Probable cause: trust receipt law/estafa

In the recent case of JOSE ANTONIO U. GONZALEZ[1] v. HONGKONG & SHANGHAI BANKING CORPORATION, G. R. No. 164904, October 19, 2007, the Supreme Court had the opportunity to reaffirm the prevailing doctrine on the proper determination of the existence of probable cause, specifically in relation to Presidential Decree No. 115 (Trust Receipt Law) and Art. 315(1)(b) of the Revised Penal Code.

Petitioner Gonzalez contends that the Court of Appeals committed manifest error in ruling, that, probable cause existed to hold him liable to stand trial merely on the basis of “his admission that he executed the trust receipts subject matter of the case below and his failure to account for the goods covered by the same.”

He argues that the City Prosecutor of Makati and the DOJ failed to appreciate two important facts:

1) that the real transaction that led to the present controversy was in fact a loan agreement; and

2) that MLRC simply extended to Best Price PX, Inc., the owner and operator of Mimosa Mart at the CESZ, its credit line with respondent HSBC, such that Best Price was the actual debtor of respondent bank.

He maintains that “the fact that (he) held a high position in MLRC was not sufficient reason to charge him for alleged violation of trust receipts.”

He insists further that he is not the person responsible for the offense allegedly committed because of the absence of “a clear showing of fault or negligence on his part.”

According to petitioner, “President (sic) Decree No. 115 must be read in conjunction with Article 315, paragraph 1(b) of the Revised Penal Code x x x under both x x x it is required that the person charged with estafa pursuant to a trust receipt transaction must be proved to have misappropriated, misused or converted to his own personal use the proceeds of the goods covered by the trust receipts to the damage of the entruster.”

Thus, petitioner concludes that “mere failure to pay the amounts covered by the trust receipts does not conclusively constitute estafa as defined under Presidential Decree No. 115 and Article 315, paragraph 1(b).”

Respondent HSBC, on the other hand, contends that “petitioner is criminally liable since he signed the trust receipts x x x;” and, that, “[f]raud is not necessary for conviction for violation of the Trust Receipts Law,” the latter being in the nature of a malum prohibitum decree.

On the issue of company reverses, Asian currency crisis and the closure of the Mimosa Regency Casino, respondent HSBC counters that “[t]hey do not excuse petitioner for his failure to comply with his obligations under the trust receipts,” because unlike “motor vehicles or parcels of land, which are frequently purchased on credit or on installment basis,” the goods covered by the two trust receipts, i.e., assorted Disney items and various golfing equipments, are usually paid for in cash upon receipt by buyers; and if not sold, the merchandise should still be with MLRC. Hence, there was no reason for petitioner Gonzalez’s failure to comply with his obligation under the two Trust Receipts – to turn over the proceeds of the sale of the goods or to return the goods if they remained unsold.

The Supreme Court found no merit in the petition of Gonzalez.

The Court held that probable cause is defined as “the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted”. A finding of probable cause “merely binds over the suspect to stand trial”. It is “not a pronouncement of guilt”.

To determine the existence of probable cause, there is a need to conduct preliminary investigation, which is “an inquiry to determine “whether (a) a crime has been committed; and (b) whether there is probable cause to believe that the accused is guilty thereof”. Such investigation is designed “to secure the (accused) against hasty, malicious and oppressive prosecution, the conduct of which is executive in nature”.

The Court adhered to “the policy of non-interference in the conduct of preliminary investigations, and to leave to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause”. It held that “courts can only review whether or not the executive determination of probable cause was done without or in excess of jurisdiction resulting from grave abuse of discretion”.

Thus, although it is entirely possible that the investigating prosecutor may “erroneously exercise the discretion” lodged in him by law, this does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari, “absent any showing of grave abuse of discretion amounting to excess of jurisdiction”.

Grave abuse of discretion is “an arbitrary and despotic manner, by reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law.

In the case at bar, petitioner Gonzalez is charged by respondent HSBC with violating Presidential Decree No. 115. Section 4 of the “Trust Receipts Law” defines a trust receipt transaction as –

Section 4. What constitutes a trust receipts transaction. – A trust receipt transaction, within the meaning of this Decree, is any transaction by and between a person referred to in this Decree as the entruster, and another person referred to in this Decree as entrustee, whereby the entruster, who owns or holds absolute title or security interests over certain specified goods, documents or instruments, releases the same to the possession of the entrustee upon the latter’s execution and delivery to the entruster of a signed document called a “trust receipt” wherein the entrustee binds himself to hold the designated goods, documents or instruments in trust for the entruster and to sell or otherwise dispose of the goods, documents or instruments with the obligation to turn over to the entruster the proceeds thereof to the extent of the amount owing to the entruster or as appears in the trust receipt or the goods, documents or instruments themselves if they are unsold or not otherwise disposed of, in accordance with the terms and conditions specified in the trust receipt, or for other purposes substantially equivalent to any of the following:

1. In the case of goods or documents: (a) to sell the goods or procure their sale; or (b) to manufacture or process the goods with the purpose of ultimate sale: Provided, That, in the case of goods delivered under trust receipt for the purpose of manufacturing or processing before its ultimate sale, the entruster shall retain its title over the goods whether in its original or processed form until the entrustee has complied fully with his obligation under the trust receipt; or (c) to load, unload, ship or transship or otherwise deal with them in a manner preliminary or necessary to their sale; or

2. In the case of instruments: (a) to sell or procure their sale or exchange; or (b) to deliver them to a principal; or (c) to effect the consummation of some transactions involving delivery to a depository or register; or (d) to effect their presentation, collection or renewal.

The sale of good, documents or instruments by a person in the business of selling goods, documents or instruments for profit who, at the outset of transaction, has, as against the buyer, general property rights in such goods, documents or instruments, or who sells the same to the buyer on credit, retaining title or other interest as security for the payment of the purchase price, does not constitute a trust receipt transaction and is outside the purview and coverage of this Decree.

In general, a trust receipt transaction imposes upon the entrustee the obligation to deliver to the entruster the price of the sale, or if the merchandise is not sold, to return the same to the entruster.

There are thus two obligations in a trust receipt transaction: the first, refers to money received under the obligation involving the duty to turn it over (entregarla) to the owner of the merchandise sold, while the second refers to merchandise received under the obligation to “return” it (devolvera) to the owner.

A violation of any of these undertakings constitutes estafa defined under Art. 315(1)(b) of the Revised Penal Code, as provided by Sec. 13 of Presidential Decree 115, viz:

Section 13. Penalty clause. – The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article Three Hundred and Fifteen, paragraph one (b) of Act Numbered Three Thousand Eight Hundred and fifteen, as amended, otherwise known as the Revised Penal Code. If the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty provided for in this Decree shall be imposed upon the directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense.

Article 315(1)(b) of the Revised Penal Code punishes estafa committed as follows:

1. With unfaithfulness or abuse of confidence, namely:

x x x x

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.

As found in the complaint-affidavit of respondent HSBC’s representative, petitioner Gonzalez is charged with failing to turn over “to the Bank a single centavo of the proceeds of the sale of the (assorted) goods covered by the Trust Receipts, or x x x” or to return any of the assorted goods.

From the evidence adduced before the City Prosecutor of Makati i.e., 1) the two Trust Receipts bearing the acknowledgment signature of petitioner Gonzalez; 2) the official documents concerning the transaction between MLRC and respondent HSBC; 3) the demand letter of respondent HSBC; and, significantly, 4) the counter-affidavit of petitioner Gonzalez containing his initial admission that on behalf of MLRC, he entered into a trust receipt transaction with respondent HSBC – the investigating officer determined that there existed probable cause to hold petitioner Gonzalez for trial for the crime charged.

The Court stated that “probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and, definitely, not on evidence establishing absolute certainty of guilt; but it certainly demands more than bare suspicion and can never be left to presupposition, conjecture, or even convincing logic”.

The offense punished under Presidential Decree No. 115 is in the nature of malum prohibitum. “A mere failure to deliver the proceeds of the sale or the goods if not sold, constitutes a criminal offense that causes prejudice not only to another, but more to the public interest”. This is a matter of public policy as declared by the legislative authority.

As a last ditch effort to exculpate himself from the offense charged, petitioner Gonzalez posits that, “the fact that (he) held a high position in MLRC was not sufficient reason to charge him for alleged violation of trust receipts.”

The Court viewed it as a futile attempt. Though petitioner Gonzalez signed the Trust Receipts merely as a corporate officer of MLRC and had no physical possession of the goods subject of such receipts, he cannot avoid responsibility for violation of Presidential Decree No. 115 for two unpretentious reasons: first, that the last sentence of Section 13 of the “Trust Receipts Law,” explicitly imposes the penalty provided therein upon “directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense,” of a corporation, partnership, association or other juridical entities found to have violated the obligation imposed under the law. The rationale for making such officers and employees responsible for the offense is that they are vested with the authority and responsibility to devise means necessary to ensure compliance with the law and, if they fail to do so, are held criminally accountable; thus, they have a responsible share in the violations of the law. And second, a corporation or other juridical entity cannot be arrested and imprisoned; hence, cannot be penalized for a crime punishable by imprisonment.

Petitioner Gonzalez’s allegation that Best Price PX, Inc. is the real party in the trust receipt transaction and his assertion that the real transaction between respondent HSBC and MLRC is a loan agreement, “are matters of defense best left to the trial court’s deliberation and contemplation after conducting the trial of the criminal case”.

The Court reiterated that a preliminary investigation for the purpose of determining the existence of probable cause is not part of the trial. “A full and exhaustive presentation of the parties’ evidence is not required, but only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof”, it added.

In fine, the Court held that the Court of Appeals committed no reversible error when it ruled that there was no grave abuse of discretion on the part of the Secretary and Acting Secretary of the DOJ in directing the filing of the Information against petitioner Gonzalez for violation of Presidential Decree No. 115 in relation to Article 315(1)(b) of the Revised Penal Code.

The Court cited the following: R.R. Paredes v. Calilung, G.R. No. 156055, 5 March 2007, 517 SCRA 369, 394. Webb v. Hon. De Leon, 317 Phil. 758, 789 (1995). Lim, Sr. v. Felix, G.R. No. 94054-57, 19 February 1991, 194 SCRA 292, 304. R.R. Paredes v. Calilung , supra note 29 at 394. Webb v. Hon. De Leon, supra note 30 at 800. Andres v. Cuevas, G.R. No. 150869, 9 June 2005, 460 SCRA 38, 52. D.M. Consuji, Inc. v. Esguerra, 328 Phil. 1168, 1185 (1996). R.R. Paredes v. Calilung , supra note 29 at 397. Sarigumba v. Sandiganbayan, G.R. Nos. 154239-41, 16 February 2005, 451 SCRA 533, 549. People v. Cuevo, 191 Phil. 622, 630 (1981). Kilosbayan, Inc. v. COMELEC, 345 Phil. 1141, 1174 (1997). People v. Nitafan, G.R. Nos. 81559-60, 6 April 1992, 207 SCRA 726, 731. Colinares v. Court of Appeals, 394 Phil. 106, 120 (2000). Ching v. Secretary of Justice, G.R. No. 164317, 6 February 2006, 481 SCRA 609, 635, citing U.S. v. Park, 421 U.S. 658, 95, S.Ct. 1903 (1975). Ong v. Court of Appeals, 449 Phil. 691, 704 (2003). Ledesma v. Court of Appeals, 344 Phil. 207, 226 (1997).

Atty. MANUEL J. LASERNA JR.

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[1] Former Philippine Secretary of Tourism.

Philippine justice system from the vantage of UN OHCHR special rapporteur Philip Alston

Legal researchers may find the following excerpts from the "Advanced Edited Version of the Report of the UN OHCHR Special Rapporteur PHILIP ALSTON on Extrajudicial, Summary or Arbitrary Executions in the PHILIPPINES", released on November 27, 2007, useful for purposes of studying what reforms should be instituted soonest to help improve the Philippine criminal justice system and to truly promote and preserve HUMAN RIGHTS in the Philippines.

X x x.

X. THE CRIMINAL JUSTICE SYSTEM

A. Overview

45. There is impunity for extrajudicial executions. No one has been convicted in the cases involving leftist activists,62 and only six cases involving journalists have resulted in convictions.63 The criminal justice system’s failure to obtain convictions and deter future killings should be understood in light of the system’s overall structure. Crimes are investigated by two bodies: the PNP, which is organized on a national level but is generally subject to the “operational supervision and control” of local mayors; and the National Bureau of Investigation (NBI), which is centrally controlled.64 Prosecutors, who are organized in the National Prosecution Service (NPS) of the DOJ, determine whether there is probable cause and then prosecute the cases in the courts.65 This is the normal process; however, in cases implicating public officials, the Ombudsman should take over the investigation and conduct the prosecution. Cases are tried before the courts, with the Supreme Court both administering the judiciary and providing the highest level of appellate review.66 Cases against senior Government officials should be prosecuted by the Ombudsman before the Sandiganbayan67 rather than the ordinary courts, but the Supreme Court still provides the highest level of appellate review. The Inter-Agency Legal Action Group (IALAG) is the latest addition to the system, affecting the operations of the NBI, NPS, and PNP.

B. The Inter-Agency Legal Action Group (IALAG) distorts

the criminal justice system’s priorities

46. Senior Government officials are attempting to use prosecutions to dismantle the numerous civil society organizations and party list groups that they believe to be fronts for the CPP. While this project is sometimes discussed as if it were a dark conspiracy, it was explained to me openly and directly by numerous officials as the very function of IALAG, which was established in 2006.68 IALAG is an executive rather than advisory body and, while it includes representatives of various criminal justice, intelligence, and military organs, institutional power and legal authority over its operations is concentrated in the Office of the National Security Adviser.69 At the national level, IALAG meets at least once every other week, discusses the evidence in particular cases and debates whether it is sufficient to file a criminal complaint. There are also regional and provincial IALAG bodies with a similar structure and role. It has been due to the efforts of IALAG that charges have been brought against a number of leftist lawmakers and persons who had been given immunity guarantees to facilitate peace negotiations with the NDF.

47. The reason that such an ad hoc mechanism was established for bringing charges against members of these civil society organizations and party list groups is that they have seldom committed any obvious criminal offence. Congress has never reversed its decision to legalize membership in the CPP or to facilitate the entry of leftist groups into the democratic political system.70 But the executive branch, through IALAG, has worked resolutely to circumvent the spirit of these legislative decisions and use prosecutions to impede the work of these groups and put in question their right to operate freely.

48. What justification is given for waging this legal offensive? One explanation that I received was that when membership in the CPP was legalized, the expectation was that its members would lay down their arms and participate in the parliamentary struggle. On this interpretation, the CPP has instead sought to pursue simultaneously the armed and parliamentary struggles. Many senior government officials stated unequivocally that they consider the party list groups in Congress as part of the insurgency. It is evidently the case that there are persons in Congress as well as in the hills who adhere to a “national democratic” ideology, but when I would ask interlocutors in what respect party list members of Congress belonging to the most criticized parties — Bayan Muna, Anakpawis, and Gabriela — had gone beyond expressing sympathy for the armed struggle to actually supporting it, I was repeatedly provided the same unsubstantiated allegation, that these congresspersons provide their “pork barrel” to the NPA.71 Cases filed against several congresspersons on these grounds have failed. This has not discouraged senior government officials. One insisted that although the publicly available evidence might be inadequate, the charges were amply supported by intelligence information that could not be disclosed. Another informed me simply that warrants had been issued based on probable cause and that he would not stop treating the congresspersons as criminals simply because no conviction had yet been achieved.

49. The central purpose of IALAG is to prosecute and punish members of the CPP and its purported front groups whenever there is any legal basis for doing so. I received no evidence that it was designed or generally functions to plan extrajudicial executions. However, IALAG’s proactive legal strategy requires drawing up lists of individuals who are considered enemies of the state but many of whom will not be reachable by legal process. The temptation to execute such individuals is clear, representatives of the AFP and PNP with the capacity to do so participate in IALAG bodies at all levels, and there is circumstantial evidence that this has sometimes occurred.72 The most deleterious role played by IALAG bodies may, however, be to encourage prosecutors to act as team players with the AFP and PNP in counterinsurgency operations and to de-prioritize cases involving the deaths of leftist activists.

C. The police are reluctant to investigate the military

50. No one I spoke with questioned the PNP’s authority and duty to investigate crimes allegedly committed by the AFP. However, in practice, it does so in only a perfunctory manner. Plausible explanations for this reticence include fear, a tacit understanding that crimes by the AFP should not be investigated, the personal bonds felt among senior AFP and PNP officers,73 and the solidarity fostered by current cooperation in counterinsurgency operations.74

D. Poor cooperation between police and prosecutors impedes

the effective gathering of evidence

51. The current system so discourages cooperation between prosecutors and police that each is tempted to simply blame the other for failing to achieve convictions. Prosecutors rather than judges make the determination whether the evidence provides probable cause for the charges to be brought. During this preliminary hearing, prosecutors are expected to show absolute impartiality. Prosecutors thus perceive themselves unable to guide the police with respect to the testimony and physical evidence that must be obtained to make a case. Even when prosecutors find the evidence presented by the police at the preliminary hearing insufficient, they seldom provide a reasoned explanation for that insufficiency for fear of appearing biased. Police thus lack expert guidance in building cases. While this problem is deeply embedded in the culture of the criminal justice system, changes in the role of the prosecutor could be effected by amending the Rules of Criminal Procedure, which are promulgated by the Supreme Court.75 The Supreme Court should use this power to require prosecutors to provide reasoned decisions for probable cause determinations and to insist that prosecutors take a more proactive role in the ensuring the proper investigation of criminal cases.

E. The witness protection program is inadequate

52. The absence of witnesses is a key explanation for why extrajudicial executions hardly ever lead to convictions. One expert suggested to me that the absence of witnesses results in 8 out of 10 cases involving extrajudicial killings failing to move from the initial investigation to the actual prosecution stage. In a relatively poor society, in which there is heavy dependence on community and very limited geographical mobility, witnesses are uniquely vulnerable when the forces accused of killings are all too often those, or are linked to those, who are charged with ensuring their security. The present message is that if you want to preserve your life expectancy, don’t act as a witness in a criminal prosecution for killing.

53. The witness protection program is administered by the NPS. This is problematic only because the impartial role prosecutors are expected to play in the early phases of a criminal case can make them loath to propose witness protection. This problem might be remedied by establishing a separate witness protection office independent of the prosecutors but still within the Department of Justice (DOJ).76 That office would then be free to take a proactive role in providing witness protection.

54. Implementation of the statute establishing the witness protection program is deeply flawed.77 It would seem to be truly effective in only a very limited number of cases. The rights and benefits mandated by law are too narrowly interpreted in practice to make participation possible for some witnesses.78 Another widely-cited shortcoming, likely caused by inadequate resources, is that at-risk family members are not admitted into the program, although in theory “any member of his family within the second civil degree of consanguinity or affinity” who is at risk may be admitted.79 A more fundamental problem is that, even when a witness is available, cases seldom move quickly through the justice system,80 and when a case fails to prosper, the witness is expelled from the program, although he or she may still be at risk.

F. Limited forensic resources lead to over-reliance on witness testimony

55. A greater capacity to use physical evidence would allow more cases to go forward without witness testimony. The information that I received from officials was that, while there are some forensic laboratories and experts in Manila, there is very limited access to these resources throughout most of the country.

G. The Ombudsman lacks independence

56. The Office of the Ombudsman is responsible for investigating and prosecuting crimes and other misconduct committed by public officials.81 However, the Ombudsman’s office has done almost nothing in recent years to investigate the involvement of Government officials in extrajudicial executions. Despite having received a significant number of complaints alleging extrajudicial executions attributed to State agents, no information was provided by the Ombudsman’s office indicating that it had undertaken any productive investigations.

57. The Office of the Ombudsman has surrendered its constitutionally-mandated independence from the executive branch. First, it has adopted an untenably narrow interpretation of its jurisdiction, choosing not to initiate an investigation into an extrajudicial execution unless there is already very strong evidence that a public official was responsible in the particular case.

Second, the Office of the Ombudsman often operates as a de facto subsidiary of the Department of Justice. The NBI conducts most of its investigations. Pursuant to a Memorandum of Agreement between the DOJ and the Office of the Ombudsman, the relevant Regional State Prosecutor and other senior members of DOJ’s NPS monitor and oversee the “successful prosecution and speedy disposition of Ombudsman cases”. “Deputized prosecutors” from the NPS “have the primary responsibility of prosecuting Ombudsman cases”, and prosecutor-investigators from the Office of the Ombudsman “assist, if practicable, the Deputized Prosecutor in the prosecution of the case” and “may, with prior clearance from the Ombudsman or his Deputy, take over the prosecution of the case at any stage”.82 As a practical matter, these arrangements serve to all but completely subordinate the Ombudsman to the DOJ.

58. The Ombudsman insists that her office can take over a case being handled by the DOJ at any time, but it is unclear how the Ombudsman would even be aware that such a measure was necessary given her Office’s lack of involvement. One NPS prosecutor at the local level explained that, in his locality, the local representative of the Ombudsman sits in the DOJ office, reviews the work of DOJ prosecutors and passes this on to the Ombudsman in Manila. It is, in his words, a “chummy” relationship, because the person from the Office of the Ombudsman is disinclined to criticize the conduct of what are, in effect, his colleagues.

H. The role of the courts

59. When most cases stall at the investigation or prosecution stage, it is difficult to evaluate the effectiveness of the judiciary. Two issues specific to the judiciary were, however, raised by my interlocutors. First, trials are routinely delayed and are generally not held on consecutive days, increasing the opportunities for witness intimidation. If fully implemented, the Supreme Court’s decision to establish “special courts” for “cases involving killings of political activists and members of the media” should remedy this problem for those cases.83 Second, witnesses often relocate to avoid retaliation, but judges seldom grant a change of venue on that basis.84 The judiciary should ensure that docket management and venue decisions facilitate witness participation and protection.

X x x.

XIII. RECOMMENDATIONS

66. I am encouraged by the many measures recently taken by the Government,91 and I have found instructive the many recommendations made in other reports.92 Based on my own observations, I believe that the following measures are essential.

67. Extrajudicial executions must be eliminated from counterinsurgency operations:

(a) As Commander-in-Chief of the armed forces, the President must take concrete steps to put an end to those aspects of counterinsurgency operations which have led to the targeting and execution of many individuals working with civil society organizations.

(b) The necessary measures should be taken to ensure that the principle of command responsibility, as it is understood in international law, is a basis for criminal liability within the domestic legal order.

(c) The Government should immediately direct all military officers to cease making public statements linking political or other civil society groups to those engaged in armed insurgencies. Any such characterizations belong solely within the power of the civilian authorities. They must be based on transparent criteria, and conform with the human rights provisions of the Constitution and relevant treaties.

(d) Transparency must be introduced to the “orders of battle”, “watch lists”, and similar list of individuals and organizations maintained by the AFP, PNP, and other elements of the national security system. While their contents might justifiably be considered secret, which lists exist, their purposes, the criteria for inclusion, and the number of names on each should be made public.

68. The use of a death squad in Davao City must end:

(a) NAPOLCOM should withdraw the mayor of Davao City’s powers of supervision and control of PNP units within his jurisdiction and should hold the officers commanding those units accountable for shutting down the death squad.

(b) While particular crimes should be reported, laws and practices in which barangay councils or captains submit names (e.g., of drug pushers) for inclusion on law enforcement watch lists should be abolished.

(c) An independent investigation should be conducted to identify the persons directing the death squad’s “assets” and hit men.

69. Convictions in a significant number of extrajudicial executions must be achieved. Appropriate institutional arrangements exist but they must be more transparent if they are to be effective. Thus:

(a) CHRP should issue a monthly report listing allegations of extrajudicial executions that it has received together with the current status of its investigations.

(b) Members of the public should be able to submit cases to be overseen by Task Force Usig. If it concludes that a case does not fall within its mandate, it should provide a reasoned explanation in writing.

(c) Task Force Usig should issue a monthly report on the status of all cases it is attempting to resolve.

(d) The Supreme Court should issue a monthly report on the status of all cases before the special courts.

70. IALAG should be abolished, and the criminal justice system should refocus on investigating and prosecuting those committing extrajudicial executions and other serious crimes.

71. The witness protection program should be reformed and fully implemented:

(a) It should be proactively administered by an office independent of the NPS.

(b) Witness protection should be unstintingly provided to all those who will be put at risk by an individual’s testimony.

(c) Individuals should be permitted to remain in the witness protection system for as long as they are at risk, even if a case stalls.

(d) Housing and other benefits provided under the witness protection program should ensure the security and comfort of those protected.

72. The Supreme Court should take all available measures to ensure the effective prosecution of extrajudicial executions. Among other measures:

(a) The system of special courts for killings of political activists and members of the media should be fully implemented so as to improve the efficiency of trials, and the judiciary should take all other measures necessary to facilitate the participation of witnesses, including sympathetic consideration of requested venue changes and docket management decisions that facilitate witness participation and protection.

(b) In conjunction with the executive branch of Government, the Supreme Court should use its constitutional powers over the practice of law to impress upon prosecutors that they have a duty to the public to uphold and protect human rights by acting to ensure the effective investigation of cases and protection of witnesses and that they should provide reasoned decisions for probable cause determinations.

73. Human rights should be safeguarded within the peace processes:

(a) The JMC should meet and fulfill its mandate under the CARHRIHL.

(b) Consideration should be given to establishing a mechanism for monitoring human rights abuses within the framework of the Government – MILF peace process.

74. The Commission on Human Rights (CHRP) should guard its independence and increase its effectiveness:

(a) CHRP should hire and train more investigators and provide them with the resources necessary for effective investigations.

(b) CHRP should increase the resources available for victim assistance to ensure that witnesses are sufficiently secure as to enable the non-judicial clarification of their cases.

(c) To provide more accountability in the AFP promotions process, CHRP should follow-up on its human rights clearance decisions by publicly tracking the subsequent promotion decisions of the AFP and the Commission on Appointments.

(d) CHRP should consider measures to more effectively protect as well as monitor human rights during military operations throughout the country.

75. The Ombudsman’s office should begin to fulfill effectively its independent constitutional role in responding to extrajudicial killings plausibly attributed to public officials.

76. The Government should reinstate a policy of facilitating the constitutionally-mandated role of Congressional oversight in relation to the AFP and the PNP, starting by rescinding all directives, memoranda, and orders that impede such oversight.

77. The CPP/NPA/NDF should stop using people’s courts that do not comply with human rights and humanitarian law standards and should ensure that lethal force is directed only against combatants and civilians directly participating in hostilities.

78. The CPP/NPA/NDF should repudiate statements that persons owe “blood debts”, have “accountabilities to the people”, or are subject to prosecution before people’s courts.

X x x.

Justice system reform: 2007 bench and bar dialog of Las Pinas City

I acknowledge the active participation of my law partner Atty. Myrna C. Mercader in the recently concluded 2007 bench and bar dialog of Las Pinas City, which was spearheaded by the Las Pinas City Bar Assn (LPBA), which we founded in 2001. Atty. Mercader and I are incumbent board consultants of the LPBA.

I thank the incumbent LPBA leaders, especially Chairman Dick Funk and President Melvyn Lagasca for managing the event.

Below is their joint report, which may be useful to legal researchers focusing on judicial reforms in the Philippines.

x x x.

Thank you for your kind support to the Bench and the Bar of Las Piñas City, In Re : The 2007 Bench and Bar Dialogue held on November 16, 2007 from 8:00 AM to 5:00 PM at the beautiful Garden/Pavilion of the Senate President Manuel B. Villar and Congresswoman Cynthia A. Villar at BF Resort Village, Las Piñas City with the theme “Uniting the Dispensers of Justice and Advocates of Law”.

It was a successful event, having been attended by 80 participants, guests and support staff consisting of RTC Judges: Hon. Erlinda Alvaro; Hon. Elizabeth Guray; Hon. Joselito Vibandor; Hon. Leopoldo Baraquia; Hon. Gloria Aglugub; Hon. Raul Villanueva; MeTC Executive Judge Marjorie Nolasco; and their respective Clerks of Courts; OCC Atty. Zandro Bato, Chief of Police PSSupt. Armando Clifton Empiso and his deputies, 23 Las Piñas City trial lawyers, 8 City Prosecutors, 2 Public Attorney (PAO), 3 Mediators, 5 Barangay Captains; DSWD, City Jail Wardens, the Parole and Probation Officer, representative of the United People Against Crime (UPAC) of the City, and other distinguished guests and personalities.

Unfortunately, no ranking representatives or senior legal staff from the Office of the Mayor, the Office of the City Legal Office, and the Office of the Vice Mayor (City Council) appeared despite prior notice and invitations. It could have been a good opportunity for the senior heads or representatives of the said Offices to directly hear and act on the various issues and concerns raised during the Dialogue affecting the local criminal justice systems, especially on the call for the creation of a local welfare and coordinating council concerning Juveniles in conflict of law, the creation of the youth training (detention) and rehabilitation center and formulating the policy guidelines and regulations for intervention and diversion program.

The luncheon speaker was the Honorable Cynthia A. Villar, Congresswoman, Las Piñas City, who generously allowed the use of her Garden/Pavilion as the venue of the event and who graciously sponsored the sumptuous lunch for the participants. We thank her for her kindness and support.

That Office of the Vice Mayor Henry C. Medina sponsored the snacks and the free flowing coffee by the Commonwealth Foods Inc., the maker of Café Puro. We thank them for their benevolent assistance.

The LPBA issued individual plaques of appreciation to the sponsors and certificates of attendance to the guests and participants.

A court stenographer had recorded the proceedings. Once the transcript shall have been transcribed and edited, we intend to publish, subject of course to the availability of funds, in book format, the proceedings of the 2007 Bench and Bar Dialogue for the future reference of the various pillars of the local criminal justice system.

The main concerns raised during the dialogue referred to the following:

I.

JAIL DECONGESTION

(CITY JAIL, PNP AND DSWD HOLDING FACILITY)

According to the report submitted it was only in March 2005 that the control and supervision of female inmates was segregated from the male. Since then, the female inmates are supervised by female wardens and other female staff.

In October 2006 with the newly constructed jail became the present shelter of detained males and females. The female dorm presently occupies the second floor and has three (3) cells. Only two (2) of these cells are utilized as confinement one. While the other one is use as multipurpose hall/visiting area.

Las Piñas City Jail Female Dorm has a total population of sixty-five (65) detainees. Majority of the cases are drug related while the rest are broken down to offenses such as theft, robbery, estafa/illegal recruitment, homicide, murder and kidnap-for-ransom.

In jail population it appears from the draft submitted that the number of confined inmates was highest in 1976 and has seemer down to almost equal that of 1969.

According to the Data on Commit and Release apparently this year July appears to be the highest, there being six (6) of them and the lowest being February, March, April and May with two (2) of them released.

In Crime Index violation of 6425 and 9165 is 67% while theft is 13% and others including robbery, homicide and murder 15%.

The age profiles of inmates for 90-30 is 20; 31-40 is 34; 41-50 is 7; 51-60 is 4; 61-70 is 2.

The following were listed as problems in the operation of the Las Piñas City Jail:

1. Lack of water supply

2. Lack of medicines

3. Lack of bunks and plywood

4. Unavailability of tent, chairs and tables in the visiting area for use of inmates and their visitors

5. No vehicle for use of inmates during court hearings

6. No sound systems to be used during activities

Decongestion is still a problem, the following have been considered the causes of said jail decongestion:

1. Numerous court vacancies;

2. Delays in the trial of cases and rendition of judgments;

3. Lack of means or financial capacity to pay bail aggravated by the practice of bonding agents to jack up premium of bail bonds; and

4. The lack of, in not inadequate legal representation (the single biggest factor of jail decongestion).

The Integrated Bar of the Philippines has already proposed a worthy project which is the jail decongestion program. Two of the more important matters considered in the decongestion program involve the participation of paralegal volunteers who are supposed to take the cudgel in interviewing and evaluating the fitness of the detention prisoners to undergo the reintegration stage.

Report and recommendation by the volunteer paralegal of the identified soon to be released detention prisoner to the IBP-NCLA legal aid lawyer who shall then select the detention prisoner qualified to undergo the reintegration stage of the JDP.

Coordination with the Jail Warden of the selected jails on the date and venue for the reintegration activity for the selected detention prisoners.

Coordination with various NGOs involved with social reintegration projects.

Identification and coordination with the psychologists to conduct the counseling of selected detention prisoners and the trainors who will conduct livelihood training.

Conduct psychological exam and evaluation, and the counseling of selected detention prisoners.

Conduct of crash course on livelihood project or any societal reintegration endeavor by the trainors.

Distribution of provisions for incidentals for the selected detention prisoners.

Release of overstaying detention prisoners.

The report likewise submitted for the consideration of the five (5) pillars of the justice system, consisting of law enforcement system, prosecution system, court system, correction and penal system, and the community integration system, the inmates welfare and development suggesting the following:

Livelihood projects such as Christmas Card Making, Sewing, Beads Accessories, Painting, Picture frame making, and Carpentry.

Community Relations such as: School Visits, Institute of Integrated Electrical Engineers.

Non-Formal Education/Vocational & Skills Training: Elementary & High School

Religious Activities such as: Catechism, Bible Study, Novena/Rosary, Holy Mass, Religious Meeting, and Recollection.

Sports & Recreation such as: Volleyball, Basketball, Table Tennis, Scrabble, Chess, Game of the General, and other activities.

II.

PHILIPPINE MEDIATION CENTER

AND ALTERNATIVE DISPUTE RESOLUTION

MEDIATOR RUBEN SY SUBMITTED THE FOLLOWING REPORT:

“Performance:

Over the past 12 months, there are 978 cases referred by the Courts to the Philippine Mediation Center for mediation.

Over the past 12 months, there are 534 cases successfully mediated out of 978 cases referred for mediation (per docket referral). A total of 182 cases were failed mediation or unsuccessful and 212 cases or equivalent to 22% of the total cases referred to PMC for mediation were returned to court without any action due to a) non-appearance of one or both of the parties (accounting for 84% incidence for back to court cases), b) refusal of the parties to mediate (15%) and c) lack of authority of the representative and non-mediateable cases (1%).

To sum up, 75% of cases mediated over the past 12 months period (November 2006 to October 2007) are successfully mediated while 24% were failed mediation. This is an improvement over the October 2005 to October 2006 performance of 66% success rate – with 410 cases successfully mediated out of 694 referred cases.

Current Problems:

Non-appearance of one or both of the parties for mediation, accounting for 84% of the total back to court cases (total of 212 back to court cases). Mathematically, at 75% rate of success in mediation, this could have been an additional reduction of 159 cases in the dockets of the Courts in Las Piñas over the past 12 months – had all the cases referred to PMC were mediated.

Another problem is on the BP22 cases. There are complainants who file only 1 case for 1 bounced check out of the several bounced checks in their possession. When they appear for mediation, they want to include in the discussion the settlement for all the other bounced checks that were not filed in court. This is to save on cost of filing fee and mediation fee. As a result, some lawyers are now questioning the concionability of the compromise agreement especially when it comes to enforcement of the compromise agreement through a Writ of Execution.

Suggested Solutions:

On problems related to non-appearance of the parties in mediation, court sanction against the absent party must strictly be implemented. Sanction must be similar to the court sanctions implemented by the court to the absent party on pre-trial, mediation being part of pre-trial.

On the problem regarding the BP22 cases mentioned above, there must be a common stand between the Court, the Prosecutors and the Lawyers taking into consideration the interest of both parties. The less checks filed, the smaller the amount of filing fees and mediation fees to be paid by the complainant. Since all of the expenses incurred by the complainant related to filing the case in court are charged against the accused, reducing the incidental expenses related to the case will somehow also benefit the accused.”

III.

ACCESS TO JUSTICE BY THE POOR

AND FREE LEGAL AID

The Public Attorney’s Office (PAO) expressed the view that with the number of criminal and civil cases they are handling the office really needs the assistance of Las Piñas City Bar Association, Inc. as in fact, a committee has been organized for that purpose and the members thereof has been extending their legal assistance to Las Piñas City residence faced with either criminal or civil litigation. More funding is required in the PAO to make the office more viable specially in employing the services of really competent and dedicated lawyers.

IV.

INSPIRATIONAL MESSAGE

In the inspirational message delivered by Congresswoman Cynthia A. Villar she reported the speedy passage of major bills affecting measures to suppress the trafficking of women and minors with stiffer penalties to violators. This is now R.A. 9208 or the Anti-Trafficking in Persons Act. On the other hand, to protect further child labor Republic Act 9321, an Act Eliminating the Worst Forms of Child Labor and Affording Stronger Protection for the Working Child which amended R.A. 7610 provided for more child protection and welfare has been enacted. Despite the advancement of civilization, there are still too many women who become victims of violence. To rectify this situation R.A. 9626, an Act defining violence against women and children, and providing preventive measures and penalties has been enacted. Hand and hand with these new pieces of legislations is R.A. 9344 or the Juvenile Justice and Welfare Act of 2006, which prohibits the detention of juvenile offenders with hardened criminals, has likewise been passed.

V.

The Statistical Data of WCPD Cases for 3^rd quarter, 2007 of the Las Piñas City Police Station shows the following:

CASES

TOTAL CASES

FILED IN CRT

REF

SETTLED

RECORD PURPOSE

UNDER INVEST

TOTAL ARRSTD

CASES ON WOMEN

RAPE	05	02	02	01			01
ATTEMPTED RAPE	01	01
SEXUAL ABUSE	01				01
UNJUST VEXATION	05	02			03		02
ACTS OF LASCV	04	03		01			01
PHYSICAL INJURY	17	12	03	01	01		02
ABDUCTION	02	01			01		01
TRESSPASS TO DWELLING	01	01
QQUALIFIED THEFT	01	01
ROBBERY	02	01			01
ORAL DEFAMATION	03	03					01
THREATS	04	02			02
MALTREATMENT	02				02
VIOL OF RA 9262	178	41	01	03	33		08
TOTAL	226	70	06	06	44		16

CASES ON CHILDREN

RAPE	20	09	10	01			05
ACTS OF LASCV	05	04	01
UNJUST VEXATION	01			01			01
SEXUAL ABUSE	03	03					01
PHYSICAL INJURY	20	15			05		01
VIOL OF RA 7610	09	06		01	02		02
ABDUCTION	01	01
SEDUCTION	03	02	01
QUALIFIED THEFT	01		01
KIDNAPPING	01	01
FAILURE TO RETURN A MINOR	01	01
MALTREATMENT	04	02			02
ABANDONMENT/NON-SUPPORT	01	01
TOTAL	70	45	13	03	09		10
GRAND TOTAL	296	86	19	09	53		26

Note: Number of counseling conducted: Six Hundred Eighty Five (685)

RECAP OF VIOL OF RA 9262 CASES FOR 3^RD QTR 2007

CASES	TOTAL CASES	FILED IN CRT	REF	SETTLED	RECORD PURPOSE	UNDER INVEST	TOTAL ARRSTD
PHYSICAL INJURY	30	18		02	10		06
ABANDONMENT/NON-SUPPORT	13	09			04
CONCUBINAGE	05	02			03
MALTREATMENT	11	04			07
BIGAMY	02	01	01
THREATS	10	03			07
VIOL OF RA 9262	07	04		01	02		02
TOTAL	178	41	01	03	33		08

VI.

PROPOSED RESOLUTIONS

Past President and Chairperson of the Las Piñas City Bar Association, Inc., Atty. Myrna Mercader submitted the following resolutions:

1. A resolution to express LPBA’s vehement protest against the red-handed travesty of the security and independence – if not the sacredness of the court, as what had happened to Atty. Rebecca Manuel Basa and her client who both, according to the newspapers reports, were both gunned down by a disgruntled respondent-husband right in the premises of the RTC Branch 199 on November 15, 2007 at about 10:00 a.m.

2. A resolution demanding the immediate designation of competent security guards or police officers for all the courts in Las Piñas City to avoid and prevent the happening of any similar incident which transpired in the sala of Judge Joselito DJ. Vibandor, RTC Branch 199 wherein a lawyer and her client were both killed by a gunman right inside the court premises on November 15, 2007 at about 10:00 a.m.

3. A resolution reminding the government body and public officials concerned for the speedy completion of two (2) family courts in Las Piñas City – RTC Br. 199 and RTC Br. 254 – and the completion of the construction of the Las Piñas Justice Hall which has been put on hold allegedly for lack of funds.

With respect to the principal part of the proceedings the following proposed resolutions were also made by Atty. Myrna Cueva-Mercader, to wit:

i. To urge, request and/or petition the Office of Congresswoman Villar, the Office of the Mayor of Las Piñas City, as well as the Office of the Sangguniang Panglungsod, to create a coordinating body or a council that shall take care of the implementation of R.A. 9262 and 9344 vis a vis or with the end in view of being able to construct a youth center that shall serve as a training center for the children in conflict with the law – whether victims, child victims, as well as homeless street children. Because these two need separate and independent prognosis and treatment. Also, for the formulation, design of the intervention programs as mandated in the law, as well as formulation of diversion policies including disposition on cases. This, to be addressed to the Office of the Congresswoman, Office of the Mayor and Office of the Sangguniang Panglungsod;

ii. To urge, request and petition the Office of the Sangguniang Panglungsod of Las Piñas City to allocate/appropriate 1% of the IRA to fund the implementation of R.A. 9262 and R.A. 9344;

iii. To urge, petition/request the BJMP National, as well as the COA for the review and evaluation of the definition of a commitment order, with end in view or to be able to accommodate for basis of funding and budgeting the commitment order or advise that the Prosecutor service is mandated to issue;

iv. To urge the Office of the Sangguniang, in conjunction with the Office of Congresswoman Villar, to provide the PNP, Las Piñas with bigger UI detention cells – screening from the report that on daily basis, given the number of crimes investigated, that they are always congested; and,

v. To recommend and adopt for purposes of the Supreme Court, copy furnished Congresswoman Villar and the judiciary, the recommendations of the Philippine Mediation Center, to wit:

(a) With respect to non-appearance of the parties in mediation that a court sanction against the absent party be imposed as provided by the Rules of Court on Pre-Trial involving absent parties during pre-trial;

(b) Regarding the BP22 cases referred to it for mediation that a common stand between the Court, the Prosecutors and the Lawyers taking into consideration the interest of both parties. The less checks filed, the smaller the amount of filing fees and mediation fees to be paid by the complainant. Since all of the expenses incurred by the complainant related to filing the case in court are charged against the accused, reducing the incidental expenses related to the case will somehow also benefit the accused; and finally,

vi. To endorse the requirement for funds of the Parole Probation Office for additional funds being endorsed to the Office of the Congresswoman, as well as Office of the Mayor and Office of the Sangguniang Panglungsod.

Atty. Richard V. Funk, Chairman of the LPBA likewise submitted a resolution to express the Association’s gratitude to the pillars of the justice system of Las Piñas City, to the members of the Las Piñas City Bar Association, the Integrated Bar of the Philippines – Pasay, Parañaque, Las Piñas, Muntinlupa Chapter, the Office of the Executive Judge with special commendation to RTC Judge Joselito DJ. Vibandor and MTC Judge Marjorie Nolasco who both attended the entire proceedings of the Bench and Bar Dialogue, the Heads of the pillars of justice system of Las Piñas City and the Office of the Court Administrator of the Supreme Court for the successful and productive conduct of the 2007 Bench and Bar Dialogue of Las Piñas City, the 16^th day of November, from 8:00 to 5:00 o’clock p.m. BF Resort, Las Piñas City.

We sincerely hope and pray that in the future Annual Dialogues of the Las Piñas City Criminal Justice System, which intends to explore and discuss reforms and improvements in the local criminal justice system, the officers of all the pillars of the local criminal justice system will continue to actively participate and share their time and resources for the good of the people of Las Piñas City.

The Bar will continue to look up to the Bench, the Congresswoman, the City Mayor, and the Vice Mayor (City Council) to support and inspire the efforts of the various pillars of the Las Piñas City Criminal Justice System to be more pro-active, institute innovative reforms and improve itself for the good of the Las Piñas constituents.

The officers of the LPBA will sit down with the RTC and METC Executive Judge, the RTC Judges of the Family Courts and the heads of the other justice pillars to conduct follow-up meetings and discussion on the aforecited concerns and issues affecting the local criminal justice system.

It is the desire of the LPBA, the working arm and link of IBP within Las Piñas City, to make the Las Piñas City Criminal Justice System an excellent model of unity, effectiveness, competence, and ethical standards for other provinces, cities and towns in the country to follow and emulate.

The success of the 2007 Bench and Bar Dialogue would not have been achieved without the close cooperation of the Bench, the Bar, the LGU, the Congresswoman of Las Piñas City, and the other pillars of the Las Piñas City Criminal Justice System.

We hope you will find the foregoing REPORT useful and informative for whatever legal, administrative and policy purposes it may serve.

Thank you and God Speed.

Sincerely yours,

Atty. MELVYN R. LAGASCA

LPBA President 2007-2008

Atty. RICHARD V. FUNK

LPBA Chairman 2007-2008

Cc: Office of the Court Administrator, Supreme Court

Integrated Bar of the Philippines, PPLM

LPBA Board of Directors

Dept. of Social Welfare and Development

Pillars of the LPC Criminal Justice System

RTC Judges

File