Thursday, September 28, 2017

Abuse of the Impeachment Process; Effects of.

"x x x.

Business, foreign chambers umbrella group cautions Congress on impeachment powers
-September 27, 2017

One of the biggest umbrella groups advocating much-needed reforms in the Philippine justice system, particularly those that impact the business sector, has urged Congress to exercise its impeachment powers under the Constitution “with great prudence, probity and transparency”.

In a statement, the private-sector umbrella group Judicial Reform Initiative (JRI) raised its grave concerns against “the growing use—or threat—of impeachment proceedings in Congress against a number of the Philippines’s highest ranking and prominent government leaders, including the President, the Vice President, the Chief Justice, the Ombudsman and the Commission on Elections [Comelec] Chairman” who are protected under the Constitution “because of the significance of their roles and the implications on our legal and justice system.”

Not only will the “indiscriminate or ill-considered filings of impeachment proceedings against government officials distract those accused from the performance of their duties as public servants, as well as our Congress from its priority legislative agenda,” but will also be construed “as any serious indictment of our justice system could weaken the constitutionally protected independence of the Judiciary.”

“Investors would risk capital only in countries where they have full confidence in the rule of law. Thus, any initiative which may be perceived as weakening the check and balance among the branches of government might shatter this confidence and negate our hard-won economic gains,” it added. JRI, thus, urged Congress to ensure that: “impeachments are undertaken only for patently substantive and culpable violations of the Constitution; and the process is transparent and reflects the highest standards of fairness and justice.”

Comprised of leading business organizations, judicial advocacy groups and several foreign chambers, JRI was established in 2012 by the Financial Executives Institute of the Philippines, the Institute of Corporate Directors, the Management Association of the Philippines, the Makati Business Club, the American Chamber of Commerce of the Philippines, the European Chamber of Commerce of the Philippines, the Canadian Chamber of Commerce of the Philippines, the Australia-New Zealand Chamber of Commerce of the Philippines and the Movement for Restoration of Peace & Order, among others.

Other groups that have earlier aired similar statements include the Former Senior Government Officials (FSGO); the International Center for Innovation, Transformation and Excellence in Government; the Integrated Bar of the Philippines; the Philippine Bar Association; the Philippine Association of Law Schools; the Philippine Council of Evangelical Churches; and the UP Women’s Lawyers Circle Inc.

x x x."

Exceptions to deposit secrecy » Manila Bulletin Business

"x x x.

Exceptions to deposit secrecy
By Atty. Jun de Zuñiga
Published September 27, 2017, 10:01 PM

Today, deposit secrecy is still a highly sensitive issue. It is asserted as a “zone of privacy” entitled to protection from harassment, fishing expeditions and criminal risks. On the other hand, it is claimed to have been an instrument to evade and obstruct justice, particularly in relation to tax evasion, money laundering, corruption, terrorism and financial frauds.To what extent then can Philippine authorities have access to deposits? 

The Philippines has a strict deposit secrecy law in Republic Act No. 1405 and it allows only four (4) exceptions to confidentiality, namely: (1) upon written permission of the depositor; (2) in cases of impeachment; (3) upon order of the court in cases of bribery or dereliction of duty; and (4) where the deposit is the subject matter of litigation.

The above exceptions have been expanded by other legislation and rulings made by the Supreme Court. The Anti-Money Laundering Act (RA No. 9160, as amended) now allows deposit disclosure in covered transactions reports and in suspicious transactions reports.

This law also allows inquiry in cases of violation thereof, with a court order or even without a court order in certain cases such as kidnapping for ransom or violations of the Comprehensive Dangerous Drugs Act.

Another law, the National Internal Revenue Code, authorizes the inquiry into bank deposits in determining a decedent’s gross estate, or in connection with the request by a foreign tax authority under the Exchange of Information on Tax Matters Act. Under the Human Security Act (RA No. 9372), examination is also allowed upon a court order in cases related to the financing of acts of terrorism.

The last of such laws as of now would be the amendment to the PDIC Charter (RA No. 3591) which authorizes the Bangko Sentral and the PDIC to look into deposits in cases involving unsafe or unsound banking.

On the matter of jurisprudence, the Supreme Court has ruled in favor of inquiry in cases of unexplained wealth under the Anti-Graft and Corrupt Practices Act and in plunder under RA No. 7080, stating that these offenses are similar to bribery or dereliction of duty (Phil. National Bank vs. Gancayco, 122 Phil. 503; Ejercito vs. Sandiganbayan and People of the Philippines, 509 SCRA 190).

The Supreme Court also held that the disclosure of deposits to satisfy the writ of garnishment issued by the court is not a violation of deposit secrecy since the disclosure is purely incidental to the execution process (China Banking Corp. vs. Ortega, 49 SCRA 355); and that on grounds of equity, the deposit of a foreign transient can be proceeded against to prevent an injustice to an aggrieved citizen (Salvacion vs. Central Bank, 278 SCRA 27). Also on grounds of equity, the Supreme Court allowed the owner of funds unlawfully taken to inquire on the deposit of said funds (China Banking Corp. vs. Court of Appeals, 511 SCRA 110).

Amidst the pros and cons, there are appeals for the reassessment of our bank secrecy laws as in fact there are now proposals to relax further deposit secrecy for tax collection and bank examination purposes.

These would be consonant with the position of the Group of 20 Leading Economies (G20) that the era of banking secrecy is now over, there being a shift from secrecy to transparency, and from a domestic approach to global cooperation.


The above comments are the personal views of the writer. His email address is

x x x."

Wednesday, September 27, 2017

Majority of Filipinos do not believe police’s ‘nanlaban’ claim | Inquirer News

"x x x.

Majority of Filipinos do not believe police’s ‘nanlaban’ claim / 03:12 PM September 27, 2017

Police were quick to tell that suspects were killed during anti-illegal drug operations because they resisted arrest or fought back with authorities. But in the latest survey conducted by the Social Weather Stations (SWS), majority of Filipinos were not buying it.

In its Second Quarter 2017 survey, majority of Filipinos or 54 percent agreed that:

“Marami sa mga pinatay ng mga pulis sa kampanya laban sa ilegal na droga ay hindi totoong nanlaban sa pulis. [Many of those killed by the police in the anti-drug campaign did not really fight against the police.]”

Those who disagreed to the survey statement were at 20 percent, while those undecided were at 25 percent.

The nationwide survey was conducted from June 23 to 26, involving 1,200 respondents, with a margin of error of plus-or-minus three percentage points.

The same data also revealed that of the 54 percent who agreed to the survey statement, 20 percent of them “strongly agreed” to it. The survey further showed that the disbelief over police’s “nanlaban” justification was highest in Metro Manila with 63 percent, followed by 56 percent in Luzon, and 49 percent in Visayas and Mindanao.

Meanwhile, the survey said that 58 percent of the “very poor” sector, or those from the Class E, agreed that the killed drug suspects did not fight back with the police with 54 percent of the so-called masa, or those from the Class D, sharing the same perspective.

However, most of those in Classes A, B, and C do not agree with the survey statement with only 40% of them believing that the killed drug suspects did not fight back with authorities.

The latest SWS survey further disclosed that many Filipinos believed that those killed by policemen were not even drug peddlers.

According to the survey, 49 percent of the country agreed that: “Marami sa mga pinatay ng mga pulis sa kampanya laban sa illegal na droga ay hindi naman talaga mga nagtutulak ng droga o drug pusher [Many of those killed by the police in the anti-drug campaign are not really drug pushers].”

Twenty-three percent of the respondents disagreed to this survey statement while 27 percent were undecided about it.

In Metro Manila, 58 percent believed that the suspects killed by police during alleged anti-illegal drug operations were not drug pushers. Majority in Visayas shared the same view with 52 percent, while 48 percent and 45 percent in Luzon and Mindanao, respectively, support such perception.

Similarly, 51 percent of the society’s Class D believed that the killed suspects were innocent. Forty-five percent from Class E backed such view while only 38 percent from Classes A, B, and C believed so.

Moreover, 50 percent of Filipinos agreed that: “Marami ang nagsisinungaling at itinuturo ang kanilang mga personal na kaaway bilang drug user/pusher para mabigyang dahilan na patayin ang mga taong ito ng mga pulis o vigilante [Many are lying and pointing to their personal enemies as drug users or pushers in order to give an excuse for these people to be killed by police or vigilantes].”

Only 21 percent of respondents disagreed to this survey statement, as 10 percent of which said they “strongly disagree” to it. Twenty-eight percent were undecided about this survey statement.

Sixty-three percent in Metro Manila supported this survey statement, as 50 percent in Luzon and Mindanao also agreed to it. Only 42 percent in the Visayas concurred that many are merely making false accusations against personal enemies so that police or vigilantes could have a reason to kill the suspects.

x x x."

SC okays curfew for minors in QC, but not in Manila, Navotas | News5 - InterAksyon

"x x x.

SC okays curfew for minors in QC, but not in Manila, Navotas
By Christopher Lloyd Caliwan, Philippine News Agency
September 25, 2017, 7:11 AM

MANILA, Philippines — The Supreme Court has declared the curfew for minors implemented in Quezon City as constitutional but unconstitutional in Manila and Navotas.

In a 40-page decision in GR No. 225442 (Samahan ng mga Progresibong Kabataan [SPARK] v. Quezon City), promulgated on August 8, 2017 but was released to media on Sunday, the Court En Banc declared Ordinance No. 8046 of the City of Manila entitled “An Ordinance Declaring the Hours from 10 p.m. to 4 a.m. of the Following Day as ‘Barangay Curfew Hours’ for Children and Youths Below 18 Years of Age; Prescribing Penalties Therefor; and for Other Purposes”).

The High Court also struck down “Pambayang Ordinansa Blg. No. 99-02, as amended by Pambansang Ordinansa Blg. 2002-13 of Navotas City entitled ‘Nagtatakda ng Curfew’ ng mga Kabataan na Wala Pang Labing Walong (18) Taong Gulang sa Bayan ng Navotas, Kalakhang Maynila”.

In ruling on the petition for certiorari and prohibition filed by SPARK questioning the constitutionality of the curfew ordinances, the Court found it proper to examine the assailed regulations under the strict scrutiny test — the test of judicial scrutiny which applies when a classification interferes with the exercise of fundamental rights — as the ordinances set restrictions on the minors’ exercise of their right to travel under Section 6, Art. III of the Constitution.

Under the strict scrutiny test, the government has the burden of proving that the classification is necessary to achieve a compelling state interest, and is the least restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the interest.

The Court said that while all three curfew ordinances passed the first prong of the strict scrutiny test in that “they not only conveyed but, in fact, attempted to substantiate legitimate concerns on public welfare, especially with respect to minors,” each of the ordinances must still be “narrowly tailored as to ensure minimal constraint not only on the minors’ right to travel but also on their other constitutional rights.”

After a thorough evaluation of the provisions of the ordinances, the Court found that only the Quezon City ordinance met the said requirement as the Manila and Navotas ordinances were not narrowly drawn in that their exceptions were inadequate and run the risk of overly restricting the minors’ fundamental freedoms.

“To be fair, both ordinances protect the rights to education, to gainful employment, and to travel at night from school or work,” said the Court.

“However, even with those safeguards, the Navotas Ordinance and, to a greater extent, the Manila Ordinance still do not account for the reasonable exercise of the minors’ rights of association, free exercise of religion, rights to peaceably assemble, and of free expression, among others.”

The Court added that the exceptions under the Manila ordinance were too limited and, thus, unduly trample upon protected liberties.

It likewise observed that while the Navotas ordinance was apparently more protective of constitutional rights than the Manila ordinance, it still provided insufficient safeguards in that it hindered minors from engaging in legitimate non-school or non-church activities in the streets; it effectively prohibited minors from attending traditional religious activities (such as simbang gabi or dawn masses) at night without accompanying adults; and it did not accommodate avenues for minors to engage in political rallies or attend city council meetings to voice out their concerns in line with their right to peaceably assemble and to free expression.

In addition, the Court ruled that the penal provisions of the Manila Ordinance which impose reprimand and fines/imprisonment on minors are in conflict with Section 57-A of RA 9344 (Juvenile Justice and Welfare Act of 2006), as amended, which provides that no penalty shall be imposed on children for violations of juvenile status offenses.

“Hence, following the rule that ordinances should always conform with the law, these provisions must be struck down as invalid,” the Court added.

The Court noted that the Quezon City ordinance “stands in stark contrast to the first two ordinances as it sufficiently safeguards the minors’ constitutional rights” as its list of exceptions is more narrowly drawn to sufficiently protect the minors’ rights of association, free exercise of religion, travel, to peaceably assemble, and of free expression.

“In particular, the Quezon City Ordinance provides for adequate exceptions that enable minors to freely exercise their fundamental rights during the prescribed curfew hours, and therefore, narrowly drawn to achieve the State’s purpose,” said the Court.

The SC has lifted the temporary restraining order it issued on the three ordinances also in July last year.

SPARK, a group of students in the three cities, argued in their petition filed through lawyer Jesus Falcis III that the curfew ordinances are unconstitutional due to vagueness as they result in arbitrary and discriminatory enforcement and overbreadth as they impair legitimate activities of minors during curfew hours.

Petitioner also claimed a violation of the right of minors to liberty and to travel without substantive due process, adding that the curfew “deprives parents of the natural and primary right in the rearing of the youth without substantive due process.”

x x x."


See - R.A. 8049

R.A. No. 8049


Section 1. Hazing, as used in this Act, is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury.

The term "organization" shall include any club or the Armed Forces of the Philippines, Philippine National Police, Philippine Military Academy, or officer and cadet corp of the Citizen's Military Training and Citizen's Army Training. The physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved ny the Secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police shall not be considered as hazing for the purposes of this Act.

Section 2. No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization seven (7) days before the conduct of such initiation. The written notice shall indicate the period of the initiation activities which shall not exceed three (3) days, shall include the names of those to be subjected to such activities, and shall further contain an undertaking that no physical violence be employed by anybody during such initiation rites.

Section 3. The head of the school or organization or their representatives must assign at least two (2) representatives of the school or organization, as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant.

Section 4. If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals. The person or persons who participated in the hazing shall suffer:

1. The penalty of reclusion perpetua (life imprisonment) if death, rape, sodomy or mutilation results there from.

2. The penalty of reclusion temporal in its maximum period (17 years, 4 months and 1 day to 20 years) if in consequence of the hazing the victim shall become insane, imbecile, impotent or blind.

3. The penalty of reclusion temporal in its medium period (14 years, 8 months and one day to 17 years and 4 months) if in consequence of the hazing the victim shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm or a leg or shall have lost the use of any such member shall have become incapacitated for the activity or work in which he was habitually engaged.

4. The penalty of reclusion temporal in its minimum period (12 years and one day to 14 years and 8 months) if in consequence of the hazing the victim shall become deformed or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than ninety (90) days.

5. The penalty of prison mayor in its maximum period (10 years and one day to 12 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of more than thirty (30) days.

6. The penalty of prison mayor in its medium period (8 years and one day to 10 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged for a period of ten (10) days or more, or that the injury sustained shall require medical assistance for the same period.

7. The penalty of prison mayor in its minimum period (6 years and one day to 8 years) if in consequence of the hazing the victim shall have been ill or incapacitated for the performance on the activity or work in which he was habitually engaged from one (1) to nine (9) days, or that the injury sustained shall require medical assistance for the same period.

8. The penalty of prison correccional in its maximum period (4 years, 2 months and one day to 6 years) if in consequence of the hazing the victim sustained physical injuries which do not prevent him from engaging in his habitual activity or work nor require medical attendance.

The responsible officials of the school or of the police, military or citizen's army training organization, may impose the appropriate administrative sanctions on the person or the persons charged under this provision even before their conviction. The maximum penalty herein provided shall be imposed in any of the following instances:

(a) when the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join;

(b) when the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting;

(c) when the recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation;

(d) when the hazing is committed outside of the school or institution; or

(e) when the victim is below twelve (12) years of age at the time of the hazing.

The owner of the place where hazing is conducted shall be liable as an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. If the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators.

The officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as principals. A fraternity or sorority's adviser who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring shall be liable as principal.

The presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein.

Any person charged under this provision shall not be entitled to the mitigating circumstance that there was no intention to commit so grave a wrong.

This section shall apply to the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner provided herein.

Section 5. If any provision or part of this Act is declared invalid or unconstitutional, the other parts or provisions thereof shall remain valid and effective.

Section 6. All laws, orders, rules or regulations which are inconsistent with or contrary to the provisions of this Act are hereby amended or repealed accordingly.

Section 7. This Act shall take effect fifteen (15) calendar days after its publication in at least two (2) national newspapers of general circulation.

Monday, September 25, 2017

Resignation from public office

Validity of Resignation from public office -

"The petitioner submits that the resignation of private respondent was valid and effective despite the absence of an express acceptance by the President of the Philippines. The letter of resignation was submitted to the secretary of the DILG, an alter ego of the President, the appointing authority. The acceptance of respondents resignation may be inferred from the fact that the DILG secretary himself appointed him a member of the Sangguniang Panlalawigan of Catanduanes.[27]

In Ortiz vs. COMELEC,[28] we defined resignation as the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority. To constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority.[29] The last one is required by reason of Article 238 of the Revised Penal Code.[30]

The records are bereft of any evidence that private respondents resignation was accepted by the proper authority. From the time that he was elected as punong barangay up to the time he resigned as a member of Sangguniang Bayan, the governing law was B.P. 337 or the Local Government Code of 1983. While said law was silent as to who specifically should accept the resignation of an appointive member of the Sangguniang Bayan, Sec. 6 of Rule XIX of its implementing rules states that the [r]esignation of sanggunian members shall be acted upon by the sanggunian concerned, and a copy of the action taken shall be furnished the official responsible for appointing a replacement and the Ministry of Local Government. The position shall be deemed vacated only upon acceptance of the resignation.

It is not disputed that private respondents resignation letter was addressed only to the municipal mayor of San Andres, Catanduanes. It is indicated thereon that copies were furnished the provincial governor, the municipal treasurer and the DILG. Neither the mayor nor the officers who had been furnished copies of said letter expressly acted on it. On hindsight, and assuming arguendo that the aforecited Sec. 6 of Rule XIX is valid and applicable, the mayor should have referred or endorsed the latter to the Sangguniang Bayan for proper action. In any event, there is no evidence that the resignation was accepted by any government functionary or office.

Parenthetically, Section 146 of B.P. Blg. 337 states:

Sec. 146. Composition. - (1) The sangguniang bayan shall be the legislative body of the municipality and shall be composed of the municipal mayor, who shall be the presiding officer, the vice-mayor, who shall be the presiding officer pro tempore, eight members elected at large, and the members appointed by the President consisting of the president of the katipunang bayan and the president of the kabataang barangay municipal federation. x x x. (Emphasis supplied.)

Under established jurisprudence, resignations, in the absence of statutory provisions as to whom they should be submitted, should be tendered to the appointing person or body.[31] Private respondent, therefore, should have submitted his letter of resignation to the President or to his alter ego, the DILG secretary. Although he supposedly furnished the latter a copy of his letter, there is no showing that it was duly received, much less, that it was acted upon. The third requisite being absent, there was therefore no valid and complete resignation."

[G.R. No. 118883. January 16, 1998]

Abandonment of Public Office

Abandonment of Public Office -

"While we agree with Respondent Court that the resignation was not valid absent any acceptance thereof by the proper authority, we nonetheless hold that Private Respondent Antonio has effectively relinquished his membership in the Sangguniang Bayan due to his voluntary abandonment of said post.

Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof.[32] Indeed, abandonment of office is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser.[33] Nonuser refers to a neglect to use a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to exercise an easement or an office (Blacks Law Dictionary, 6th ed.).

Abandonment springs from and is accompanied by deliberation and freedom of choice.[34] Its concomitant effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy.[35]

Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from his own conduct.[36] Thus, the failure to perform the duties pertaining to the office must be with the officers actual or imputed intention to abandon and relinquish the office.[37] Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such a continuance that the law will infer a relinquishment.[38] Therefore, there are two essential elements of abandonment: first, an intention to abandon and, second, an overt or external act by which the intention is carried into effect. [39]

Petitioner argues that the following clearly demonstrate private respondents abandonment of his post in the Sangguniang Bayan:

Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of Catanduanes was worded temporary, but his acts more than clearly established his intention to totally abandon his office, indicating an absolute relinquishment thereof. It bears to emphasize that respondent actually tendered his resignation and subsequently accepted an ex-officio membership in the Sangguniang Panlalawigan of Catanduanes. He performed his duties and functions of said office for almost two (2) years, and was completely aware of the appointment and assumption on July 18, 1990 of Nenito F. Aquino, who was then Vice-President of the Association of Barangay Councils (ABC) of San Andres, Catanduanes, as ex-officio member of petitioner Sangguniang Bayan representing the ABC.

x x x x x x x x x

Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed respondents former position for twenty (20) months, without him questioning the term of office of the former if indeed respondents designation as ex-officio member of the Sangguniang Panlalawigan was only temporary. Likewise, for almost eight (8) months after knowledge of the decision in Taule vs. Santos, et. al., Ibid., nullifying his designation as representative to the Sangguniang Panlalawigan, respondent opted to remain silent, and in fact failed to seasonably act for the purpose of reassuming his former position. Evidently, respondent had clearly abandoned his former position by voluntary relinquishment of his office through non-user.[40] [Underscoring supplied.]

We agree with petitioner. Indeed, the following clearly manifest the intention of private respondent to abandon his position: (1) his failure to perform his function as member of the Sangguniang Bayan, (2) his failure to collect the corresponding remuneration for the position, (3) his failure to object to the appointment of Aquino as his replacement in the Sangguniang Bayan, (4) his prolonged failure to initiate any act to reassume his post in the Sangguniang Bayan after the Supreme Court had nullified his designation to the Sangguniang Panlalawigan.

On the other hand, the following overt acts demonstrate that he had effected his intention: (1) his letter of resignation from the Sangguniang Bayan;[41] (2) his assumption of office as member of the Sangguniang Panlalawigan, (3) his faithful discharge of his duties and functions as member of said Sanggunian, and (4) his receipt of the remuneration for such post.

It must be stressed that when an officer is designated to another post, he is usually called upon to discharge duties in addition to his regular responsibilities. Indeed, his additional responsibilities are prescribed by law to inhere, as it were, to his original position. A Supreme Court justice, for instance, may be designated member of the House of Representatives Electoral Tribunal. In some cases, a public officer may be designated to a position in an acting capacity, as when an undersecretary is tasked to discharge the functions of a secretary for a temporary period.[42] In all cases, however, the law does not require the public servant to resign from his original post. Rather, the law allows him to concurrently discharge the functions of both offices.

Private respondent, however, did not simultaneously discharge the duties and obligations of both positions. Neither did he, at that time, express an intention to resume his office as member of the Sangguniang Bayan. His overt acts, silence, inaction and acquiescence, when Aquino succeeded him to his original position, show that Antonio had abandoned the contested office. His immediate and natural reaction upon Aquinos appointment should have been to object or, failing to do that, to file appropriate legal action or proceeding. But he did neither. It is significant that he expressed his intention to resume office only on March 31, 1992, after Aquino had been deemed resigned on March 23, 1992, and months after this Court had nullified his designation on August 12, 1991. From his passivity, he is deemed to have recognized the validity of Aquinos appointment and the latters discharge of his duties as a member of the Sangguniang Bayan.

In all, private respondents failure to promptly assert his alleged right implies his loss of interest in the position. His overt acts plainly show that he really meant his resignation and understood its effects. As pointed out by the eminent American commentator, Mechem:[43]

Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a short period will not operate as an abandonment, yet if the officer refuses or neglects to exercise the functions of the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to perform the duties of the office at all, he will be held to have abandoned it, not only when his refusal to perform was wilful, but also where, while he intended to vacate the office, it was because he in good faith but mistakenly supposed he had no right to hold it.

Lastly, private respondent, who remained ABC president, claims the legal right to be a member of the Sangguniang Bayan by virtue of Section 146 of B.P. Blg. 337. However, his right thereto is not self-executory, for the law itself requires another positive act -- an appointment by the President or the secretary of local government per E.O. 342.[44] What private respondent could have done in order to be able to reassume his post after Aquinos resignation was to seek a reappointment from the President or the secretary of local government. By and large, private respondent cannot claim an absolute right to the office which, by his own actuations, he is deemed to have relinquished.[45]

We reiterate our ruling in Aparri vs. Court of Appeals: [46]

A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public x x x. The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all, only because and by virtue of some law expressly or impliedly creating and conferring it x x x. There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary x x x."

[G.R. No. 118883. January 16, 1998]

What is Social Justice?

Science Of Persuasion

Things we wont say about race that are true

The Dark Art of Political Intimidation

Why the Innocent Plead Guilty

CHR: We know facts from falsehoods | Headlines, News, The Philippine Star |

"x x x.

The Commission on Human Rights (CHR) is urging the government to end its “doublespeak” on the human rights situation in the country, noting that the reality on the ground is different from what it projects to the international community.

“We may think that this approach of doublespeak might work as they will be able to convince some that they are serious about human rights,” CHR Chairman Chito Gascon said on Friday following the United Nations Human Rights Council (UNHRC) session in Geneva, Switzerland.

“But the international community, many other member-states of the UN Human Rights Council, as well as local human rights community, know better. We know fact from falsehoods,” he added.

Gascon was criticizing the decision of the Philippines not to accept 154 recommendations of other UN member-states, including a condition-less visit for UN special rapporteur on extrajudicial killings Agnes Callamard and a thorough investigation of the deaths in connection with the war on drugs.

“They are actually denying that there are extrajudicial killings occurring in the country. They are further denying that there is a culture of impunity,” said Gascon.

“That is not reflected by the reality on the ground. Many human rights defenders, victims of human rights violations suffer threats and intimidation on a regular basis,” he added.

The CHR chief noted various instances of doublespeak on the part of the administration, including President Duterte’s extending invitation for the UN to establish local human rights offices in the country.

“Yet I say it’s doublespeak because they have an opportunity today to actually extend what are referred to as standing invitations… for special rapporteurs to come anytime they want,” said Gascon.

He also noted an earlier commitment of the police to cooperate with the CHR, only for Duterte to disallow the release of case folders of deaths connected with the campaign against illegal drugs.

“To say that it is doing something about these extrajudicial killings by saying that the entire police force in Caloocan City had been sacked to allow for investigation, unfortunately, is doublespeak because that same police force they have awarded for outstanding performance just before they sacked them,” said Gascon.

“They continue to say that the abuses are isolated cases. This is a rejection of the truth on the ground,” added the CHR chief.

Human rights group Karapatan, through its secretary-general Cristina Palabay, also lashed out at the Duterte administration’s glossing over its alarming human rights record.

“Rhetoric cannot compensate for the rising death toll, the swelling protests, the rage of the oppressed and repressed people who have been deprived of their basic human rights. The people’s actions and protests expose this revolting circus of lies and remain as proof that the human rights situation in the country is not a ‘victory,’” she said.

“Human rights violations committed with impunity is the order of the day in the Philippines,” Palabay added. – Janvic Mateo, Rhodina Villanueva

x x x."

Impeachment - ‘BASED ON FAKE NEWS’ | Sereno calls for dismissal of impeach raps, cautions House vs abuse of power | News5 - InterAksyon

"x x x.

‘BASED ON FAKE NEWS’ | Sereno calls for dismissal of impeach raps, cautions House vs abuse of power
By Lira Dalangin-Fernandez, InterAksyon

(UPDATE 4 – 11:55 a.m.) MANILA, Philippines — Chief Justice Maria Lourdes Sereno called for the “dismissal” of the impeachment complaint filed against her by lawyer Larry Gadon, saying it was “based not on authentic records, much less personal knowledge” but “on conflated hearsay derived from news reports.”

“This is nothing short of an impeachment exercise based on fake news,” Sereno said in a statement, which is part of her 86-page reply the complaint that her lawyers submitted to the House Committee on Justice on Monday, Sept. 25.

“(T)he complaint should be dismissed not only because the charges are totally false but also because they do not constitute the grounds for impeachment under the Constitution,” she said.

Also, Sereno said the House of Representatives would be abusing its power “when impeachment is done without sufficient legal and factual basis.”

“If the grounds for impeachment of the Chief Justice can be trivialized to include any ground which Congress may consider, the fate of the Judiciary would be subjected to the whims of Congress,” Sereno stated in her reply.

She said the abuse of power by the legislative branch “would in effect place a co-equal branch at its mercy and imperil the very existence of our democratic form of government — a government which rests on the principle of independence and equality of the three great branches of Government.”

The chief justice likewise cautioned the House against Gadon’t call for the chamber to investigate a co-equal branch of government “under the guise of substantiating his false claim.”

“The extraordinary power of impeachment is not meant to be an excuse to investigate a co-equal branch for the purpose of substantiating what is in the first place not true,” said Sereno.

CJ won’t step down

Asked if Sereno would resign amid the complaint, Jojo Lacanilao, among the lawyers of the chief justice, said during a press conference on Monday that the “Chief Justice will not resign, she will fight this to the end and more. She is resilient, she will stay on.”

As to the chief magistrate’s current condition, Winnie Salumbides, also a lawyer of Sereno, said, “She is on top of her element…she is unfazed because she knows in her conscience she did not do anything wrong.”

‘Full of general denials, rhetorics’

Asked if Sereno sees the hand of President Rodrigo Duterte in the move to oust her from office, Lacanilao said, “It’s irrelevant kung ano’ng politika ang gumagana rito [The kind of politics that works here is irrelevant] because the Chief Justice is convinced it’s baseless and based on fake news.”

“Ito po at talagang hindi mananalo kung ang ating mga representatives ay gagamitin ang kanilang sense of political justice na nirerequire ng Constitution,” he added.

[This (complaint) won’t really succeed if our representatives would use their sense of political justice being required by the Constitution.]

While not discounting politics, Poblador said they would rather handle the matter “based on evidence and applicable law.”

Meanwhile, Gadon on Monday criticized Sereno’s reply to his complaint, saying it was “full of general denials and rhetorics which would crumble if confronted by hard evidence and testimonies of witnesses.”

“How can the judiciary as an institution be destroyed by removing one personality within?…The impeachment case was filed to protect the integrity of the judiciary which has suffered and in continuously suffering from the whimsical ways and attitude of Chief Justice Sereno,” said Gadon.

x x x."

Saturday, September 23, 2017

House approves creation of coconut industry trust fund on 2nd reading | BusinessMirror

"x x x.

House approves creation of coconut industry trust fund on 2nd reading

-September 20, 2017

THE House of Representatives on Wednesday approved on second reading a measure creating the Coconut Industry Trust Fund.

The measure, which seeks to create a Coconut Industry Trust Fund and amend Republic Act 6260, or the Coconut Investment Act that created the coconut-levy fund, was approved through viva-voce voting. The bill is expected to be passed on third reading next week.

Party-list Rep. Jose Panganiban Jr. of Anac-IP House Committee on Agriculture and Food chairman and one of the authors of the bill, said the Supreme Court declared in 2012 the coconut-levy fund as owned by the government, to be used solely for the benefit of coconut farmers and for the development of the coconut industry.

Based on the Supreme Court ruling in Cocofed, et al v. Republic of the Philippines (GR 177857-58), it declared the coco-levy funds and assets, which consist primarily of the 753,848,3312 shares of San Miguel Corp. and their accumulated dividends, are owned by the government in trust for the coconut farmers.”

Panganiban, citing the Bureau of Treasury, said, “The total amount of the coconut-levy fund is P62.5 billion in cash, deposited in a special account in the general fund, which is not earning interest because it cannot be invested, adding it needs a law in order to be utilized.”

The other amount of P13.09 billion is held in escrow and earning interest, he said.

It also provides that P10 billion of the initial trust principal be used within two years from the approval of the “Coconut Farmers and Industry Development Plan” by the President of the Philippines.

The measure said the Coconut Farmers and Industry Development Trust Fund Committee shall be created, under the Office of the President, which shall monitor the implementation of the Coconut Farmers and Industry Development Plan and approve disbursements out of the trust fund.

“The Coconut Farmers and Industry Development Trust Fund, hereinafter referred to as the trust fund, shall consist of the Trust Principal and the Trust Income. No portion of the trust fund shall accrue to the general fund of the national government. It shall be capitalized, managed, utilized and accounted for in the manner provided in this Act,” Panganiban said.

The trust fund shall be used exclusively for the ultimate benefit of coconut farmers and farmworkers, as embodied in the Coconut Farmers and Industry Development Plan prepared under this measure.

All assets and/or properties derived from all coconut levy-recovered assets; and all dividends, interest earnings and incomes that are available upon the effectivity of the Act shall form part of the initial capital of the trust fund.

The trust fund shall thereafter be augmented. It with all proceeds of privatization/disposition of the coconut-levy assets remitted directly thereto by the PMO in accordance with the Act, including any and all forms of income, interests, earnings, yields, or any monetary benefit derived therefrom prior to the privatization/disposition of these coconut-levy assets.

In order to ensure the enduring character of the trust fund, the principal thereof shall be augmented by grants, donations and other lawful transfers by public or private entities.

It also provides for the naming of nine representatives from the coconut farmers’ organizations (three representatives each from Luzon, the Visayas and Mindanao) as among the members of the Coconut Farmers and Industry Development Trust Fund Committee.

The bill provides for the creation of an ad hoc committee that shall prepare every 10 years a plan of programs, projects and activities to be funded from the trust fund.

It also mandates the Presidential Commission on Good Government (PCGG) to undertake a full accounting and inventory of all coconut- levy assets; and the Commission on Audit to audit the inventory of the coconut-levy assets prepared by the PCGG.

x x x."

The Supreme Court’s rulings on the Marcoses’ ill-gotten wealth | News | GMA News Online

"x x x.

As the country commemorates 45 years since Ferdinand Marcos imposed martial law, the Presidential Commission on Good Government is still saddled with 282 pending cases that seek to recover ill-gotten wealth allegedly amassed by the late President, his family, and their cronies.

More than three decades after Marcos was ousted from Malacañang, the Supreme Court is still hearing cases involving the recovery of this wealth.

In at least three decisions, the High Tribunal already has forfeited in favor of the government some of the Marcoses' wealth. The High Tribunal also has ruled that the government can still recover other assets in a 25-year-old forfeiture case from where these rulings emanate.

These rulings forfeited in favor of the Philippine government at least US$658 million in Swiss deposits which Ferdinand and his First Lady Imelda Marcos allegedly stashed under the names of different foundations, more than US$3 million in assets and funds of their alleged dummy company Arelma SA, and a jewelry collection worth more than US$100,000.

The amounts are actually bigger: the figures are based on estimates as far back as 1983 (for the Arelma properties), 1991 (for the Malacañang Collection of jewelry) and 2002 (for the Swiss deposits).

All three decisions maintained that the Marcoses failed to show that these properties were legally acquired. The Supreme Court noted that the PCGG was able to establish that the assets and properties acquired by the Marcoses were “manifestly and patently disproportionate” to their aggregate salaries as public officials.

The rulings noted that from 1966 to 1986, Ferdinand Marcos and Imelda Marcos had accumulated salaries worth P2,319,583.33 or $304,372.43 when converted to the prevailing peso-dollar exchange rate at that time.

The Supreme Court said the Marcoses had “judicially admitted” in various pleadings and documents that they own the properties. The High Tribunal said the properties are deemed ill-gotten since they were out of proportion to their known lawful income.


In the first decision, dated July 15, 2003, the Supreme Court en banc forfeited in favor of the Philippine government Swiss deposits in the estimated aggregate amount of US$658,175,373.60 as of January 31, 2002, plus interest.

The Supreme Court denied with finality the Marcoses’ motion for reconsideration on November 18, 2003.

The second ruling, issued by the High Tribunal's Second Division on April 25, 2012, forfeited in favor of the government US$3,369,975 as of 1983, plus all interests and all other accrued income, from all assets, properties and funds belonging to Arelma, S.A., a Panamanian entity maintaining an account in Merrill Lynch, New York.

The third ruling is a resolution of the Supreme Court First Division on January 18 this year forfeiting in favor of the government pieces of jewelry known as the Malacañang Collection, so called because they were seized from Malacañang after February 25, 1986, when the Marcoses fled to Hawaii.

Based on the 1991 valuation of auction house Christie, Manson and Woods International Inc., the value of the Malacañang Collection was between US$110,055 to US$153,089.

The Arelma and Malacañang Collection rulings reiterated the findings on the Swiss deposits case on the Marcoses’ known lawful income.

Legitimate income

PCGG came up with the combined accumulated salaries of the Marcos couple from a certification issued on May 27, 1986 by then Minister of Budget and Management Alberto Romulo.

The certification showed that Ferdinand and Imelda had accumulated salaries in the amount of P1,570,000 and P718,750, respectively, or a total of P2,288,750 from 1966 to 1985.

It also showed that the spouses had combined salaries of P30,833.33 from January to February 1986. PCGG said these total P2,319,583.33 or $304,372.43 when converted to the prevailing peso-US dollars exchange rates during the covered period.

The Marcoses had reported P16,408,442.00 or US$2,414,484.91 in total income over a period of 20 years from 1965 to 1984. Almost 70 percent of this, or more than P11 million, allegedly came from Mr. Marcos’s legal practice.

In the 2012 decision, the Marcoses lamented that the government never took into account Ferdinand’s income from 1940 to 1965, when he was a practicing lawyer, congressman and senator, as well as other earnings until 1985. The Marcoses also noted that Mr. Marcos served as a war veteran with back pay and was a trader and investor.

They also said the government did not consider real properties that were auctioned off to satisfy the estate tax assessed by the Bureau of Internal Revenue.

But the Supreme Court said the Marcos family never raised the existence of these earnings and real properties at the outset in their defense. The Marcoses merely made general denials of the allegations without stating facts in their pleadings, the High Tribunal said.

No SALN, law office

The Supreme Court said the Marcoses failed to justify their earnings other than official salaries.

In the 2003 decision, the justices noted that the Marcos couple did not file any Statement of Assets and Liabilities, as required by law, from which their net worth could be determined.

The Supreme Court also noted in the same ruling that Mr. Marcos is barred under the 1935 Constitution from receiving any emolument from the government or any of its subdivisions and instrumentalities.

Under the 1973 Constitution, the decision said, Mr. Marcos as President could not receive any other emolument from the government or any other source during his tenure. “In fact, his management of businesses, like the administration of foundations to accumulate funds, was expressly prohibited under the 1973 Constitution,” the 2003 decision read.

The High Tribunal also said the Marcoses’ claim of the late dictator’s lucrative law profession has no basis.

“Marcos never had a known law office nor any known clients, and neither did he file any withholding tax certificate that would prove the existence of a supposedly profitable law practice before he became President,” the Supreme Court said in its 2012 ruling.

In the 2003 ruling, the PCGG had said Ferdinand “made it appear that he had an extremely profitable legal practice before he became a President (FM being barred by law from practicing his law profession during his entire presidency) and that, incredibly, he was still receiving payments almost 20 years after.”

However, the balance sheet attached to his 1965 income tax return immediately before he became President did not reflect any receivables from any client, the PCGG said, adding that there were no documents showing any withholding tax certificate.

There is also no record that will show any known Marcos client because he has no known law office, the PCGG said.

Mr. Marcos mentioned “Other Income” of P2.5 million from 1972 to 1976 that he referred to in his return as “Miscellaneous Items and Various Corporations.” The PCGG said there is no indication of any payor of the dividends or earnings.

The PCGG, citing findings of the Bureau of Internal Revenue, also noted that the Marcos couple did not declare any income from any deposits and placements which are subject to a 5-percent withholding tax.

The BIR did not find any record of tax transactions of the spouses in its revenue offices in Region 1 in Baguio City, Region 4A in Manila, Region 4B1 in Quezon City, Region 8 in Tacloban, Leyte and the Office of the Revenue Collector of Batac, Marcos’s hometown in Ilocos Norte. The BIR also said it did not find any record on any filing of capital gains tax return involving the couple from 1960 to 1965.

Less than US$1 million

The PCGG said that, based on its computation of official earnings and tax returns, the combined net worth of the Marcos spouses for the years 1965 to 1984 is US$957,487.75—“assuming that the income from legal practice is real and valid.”

This means that the Marcoses were able to account for just 30 percent—or their US$304,372.43 official salaries—of their wealth, the PCGG said.

“The combined salaries make up only 31.79 percent of the spouses' total net worth from 1965 to 1984. This means petitioners are unable to account for or explain more than two-thirds of the total net worth of the Marcos spouses from 1965 to 1984,” the 2012 ruling read.

The 2003 ruling was penned by then-Associate Justice Renato Corona and concurred in by then-Chief Justice Hilario Davide Jr. and then-Associate Justices Josue Bellosillo, Reynato Puno, Jose Vitug, , Artemio Panganiban, Consuelo Ynares Santiago, Alicia Austria-Martinez, Conchita Carpio-Morales, Romeo Callejo Sr., Adolfo Azcuna and Dante Tinga.

Chief Justice Maria Lourdes Sereno authored the 2012 decision, when she was an Associate Justice, and the 2017 decision.

Swiss deposits

The US$658 million was lodged in five account groups using various foreign foundations in certain Swiss banks. They are the Azio-Verso-Vibur Foundation accounts; the Xandy-Wintrop Foundation accounts; the Charis-Scolari-Valamo-Spinus-Avertina Foundation accounts; Rosalys-Aguamina Foundation accounts; and Maler Foundation accounts.

The PCGG has said that it has evidence “very clearly and overwhelmingly show[ing] in detail how both respondents [Marcos spouses] clandestinely stashed away the country’s wealth to Switzerland and hid the same under layers upon layers of foundations and other corporate entities to prevent its detection.”

The PCGG said the Marcoses opened and maintained numerous Swiss accounts through their dummies/nominees, fronts or agents who formed those foundations or corporate entities.

Documents that the Marcoses left behind in Malacañang when they fled in February 1986 show that Ferdinand and Imelda, using the pseudonyms “William Saunders” and “Jane Ryan,” respectively, opened their first Swiss bank accounts in March 1968, two years into the presidency.

The PCGG said it was able to sue for only five accounts because it was difficult to detect and document all the Marcos secret accounts.

In January 2004, the PCGG remitted to the Bureau of Treasury P35 billion from the Swiss deposits.


The Arelma decision affirmed the ruling of Sandiganbayan dated April 2, 2009 granting the government's partial summary judgment declaring the assets, investments, securities, properties, shares, interests, and funds of Arelma Inc. forfeited in favor of the Philippine government.

The PCGG said Arelma was organized by the Marcoses for the sole purpose of maintaining an account and portfolio in Merrill Lynch, a New York-based brokerage company. Mr. Marcos allegedly ordered the transfer of US$2 million from his alleged Swiss accounts to Arelma.

Correspondence between Marcos crony Jose Campos and a Swiss Bank Corp. official in September 1972 show that the SBC office in Panama was instructed to create a Panamanian company, which became Arelma. It was organized in Liechtenstein. Arelma officers then opened a direct account with Merrill Lynch.

Ferdinand’s name does not appear in Arelma’s corporate records. But documents the Marcoses left in Malacañang include letters from an SBC official addressed “Dear Excellency.” Imelda and Ferdinand Marcos Jr. have said that the properties do not belong to them and that they are mere beneficiaries.

The Merrill Lynch account started at US$2 million in 1972 and was already US$35 million when it was discovered in 2000.

Malacañang Collection

The Supreme Court also affirmed the Sandiganbayan's January 13, 2014 partial summary judgment declaring pieces of jewelry known as the Malacañang Collection as ill-gotten and forfeiting them in favor of the government.

The PCGG said the Marcoses acquired the pieces of jewelry during their incumbency as public officials between 1966 and 1986, particularly during their trips to Asia, Europe and the United States. The pieces of jewelry were in mint condition and most has never been used, the PCGG said.

The Malacañang Collection is the third and least expensive of the three collections of jewelry recovered from the Marcoses. A 1991 appraisal valued these three jewelry collections at US$5 to US$7 million.

The Hawaii Collection was seized from the Marcoses by the US Customs Service upon their arrival at the Honolulu International Airport on February 25, 1986. The Roumeliotes Collection was seized from Greek businessman and alleged Marcos crony Demetriou Roumeliotes on March 1, 1986 at the Manila International Airport as he was about to leave the country.

Not terminated

The assets in the three decisions are subject of Civil Case No. 0141, the petition for forfeiture of an estimated US$5 billion worth of properties allegedly illegally acquired by the Marcoses during their term. It was filed by PCGG before the Sandiganbayan on December 17, 1991.

The Arelma ruling notes that the 25-year-old case has not yet terminated since it refers to the recovery of all the assets enumerated in the petition for forfeiture.

This means that the government can still seek the summary judgment from the Sandiganbayan for the recovery of the other alleged ill-gotten properties of the Marcoses identified in the petition.

“With the myriad of properties and interconnected accounts used to hide these assets that are in danger of dissipation, it would be highly unreasonable to require the government to ascertain their exact locations and recover them simultaneously, just so there would be one comprehensive judgment covering the different subject matters,” the 2012 decision read.

A footnote in the 2017 decision identified the approximately US$5 billion worth of properties in Civil Case 0141. These were listed and clustered into 18 categories.

— BM, GMA News
x x x."

SC orders release of detainees still not charged after required period. - "But the High Court added that raising the issue of public security is "not a justification to trample upon the constitutional rights of the detainees against deprivation of liberty without due process of law, to be presumed innocent until the contrary is proved, and to a speedy disposition of the case."

"x x x.

MANILA, Philippines – The Supreme Court (SC) ordered the release of arrested persons who have been kept in detention even after the period of preliminary investigation for their cases have already lapsed.

The SC en banc's unanimous decision promulgated last July covers "all detainees whose pending cases have gone beyond the mandated periods for the conduct of preliminary investigation, or whose cases have already been dismissed on inquest or preliminary investigation, despite pending appeal, reconsideration, reinvestigation or automatic review by the Secretary of Justice."

These are the individuals arrested without warrant or kept detained even though charges have not been filed before a court.

Continued detention of these individuals is only allowed if prosecutors secure a waiver of Article 25 of the 1987 Constitution which states that a person arrested and detained without warrant should be placed under the judicial process within 12 to 36 hours, or else they should be released.

"The Court held that such waiver does not vest upon the Department of Justice (DOJ), Provincial Prosecutor's Office (PPO), Bureau of Jail Management and Penology (BJMP), and Philippine National Police (PNP) the unbridled right to indefinitely incarcerate an arrested person and subject him to the whims and caprices of the reviewing prosecutor of the DOJ," the SC said in a statement.

The SC said waivers of Article 25 should still coincide with Section 7, Rule 112 of the Rules of Court.

Under that provision, despite a waiver, a person arrested without warrant shall be allowed to apply for bail. The investigation must also be "terminated within 15 days from its inception."

"Detention beyond this period violates the accused's constitutional right to liberty," the SC said.

Drug-related case

The High Court acted on the petition of the Integrated Bar of the Philippines (IBP)-Pangasinan, which represented drug suspect Jay-Ar Senin.

Senin was arrested in a buy-bust operation in 2015, then detained for 8 months without any finding of probable cause at the time. Drug charges are non-bailable. (READ: Supreme Court allows plea bargaining in drug cases)

Prosecutors initially dismissed the case against Senin at their level, but because the DOJ puts every drug-related resolution on automatic review, he was kept behind bars.

The Office of the Solicitor General said the IBP-Senin case was moot because probable cause was eventually established and charges were then filed in court.

But the SC en banc said it took the opportunity to clarify the guidelines and ensure that the right to liberty will no longer be violated.

"The Court held that the rule is that a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code (RPC), otherwise, the public official or employee could be held liable for the failure to deliver except in grounded on reasonable and allowable delays. Article 125 of the RPC, however, can be waived if the detainee who was validly arrested without warrant opts for the conduct of preliminary investigation," the SC said.

The DOJ's automatic review rule for drug-related cases has been in effect since 2003. But in January 2017, Justice Secretary Vitaliano Aguirre II signed Circular No. 004 which says that an arrested person must be released when the complaint against him is dismissed, "notwithstanding the automatic review."

The SC said it issued the ruling despite Aguirre's circular to cement the guidelines due to the "possibility that the latest circular would again be amended by succeeding secretaries."

The SC said "it was aware that this decision may raise discomfort to some, especially at this time when the present administration aggressively wages its indisputably popular war on illegal drugs."

But the High Court added that raising the issue of public security is "not a justification to trample upon the constitutional rights of the detainees against deprivation of liberty without due process of law, to be presumed innocent until the contrary is proved, and to a speedy disposition of the case."

The SC ruling was penned by now retired Associate Justice Jose Mendoza. Associate Justice Alfredo Benjamin Caguioa did not take part in the voting, the High Court said. –

x x x."

Tuesday, September 19, 2017