see - MIRIAM: PH MAY CANCEL PASSPORTS UNDER TREATY LAW | Miriam Defensor Santiago | News
"x x x.
Under the 2005 United Nations Convention Against Corruption (UNCAC) and the 1980 Vienna Convention on Law of Treaties, the Philippines is obliged to cancel the passport of senators and representatives charged with plunder by the NBI before the Ombudsman.
Let us assume for the sake of argument that there is a conflict between, on the one hand, a treaty to which the Philippines is a party; and on the other hand, a Philippine law. The conflict is resolved by the Philippine Constitution, which provides that the Philippines adopts the generally accepted principles of international law as part of the law of the land. This is because the phrase “part of the law of the land” means that a treaty to which the Philippines is a party should be applied as if it were a law passed by Congress.
As provided by the UNCAC, Art. 30, para. 3, party-states are obliged to maximize the effectiveness of law enforcement measures relating to corruption. The UNCAC preamble – considered to be an aid in the interpretation of the substantive provisions of the treaty – is premised on the need to stop corruption, particularly cases “that involve vast quantities of assets, which may constitute a substantial proportion of the resources of States, and that threaten the political stability and sustainable development of those States. The plunder cases undergoing preliminary investigation involve vast quantities of assets, including P10 billion.
In the interest of national security, the state is not immobilized by its own domestic law to allow persons in interest to morph into fugitives from justice before taking what could be a futile action. By analogy, in international law, the early cancellation of a passport by government, is an act of preemptive self-defense. You don’t wait for a shot to be fired before you press the trigger.
x x x."
Tuesday, October 29, 2013
Friday, October 25, 2013
see - The Pros and Cons of ADR Clauses
"x x x.
Read more: http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202624349257&In_Practice_The_Pros_and_Cons_of_ADR_Clauses#ixzz2iiuTzD3g
"x x x.
POTENTIAL DISADVANTAGES TO ARBITRATION
While arbitration agreements have long been allowed in California, many employers have elected not to implement arbitration agreements or have even abandoned their existing programs due to their experiences in arbitration.
- Increased trial costs: While arbitration costs can be roughly equal to or less than court litigation up to the point of trial, the balance frequently tips the other way once the parties are trying their claims. Particularly in California, where most arbitrators allow wide latitude in pre-trial litigation, such as motions. Experienced employment law arbitrators charge as much as $5,000-$10,000 per day. In California, employers generally must pay the entire cost of the arbitration after the initial filing fee which means a 10-day trial could cost a company $100,000 just for the arbitrator's trial time. That does not include the company's attorneys' fees, the additional amount charged by the arbitrator for review time during trial, or the time he takes to write-up the final decision or deal with any other post-hearing briefs.
- Settlement floor due to arbitrator costs: In an added twist to the "cost of defense" argument plaintiffs' attorneys often make in negotiations, they may try to convince the company that it is going to spend tens of thousands of dollars on just the arbitrator alone, and therefore, a settlement for anything less than that amount makes economic sense. They may try to use that increased cost to justify higher settlement demands, particularly in otherwise low dollar cases.
- Arbitrators often act like mediators looking for the happy medium: Most arbitrators also work as mediators, and it can seem that arbitrators never quite fully escape their mediator mentality (which is also a reason why some programs allow for retired judges only). Rather than make definitive decisions that one party is right and the other is wrong, arbitrators may attempt to "split the difference." This may mean giving a party some, but not all the discovery they seek, or awarding the plaintiff a small monetary recovery even if the proper application of the law should have produced a full defense verdict. It is also commonly thought that arbitrators are much less likely to award summary judgment, perhaps because they do not mind working the case.
- Generally more limited discovery: Depending on the arbitrator, the time to conduct discovery may be limited along with the amount of discovery. Discovery may also prove frustrating in arbitrations that require significant third party involvement because subpoenas for documents and witnesses can be more difficult to obtain and enforce.
POTENTIAL ADVANTAGES TO ARBITRATION
Despite the potential downsides, arbitration programs can provide a far more favorable litigation forum for many employers. Even apart from a class action waiver, arbitration agreements can bring numerous advantages.
- Arbitrators are better than juries: Conventional wisdom dictates that arbitrators are less likely than juries to be swayed by sympathies or facts that are irrelevant to the legal claims. Arbitrators are also thought to be less influenced by the "little employee vs. big company that won't miss the money" dynamic, and thus, able to award zero to an employee when warranted or at least award less in emotional distress or punitive damages than a jury would award. This reputation tends to lower the settlement value of lawsuits in arbitration, particularly in higher risk cases that could draw a large jury verdict or cases where the employee's lawyer took the case based on jury appeal of the plaintiff before disclosure of the arbitration agreement.
- Confidentiality: Although arbitration awards are public if they are confirmed in court, the arbitration hearings and sessions are generally confidential, which means employers need not be as concerned about salacious allegations or other information disclosed in the proceedings being an accessible part of the public record.
- Ability to choose arbitrator: Parties can choose from among panels of arbitrators presented by the arbitration agency, and in many cases, mutually select an arbitrator. Although an employer may not get its first choice of arbitrators, it can use the selection process to avoid arbitrators that it believes are particularly problematic.
- Speed and cost: Arbitrators are generally flexible about permitting the arbitration to proceed either as quickly or as slowly as the parties want it to proceed. Also, arbitrators often handle discovery issues and other disputes informally through conference calls, which can provide a considerable cost savings and more immediate relief. Arbitrators can often be available to hear issues and take action after little more than an email from a party, in contrast with the delay that can often mar efforts to get before a judge in court — particularly as court budgets (and staff) continue to shrink in California's state and federal courts. Most conferences and even motion hearings are conducted via telephone. Thus, whereas a court appearance may result in hours of fees for a lawyer traveling to or waiting in court, the same appearance may just take minutes with an arbitrator.
- x xx."
Read more: http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202624349257&In_Practice_The_Pros_and_Cons_of_ADR_Clauses#ixzz2iiuTzD3g
Thursday, October 24, 2013
Wednesday, October 23, 2013
see - G.R. No. 136051
"x x x.
"x x x.
In order to resolve this issue, we must determine the extent of a person’s right against self-incrimination. A person’s right against self-incrimination is enshrined in Section 17, Article III of the 1987 Constitution which reads: “No person shall be compelled to be a witness against himself.”
The right against self-incrimination is accorded to every person who gives evidence, whether voluntary or under compulsion of subpoena, in any civil, criminal or administrative proceeding. The right is not to be compelled to be a witness against himself. It secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on the strength of the constitutional guaranty.
As to an accused in a criminal case, it is settled that he can refuse outright to take the stand as a witness. In People v. Ayson, this Court clarified the rights of an accused in the matter of giving testimony or refusing to do so. We said:
An accused “occupies a different tier of protection from an ordinary witness.” Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others—
1) to be exempt from being a witness against himself, and
2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him.
The right of the defendant in a criminal case “to be exempt from being a witness against himself” signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words – unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him – the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. Xx x (Underscoring supplied.)
It is clear, therefore, that only an accused in a criminal case can refuse to take the witness stand. The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded. This Court applied the exception – a party who is not an accused in a criminal case is allowed not to take the witness stand – in administrative cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding. It is likewise the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls.
In the Ayson case, it is evident that the Court treats a party in a civil case as an ordinary witness, who can invoke the right against self-incrimination only when the incriminating question is propounded. Thus, for a party in a civil case to possess the right to refuse to take the witness stand, the civil case must also partake of the nature of a criminal proceeding.
In the present controversy, the case is civil it being a suit for Annulment, Specific Performance with Damages. In order for petitioners to exercise the right to refuse to take the witness stand and to give their depositions, the case must partake of the nature of a criminal proceeding. The case on hand certainly cannot be categorized as such. The fact that there are two criminal cases pending which are allegedly based on the same set of facts as that of the civil case will not give them the right to refuse to take the witness stand and to give their depositions. They are not facing criminal charges in the civil case. Like an ordinary witness, they can invoke the right against self-incrimination only when the incriminating question is actually asked of them. Only if and when incriminating questions are thrown their way can they refuse to answer on the ground of their right against self-incrimination.
x x x."
see - G.R. No. 169042
"x x x.
"x x x.
These cited cases, however, did not take place in the same setting as the present case as they were actions by the public prosecutor, not by the Ombudsman. In the present case, the Ombudsman granted the respondents immunity from prosecution pursuant to RA No. 6770 which specifically empowers the Ombudsman to grant immunity “in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives.” The pertinent provision – Section 17 of this law – provides:
Sec. 17. Immunities. – x x x.
Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office. [emphasis ours]
To briefly outline the rationale for this provision, among the most important powers of the State is the power to compel testimony from its residents; this power enables the government to secure vital information necessary to carry out its myriad functions. This power though is not absolute. The constitutionally-enshrined right against compulsory self-incrimination is a leading exception. The state’s power to compel testimony and the production of a person’s private books and papers run against a solid constitutional wall when the person under compulsion is himself sought to be penalized. In balancing between state interests and individual rights in this situation, the principles of free government favor the individual to whom the state must yield.
A state response to the constitutional exception to its vast powers, especially in the field of ordinary criminal prosecution and in law enforcement and administration, is the use of an immunity statute. Immunity statutes seek a rational accommodation between the imperatives of an individual’s constitutional right against self-incrimination (considered the fount from which all statutes granting immunity emanate) and the legitimate governmental interest in securing testimony. By voluntarily offering to give information on the commission of a crime and to testify against the culprits, a person opens himself to investigation and prosecution if he himself had participated in the criminal act. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness can be given immunity from prosecution. In this manner, the state interest is satisfied while respecting the individual’s constitutional right against self-incrimination.
III. Nature of the power to grant immunity
The power to grant immunity from prosecution is essentially a legislative prerogative. The exclusive power of Congress to define crimes and their nature and to provide for their punishment concomitantly carries the power to immunize certain persons from prosecution to facilitate the attainment of state interests, among them, the solution and prosecution of crimes with high political, social and economic impact. In the exercise of this power, Congress possesses broad discretion and can lay down the conditions and the extent of the immunity to be granted.
Early on, legislations granting immunity from prosecution were few. However, their number escalated with the increase of the need to secure vital information in the course and for purposes of prosecution. These statutes considered not only the importance of the testimony sought, but also the unique character of some offenses and of some situations where the criminal participants themselves are in the best position to give useful testimony. RA No. 6770 or the Ombudsman Act of 1989 was formulated along these lines and reasoning with the vision of making the Ombudsman the protector of the people against inept, abusive and corrupt government officers and employees.Congress saw it fit to grant the Ombudsman the power to directly confer immunity to enable his office to effectively carry out its constitutional and statutory mandate of ensuring effective accountability in the public service.
IV. Considerations in the grant of immunity
While the legislature is the source of the power to grant immunity, the authority to implement is lodged elsewhere. The authority to choose the individual to whom immunity would be granted is a constituent part of the process and is essentially an executive function. Mapa, Jr. v. Sandiganbayan is instructive on this point:
The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to forego prosecution of a person for government to achieve a higher objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate power should be exercised, who should be extended the privilege, the timing of its grant, are questions addressed solely to the sound judgment of the prosecution. The power to prosecute includes the right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute. In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense. [emphasis ours]
RA No. 6770 fully recognizes this prosecutory prerogative by empowering the Ombudsman to grant immunity, subject to “such terms and conditions” as he may determine. The only textual limitation imposed by law on this authority is the need to take “into account the pertinent provisions of the Rules of Court,” – i.e., Section 17, Rule 119 of the Rules of Court. This provision requires that:
(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.
This Rule is itself unique as, without detracting from the executive nature of the power to prosecute and the power to grant immunity, it clarifies that in cases already filed with the courts, the prosecution merely makes a proposal and initiates the process of granting immunity to an accused-witness in order to utilize him as a witness against his co-accused. As we explained in Webb v. De Leon in the context of the Witness Protection, Security and Benefit Act:
The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. [emphasis ours]
Thus, it is the trial court that determines whether the prosecution’s preliminary assessment of the accused-witness’ qualifications to be a state witness satisfies the procedural norms. This relationship is in reality a symbiotic one as the trial court, by the very nature of its role in the administration of justice, largely exercises its prerogative based on the prosecutor’s findings and evaluation. On this point, the Court’s pronouncement in the 1918 case of United States v. Abanzado is still very much relevant:
A trial judge cannot be expected or required to inform himself with absolute certainty at the very outset of the trial as to everything which may be developed in the course of the trial in regard to the guilty participation of the accused in the commission of the crime charged in the complaint. If that were practicable or possible there would be little need for the formality of a trial. He must rely in large part upon the suggestions and the information furnished by the prosecuting officer in coming to his conclusions as to the "necessity for the testimony of the accused whose discharge is requested"; as to the availability or nonavailability of other direct or corroborative evidence; as to which of the accused is "most guilty," and the like.
Notably, this cited case also observes that the Rules-provided guidelines are mere express declarations of the conditions which the courts ought to have in mind in exercising their sound discretion in granting the prosecution’s motion for the discharge of an accused. In other words, these guidelines are necessarily implied in the discretion granted to the courts.
RA No. 6770 recognizes that these same principles should apply when the Ombudsman directly grants immunity to a witness. The same consideration – to achieve the greater and higher purpose of securing the conviction of the most guilty and the greatest number among the accused – is involved whether the grant is secured by the public prosecutor with active court intervention, or by the Ombudsman. If there is any distinction at all between the public prosecutor and the Ombudsman in this endeavor, it is in the specificity of and the higher priority given by law to the Ombudsman’s purpose and objective – to focus on offenses committed by public officers and employees to ensure accountability in the public service. This accounts for the Ombudsman’s unique power to grant immunity by itself and even prior to the filing of information in court, a power that the public prosecutor himself generally does not enjoy.
V. Extent of judicial review of a bestowed immunity
An immunity statute does not, and cannot, rule out a review by this Court of the Ombudsman’s exercise of discretion. Like all other officials under our constitutional scheme of government, all their acts must adhere to the Constitution. The parameters of our review, however, are narrow. In the first place, what we review are executive acts of a constitutionally independent Ombudsman. Also, we undertake the review given the underlying reality that this Court is not a trier of facts. Since the determination of the requirements under Section 17, Rule 119 of the Rules of Court is highly factual in nature, the Court must, thus, generally defer to the judgment of the Ombudsman who is in a better position (than the Sandiganbayan or the defense) to know the relative strength and/or weakness of the evidence presently in his possession and the kind, tenor and source of testimony he needs to enable him to prove his case. It should not be forgotten, too, that the grant of immunity effectively but conditionally results in the extinction of the criminal liability the accused-witnesses might have incurred, as defined in the terms of the grant. This point is no less important as the grant directly affects the individual and enforces his right against self-incrimination. These dynamics should constantly remind us that we must tread softly, but not any less critically, in our review of the Ombudsman’s grant of immunity.
From the point of view of the Court’s own operations, we are circumscribed by the nature of the review powers granted to us under the Constitution and the Rules of Court. We rule on the basis of a petition for certiorari under Rule 65 and address mainly the Ombudsman’s exercise of discretion. Our room for intervention only occurs when a clear and grave abuse of the exercise of discretion is shown. Necessarily, this limitation similarly reflects on the petitioner who comes to us on the allegation of grave abuse of discretion; the petitioner himself is bound to clearly and convincingly establish that the Ombudsman gravely abused his discretion in granting immunity in order to fully establish his case.
As a last observation, we note the unique wording of the grant of the power of immunity to the Ombudsman. It is not without significance that the law encompassed (and appears to have pointedly not separated) the consideration of Section 17, Rule 119 of the Rules of Court within the broader context of “such terms and conditions as the Ombudsman may determine.” This deliberate statutory wording, to our mind, indicates the intent to define the role of Section 17, Rule 119 in the Ombudsman’s exercise of discretion. It suggests a broad grant of discretion that allows the Ombudsman’s consideration of factors other than those outlined under Section 17, Rule 119; the wording creates the opening for the invocation, when proper, of the constitutional and statutory intents behind the establishment of the Ombudsman.
Based on these considerations, we shall now proceed to determine whether the petitioner has clearly and convincingly shown that the Ombudsman gravely abused his discretion in granting immunity to the respondents.
x x x."
" PD No. 749 (Granting Immunity from Prosecution to Givers of Bribes and Other Gifts and to their Accomplices in Bribery and Other Graft Cases against Public Officers, July 18, 1975); PD No. 1731 (Providing for Rewards and Incentives to Government Witnesses and Informants and other Purposes, October 8, 1980); PD No. 1732 (Providing Immunity from Criminal Prosecution to Government Witnesses and for other Purposes, October 8, 1980); PD No. 1886 (creating the Agrava Fact-Finding Board, October 22, 1983); 1987 Constitution, Article XIII, Section 18(8) (empowering the Commission on Human Rights to grant immunity); RA No. 6646 (An Act Introducing Additional Reforms in the Electoral System and for other Purposes, January 5, 1988); Executive Order No. 14, August 18, 1986; RA No. 6770 (Ombudsman Act of 1989, November 17, 1989); RA No. 6981 (Witness Protection, Security and Benefit Act, April 24, 1991); RA No. 7916 (The Special Economic Zone Act of 1995, July 25, 1994); RA No. 9165 (Comprehensive Dangerous Drugs Act of 2002, June 7, 2002); RA No. 9416 (An Act Declaring as Unlawful Any Form of Cheating in Civil Service Examinations, etc., March 25, 2007); and RA No. 9485 (Anti-Red Tape Act of 2007, June 2, 2007)."
-- Cited as Footnote # 59 in the 2011 case of:
"ERDITO QUARTO, Petitioner, - versus - THE HONORABLE OMBUDSMAN SIMEON MARCELO, CHIEF SPECIAL PROSECUTOR DENNIS VILLA IGNACIO, LUISITO M. TABLAN, RAUL B. BORILLO, and LUIS A. GAYYA,
Respondents", G.R. No. 169042; Promulgated: October 5, 2011
Tuesday, October 22, 2013
MEL STA. MARIA | Are there criminal consequences to Freddie Aguilar's May-December affair? - InterAksyon.com
see - MEL STA. MARIA | Are there criminal consequences to Freddie Aguilar's May-December affair? - InterAksyon.com
"x x x.
"x x x.
Even if a girl above 12 but below 18 years of age were to fully consent to sexual intercourse with an older man, the latter can still be charged for criminal seduction under Article 338 of the Revised Penal Code if it is proven that his acts in enticing the girl were part of a deceitful strategy. This would hold even if the girl's parents consented to the relationship. And even if the young girl were to declare unequivocally that her love for the older man is genuine.
That declaration is not exculpatory. In fact, that is the essence of criminal seduction. A girl may not know that her feeling, authentic though it may be, may well be just the by-product of deceitful manipulation of her older boyfriend. This is nothing less than sexual abuse and exploitation of minors. If found guilty, the seducer will suffer a penalty of arresto mayor - a jail term of one month and one day to six months. Civil damages amounting to millions of pesos can also be ordered to answer for the emotional and physical damage suffered by the child.
Talking about exploitation of minors, Section 10 (b) of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Abuse, Exploitation and Discrimination Act", provides that child abuse and exploitation can also be committed by a person "who shall keep or have in his company a minor, twelve (12) years or under or who is ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places."
A private place could be the house of the exploiter or abuser. A public place could be a club, a bar, a movie house, the mall or, as the law said, a beer joint. The abuser or exploiter shall "suffer the penalty of prision mayor in its maximum period." This means jail term from 10 years and 1 day to 12 years. He shall also be fined an amount of not less than P50,000. Civil damages can also be ordered to pay the child. That amount can reach up to millions of pesos depending on the damage to the child, both physically and emotionally.
The law will however "not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty." However, if the parents are the ones who induce, deliver or offer the child to the culprit, they shall suffer imprisonment from 8 years and 1 day to 10 years. There is no question that, under our Family Code, their parental authority can be terminated.
Not only that, Section 6 of Republic Act 7610 also provides that if a "person, not a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse," this can be considered indicative of an attempt to have the child prostituted or subjected to sexual abuse.
x x x."