francis Pangilinan, a member of the Judicial and Bar Council (JBC) and a convenor of the Bantay Korte Suprema. “We had the chance to work with him in the JBC where he sat as part of the secretariat.”

Pangilinan added: “He has had close professional ties with the Chief Justice (Reynato Puno) and this I consider a plus.”

Marquez said Perez was set to take his oath today before Chief Justice Reynato Puno, who received his appointment papers signed by Ms Arroyo on Thursday.

Some of Perez’s last accomplishments as court administrator was ensuring that a judge would handle the multiple murder charges against Andal Ampatuan Jr. in connection with the Maguindanao massacre that claimed at least 57 lives.

After a Quezon City regional trial court judge excused himself from hearing the high-profile and high-risk case, Puno and Perez met with QC magistrates to thresh out security issues.

A re-raffle of the multiple murder case was then ordered by Puno through Perez.
Marquez described Perez as someone who literally rose from the ranks in the high tribunal.

“The appointment of Perez caps an illustrious career of 38 years in government service which started in the Supreme Court, was nurtured there, and by all indications, will end there,” Marquez said.

“This gives him the distinction of being the only appointee in the history of the Supreme Court who literally rose from the ranks in its storied halls,” he added.

Upon finishing his law degree in 1972, Perez was appointed legal assistant in the high court’s Office of the Reporter.

In 1977, he became a confidential attorney in the Office of Chief Justice Fred Ruiz Castro and in 1987, became a deputy clerk of court.

Perez was promoted to assistant court administrator in 1996 and deputy court administrator in 2000.

He was designated acting court administrator numerous times before his appointment as court administrator in July 2008.

Among his contemporaries in the Supreme Court when he started his career are newly appointed Supreme Justices Roberto Abad and Martin Villarama Jr.

Abad left the Supreme Court and joined the Office of the Solicitor General before going into private practice. Abad was the dean of the University of Santo Tomas Faculty of Civil Laws before his appointment to the Supreme Court.

Villarama, on the other hand, left the Supreme Court to become a regional trial court judge. He was later appointed to the Court of Appeals. He was an appellate court justice when he was named to the Supreme Court.


Monday, December 21, 2009

Co-equal courts; delays.

In the recent case of HEIRS OF SIMEON PIEDAD, et. al. vs. EXECUTIVE JUDGE CESAR O. ESTRERA and JUDGE GAUDIOSO D. VILLARIN, En Banc, A.M. No. RTJ-09-2170 [Formerly OCA I.P.I. No. 09-3094-RTJ], December 16, 2009, the Philippine Supreme Court found the respondents Judge Cesar O. Estrera and Judge Gaudioso D. Villarin of the RTC in Toledo City, Cebu, Branches 29 and 59, respectively, GUILTY of GROSS IGNORANCE OF THE LAW and imposed upon them a FINE in the amount of twenty one thousand pesos (PhP 21,000) each, with the stern warning that a repetition of similar or analogous infractions in the future shall be dealt with more severely. Also, the Court found Judge Gaudioso D. Villarin GUILTY of UNDUE DELAY IN RENDERING AN ORDER and imposed upon him a FINE in the additional amount of eleven thousand pesos (PhP 11,000). In the said case, the Court made the following doctrinal pronouncements (which are basically reiterations of existing Philippine jurisprudence on the ethical and legal issues involved):

1. The acts of respondent Judge Estrera in issuing a TRO and of respondent Judge Villarin in extending the TRO disregard the basic precept that no court has the power to interfere by injunction with the judgments or orders of a co-equal and coordinate court of concurrent jurisdiction having the power to grant the relief sought by injunction.

2. The Court laid down the doctrine that “no court has power to interfere by injunction with the judgments or decrees of a court of concurrent or coordinate jurisdiction having power to grant the relief sought by injunction.”

3. The various branches of the court of first instance of a province or city, having as they have the same or equal authority and exercising as they do concurrent and coordinate jurisdiction, should not, cannot and are not permitted to interfere with their respective cases, much less with their orders or judgments. A contrary rule would obviously lead to confusion and seriously hamper the administration of justice.

4. Undue interference by one in the proceedings and processes of another is prohibited by law. The doctrine of judicial stability or non-interference in the regular orders or judgments of a co-equal court, as an accepted axiom in adjective law, serves as an insurmountable barrier to the competencia of the RTC Cebu City to entertain a motion, much less issue an order, relative to the Silverio share which is under the custodia legis of RTC Makati City, Branch 64, by virtue of a prior writ of attachment.

5. Jurisdiction is vested in the court not in any particular branch or judge, and as a corollary rule, the various branches of the Court of First Instance of a judicial district are a coordinate and co-equal courts one branch stands on the same level as the other. Undue interference by one on the proceedings and processes of another is prohibited by law. In the language of this Court, the various branches of the Court of First Instance of a province or city, having as they have the same or equal authority and exercising as they do concurrent and coordinate jurisdiction should not, cannot, and are not permitted to interfere with their respective cases, much less with their orders or judgments.

6. It cannot be gainsaid that adherence to a different rule would sow confusion and wreak havoc on the orderly administration of justice, and in the ensuing melee, hapless litigants will be at a loss as to where to appear and plead their cause.

7. Clearly, when the respondents-judges acted on the application for the issuance of a TRO, they were aware that they were acting on matters pertaining to a co-equal court, namely, Branch 9 of the Cebu City RTC, which was already exercising jurisdiction over the subject matter in Civil Case No. 435-T. Nonetheless, respondents-judges still opted to interfere with the order of a co-equal and coordinate court of concurrent jurisdiction, in blatant disregard of the doctrine of judicial stability, a well-established axiom in adjective law.

8. As members of the judiciary, respondents-judges ought to know the fundamental legal principles; otherwise, they are susceptible to administrative sanction for gross ignorance of the law. As a judge, the respondent must have the basic rules at the palm of his hands as he is expected to maintain professional competence at all times. Judges should be diligent in keeping abreast with developments in law and jurisprudence, and regard the study of law as a never-ending and ceaseless process. Elementary is the rule that when laws or rules are clear, it is incumbent upon the respondent to apply them regardless of personal belief and predilections. To put it differently, when the law is unambiguous and unequivocal, application not interpretation thereof is imperative. Indeed, a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. He must be conversant with basic legal principles and well-settled doctrines. He should strive for excellence and seek the truth with passion. The failure to observe the basic laws and rules is not only inexcusable, but renders him susceptible to administrative sanction for gross ignorance of the law from which no one is excused, and surely not a judge.

9. If respondent Judge Villarin indeed believed that the motions pending before him were defective, he could have simply acted on the said motions and indicated the supposed defects in his resolutions instead of just leaving them unresolved.

10. Undue delay in the disposition of cases and motions erodes the faith and confidence of the people in the judiciary and unnecessarily blemishes its stature. No less than the Constitution mandates that lower courts must dispose of their cases promptly and decide them within three months from the filing of the last pleading, brief or memorandum required by the Rules of Court or by the Court concerned. In addition, a judge's delay in resolving, within the prescribed period, pending motions and incidents constitutes a violation of Rule 3.05 of the Code of Judicial Conduct requiring judges to dispose of court business promptly.

11. There should be no more doubt that undue inaction on judicial concerns is not just undesirable but more so detestable especially now when our all-out effort is directed towards minimizing, if not totally eradicating the perennial problem of congestion and delay long plaguing our courts. The requirement that cases be decided within the reglementary period is designed to prevent delay in the administration of justice, for obviously, justice delayed is justice denied. An unwarranted slow down in the disposition of cases erodes the faith and confidence of our people in the judiciary, lowers its standards and brings it into disrepute.

Thursday, December 17, 2009

Public condemns coward trial judge.

As a human being, I do not blame the trial judge to whom the Ampatuan criminal cases were raffled if he was immobilized by the fearful and nerve-breaking thought of trying the ferocious and powerful Ampatuans whose Malacanang-supported and military-abetted political dynasty in the beautiful and huge but violent and poor Philippine island of Mindanao led to the mass murder of 60 political competitors and journalists last month.

The judge issued an order voluntarily inhibiting himself from the criminal cases after they had been raffled to his court on the basis of his personal fear of death by assassination.

However, as a lawyer and advocate of law and justice, and with all due respect to the trial judge, I do blame him for his cowardly action and his failure to rise above his self interests and to serve the higher ends of the national interest -- acts which I dare say may even be correctly interpreted as a violation of Rule 137 (disqualification of judges) and Rule 140 (discipline of judges) of the Rules of Court of the Philippines and the Code of Judicial Conduct.

The critics in the media are correct in saying that if he cannot stand the heat, he must get out of the kitchen, so to speak.

I gathered below the news items on the abovementioned incident, for research purposes.

As expected, public reaction to the aforecited action of the trial judge was very negative and derisively furious.

A trial judge who publicly behaves on the basis of misplaced cowardice extremely jeopardizes the sanctity of the rule of law and the nobility of the administration of justice and surely endangers the very foundation of the democratic system which he has undertaken to bravely and zealously defend and which generously feeds the very physical survival of his own family.

New judge picked for Maguindanao slay case
First Posted 14:47:00 12/17/2009

MANILA, Philippines – And the case against an influential suspect in a multiple murder case goes to . . .

Judge Jocelyn Solis-Reyes was picked Thursday after the case was raffled off for the second time at the Quezon City regional trial court, according to radio dzMM.
Reyes of Branch 221 will replace Judge Luisito Cortez of Branch 84 who refused to take on the case involving Datu Unsay Mayor Andal Ampatuan Jr., citing fears for his safety and that of his family.

Andal Jr., son of Maguindanao Governor Andal Sr., was charged with the deaths last November 23 of at least 57 people in Maguindanao province in what has been considered an election-related incident.


DoJ, senators hit QC judge; SC orders new raffle
By Norman Bordadora, TJ Burgonio, Christine Avendaño
Philippine Daily Inquirer
First Posted 01:14:00 12/17/2009

MANILA, Philippines—The secretary of Justice and at least three senators slammed the judge who refused to try the Ampatuans, the patriarch and his four sons, suspected brains behind the massacre of 57 people in Maguindanao out of fear for his and his family’s safety.

Chief Justice Reynato Puno ordered a new raffle of the case, following a dialogue with trial judges a day after Judge Luisito Cortez of the Quezon City Regional Trial Court inhibited himself from the case, said Gleo Guerra, the tribunal’s deputy spokesperson.

“The brewing crisis, if you want to call it that, has been defused,” Guerra told the Inquirer.

Guerra indicated that the high tribunal, which has administrative control over judges, had yet to decide on whether action would be taken against Cortez for refusing to handle the celebrated case.

“It is up to the court to take action or no action on the case,” Guerra said.
Justice Secretary Agnes Devanadera took exception to Cortez’s decision. “If I were him, I would look for another job because I easily get frightened. That is unacceptable,” Devanadera said in an interview with radio station dzXL.

Chilling effect

Sen. Miriam Defensor-Santiago said Cortez’s inhibition could have a “chilling effect” on judges.

“You must just have to bring yourself first in the line of fire, that’s the job of a judge,” Santiago said.

Otherwise, she said, the Ampatuans and other suspects would resort to “terrorizing prospective trial judges so they would inhibit themselves.”

Senate President Juan Ponce Enrile said Cortez showed “cowardice.”

“It’s the duty of the judge to handle the case if it goes to him. If he can’t handle it, if he can’t take the heat, then he has to get the hell out of there,” Enrile said.

“There were judges who were willing to handle the case. But the Chief said, ‘No, we have to go through the process,’” Guerra said, referring to the raffle.

The prime suspect in the election-related massacre on Nov. 23 is Andal Ampatuan Jr., who has been charged with multiple murder. He is detained at the National Bureau of Investigation jail in Manila.

At least 28 others have been named in a police complaint for multiple murder filed in the Department of Justice, which is to conduct a preliminary investigation. They include Ampatuan’s father, Andal Sr., a three-term governor of Maguindanao and close ally of President Gloria Macapagal-Arroyo.

The dead included the wife and two sisters of Esmael Mangudadatu, vice mayor of Buluan town and longtime rival of the Ampatuan family. Thirty journalists were among those killed—the largest group of journalists to be slain in one incident anywhere in the world.

The Ampatuans, along with some 600 supporters, are also facing rebellion for allegedly resisting government efforts to bring the culprits to justice.

Who is Cortez?

The 49-year-old Cortez is a law graduate of San Beda College. He claims to have survived an ambush in Plaridel, Bulacan, while serving as a trial judge there. He is also trying Abra Gov. Vicente Valera for the killing of Rep. Luis Bersamin Jr. and his bodyguard in 2006.

“What is glory without a family,” Cortez told reporters when asked about what he felt handling the celebrated case involving the worst political violence in the country’s history. He said he feared for his safety, his staff and his family.
Malacañang promised to provide police and NBI protection to any judge handling a case involving the Ampatuans.

“Wherever the venue might be, whether in Quezon City, Metro Manila, whether it be in Davao, wherever, you can be sure that we will not allow them to be cowed into being afraid not to accept their job.”

‘No case is worth our lives’

Press Secretary Cerge Remonde said Cortez’s move should not be taken against him.

“When you feel your life is in danger, I mean, no case or no story for us
journalists is worth our lives. I doubt it if you can call this cowardice. Our right to life goes along with our right to ensure our safety,” he said.

Remonde told reporters that Cortez’s action confirmed the apprehension of judges in Mindanao.

“Remember that one of the reasons why we declared martial law was because judges refused to issue search and arrest warrants, and you didn’t believe they feared for their lives,” he said, justifying Ms Arroyo’s proclamation.

The martial law declaration was issued on Dec. 4 and was lifted eight days later. The Senate voted in a resolution to declare the proclamation unconstitutional.


Senate Minority Leader Aquilino Pimentel Jr. said Cortez “disgusted” him.

“I think he should be sanctioned by the court because to my mind that is a dereliction of duty,” Pimentel said.

Sen. Richard Gordon said Cortez ought to resign. “A judge should not be afraid to do his job.”

Bro. Eddie Villanueva, presidential candidate of Bangon Pilipinas, said: “Cortez’s inhibition showcases an inept and irrelevant justice system that feeds on the government’s apparent own disregard for the rule of law.” With a report from Edson C. Tandoc Jr.


EDITORIAL - The fear factor
(The Philippine Star) Updated December 17, 2009 12:00 AM

For Quezon City Judge Luisito Cortez, one controversial case is enough. The judge of the QC Regional Trial Court’s Branch 84 is handling the murder case filed against former Abra governor Vicente Valera for the murder of Abra Rep. Luis Bersamin and his bodyguard in a church compound in 2006. Cortez, who survived an ambush when he was a judge in Bulacan, inhibited himself this week from handling the cases against the Ampatuan clan in connection with the Maguindanao massacre.

Chief Justice Reynato Puno had to meet with Quezon City trial judges yesterday to guarantee their safety. A Supreme Court deputy spokesman said several of the judges volunteered to handle the massacre case, which will have to be raffled anew after Cortez was allowed to inhibit himself. Cortez was unfazed by his colleagues’ show of courage, reportedly telling an interviewer, “What is glory without a family?”

That sentiment is shared by many other judges as well as prosecutors and lawyers all over the country. Together with left-wing activists and journalists, legal professionals have been among the top victims of unexplained killings and forced disappearances since democracy was restored in 1986. As in the attacks on activists and journalists, many of the murders targeting legal professionals have been blamed on political warlords who control the criminal justice system in their turfs, leaving many of the murders unsolved. Militants and journalists are not the only ones complaining that the failure to solve the attacks has created a culture of impunity.

Some judges take the easier and often lucrative route, allowing their decisions to be influenced by powerful politicians or other vested interests. Some judges do so for their personal safety; others seek financial gain. It is not unusual for some judges to succumb to the temptation of corruption, considering the poor pay of members of the judiciary compared to rates in the private sector.

It’s hard to tell which is worse for the state of justice in this country: justice for sale, or cowardice in its administration. Though some quarters have called for Cortez’s resignation if he can’t take the heat that often goes with the job, others are more sympathetic. The government, after all, has failed to protect many legal professionals from all forms of harassment and threats to their safety. This situation is not unique to Maguindanao or the Autonomous Region in Muslim Mindanao.

Cortez earns sympathy especially because the powerful people behind the Ampatuans are based not in the ARMM but right here in Metro Manila, where influencing a judicial decision is made not by deploying a private army but with a mere phone call. Arrested, indicted for serious crimes and stripped of their weapons, the arm of the Ampatuans, like many other warlord clans in this country, has a reach longer than that of Philippine law. Unless this situation is corrected, justice will be elusive and the rule of law will never prevail.


One gutsy lady
Philippine Daily Inquirer
First Posted 02:28:00 12/19/2009

JUDGE JOCELYN SOLIS-REYES has shown that she has a lot of what a male colleague sorely lacks: courage to do one’s duty in the face of danger, real or imagined.
Granted by the luck of the draw the opportunity to try the case against Andal Ampatuan Jr. and possibly more than a hundred others for the massacre last Nov. 3 of 57 persons in Ampatuan, Maguindanao, Reyes immediately accepted the challenge without a whimper or fanfare.

Sought by reporters after her name came up in the second raffle among judges of the Quezon City regional trial court, Reyes declined to meet with them and went on with the Christmas party she and her staff were celebrating. She also refused an offer by the Philippine National Police to provide a bodyguard, saying she didn’t feel an immediate need for one.

Reyes certainly didn’t mean it that way, but everything she has done was a slap on the face of another judge, Luisito Cortez, also of the Quezon City RTC. In an earlier raffle, Cortez got the assignment to try what is bound to be the most sensational criminal case of the decade.

He promptly filed a motion to inhibit himself, and then candidly and tactlessly told the media he feared for the safety of his family, his staff and himself. “I have to consider the security of my family, my staff and their families,” Cortez reasoned timorously. “This is not a simple case.”

Very few cases are, as Cortez probably knows, otherwise there would be no need for lengthy litigation. And this one promises to be especially challenging, given the wealth, influence, power and firepower of Ampatuan and his clan.
Undoubtedly everything about the case inspires fear and loathing. The crime itself has shocked the whole nation and most of the world for its inhumanity, brutality and monstrosity. The Ampatuan clan has been shown to have enough manpower and firepower to hold back an army of separatist rebels.

Time and again, if witnesses are to be believed, they have killed for the slightest of excuses. But they are accused of a most heinous crime, which cries for swift retribution. And again as Cortez knows, judges are the state’s instrument for the dispensation of justice. For a judge to refuse to take the case for no other reason than fears and threats he imagines is therefore to frustrate the ends of justice, which is the exact opposite of what a judge is expected to do.

“What is glory without a family?” Cortez said. He should have asked instead, “What is life without honor? What is position without dignity?” Honor and dignity he has forfeited by his craven refusal to accept the case against the suspected perpetrators of the Maguindanao massacre. It is difficult to imagine him rising from this ignominy.

Henceforth, when Cortez decides a case, people will wonder whether he decided it on the basis of its merits or he had been influenced by real threats or by his own fears. Maybe he should consider taking another job, as Justice Secretary Agnes Devanadera has suggested. The judiciary is not for the faint of heart.

If all judges thought like Cortez, the justice system would have broken down, and Ampatuan would soon be laughing all the way to freedom. The reason he may not is that there are still women of steel like Reyes who persevere in their duties without counting the inconveniences or dangers. Reyes saved the day for the judiciary by doing what she described as something “ordinary.”

But we don’t know if she should continue to go about her business as usual. There is nothing ordinary about Ampatuan and his clan or the members of their private army. They have killed for much less, if witnesses are to be believed. In the recent massacre, they killed without reason or compunction journalists who were merely covering an event as well as some people who merely happened to be passing by.

The government should spare no effort to make sure that the judge is safe and secure while the case is being tried and even beyond. The nation cannot afford to lose this gutsy lady who has shown a male colleague how to answer the call of duty.


Self-destructing system

Needless to say, a constitutional system that brags itself to be inspired by the spirit of republicanism and democracy and yet is dominated by family dynasties, feudal lords, warlords, drug lords, gambling lords, corrupt elected and appointive public officials and employees, and military and police-assisted organized criminal syndicates, as what has been happening in the Philippines since its post World War II pseudo independence, is surely bound to self-destruct sooner rather than later.

The very equitable concepts of the rule of law and independent administration of justice are impossible theoretical dreams in such an illusionary and deluded political system where dirty money and sheer power govern like national monsters and where the sovereign will of the people are patently trampled upon and brazenly insulted with impunity.

May I share with you an editorial on the matter by the Philippine Daily Inquirer as an example.

Dynastic republic

Philippine Daily Inquirer
First Posted 22:03:00 12/16/2009

In the immediate aftermath of the massacre in Ampatuan, Maguindanao, a stunned nation came to know of the true reach of the Ampatuan political dynasty; position after high position in the province, it turned out, was held by a member of the ruling family. (On a smaller scale, this state of affairs is also true of their kin and blood rival, the Mangudadatu dynasty, in the neighboring province of Sultan Kudarat.) A demoralized public reeled in disgust.
The disgust ran deep, because it was based, partly, on the shock of recognition. The well-entrenched Ampatuan dynasty is not an aberration in Philippine politics; it is, rather, the logical culmination.
The truth is: politics in the Age of Gloria is very much a family business. To be sure, the Arroyos did not start the tradition, and it will certainly not end with them. But the one power President Gloria Macapagal-Arroyo enjoys and chose not to use is the power of example; she could have prevailed on her two sons and two in-laws not to run for Congress or assume a seat there. Instead, we have one Arroyo from Central Luzon, one from the Bicol region, one from the Visayas and one from the party-list system.
The opposition indulges in the same sin. In the Senate, there are the Cayetano siblings (both shamelessly using their late father’s media brand, “Compañero,” in their official names) just as there used to be the Ejercito mother and son. In the House of Representatives and in local governments, the dynastic web is thicker, more robust.
We can understand the uses of political dynasties. With one or two exceptions, we don’t have any real political parties to speak of; instead, we have political factions, each one existing through the beneficence of a financier. For the most part, loyalty is a matter of money. Many of the parties contesting next year’s elections did not even bother organizing party-building exercises, in the confidence that money (and ratings) will attract the necessary recruits.
In this bleak light, a political dynasty makes logical sense; loyalty (usually) runs deeper. What the marketing profession and the advertising industry call brand equity is also capitalized; consider, for instance, the case of the (squabbling) Osmeñas of Cebu. In the 2010 presidential election, all factions of the famous clan seemed to have coalesced behind the candidacy of Sen. Noynoy Aquino of the Liberal Party; but even if they hadn’t, each would still have wielded considerable political influence. That they often conflict does not detract from the political value of the Osmeña name.
But we must also consider the obverse: The tradition of political dynasties is precisely one of those factors that prevent a true political party system from developing in the country. Again, the case of the front-running Liberals is instructive. Its senatorial line-up consists of many dynasts, and its most controversial candidate, former senator Ralph Recto, is both the scion of a political family and the spouse of a popular and influential governor. Noynoy Aquino, it must be said, did not run for office when his mother was president; the same obviously cannot be said of President Arroyo’s sons. Aquino’s candidacy therefore, despite its obvious contradictions (he and his running mate hail from famous political families), raised the hope that he would use his popularity to support non-traditional candidates. He has done so, in the case for instance of Akbayan party-list Rep. Risa Hontiveros, but he has not done enough.
Why change the system, politicians might ask? Dynasties help make things happen; they are a source of both cold cash and warm bodies. Besides, some of them may say, not all dynasties overreach like the Ampatuans. Maybe, but the reality is, dynasties—already outlawed in the Constitution, but still needing enabling legislation after almost 23 years—make a mockery of the democratic promise. A real political party system, funded in part by membership dues and in part by government counterpart funding, will allow any individual, regardless of pedigree, to rise through the political ranks. Without it, most Filipinos who want to run for political office will have to cultivate personal popularity, or marry into a political family.


Sunday, December 13, 2009

More on warlordism and dynasties in the Philippines

Related to my previous blogs on warlordism and political dynasties in the Philippines, whose violent elections place at risk the future of its democratic system, and for legal research purposes of the visitors of this blog, I am reproducing below the full text of an analytical article on the same subject matter written by Patricio N. Abinales, a professor at the Center for Southeast Asian Studies, Kyoto University in Japan. His latest book, “Orthodoxy and History in the Muslim-Mindanao Narrative: 1890-2006,” will be published by Ateneo de Manila University Press. The item appeared in in the Philippine Daily Inquirer today.

Warlords of the republic
By Patricio N. Abinales
Philippine Daily Inquirer
First Posted 23:53:00 12/12/2009

THE value of warlords arose from their coercive capacities that backed up national leaders, assisted the military in the destruction of rebels, reformists and other “threats” to those in power, and brought in supplementary largesse when patrons and allies, having looted state coffers dry, needed extra funds to retain their power.

Warlords emerged out of a distinct period in Philippine history: the war years.

First generation

First generation warlords acquired their notoriety with the guns and followers they amassed during World War II to establish local fiefdoms.

The Dimaporos of Lanao del Sur, the Marcoses of Ilocos Sur, the Sinsuats and Matalams of Cotabato, the Montanos of Cavite and the Duranos of Danao had a common beginning when the United States—concerned with fighting the war elsewhere—gave its blessings to anyone ready to set up an “anti-Japanese” guerilla force.

Having shown “loyalty” during the Japanese occupation, they would be exempt from the arms-confiscation program of the returning Americans. And once the national parties were (re)established, national politicians found them handy allies who could bring in votes from their provinces.

Illicit sector

Guns and goons, however, were not enough. Many an ex-guerrilla aspiring to become a politico failed through lack of largesse to bribe officials, buy votes, support a patronage network and keep private armies fed. Deprived by older caciques of access to landed estates and the spoils of the national state, the more enterprising found sustenance in the illicit sector.

Hence the stories and rumors of the Duranos’ connection with the paltik [homemade-gun] industry, the Dimaporos’ involvement in illegal logging, the Marcoses’ control of granting citizenship to illegal Chinese immigrants and the Montanos’ smuggling of cigarettes in Cavite.

These were the folks who did well-enough financially to be able to broaden their political ambitions. The best and most notorious eventually became president, ruling the country for two decades.

Ferdinand Marcos built his presidency and dictatorship on a military he turned into his own private army, reinforced by a coalition of warlords—many from his cohort—who helped the Armed Forces of the Philippines (AFP) “preserve peace and order” in their respective areas.

Marcos was not simply their patron; he was a model for their future. For Marcos preserved his essential warlordism while embellishing it with the more honorable perks of the presidency.

Going ‘legit’

He was, if you will, the Filipino realization of Godfather Michael Corleone’s dream of going “legit” without sacrificing the benefits accruing from the family’s dark practices.

The relative “peace” created by martial law and the scaling down of the warlords’ responsibilities (no more elections and their accompanying intimidation) was the occasion to acquire the legitimacy and respectability that Marcos appeared to possess. Hence, the grandchildren of the bosses found themselves being trained in good manners and right conduct, sent to good schools to start careers totally unrelated to their fathers’ (and grandfathers’) line of work.

The transition was not always smooth and respectability would take at least two generations to attain. Eventually, there was grandson Ace of Lolo Ramon Durano and grandson Khalid of Datu Ali Dimaporo. Some never made the grade, but listening to Chavit Singson’s children articulate a defense of their father after he beat up their mother, one senses that becoming properly bourgeois is just a few years away.

New kids in the ‘hood’

Yet as one warlord clan pursued respectability, new warlords emerged to renew the phenomenon. Like their predecessors, they had their genesis in a state of war, but one with a more limited geographic scope—Muslim Mindanao.

The separatist rebellion of the Moro National Liberation Front (MNLF) was the first conventional war the republic fought, and it profoundly altered and eventually undermined the grand plans of the Marcos dictatorship. The AFP took the lead in containing the rebellion, receiving substantial support from Muslim warlords who shared the dictatorship’s opprobrium of the MNLF because of the movement’s antitraditional Muslim elite platform.

Openly against MNLF
Even after the rebellion died down, however, the build-up of warlord firepower continued and now the mantle began to shift away from the Matalams, Dimaporos and Sinsuats to the likes of the Ampatuans and their rivals, the Mangudadatus.

Like the older warlord clans, Datu Andal Ampatuan Sr. was openly against the MNLF. He used to be friends with the secessionist group. To what extent he and his clan fought the MNLF remains an area that needs further investigation by scholars and journalists.

But a hint of this involvement is discernible in the clan’s open hatred for the MNLF’s successor, the Moro Islamic Liberation Front (MILF). (If true, this would point to a necessary revision in the way the separatist war is described by historians, public intellectuals and pundits. The popular and politically correct explanation is that Christian militias alone fought alongside the AFP.)

Removed from office

When Marcos fell and Cory Aquino assumed the presidency in 1986, she ordered the warlords removed from their local offices but never dispossessed them of their guns and private armies. Wracked by internal bickering, constantly threatened by coups, and naively believing it only needed to change some structures and rituals and democracy will pop out of the genie’s bottle, the Aquino administration was too engrossed with its own survival to prioritize eliminating the blight of warlordism.

The warlords soon rebounded. Ampatuan was in fact named officer in charge of Maganoy town by Aquino. His rival, Datu Surab Abutazil, was gunned down in 1987, a year after the Edsa revolution, but it elicited little concern from Manila. After all, what was Maganoy but a small, sleepy town in one of the poorest and least accessible provinces of the southern frontier?

Power of ARMM
These places—Maganoy, Maguindanao, Moro Mindanao—were the essence of unimportant backwaters.

But not for long. Republic Act No. 7160 (Local Government Code of 1991) and the peace agreement between the MNLF and the Philippine government significantly changed the power calculus within the Muslim provinces as well as their relationship with Manila.

Suddenly, instead of a myriad minor provinces whose voting contributions were negligible because of their thin populations, there now stood a single regional autonomous body with a hefty voting constituency.

Instead of localities operating autonomously and often having multiple ties with different national patrons, here was the possibility of unifying the Muslim provinces under the firm hold of the governor of the Autonomous Region in Muslim Mindanao (ARMM) with ample funds and, of course, the firepower to back him up.

(ARMM’s budget for 2008 was P10 billion, but it cannot be examined by commissioners of audit fearful of being killed.)

Decisive in election

The ARMM thus morphed from the poorest and arguably least consequential local organization—the MILF was more seriously regarded in Manila—to a potential bloc that could prove decisive in any critical election.

The new value of the ARMM did not become immediately obvious because under Aquino, Fidel Ramos and Joseph Estrada, the regional body was still in the hands of ex-MNLF leaders who were appointed as reward for signing the peace agreement.

Latecomers in the patronage game and novices in the art of governance and the spoils system, the MNLF governors used the regional body’s resources to jump-start their own political careers and set up their own bailiwicks.

But it was already clear to the warlords of provinces in the
ARMM what a “special autonomous region” in a war zone could do for them and their national patrons. And they would find their soul mate in Gloria Macapagal-Arroyo.

Gloria and Andal Sr.

Ms Arroyo is probably the first president to fully appreciate the value of local politics for national survival. Unlike her predecessors, she has kept the internal revenue allocation tap open to provincial and city officials and ensured their support during her 10 years in office.

Aware that Manila will always vote for the opposition, she has sought to mitigate the capital’s electoral impact by bringing in votes from the provinces. The bosses, who were the most effective in helping her, were also those who ruled like petty despots over their bailiwicks.

Indeed, it was from small, impoverished towns like Maganoy (now Shariff Aguak) that Ms Arroyo garnered the needed votes in 2004. This differed from when Lanao’s dead rose from their graves to vote 100 percent for Marcos, something which had no critical impact on the national scene.

The 2004 “contributions” of the Mindanao warlords were the beginning of what appears to be a long-term strategy of consolidating the provinces against the cities.

The plan seemed to revolve around expanding the Ampatuan’s grip over the entire region so that in the battles ahead, elections included, Ms Arroyo could rely on the entire region and not just one province. (Implausible? Note that current ARMM Gov. Zaldy Ampatuan gave himself the following alibi for the Nov. 23 massacre in Maguindanao: He—a Maguindanao—was in Malacañang discussing with the President who would be Lakas-Kampi’s best candidate among the Tausogs of Sulu!)

For their services the Ampatuans were well-rewarded: the ARMM governorship with its billions in funds, the privilege of naming relatives and allies to prized government posts, enough arms to supply an army battalion, and, most of all, direct access to Malacañang. The military and police would also keep their hands off whatever racket the clan was involved in.

Simply too much

Then the massacre happened. The Ampatuans seem to have truly believed that since Ms Arroyo was behind them, they could push their despotism to a higher, bloodier level, literally destroying anyone who stood in their way.

They were wrong. For no matter how power-hungry she is, the President cannot simply wish 57 dead bodies away the way she dismissed criticisms of her 1-million vote margin in 2004. This was simply too much.

Ampatuans must go

The Ampatuans will have to go, for unlike older, respectability-seeking clans, they are too dead set on brutality and comfortable in their malevolence.

They remind one of Virgil “The Turk” Sollozo, the heroin dealer in The Godfather who planned the assassination of Vito Corleone. Sollozo saw no value in adopting the gentlemanly practices of the Mafia Dons, just as the Ampatuans refuse to transcend their disreputable condition and school their young like an Ace or a Khalid.

Much like Sollozo, they will have to be taken down by the very government that nurtured them. This will be necessary in order to pretend to restore “normalcy” in Maguindanao and save whatever is left of Malacañang’s credibility.

Pipe dream
Alas, the end of the Ampatuans does not mean the end of warlordism. Given the high cost of running campaigns and the growing competition to access the billions coming out of the illegal sectors of the economy to fund them, the further criminalization of the electoral process would be difficult to reverse. And when criminals are involved, guns must be within easy reach.

As I said at the outset, warlordism has always been a major ingredient of our republic’s politics. It would take a major overhaul of our system to eliminate warlords from our political life.

This, regrettably, remains a pipe dream.

(Patricio N. Abinales is a professor at the Center for Southeast Asian Studies, Kyoto University in Japan. His latest book, “Orthodoxy and History in the Muslim-Mindanao Narrative: 1890-2006,” will be published by Ateneo de Manila University Press.)


Saturday, December 12, 2009

R.A. No. 9851; war crimes, genocide.

This week Philippine Pres. Gloria Arroyo signed into law Republic Act No. 9851 penalizing war crimes, genocide and other violations of international humanitarian law. I will digest and analyze its text next week as soon as the law is published. Meanwhile, read below a news alert on the abovementioned matter.

As a former professor of public international law at Far Eastern University, Manila, I am delighted about this legal development. In the light of the notorious history of heinous human rights violations in the Philippine countryside, where communist and Muslim rebellions have taken their toll on the economic progress of the country since the 1960s, the new law, at least in spirit and intent, will theoretically protect the rights and security of innocent civilians who are exposed to internal armed conflicts (that is, if the executive branch and its generals are ready to enforce the law against themselves).

Arroyo signs law against war crimes
By TJ Burgonio
Philippine Daily Inquirer
First Posted 02:44:00 12/12/2009

MANILA, Philippines – President Gloria Macapagal- -Arroyo enacted Friday a law penalizing war crimes, genocide and other crimes against humanity and creating special courts to try cases against local or foreign suspects.
RA 9851 is consistent with principles of international law, including the Hague Convention of 1907, the Geneva Convention on the protection of victims of war and international humanitarian law.

“The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level, in order to put an end to impunity for perpetrators of these crimes, and thus contribute to the prevention of these crimes,” it said.
RA 9851 imposes a penalty of reclusion temporal and a fine ranging from P100,000 to P500,000 on any person found guilty of any of these crimes.
The head of a state, a member of parliament or a government official is not exempt from criminal liability, according to the law.


Friday, December 11, 2009

Appeals to the Office of the President in criminal cases

In a statement issued this week by the public information office of the Philippine Supreme Court, it announced that the Court had upheld Memorandum Circular No. 58, promulgated by the Office of the President on June 30, 1993, which bars an appeal or a petition for review to the Office of the President of decisions/orders/resolutions of the Secretary of Justice “except those involving offenses punishable by reclusion perpetua or death.”

Citing the doctrine of qualified agency in political law, the 16-page decision penned by Justice Diosdado M. Peralta that “Memorandum Circular No. 58 was promulgated by the Office of the President and the acts of the secretaries of such departments, performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.”

On the basis of the foregoing, among others, it affirmed the dismissal by the Court of Appeals of the petition for review filed by herein petitioner Judge Adoracion G. Angeles assailing in turn the dismissal by the Office of the President of her petition for review of resolutions by the Department of Justice dismissing the charges filed by her against Michael Vistan for violation of RA 7160, penalizing child abuse, and PD 1829, penalizing obstruction of apprehension and prosecution of criminal offenders.

The Court found “absurd” petitioner’s argument that Memorandum Circular No. 58 is invalid because it diminishes the power of control of the President by bestowing upon the Secretary of Justice, a subordinate officer, almost unfettered power. It held that “The President’s act of delegating authority to the Secretary of Justice by virtue of said Memorandum Circular is well within the purview of the doctrine of qualified political agency” under which doctrine, “all executive administrative organizations are adjuncts of the executive department; the heads of various executive departments are assistants and agents of the Chief Executive; and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.”

It ruled that “it would be unreasonable to impose upon the President the task of reviewing all preliminary investigations decided by the Secretary of Justice. To do so will unduly hamper the other important duties of the President by having to scrutinize each and every decision of the secretary of Justice notwithstanding the latter’s expertise in said matter.”

Please read the salient parts of the aforecited decision below, for your legal research purposes.

JUDGE ADORACION G. ANGELES vs. HON. MANUEL B. GAITE, et. al., G.R. No. 165276, November 25, 2009

X x x.

Hence, herein petition, with petitioner raising the following assignment of errors, to wit:




The petition is without merit.

Petitioner's arguments have no leg to stand on. They are mere suppositions without any basis in law. Petitioner argues in the main that Memorandum Circular No. 58 is an invalid regulation, because it diminishes the power of control of the President and bestows upon the Secretary of Justice, a subordinate officer, almost unfettered power. This argument is absurd. The President's act of delegating authority to the Secretary of Justice by virtue of said Memorandum Circular is well within the purview of the doctrine of qualified political agency, long been established in our jurisdiction.

Under this doctrine, which primarily recognizes the establishment of a single executive, "all executive and administrative organizations are adjuncts of the Executive Department; the heads of the various executive departments are assistants and agents of the Chief Executive; and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.” The CA cannot be deemed to have committed any error in upholding the Office of the President's reliance on the Memorandum Circular as it merely interpreted and applied the law as it should be.
As early as 1939, in Villena v. Secretary of Interior, this Court has recognized and adopted from American jurisprudence this doctrine of qualified political agency, to wit:

x x x With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is readily visible without the projection of judicial searchlight, and that is, the establishment of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principle that "The executive power shall be vested in a President of the Philippines." This means that the President of the Philippines is the Executive of the Government of the Philippines, and no other. The heads of the executive departments occupy political positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings, Ford ed., 498), and, in the language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the direction of the President." Without minimizing the importance of the heads of the various departments, their personality is in reality but the projection of that of the President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United States, "each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority" (Myers v. United States, 47 Sup. Ct. Rep., 21 at 30; 272 U.S., 52 at 133; 71 Law. ed., 160).

Memorandum Circular No. 58, promulgated by the Office of the President on June 30, 1993 reads:

In the interest of the speedy administration of justice, the guidelines enunciated in Memorandum Circular No. 1266 (4 November 1983) on the review by the Office of the President of resolutions/orders/decisions issued by the Secretary of Justice concerning preliminary investigations of criminal cases are reiterated and clarified.

No appeal from or petition for review of decisions/orders/resolutions of the Secretary of Justice on preliminary investigations of criminal cases shall be entertained by the Office of the President, except those involving offenses punishable by reclusion perpetua to death x x x.

Henceforth, if an appeal or petition for review does not clearly fall within the jurisdiction of the Office of the President, as set forth in the immediately preceding paragraph, it shall be dismissed outright x x x.

It is quite evident from the foregoing that the President himself set the limits of his power to review decisions/orders/resolutions of the Secretary of Justice in order to expedite the disposition of cases. Petitioner's argument that the Memorandum Circular unduly expands the power of the Secretary of Justice to the extent of rendering even the Chief Executive helpless to rectify whatever errors or abuses the former may commit in the exercise of his discretion is purely speculative to say the least. Petitioner cannot second- guess the President's power and the President's own judgment to delegate whatever it is he deems necessary to delegate in order to achieve proper and speedy administration of justice, especially that such delegation is upon a cabinet secretary – his own alter ego.

Nonetheless, the power of the President to delegate is not without limits. No less than the Constitution provides for restrictions. Justice Jose P. Laurel, in his ponencia in Villena, makes this clear:

x x x Withal, at first blush, the argument of ratification may seem plausible under the circumstances, it should be observed that there are certain prerogative acts which, by their very nature, cannot be validated by subsequent approval or ratification by the President. There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law (par. 3, sec. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par. 6, sec. 11, idem).

These restrictions hold true to this day as they remain embodied in our fundamental law. There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power, notwithstanding the judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import.

In the case at bar, the power of the President to review the Decision of the Secretary of Justice dealing with the preliminary investigation of cases cannot be considered as falling within the same exceptional class which cannot be delegated. Besides, the President has not fully abdicated his power of control as Memorandum Circular No. 58 allows an appeal if the imposable penalty is reclusion perpetua or higher. Certainly, it would be unreasonable to impose upon the President the task of reviewing all preliminary investigations decided by the Secretary of Justice. To do so will unduly hamper the other important duties of the President by having to scrutinize each and every decision of the Secretary of Justice notwithstanding the latter’s expertise in said matter.

In Constantino, Jr. v. Cuisia, this Court discussed the predicament of imposing upon the President duties which ordinarily should be delegated to a cabinet member, to wit:

The evident exigency of having the Secretary of Finance implement the decision of the President to execute the debt-relief contracts is made manifest by the fact that the process of establishing and executing a strategy for managing the government’s debt is deep within the realm of the expertise of the Department of Finance, primed as it is to raise the required amount of funding, achieve its risk and cost objectives, and meet any other sovereign debt management goals.

If, as petitioners would have it, the President were to personally exercise every aspect of the foreign borrowing power, he/she would have to pause from running the country long enough to focus on a welter of time-consuming detailed activities–the propriety of incurring/guaranteeing loans, studying and choosing among the many methods that may be taken toward this end, meeting countless times with creditor representatives to negotiate, obtaining the concurrence of the Monetary Board, explaining and defending the negotiated deal to the public, and more often than not, flying to the agreed place of execution to sign the documents. This sort of constitutional interpretation would negate the very existence of cabinet positions and the respective expertise which the holders thereof are accorded and would unduly hamper the President’s effectivity in running the government.

Based on the foregoing considerations, this Court cannot subscribe to petitioner’s position asking this Court to allow her to appeal to the Office of the President, notwithstanding that the crimes for which she charges respondent are not punishable by reclusion perpetua to death.

It must be remembered that under the Administrative Code of 1987 (EO No. 292), the Department of Justice, under the leadership of the Secretary of Justice, is the government’s principal law agency. As such, the Department serves as the government’s prosecution arm and administers the government’s criminal justice system by investigating crimes, prosecuting offenders and overseeing the correctional system, which are deep within the realm of its expertise. These are known functions of the Department of Justice, which is under the executive branch and, thus, within the Chief Executive's power of control.
Petitioner’s contention that Memorandum Circular No. 58 violates both the Constitution and Section 1, Chapter 1, Book III of EO No. 292, for depriving the President of his power of control over the executive departments deserves scant consideration. In the first place, Memorandum Circular No. 58 was promulgated by the Office of the President and it is settled that the acts of the secretaries of such departments, performed and promulgated in the regular course of business are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. Memorandum Circular No. 58 has not been reprobated by the President; therefore, it goes without saying that the said Memorandum Circular has the approval of the President.

Anent the second ground raised by petitioner, the same is without merit.

Petitioner argues that the evasion of arrest constitutes a violation of Section 1(e) of PD No. 1829, the same is quoted hereunder as follows:

(e) Delaying the prosecution of criminal case by obstructing the service of processes or court orders or disturbing proceedings in the fiscals' offices in Tanodbayan, or in the courts. x x x

Specifically, petitioner contends that respondent's act of going underground obstructed the service of a court process, particularly the warrant of arrest.

This Court does not agree.

There is no jurisprudence that would support the stance taken by petitioner. Notwithstanding petitioner's vehement objection in the manner the CA had disposed of the said issue, this Court agrees with the same. The CA ruled that the position taken by petitioner was contrary to the spirit of the law on "obstruction of justice,” in the wise:

x x x It is a surprise to hear from petitioner who is a member of the bench to argue that unserved warrants are tantamount to another violation of the law re: "obstruction of justice." Petitioner is like saying that every accused in a criminal case is committing another offense of “obstruction of justice” if and when the warrant of arrest issued for the former offense/ charge is unserved during its life or returned unserved after its life – and that the accused should be charged therewith re: "obstruction of justice." What if the warrant of arrest for the latter charge ("obstruction of justice") is again unserved during its life or returned unserved? To follow the line of thinking of petitioner, another or a second charge of "obstruction of justice" should be filed against the accused. And if the warrant of arrest issued on this second charge is not served, again, a third charge of "obstruction of justice" is warranted or should be filed against the accused. Thus, petitioner is effectively saying that the number of charges for "obstruction of justice" is counting and/or countless, unless and until the accused is either arrested or voluntarily surrendered. We, therefore, find the position taken by petitioner as contrary to the intent and spirit of the law on "obstruction of justice." x x x

As correctly observed by the CA, the facts of the case, as portrayed by petitioner, do not warrant the filing of a separate information for violation of Section 1(e) of PD No. 1829. This Court agrees with the CA that based on the evidence presented by petitioner, the failure on the part of the arresting officer/s to arrest the person of the accused makes the latter a fugitive from justice and is not equivalent to a commission of another offense of obstruction of justice.

Petitioner, however, vehemently argues that the law does not explicitly provide that it is applicable only to another person and not to the offender himself. Petitioner thus contends that where the “law does not distinguish, we should not distinguish.”

Again, this Court does not agree.

Petitioner conveniently forgets that it is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. Courts must not bring cases within the provision of a law which are not clearly embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so, too, no person who is not clearly within the terms of a statute can be brought within them. Any reasonable doubt must be resolved in favor of the accused.

Indeed, if the law is not explicit that it is applicable only to another person and not the offender himself, this Court must resolve the same in favor of the accused. In any case, this Court agrees with the discussion of the CA, however sarcastic it may be, is nevertheless correct given the circumstances of the case at bar.

Lastly, petitioner argues that the CA erred in upholding the dismissal of the complaint against respondent for violation of Section 10 (a), Article VI, of RA No. 7610. Said Section reads:

Any person who shall commit any other act of child abuse, cruelty or exploitation or responsible for other conditions prejudicial to the child's development, including those covered by Article 59 of PD No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.

On this note, the Provincial Prosecutor in disapproving the recommendation of the Investigating Prosecutor to file the information for violation of Section 10(a), Article VI, of RA No. 7610, gave the following reasons:
APPROVED for: (1) x x x (2) x x x The recommendation to file an information for viol. of Sec. 10 (a) RA # 7610 vs. M. Vistan is hereby denied. The affidavit of Ma. Mercedes Vistan, the minor involved, is to the effect that she found happiness and peace of mind away from the complainant and in the company of her relatives, including her brother, respondent Michael Vistan. How can her joining the brother be prejudicial to her with such statement?

Said finding was affirmed by the Secretary of Justice.

This Court is guided by First Women's Credit Corporation and Shig Katamaya v. Hon. Hernando B. Perez et. al, where this Court emphasized the executive nature of preliminary investigations, to wit:

x x x the determination of probable cause for the filing of an information in court is an executive function, one that properly pertains at the first instance to the public prosecutor and, ultimately, to the Secretary of Justice. For this reason, the Court considers it sound judicial policy to refrain from interfering in the conduct of preliminary investigations and to leave the Department of Justice ample latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders. Consistent with this policy, courts do not reverse the Secretary of Justice’s findings and conclusions on the matter of probable cause except in clear cases of grave abuse of discretion. Thus, petitioners will prevail only if they can show that the CA erred in not holding that public respondent’s resolutions were tainted with grave abuse of discretion.

Were the acts of the Provincial Prosecutor or the Secretary of Justice tainted with grave abuse of discretion?

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act not at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.

Based on the foregoing, this Court finds that the provincial prosecutor and the Secretary of Justice did not act with grave abuse of discretion, as their conclusion of lack of probable cause was based on the affidavit of the alleged victim herself. The reasons for the cause of action were stated clearly and sufficiently. Was their reliance on the victim's affidavit constitutive of grave abuse of discretion? This Court does not think so.

While petitioner would argue that the victim was "brainwashed" by respondent into executing the affidavit, this Court finds no conclusive proof thereof. Besides, even if their reliance on the victim’s affidavit may be wrong, it is elementary that not every erroneous conclusion of fact is an abuse of discretion. As such, this Court will not interfere with the said findings of the Provincial Prosecutor and the Secretary of Justice absent a clear showing of grave abuse of discretion. The determination of probable cause during a preliminary investigation is a function that belongs to the prosecutor and ultimately on the Secretary of Justice; it is an executive function, the correctness of the exercise of which is a matter that this Court will not pass upon absent a showing of grave abuse of discretion.

WHEREFORE, premises considered, the February 13, 2004 Decision and September 16, 2004 Resolution of the Court of Appeals in CA-G.R. SP No. 76019 are hereby AFFIRMED.


Italian justice system works

In the latter part of last month, the newspaper MALAYA published my letter to the editor praising the Italian justice system for convicting the American spy agents for “rendition”-related crimes committed within the Italian territory during the infamous time of US Pres. G. W. Bush’s isolationist war on terror. Please read below the text of my said letter.

A tribute to Italy’s prosecutors

Italy will forever be remembered in the annals of public international law as the first and only country so far which has convicted American intelligence agents for the previously institutionalized American policy and practice of forcible abduction of profiled Islamic personalities and their subsequent violent renditions to foreign countries where American spy bases operate for purposes of applying torture-based interrogation tactics on such helpless human rights victims.

I honor Italy as a nation for such a great feat, or better yet and more particularly, I honor the nameless Italian prosecutors and the humble Italian trial judge who braved the indifference and political obstacles posed by the Italian prime minister Silvio Berlusconi in the course of the trial of the aforecited criminal case. Their over-staying prime minister is better known as the billionaire American puppet in Rome whose main focus in life as an elective political leader seems to be to maintain amorous relations with very young Italian girls and not to defend the rule of law in Italy and in the whole world, for that matter, afraid that he might irritate his American masters.

Rendition was all a part of ex-US Pres. G. W. Bush’s dreaded and much-condemned 8-year war on terror, which (hopefully) his successor and recent Nobel Peace Prize winner US Pres. Barack Obama would seriously investigate and forever stop if the latter intends to sincerely live up to the spirit and substance of his latest international peace award and if the USA and the American people, the so-called global beacon and world leader of freedom and democracy, truly hope to do justice to the principles behind the blood-stained declaration of independence proclaimed by their great founding fathers more than 200 years ago.

The next Nobel Peace Prize award should go to the nameless, courageous, unassuming and hardworking Italian prosecutors and trial judge who handled the trial on the merits of the aforementioned criminal case.

Las Pinas City

http://www.malaya.com.ph/11262009/edreader.html (November 26, 2009).

Wednesday, December 9, 2009

Warlords and dynasties in the Philippines

Corollary to my previous blogs on warlordism and political dynasties in the Philippines in relation to the rule of law and the administration of justice therein, may I reproduce below the verbatim self-explanatory texts of the recent editorial of the Philippine Daily Inquirer (December 8, 2009) and a letter to the editor which appeared in the said newspaper written by a top official of the International Association of People’s Lawyers based in Belgium, for legal research purposes of the readers of this site.

Roots of the massacre
Philippine Daily Inquirer
First Posted 00:34:00 12/08/2009

THE MAGUINDANAO MASSACRE, a crime so horrific, so unspeakable that it led people to ask whether it was committed by animals or monsters, has its roots in four phenomena of Philippine politics and society.

The first is the rise of political dynasties which exercise great power and influence and win many elective positions in national and local elections. Most political dynasties use legal and financial means to win power; some form private armies to terrorize voters into voting for them. The 1987 Constitution provides that “the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.” But up to now no such law has been approved. How can we expect Congress to pass such a law when it is controlled by powerful political dynasties?

The second is the existence of political warlords and their private armies, some of which, as the investigation of the Maguindanao massacre is revealing, are better armed than the army or the national police. Their private armies are the goons used by the political warlords to persuade voters to vote the way they want them to. That is why political warlords, who are often also leading members of political dynasties, are coddled by national officials, including presidents. They are very useful in elections.

President Gloria Macapagal-Arroyo coddled the Ampatuans because they delivered the vote to her in the 2004 presidential election and in the 2007 senatorial election. The Autonomous Region in Muslim Mindanao (ARMM) under the Ampatuans was given billions in budgetary outlay, and this became practically the private treasury of the clan. Its members obviously used public money to build grandiose mansions, to buy expensive cars and to arm a battalion-size private army. The members of the clan were coddled because they knew the President’s secrets.

The third phenomenon is the use of military armaments to arm private armies. The ongoing excavations in Maguindanao have turned up armored cars, high-powered guns and ammunition that were supposed to be used only by the military and the police. How did they get to be in the possession of the private army of the Ampatuan clan?

Were they sold by military or police officers to the private army? It is well that Sen. Rodolfo Biazon, a retired military general, has demanded an investigation so that it may be known how the Ampatuans were able to build up a high-powered armory.

The fourth phenomenon is the culture of impunity. This culture began during the martial law regime of Ferdinand Marcos and continued through the post-Edsa I administrations. But it is now most notable during the Arroyo administration. Since she took over as president in 2001, 1,013 activists have been killed and 202 have disappeared. Instead of putting a stop to the killings of unarmed activists, Ms Arroyo even emboldened the military to kill more by praising Maj. Gen. Jovito Palparan—called “Berdugo” (Butcher) by militants—during her State of the Nation Address in 2006.

From 2001 to date, 99 journalists have been killed and only five suspects have been arrested and brought to justice. Ms Arroyo has been spouting a lot of rhetoric about the killings of journalists, but there has been very little action from law enforcement agencies to solve the many cases and bring the killers to justice. The culture of impunity is emboldening the killers to continue their killing spree. The latest, and the most horrific case, of course, is the Maguindanao massacre where the biggest number of journalists were killed in just one incident.

Ms Arroyo tried to distance herself from the Maguindanao massacre, but try as she may, she cannot dissociate herself from this, perhaps the biggest blot on her questioned nine-year occupancy of Malacañang. She coddled the Ampatuans most probably because they knew her electoral sins and secrets. She gave them all the public funds that they needed and allowed them to build a strong, well-armed private army. And because the Ampatuans had her in their power, they thought they could literally get away with murder. But the Maguindanao massacre is so monstrous, so unspeakable that it cannot be hidden and cannot be forgotten by the nation and the world. The souls of the victims of this terrible crime cry out for justice, and if they cannot obtain it under the present administration, they should get it in the next.


Impunity led to brutal massacre
Philippine Daily Inquirer
First Posted 00:58:00 12/08/2009

The International Association of People’s Lawyers (IAPL) joins the international legal community, as well as countless individuals and organizations all over the world, in expressing outrage at the brutal and beastly killing of fellow people’s lawyers, media and other unarmed civilians in Maguindanao, Philippines.

Lawyers Concepcion “Connie” Brizuela and Cynthia Oquendo, who were active and leading members of the Union of Peoples’ Lawyers in Mindanao (UPLM) and the National Union of Peoples’ Lawyers of the Philippines (NUPL) until their death, were attacked in a carnage that led to the deaths of more than 50 people—a significant number of whom were journalists—monitoring a peaceful election-related activity.
Connie was among those met in November 2008 by European judges and lawyers who conducted an international mission on the continuing attacks on Filipino lawyers and judges.

The indubitable reports on the massacre overwhelmingly point to a local warlord clan and its private armed groups of police and paramilitary fanatics as being behind this hideous and unmitigated bloodbath that has shocked the whole world not only for its being unprecedented but also for its barbarity.

This latest brazen attack on our brave colleagues and their group of unarmed civilians was engendered by the culture of impunity that has pervaded the Philippine political atmosphere since President Gloria Macapagal-Arroyo came to power in 2001.
Extrajudicial killings, disappearances, torture, unjust arrests and detention, forcible evacuations and displacements and political persecution have been perpetuated by a policy that has targeted civilians and progressive people. These have victimized thousands and have neither been effectively resolved nor genuinely addressed to this moment. This revolting state of affairs is exacerbated or even encouraged by the warlordism sanctioned de facto by the Arroyo administration to advance its own political interests.

Lawyers Brizuela and Oquendo, together with their courageous and dynamic peoples’ lawyers in the Philippines, tirelessly worked and advocated for good governance and peace. They are a source of unending inspiration to us all even as we grieve and rage.

The plight of our colleagues continues to be monitored and addressed by the international legal community with grave concern.
We demand and will work for justice for our fallen colleagues.

secretary general,
International Association of People’s Lawyers (IAPL),


Bar reforms: my advocacy continues.

In connection with the pending bar reform-related matter in the Philippine Supreme Court which I initiated in 2006, docketed as Bar Matter No. 1696 and entitled “In re: :Letter of Atty. Manuel J. Laserna Jr., re: Campaign to Introduce Certain Amendments to Rule 139-A”, I am glad to report to members of the Philippine Bar that at long last the national board of governors of the Integrated Bar of the Philippines (IBP) has submitted a status report, by way of a Compliance (dated November 18, 2009), to the Supreme Court, stating, among other things, as follows:

1. In a board meeting held on September 11, 2009, it was agreed that amendments to the IBP By-Laws be seriously studied and a task force be created to review the By-Laws.

2. In the said meeting the board approved Resolution No. XIX-2009-35 creating a task force to review the IBP By-Laws and assigned Secretary Tomas Prado and Director Rosario Setias-Reyes to the task force.

3. In a meeting held on October 29, 2009 the board:

a. authorized the deputy general counsel to come up with a matrix of the proposed amendments to Rule 13-A of the Rules of Court (re: IBP matters) and the IBP B y-Laws;

b. noted that a task force had been previously created by the board to study the Laserna letter-petition containing his proposed IBP reforms;

c. noted the order of the Court requiring the IBP to submit its comment on the proposed Laserna IBP reforms;

d. agreed to prioritize its action on the Laserna reforms (without prejudice to a more comprehensive review of the IBP By-Laws in the near future);

e. constituted a committee to review the urgent Laserna reforms to be jointly chaired by Gov. A. Tolentino Jr. and Gov. J. Cabrera with the following as members, i.e., Dir. R. Setias-Reyes, Dep. Gen. Counsel R; Urbiztondo, and Sec. T. Prado, without prejudice to inviting the chapter presidents to be affected by the proposed Laserna reforms as resource persons; and

f. gave the committee 90 days to finish its review of the By-Laws.

The Compliance was signed by IBP General Counsel P. Agabin (former law dean of the University of the Philippines college of law) and IBP Deputy General Counsel R. Urbiztondo, who are both known as senior lawyers, law professors and law philosophers filled with wisdom.

The IBP By-Laws and Rule 139-A of the Rules of Court must be soonest amended or revised to reflect the wise and valid reforms that I have proposed in my aforementioned letter-petition which has been pending with the Court since 2006 in order to make the IBP truly responsive to the needs of the Philippine Bar and the society in general and in order to make the IBP a genuine advocate and pillar of the rule of law and justice in the country.

The IBP board of governors should be relentless in recommending to the Court all the necessary progressive reforms now and in the future not only because the Court has ordered it to do so but more importantly because its members have been elected by the Filipino lawyers, acting through their local IBP chapter officials/delegates, precisely to serve the needs of the Philippine Bar and to make a difference in the lives of the oppressed, hopeless, exploited and ignorant citizens of the Philippines.

I shall continue to monitor this bar matter that I have commenced in the Supreme Court three years ago until the IBP by-laws, structures and operations shall have been genuinely reformed and improved (and, better yet, insulated from internal partisan [destructive] politics) for the sake of the Philippine Bar in particular and the Philippine society in general.

This bar matter is one of my burning personal advocacies as a Filipino lawyer, local Bar leader, and former law professor who has the higher non-partisan interest of the Philippine Bar, the rule of law, and the administration of justice deep in his heart, without expecting anything in return.

Revised rule on children in conflict with the law (2009)

I am reproducing verbatim below the full text of the REVISED RULE ON CHILDREN IN CONFLICT WITH THE LAW (A.M. No. 02-1-18-SC, November 24, 2009) which was very recently issued by the Philippine Supreme Court and which took effect last month, for legal research purposes of the visitors oft his blog. When I have the time next week, I plan to digest and analyze its major provisions from the view point of a litigator.

Section 1. Applicability of the Rule. - This Rule shall apply to all criminal cases involving children in conflict with law.

A child in conflict with the law is a person who at the time of the commission of the offense is below eighteen (18) years old but not less than fifteen (15) years and one (1) day old.

This Rule shall not apply to a person who at the time of the initial contact as defined in Sec. 4 (q) of this Rule shall have reached the age of eighteen (18) in which case, the regular rules on criminal procedure shall apply without prejudice to the rights granted under Secs. 53,54,55 and 56 of this Rule.

Section 2. Objective. - The objective of this Rule is to ensure that the justice system treats every child in conflict with the law in a manner that recognizes and upholds human dignity and worth, and instills in the child respect for the fundamental rights ad freedom of others. The Rule considers the developmental age of the child and the desirability of the child's reintegration in the assumption of a constructive role in society in accordance with the principles of balanced and restorative justice.

To attain this objective, the Rule seeks:

(a) To provide child-appropriate proceedings, including programs and services for crime prevention, diversion, rehabilitation, re-integration and aftercare to ensure the normal growth and development of the child in conflict with the law;

(b) To provide procedural rules dealing with children in conflict with the law that take into account their distinct circumstances, assure all parties of a fair hearing with each party's constitutional and statutory rights recognized and respected, and ensure that appropriate disposition measures are implemented by law enforcers social services and the courts;

(c) To divert from the formal justice system children in conflict with the law who can be cared for or placed under community continuum alternative programs of treatment, training and rehabilitation in conformity with the principles of balanced and restorative justice;

(d) To deal with the child in a family environment whenever possible, and to separate the child from the parents only when necessary for the child's welfare or in the interest of public safety.

(e) To remove from children in conflict with the law the stigma of criminality and criminal behavior;

(f) to promote, facilitate and implement in administrative and judicial proceedings respect for the view of the child;

(g) To provide for the care, protection and wholesome moral, mental, and physical development of children in conflict with the law; and

(h) To promote and protect the rights and interest of children as zones of peace in situations of armed conflict, but who are alleged to be in conflict with the law. (a)

Section 3. Interpretation. - This Rule shall be interpreted liberally to promote the best interest of the child in conformity with Philippine laws, the United Nations' Convention on the Rights of the Child and relevant international treaties and protocols.

Section 4. Definitions. - As used in this Rule,

(a) Age of criminal responsibility is the age when a child, fifteen (15) years and one (1) day old or above but below eighteen (18) years of age, commits an offense with discernment.

(b) Bail refers to the security given for the release of the child in custody of the law, furnished by the child, the child's parent, guardian, or a bondsman, to guarantee the child's appearance before the court. Bail may be posted in a form such as corporate security, property bond or cash deposit.

(c) Balanced and Restorative Justice is a principle in juvenile justice that requires a process of resolving conflicts with the participation of the victim, the child in conflict with the law, and the community. It seeks to obtain reparation for the victim; reconciliation to the victim, the child in conflict with the law, and the community, and the reassurance that the child in conflict with the law can be reintegrated into society. It also enhances public safety by involving the victim, the child in conflict with the law, and the community in prevention strategies. (a)

(d) Best interest of the child refers to the totality of congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development.

(e) Case study report is a written report on the social case inquiry conducted by the social worker of the local government unit or the Department of Social Welfare and Development or by the social worker designated by the court on the social, cultural, economic and legal status or condition of the child in conflict in the law. It shall include, among other matters, the child's development age; educational attainment; family and social relationships; the quality of the child's peer group; the strengths and weaknesses of the family; parental control; the child's attitude towards the offense ; the harm or damage done to others resulting from the offenses, if any; and the attitude of the parents towards the child's responsibility for the offense. The social worker shall also include an initial determination of the child's discernment in the commission of the offense. (a)

(f) Community continuum refers to the aftercare of a child in conflict with the law and is a provides continuous guidance and support to the child in conflict with the law upon release from rehabilitation and subsequent reintegration into society. Community continuum for the child includes timely release, suitable residence, food, clothing, available employment and sufficient means to facilitate successful reintegration in local government unit and other appropriate agencies. (n)

(g) Corporal punishment is any kind of physical punishment inflicted on the body as distinguished from pecuniary punishment or fine.

(h) Court refers to a designated family court or in places where there are no designated family courts, any regional trial court hearing family and youth cases. (a)

(i) Deprivation of Liberty refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will except by order of any judicial or administrative authority. (a)

(j) Discernment means the capacity of the child at the time of the commission of the offense to understand the differences between right and wrong and the consequences of the wrongful act.

(k) Disposition conference is a meeting held by the court with the social worker who prepared the case study report, together with the child in conflict with the law and the parents or guardian ad litem, and the child's counsel for the purpose of determining the disposition measures appropriate to the personal and special circumstances of the child.

(l) Diversion refers to an alternative child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of the child's social, cultural, economic psychological or educational background without resorting to formal court adjudication.

(m) Diversion programs refer to programs the child in conflict the law is required to undergo in lieu of formal court proceedings.

(n) Expedited Transfer of a Child is a process where a child who commits an offense is immediately brought by the apprehending officer or private individual to a social worker for preliminary determination of discernment. (n)

(o) Guardian Ad Litem is a person appointed by the court to protect the best interest of the child. (a)

(p) In conflict with the law means take into custody, detained, or charged with the commission of an act defined and punished as a crime or offense under the law, including violations of traffic laws, rules and regulations, and ordinances of local government units. (a)

(q) Initial contact refers to apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time the child alleged to be in conflict with the law receives a subpoena under Section 3 (b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6 (a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation, or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. (n)

(r) Intake report is the initial written report containing the personal and other circumstances of the child in conflict with the law prepared by the social worker assigned to assist the child entering the justice system.

(s) Intervention programs refer to a series of individualized treatment activities or programs designed to address issues that caused the child to commit an offense . These may include counseling, skills, training, education, and other activities that are aimed to improve and enhance the child's psychological, emotional and psychosocial well being. (n)

(t) Law Enforcement Officer refers to the person in authority or an agent as defined in Article 152 of the Revised Penal Code, including a barangay tanod. (n)
(u) Non-Serious Offense refers to an offense where the imposable penalty for the crime committed is not more than six (6) years imprisonment. (n)

(v) Probation is an alternative disposition, ordered by the court, under which a child in conflict with the law is released after conviction and sentence and permitted to remain at home or with an appropriate custodian, subject to certain terms and conditions imposed by the court.

(w) Recognizance is an undertaking in lieu of a bond, assumed by a mother or father, or appropriate guardian or custodian, or in their absence, the nearest relative, or any responsible member of the community to assume custody of a child in conflict with the law and be responsible for the appearance of the child in court whenever required during the pendency of the case. (a)

(x) Segregation refers to the procedure where, upon initial contact with a child alleged to have committed an offense, the law enforcer places the child in a separate and different area from adult detention prisoners, and ensures that female children are separated from male children. (n)

(y) Serious offense refers to an offense where the imposable penalty for the offense committed exceeds six (6) years imprisonment. (a)

(z) Status offenses refers to offenses that discriminate only against a child, such as curfew violations, truancy, parental disobedience and the like. (n)

(aa) Suspended sentence is the holding in abeyance of the service of the sentence imposed by the court upon a finding of guilt of the child in conflict with the law, whereby the child undergoes rehabilitation within a fixed period under such terms and conditions as may be ordered by the court. (n)

(bb) Victimless Crimes refer to offenses where there are no private offended parties. (n)

(cc) Youth detention home refers to a 24-hour child-caring institution managed by accredited local government units and licensed and/or accredited non-government organizations providing short-term residential care for children in conflict with the law and where the child may be physically restricted by order of any judicial, administrative or other public authority, and from which the child is not permitted to leave at will, pending court disposition of the charge or transfer to other agencies or jurisdiction. (a)

(dd) Youth rehabilitation center refers to a 24-hour residential care facility managed by the Department of Social Welfare and Development, local government units, licensed and/or accredited non-government organizations monitored by the Department of Social Welfare and Development. The Center provides care, treatment and rehabilitation services for children in conflict with the law under a structured therapeutic environment through the guidance of a trained staff, where the physical mobility of the children may be restricted pending court disposition of their cases. (a)

Section 5. Determination of Age. - The child in conflict with the law shall enjoy the presumption of minority and shall enjoy all the rights of a child in conflict with the law until proven to be eighteen years old or older at the time of the commission of the offense. The age of the child shall be determined according to the following rules:

(1) The best evidence to prove the age of a child is an original or certified true copy of the certificate of live birth;

(2) In the absence of a certificate of live birth, similar authentic documents such as baptismal certificates and school records or any pertinent document that shows the date of birth of the child;

(3) In the absence of the documents under paragraphs 1 and 2 of this section due to loss, destruction or unavailability, the testimony of the child, the testimony of a member of the family related to the child by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the child pursuant to Sec.40, Rule 130 of the Rules on Evidence, the testimonies of the other persons, the physical appearance of the child and other relevant evidence, shall suffice.

Section 6. Burden of Proof of Age. - Any person alleging the age of the child in conflict with the law has the burden of proving the age of such child.
If the age of the child is contested prior to the filing of the information in court, a case for determination of age under summary proceeding may be filed before a court which shall render its decision within 24 hours from receipt of the appropriate pleadings of all the parties. (n)

In all cases involving a child, the court shall make a categorical finding as to the age of the child.

Section 7. Exemption from Criminal Liability. - A child fifteen years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program as provided for in Republic Act No. 9344 when consented to by the child and the parents. (a)

Exemption from criminal liability does not include exemption from civil liability which shall be enforced in accordance with the provisions of Article 221 of the Family Code in relation to Article 101 of the Revised Penal Code and Rule 111 of the Revised Rules of Criminal Procedure. If the act or omission of the child involves a quasi-delict, Article 2180 of the Civil Code shall apply.

Section 8. Procedure for Handling Children Exempted from Criminal Liability. - If it is determined at the initial contact that the child is 15 years of age or below, the procedure provided in Section 20, Republic Act No. 9344 shall be observed as follows:

(a) The authority who had the initial contact with the child shall immediately release the child to the custody of the mother or father, or the appropriate
guardian or custodian, or in their absence, the nearest relative.

(b) The authority shall immediately notify the local social welfare and development officer of the taking of the child into custody.

(c) The local social welfare and development officer shall, with the consent of the child and the person having custody over the child, determine the appropriate intervention programs for the child.

(d) If the child's parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children; a local social welfare and development officer; or, when and where appropriate, the Department of Social Welfare and Development.

(e) If the child has been found by the local social welfare and development office to be abandoned, neglected or abused by the parents, or if the parents and the child do not consent to or do not comply with the prevention program, the Department of Social Welfare and Development or the Local Social Welfare and Development Office shall file before the court a petition for involuntary commitment pursuant to Presidential Decree No. 603, otherwise known as "The Child and Youth Welfare Code." (a)

Section 9. Procedure for Children Not Exempted from Criminal Liability. - A child fifteen (15) years and one (1) day old or above but below eighteen (18) years of age at the time of the commission of the offense shall, at the sound discretion of the court and subject to its supervision, be released on recognizance to the care of the willing and responsible mother or father, or appropriate guardian or custodian, or, in their absence, the nearest relative. However, if the prosecution determines that the child acted with discernment, the child shall be proceeded against in accordance with Secs. 25 to 29 or, in case of diversion, Secs. 31 to 38 of this Rule.

Section 10. Determination of Discernment. - Discernment is preliminarily determined by a social worker and finally by the court in the case of a child charged with a non-serious offense. In all other cases, discernment is determined by the court.
The determination of discernment shall take into account the ability of a child to understand the moral and psychological components of criminal responsibility and the consequences of the wrongful act; and whether a child can be held responsible for essentially antisocial behavior.

Section 11. Duties of a Person in Authority Taking a Child into Custody. - Any person taking into custody a child in conflict with the law shall:

(a) Assign an alias to the child;

(b) Ensure that the blotter details containing the true name of the child, if any, are modified, to reflect the alias by which the child shall be known throughout the proceedings;

(c) Explain to the child in simple language and in a dialect that can be understood the reason for placing the child under custody, and the offense allegedly committed;
(d) Advise the child of his/her constitutional rights in a language or dialect understandable to the child;

(e) Present proper identification to the child;

(f) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child;

(g) Avoid displaying or using any firearm, weapon, handcuffs or other instrument of force or restraint, unless absolutely necessary and only after all methods of control have been exhausted and have failed;

(h) Avoid violence or unnecessary force and refrain from subjecting the child to greater restraint than is necessary for apprehension and custody;

(i) Ensure that a body search of the child is done only by a law enforcement officer of the same gender as that of the child;

(j) Ensure expedited transfer of the child by immediately, or not later than eight
(8) hours after apprehension, turning over custody of the child to the local social welfare and development office or other accredited non-government organizations;

(k) Notify the child's parents, guardians or custodians or in their absence, the child's nearest relative and the Public Attorney's Office of the child's apprehension;

(l) Ensure that the child is not locked up in a jail or detention cell during the investigation;

(m) Bring the child immediately to an available government medical or health officer for a thorough physical and mental examination;

(n) Ensure that should detention of the child in conflict with the law be necessary, the segregation of the child be secured in quarters separate from that of the opposite sex and adult offenders, except where a child is taken into custody for reasons related to armed conflict, either as combatant, courier, guide or spy, and families are accommodated as family units in which case, the child shall not be separated from the family;

(o) Record all the procedures undertaken in the initial investigation including the following: whether handcuffs or other instruments of restraint were used, and if so, the reason for such use; that the parents or guardian of the child, the Department of Social Welfare and Development, and the Public Attorney's Office were informed of the taking into custody of the child and the details thereof; the measures that were undertaken to determine the age of child, and the precise details of the physical and medical examination or in case of failure to submit a child to such examination, the reason therefore; and

(p) Ensure that all statements signed by the child during the investigation are witnessed and signed by the child's parents or guardian, social worker or legal counsel in attendance. (n)

Section 12. Rights of a Child Under Custody. - At the custodial investigation, a child who has been taken into custody shall have the following rights:

(a) At the police station, to be immediately assisted by a lawyer and a social worker who shall make sure that the child is effectively informed of his/her rights, as far as the child's maturity and discernment allow;

(b) To demand that the questioning or interrogation take place in conditions that respect the rights of the child and are complaint with child-sensitive procedural rules;

(c) To have the child's family located and notified with dispatch;

(d) To be informed, together with the parents, guardians or custodians or nearest relatives, by the social welfare and development officer of the local government unit or of the Department of Social Welfare and Development of the consequences of the offense alleged to have been committed with a view towards counseling and rehabilitation, diversion from criminal justice system and reparation if appropriate;

(e) To have the results of the child's medical and dental examination kept confidential unless otherwise ordered by the court. Whenever medical treatment for any physical or mental defect is necessary, to demand that steps must be immediately taken by the medical officer to provide the child with the necessary and proper treatment;

(f) To have the right of privacy respected and protected at all times, including the utilization of all measures necessary to promote this right, including the exclusion of the media; and

(g) While under investigation, not to be fingerprinted or photographed in a humiliating and degrading manner.

Section 13. Taking Custody of a Child Without a Warrant. - The law enforcement officer or a private person taking into custody a child in conflict with the law without a warrant shall observe the provisions in Sections 5, 8 and 9 of Rule 113 of the Revised Rules of Criminal Procedure and shall forthwith deliver the child to the nearest police station. The child shall be proceeded against in accordance with
Section 7 of Rule 112 of the Rules of Criminal Procedure.

Section 14. Conduct of Initial Investigation by the Police. - The police officer conducting the initial investigation of a child conflict with the law shall do so in the presence of either or both of the parents, guardian or custodian, or in their absence, the nearest relative of the child, the child's counsel of choice, or a lawyer from the Public Attorney's Office, and the local social welfare officer. A representative of a non-government organization, religious group, or member of the Barangay Council for the Protection of Children shall be allowed to be present at the investigation in the absence of the parents, guardian, relative, or social welfare officer. (a)

Section 15. Guidelines for Fingerprinting and Photographing of the Child. - The following guidelines shall be observed when fingerprinting or photographing the child:

(a) The child's fingerprint and photograph files shall be kept separate from those of adults and shall be kept confidential. They may be inspected by law enforcement officers only when necessary for the effective discharge of their duties and upon prior authority of the court; and

(b) The fingerprint and photograph shall be removed from the files and destroyed: (1) if the case against the child is not filed, or is dismissed; or (2) when the child reaches twenty-one (21) years of age and there is no record that the child committed an offense after reaching eighteen (18) years of age.

Section 16. Intake Report by the Social Welfare Officer. - Upon the taking into custody of a child in conflict with the law, the social welfare officer assigned to the child shall immediately undertake a preliminary background investigation of the child and, should a case be filed in court, submit to the court the corresponding intake report prior to the arraignment.

Section 17. Filing of Criminal Action. - A criminal action may be instituted against a child in conflict with the law by filing a complaint with the prosecutor.
All criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the public prosecutor assigned to the court.
Petitions for confinement of a child drug dependent shall be filed under Section 21 of the Rule on Children Charged under Republic Act No. 9165. (n)

Section 18. Prosecution of Civil Action. - When a criminal action is instituted against a child in conflict with the law, the action for recovery of civil liability arising from the offense charged shall be governed by Rule 111 of the Revised Rules of Criminal Procedure.

Section 19. Preliminary Investigation. - As far as consistent with this Rule, the preliminary investigation of a child conflict with the law shall be governed by Section 3 of Rule 112 of the Revised Rules of Criminal Procedure. A specially trained prosecutor shall be assigned to conduct the inquest, preliminary investigation and prosecution of the case involving a child in conflict with the law. The child, on the other hand, shall be assisted by a private lawyer or if none, a lawyer from the Public Attorney's Office. If there is an allegation or evidence of torture or ill-treatment of a child in conflict with the law during custody or detention, it shall be the duty of the prosecutor to investigate the same. (n)

Section 20. Conduct of Preliminary Investigation. - Preliminary investigation shall be conducted in the following instances: (a) when the child in conflict with the law does not qualify for diversion; (b) when the child, the parents or guardian do not agree to diversion as provided in Sections 27 and 28 of Republic Act No. 9344; or (c) when, after considering the assessment and recommendation of the social worker, the prosecutor determines that diversion is not appropriate for the child in conflict with the law. (n)

At the preliminary investigation, should there arise a need for clarificatory questions to be propounded on the child, the Rule on Examination of a Child Witness shall apply.

Section 21. Filing of Information. - If the investigating prosecutor finds probable cause to hold the child in conflict with the law for trial, there being discernment, the corresponding Resolution and Information shall be prepared for the approval by the provincial or city prosecutor, a s the case may be. The child and the mother or father, or appropriate guardian or custodian, or in the absence thereof, the nearest relative, and the child's private counsel or lawyer from the Public Attorney's Office shall be furnished forthwith a copy of the approved resolution and the Information.

The Information shall be filed with the court within forty-five (45) days from the start of the preliminary investigation. (n)

No Information shall be filed against a child for the commission of the following:
(a) status offences;

(b) vagrancy and prostitution under Section 202 of the Revised Penal Code;

(c) mendicancy under Presidential Decree No. 1563; and

(d) sniffing of rugby under Presidential Decree No. 1619.

Children taken into custody for the foregoing shall, with their consent and that of their parents, guardian or custodian, instead undergo appropriate counseling and treatment program. (n)

Section 22. Duties of the Clerk of Court Upon Receipt of information. - The Clerk of Court, upon receipt of the Information, shall:

(1) Maintain a separate case docket or logbook for cases involving children in conflict with the law. Whenever possible, the Clerk of Court shall use color coding or other method to easily distinguish the records of children in conflict with the law from the other case records;

(2) Determine whether the offense charged qualifies for diversion, that is it punishable by imprisonment of not more than twelve (12) years, regardless of fine, or fine alone regardless of the amount;

(3) If the crime charged is punishable by such imprisonment, immediately assign a temporary case number in accordance with Sec. 23 of this Rule and raffle off the case to a court so that its Diversion Committee can immediately undertake the appropriate action under Section 33 of this Rule; and

(4) If the crime charged does not quality for diversion because it is punishable by imprisonment of more than twelve (12) years, the case shall be assigned a regular
criminal case docket number raffled off to a court for formal proceedings. (n)

Section 23. Docketing of the Case - a case that qualifies for diversion under paragraph 3 of the preceding Section shall not be docketed as a regular criminal case but instead shall be assigned a temporary case number as follows: CICL-(no.) ___- (year) ___ -D (which means diversion), before the same is raffled off to the appropriate court.

Section 24. Venue - Subject to the provisions of Section 15, Rule 110 of the Revised Rules of Criminal Procedure, any criminal or civil action involving a child in conflict with the law shall be instituted and tried in the appropriate court nearest the place where the offense was committed or where any of its essential elements occurred.

Section 25. Released of Children on Recognizance to the Parents, Guardian, Custodian or Nearest Relative. - The release of a child from a custody during the pendency of the case involving a non-serious offense as defined in Sec. 4 (u) of this rule may be ordered by the court only after a hearing for that purpose, and upon favorable recommendation of the social worker assigned to the child, with the conformity of the public prosecutor and the private complainant. The child shall be released to the custody of a willing and responsible mother or father, or appropriate guardian or custodian or in their absence, the nearest relative, who shall be responsible for the child's good behavior and appearance in court whenever required.

No child shall be ordered detained in jail pending trial or hearing of the child's case, subject to the provisions of this Rule. (n)

Section 26. Commitment and transfer to a youth Rehabilitation Center. - A child charged with non-serious offense as defined in Section 4 (u) of this Rule, unless released on bail or recognizance, may be transferred to a youth detention home rehabilitation center or other appropriate facility such as the Department of Social Welfare and Development which shall ensure the appearance of the child in court.

In the absence of a youth detention home established by the local government pursuant to Section 8 of the Family Courts Acts, in the city or municipality where the child resides or, a local rehabilitation center recognized by the government in the province, city or municipality within the jurisdiction of the court, or the Department of Social Welfare and Development or other appropriate local rehabilitation center, the youth shall be placed under the care of a provincial, city or municipality jail which shall ensure the appearance of the child in court when so required. (a)

Section 27. Bail as a Matter of right. - All children in conflict with the law shall be admitted to bail as a matter of right before final conviction of an offense not punishable by reclusion perpetua life imprisonment.

Section 28. When Bail Not a Matter of Right. - No child charged with an offense punishable by reclusion perpetua or life imprisonment shall be admitted to bail when evidence of guilt is strong. In this case, the court shall commit the to a youth detention home or youth rehabilitation center, or in the absence thereof, to the care of a provincial, city or municipal jail as provided for in Section 27 of this Rule, which shall be responsible for the appearance of the child in court whenever required.

Section 29. Care of Child in Youth Detention Homes or Rehabilitation Centers. - The child in conflict with the law who has been transferred to a youth rehabilitation center or youth detention home shall be provided with a healthy environment. If the child is placed under the care of the provincial, city or municipal jail, the child shall be provided with adequate quarters separate from adults and prisoners of the opposite sex depending on the age, sex, sexual lifestyle, and such other circumstances and needs of the child.

Section 30. Case Study Report. - After the institution of the criminal action, the social worker assigned to the child shall immediately undertake a social case inquiry of the child and the child's family, the child's environment and such other matters relevant to aid the court in the proper disposition of the case. The report shall be submitted to the court preferably before arraignment. If not available at that time, the Report must be submitted to the court as soon as possible.
Section 31. Diversion Committee - In each court, there shall be organized a Diversion Committee composed of its Branch Clerk of Court as chairperson; the prosecutor, a lawyer of the Public Attorney's Office assigned to the court, and the social worker assigned by the court to the child, as members.

Section 32. Proceedings Before Arraignment - The Diversion Committee shall determine if the child can be diverted and referred to alternative measures or services. Subject to pertinent provisions of this Rule and pending determination of diversion by the Committee, the court shall release the child on recognizance to the parents, guardian or custodian, or nearest relative; or if this is not advisable, commit the child to an appropriate youth detention home or youth rehabilitation center which shall be responsible for the presence of the child during the diversion proceedings.

If the Diversion Committee determines that diversion is not proper, or when the child or the private complainant object to the diversion, or when there is failure if the diversion program if undertaken by the child, it shall submit a report to the court recommending that the case be subjected to formal criminal proceedings. The court in turn shall direct the transmittal of the records of the case to the Office of the Clerk of Court for the assignment of a regular criminal docket number to the case as follows: CICL Crim. Case No.___-___( year). The Office of the Clerk of Court shall thereafter return the case to the court for arraignment and formal proceedings.

Section 33. Proceeding Before the Diversion Committee. - Upon receipt by the Committee of a case for diversion from the Office of the Clerk of Court, the chairperson shall call for a conference with notice to the child, the mother or father, or appropriate guardian or custodian, or in their absence, the nearest relative, the child's counsel, and the private complainant and counsel to determine if the child can be diverted to the community continuum instead of formal court proceedings.

In determining whether diversion is appropriate for the child, the Committee shall consider the following factors:

(a) The past records, if any, involving the child in conflict with the law;

(b) The likelihood that the child will be an obvious threat to himself/herself and the community;

(c) Whether the child has feeling of remorse for the offense committed;

(d) If the child or the parent are indifferent or hostile; and whether this will increase the possibility of delinquent behavior; and

(f) If community-based programs for the rehabilitation and reintegration of the child are available.

If the Committee finds that diversion is appropriate, it shall design a diversion program in accordance with Section 34 of this Rule for the consideration and approval of the court.

Should the Committee determine that diversion is not appropriate, it shall make the corresponding report and recommendation in accordance with Section 31 of this Rule.
The Committee cannot recommend diversion in case the child or the private complainant objects.

Section 34. Diversion programs. -The Committee shall design a diversion program talking into consideration the individual characteristics and peculiar circumstances of the child in conflict with the law. The program shall be for a specific and definite period and may include any or a combination of the following:

(a) Written or oral reprimand or citation;
(b) Written or oral apology;
(c) Payment of the damage caused;
(e) Payment of the cost of the proceedings;
(f) Return of the property;
(g) Guidance and supervision orders;
(h) Counseling for the child and his family;
(i) Training, seminar and lectures on (i) anger management skills; (ii) problem-solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills that will aid the child to properly deal with situations that can lead to a repetition of the offense;
(j) Participation in available community-based programs;
(k) Work-detail program in the community; or
(l) Institutional care and custody.

The Committee shall also include in the program a plan that will secure satisfaction of the civil liability of the child in accordance with Sec. 2180 of the Civil Code.

Inability to satisfy the civil the liability shall not by itself be a ground to discontinue the diversion program of a child. On the other hand, consent to diversion by the child or payment of civil indemnity shall not in any way be construed as admission of guilt and used as evidence against the child in the event that the case is later on returned to the court for arraignment and conduct of formal proceedings.

The court shall act on the recommendation within five (5) days from the termination of the hearing.

Section 36. Undertaking. - In all cases where a child in conflict with the law is granted diversion by the court, the child, together with the mother or father, or appropriate guardian or custodian, or in their absence, the nearest relative, and the child's counsel shall sign an undertaking to comply with their respective duties and obligation under the terms and conditions of the express agreement by
complainant assisted by counsel to the diversion of the child, shall be approved by and enforced under the supervision and control of the court. It shall contain the following minimum principal terms and conditions:

(a) The child shall appear before the social worker assigned to the child by the Court that approved the diversion program at least once a month for evaluation of its effectiveness.
(b) The child shall faithfully comply with the term and conditions of the program. Should the child fail to do so, the Committee shall report such failure to the court which shall set a show- cause hearing with notice to the child and private complainant. The court shall thereafter determine whether to allow the child to continue with the diversion program, or to end the same and direct that the case now undergo a formal proceeding.

Should the child be permitted by the court to reside in a place under the jurisdiction of another court, control and supervision over such child shall be transferred to the appropriate court of that place. The diversion records of the case such as the minutes of the diversion proceedings, copy of the undertaking, the intake and case study reports and all other pertinent documents shall be transmitted to the court to which jurisdiction over the diverted child has been transferred.

Section 37. Report of Social Worker. - The court social worker shall conduct regular monthly visit to the child undergoing diversion proceedings and shall submit the corresponding reports about the status of the diverted child to the committee. At any time before or at the end diversion period, the committee shall file with trhe court of the report recommending termination or extension of diveertion, as the case may be. The report and recommendation shall be heard by the court within fifteen (15) dyas form receipt, with notice to the members of the Committee, the child, the mother or father, or the appropriate guardian or custodian, or in the absensce thereof, the nearest relative, the child's councel, and the complainant and counsel.

The court shall thereafter determine whether the diversion program has been full and satisfactorily complied with

Section 38. Closure Order. - On the basis of the report and recommendation of the Committee, the court may:

(a) Issue a closure order terminating the case if it is convinced that the child has complied satisfactorily with the diversion program; or
(b) Extend the period of diversion if it is convinced that the child may still be rehabilitated; or
(c) Order the case to undergo formal court proceedings if it finds that the child has not complied with the diversion program, is incorrigible, or that the program is not serving its purpose.

In case of the judicially-approved transfer of residence of the child in conflict with the law, the court to which supervision of the diversion program was transferred shall make the proper finding. IF it finds that diversion has been successful. It shall order the closure of the case. However, if it determines that diversion has failed it shall return the case to the original court for formal criminal proceedings.

Section 39. Rights of the Child in Conflict with the Law. - In all criminal proceedings, the child in conflict with the law shall have the following rights which shall be respected and protected by the court:

(a) To be presumed innocent until guilt is proved beyond reasonable doubt;
(b) To be informed promptly and directly of the nature and cause of the charge and if appropriate, through the child's mother, father, legal guardian, or appropriate custodian;
(c) To be present at every stage of the proceedings, from arraignment to promulgation of judgement. The child may, however, waive presence at the rial pursuant to the stipulations set forth in the bail bond, unless presence at the trial is specifically ordered by the court for purposes of identification. The absence of the child without justifiable cause at the trial of which there was due notice shall be considered a waiver of the right of the child to be present. Escape by the child under custody shall be deemed a waiver of the right to be present in all subsequent hearings until custody over such child is gained;

(d) To have legal and other appropriate assistance in the preparation and presentation of the child's defense; in case of a child arrested for reasons related to armed conflict, to have immediate free legal assistance;

(e) If detained, to be released (I) on recognizance to the willing and responsible mother or father or appropriate guardian or custodian, or in the absence thereof, the nearest relative; (ii) on bail; or (iii) by commitment to a youth detention home or youth rehabilitation center, 1avvphi1
(f) Not to be detained in a jail or transferred to an adult facility pending trial or hearing of the case, unless detention is used as a last resort which must be done for the shortest time possible, and only upon order by the court;
(g) In the case the child has been arrested for reasons related to armed conflict, either as combatant, courier, guide or spy:

(i) To be segregated and have separate detention quarters from adults except where families ate accommodated as family un its;
(ii) To immediate free legal assistance in the absence of private counsel;
(iii) To immediate notice of such arrest to the parents, guardians or custodians or nearest relatives of the child; and;
(iv) To be released on recognizance within twenty-four (24) hours to the custody of the Department of Social Welfare and Development or any responsible member of the community as determined by the court.

(h) To testify as a witness in his/her own behalf; and subject to cross-examination only on matters covered by direct examination. The child shall not be compelled to be a witness against himself/herself and the child's silence shall not in any manner prejudice him/her;
(i) To confront and cross-examine the witnesses against him/her;
(j) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in the child's behalf
(k) To have speedy and imparial trial, with legal or other appropriate assistance and preferable in the presence of the child's parents or legal guardian or custodian, unless such presence is considred not to be in the best interest of the child taking into account the latter's age or other peculiar circumstances;
(l) To be accorded all the rights un der the Rule on Examination of a Child Witness;
(m) To have the child's privacy fully protected in all stages of the proceedings; and
(n) To appeal in all cases allowed and in the manner prescribed by law.

Section 40. Rights if Victims of Offences Committed by Children in Conflict with the Law. - In any case involving a child in conflict with the law, the victim has the following rights:

(1) To be reasonably protected from the child in conflict with the law;
(2) To timely notice of any public proceedings, or any parole proceedings involving the crime or of any release or escape of the child in conflict with the law;
(3) Not to be excluded from any public proceeding, unless the court, after receiving any clear and convincing evidence, determines that the testimony by the victim would be materially altered if the victim heard other testimony in that proceeding.
(4) To be reasonably heard at any administrative or public proceeding involving diversion, release, plea, suspension of sentence and determination of disposition measures, or any parole proceeding;
(5) To confer with the prosecutor in the case;
(6) To avail of legal assistance from the Public Attorney's Office, Integrated Bar of the Philippines. any other legal aid office or any law practitioner.1avvphi1
(7) To be informed of the availability of compensation from the Department of Justice Board of Claims in accordance with the provisions of Rep Act. No.7309.
(8) To be entitled to support services from the Department of Social Welfare and Development and local government units;
(9) To be entitled to all legal remedies and support as provided for under the Family Code;
(10) To be informed of the rights and the services available to victims of offenses including the right to apply for a protection order;
(11) To full and timely restitution as provided in law;
(12) To proceedings that are free from unreasonable delay; and
(13) To be treated with fairness and with respect for the victim's dignity and privacy.

Section 41. Responsibilities of the Court. - For the protection of the rights of the child in the conflict with the law, the court shall have the following responsibilities:

(1) To monitor the status of a child whose case is pending in its court placed in a youth detention center or other institution during the pendency of the child's case;
(2) To receive and investigate complaints concerning violations of the rights of the child whose case is pending on its court;
(3) To require all professionals working for the welfare of the child, such as barangay captains, teachers, social workers, medical professionals, and law enforcers, to render regular monthly reports to the court.
(4) To order access to adequate services for rehabilitation, counseling and other forms of reintegration for the child;
(5) To ensure that the child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child, and that such views be accorded due weight in accordance with the developmental age and maturity of the child;
(6) To ensure that the child, either directly or through a representative , is provided the opportunity to be heard in all proceedings affecting such child;
(7) To ensure communication at all times between the judge and the child;
(8) To ensure that the child sits with close family members of the child's choice during the court proceedings;
(9) To ensure that the child can communicate freely with counsel at all times;
(10) To ensure that the child is informed in age-appropriate language of all stages of the judicial proceeding affecting such child;
(11) To ensure that a child placed in a Youth Detention Home or Youth Rehabilitation Center or in any child facility be given appropriate medical examination in order to determine and put on record any evidence of ill-treatment; to identify any physical or mental condition requiring medical attention; and thereafter make sure that child is provided by adequate treatment and medical attention;
(12) To insure that a child is informed as soon as possible of the death, serious illness or injury of any immediate family member and be allowed to visit the ill family member or attend the funeral, when appropriate and advisable;
(13) To ensure if a child dies during the pendency of the case or within six (6) months of release, an independent inquiry is conducted on the circumstances of the death and a report thereof, including the child's death certificate, be made available to the child's mother or father , guardian, custodian or nearest relative;
(14) When appropriate and advisable, to allow the child temporarily leave the detention home or rehabilitation center by means of an "out-on-pass" order to attend special family occasions such as Christmas and New Year celebrations. The "out-on-pass" order shall contain reasonable restrictions to ensure safety, security and timely return to detention as may be determined by the court;
(15) To allow at all times, and from the moment of initial contact, any member of the family or the guardian of the child to visit the child, unless prejudicial to the latter's best interest;
(16) To allow the appointment of a Guardian Ad Litem if available and advisable, to enable the child to raise concerns and complaints without fear or retribution; and
(17) To undertake all other appropriate measures to ensure the promotion of the best interest of the child and the child's eventual reintegration in society.

Section 42. Determination of the Bests Interests of the Child. - The following factors may be considered in determining the best interests of a child in conflict with the law: the child's age and sex, the child's mental and physical health, the mental and physical health of the parents, their lifestyle and other social factors; the emotional ties between the parents and the child, the ability of the parents to provide the child with food, shelter, clothing and medical care; the established living pattern for the child concerning school, home, community and religious institution, quality of schooling, the existence of other relatives who may be in a better position to be with the child and the child's relationship with these relatives; the child's background, maturity and level of understanding, sexual lifestyle and any other characteristics and needs of the child that the court may deem relevant.

Section 43. Arraignment and Plea. - The provisions of Rules 116 and 117 of the Revised Rules of Criminal Procedure shall apply to the arraignment of the child in the conflict with the law. The arraignment shall be scheduled within three (3) days from the date of receipt of the complaint or information by the court, unless a shorter period is provided for by law.

In case the child is not assisted by a private counsel, the court shall immediately appoint its Public Attorney as the child's counsel de oficio.

Arraignment shall be held in chambers and conducted by the judge by furnishing the child and counsel a copy of the complaint or information, reading the same in a language or dialect known to and understand by the child, explaining the nature and consequences of a plea of guilty or not guilty and asking the child's plea.

Section 44. Pre-trial. - The provisions of Rule 118 of the Revised Rules of Criminal Procedure shall govern the pre-trial of the child in conflict with the law.

Agreements or admissions made during the pre-trial conference shall be in writing and signed by the child, the mother, the father or duly appointed guardian, and counsel; otherwise, the agreements or admissions shall not be admissible against the child.

Whenever possible and practicable, the court shall explore all possibilities of settlement of the case, except its criminal aspects. Plea bargaining shall be resorted to only as a last measure when it shall serve the best interest of the child and the demands of truth and restorative justice.

Section 45. Trial. - All hearings shall be conducted in am manner conductive to the best interest of the child and in an environment that will allow the child to participate fully and freely in accordance with the Rule on Examination of a Child Witness.

Section 46. Guiding Principles in Judging the Child. - Subject to the provisions of the Revised Penal Code, as amended, and other special laws, the judgment against a child in conflict with the law shall be guided by the following principles:

(1) The judgment shall be in proportion to the gravity of the offense, and shall consider the circumstances and the best interest of the child, the rights of the victim, and the needs of society in line with the demands of balanced and restorative justice.
(2) Restrictions on the personal liberty of the child shall be limited to the minimum. Where discretion is given by the law to the judge whether the penalty to be imposed is fine or imprisonment, the imposition of fine should be proffered as the more appropriate penalty.
(3) No corporal punishment shall be imposed.
(4) In case of the presence of any exculpatory evidence or doubt in the
prosecution's evidence, the doubt shall be resolved In favor of the child.

Section 47. Promulgation of Sentence. - If. After the trial, the court should find the child in conflict with the law guilty beyond reasonable doubt of the offense charged, it shall impose the proper penalty, including any civil liability which the child may have incurred, and promulgate the sentence in accordance with Section 6, Rule 120 of the Revised Rules if Criminal Procedure.

Section 48. Automatic Suspension of Sentence and Disposition Orders. - If the child is found guilty of the offense charged, the court, instead of executing the judgments of conviction, shall palce the child in conflict with the law under suspended sentence, without need of application. Suspension of sentence can be availed of even if the child is already eighteen years (18) of age or more but not above twenty-one (21) years old, at the time of the pronouncement of guilt, without prejudice to the child's availing of other benefits such as probation, if qualified, or adjustment of penalty, in interest of justice.

The benefits of the suspended sentence shall not apply to a child in conflict with the law who has once enjoyed suspension of sentence, but shall nonetheless apply to one who is convicted of an offense punishable by reclusion perpetua or life imprisonment pursuant to the provisions of Rep. Act No. 9346 prohibiting the imposition of the death penalty and in lieu thereof, reclusion perpetua, and after application of the privileged mitigating circumstance of minority.

If the child in conflict with the law reaches eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with the provisions of Republic Act 9344, or to extend the suspended sentence for a maximum period of up to the time the child reaches twenty-one (21) years of age, or to order service of sentence.

Section 49. Disposition Conference. -In case of suspended sentence, the court shall set the case for disposition conference within fifteen (15) days from the promulgation of sentence with notice to the social worker of the court, the child and the parents or guardian ad litem of the child and the child's counsel , the victim and counsel. At the conference, the court shall proceed to determine and issue any or a combination of the following disposition measures best suited to the rehabilitation and welfare of the child:

(1) Care, guidance, and supervision of orders;
(2) Community service orders;
(3) Drug and alcohol treatment
(4) Participation in group counseling and similar activities; and
(5) Commitment to the Youth Rehabilitation Center of the Department of Social Welfare and Development or other centers for children in conflict with the law authorized by the Secretary of the Department of Social Welfare and Development.
Section 50. Compliance with the Disposition Measures. - The social worker assigned to the child shall monitor the compliance by the child in conflict with the law with the disposition measures and shall submit regularly to the court a status and progress report on the matter. The court may set a conference for the evaluation of such report in the presence, if practicable, of the child, the parents or guardian, counsel and other persons whose presence may be deemed necessary.

Section 51. Discharge of Child Subject of Disposition Measure. - Upon the recommendation of the social worker assigned to the child, the court shall, after due notice to all parties and hearing, dismiss the case against the child who has been issued disposition measures, even before reaching eighteen(18) years of age, and order a final discharge if it finds that the child has been rehabilitated and has shown the capability to be a useful member of the community.

If the court finds that the child (a) is incorrigible; or (b) has not shown the capability of becoming a useful member of society; or (c) has willfully failed to comply with the conditions of the disposition or rehabilitation program; (d) or the child's continued stay in the training institution is not in the child's best interest, the child shall be brought before the court for execution of the judgment.

The final release of the child shall not extinguish the civil liability. The parents and other persons exercising parental authority over the child shall be civilly liable for the injuries and damages caused by the acts or omissions of the child living in their company and under the parental authority subject to the appropriate defenses provided by law.

Section 52. Probation as an Alternative to Imprisonment. - The court may, after it shall have convicted and sentenced a child in conflict with the law and upon application at any time, place the child on probation if qualified, in lieu of service of sentence taking into account the best interest of the child.

Section 53. Credit in Service of Sentence. - The child in conflict with the law who has undergone preventive imprisonment shall be credited in the service of the sentence consisting of deprivation of liberty, with the full time during which the child has undergone preventive imprisonment, if the child agrees voluntarily in writing to abide by the same or similar disciplinary rules imposed upon convicted prisoners, except in any of the following cases:

(1) When the child is a recidivist or has been convicted twice or more times of any crime; or
(2) When upon being summoned for execution of sentence, the child failed to surrender voluntarily.

A child who does not agree to the same disciplinary rules imposed upon convicted prisoners shall be credited in the service of the sentence with four-fifths of the time during which the child has undergone preventive imprisonment.

Whenever the child has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which the child may be sentenced and the case is not yet terminated, the child shall be released immediately without prejudice to the continuation of any on-going intervention program, and the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the child may be sentenced is destierro, the child shall be released after thirty (30) days of preventive imprisonment.

Any form of physical restraint imposed on the child in conflict with the law, including community service and commitment to a rehabilitation center, shall be considered preventive imprisonment.

Section 54. Confidentiality of Proceedings and Record. - All proceedings and records involving children in conflict with the law from initial contact until final disposition of the case by the court shall be considered privileged and confidential. The public may be excluded from the proceedings and pursuant to the provisions of Section 31 of the Rule on Examination of a Child Witness, the records shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceeding for any purpose whatsoever, except to determine if the child may have the sentence suspended under Section 38 of this Rule or if the child may be granted probation under the Probation Law, or to enforce the civil liability imposed in the criminal action.

The court shall employ other measures to protect confidentiality of proceedings including non-disclosure of records to the media, the maintenance of a separate police blotter for cases involving children in conflict with the law and the adoption of a system of coding to conceal material information, which lead to the child's identity. The records of children in conflict with the law shall not be used in subsequent proceedings or cases involving the same offender as an adult.

Section 55. Non-liability for Perjury or Concealment or Misrepresentation. - Any person who has been in conflict with the law as a child shall not be held guilty of perjury or of concealment or misrepresentation by reason of failure to acknowledge the case or recite any fact related thereto in response to any inquiry.

Section 56. Sealing of Records. - The court, motu proprio or on application of a person who has been adjudge a child in conflict with the law, or if still a minor, on motion of the parents or legal guardian, shall, upon notice to the prosecution and after hearing, order the sealing of the records of the case if it finds that two (2) years have elapsed since the final discharged of the child after suspension of sentence or probation, or from the date of the closure order and the child has no pending case of an offense or a crime involving moral turpitude.

Upon entry of the order, the case shall be treated as if it never occurred. All index references shall be deleted and in case of inquiry, the court, prosecution, law enforcement officers and all other offices and agencies that dealt with the case shall reply that no record exist with respect to the child concerned. Copies of the order shall be sent to these officials and agencies named in the order. Inspection of the sealed records thereafter may be permitted only by order of the court upon petition of the child who is the subject of the records or of other proper parties.

This procedure shall be without prejudice to the rule on destruction of video or audio tapes under Section 31 of the Rule on the Examination of Child Witness.

Section 57. Prohibition of Labeling. - In the conduct of proceedings from initial contact with the child in conflict with the law to the final disposition of the case, there shall be no branding or labeling of the child as a young criminal, juvenile delinquent, prostitute, vagrant, or attaching to the child in any manner any derogatory description or name. Likewise, no discriminatory statements, conduct and practices shall be allowed, particularly with respect to the child's social or economic status, physical or mental disability or ethnic origin.

Section 58. Contempt Powers. - A person who directly or indirectly disobeys any order of the court or obstruct or interferes with its proceedings or the enforcement of its orders issued under this Rule shall be liable for contempt of court.

Section 59. Effectivity. - This Rule as revised shall take effect on December 1, 2009 after its publication in two (2) newspapers of general circulation not later than November 27, 2009.