Friday, December 30, 2016

Duterte thinks he is our infallible monarch and anointed Messiah

Duterte castigates the sovereign Filipino people, "It's not a problem actually. If you cannot understand me...The entire Filipino nation, kayo ang may problema." 

As head of state and government Duterte hallucinates that he is our infallible monarch.

His totalitarian belief is that it is the duty of the sovereign Filipino people to adjust to him, to understand him, to serve him, and to please him as the anointed Messiah.

To hell with the constitutional doctrine that “the Philippines is a democratic and republican State”, that “sovereignty resides in the people”, and that “all governmental authority emanates from them”. (Section 1, Article II, 1987 Constitution).

To hell, too, with the constitutional doctrine that the prime duty of the Government is to serve and protect the people”. (Section 4, Id.). 

Thursday, December 29, 2016

Immunity today from suit of the President is a local superstition. - Sen. Rene Saguisag

"x x x.

Immunity today from suit of the President is a local superstition. It might have been true when the Royal Marcos family was in power but not anymore.

No one should be above the law in a democracy.

Kennedy, Nixon and Clinton were sued. Their claim of immunity was shot down by the courts.

JFK had to settle a suit filed by Mississipi State Senator Hugh Lee Bailey, for $17,500; Nixon paid Fitzgerald, $142,000, to buy peace; and Clinton settled Paula Flowers' suit for $850,000.

If Prez Digong were sued for rape, he could raise the defense of timely consent but not "I can't be sued; I am Prez. I am busy." Sexual abuse is not in the job description of a President.

If a busy U.S. Prez, with national and international burdens, can find the time to attend to suit, why not a local Prez?

x x x."

From an email of Sen. Rene Saguisag to Philippine Star columnist Federico Pascual which the latter shared to Atty. Manuel Laserna Jr. on December 29, 2016.

Rethink presidential immunity from suit - Federico D. Pascual -

See - Home -

"x x x.

IT IS TIME the present Supreme Court revisited the issue of immunity from suit of the president – without reference to President Duterte.

The current debate is centered, unfortunately, around the petition filed with the tribunal by Sen. Leila de Lima for a writ of habeas data against President Duterte claiming violations of law protecting women’s rights.

We say “unfortunately,” because the question has taken on undue political color in light of the President’s and the senator’s seeming mutual loathing. We raise our small voice to plead that the issue of presidential immunity be reexamined separately from the De Lima question.

If a new petition is needed for a fresh legal perspective, we beg independent lawyers’ groups, possibly joined by law deans, to put together a bid to revisit the question. De Lima and even the incumbent president, should be mere footnotes, if ever.

Upon filing of a proper petition, Supreme Court may go back to the Constitution, upon which bedrock all doctrine and practice should be based. A practice that has been wrong from the start, for having been based on political or whatever extraneous reasons, must not be carried on as right.

Without much reflection, many people seem to assume that the President of the Philippines is or should be immune from suit — as decreed by then president Ferdinand Marcos in the 1973 Constitution that he wrote for his own interest.

The same immunity-from-suit provision was not in the older 1935 Constitution. The self-serving section was a mere invention of the Dictator for obvious reasons. Budding dictators may be tempted to invoke it.

Many of us who have grown tired of abuse of presidential prerogatives and entitlements find it significant that Section 15, Article VII, of the Marcos Constitution clothing the “incumbent President” (Marcos) with immunity was not carried over to the current Constitution.

Read Section 15, and laugh or weep: “The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution.”

The immunity provision was purposely dropped, or excluded, from the 1987 Constitution. With reason, because NO ONE — especially the President who is sworn to “preserve and defend its Constitution (and) execute its laws” — is above the law.

If presidential immunity were correct doctrine, all the cases of graft, human rights violations, etc., versus Ferdinand Marcos should have been thrown out without further discussion.

In the United States, from which we have copied many legal systems, the President – the most powerful person on earth – can be sued by his victims. But here, the Philippine president is allowed to hide behind a false immunity cover that most everyone is afraid to question.

Some lawyers tell us that although presidential immunity is not in the Constitution, it is honored in practice and by tradition. They also cite some jurisprudence and Supreme Court decisions that appear to justify it despite its being patently unjust and unconstitutional.

These post-1986 statutes and SC decisions incorrectly applying, adopting or respecting presidential immunity from suit are unconstitutional on the basis of the current 1987 Constitution. This grave error and injustice should be corrected immediately.

(First published in The Philippine STAR of December 29, 2016)

x x x."

Duterte will soon control the Supreme Court

See - Home -

"x x x.

Rody to name 12 of 15 SC justices

BY JUST WAITING, President Rodrigo Duterte will be able to appoint 12 of the 15 justices, or an 80-percent supermajority, of the Supreme Court during his term. There are now two empty seats, with 10 more vacancies that will occur during his six-year presidency.

Below are the incumbent 13 justices, their age, date of appointment, and date of retirement. In bold type are the 10 justices who will bow out upon reaching the retirement age of 70 during the Duterte presidency.

1. Chief Justice Maria Lourdes P. A. Sereno; age 56; appointed Aug. 13, 2010; retiring July 2, 2030.

2. Senior Associate Justice Antonio T. Carpio; 67; Oct. 26, 2001; Oct. 26, 2019.

3. Associate Justice Presbitero J. Velasco Jr.; 68; March 31, 2006; Aug. 8, 2018.

4. Associate Justice Teresita De Castro; 68; Dec. 3, 2007; Oct. 8, 2018.

5. Associate Justice Diosdado M. Peralta; 64; Jan. 14, 2009; March 27, 2022.

6. Associate Justice Lucas P. Bersamin; 67; April 3, 2009; Oct. 18, 2019.

7. Associate Justice Mariano C. del Castillo; 67; July 29, 2009; July 29, 2019.

8. Associate Justice Jose C. Mendoza; 69; Jan. 4, 2010; Aug. 13, 2017.

9. Associate Justice Bienvenido L. Reyes; 69; Aug. 20, 2011; July 6, 2017.

10. Associate Justice Estela Perlas-Bernabe; 64; Sept. 16, 2011; May 14, 2022.

11. Associate Justice Marvic Mario Victor F. Leonen; 53; Nov. 21, 2012; Dec. 29, 2032.

12. Associate Justice Francis H. Jardeleza; 67; Aug. 19, 2014; Sept. 26, 2019.

13. Associate Justice Alfredo Benjamin Caguioa; 57; Jan. 22, 2016; Sept. 30, 2029.

Two vacancies occurred this month with the retirement of Associate Justices Jose P. Perez(born Dec. 14, 1946) and Arturo D. Brion (born Dec. 29, 1946). The President will appoint their replacements from a short list to be submitted by the Judicial and Bar Council.

If the present setup is not disturbed, Chief Justice Sereno, who was appointed on Aug. 13, 2010, by then President Noynoy Aquino, will have the distinction of serving during three administrations – including the one after Duterte — by the time she retires in July 2030.

It would be interesting to watch how the three supposedly independent branches of government would check one another when President Duterte has 12 appointees in the Supreme Court – in addition to his supermajority in the House of Representatives and the Senate.

x x x."

Wednesday, December 28, 2016

How credible are the Operation Tokhang statistics?

See - (95) How credible are the Operation Tokhang... - Manuel Laserna Jr.

Bato has alleged the following Operation Tokhang accomplishments as of December 26, 2016:

(1) There were 1.8 million drug users and pushers based on the 2010 data by the Dangerous Drugs Board (DDB).

(Note however that Duterte uses the exaggerated figure of 4,000,000 drug suspects [not 1,800,000 as per official DDB statistics]).

(2) A total of 983,232 suspected pushers and users allegedly “surrendered”.

(3) A total of 42,543 were allegedly “arrested” between July and Dec. 27.

(4) A total of 2,157 were allegedly “killed” during police operations (i..e, killed because the suspects were “nanlaban” [the usual police script]).

(5) A total of 3,000 were victims of extrajudicial killings.

(6) A total of 890 kilograms of methamphetamine have been seized with a street value of around 6 billion pesos ($121 million dollars).

By way of a commentary, may I reproduce my post on December 19, which is relevant to the foregoing report of Bato, to wit:

“x x x.

There are so many vital questions that remain unanswered by the Duterte regime. Its obsessive-compulsive focus is "police operations". ---

Last July, Bato and his PNP communicators reported that under his Project "Tokhang" 120,038 individuals had surrendered: 112,902 drug users; 7,107 drug pushers (see ABS CBN news website).

To this day, the Duterte regime has failed or refused to report on the updated status of the following important matters;

(1) How many have been processed for "voluntary drug rehabilitation" in accredited private rehabilitation centers and in public DOH-supervised rehabilitation centers?

* What is their status?
* What financial assistance have been given to those confined in private centers?

(2) How many have been assisted by the DSWD in terms of "counselling and pro-poor socioeconomic benefits"?

(3) How many have been "trained for livelihood" purposes?

(4) How many have been referred to and assisted by the DOH for "physical and medical examination, hospitalization and provision for maintenance medicine".

(5) How many have been assisted by DepEd, CHED and TESDA to revive their "regular or vocational education"?

(6) How many have been referred to the DOJ for "criminal investigation and indictment"?

(7) How many have been provided "free legal aid by the PAO, IBP, and voluntary bar associations"?

(8) Has the regime coordinated with the Supreme Court on the status of their "pending criminal cases" in the trial courts and on how the adjudication thereof could be given top priority by the Judiciary, the DOJ, and the PAO (the three vital pillars of the criminal justice system)?

(9) How many have been "detained" and "under detention"?

* How many are "on bail"?
* What is the status of the trial of their cases?
* How many have been "convicted"?
* How many are on "probation"?

(10) What assistance from the UN, Asean, Caritas, and other world charitable and humanitarian institutions have been sought to support the needs of the surrenderers?

There are so many vital questions that remain unanswered by the Duterte regime. Its obsessive-compulsive focus is "police operations".

Aside from trite speeches of Duterte, which are notorious for "putang ina", "fuck you", "bullshit", and "go to hell" cusses, the Filipinos are not educated on the true state of the management of his (brutal, deadly and unconstitutional) war on drugs.

Its accomplishment so far: six thousand dead drug "suspects" (and counting).

X x x.”

Sunday, December 25, 2016

Killings in the PH spoil the beauty of Christmas | Opinion | GMA News Online

See - Killings spoil the beauty of Christmas | Opinion | GMA News Online

"x x x.

In his Christmas message, Catholic Bishops Conference of the Philippines president and Lingayen-Dagupan Archbishop Socrates Villegas said that Christmas is a feast of beauty. But the blood spilling in our streets and on sidewalks is "ugliness that come upon us.

The full text of Villegas' Christmas message:

Beloved People of God in Lingayen Dagupan,

x x x.

We have Christmas but there is blood spilling on our streets and sidewalks. We have Christmas and we party but there are now more than five thousand families mixing Christmas carols with their quiet tears because a loved one has been stricken down by a bullet. Their noche buena is bland and tasteless because the bitter taste of death is too strong to forget. There are Christmas carols in the air but there is blood by the garbage dump and even inside jails. There is a Christmas parol by the window at home but the unresolved murder at home outshines our Christmas lights.

This blood spilling is ugly because it is not the plan of God for His people. Murder is ugly. Extra judicial killing is ugly. Our land must flow with milk and honey (Ex.33:3) not with blood from violence and murder crying from the earth for justice (Gen.4:10).

Is the world becoming more and more an angry society? Like many other parts of the world, we vote our leaders not with diligent prudent reflection but from anger. Anger has become so common and ordinary that the culture of revenge is slowly enchaining us. Anger pushes us to pursue the illusion that we must kill in order to defend life.

Living in anger, we start to live in fear. We fear for our lives and our family's lives. We fear that the good name preserved for decades will be destroyed by calumny, malicious gossip and trumped up charges. We fear and in fear, we allow ourselves to be silenced. We bury our heads in the sand and pretend that all is well. Christmas brings us pain not just joy. Let not the Christmas feasting become like morphine to numb us and make us forget.

Fear and anger are indeed strong human feelings but greater than anger and fear is HOPE. Christmas is not a story of anger and fear. Anger and fear came from Herod not from Christ. Christ brings hope; Herod sows anger and fear. Christmas is Christ not Herod. Christmas is hope, hope stronger than fear and anger.

Christmas looks at our frightened eyes and, in an eyeball to eyeball duel, knocks down all our fears with Christ's light of hope. Christmas looks into the eyes of our hatred and rage to melt that madness with tenderness and compassion. The light of Christmas shines on our country, now plagued by a culture of revenge, to heal all raging hearts with the balm of God's kindness. This country cannot reach greatness under a blanket of fear and anger but under a mantle of hope and love.

Christmas is hope. We have hope. Christmas is the time to renew our faith in God and faith in the greatness of the Filipino.

Do not let anger kill you. Do not let anger push you to nod in agreement with murder.

Do not let fear intimidate you. There is no peace for the coward. There is no happiness for the lazy.

For the beauty that Christmas restores to us, we thank the Lord.

For the ugliness of anger and fright that we have brought to the world, we stand up in battle and bring hope to our brothers and sisters.

For the hope that the country greatly needs, let us take the challenge.

Let the rivers of hope flow. Let the lighthouses in the dark night shine out and guide. May we all be in that river! May we all be that lighthouse!

Merry Christmas my beloved ones!

From the Cathedral of Saint John the Evangelist, Dagupan City, December 25, 201

Archbishop of Lingayen Dagupan

x x x."

- See more at:

JURIST - Federal Court rules college's mandatory drug test policy unconstitutional

See - JURIST - Federal Court rules college's mandatory drug test policy unconstitutional

"x x x.

Federal Court rules college's mandatory drug test policy unconstitutional
Friday 23 December 2016 at 11:10 AM ET by Taylor Isaac
[JURIST] The US Court of Appeals for the Eighth Circuit [official website] on Thursday ruled [opinion, PDF] that State Technical College of Missouri [official website] cannot continue mandatory drug tests for all students. After preliminary injunctions and a permanent injunction were reversed, an en banc panel of the Eighth Circuit determined that such a universal and mandatory policy is unconstitutional and affirmed the district court's grant of a permanent and prospective injunction. However, the panel also affirmed the district court ruling that a program-by-program analysis was appropriate, permitting the college to require drug tests in five current programs that are identified as safety-sensitive programs. The class action lawsuit against the school was filed in 2011 by the American Civil Liberties Union (ACLU) and their Missouri branch [official websites]. In a statement [press release] after the decision, one attorney stated, "Our victory should serve as a warning to colleges and universities across the country: mandatory, suspicionless drug testing of the entire student body is inefficient, ineffective, and grossly unconstitutional."

Similar universal, mandatory drug policies in other atmospheres have come under fire in recent years as well. In December 2014 the US Court of Appeals for the Eleventh Circuit [official website] ruled that a Florida law mandating welfare applicants undergo drug tests before receiving benefits is unconstitutional [JURIST report]. In August 2013 North Carolina Governor Pat McCrory [official website] vetoed a bill [JURIST report] that would have mandated drug testing for some public benefit applicants in the state. In April 2012 a judge for the the US District Court for the Southern District of Florida [official website] blocked an executive order [JURIST report] that mandates Florida state government agencies provide pre-employment drug screening for all prospective employees and provide for random drug testing of all current agency employees regardless of classification. In March 2012 the ACLU of Pennsylvania [official website] sued a school district [JURIST report] in the state on behalf of an 11-year-old girl regarding a school policy that required students who participate in extracurricular activities to submit to random, suspicionless drug tests.

x x x."

Words of caution from Albay Rep. Edcel Lagman re: Duterte dictatorship

(1)   “It is dangerous to proceed in amending the Constitution either by constituent assembly or constitutional convention when we have a President who wants the legitimation of dictatorial powers.”

(2)  “…These moves for charter change should be stopped to assure the public that congressional and judicial safeguards against martial law would be preserved”.

(3)  “All initiatives to amend the Constitution must be consigned to the backburner to assure that the dismantling of congressional and judicial safeguards on the presidential declaration of martial law will not be realized.”

(4)  “…Duterte’s statement for a one-man rule through martial law revealed his authoritarian tendencies.”

(5)  “President Duterte’s unequivocal pronouncement for a return to a president’s absolute and sole authority to declare martial law and suspend the privilege of the writ of habeas corpus betrays his authoritarian designs which must never be constitutionalized.”

(6)   “…The power of Congress to revoke a martial law declaration and suspension of the privilege of the writ of habeas corpus, as well as the judicial review by the Supreme Court on the basis of martial law, should not be clipped from the 1987 Constitution”.

(7)   “The power of Congress to revoke a presidential declaration of martial law and the suspension of the privilege of the writ of habeas corpus as well as the jurisdiction of the Supreme Court to review the factual basis of such declarations were mandated in the 1987 Constitution to preclude abuses curtailing civil and political rights like the unrestrained imposition of martial law without time limit.”

Saturday, December 24, 2016

To Duterte and Bato: The first duty of a police officer is to prevent crime.

"The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to or create crime for the sole purpose of prosecuting and punishing it. * * (I)t is unconscionable, contrary to public policy * * *."

- Judge Walter Sanborn 
Butts v. United States, 273 F. 35, 18 A.L.R. 143 (8 Cir. 1921)

Friday, December 23, 2016

It is sad to note that Duterte has infected his Cabinet with the virus of arrogance, pride and narcissism.

Duterte's SolGen Calida the other day challenged De Lima:

(1) "...I challenge her to reveal her grade in criminal law during the Bar exam."

(2) "If her grade is higher than mine, I will resign as Solicitor General. But if my grade is higher than hers, she should resign as Senator of the Philippines."

Sometimes, out of sheer irritation, I am tempted to violate my policy of humility and slap the face of SolGen Calida with my general weighted average of 90.95% in the 1984 bar exam and an almost perfect grade of 98% in criminal law in that bar exam. (The 1984 bar exam was the first time in PH history where no UP Law bar examinee landed in the top ten, including Chief Justice Sereno, who took the bar exam that year [as the UP Law class valedictorian]).

Calida should know the virtues of silence and humility in public service. He occupies an honorable role in the legal system as the counsel for the State and as the tribune of the people. He should act with modesty and professionalism.

It is sad to note that Duterte has infected his Cabinet with the virus of arrogance, pride and narcissism.

It is wrong for Calida (and many Filipinos, in general) to use a public official's bar exams grade to measure his competence and integrity.

(Marcos was was the 1939 bar topnotcher. Fifty years later [1989] he died in shame for his brutality, tyranny and corruption).

It is wrong for any lawyer to brag about his law school honors and grades and his bar exams grade to impress people.

For a lawyer, the ethical guide is whether or not he is doing his moral and professional duty with devotion "to do justice one case at a time", regardless of the monetary consideration and the sacrifices.

When a lawyer appears in court to defend an accused, the judge does not ask him his bar exams grade. It is irrelevant to a trial lawyer's professionalism and competence. A lawyer does not need to be a bar topnotcher to contribute to the promotion of the the rule of law and the administration of justice.

Thursday, December 22, 2016

Supreme Court upholds SEC foreign ownership rules

See - Supreme Court upholds SEC foreign ownership rules

"x x x.

MANILA, Philippines (UPDATED) – The Supreme Court (SC) will not nullify the foreign ownership guidelines set by the Securities and Exchange Commission (SEC), which a lawyer alleged was made to accommodate PLDT Incorporated.

x x x.

Roy questioned the constitutionality of SEC Memorandum Circular 8, series of 2013, or Guidelines on Compliance with the Filipino-Foreign Ownership Requirements.

Roy argued that it runs contrary to the SC’s ruling on October 9, 2012, on the limit to foreign ownership under Section 11, Article XII, of the Constitution.

The 2012 court ruling stated that the 60-40 ownership requirement in favor of Filipino citizens should apply separately to each class of shares. (READ: PCC: Make policy changes to open telco, energy markets)

‘Not tailor-made’

The lawyer alleged that the SEC Memorandum Circular 8 was “tailor-made” for PLDT’s move to comply with the foreign ownership cap in public utilities.

“We point to Section 2 of MC No. 8 as appearing to have been tailor-made to accommodate the scheme of PLDT for conforming with the Constitution – amending its Articles of Incorporation to be able to issue [150 million] preferred voting shares, then selling them to a noncomplying entity called BTF (Beneficial Trust Fund) Holdings, Incorporated, to address the cap on foreign ownership in public utilities,” Roy said in his 2013 petition.

But in the SC decision this Wednesday, the High Court affirmed the SEC guidelines on foreign ownership cap.

“The Court reviewed the Gamboa Decision and Resolution and reiterated that both defined ‘capital’ broadly, but only to apply to shares of stock that can vote in the election of directors and that MC No. 8 simply implemented and is, thus, fully in accordance with Gamboa,” the SC ruled.

The High court added that "there was no actual controversy ripe for adjudication shown as the factual situations presented by Mr Roy were hypotheticals and were evidently speculative and fraught with conjectures and assumptions."

In denying Roy’s petition, the Court held that there was no abuse of discretion on the part of the SEC as it was simply implementing the Gamboa Decision and the Gamboa Resolution.

The Court also declared that there was no conflict between the definition of “capital” in the Gamboa Decision and the Gamboa Resolution.

x x x."

I hold the view that a sitting president may be "investigated" by the Ombudsman and the CHR. "Investigation” is different from "indictment" or “trial of a criminal case” in court. A sitting president may be "investigated" for a crime or wrongful act. He is not above the law. He has taken an oath to defend the Constitution and the laws of the land --- not to violate them.

See - (78) Lacson, the new Duterte de facto spokesman in... - Manuel Laserna Jr.

Lacson, the new Duterte de facto spokesman in the Senate, argues the following legal theories in support of his secret benefactor Duterte:

(1) "First, our president enjoys immunity from suit during his term," said Lacson.

My comment:
I hold the view that a sitting president may be "investigated" by the Ombudsman and the CHR. "Investigation” is different from "indictment" or “trial of a criminal case” in court.

A sitting president may be "investigated" for a crime or wrongful act. He is not above the law. He has taken an oath to defend the Constitution and the laws of the land --- not to violate them.

“Indictment” and “trial”, of course, are separate issues from “investigation”.

See Article XI (accountability of public officials), 1987 Constitution and other related laws, e.g., Anti-Graft and Corrupt Practices Act, Code of Ethical Standards for Public Offices and Employees, and others.

Nothing in the 1987 Constitution expressly provides for presidential immunity from suit for crimes and wrongful acts.

The PH doctrine on the matter is not final. It seems the current doctrine here is that a sitting president may not be “investigated and indicted” for “official acts”. However, committing crimes and wrongful deeds are not official acts.

No jurisprudence exists expressly declaring as null and void any and all “investigations” of a sitting president for a crime or wrongful act.

In the USA, from which we patterned our Constitution, the US president may be subjected to criminal “investigation” for crimes and wrongful acts, e.g., the Clinton doctrine and the Nixon doctrine. He may even be sued while in office for civil torts committed by him prior to his incumbency.

Committing a crime or a wrongful act while in office is not part of a president’s constitutional and official duties. Why shield him from “investigation” for such illegal, wrongful and criminal acts?

I hope the pending De Lima petition for a “writ of habeas data” against Duterte will compel the Supreme Court to revisit and clarify once and for all the vague doctrine of presidential immunity from suit which is being abused by Duterte at present to shield him from the law.

(2) "Second, no matter how many times a person in our country admits having committed murder, as long as there is no other evidence to corroborate his extra judicial confession, the case cannot stand in any
court of law," the senator added.

My comment:
Lacson misses the point. What the UN OHCHR suggests is that, in light of the express admissions and confessions of guilt publicly and arrogantly made by Duterte about the murders he had intentionally committed or ordered to be committed now and in the past and in light of the gruesome six thousand extrajudicial and vigilante killings or deaths that are linked to Duterte’s deadly war on drugs since July 1 when he occupied Malacanang, the UN OHCHR reminds the Philippines, as a member State of the UN, that the Philippines has the “legal obligation” under international human rights law and international humanitarian law to take the appropriate action to “investigate” the Duterte admissions and confessions and other related matters, which tend to prove the existence of crimes against humanity, in a fair, just, independent, transparent, speedy and effective manner --- not the pro forma, anemic and cover-up-type investigations recently terminated by the Gordon-Lacson committee on justice and human rights which achieved nothing but to promote the position of Duterte.

The Philippines is not allowed by international human rights law and international humanitarian law to sit idly while its innocent citizens (e.g., drug “suspects”) are being killed left and right in broad daylight without due process of law under Duterte’s deadly war on drugs and in complete disregard of the rule of law and the administration of justice, in the process leaving behind thousands of helpless, sorrowful and hungry widows and orphans.

- See more at:…/lawmakers-hit-un-hr-commissione…

Lawmakers hit UN HR commissioner for tagging Duterte as a murderer
Philippine lawnakers on Wednesday criticized the United Nations' top official for human rights for "labeling" President Rodrigo Duterte a murderer and calling on the…

Article 150, Rev. Penal Code - Duterte's new petty harassment case vs. De Lima


According to the news today, the Duterte-controlled DOJ indicted De Lima before the Metropolitan Trial Court of Quezon City for violation of Article 150 of the Revised Penal Code.

The provision is entitled “Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions”.

The imposable penalty under the provision is “arresto mayor” (six months) “or a fine ranging from two hundred to one thousand pesos or both such fine and imprisonment.”

The elements of the felony are as follows:
1.       The Congress or a Constitutional Commission (the Civil Service Commission, the Commission on Election, and the Commission on Audit, and, possibly, the Office of the Ombudsman) issues a summons to a witness;
2.    The witness refuses, without legal excuse, to obey the summons;
3.    Or, being present before the legislative or a constitutional body, the witness

(a)             Refuses to be sworn or placed under affirmation or
(b)            Refuses to answer any legal inquiry or
(c)             Refuses to produce books, papers, documents, or records in his possession, when required by the legislature or a constitutional body.
4.    Or “any person”
(a)             “Restrains” another from “attending as a witness” or
(b)            “Induces” another to “disobey a summons” or
(c)             “Induces” another to “refuse to be sworn” by the legislature or a constitutional body.

It appears from the news that the focus of the Information (the term used for the “Complaint” filed in the trial court by the DOJ or any of its public prosecutors in a criminal case) referred to Paragraph 4 above, i.e., that De Lima allegedly “restrained” her driver-bodyguard Dayan from attending as a witness in a congressional hearing or that De Lima allegedly “induced” Dayan to disobey the summons issued by Congress.

The prosecution has the “burden of proof” to prove the guilt of an accused.

We have not read the records of the case but there are two possibilities as to who and how the criminal complaint was commenced in the DOJ: (a) That Dayan (the witness allegedly restrained and induced by De Lima) had filed an affidavit-complaint with the DOJ and/or (b) That the concerned congressional committee chairman who issued the summons to Dayan had filed an affidavit-complaint with the DOJ.


Because the criminal case against De Lima is covered by the Rules on Summary Procedure (i.e., with an imposable penalty of less than six months), it is exempted from “regular preliminary investigation” procedures by the DOJ under the Rules of Criminal Procedure of the Revised Rules of Court.

In summary criminal cases the DOJ or the investigating public prosecutor may directly file the Information with the Metropolitan Trial Court.

The only requirement is that the DOJ finds probable cause based on the affidavit-complaint and its supporting documents.

The DOJ does not need to give the respondent De Lima an opportunity to be heard in summary criminal cases for purposes of determining “probable cause”.
Note that Section 1 of Rule 112 of the Rules of Criminal Procedure provides that preliminary investigation is an inquiry to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is “probably guilty” thereof, and should be held for trial.

Paragraph 2 of Section 1 of Rule 112 of the Rules of Criminal Procedure provides that except as provided in Section 7 (“inquest” proceedings) of the said Rules, a preliminary investigation is required to be conducted only when the offense charged in the affidavit-complaint is punishable by “at least four (4) years, two (2) months and one (1) day without regard to the fine”.

The foregoing provision is reiterated in Section 9 of the Rules of Criminal Procedure which provides that if the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less four (4) years, two (2) months and one (1) day, “the prosecutor shall act on the complaint “based on the affidavits and other supporting documents submitted by the complainant”, i.e., without requiring the respondent to file his “counter-affidavit and its supporting documents as well as the supporting affidavits of his witnesses”.

The charge against De Lima for violation of Article 150 of the Revised Penal Code carries a penalty of six months; hence, it was not subjected to a regular preliminary investigation by the DOJ and was directly filed by it with the proper trial court.

Note, however, that the procedural and substantive due process rights of the accused De Lima shall be protected and respected during the summary proceedings (trial phase) before the trial court (i.e., Metropolitan Trial Court [MetTC}) where she may controvert the criminal accusation against her and present her countervailing evidence to prove her innocence in accordance with the Rules of Summary Procedure.

Section 1 of the Revised Rules of Summary Procedure provides that a criminal case where the imposable penalty is less than six months or a fine not exceeding (P1,000.00) shall be tried by the first-level trial court under the said Rules.


The summary criminal case of De Lima shall undergo the following abbreviated trial procedures at the MetTC level:

(1)             The Information filed by the DOJ with the trial court shall be accompanied by the affidavits of the complainant and of his witnesses. (Section 11).
(2)            On the basis of the complaint and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit. (Section 12).
(3)            It the case is not dismissed outright, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his “counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf”. (Id.).
(4)            The prosecution may file “reply affidavits” within ten (10) days after receipt of the counter-affidavits of the defense. (Id.).
(5)            Should the court, upon a consideration of the Information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case. Section 13).
(6)            Otherwise, the court shall set the case for “arraignment and trial”. (Id.).
(7)            Before conducting the trial, the court shall call the parties to a “preliminary conference” during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure a speedy disposition of the case. (Section 14).
(8)            At the trial, the affidavits submitted by the parties shall constitute the “direct testimonies” of the witnesses who executed the same. (Section 15).
(9)            Witnesses who testified may be subjected to “cross-examination, redirect or re-cross examination”. (Id.).
(10)       Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose. (Id.).
(11)         Except in rebuttal or surrebuttal, no witness shall be allowed to testify “unless his affidavit was previously submitted to the court”. (Id.).
(12)        No warrant of arrest is issued. No bail is required to be posted. (Section 16).
(13)        The court shall not order the arrest of the accused “except for failure to appear whenever required”. (Id.).
(14)        The court shall promulgate the judgment not later than thirty (30) days after the termination of trial. (Section 17).
(15)        The decision of the trial court is appealable, by way of Ordinary Appeal (Notice of Appeal) under Rule 40 of the Rules of Court to the proper Regional Trial Court [RTC]. (Section 21). 
(16)        The RTC shall decide the appeal in accordance with Section 22 of Batas Pambansa Blg. 129.
(17)        Further appeals may be filed with the Court of Appeals and the Supreme Court pursuant to the 1997 Rules of Civil Procedure and the 2000 Rules of Criminal Procedure.


Note that Paragraph 16 above refers to Section 22 of Batas Pambansa Blg. 129 (Judiciary Reorganization Act of 1980).

Section 22 of BP Blg. 129 provides that the Regional Trial Courts shall exercise “appellate jurisdiction” over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts.

Such cases “shall be decided on the basis of (a) the entire record of the proceedings” had in the court of origin and (b) such “memoranda and/or briefs” as may be submitted by the parties or required by the Regional Trial Courts.

This is commonly called the “memorandum decision”, i.e., a decision rendered by the RTC in the exercise of its appellate jurisdiction based  solely (a) on the case record of the MTC and (b) on the “appeal memorandum” filed by the accused with the RTC and the “counter-appeal memorandum” filed by the prosecution with the RTC.

The decision of the RTC shall be appealable by “Petition for Review” (Rule 42, Rules of Court) to the Court of Appeals (CA).

The CA may give it due course only when the petition shows prima facie that the lower court has committed an “error of fact or law” that will “warrant a reversal or modification” of the judgment sought to be reviewed.

Further, the decision of the CA is appealable to the Supreme Court (SC) by way of a “Petition for Review on Certiorari” (Rule 45, Rules of Court.), a “discretionary appeal” grounded on “purely legal  questions.”

The summary nature of the De Lima case is summary only in reference to the “trial phase at MTC level”, not with respect to the tedious and protracted appeals before the RTC, CA, and SC.

In a sense, it is not truly “summary”.

At any rate, the exhaustion of appellate remedies up to the SC level is part of the procedural and substantive due process rights of the accused as enshrined in the Constitution and the Rules of Court.

SolGen Calida has a distorted logic. What is the relevance of a lawyer's bar exam grade in relation to his devotion, integrity, and competence as a public servant?

SolGen Calida has a distorted logic. What is the relevance of a lawyer's bar exam grade in relation to his devotion, integrity, and competence as a public servant?

Marcos was a bar topnotcher but he ended up in shame and oblivion in world history as an extremely brutal and corrupt president of a hungry nation.

I do not know if Calida's bar exam accomplishment is spectacular or not.

I am sure, though, that De Lima, the target of his insulting attack, placed fifth in the top ten of the 1985 bar exam, that she served in prominent positions in government with courage and dedication, i.e., CHR, DOJ, in addition to her long experience as a law professor and election law litigator.

I speak from personal experience.

Modesty aside, I placed third in the 1984 bar exam as a product of FEU Law as a Cocofed Law Scholar (90.95%, only 20% passed, none from UP Law placed in the Top Ten, for the first time in Philippine Bar history, including the Chief Justice Sereno, who took the bar exam in the same year).

UP, though, is close to my heart, having completed my pre-law degree there (journalism) and having spent many memorable years there as a young nationalist and patriotic student leader from the urban proletariat class.

I strongly hold the view that one's bar exam accomplishment is irrelevant to being a masterful trial lawyer or a law scholar or a dignified jurist or legal philosopher or law professor (from 1985 to 2006 I taught major law subjects for 21 years at FEU Law, my high school and law alma mater) or a Bar leader or a statesman or a thinker or a social critic or a pubic servant or a community leader or an ordinary citizen or a father or a husband or a brother or a neighbor or grandfather or a friend -- and the list goes on.

SolGen Calida speaks in a cavalier, unprofessional and ungentlemanly manner like his master Duterte, whose psychopathic and thug-like personality has infected his entire Cabinet (and millions of "Dutertards").

Calida should start learning how to behave as a scholarly and well-composed jurist, deserving of the title of "counsel for the State" and "tribune of the people:.

There is one law of nature that is truly relevant to lawyering: To be a "good lawyer", one must first be a "good person."

Duerte and his clique do not qualify under the said natural law.

4 hrs ·

“If her grade is higher than mine, then I will resign as Solicitor-General. But if my grade is higher than hers, she should resign as senator of the Philippines.”

For saying he has an “empty skull,” Solicitor-General Jose Calida on Wednesday dared Senator Leila De Lima to show her Bar examination score in Criminal Law…

Wednesday, December 21, 2016

Appeal in capital offenses - Mateo doctrine

“x x x.

Up until now, the Supreme Court has assumed the direct appellate review over all criminal cases in which the penalty imposed is death, reclusion perpetua or life imprisonment (or lower but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed).  The practice finds justification in the 1987 Constitution –

Article VIII, Section 5.  The Supreme Court shall have the following powers:

“(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

“x x x                                      x x x                              x x x

“(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.”

The same constitutional article has evidently been a thesis for Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659,[i][10] as well as procedural rules contained in Section 3 of Rule 122,[ii][11] Section 10 of Rule 122,[iii][12] Section 13 of Rule 124[iv][13] and Section 3 of Rule 125[v][14] of the Rules of Court.  It must be stressed, however, that the constitutional provision is not preclusive in character, and it does not necessarily prevent the Court, in the exercise of its rule-making power, from adding an intermediate appeal or review in favor of the accused.

In passing, during the deliberations among the members of the Court, there has been a marked absence of unanimity on the crucial point of guilt or innocence of herein appellant.  Some are convinced that the evidence would appear to be sufficient to convict; some would accept the recommendation of acquittal from the Solicitor General on the ground of inadequate proof of guilt beyond reasonable doubt.  Indeed, the occasion best demonstrates the typical dilemma, i.e., the determination and appreciation of primarily factual matters, which the Supreme Court has had to face with in automatic review cases; yet, it is the Court of Appeals that has aptly been given the direct mandate to review factual issues.

While the Fundamental Law requires a mandatory review by the Supreme Court of cases where the penalty imposed is reclusion perpetua, life imprisonment, or death, nowhere, however, has it proscribed an intermediate review.  If only to ensure utmost circumspection before the penalty of death, reclusion perpetua or life imprisonment is imposed, the Court now deems it wise and compelling to provide in these cases a review by the Court of Appeals before the case is elevated to the Supreme Court.  Where life and liberty are at stake, all possible avenues to determine his guilt or innocence must be accorded an accused, and no care in the evaluation of the facts can ever be overdone.  A prior determination by the Court of Appeals on, particularly, the factual issues, would minimize the possibility of an error of judgment.  If the Court of Appeals should affirm the penalty of death, reclusion perpetua or life imprisonment, it could then render judgment imposing the corresponding penalty as the circumstances so warrant, refrain from entering judgment and elevate the entire records of the case to the Supreme Court for its final disposition.[vi][15]  

Statistics would disclose that within the eleven-year period since the re-imposition of the death penalty law in 1993 until June 2004, the trial courts have imposed capital punishment in approximately 1,493,[vii][16] out of which 907 cases[1][17] have been passed upon in review by the Court.  In the Supreme Court, where these staggering numbers find their way on automatic review, the penalty has been affirmed in only 230 cases comprising but 25.36% of the total number.  Significantly, in more than half or 64.61% of the cases, the judgment has been modified through an order of remand for further proceedings, by the application of the Indeterminate Sentence Law or by a reduction of the sentence.  Indeed, the reduction by the Court of the death penalty to reclusion perpetua has been made in no less than 483 cases or 53.25% of the total number.  The Court has also rendered a judgment of acquittal in sixty-five (65) cases.  In sum, the cases where the judgment of death has either been modified or vacated consist of an astounding 71.77% of the total of death penalty cases directly elevated before the Court on automatic review that translates to a total of six hundred fifty-one (651) out of nine hundred seven (907) appellants saved from lethal injection.

Under the Constitution, the power to amend rules of procedure is constitutionally vested in the Supreme Court -

          Article VIII, Section 5.  The Supreme Court shall have the following powers:

“(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts.”  

Procedural matters, first and foremost, fall more squarely within the rule-making prerogative of the Supreme Court than the law-making power of Congress.  The rule here announced additionally allowing an intermediate review by the Court of Appeals, a subordinate appellate court, before the case is elevated to the Supreme Court on automatic review, is such a procedural matter.
Pertinent provisions of the Revised Rules on Criminal Procedure, more particularly Section 3 and Section 10 of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125, and any other rule insofar as they provide for direct appeals from the Regional Trial Courts to the Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, as well as the resolution of the Supreme Court en banc, dated 19 September 1995, in "Internal Rules of the Supreme Court" in cases similarly involving the death penalty, are to be deemed modified accordingly. 

X x x.”

[1][17]        As per report from the Judicial Records Office of the Supreme Court, the following are the data as of 08 June 2004:

DISMISSED due to death of the Accused-Appellants ----26
AFFIRMED ----------------------------------------------------230          

a.     a.       FURTHER PROCEEDINGS ------------------------------------31
b.    b.       RECLUSION PERPETUA --------------------------------------483
c.     c.       INDETERMINATE SENTENCE ------------------------------72

ACQUITTED -----------------------------------------------------------65

[i][10]                     ART. 47.  In what cases the death penalty shall not be imposed; Automatic Review of death penalty cases.  -  x x x

In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment by the court en banc, within twenty (20) days but not earlier than fifteen (15) days after promulgation of the judgment or notice of denial of any motion for new trial or reconsideration.  The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter.      
[ii][11]                  Sec. 3.  How appeal taken.  –

                        x x x                                         x x x                                         x x x

(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of this Section.

(d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial Court.  The same shall be automatically reviewed by the Supreme Court as provided in section 10 of this Rule.
[iii][12]                 Sec. 10.  Transmission of records in case of death penalty.  - In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment within five (5) days after the fifteenth (15th) day following the promulgation of the judgment or notice of denial of a motion for new trial or reconsideration.  The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter.              
[iv][13]                    Sec. 13.  Quorum of the court; certification or appeal of cases to Supreme Court.  -  Three (3) Justices of the Court of Appeals shall constitute a quorum for the sessions of a division.  The unanimous vote of the three (3) Justices of a division shall be necessary for the pronouncement of a judgment or final resolution, which shall be reached in consultation before the writing of the opinion by a member of the division.  In the event that the three (3) Justices can not reach a unanimous vote, the Presiding Justice shall direct the raffle committee of the Court to designate two (2) additional Justices to sit temporarily with them, forming a special division of five (5) members and the concurrence of a majority of such division shall be necessary for the pronouncement of a judgment or final resolution.  The designation of such additional Justices shall be made strictly by raffle and rotation among all other Justices of the Court of Appeals.

Whenever the Court of Appeals finds that the penalty of death, reclusion perpetua, or life imprisonment should be imposed in a case, the court, after discussion of the evidence and the law involved, shall render judgment imposing the penalty of death, reclusion perpetua, or life imprisonment as the circumstances warrant.  However, it shall refrain from entering the judgment and forthwith certify the case and elevate the entire record thereof to the Supreme Court for review..           
[v][14]                    Sec. 3.  Decision if opinion is equally divided.  - When the Supreme Court en banc is equally divided in opinion or the necessary majority cannot be had on whether to acquit the appellant, the case shall again be deliberated upon and if no decision is reached after re-deliberation, the judgment of conviction of the lower court shall be reversed and the accused acquitted.
[vi][15]        In this instance, then, the Supreme Court may exercise its “exclusive appellate jurisdiction” over all cases where the penalty of death, reclusion perpetua or life imprisonment is imposed by lower courts, under applicable laws like Republic Act No. 296 and Batas Pambansa Blg. 129.
[vii][16]       As of 06 July 2004, the total number of cases pending in the Supreme Court are as follows:

Death Penalty -------------------------------------------------------------586
Life Imprisonment -------------------------------------------------------375
Reclusion Perpetua -----------------------------------------------------1320

            The total number of cases certified by the Court of Appeals to the Supreme Court for review are as follows:

Death Penalty ------------------------------------------------------------1
Life Imprisonment -------------------------------------------------------3
Reclusion Perpetua -----------------------------------------------------28