ANTI-TORTURE ACT OF 2009

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

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

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

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

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

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

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

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

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

(3) Electric shock;

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

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

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

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

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

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

(10) Pulling out of fingernails;

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

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

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

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

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

(14) Other analogous acts of physical torture; and

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

(1) Blindfolding;

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

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

(4) Prolonged interrogation;

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

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

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

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

(9) Denial of sleep/rest;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 14 is the PENALTY CLAUSE of the Act.

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

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

(2) Torture resulting in mutilation;

(3) Torture with rape;

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

(5) Torture committed against children.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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

ENFORCED OR INVOLUNTARY DISAPPEARANCE -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 18 provides for the doctrine of INDEPENDENT LIABILITY.

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

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

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

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

Section 21 of the Act applies the CONTINUING OFFENSE rule.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The person's "IMMEDIATE FAMILY " shall include his or her SPOUSE , FIANCÉ or FIANCÉE , PARENT or CHILD , BROTHER or SISTER, GRANDPARENT or GRANDCHILD, UNCLE or AUNT, NEPHEW or NIECE, and GUARDIAN or WARD.

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

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

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

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

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

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

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

SUBSTANTIVE CONTENT OF THE RIGHT TO SUFFRAGE.

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


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

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

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

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

SO ORDERED.


MARVIC M.V.F. LEONEN
Associate Justice


WE CONCUR:

MARIA LOURDES P.A. SERENO
Chief Justice


ANTONIO T. CARPIO
Associate Justice 

PRESBITERO J. VELASCO, JR.
Associate Justice

TERESITA J. LEONARDO-DE CASTRO
Associate Justice 

ARTURO D. BRION*
Associate Justice

DIOSDADO M. PERALTA
Associate Justice 

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO
Associate Justice 

MARTN S. VILLARAMA, JR.
Associate Justice

JOSE PORTUGAL PEREZ
Associate Justice 

JOSE CATRAL MENDOZA
Associate Justice

BIENVENIDO L. REYES
Associate Justice

 ESTELA M. PERLAS-BERNABE
Associate Justice. "


Read :

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

vs.

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

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

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

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


Read :

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

vs.

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

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

Satire and free speech

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


Read :

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

vs.

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

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

Unconstitutional regulation of speech, expression

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

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

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

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


Read :

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

vs.

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

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

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

RIGHT TO PROPERTY

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


"RIGHT TO PROPERTY

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

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

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

In Philippine Communications Satellite Corporation v. Alcuaz:

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

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

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

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

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

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

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

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

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

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


Read:

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

vs.

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

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

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

Evasion of income tax is a crime involving moral turpitude

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

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

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

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

"x x x.

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

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

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

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

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

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

x x x x

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


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

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

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

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

(b) Assessment and payment of deficiency tax – xxx

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


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

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


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

X x x. "


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

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

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

WHEN JUSTICE IS A NUMBERS GAME.

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

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

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

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

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

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

That is how human society works. Sad but true.

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

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

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

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

What form shall the struggle take?

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

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

MANUEL LASERNA JR.