In the late 1960s, certain laws, which are digested hereinbelow, were passed by the Philippine Congress to alleviate the financial burdens of poor litigants. Sadly, these laws seem to have been mooted by gross inaction on the part of the pillars and administrators of the Justice System. There seem to be no annual performance or status reports from the concerned government bodies that describe the implementation of the said laws. These laws seemed to have died by reason of financial anemia and neglect.
Under R.A. No. 6033 (August 4, 1969), with the exception of habeas corpus and election cases and cases involving detention prisoners, and persons covered by R.A. No. 4908, all courts shall give preference to the hearing and/or disposition of criminal cases where an indigent is involved either as the offended party or accused. The trial in these cases shall commence within three days from date of arraignment and no postponement of the hearings shall be granted except on the ground of illness of the accused or other similar justifiable grounds. City and provincial fiscals and courts shall forthwith conduct the preliminary investigation of a criminal case involving an indigent within three days after its filing and shall terminate the same within two weeks. (Sec. 1).
The term "indigent" shall refer to a person who has no visible means of income or whose income is insufficient for the subsistence of his family, to be determined by the fiscal or judge, taking into account the members of his family dependent upon him for subsistence. (Sec. 2).
An indigent who is the offended party, respondent or an accused in a criminal case and who desires to avail of the preference granted under the act shall file a sworn statement of the fact of his being indigent and the said sworn statement shall be sufficient basis for the court or fiscal to give preference to the trial and disposition of such criminal case.
Under R.A. No. 6034 (August 4, 1969), any indigent litigant may, upon motion, ask the Court for adequate travel allowance to enable him and his indigent witnesses to attendant the hearing of a criminal case commenced by his complaint or filed against him. The allowance shall cover actual transportation expenses by the cheapest means from his place of residence to the court and back. When the hearing of the case requires the presence of the indigent litigant and/or his indigent witnesses in court the whole day or for two or more consecutive days, allowances may, in the discretion of the Court, also cover reasonable expenses for meal and lodging.
Indigent litigants shall include anyone who has no visible means of income or whose income is insufficient for his family.
If the court determines that the petition for transportation allowance is meritorious, said court shall immediately issue an order directing the provincial, city or municipal treasurer to pay the indigent litigant the travel allowance out of any funds in his possession and proceed without delay to the trial of the case. The provincial, city or municipal treasurer shall hold any such payments as cash items until reimbursed by the national government. (Sec. 2).
All payments of travel allowances made by provincial, city and municipal treasurer under the act as of October 31 each year, shall be transmitted to the Commissioner of the Budget not later than November 30 each year for inclusion in the annual General Appropriations Act. The necessary sum was authorized to be appropriated out of the funds in the National Treasury not otherwise appropriated. (Sec. 3).
Under R.A. No. 6035 (August 4, 1969), a stenographer who has attended a hearing before an investigating fiscal or trial judge or hearing commissioner of any quasi-judicial body or administrative tribunal and has officially taken notes of the proceeding thereof shall, upon written request of an indigent or low income litigant, his counsel or duly authorized representative in the case concerned, give within a reasonable period to be determined by the fiscal, judge, commissioner or tribunal hearing the case, a free certified transcript of notes take by him on the case. (Sec.1).
A litigant who desires to avail himself of the privilege granted under Section one hereof shall, at the investigation, hearing, or trial, establish his status as an indigent or low income litigant and the investigating fiscal or judge or commissioner or tribunal hearing the case shall resolve the same in the same proceeding. (Sec. 2).
The 1969 definition of an "indigent or low income litigant" shall include anyone who has no visible means of support or whose income does not exceed P300 per month or whose income even in excess of P300 per month is insufficient for the subsistence of his family, which fact shall be determined by the investigating fiscal or trial judge or commissioner or tribunal hearing the case taking into account the number of the members of his family dependent upon him for subsistence. (id.).
Any stenographer who, after due hearing in accordance with the pertinent provisions of Republic Act No. 2260, as amended, has been found to have violated the provisions of Section one of this Act or has unreasonable delayed the giving of a free certified transcript of notes to an indigent or low income litigant shall be subject to the following disciplinary actions:
(a) suspension from office for a period not exceeding thirty (30) days upon finding of guilt for the first time;
(b) suspension from office for not less than thirty (30) days and not more than sixty (60) days upon finding of guilt for the second time; and
(c) removal from office upon finding of guilt for the third time. (Sec. 3).
The Department of Justice shall prescribe such rules and regulations as may be necessary to carry out the purposes of the law, and the department head concerned shall provide the necessary supplies and authorize the use of government equipment by the stenographers concerned.
Under R.A. No. 6036 (August 4, 1969), bail shall not be required of a person charged with violation of a municipal or city ordinance, a light felony and/or a criminal offense the prescribed penalty for which is not higher than six months imprisonment and/or a fine of two thousand pesos, or both, where said person has established to the satisfaction of the court or any other appropriate authority hearing his case that he is unable to post the required cash or bail bond. (Sec. 1).
The exceptions are the following:
(a) When he is caught committing the offense in flagranti;
(b) When he confesses to the commission of the offense unless the confession is later repudiated by him in a sworn statement or in open court as having been extracted through force or intimidation;
(c) When he is found to have previously escaped from legal confinement, evaded sentence, or jumped bail;
(d) When he is found to have previously violated the provisions of Section 2 hereof;
(e) When he is found to be a recidivist or a habitual delinquent or has been previously convicted for an offense to which the law or ordinance attaches an equal or greater penalty or for two or more offenses to which it attaches a lighter penalty;
(f) When he commits the offense while on parole or under conditional pardon; and
(g) When the accused has previously been pardoned by the municipal or city mayor for violation of municipal or city ordinance for at least two times. (id.).
Section 2 of the law provides that instead of bail, the person charged with any offense contemplated by Section 1 shall be required to sign in the presence of two witnesses of good standing in the community a sworn statement binding himself, pending final decision of his case, to report to the Clerk of the Court hearing his case periodically every two weeks. The Court may, in its discretion and with the consent of the person charged, require further that he be placed under the custody and subject to the authority of a responsible citizen in the community who may be willing to accept the responsibility. In such a case the affidavit herein mentioned shall include a statement of the person charged that he binds himself to accept the authority of the citizen so appointed by the Court. The Clerk of Court shall immediately report the presence of the accused person to the Court. This is RECOGNIZANCE.
Except when his failure to report is for justifiable reasons including circumstances beyond his control to be determined by the Court, any violation of this sworn statement shall justify the Court to order his immediate arrest unless he files bail in the amount forthwith fixed by the Court.
Friday, June 12, 2009
Speedy trial; double jeopardy
The recent case of DANTE T. TAN vs. PEOPLE OF THE PHILIPPINES, G.R. No. 173637, April 21, 2009, deals with the issues of speedy trial and double jeopardy. Although the doctrinal pronouncements therein are not novel, I deem it useful to digest the case, as a refresher material for the legal researchers visiting this law blog.
(Note: As widely known in Philippine business circles, the criminal cases involving the petitioner Dante Tan, who was a crony of past Philippine president Joseph Estrada, were somehow related to the murder of publicist Bubby Dacer some years back. The recent reopening of the preliminary investigation of the Dacer murder case by Justice Secretary Raul Gonzalez, now the Chief Presidential Legal Counsel, will surely drag the names of Estrada and his former national police chief and now Sen. Panfilo Lacson into the proceedings).
A digest of the abovementioned Supreme Court decision follows hereinbelow.
On 19 December 2000, a Panel of Prosecutors of the Department of Justice (DOJ), on behalf of the People of the Philippines (People), filed three Informations against Dante T. Tan the Regional Trial Court (RTC) of Pasig City. The cases pertained to allegations that petitioner employed manipulative devises in the purchase of Best World Resources Corporation (BW) shares and the alleged failure of petitioner to file with the Securities and Exchange Commission (SEC) a sworn statement of his beneficial ownership of BW shares. In two other related cases, two Informations were filed against a certain Jimmy Juan and Eduardo G. Lim for violation of the Revised Securities Act involving BW shares of stock. On the same day, the DOJ, through Assistant Chief State Prosecutor Nilo C. Mariano, filed a Motion for Consolidation praying that the cases be consolidated together which the trial court granted. Petitioner was arraigned on 16 January 2001, and pleaded not guilty to the charges. On 6 February 2001, the pre-trial was concluded, and a pre-trial order set, among other things, the first date of trial on 27 February 2001.
At the crux of the controversy was the issue of whether there was a violation of petitioner Dante Tan’s right to speedy trial.
Petitioner assailed the decision and resolution of the Court of Appeals which determined that he “impliedly agreed” that his case would not be tried until after termination of the other related cases.
Offhand, the Court stated that an accused’s right to “have a speedy, impartial, and public trial” is guaranteed in criminal cases by Section 14(2) of Article III of the Constitution. This right to a speedy trial may be defined as one free from vexatious, capricious and oppressive delays, its “salutary objective” being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose. The oft-repeated adage “justice delayed is justice denied” requires the expeditious resolution of disputes, much more so in criminal cases where an accused is constitutionally guaranteed the right to a speedy trial.
The Court added that following the policies incorporated under the 1987 Constitution, Republic Act No. 8493, otherwise known as “The Speedy Trial Act of 1998,” was enacted, with Section 6 of said act limiting the trial period to 180 days from the first day of trial. Aware of problems resulting in the clogging of court dockets, the Court implemented the law by issuing Supreme Court Circular No. 38-98, which has been incorporated in the 2000 Rules of Criminal Procedure, Section 2 of Rule 119.
The Court emphasized qualified that a balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis. In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant’s assertion of his right; and (d) prejudice to the defendant. Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State.
In the case at bar, it was established that from the initial hearing on 27 February 2001 until the time the prosecution filed its formal offer of evidence for Criminal Cases No. 119831-119832 on 25 November 2003, both prosecution and defense admitted that no evidence was presented for Criminal Case No. 119830. Hence, for a period of almost two years and eight months, the prosecution did not present a single evidence for Criminal Case No. 119830. The question was whether there was vexatious, capricious, and oppressive delay. To this, the Court applied the four-factor test previously mentioned. It stated that in determining the right of an accused to speedy trial, courts are required to do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. A mere mathematical reckoning of the time involved is clearly insufficient, and particular regard must be given to the facts and circumstances peculiar to each case.
In previous cases the Court ruled that there was no violation of the right to speedy trial and speedy disposition where the delay was attended by the frequent amendments of procedural laws by presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction, and the functions and powers of prosecuting agencies. The Court also considered the failure of the accused to assert such right, the complexity of the issues, the conduct of the lawyers of the accused, and the lack of prejudice caused by the delay to the accused.
Petitioner’s objection to the prosecution’s stand that he gave an implied consent to the separate trial of Criminal Case No. 119830 is belied by the records of the case. No objection was interposed by his defense counsel when this matter was discussed during the initial hearing. Petitioner’s conformity thereto can be deduced from his non-objection at the preliminary hearing when the prosecution manifested that the evidence to be presented would be only for Criminal Cases No. 119831-119832. His failure to object to the prosecution’s manifestation that the cases be tried separately is fatal to his case. The acts, mistakes and negligence of counsel bind his client, except only when such mistakes would result in serious injustice. In fact, petitioner’s acquiescence is evident from the transcript of stenographic notes during the initial presentation of the People’s evidence in the five BW cases on 27 February 2001, which the Court quoted extensively.
The Court stressed that although periods for trial have been stipulated, these periods were not absolute. Where periods had been set, certain exclusions were allowed by law. After all, the Court and the law recognize the fact that judicial proceedings did not exist in a vacuum and had to contend with the realities of everyday life. In spite of the prescribed time limits, jurisprudence continued to adopt the view that the fundamentally recognized principle was that the concept of speedy trial was a relative term and must necessarily be a flexible concept.
As to the assertion that delay in the presentation of evidence for Criminal Case No. 119830 has prejudiced petitioner because the witnesses for the defense may no longer be available at this time, the Court stated that suffice it to say that the burden of proving his guilt rests upon the prosecution. Should the prosecution fail for any reason to present evidence sufficient to show his guilt beyond reasonable doubt, petitioner would be acquitted. Unless the prosecution discharges its burden to prove the guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.
On a related issue, the Court stated that there was no merit to petitioner’s claim that a reversal of the RTC’s Order dismissing Criminal Case No. 119830 was a violation of his constitutional right against double jeopardy which dismissal was founded on an alleged violation of his right to speedy trial.
The constitutional protection against double jeopardy shields one from a second or later prosecution for the same offense. Article III, Section 21 of the 1987 Constitution declares that no person shall be twice put in jeopardy of punishment for the same offense, providing further that if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
Following the above constitutional provision, Section 7, Rule 117 of the Revised Rules of Court found it apt to stipulate:
SEC. 7. Former conviction or acquittal; double jeopardy. – When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.
For double jeopardy to attach then, the following elements in the first criminal case must be present:
(a) The complaint or information or other formal charge was sufficient in form and substance to sustain a conviction;
(b) The court had jurisdiction;
(c) The accused had been arraigned and had pleaded; and
(d) He was convicted or acquitted or the case was dismissed or otherwise terminated without the express consent of the accused.
In the case at bar, the Court held that double jeopardy had not attached, considering that the dismissal of Criminal Case No. 119830 on the ground of violation of his right to speedy trial was without basis and issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Where the right of the accused to speedy trial had not been violated, there was no reason to support the initial order of dismissal. Although it was true that in an unbroken line of cases, the Court had held that dismissal of cases on the ground of failure to prosecute was equivalent to an acquittal that would bar further prosecution of the accused for the same offense, it stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. Double jeopardy did not apply to this case, considering that there was no violation of petitioner’s right to speedy trial.
Indeed, the Court held that for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone. Evidently, the task of the pillars of the criminal justice system was to preserve our democratic society under the rule of law, ensuring that all those who appeared before or were brought to the bar of justice were afforded a fair opportunity to present their side. The State, like any other litigant, was entitled to its day in court, and to a reasonable opportunity to present its case. A hasty dismissal, instead of unclogging dockets, had actually increased the workload of the justice system and unwittingly prolonged the litigation.
Finally, the Court reiterated that the rights given to the accused by the Constitution and the Rules of Court were shields, not weapons. Courts were tasked to give meaning to that intent. There being no capricious, vexatious, oppressive delay in the proceedings, and no postponements unjustifiably sought, it dismissed the petition.
(Note: As widely known in Philippine business circles, the criminal cases involving the petitioner Dante Tan, who was a crony of past Philippine president Joseph Estrada, were somehow related to the murder of publicist Bubby Dacer some years back. The recent reopening of the preliminary investigation of the Dacer murder case by Justice Secretary Raul Gonzalez, now the Chief Presidential Legal Counsel, will surely drag the names of Estrada and his former national police chief and now Sen. Panfilo Lacson into the proceedings).
A digest of the abovementioned Supreme Court decision follows hereinbelow.
On 19 December 2000, a Panel of Prosecutors of the Department of Justice (DOJ), on behalf of the People of the Philippines (People), filed three Informations against Dante T. Tan the Regional Trial Court (RTC) of Pasig City. The cases pertained to allegations that petitioner employed manipulative devises in the purchase of Best World Resources Corporation (BW) shares and the alleged failure of petitioner to file with the Securities and Exchange Commission (SEC) a sworn statement of his beneficial ownership of BW shares. In two other related cases, two Informations were filed against a certain Jimmy Juan and Eduardo G. Lim for violation of the Revised Securities Act involving BW shares of stock. On the same day, the DOJ, through Assistant Chief State Prosecutor Nilo C. Mariano, filed a Motion for Consolidation praying that the cases be consolidated together which the trial court granted. Petitioner was arraigned on 16 January 2001, and pleaded not guilty to the charges. On 6 February 2001, the pre-trial was concluded, and a pre-trial order set, among other things, the first date of trial on 27 February 2001.
At the crux of the controversy was the issue of whether there was a violation of petitioner Dante Tan’s right to speedy trial.
Petitioner assailed the decision and resolution of the Court of Appeals which determined that he “impliedly agreed” that his case would not be tried until after termination of the other related cases.
Offhand, the Court stated that an accused’s right to “have a speedy, impartial, and public trial” is guaranteed in criminal cases by Section 14(2) of Article III of the Constitution. This right to a speedy trial may be defined as one free from vexatious, capricious and oppressive delays, its “salutary objective” being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose. The oft-repeated adage “justice delayed is justice denied” requires the expeditious resolution of disputes, much more so in criminal cases where an accused is constitutionally guaranteed the right to a speedy trial.
The Court added that following the policies incorporated under the 1987 Constitution, Republic Act No. 8493, otherwise known as “The Speedy Trial Act of 1998,” was enacted, with Section 6 of said act limiting the trial period to 180 days from the first day of trial. Aware of problems resulting in the clogging of court dockets, the Court implemented the law by issuing Supreme Court Circular No. 38-98, which has been incorporated in the 2000 Rules of Criminal Procedure, Section 2 of Rule 119.
The Court emphasized qualified that a balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis. In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant’s assertion of his right; and (d) prejudice to the defendant. Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State.
In the case at bar, it was established that from the initial hearing on 27 February 2001 until the time the prosecution filed its formal offer of evidence for Criminal Cases No. 119831-119832 on 25 November 2003, both prosecution and defense admitted that no evidence was presented for Criminal Case No. 119830. Hence, for a period of almost two years and eight months, the prosecution did not present a single evidence for Criminal Case No. 119830. The question was whether there was vexatious, capricious, and oppressive delay. To this, the Court applied the four-factor test previously mentioned. It stated that in determining the right of an accused to speedy trial, courts are required to do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. A mere mathematical reckoning of the time involved is clearly insufficient, and particular regard must be given to the facts and circumstances peculiar to each case.
In previous cases the Court ruled that there was no violation of the right to speedy trial and speedy disposition where the delay was attended by the frequent amendments of procedural laws by presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat, resulting in changes of personnel, preliminary jurisdiction, and the functions and powers of prosecuting agencies. The Court also considered the failure of the accused to assert such right, the complexity of the issues, the conduct of the lawyers of the accused, and the lack of prejudice caused by the delay to the accused.
Petitioner’s objection to the prosecution’s stand that he gave an implied consent to the separate trial of Criminal Case No. 119830 is belied by the records of the case. No objection was interposed by his defense counsel when this matter was discussed during the initial hearing. Petitioner’s conformity thereto can be deduced from his non-objection at the preliminary hearing when the prosecution manifested that the evidence to be presented would be only for Criminal Cases No. 119831-119832. His failure to object to the prosecution’s manifestation that the cases be tried separately is fatal to his case. The acts, mistakes and negligence of counsel bind his client, except only when such mistakes would result in serious injustice. In fact, petitioner’s acquiescence is evident from the transcript of stenographic notes during the initial presentation of the People’s evidence in the five BW cases on 27 February 2001, which the Court quoted extensively.
The Court stressed that although periods for trial have been stipulated, these periods were not absolute. Where periods had been set, certain exclusions were allowed by law. After all, the Court and the law recognize the fact that judicial proceedings did not exist in a vacuum and had to contend with the realities of everyday life. In spite of the prescribed time limits, jurisprudence continued to adopt the view that the fundamentally recognized principle was that the concept of speedy trial was a relative term and must necessarily be a flexible concept.
As to the assertion that delay in the presentation of evidence for Criminal Case No. 119830 has prejudiced petitioner because the witnesses for the defense may no longer be available at this time, the Court stated that suffice it to say that the burden of proving his guilt rests upon the prosecution. Should the prosecution fail for any reason to present evidence sufficient to show his guilt beyond reasonable doubt, petitioner would be acquitted. Unless the prosecution discharges its burden to prove the guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in his behalf.
On a related issue, the Court stated that there was no merit to petitioner’s claim that a reversal of the RTC’s Order dismissing Criminal Case No. 119830 was a violation of his constitutional right against double jeopardy which dismissal was founded on an alleged violation of his right to speedy trial.
The constitutional protection against double jeopardy shields one from a second or later prosecution for the same offense. Article III, Section 21 of the 1987 Constitution declares that no person shall be twice put in jeopardy of punishment for the same offense, providing further that if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
Following the above constitutional provision, Section 7, Rule 117 of the Revised Rules of Court found it apt to stipulate:
SEC. 7. Former conviction or acquittal; double jeopardy. – When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.
For double jeopardy to attach then, the following elements in the first criminal case must be present:
(a) The complaint or information or other formal charge was sufficient in form and substance to sustain a conviction;
(b) The court had jurisdiction;
(c) The accused had been arraigned and had pleaded; and
(d) He was convicted or acquitted or the case was dismissed or otherwise terminated without the express consent of the accused.
In the case at bar, the Court held that double jeopardy had not attached, considering that the dismissal of Criminal Case No. 119830 on the ground of violation of his right to speedy trial was without basis and issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Where the right of the accused to speedy trial had not been violated, there was no reason to support the initial order of dismissal. Although it was true that in an unbroken line of cases, the Court had held that dismissal of cases on the ground of failure to prosecute was equivalent to an acquittal that would bar further prosecution of the accused for the same offense, it stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. Double jeopardy did not apply to this case, considering that there was no violation of petitioner’s right to speedy trial.
Indeed, the Court held that for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone. Evidently, the task of the pillars of the criminal justice system was to preserve our democratic society under the rule of law, ensuring that all those who appeared before or were brought to the bar of justice were afforded a fair opportunity to present their side. The State, like any other litigant, was entitled to its day in court, and to a reasonable opportunity to present its case. A hasty dismissal, instead of unclogging dockets, had actually increased the workload of the justice system and unwittingly prolonged the litigation.
Finally, the Court reiterated that the rights given to the accused by the Constitution and the Rules of Court were shields, not weapons. Courts were tasked to give meaning to that intent. There being no capricious, vexatious, oppressive delay in the proceedings, and no postponements unjustifiably sought, it dismissed the petition.
Manny Villar
Past Philippine Senate President (and hopefully the next Philippine President) Manny Villar -- who, like his supportive wife Rep. Cynthia Villar, is a friend of the Las Pinas City Bar Association (LPBA), Inc. -- is now in New York to attend the 111th Philippine Independence Day celebration there.
My long-time friend Manny Caballero, a columnist of New York-based THE FILIPINO REPORTER, in his latest column, wrote the following about our common tukayo Manny Villar, to wit:
“Senator Villar told me he believed Malacanang had a direct hand in the approval of House of Representatives Resolution 1109, which did not involve the Senate. HR 1109 intends to convene Filipino congressmen into a Constituent Assembly to propose amendments to the Philippine Constitution.
We view the measure as putting the Filipino people on notice that the Congressmen intend to violate the provision of the Philippine Constitution on amendments.
A leading constitutionalist in Manila commented that the Congressmen announced that they will commit a crime.
The common observation about the measure is that it is a way to extend the stay of President Arroyo in power, either as president or prime minister under a parliamentary type of government.”
Below is the full text of Manny Caballero’s column.
ON MY WATCH
By Manuel L. Caballero
THE FILIPINO REPORTER
New Jersey and New York, USA
June 12, 2009
The day-long Philippine Independence Day Parade & Festival held in New York City over the weekend was orderly and successful.
Let’s congratulate the organizers this year, under the leadership of Philippine Independence Day Council, Inc. (PIDCI) president Gerry M. Austria of Jersey City, NJ. It seems to me that the glamour and excitement of this celebration had gone back to its old glory since Filipinos from New Jersey started to get elected to lead PIDCI. (This is only a big joke because I know New York Pinoys will disagree).
Seriously, kudos to the hard work of Gerry, the famed American Pinoy, and his colleagues in the PIDCI Board.
* * *
Two serious and leading contenders for the presidency of the Philippines in 2010 and probably one in 2016 were at the New York parade last Sunday. They are Vice President Noli de Castro and former Senate president Manny Villar. The 2016 guy who looked more of an Italian to me than a Filipino is Sen. Alan Peter Cayetano.
History proves that marching in the New York Philippine parade brings good luck to Filipino presidential candidates. In the past, as candidates, former presidents Fidel V. Ramos and Joseph Estrada joined the NY parade. Both won in subsequent elections.
President Gloria M. Arroyo, when she was still vice president, also marched in this parade. Later on, she became president, and is still the president. It seems, she wants to cling to power even after the expiration of her term next year. I will discuss this subject below.
If you were at the festival site last Sunday, where at around 4:30 p.m., a group of 12 young protesters suddenly appeared, each demonstrating a specific issue, you’d know what I mean. One of the placards read “NO TO GMA’S CON-ASS!” Con-Ass means Constituent Assembly, not the usual ass word. If you were a GMA critic, I guess you could use the word any way you wish.
Let’s get back to business. I had a chance to speak with the two senators separately on some Philippine- related issues in the corner of Park Avenue South and 23rd Street after the parade. Let me share some of our topics.
(I did not seek an interview with Vice President de Castro because I will have the opportunity to talk to him next week as he keynotes the GK 2024 Global Summit in Boston).
Senator Villar told me he believed Malacanang had a direct hand in the approval of House of Representatives Resolution 1109, which did not involve the Senate. HR 1109 intends to convene Filipino congressmen into a Constituent Assembly to propose amendments to the Philippine Constitution.
We view the measure as putting the Filipino people on notice that the Congressmen intend to violate the provision of the Philippine Constitution on amendments.
A leading constitutionalist in Manila commented that the Congressmen announced that they will commit a crime.
The common observation about the measure is that it is a way to extend the stay of President Arroyo in power, either as president or prime minister under a parliamentary type of government.
In the same interview, Senator Villar categorically denied that he committed wrongdoing on a government road project in the Paranaque area which is now under investigation by his fellow senators for allegedly benefiting his real estate business.
“The worst punishment for the offense they are investigating me for is reprimand,” said the former senate president. The senator seemed to say that his colleagues were merely wasting time. “It’s all politics,” added Sen. Villar.
The senator also told me he was a Couples for Christ member and that he was a supporter of Gawad Kalinga.
Senator Cayetano, on the other hand, said he was in New York, not as a candidate. He told me he would just campaign in 2010. Evidently, for Sen. Villar. He could also be the vice presidential team mate of Mr. Villar. The two are traveling together.
The youthful senator, who chairs the Senate Blue Ribbon Committee, wanted to send a message to Filipinos in America. He spoke of a “new independence.” The senator spoke of independence of Filipinos from poverty, unemployment, hunger and other social ills. “We should strive to achieve this ‘new independence’ for the Filipino people,” Sen. Cayetano also said.
* * *
In the U.S.A., according to a published report from the Associated Press, President Obama's disapproval rating on the economy has risen from 30 percent in February to 42 percent according to a Gallup poll completed May 31.
The president’s critics are quick to seize the moment by renewing their criticisms that the stimulus plan has not shown results, only mounting debt.
"This is President Obama's economy, and his administration must provide results and specifics rather than vague descriptions of success that seem to change by the week," said House Republican Whip Eric Cantor of Virginia.
The President answered back his critics during Monday's Cabinet meeting.
"Now, I know that there's some who, despite all evidence to the contrary, still don't believe in the necessity and promise of this recovery act," he said.
"And I would suggest to them that they talk to the companies who, because of this plan, scrapped the idea of laying off employees and, in fact, decided to hire employees. Tell that to the Americans who received that unexpected call saying, 'Come back to work.'"
Although, the President admitted in the same cabinet meeting he was not satisfied with how the economic stimulus was working.
My long-time friend Manny Caballero, a columnist of New York-based THE FILIPINO REPORTER, in his latest column, wrote the following about our common tukayo Manny Villar, to wit:
“Senator Villar told me he believed Malacanang had a direct hand in the approval of House of Representatives Resolution 1109, which did not involve the Senate. HR 1109 intends to convene Filipino congressmen into a Constituent Assembly to propose amendments to the Philippine Constitution.
We view the measure as putting the Filipino people on notice that the Congressmen intend to violate the provision of the Philippine Constitution on amendments.
A leading constitutionalist in Manila commented that the Congressmen announced that they will commit a crime.
The common observation about the measure is that it is a way to extend the stay of President Arroyo in power, either as president or prime minister under a parliamentary type of government.”
Below is the full text of Manny Caballero’s column.
ON MY WATCH
By Manuel L. Caballero
THE FILIPINO REPORTER
New Jersey and New York, USA
June 12, 2009
The day-long Philippine Independence Day Parade & Festival held in New York City over the weekend was orderly and successful.
Let’s congratulate the organizers this year, under the leadership of Philippine Independence Day Council, Inc. (PIDCI) president Gerry M. Austria of Jersey City, NJ. It seems to me that the glamour and excitement of this celebration had gone back to its old glory since Filipinos from New Jersey started to get elected to lead PIDCI. (This is only a big joke because I know New York Pinoys will disagree).
Seriously, kudos to the hard work of Gerry, the famed American Pinoy, and his colleagues in the PIDCI Board.
* * *
Two serious and leading contenders for the presidency of the Philippines in 2010 and probably one in 2016 were at the New York parade last Sunday. They are Vice President Noli de Castro and former Senate president Manny Villar. The 2016 guy who looked more of an Italian to me than a Filipino is Sen. Alan Peter Cayetano.
History proves that marching in the New York Philippine parade brings good luck to Filipino presidential candidates. In the past, as candidates, former presidents Fidel V. Ramos and Joseph Estrada joined the NY parade. Both won in subsequent elections.
President Gloria M. Arroyo, when she was still vice president, also marched in this parade. Later on, she became president, and is still the president. It seems, she wants to cling to power even after the expiration of her term next year. I will discuss this subject below.
If you were at the festival site last Sunday, where at around 4:30 p.m., a group of 12 young protesters suddenly appeared, each demonstrating a specific issue, you’d know what I mean. One of the placards read “NO TO GMA’S CON-ASS!” Con-Ass means Constituent Assembly, not the usual ass word. If you were a GMA critic, I guess you could use the word any way you wish.
Let’s get back to business. I had a chance to speak with the two senators separately on some Philippine- related issues in the corner of Park Avenue South and 23rd Street after the parade. Let me share some of our topics.
(I did not seek an interview with Vice President de Castro because I will have the opportunity to talk to him next week as he keynotes the GK 2024 Global Summit in Boston).
Senator Villar told me he believed Malacanang had a direct hand in the approval of House of Representatives Resolution 1109, which did not involve the Senate. HR 1109 intends to convene Filipino congressmen into a Constituent Assembly to propose amendments to the Philippine Constitution.
We view the measure as putting the Filipino people on notice that the Congressmen intend to violate the provision of the Philippine Constitution on amendments.
A leading constitutionalist in Manila commented that the Congressmen announced that they will commit a crime.
The common observation about the measure is that it is a way to extend the stay of President Arroyo in power, either as president or prime minister under a parliamentary type of government.
In the same interview, Senator Villar categorically denied that he committed wrongdoing on a government road project in the Paranaque area which is now under investigation by his fellow senators for allegedly benefiting his real estate business.
“The worst punishment for the offense they are investigating me for is reprimand,” said the former senate president. The senator seemed to say that his colleagues were merely wasting time. “It’s all politics,” added Sen. Villar.
The senator also told me he was a Couples for Christ member and that he was a supporter of Gawad Kalinga.
Senator Cayetano, on the other hand, said he was in New York, not as a candidate. He told me he would just campaign in 2010. Evidently, for Sen. Villar. He could also be the vice presidential team mate of Mr. Villar. The two are traveling together.
The youthful senator, who chairs the Senate Blue Ribbon Committee, wanted to send a message to Filipinos in America. He spoke of a “new independence.” The senator spoke of independence of Filipinos from poverty, unemployment, hunger and other social ills. “We should strive to achieve this ‘new independence’ for the Filipino people,” Sen. Cayetano also said.
* * *
In the U.S.A., according to a published report from the Associated Press, President Obama's disapproval rating on the economy has risen from 30 percent in February to 42 percent according to a Gallup poll completed May 31.
The president’s critics are quick to seize the moment by renewing their criticisms that the stimulus plan has not shown results, only mounting debt.
"This is President Obama's economy, and his administration must provide results and specifics rather than vague descriptions of success that seem to change by the week," said House Republican Whip Eric Cantor of Virginia.
The President answered back his critics during Monday's Cabinet meeting.
"Now, I know that there's some who, despite all evidence to the contrary, still don't believe in the necessity and promise of this recovery act," he said.
"And I would suggest to them that they talk to the companies who, because of this plan, scrapped the idea of laying off employees and, in fact, decided to hire employees. Tell that to the Americans who received that unexpected call saying, 'Come back to work.'"
Although, the President admitted in the same cabinet meeting he was not satisfied with how the economic stimulus was working.
Wednesday, June 10, 2009
Pampilo N. Encarnacion
EULOGY DELIVERED DURING THE FUNERAL VIGIL FOR THE LATE ATTY. PAMPILO N. ENCARNACION HELD ON JUNE 9, 2009 AT 8:00 PM AT PHILAMLIFE VILLAGE PARISH CHURH, LAS PINAS CITY.
With deep sorrow, may I extend my deepest condolences to the bereaved family of our beloved and well respected brother in the legal profession, Atty. Pampilo N. Encarnacion, who had lived a full and happy life as a family man and as an officer of the court, a life filled with the selfless spirit of enlightened public service to the Bar and the community.
Pampi, as we in the Bar fondly call Atty. Encarnacion, was a Founding Member and a Founding Director of the Las Pinas City Bar Association (LPBA), Inc. in March 2001.
Since 2001, prior to his death, Pampi had served our local voluntary Bar Association in various official capacities, such as Treasurer, Auditor, and Vice President.
Prior to his involvement in the local Bar of Las Pinas City in 2001, Pampi had served with dedication as a Director of the Cavite Chapter of the Integrated bar of the Philippines.
Last year, due to his poor health, Pampi begged off when invited to serve as the next Chairman of the Las Pinas City Bar Association.
As we all know, our local Bar Association is currently headed and managed by equally competent and dedicated Bar leaders, Atty. Melvyn Lagasca, as chairman, and Atty. Hilda Clave, as president.
A native of the historical and beautiful town of Kawit, Cavite, Pampi was a respected and honored son of the province of Cavite which he had selflessly served for many years as an advocate of law and justice.
Born in 1937, Pampi first worked for many years as a management executive in a private corporation in Makati before be studied law at the college of law of the prestigious Lyceum of the Philippines, the academic legacy of the Laurel Family to the Filipino nation.
Pampi was admitted to the Bar in 1973 at the age of 36, developed by many years of experience as a businessman, management executive and consultant, and thinker.
At the time of the death of Pampi, our respective law offices were adverse lawyers in major civil cases pending with the Regional Trial Courts of Pasay City and Makati City involving big and prime real properties located on the Zapote-Alabang Road, Las Piñas City.
My law partner, Atty. Myrna Mercader, represented our office in the said cases. Pampi represented the plaintiffs. From time to time, I would read the legal pleadings of Pampi.
I respect Pampi as a member of the Bar, as a legal advocate and litigator, and as a legal writer and thinker.
For one, I was impressed by the elegance, maturity, clarity, and scholarship of the language and written presentations of his court pleadings and the enlightened and comprehensive arguments and citations that supported them.
His mind was always clear and focused when he researched, prepared and wrote his legal pleadings.
His untimely death will deprive our office of the precious opportunity to continue to learn from him.
In the morning of June 2, 2009 last week, which was the day before Pampi was confined, Pampi and I were together at the Hall of Justice of Makati City to attend our separate court hearings. We talked about his health. His 13-year old grandson was with him. If there was one thing that Pampi and I shared as our common denominator, aside from our common love of the law and justice, it is our COPD, or our “chronic obstructive pulmonary disease”, a common disease among overworked trial lawyers that is associated with many years of stress and anxiety.
While waiting for the elevator at the Makati hall of justice, Pampi told me that he was retiring from law practice and that he was just finishing all his pending cases out of a sense of duty and responsibility to his clients who were relying on his wisdom, zeal and loyalty as a litigator to protect their rights and property.
Pampi stated that he needed more private and quality time to rest and recuperate, to smell the flowers, so to speak, and to enjoy the company of his beloved family and grandchildren.
Being a grandfather myself, I felt in my heart the subtle spiritual meanings of his personal nostalgic longings.
The next day, I received a message from Atty. Melvyn Lagasca informing the local Bar of the sudden confinement of Pampi at the intensive care unit of the University of Perpetual Help Rizal Medical Center, Las Pinas City and asking the local Bar to pray for Pampi’s recovery.
Pampi’s death is a great loss to the Philippine Bar.
We, whom Pampi has left behind, need not worry for him.
In the light of the selfless love, unconditional charity and dedicated service that Pampi had shown to his family and his fellowmen while he was still alive, God and Nature will reward and bless him with divine happiness and true liberation from suffering.
Thank you.
Atty. Manuel J. Laserna Jr.
Founder and Consultant
Las Pinas City Bar Association
lcmlaw@gmail.com
http://attylaserna.blogspot.com
http://lcmlaw.multiply.com
With deep sorrow, may I extend my deepest condolences to the bereaved family of our beloved and well respected brother in the legal profession, Atty. Pampilo N. Encarnacion, who had lived a full and happy life as a family man and as an officer of the court, a life filled with the selfless spirit of enlightened public service to the Bar and the community.
Pampi, as we in the Bar fondly call Atty. Encarnacion, was a Founding Member and a Founding Director of the Las Pinas City Bar Association (LPBA), Inc. in March 2001.
Since 2001, prior to his death, Pampi had served our local voluntary Bar Association in various official capacities, such as Treasurer, Auditor, and Vice President.
Prior to his involvement in the local Bar of Las Pinas City in 2001, Pampi had served with dedication as a Director of the Cavite Chapter of the Integrated bar of the Philippines.
Last year, due to his poor health, Pampi begged off when invited to serve as the next Chairman of the Las Pinas City Bar Association.
As we all know, our local Bar Association is currently headed and managed by equally competent and dedicated Bar leaders, Atty. Melvyn Lagasca, as chairman, and Atty. Hilda Clave, as president.
A native of the historical and beautiful town of Kawit, Cavite, Pampi was a respected and honored son of the province of Cavite which he had selflessly served for many years as an advocate of law and justice.
Born in 1937, Pampi first worked for many years as a management executive in a private corporation in Makati before be studied law at the college of law of the prestigious Lyceum of the Philippines, the academic legacy of the Laurel Family to the Filipino nation.
Pampi was admitted to the Bar in 1973 at the age of 36, developed by many years of experience as a businessman, management executive and consultant, and thinker.
At the time of the death of Pampi, our respective law offices were adverse lawyers in major civil cases pending with the Regional Trial Courts of Pasay City and Makati City involving big and prime real properties located on the Zapote-Alabang Road, Las Piñas City.
My law partner, Atty. Myrna Mercader, represented our office in the said cases. Pampi represented the plaintiffs. From time to time, I would read the legal pleadings of Pampi.
I respect Pampi as a member of the Bar, as a legal advocate and litigator, and as a legal writer and thinker.
For one, I was impressed by the elegance, maturity, clarity, and scholarship of the language and written presentations of his court pleadings and the enlightened and comprehensive arguments and citations that supported them.
His mind was always clear and focused when he researched, prepared and wrote his legal pleadings.
His untimely death will deprive our office of the precious opportunity to continue to learn from him.
In the morning of June 2, 2009 last week, which was the day before Pampi was confined, Pampi and I were together at the Hall of Justice of Makati City to attend our separate court hearings. We talked about his health. His 13-year old grandson was with him. If there was one thing that Pampi and I shared as our common denominator, aside from our common love of the law and justice, it is our COPD, or our “chronic obstructive pulmonary disease”, a common disease among overworked trial lawyers that is associated with many years of stress and anxiety.
While waiting for the elevator at the Makati hall of justice, Pampi told me that he was retiring from law practice and that he was just finishing all his pending cases out of a sense of duty and responsibility to his clients who were relying on his wisdom, zeal and loyalty as a litigator to protect their rights and property.
Pampi stated that he needed more private and quality time to rest and recuperate, to smell the flowers, so to speak, and to enjoy the company of his beloved family and grandchildren.
Being a grandfather myself, I felt in my heart the subtle spiritual meanings of his personal nostalgic longings.
The next day, I received a message from Atty. Melvyn Lagasca informing the local Bar of the sudden confinement of Pampi at the intensive care unit of the University of Perpetual Help Rizal Medical Center, Las Pinas City and asking the local Bar to pray for Pampi’s recovery.
Pampi’s death is a great loss to the Philippine Bar.
We, whom Pampi has left behind, need not worry for him.
In the light of the selfless love, unconditional charity and dedicated service that Pampi had shown to his family and his fellowmen while he was still alive, God and Nature will reward and bless him with divine happiness and true liberation from suffering.
Thank you.
Atty. Manuel J. Laserna Jr.
Founder and Consultant
Las Pinas City Bar Association
lcmlaw@gmail.com
http://attylaserna.blogspot.com
http://lcmlaw.multiply.com
Tuesday, June 9, 2009
Impunity
In a previous blog, I condemned Davao City Mayor Rodrigo Duterte for the continuing extrajudicial killings and disappearances in his city, which has been perceived for some years now as a de facto cemetery for innocent victims of state-supported terrorism, violence, and crimes of impunity.
I have read the exhaustive 2009 report of the New York-based Human Rights Watch on the death squads of Davao City, Philippines, entitled “’You Can Die Any Time’- Death Squad Killings in Mindanao”.
It deserves serious consideration by Filipino lawyers and jurists if the Philippines is to maintain the stability and relevance of its fragile democratic institutions, downtrodden Constitution, corrupt republican Government, and gasping Justice System.
I wish to digest below the salient parts of the HRW Report.
The notorious and cowboy-type Davao City Mayor Rodrigo Duterte is quoted to have said during an interview with the press in February 2009:
“If you are doing an illegal activity in my city, if you are a criminal or part of a syndicate that preys on the innocent people of the city, for as long as I am the mayor, you are a legitimate target of assassination.”
Although reports of targeted killings in the Philippines, particularly in Mindanao, are not new, the number of victims has seen a steady rise over many years. In Davao City, the number has risen from two in 1998 to 98 in 2003 to 124 in 2008. In 2009, 33 killings were reported in January alone. In recent years the geographical scope of such killings has expanded far beyond Davao City and other cities on the southern island of Mindanao to Cebu City, the Philippines’ second largest metropolis.
The HRW stated that in researching the report, it found evidence of complicity and at times direct involvement of government officials and members of the police in killings by the so-called Davao Death Squad (DDS). It obtained detailed and consistent information on the DDS from relatives and friends of death squad members with direct knowledge of death squad operations, as well as journalists, community activists, and government officials who provided detailed corroborating evidence.
According to these “insiders,” most members of the DDS are either former communist New People’s Army insurgents who surrendered to the government or young men who themselves were death squad targets and joined the group to avoid being killed. Most can make far more money with the DDS than in other available occupations. Their handlers, called amo (boss), are usually police officers or ex-police officers. They provide them with training, weapons and ammunition, motorcycles, and information on the targets. Death squad members often use .45-caliber handguns, a weapon commonly used by the police but normally prohibitively expensive for gang members and common criminals.
The insiders told Human Rights Watch that the amo obtain information about targets from police or barangay (village or city district) officials, who compile lists of targets. The amo provides members of a death squad team with as little as the name of the target, and sometimes an address and a photograph. Police stations are then notified to ensure that police officers are slow to respond, enabling the death squad members to escape the crime scene, even when they commit killings near a police station.
The consistent failure of the Philippine National Police to seriously investigate apparent targeted killings is striking. Witnesses to killings told Human Rights Watch that the police routinely arrived at the scene long after the assailants leave, even if the nearest police station is minutes away. Police often fail to collect obvious evidence such as spent bullet casings, or question witnesses or suspects, but instead pressure the families of victims to identify the killers.
The killings follow a pattern. The assailants usually arrive in twos or
threes on a motorcycle without a license plate. They wear baseball caps and buttoned shirts or jackets, apparently to conceal their weapons underneath. They shoot or, increasingly, stab their victim without warning, often in broad daylight and in presence of multiple eyewitnesses, for whom they show little regard. And as quickly as they arrive, they ride off — but almost always before the police appear.
The killings probably have not generated the public outrage that would be expected because most of the victims have been young men known in their neighborhood for involvement in small-scale drug dealing or minor crimes such as petty theft and drug use. Other victims have been gang members and street children. Frequently, the victims had earlier been warned that their names were on a “list” of people to be killed unless they stopped engaging in criminal activities. The warnings were delivered by barangay officials, police officers, and sometimes even city government officials. In other cases, the victims were killed immediately after their release from police custody or prison, or shortly after they returned from hiding.
Human Rights Watch also investigated a number of cases in which those killed were seemingly unintended targets – victims of mistaken identity, unfortunate bystanders, and relatives and friends of the apparent target. Death squad members also have been victims of death squad killings, possibly because they “knew too much,” failed to perform their tasks, or became too exposed. Some Davao City residents also expressed the belief that some death squad members have become guns-for-hire.
Witnesses and family members who provide information to police on the killings, including the names of suspects, say that police either fail to follow up on the leads, whether they have started a criminal investigation, or if they have made any progress in their investigation. In many cases, witnesses are too afraid to come forward with information, as they believe they could become death squad targets by doing so.
The words and actions of long-time Davao City Mayor Rodrigo Duterte indicate his support for targeted killings of criminal suspects. Over the years, he has made numerous statements attempting to justify the killing of suspected criminals. In 2001-2002, Duterte would announce the names of “criminals” on local television and radio—and some of those he named would later become victims of death squad killings. Duterte claims that Davao City has achieved peace and order under his rule. But with killers roaming the streets with the comfort of state-protected impunity, the city remains a very unsafe place. Duterte and other local officials continue to deny the existence of any death squad. But in recent years, mayors and officials of other cities have made statements attempting to justify similar killings in their own cities. Sadly, Davao City is seen by some as a model for fighting crime. Just as disappointing, there is an almost complete lack of political will by the government at both local and national levels to address targeted killings and take action against the perpetrators.
The failure to dismantle the Davao Death Squad and other similar groups, prosecute those responsible, and bring justice to the families of victims lies not only with local authorities. The administration of Philippine President Gloria Macapagal Arroyo has largely turned a blind eye to the killing spree in Davao City and elsewhere. The Philippine National Police have not sought to confront the problem. And the inaction of the national institutions responsible for accountability, namely the Department of Justice, the Ombudsman’s Office, and the Commission on Human Rights, has fueled widespread impunity.
The continued death squad operation reflects an official mindset in which the ends are seen as justifying the means. The motive appears to be simple expedience: courts are viewed as slow or inept. The murder of criminal suspects is seen as easier as and faster than proper law enforcement. Official tolerance and support of targeted killing of suspected criminals promotes rather than curbs the culture of violence that has long plagued Davao City and other places where such killings occur.
Until national authorities take decisive action to disband the Davao Death Squad and all other similar groups that may be operating in other cities, and prosecute perpetrators and complicit officials, the pledges of President Arroyo and other government officials to respect basic human rights and uphold the rule of law will remain hollow.
Key Recommendations
The Philippine government and local authorities in Davao City, General Santos City, Digos City, and Tagum City, as well as other cities believed to be using or tolerating death squads, should urgently take measures to stop the killings and hold perpetrators accountable.
More specifically, Human Rights Watch urges that:
• President Arroyo should publicly denounce extrajudicial killings and local anti-crime campaigns that promote or encourage the unlawful use of force. She should order the Philippines National Police, the Ombudsman’s Office, and the National Bureau of Investigation to investigate the targeted killings of alleged drug dealers, petty criminals, and street children, and pledge that state employees who are found to be involved or complicit in such killings will be prosecuted in accordance with the law.
• The Philippine National Police should conduct thorough investigations into targeted killings of alleged drug dealers, petty criminals, and street children in Davao City, General Santos City, Digos City, Tagum City and investigate the alleged involvement and complicity of police officers in such killings, including their failure to investigate the killings rigorously and prepare cases for prosecution.
• The Commission on Human Rights should investigate and report publicly and promptly on the Davao Death Squad and other similar groups and the involvement of the PNP and city governments in Davao City and other cities where death squad activity has been reported.
• As part of its inquiry into the targeted killings of alleged drug dealers, petty criminals, and street children, the Commission on Human Rights should investigate whether Rodrigo Duterte, Mayor of Davao City, and other mayors and governors in the Philippines have been involved or complicit in death squad killings, or whether statements by government officials may have incited violence.
• The mayor of Davao City and other local officials should cease all support, verbal or otherwise, for anti-crime campaigns that entail violation of the law, including targeted killings of alleged drug dealers, petty criminals, and street children. They should arrest and prosecute perpetrators of the killings and state employees, including law enforcement officers, who are found to be involved or complicit in death squad operations.
• The Philippine Congress should conduct hearings on the Davao Death Squad and other similar groups in the Philippines, with special attention paid to whether local officials and police officers are involved or complicit in such killings.
• The United States, European Union, Japan, the World Bank and the Asian Development Bank should keep their pledges on human rights, the rule of law, and good governance, press the Philippine government to initiate investigations into alleged targeted killings in cities, and to publicize the results of its investigations and plans to dismantle the Davao Death Squad and other similar groups.
I have read the exhaustive 2009 report of the New York-based Human Rights Watch on the death squads of Davao City, Philippines, entitled “’You Can Die Any Time’- Death Squad Killings in Mindanao”.
It deserves serious consideration by Filipino lawyers and jurists if the Philippines is to maintain the stability and relevance of its fragile democratic institutions, downtrodden Constitution, corrupt republican Government, and gasping Justice System.
I wish to digest below the salient parts of the HRW Report.
The notorious and cowboy-type Davao City Mayor Rodrigo Duterte is quoted to have said during an interview with the press in February 2009:
“If you are doing an illegal activity in my city, if you are a criminal or part of a syndicate that preys on the innocent people of the city, for as long as I am the mayor, you are a legitimate target of assassination.”
Although reports of targeted killings in the Philippines, particularly in Mindanao, are not new, the number of victims has seen a steady rise over many years. In Davao City, the number has risen from two in 1998 to 98 in 2003 to 124 in 2008. In 2009, 33 killings were reported in January alone. In recent years the geographical scope of such killings has expanded far beyond Davao City and other cities on the southern island of Mindanao to Cebu City, the Philippines’ second largest metropolis.
The HRW stated that in researching the report, it found evidence of complicity and at times direct involvement of government officials and members of the police in killings by the so-called Davao Death Squad (DDS). It obtained detailed and consistent information on the DDS from relatives and friends of death squad members with direct knowledge of death squad operations, as well as journalists, community activists, and government officials who provided detailed corroborating evidence.
According to these “insiders,” most members of the DDS are either former communist New People’s Army insurgents who surrendered to the government or young men who themselves were death squad targets and joined the group to avoid being killed. Most can make far more money with the DDS than in other available occupations. Their handlers, called amo (boss), are usually police officers or ex-police officers. They provide them with training, weapons and ammunition, motorcycles, and information on the targets. Death squad members often use .45-caliber handguns, a weapon commonly used by the police but normally prohibitively expensive for gang members and common criminals.
The insiders told Human Rights Watch that the amo obtain information about targets from police or barangay (village or city district) officials, who compile lists of targets. The amo provides members of a death squad team with as little as the name of the target, and sometimes an address and a photograph. Police stations are then notified to ensure that police officers are slow to respond, enabling the death squad members to escape the crime scene, even when they commit killings near a police station.
The consistent failure of the Philippine National Police to seriously investigate apparent targeted killings is striking. Witnesses to killings told Human Rights Watch that the police routinely arrived at the scene long after the assailants leave, even if the nearest police station is minutes away. Police often fail to collect obvious evidence such as spent bullet casings, or question witnesses or suspects, but instead pressure the families of victims to identify the killers.
The killings follow a pattern. The assailants usually arrive in twos or
threes on a motorcycle without a license plate. They wear baseball caps and buttoned shirts or jackets, apparently to conceal their weapons underneath. They shoot or, increasingly, stab their victim without warning, often in broad daylight and in presence of multiple eyewitnesses, for whom they show little regard. And as quickly as they arrive, they ride off — but almost always before the police appear.
The killings probably have not generated the public outrage that would be expected because most of the victims have been young men known in their neighborhood for involvement in small-scale drug dealing or minor crimes such as petty theft and drug use. Other victims have been gang members and street children. Frequently, the victims had earlier been warned that their names were on a “list” of people to be killed unless they stopped engaging in criminal activities. The warnings were delivered by barangay officials, police officers, and sometimes even city government officials. In other cases, the victims were killed immediately after their release from police custody or prison, or shortly after they returned from hiding.
Human Rights Watch also investigated a number of cases in which those killed were seemingly unintended targets – victims of mistaken identity, unfortunate bystanders, and relatives and friends of the apparent target. Death squad members also have been victims of death squad killings, possibly because they “knew too much,” failed to perform their tasks, or became too exposed. Some Davao City residents also expressed the belief that some death squad members have become guns-for-hire.
Witnesses and family members who provide information to police on the killings, including the names of suspects, say that police either fail to follow up on the leads, whether they have started a criminal investigation, or if they have made any progress in their investigation. In many cases, witnesses are too afraid to come forward with information, as they believe they could become death squad targets by doing so.
The words and actions of long-time Davao City Mayor Rodrigo Duterte indicate his support for targeted killings of criminal suspects. Over the years, he has made numerous statements attempting to justify the killing of suspected criminals. In 2001-2002, Duterte would announce the names of “criminals” on local television and radio—and some of those he named would later become victims of death squad killings. Duterte claims that Davao City has achieved peace and order under his rule. But with killers roaming the streets with the comfort of state-protected impunity, the city remains a very unsafe place. Duterte and other local officials continue to deny the existence of any death squad. But in recent years, mayors and officials of other cities have made statements attempting to justify similar killings in their own cities. Sadly, Davao City is seen by some as a model for fighting crime. Just as disappointing, there is an almost complete lack of political will by the government at both local and national levels to address targeted killings and take action against the perpetrators.
The failure to dismantle the Davao Death Squad and other similar groups, prosecute those responsible, and bring justice to the families of victims lies not only with local authorities. The administration of Philippine President Gloria Macapagal Arroyo has largely turned a blind eye to the killing spree in Davao City and elsewhere. The Philippine National Police have not sought to confront the problem. And the inaction of the national institutions responsible for accountability, namely the Department of Justice, the Ombudsman’s Office, and the Commission on Human Rights, has fueled widespread impunity.
The continued death squad operation reflects an official mindset in which the ends are seen as justifying the means. The motive appears to be simple expedience: courts are viewed as slow or inept. The murder of criminal suspects is seen as easier as and faster than proper law enforcement. Official tolerance and support of targeted killing of suspected criminals promotes rather than curbs the culture of violence that has long plagued Davao City and other places where such killings occur.
Until national authorities take decisive action to disband the Davao Death Squad and all other similar groups that may be operating in other cities, and prosecute perpetrators and complicit officials, the pledges of President Arroyo and other government officials to respect basic human rights and uphold the rule of law will remain hollow.
Key Recommendations
The Philippine government and local authorities in Davao City, General Santos City, Digos City, and Tagum City, as well as other cities believed to be using or tolerating death squads, should urgently take measures to stop the killings and hold perpetrators accountable.
More specifically, Human Rights Watch urges that:
• President Arroyo should publicly denounce extrajudicial killings and local anti-crime campaigns that promote or encourage the unlawful use of force. She should order the Philippines National Police, the Ombudsman’s Office, and the National Bureau of Investigation to investigate the targeted killings of alleged drug dealers, petty criminals, and street children, and pledge that state employees who are found to be involved or complicit in such killings will be prosecuted in accordance with the law.
• The Philippine National Police should conduct thorough investigations into targeted killings of alleged drug dealers, petty criminals, and street children in Davao City, General Santos City, Digos City, Tagum City and investigate the alleged involvement and complicity of police officers in such killings, including their failure to investigate the killings rigorously and prepare cases for prosecution.
• The Commission on Human Rights should investigate and report publicly and promptly on the Davao Death Squad and other similar groups and the involvement of the PNP and city governments in Davao City and other cities where death squad activity has been reported.
• As part of its inquiry into the targeted killings of alleged drug dealers, petty criminals, and street children, the Commission on Human Rights should investigate whether Rodrigo Duterte, Mayor of Davao City, and other mayors and governors in the Philippines have been involved or complicit in death squad killings, or whether statements by government officials may have incited violence.
• The mayor of Davao City and other local officials should cease all support, verbal or otherwise, for anti-crime campaigns that entail violation of the law, including targeted killings of alleged drug dealers, petty criminals, and street children. They should arrest and prosecute perpetrators of the killings and state employees, including law enforcement officers, who are found to be involved or complicit in death squad operations.
• The Philippine Congress should conduct hearings on the Davao Death Squad and other similar groups in the Philippines, with special attention paid to whether local officials and police officers are involved or complicit in such killings.
• The United States, European Union, Japan, the World Bank and the Asian Development Bank should keep their pledges on human rights, the rule of law, and good governance, press the Philippine government to initiate investigations into alleged targeted killings in cities, and to publicize the results of its investigations and plans to dismantle the Davao Death Squad and other similar groups.
Saturday, June 6, 2009
Women
In April 1985, right after my admission to the Philippine Bar, I was invited by Dean Neptali A. Gonzalez (deceased) of the Institute of Law of Far Eastern University in Manila -- my high school and law alma mater - to teach various law subjects thereat. (Dean Gonzalez, who was like a father to me, later became the President of the Philippine Senate in the late 1980s).
When I started teaching law from 1985, I noticed that the percentage of female law students in my classes was an insignificant 15% to 20%.
However, from 1995 onwards, the percentage of my female law students increased to about 40% to 50%.
It showed the escalating interest of Filipinas to study the law and to be part of the justice system. A law degree is also a sure step towards socio-economic progress and recognition.
This phenomenon is a happy development, as far as I am concerned.
[My oldest daughter herself, Machelle Laserna-Adricula, is an active law student and an editor of the student organ of the College of Law of the University of Perpetual Help Rizal (UPHR) in Las Pinas City under tutelage of retired Supreme Court Associate Justice Isagani Cruz, a hard-hitting political columnist of the respected Philippine Daly Inquirer].
According to a report issued by the Office of the Bar Confidant of the Philippine Supreme Court covering the period 2004-2006, the number of female bar examinees from 2004 to 2006 was as follows: 2,437 for 2004; 2,536 for 2005; and 2,882 for 2006.
On average, the number of male bar applicants was only 9% higher that female bar applicants. Not bad.
About 40% of successful bar examinees are females while 60% are male.
The trend seems to be increasing.
In the 2003, the number of females admitted to the Bar increased by 5%.
In the same year, the number of males admitted to the Bar comprised about 56%.
From 2004-2005, the number of females admitted to the Bar increased by 4% from 44% in 2003.
From 2003 to 2005, the annual increased in the number of females admitted to the Bar was very steady, according to the report.
When I started teaching law from 1985, I noticed that the percentage of female law students in my classes was an insignificant 15% to 20%.
However, from 1995 onwards, the percentage of my female law students increased to about 40% to 50%.
It showed the escalating interest of Filipinas to study the law and to be part of the justice system. A law degree is also a sure step towards socio-economic progress and recognition.
This phenomenon is a happy development, as far as I am concerned.
[My oldest daughter herself, Machelle Laserna-Adricula, is an active law student and an editor of the student organ of the College of Law of the University of Perpetual Help Rizal (UPHR) in Las Pinas City under tutelage of retired Supreme Court Associate Justice Isagani Cruz, a hard-hitting political columnist of the respected Philippine Daly Inquirer].
According to a report issued by the Office of the Bar Confidant of the Philippine Supreme Court covering the period 2004-2006, the number of female bar examinees from 2004 to 2006 was as follows: 2,437 for 2004; 2,536 for 2005; and 2,882 for 2006.
On average, the number of male bar applicants was only 9% higher that female bar applicants. Not bad.
About 40% of successful bar examinees are females while 60% are male.
The trend seems to be increasing.
In the 2003, the number of females admitted to the Bar increased by 5%.
In the same year, the number of males admitted to the Bar comprised about 56%.
From 2004-2005, the number of females admitted to the Bar increased by 4% from 44% in 2003.
From 2003 to 2005, the annual increased in the number of females admitted to the Bar was very steady, according to the report.
Automatic
In 2002 the Philippine Supreme Court issued a Resolution providing that in administrative cases against justices of the Court of Appeals and the Sandiganbayan, Judges of regular and special courts, and court officials who are lawyers which are based on grounds that are likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional Responsibility; and the Canons of Professional Ethics, or for such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers, such administrative cases shall also be considered disciplinary actions against the respondent justices, judges or court officials concerned as members of the Philippine Bar.
The respondents may be required to comment on the complaints and show cause why they should not also be suspended, disbarred or otherwise disciplinary sanctioned as members of the Philippine Bar.
Judgments may be incorporated in one decision or resolution.
I wonder why the Supreme Court has not issued annual statistical reports showing the status of the implementation of the abovecited Resolution.
At least, none that I know of.
En Banc, A.M. No. 02-9-02-SC, September 17, 2002.
Re:Automatic Conversion of Some Administrative Cases Against justices of the Court of Appeals and the Sandiganbayan; judges of Regular and Special Courts; and Court Officials Who are Lawyers as Disciplinary Proceedings Against Them Both as Such Officials and as Members of the Philippine Bar.
Some administrative cases against justices of the Court of Appeals and the Sandiganbayan, Judges of regular and special courts; and court officials who are lawyers are based on grounds which are likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional Responsibility; and the Canons of Professional Ethics, or for such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers.
In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against the respondent justice, judge or court official concerned as a member of the Bar. The respondent may forthwith be required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinary sanctioned as a member of the Bar. Judgment in both respects may be incorporated in one decision or resolution.
This Resolution shall supplement Rule 140 of the Rules of Court and shall take effect on the first day of October 2002. It shall apply to administrative cases already filed where the respondents have not yet been required to comment on the complaints.
The respondents may be required to comment on the complaints and show cause why they should not also be suspended, disbarred or otherwise disciplinary sanctioned as members of the Philippine Bar.
Judgments may be incorporated in one decision or resolution.
I wonder why the Supreme Court has not issued annual statistical reports showing the status of the implementation of the abovecited Resolution.
At least, none that I know of.
En Banc, A.M. No. 02-9-02-SC, September 17, 2002.
Re:Automatic Conversion of Some Administrative Cases Against justices of the Court of Appeals and the Sandiganbayan; judges of Regular and Special Courts; and Court Officials Who are Lawyers as Disciplinary Proceedings Against Them Both as Such Officials and as Members of the Philippine Bar.
Some administrative cases against justices of the Court of Appeals and the Sandiganbayan, Judges of regular and special courts; and court officials who are lawyers are based on grounds which are likewise grounds for the disciplinary action of members of the Bar for violation of the Lawyer's Oath, the Code of Professional Responsibility; and the Canons of Professional Ethics, or for such other forms of breaches of conduct that have been traditionally recognized as grounds for the discipline of lawyers.
In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against the respondent justice, judge or court official concerned as a member of the Bar. The respondent may forthwith be required to comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinary sanctioned as a member of the Bar. Judgment in both respects may be incorporated in one decision or resolution.
This Resolution shall supplement Rule 140 of the Rules of Court and shall take effect on the first day of October 2002. It shall apply to administrative cases already filed where the respondents have not yet been required to comment on the complaints.
Corrupt
The recent 2009 Global Corruption Barometer Report of the Transparency International (TI) showed that 77 percent of Filipino respondents thought that the current government’s actions in the fight against corruption were ineffective. This is a 13-percentage-point increase from the 64 percent registered in the TI report in 2007. The 77-percent dissatisfaction rate was also the worst registered among seven Southeast Asian countries and the fifth worst among all the 69 countries covered by the report.
The general public did not use formal channels to lodge bribery-related complaints: three-quarters of people who reported paying bribes did not file a formal complaint. About half of bribery victims interviewed did not see existing complaint mechanisms as effective. This was a view consistent regardless of gender, education, or age.
Filipino public officials and civil servants were rated as the most affected by corruption (by 35 percent of survey respondents), followed by political parties (28 percent), the legislature (26 percent), the judiciary (7 percent), the business community (3 percent), and media (1 percent).
What is pathetic is that the results indicated that respondents from low-income households were more likely to pay bribes than those from high-income households when dealing with the police, the judiciary, land services and even the education system.
The apologists of the Office of the Ombudsman of the Philippines complained that the Office had only 800 employees tasked with monitoring 5 million government employees. They seem to pass the blame to the local courts and prosecutors. They argued that the Office of the Ombudsman did not have the power to issue warrants of arrest and search warrants. They felt that the accomplishments of their Office were not being reported by the media because the press focused only on the bad news.
The common reaction of the people to the above complaints of the Office of the Ombudsman is that it should not be too apologetic about its structure. What it has is what it must work with. At present, the top leadership in the Office of the Ombudsman is very poor and the morale of its personnel very low.
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090604-208704/RP-anticorruption-drive-worst-in-SEAstudy
The general public did not use formal channels to lodge bribery-related complaints: three-quarters of people who reported paying bribes did not file a formal complaint. About half of bribery victims interviewed did not see existing complaint mechanisms as effective. This was a view consistent regardless of gender, education, or age.
Filipino public officials and civil servants were rated as the most affected by corruption (by 35 percent of survey respondents), followed by political parties (28 percent), the legislature (26 percent), the judiciary (7 percent), the business community (3 percent), and media (1 percent).
What is pathetic is that the results indicated that respondents from low-income households were more likely to pay bribes than those from high-income households when dealing with the police, the judiciary, land services and even the education system.
The apologists of the Office of the Ombudsman of the Philippines complained that the Office had only 800 employees tasked with monitoring 5 million government employees. They seem to pass the blame to the local courts and prosecutors. They argued that the Office of the Ombudsman did not have the power to issue warrants of arrest and search warrants. They felt that the accomplishments of their Office were not being reported by the media because the press focused only on the bad news.
The common reaction of the people to the above complaints of the Office of the Ombudsman is that it should not be too apologetic about its structure. What it has is what it must work with. At present, the top leadership in the Office of the Ombudsman is very poor and the morale of its personnel very low.
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20090604-208704/RP-anticorruption-drive-worst-in-SEAstudy
Thursday, June 4, 2009
A loyal jurist
Philippine Supreme Court Associate Justice Ma. Alicia Austria-Martinez is a loyal civil servant and jurist. She retired on April 30, 2009 from the Supreme Court after 47 years of service in the government. Her mandatory retirement is in December 2010, but she opted to retire earlier due to health reasons, according to a recent Supreme Court press release.
Justice Austria-Martinez was Presiding Justice of the Court of Appeals when she was appointed to the High Court on August 26, 2002. She began her public career in 1962, working as a clerk in the Office of the Insurance Commissioner. The following year, she became Legal Officer I in the same Office. In 1964, she joined the Judiciary, working as legal researcher in the Court of First Instance of Rizal, a post she held until 1969. She was later promoted to Attorney Researcher (1969-1975), Senior Attorney (1976), and eventually Division Clerk of Court of the Court of Appeals (1976-1983). She was appointed as the Presiding Judge of the Regional Trial Court, Branch 36 of Calamba, Laguna on January 18, 1983. On November 4, 1986, she became the Presiding Judge of the Regional Trial Court, Branch 159 of Pasig City. From 1990 to 1992, she concurrently held the position of Executive Judge of the Regional Trial Court of Pasig City. She also served in different capacities as an officer of the Philippines Judges’ Association and the Philippine Women Judges’ Association (1987-1992). On March 5, 1992, she was appointed Court of Appeals Associate Justice, a post she had held until her appointment as CA Presiding Justice on July 27, 2001. On April 12, 2002 she was named Associate Justice of the High Tribunal.
Justice Austria-Martinez earned her Bachelor of Laws degree in 1962 from the University of the Philippines (UP). She also obtained a Master’s degree in National Security Administration in 1980 from the National Defense College of the Philippines. She was born in Manila on December 19, 1940 to lawyers Colonel Benjamin A. Austria, who had served in the Philippine Air Force, and Remedios M. Austria, a Doctor of Civil Law who had served as a consultant in the Graduate School of the University of Santo Tomas (UST). She is the widow of Atty. Daniel T. Martinez who once served as the Clerk of Court of the Supreme Court En Banc.
Justice Austria-Martinez was Presiding Justice of the Court of Appeals when she was appointed to the High Court on August 26, 2002. She began her public career in 1962, working as a clerk in the Office of the Insurance Commissioner. The following year, she became Legal Officer I in the same Office. In 1964, she joined the Judiciary, working as legal researcher in the Court of First Instance of Rizal, a post she held until 1969. She was later promoted to Attorney Researcher (1969-1975), Senior Attorney (1976), and eventually Division Clerk of Court of the Court of Appeals (1976-1983). She was appointed as the Presiding Judge of the Regional Trial Court, Branch 36 of Calamba, Laguna on January 18, 1983. On November 4, 1986, she became the Presiding Judge of the Regional Trial Court, Branch 159 of Pasig City. From 1990 to 1992, she concurrently held the position of Executive Judge of the Regional Trial Court of Pasig City. She also served in different capacities as an officer of the Philippines Judges’ Association and the Philippine Women Judges’ Association (1987-1992). On March 5, 1992, she was appointed Court of Appeals Associate Justice, a post she had held until her appointment as CA Presiding Justice on July 27, 2001. On April 12, 2002 she was named Associate Justice of the High Tribunal.
Justice Austria-Martinez earned her Bachelor of Laws degree in 1962 from the University of the Philippines (UP). She also obtained a Master’s degree in National Security Administration in 1980 from the National Defense College of the Philippines. She was born in Manila on December 19, 1940 to lawyers Colonel Benjamin A. Austria, who had served in the Philippine Air Force, and Remedios M. Austria, a Doctor of Civil Law who had served as a consultant in the Graduate School of the University of Santo Tomas (UST). She is the widow of Atty. Daniel T. Martinez who once served as the Clerk of Court of the Supreme Court En Banc.
Wednesday, June 3, 2009
Internalize
Below are excerpts from the words of wisdom coming from Justice Dante O. Tinga, chairperson of the Philippine Supreme Court committee on the 2008 bar examinations, delivered during the oath-taking ceremonies of the successful examinees held at the Philippine International Convention Center Manila on April 28, 2009:
“Let me paraphrase Albert Einstein when he spoke of the universe. What is incomprehensible about the law is that it is comprehensible. You have proven that idea correct.”
“Study, study, and more study. Be prepared. Be ready. Plan ahead.”
“Know all the Canons of Professional Responsibility at heart. I say, at heart, so, internalize, not just memorize.”
“Be fair and reasonable. Be honest. Be a good example.”
“Let me paraphrase Albert Einstein when he spoke of the universe. What is incomprehensible about the law is that it is comprehensible. You have proven that idea correct.”
“Study, study, and more study. Be prepared. Be ready. Plan ahead.”
“Know all the Canons of Professional Responsibility at heart. I say, at heart, so, internalize, not just memorize.”
“Be fair and reasonable. Be honest. Be a good example.”
Freedom to find out
In my previous blogs, I discussed the urgency for the passage by the Philippine Congress of a pending bill entitled The Freedom of Information Act of the Philippines. I opined, among other things, that:
1. “Justice is an impossible dream and an illusion in a regime of secrecy and exclusion and in a culture of hidden agendas and non-disclosure.”
2. “All the loud and bombastic speeches and press releases of our corrupt and inutile politicians, legislators and bureaucrats about the fantasies of democracy, freedom, justice and development are useless, empty, hypocritical and delusional, because our Government refuses or neglects to adopt a Freedom of Information Act that will truly give flesh to the purifying principles of transparency, good governance and accountability.”
Below is a recent editorial of the Philippine Daily Inquirer entitled “Freedom To Find Out”, which supports my advocacy for the passage of the abovementioned urgent bill.
EDITORIAL
FREEDOM TO FIND OUT
Philippine Daily Inquirer
May 31, 2009
http://services.inquirer.net/print/print.php?article_id=20090531-208060
IT HAS been over 20 years since the right to information was enshrined in our Constitution. The Bill of Rights, specifically Article III, Sec. 7 states:
“The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to limitations as may be provided by law.”
Also, Section 28 of Article II (Declaration of Principles and State Policies) of our Constitution provides:
“Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”
But up to now, a law has yet to be enacted to put teeth into these constitutional injunctions. The House of Representatives has approved a Freedom of Information bill, but the Senate’s Committee on Public Information is still going through the process of passing a counterpart bill.
A coalition of civic groups and NGOs, called the Access to Information Network (AIN), has been lobbying long and hard for this bill to be passed. Unlike the dangerous Right of Reply bill of the Senate (now being tackled by the House), this is one law the country needs very badly – if our ongoing democratic project is to move forward and not backward.
Over the past few years, we have seen how controversy after controversy has erupted over government contracts and loans; and over cozy, because incestuous, relationships between officials and contractors for public works and other projects. Almost always in all those instances, the concerned government agencies – e.g., the Department of Public Works and Highways and the Department of Transportation and Communications; the Bureau of Internal Revenue and Bureau of Customs; the Armed Forces of the Philippines and the Philippine National Police, all within the ambit of the Office of the President of the Philippines – ended up trying to stamp out the controversy.
When a controversy arises, both the political class and the media – and the public, too – clamor for information, either to prove or disprove the allegations of wrongdoing. In response, more often than not, officialdom in the affected agencies would refuse to disclose data, documents or other information on the pretext that it would violate national security, or that the data are not available or too complex to disclose, or that there is no one to authorize the disclosure. Not to mention the catch-all excuse of “executive privilege.”
The proposed Freedom of Information Act, as AIN describes it, would promote disclosure because:
1. It is expansive in scope. It covers all possible government agencies, whether they’re in executive, legislative or judicial branches, or independent constitutional bodies. And it covers all information regardless of the form or format in which they are stored.
2. It provides only a narrow list of clearly defined and reasonable exceptions.
3. It provides an opportunity and right enabling citizens to override an exception whenever public interest in the disclosure of information is greater.
4. It provides a clear, uniform and speedy procedure for public access to information.
5. It provides the mechanics for compulsory disclosure by government agencies of information on government transactions.
6. It provides adequate and accessible remedies in cases where access to information is denied.
7. It provides clear criminal liabilities for violation of the right to information.
8. It spells out numerous mechanisms for the active promotion of openness in government.
Simply put, transparency should be the policy of government, and exceptions to this general rule should be difficult to assert. Which is not to say that the proposed law would be unreasonable or inimical to the security and stability of the state. After all, even proponents of the Freedom of Information bill acknowledge that official disclosure should be tempered if it would bring on or heighten the risk of war, or weaken an ongoing diplomatic negotiation, or hamper ongoing military or police operations.
But it must be government, and not the citizenry, that should bear the burden of proof in arguing for withholding information.
1. “Justice is an impossible dream and an illusion in a regime of secrecy and exclusion and in a culture of hidden agendas and non-disclosure.”
2. “All the loud and bombastic speeches and press releases of our corrupt and inutile politicians, legislators and bureaucrats about the fantasies of democracy, freedom, justice and development are useless, empty, hypocritical and delusional, because our Government refuses or neglects to adopt a Freedom of Information Act that will truly give flesh to the purifying principles of transparency, good governance and accountability.”
Below is a recent editorial of the Philippine Daily Inquirer entitled “Freedom To Find Out”, which supports my advocacy for the passage of the abovementioned urgent bill.
EDITORIAL
FREEDOM TO FIND OUT
Philippine Daily Inquirer
May 31, 2009
http://services.inquirer.net/print/print.php?article_id=20090531-208060
IT HAS been over 20 years since the right to information was enshrined in our Constitution. The Bill of Rights, specifically Article III, Sec. 7 states:
“The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to limitations as may be provided by law.”
Also, Section 28 of Article II (Declaration of Principles and State Policies) of our Constitution provides:
“Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”
But up to now, a law has yet to be enacted to put teeth into these constitutional injunctions. The House of Representatives has approved a Freedom of Information bill, but the Senate’s Committee on Public Information is still going through the process of passing a counterpart bill.
A coalition of civic groups and NGOs, called the Access to Information Network (AIN), has been lobbying long and hard for this bill to be passed. Unlike the dangerous Right of Reply bill of the Senate (now being tackled by the House), this is one law the country needs very badly – if our ongoing democratic project is to move forward and not backward.
Over the past few years, we have seen how controversy after controversy has erupted over government contracts and loans; and over cozy, because incestuous, relationships between officials and contractors for public works and other projects. Almost always in all those instances, the concerned government agencies – e.g., the Department of Public Works and Highways and the Department of Transportation and Communications; the Bureau of Internal Revenue and Bureau of Customs; the Armed Forces of the Philippines and the Philippine National Police, all within the ambit of the Office of the President of the Philippines – ended up trying to stamp out the controversy.
When a controversy arises, both the political class and the media – and the public, too – clamor for information, either to prove or disprove the allegations of wrongdoing. In response, more often than not, officialdom in the affected agencies would refuse to disclose data, documents or other information on the pretext that it would violate national security, or that the data are not available or too complex to disclose, or that there is no one to authorize the disclosure. Not to mention the catch-all excuse of “executive privilege.”
The proposed Freedom of Information Act, as AIN describes it, would promote disclosure because:
1. It is expansive in scope. It covers all possible government agencies, whether they’re in executive, legislative or judicial branches, or independent constitutional bodies. And it covers all information regardless of the form or format in which they are stored.
2. It provides only a narrow list of clearly defined and reasonable exceptions.
3. It provides an opportunity and right enabling citizens to override an exception whenever public interest in the disclosure of information is greater.
4. It provides a clear, uniform and speedy procedure for public access to information.
5. It provides the mechanics for compulsory disclosure by government agencies of information on government transactions.
6. It provides adequate and accessible remedies in cases where access to information is denied.
7. It provides clear criminal liabilities for violation of the right to information.
8. It spells out numerous mechanisms for the active promotion of openness in government.
Simply put, transparency should be the policy of government, and exceptions to this general rule should be difficult to assert. Which is not to say that the proposed law would be unreasonable or inimical to the security and stability of the state. After all, even proponents of the Freedom of Information bill acknowledge that official disclosure should be tempered if it would bring on or heighten the risk of war, or weaken an ongoing diplomatic negotiation, or hamper ongoing military or police operations.
But it must be government, and not the citizenry, that should bear the burden of proof in arguing for withholding information.
Control
In the case of Dolores S. Bago vs. Judge Ernesto P. Pagayatan, A.M. No. RTJ-07-2058 (Formerly OCA IPI No. 06-2422--RTJ), April 7, 2009, the Philippine Supreme Court imposed a fine of P20, 000.00 on the respondent Judge for gross ignorance of the law. The judge, in effect, allowed himself to be subjugated by the Executive Branch of Government in the adjudication of a case pending before him, for which reason he was disciplined by the Court.
The Court stated that Judge Pagayatan failed to make an independent assessment of the merits of Criminal Case No. R-4295 for Murder, making no reference to or taking no consideration of the evidence on record or in the possession of the public prosecutor, when he granted the motion of the public prosecutor to file a Third Amended Information (which excluded several of the accused from the case and, in effect, dropped or withdrew the criminal charges against them). Judge Pagayatan relied solely on the directive of Chief State Prosecutor Jovencito R. Zuño to the Office of the Regional State Prosecutor. He displayed gross ignorance of the law when he abandoned his duty to personally and independently evaluate the prosecution’s motion to admit the third amended Information, which excluded several accused therefrom, and relied entirely on the directive of Chief State Prosecutor Zuño ordering such an amendment. His actions patently indicated his insufficient grasp of the law.
Gross ignorance of the law or procedure is classified as a serious charge under Rule 140, Section 8 of the Rules of Court, as amended by A.M. No. 01-8-10 SC; and penalized under Section 11 of the same Rule, which provides that if the respondent is guilty of a serious charge, any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations: Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits;
2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or
3. A fine of more than P20, 000.00 but not exceeding P40, 000.00.
Let me digest the said decision of the Court to serve as a guide and as a refresher for legal practitioners of the Philippines that when an accused has been indicted by the Office of the Public Prosecutor and an Information has been filed in court, it is the court and not the public prosecutor that has complete control as to the disposition, dismissal or withdrawal of the Information.
The Court reiterated the rule that once a complaint or information is filed before the trial court, any disposition of the case, as its dismissal or the conviction or acquittal of the accused, rests on the sound discretion of the said court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already before the trial court, the fiscal cannot impose his opinion on the trial court. The trial court is the best and sole judge of what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the trial court which has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.
This Court likewise held that once a case has been filed with the trial court, it is that court, no longer the prosecution, which has full control of the case, so much so that the Information may not be dismissed without its approval. Significantly, once a motion to dismiss or withdraw the Information is filed, the court may grant or deny it, in the faithful exercise of judicial discretion. In doing so, the trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judge's own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution's word for its supposed insufficiency.
Also significant is Marcelo v. Court of Appeals, in which this Court ruled that although it is more prudent to wait for a final resolution of a motion for review or reinvestigation from the Secretary of Justice before acting on a motion to dismiss or a motion to withdraw an Information, a trial court, nonetheless, should make its own study and evaluation of said motion and not rely merely on the awaited action of the Secretary. The trial court has the option to grant or deny the motion to dismiss the case filed by the fiscal, whether before or after the arraignment of the accused, and whether after reinvestigation or upon instructions of the Secretary who reviewed the records of the investigation, provided that such grant or denial is made from its own assessment and evaluation of the merits of the motion.
Once a motion to dismiss or withdraw the information is filed, the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. Indeed, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial court’s duty and jurisdiction to determine a prima facie case.
The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before it; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor.
Judge Pagayatan clearly failed to comply with his mandate and to discharge his duty to judiciously and independently rule upon the Motion to Admit Third Amended Information. He obviously lost sight of the fact that Criminal Case No. R-4295 was already filed before his court and was under his control; and he was not bound by the actuations or resolutions of the prosecution, or even by the directive coming from the Chief Prosecutor himself. He had the discretion to grant or deny the prosecution’s motion based on his personal and independent evaluation or assessment of the evidence before him.
By merely echoing the directive of Chief State Prosecutor Zuño, Judge Pagayatan abdicated his duty as a judge of a court of law, allowing his court to be subjugated to an administrative agency. Also, in failing to make a personal and independent determination of the propriety of dropping the charges against several of the accused in Criminal Case No. R-4295, and depending entirely on Chief State Prosecutor Zuño’s finding, Judge Pagayatan relinquished the discretion he was obliged to exercise under the circumstances, thus, violating the decree of this Court in Crespo v. Mogul. In effect, it was the prosecution, through the Office of the Chief State Prosecutor, which decided what to do with the accused in Criminal Case No. R-4295 and the RTC was reduced to a mere rubber-stamping body.
Admittedly, judges cannot be held to account for erroneous judgments rendered in good faith. However, this defense has been all too frequently cited to the point of staleness. In truth, good faith in situations of infallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principle evident and basic as to be beyond permissible margins of error. Indeed, while a judge may not always be subjected to disciplinary action for every erroneous order or decision he renders, that relative immunity is not a license to be negligent or abusive and arbitrary in performing his adjudicatory prerogatives.
Judge Pagayatan failed to conform to the high standards set under Canon 1 of the Code of Judicial Conduct, which requires a judge to uphold the integrity and independence of the judiciary by adhering to the following mandates:
Rule 1.01 - A judge should be the embodiment of competence, integrity, and independence.
Rule 3.01 - A judge shall x x x maintain professional competence.
Competence is a mark of a good judge. When a judge displays an utter lack of familiarity with the rules, he erodes the public’s confidence in the competence of our courts. It is highly imperative that judges be conversant with the law and basic legal principles.
As a judge, Judge Pagayatan must have the basic rules at the palm of his hands, as he is expected to maintain professional competence at all times. Indeed, a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. He must be conversant with basic legal principles and well-settled doctrines. He should strive for excellence and seek the truth with passion. The failure to observe the basic laws and rules is not only inexcusable, but renders him susceptible to administrative sanction for gross ignorance of the law from which no one is excused, and surely not a judge.
A judge owes it to himself and his office to know by heart basic legal principles and to harness his legal know-how correctly and justly. When a judge displays utter unfamiliarity with the law and the rules, he erodes the confidence of the public in the courts. Ignorance of the law by a judge can easily be the mainspring of injustice. As an advocate of justice and a visible representation of the law, a judge is expected to be proficient in the interpretation of our laws. When the law is so elementary, not to know it constitutes gross ignorance of the law. Ignorance of the law, which everyone is bound to know, excuses no one - not even judges. Ignorantia juris quod quisque scire tenetur non excusat. As the Court held in Monterola v. Judge Caoibes, Jr. :
Observance of the law, which respondent ought to know, is required of every judge. When the law is sufficiently basic, a judge owes it to his office to simply apply it; anything les than that is either deliberate disregard thereof or gross ignorance of the law. It is a continuing pressing responsibility of judges to keep abreast with the law and changes therein. Ignorance of the law, which everyone is bound to know, excuses no one -not even judges - from compliance therewith x x x. Canon 4 of the Canons of Judicial Ethics requires that the judge should be studious of the principles of law. Canon 18 mandates that he should administer his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of law. Indeed, it has been said that when the inefficiency springs from a failure to consider a basic and elementary rule, a law or principle in the discharge of his duties, a judge is either too incompetent and undeserving of the position and the title he holds or is to vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. x x x.
Ignorantia legis non excusat remains a valid dictum. When an officer of the court such as Judge Pagayatan, who is supposed to know the law, displays such ignorance, then he must be called to account.
The Court stated that Judge Pagayatan failed to make an independent assessment of the merits of Criminal Case No. R-4295 for Murder, making no reference to or taking no consideration of the evidence on record or in the possession of the public prosecutor, when he granted the motion of the public prosecutor to file a Third Amended Information (which excluded several of the accused from the case and, in effect, dropped or withdrew the criminal charges against them). Judge Pagayatan relied solely on the directive of Chief State Prosecutor Jovencito R. Zuño to the Office of the Regional State Prosecutor. He displayed gross ignorance of the law when he abandoned his duty to personally and independently evaluate the prosecution’s motion to admit the third amended Information, which excluded several accused therefrom, and relied entirely on the directive of Chief State Prosecutor Zuño ordering such an amendment. His actions patently indicated his insufficient grasp of the law.
Gross ignorance of the law or procedure is classified as a serious charge under Rule 140, Section 8 of the Rules of Court, as amended by A.M. No. 01-8-10 SC; and penalized under Section 11 of the same Rule, which provides that if the respondent is guilty of a serious charge, any of the following sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations: Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits;
2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or
3. A fine of more than P20, 000.00 but not exceeding P40, 000.00.
Let me digest the said decision of the Court to serve as a guide and as a refresher for legal practitioners of the Philippines that when an accused has been indicted by the Office of the Public Prosecutor and an Information has been filed in court, it is the court and not the public prosecutor that has complete control as to the disposition, dismissal or withdrawal of the Information.
The Court reiterated the rule that once a complaint or information is filed before the trial court, any disposition of the case, as its dismissal or the conviction or acquittal of the accused, rests on the sound discretion of the said court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already before the trial court, the fiscal cannot impose his opinion on the trial court. The trial court is the best and sole judge of what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the trial court which has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.
This Court likewise held that once a case has been filed with the trial court, it is that court, no longer the prosecution, which has full control of the case, so much so that the Information may not be dismissed without its approval. Significantly, once a motion to dismiss or withdraw the Information is filed, the court may grant or deny it, in the faithful exercise of judicial discretion. In doing so, the trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judge's own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution's word for its supposed insufficiency.
Also significant is Marcelo v. Court of Appeals, in which this Court ruled that although it is more prudent to wait for a final resolution of a motion for review or reinvestigation from the Secretary of Justice before acting on a motion to dismiss or a motion to withdraw an Information, a trial court, nonetheless, should make its own study and evaluation of said motion and not rely merely on the awaited action of the Secretary. The trial court has the option to grant or deny the motion to dismiss the case filed by the fiscal, whether before or after the arraignment of the accused, and whether after reinvestigation or upon instructions of the Secretary who reviewed the records of the investigation, provided that such grant or denial is made from its own assessment and evaluation of the merits of the motion.
Once a motion to dismiss or withdraw the information is filed, the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. Indeed, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial court’s duty and jurisdiction to determine a prima facie case.
The trial court may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before it; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor.
Judge Pagayatan clearly failed to comply with his mandate and to discharge his duty to judiciously and independently rule upon the Motion to Admit Third Amended Information. He obviously lost sight of the fact that Criminal Case No. R-4295 was already filed before his court and was under his control; and he was not bound by the actuations or resolutions of the prosecution, or even by the directive coming from the Chief Prosecutor himself. He had the discretion to grant or deny the prosecution’s motion based on his personal and independent evaluation or assessment of the evidence before him.
By merely echoing the directive of Chief State Prosecutor Zuño, Judge Pagayatan abdicated his duty as a judge of a court of law, allowing his court to be subjugated to an administrative agency. Also, in failing to make a personal and independent determination of the propriety of dropping the charges against several of the accused in Criminal Case No. R-4295, and depending entirely on Chief State Prosecutor Zuño’s finding, Judge Pagayatan relinquished the discretion he was obliged to exercise under the circumstances, thus, violating the decree of this Court in Crespo v. Mogul. In effect, it was the prosecution, through the Office of the Chief State Prosecutor, which decided what to do with the accused in Criminal Case No. R-4295 and the RTC was reduced to a mere rubber-stamping body.
Admittedly, judges cannot be held to account for erroneous judgments rendered in good faith. However, this defense has been all too frequently cited to the point of staleness. In truth, good faith in situations of infallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principle evident and basic as to be beyond permissible margins of error. Indeed, while a judge may not always be subjected to disciplinary action for every erroneous order or decision he renders, that relative immunity is not a license to be negligent or abusive and arbitrary in performing his adjudicatory prerogatives.
Judge Pagayatan failed to conform to the high standards set under Canon 1 of the Code of Judicial Conduct, which requires a judge to uphold the integrity and independence of the judiciary by adhering to the following mandates:
Rule 1.01 - A judge should be the embodiment of competence, integrity, and independence.
Rule 3.01 - A judge shall x x x maintain professional competence.
Competence is a mark of a good judge. When a judge displays an utter lack of familiarity with the rules, he erodes the public’s confidence in the competence of our courts. It is highly imperative that judges be conversant with the law and basic legal principles.
As a judge, Judge Pagayatan must have the basic rules at the palm of his hands, as he is expected to maintain professional competence at all times. Indeed, a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. He must be conversant with basic legal principles and well-settled doctrines. He should strive for excellence and seek the truth with passion. The failure to observe the basic laws and rules is not only inexcusable, but renders him susceptible to administrative sanction for gross ignorance of the law from which no one is excused, and surely not a judge.
A judge owes it to himself and his office to know by heart basic legal principles and to harness his legal know-how correctly and justly. When a judge displays utter unfamiliarity with the law and the rules, he erodes the confidence of the public in the courts. Ignorance of the law by a judge can easily be the mainspring of injustice. As an advocate of justice and a visible representation of the law, a judge is expected to be proficient in the interpretation of our laws. When the law is so elementary, not to know it constitutes gross ignorance of the law. Ignorance of the law, which everyone is bound to know, excuses no one - not even judges. Ignorantia juris quod quisque scire tenetur non excusat. As the Court held in Monterola v. Judge Caoibes, Jr. :
Observance of the law, which respondent ought to know, is required of every judge. When the law is sufficiently basic, a judge owes it to his office to simply apply it; anything les than that is either deliberate disregard thereof or gross ignorance of the law. It is a continuing pressing responsibility of judges to keep abreast with the law and changes therein. Ignorance of the law, which everyone is bound to know, excuses no one -not even judges - from compliance therewith x x x. Canon 4 of the Canons of Judicial Ethics requires that the judge should be studious of the principles of law. Canon 18 mandates that he should administer his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of law. Indeed, it has been said that when the inefficiency springs from a failure to consider a basic and elementary rule, a law or principle in the discharge of his duties, a judge is either too incompetent and undeserving of the position and the title he holds or is to vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. x x x.
Ignorantia legis non excusat remains a valid dictum. When an officer of the court such as Judge Pagayatan, who is supposed to know the law, displays such ignorance, then he must be called to account.
Karma
In the very fresh case of UNITED STATES OF AMERICA v. MICHAEL RAY AQUINO, Case No. 07-3202, which was decided in February 2009, the US Court of Appeals for the 3rd Circuit vacated the judgment of sentence against Michael Ray Aquino and remanded the same for resentencing.
A former trusted hatchet man of former national police chief and now senator Panfilo Lacson, Michael Ray Aquino, who is a Philippine national, received classified documents relating to the national defense of the United States from a source with access to a restricted government database.
He was indicted, and pled guilty to the unauthorized possession and willful retention of two classified documents relating to the national defense pursuant.
Aquino arrived in the United States in 2001 on a non¬immigrant visa that had expired. He was formerly a high-ranking officer in the Philippine National Police (PNP) and came to this country ostensibly to escape the threat of prosecution for several violent acts he allegedly committed during his PNP tenure. He has maintained strong ties to several political opposition leaders in the Philippines.
In 2002, he became acquainted with Leandro Aragoncillo, a Philippine emigree and naturalized United States citizen, who, as a former Marine, had been assigned to work in the Office of the Vice President of the United States. Later, Aragoncillo became an intelligence analyst with the FBI at the Fort Monmouth Information Technology Center.
In late 2004 and throughout 2005, Aragoncillo forwarded to a number of current and former Philippine officials, including Aquino, classified and/or sensitive information pertaining to the current Philippine regime, United States military strategy and training methods, and ongoing criminal investigations.
On September 10, 2005, the government executed search and arrest warrants at the homes of both Aquino and Aragoncillo, and seized computers and documents. Aquino was initially indicted on two charges: conspiracy in violation of 18 U.S.C. § 371; and acting as a foreign agent (Count Two) in violation of 18 U.S.C. §§ 951 and 2.
The government agreed to dismiss the Indictment in exchange for Aquino’s plea to a lesser charge under 18 U.S.C. § 793(e), which prohibits, inter alia, the willful transmission, communication, or retention of documents relating to the national defense of the United States by an unauthorized possessor.
At the plea hearing, Aquino pled guilty to the possession of the identified documents, documents he knew were classified and had reason to believe could be used to injure the United States or aid a foreign government. He further acknowledged that he willfully and knowingly retained and failed to deliver these documents to the officer and/or employee of the United States entitled to receive them.
The trial court sentenced Aquino to 76 months imprisonment.
On appeal, the US Court of Appeals for the 3rd Circuit vacated the judgment of sentence against Aquino and remanded the same for resentencing.
The unraveling of the inevitable effects of the universal law of karma continues.
A former trusted hatchet man of former national police chief and now senator Panfilo Lacson, Michael Ray Aquino, who is a Philippine national, received classified documents relating to the national defense of the United States from a source with access to a restricted government database.
He was indicted, and pled guilty to the unauthorized possession and willful retention of two classified documents relating to the national defense pursuant.
Aquino arrived in the United States in 2001 on a non¬immigrant visa that had expired. He was formerly a high-ranking officer in the Philippine National Police (PNP) and came to this country ostensibly to escape the threat of prosecution for several violent acts he allegedly committed during his PNP tenure. He has maintained strong ties to several political opposition leaders in the Philippines.
In 2002, he became acquainted with Leandro Aragoncillo, a Philippine emigree and naturalized United States citizen, who, as a former Marine, had been assigned to work in the Office of the Vice President of the United States. Later, Aragoncillo became an intelligence analyst with the FBI at the Fort Monmouth Information Technology Center.
In late 2004 and throughout 2005, Aragoncillo forwarded to a number of current and former Philippine officials, including Aquino, classified and/or sensitive information pertaining to the current Philippine regime, United States military strategy and training methods, and ongoing criminal investigations.
On September 10, 2005, the government executed search and arrest warrants at the homes of both Aquino and Aragoncillo, and seized computers and documents. Aquino was initially indicted on two charges: conspiracy in violation of 18 U.S.C. § 371; and acting as a foreign agent (Count Two) in violation of 18 U.S.C. §§ 951 and 2.
The government agreed to dismiss the Indictment in exchange for Aquino’s plea to a lesser charge under 18 U.S.C. § 793(e), which prohibits, inter alia, the willful transmission, communication, or retention of documents relating to the national defense of the United States by an unauthorized possessor.
At the plea hearing, Aquino pled guilty to the possession of the identified documents, documents he knew were classified and had reason to believe could be used to injure the United States or aid a foreign government. He further acknowledged that he willfully and knowingly retained and failed to deliver these documents to the officer and/or employee of the United States entitled to receive them.
The trial court sentenced Aquino to 76 months imprisonment.
On appeal, the US Court of Appeals for the 3rd Circuit vacated the judgment of sentence against Aquino and remanded the same for resentencing.
The unraveling of the inevitable effects of the universal law of karma continues.
Thursday, May 28, 2009
Negligence in issuing warrant of arrest
In the case of AUREO G. BAYACA vs. JUDGE TRANQUILINO V. RAMOS, A.M. No. MTJ-07-1676, January 29, 2009, the Philippine Supreme Court, inter alia, held that respondent Judge was inexcusably negligent when he issued a Warrant of Arrest and Commitment to Final Sentence despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment.
The Court stated that in the performance of his duties, respondent Judge failed to observe that diligence, prudence and circumspection which the law requires in the rendition of any public service. If only respondent Judge had exercised the requisite thoroughness and caution, he would have noted not only the modification of the monetary awards by the appellate court, but also the deletion of the penalty of imprisonment upon which the Warrant of Arrest and Commitment to Final Sentence that he signed was based, it added.
The complainant was the accused in a criminal case for arson through reckless imprudence. The case was raffled to the sala of the respondent Judge. After trial, respondent Judge found complainant guilty as charged and imposed upon him the penalty of imprisonment of four (4) months of arresto mayor as minimum and four (4) years and two (2) months of prision correccional as maximum with all the accessory penalties imposed by law and to pay costs and actual damages in the amount of P100,000.00.
Aggrieved, complainant appealed the case to the Regional Trial Court (RTC). The RTC affirmed with modification the decision of the MCTC. It merely imposed a fine of Seventy-five pesos (Php75.00). It deleted the award of P100,000.00 as actual damages. Instead, the accused was directed to pay the offended parties the total sum of P25,000.00 as temperate damages.
Despite the deletion of the penalty of imprisonment in the RTC decision, respondent Judge issued a Warrant of Arrest and Commitment on Final Sentence which led to complainant’s incarceration.
Hence, the complainant filed an administrative case against the respondent judge, alleging that the latter acted without legal basis in ordering his detention, thus displaying bias, manifest partiality, incompetence in office, gross ignorance of the law, gross misconduct, dishonesty and grave abuse of authority and discretion.
In his counter-affidavit, respondent Judge clarified that his issuance of the warrant of arrest against herein complainant was a mistake done in good faith. He added that for almost sixteen (16) years it was the practice in his sala that before acting on a motion it passed through his Clerk of Court who studied the records to determine whether or not to grant it. If it would be granted, the Clerk of Court would then request the stenographer to type the order and thereafter, he would affix his initial for respondent Judge’s signature. This was the procedure that they followed in the instant case which was unfortunately the only instance that they committed a mistake. While he apologized to complainant and his parents, the respondent maintained that the matter was merely a case of simple negligence.
The respondent judge narrated that the civil case for damages previously filed against him by complainant had been dismissed by virtue of a compromise agreement. He stated the criminal complaint for unlawful arrest and serious illegal detention pending before the Office of the Provincial Prosecutor was also dismissed after complainant filed an Affidavit of Desistance. He claimed that the administrative case was filed mainly to harass him when complainant discovered that he had filed for optional retirement as MCTC Judge. He informed the Court that he had been suffering from severe asthma and arthritis and had been bedridden and very sickly. He asked for assistance in facilitating the approval of his retirement benefits.
In its report, the Office of the Court Administrator (OCA) found respondent Judge guilty of Negligence and Conduct Prejudicial to the Best Interest of Service. The report stated that in the discharge of the functions of his office, a judge must strive to act in a manner that puts him and his conduct above reproach and beyond suspicion. He must act with extreme care for his office indeed is laden with a heavy burden of responsibility. Hence, a judge was required to pore over all documents on which he affixes his signature notwithstanding his heavy caseload.
The OCA report stated that respondent Judge made a partial payment of P250,000.00 to the complainant with a promise to pay another P500,000.00 to be paid within two months from the date when the Acknowledgment Receipt of Amicable Settlement was executed. The act of respondent Judge in giving money in exchange for the withdrawal of civil, criminal and administrative case filed against him was highly improper, the OCA said. It was a well-settled rule that administrative case could not be the subject of amicable settlement. The filing of administrative complaint could not depend upon the whims and caprices of complainant and it cannot be rendered naught by the private concessions of the parties. Hence, the withdrawal of administrative complaint would not prevent the court from deciding the case since complainants were, in a real sense, only witnesses therein.
For legal research purposes of the visitors of this blog, in the abovecited case the Supreme Court made the following doctrinal pronouncements, which were basically a reiteration of applicable Philippine jurisprudence on judicial ethics. Thus:
X x x
We have repeatedly ruled in a number of cases that mere desistance or recantation by the complainant does not necessarily result in the dismissal of an administrative complaint against any member of the bench. The withdrawal of complaints cannot divest the Court of its jurisdiction nor strip it of its power to determine the veracity of the charges made and to discipline, such as the results of its investigation may warrant, an erring respondent. Administrative actions cannot depend on the will or pleasure of the complainant who may, for reasons of his own, condone what may be detestable. Neither can the Court be bound by the unilateral act of the complainant in a matter relating to its disciplinary power. The Court’s interest in the affairs of the judiciary is of paramount concern. For sure, public interest is at stake in the conduct and actuations of officials and employees of the judiciary, inasmuch as the various programs and efforts of this Court in improving the delivery of justice to the people should not be frustrated and put to naught by private arrangements between the parties as in the instant case.
Respondent Judge should not be allowed to capitalize on the Acknowledgement Receipt dated December 3, 2006 showing that complainant and his spouse had already agreed to amicably settle the cases they previously filed against him. Apparently, respondent Judge made a partial payment of P250,000.00 to the complainant with a promise to pay another P500,000.00 within two (2) months from the date when the said Acknowledgment Receipt was executed. This deplorable act of respondent Judge in giving money in exchange for the withdrawal of the cases filed against him by the complainant cannot be countenanced, being considered by law as an obstruction of justice.
X x x.
We hold that respondent Judge was inexcusably negligent when he issued a Warrant of Arrest and Commitment to Final Sentence despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment. In the performance of his duties, respondent Judge failed to observe that diligence, prudence and circumspection which the law requires in the rendition of any public service. If only respondent Judge had exercised the requisite thoroughness and caution, he would have noted not only the modification of the monetary awards by the appellate court, but also the deletion of the penalty of imprisonment upon which the Warrant of Arrest and Commitment to Final Sentence that he signed was based.
Respondent Judge cannot pass on the blame to his Clerk of Court and/or Stenographer. A judge cannot take refuge behind the inefficiency or mismanagement of his very own court personnel. Certainly, a judge is responsible not only for the dispensation of justice but also for managing his court efficiently to ensure the prompt delivery of court services. In the discharge of the functions of his office, respondent Judge must strive to act in a manner that puts him and his conduct above reproach and beyond suspicion. He must act with extreme care for his office indeed is laden with a heavy burden of responsibility. Surely, a judge is enjoined to pore over all documents whereon he is required to affix his signature and give his official imprimatur. The negligence of respondent Judge in this case simply cannot be countenanced.
X x x.
Membership in the judiciary circumscribes one’s personal conduct and imposes upon him certain restrictions, the faithful observance of which is the price one has to pay for holding such a distinguished position. Accordingly, a magistrate of the law must comport himself in a manner that his conduct must be free of a whiff of impropriety, not only with respect to the performance of his official duties, but also to his behavior outside his sala and as a private individual. His conduct must be able to withstand the most searching public scrutiny, for the ethical principles and sense of propriety of a judge are essential to the preservation of the people’s faith in the judicial system lest public confidence in the judiciary would be eroded by the incompetent, irresponsible and negligent conduct of judges.
To recapitulate, we find respondent Judge’s act of issuing an order for the arrest of herein complainant, despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment, an act of inexcusable negligence and conduct which is prejudicial to the best interest of the service.
X x x.
The Court stated that in the performance of his duties, respondent Judge failed to observe that diligence, prudence and circumspection which the law requires in the rendition of any public service. If only respondent Judge had exercised the requisite thoroughness and caution, he would have noted not only the modification of the monetary awards by the appellate court, but also the deletion of the penalty of imprisonment upon which the Warrant of Arrest and Commitment to Final Sentence that he signed was based, it added.
The complainant was the accused in a criminal case for arson through reckless imprudence. The case was raffled to the sala of the respondent Judge. After trial, respondent Judge found complainant guilty as charged and imposed upon him the penalty of imprisonment of four (4) months of arresto mayor as minimum and four (4) years and two (2) months of prision correccional as maximum with all the accessory penalties imposed by law and to pay costs and actual damages in the amount of P100,000.00.
Aggrieved, complainant appealed the case to the Regional Trial Court (RTC). The RTC affirmed with modification the decision of the MCTC. It merely imposed a fine of Seventy-five pesos (Php75.00). It deleted the award of P100,000.00 as actual damages. Instead, the accused was directed to pay the offended parties the total sum of P25,000.00 as temperate damages.
Despite the deletion of the penalty of imprisonment in the RTC decision, respondent Judge issued a Warrant of Arrest and Commitment on Final Sentence which led to complainant’s incarceration.
Hence, the complainant filed an administrative case against the respondent judge, alleging that the latter acted without legal basis in ordering his detention, thus displaying bias, manifest partiality, incompetence in office, gross ignorance of the law, gross misconduct, dishonesty and grave abuse of authority and discretion.
In his counter-affidavit, respondent Judge clarified that his issuance of the warrant of arrest against herein complainant was a mistake done in good faith. He added that for almost sixteen (16) years it was the practice in his sala that before acting on a motion it passed through his Clerk of Court who studied the records to determine whether or not to grant it. If it would be granted, the Clerk of Court would then request the stenographer to type the order and thereafter, he would affix his initial for respondent Judge’s signature. This was the procedure that they followed in the instant case which was unfortunately the only instance that they committed a mistake. While he apologized to complainant and his parents, the respondent maintained that the matter was merely a case of simple negligence.
The respondent judge narrated that the civil case for damages previously filed against him by complainant had been dismissed by virtue of a compromise agreement. He stated the criminal complaint for unlawful arrest and serious illegal detention pending before the Office of the Provincial Prosecutor was also dismissed after complainant filed an Affidavit of Desistance. He claimed that the administrative case was filed mainly to harass him when complainant discovered that he had filed for optional retirement as MCTC Judge. He informed the Court that he had been suffering from severe asthma and arthritis and had been bedridden and very sickly. He asked for assistance in facilitating the approval of his retirement benefits.
In its report, the Office of the Court Administrator (OCA) found respondent Judge guilty of Negligence and Conduct Prejudicial to the Best Interest of Service. The report stated that in the discharge of the functions of his office, a judge must strive to act in a manner that puts him and his conduct above reproach and beyond suspicion. He must act with extreme care for his office indeed is laden with a heavy burden of responsibility. Hence, a judge was required to pore over all documents on which he affixes his signature notwithstanding his heavy caseload.
The OCA report stated that respondent Judge made a partial payment of P250,000.00 to the complainant with a promise to pay another P500,000.00 to be paid within two months from the date when the Acknowledgment Receipt of Amicable Settlement was executed. The act of respondent Judge in giving money in exchange for the withdrawal of civil, criminal and administrative case filed against him was highly improper, the OCA said. It was a well-settled rule that administrative case could not be the subject of amicable settlement. The filing of administrative complaint could not depend upon the whims and caprices of complainant and it cannot be rendered naught by the private concessions of the parties. Hence, the withdrawal of administrative complaint would not prevent the court from deciding the case since complainants were, in a real sense, only witnesses therein.
For legal research purposes of the visitors of this blog, in the abovecited case the Supreme Court made the following doctrinal pronouncements, which were basically a reiteration of applicable Philippine jurisprudence on judicial ethics. Thus:
X x x
We have repeatedly ruled in a number of cases that mere desistance or recantation by the complainant does not necessarily result in the dismissal of an administrative complaint against any member of the bench. The withdrawal of complaints cannot divest the Court of its jurisdiction nor strip it of its power to determine the veracity of the charges made and to discipline, such as the results of its investigation may warrant, an erring respondent. Administrative actions cannot depend on the will or pleasure of the complainant who may, for reasons of his own, condone what may be detestable. Neither can the Court be bound by the unilateral act of the complainant in a matter relating to its disciplinary power. The Court’s interest in the affairs of the judiciary is of paramount concern. For sure, public interest is at stake in the conduct and actuations of officials and employees of the judiciary, inasmuch as the various programs and efforts of this Court in improving the delivery of justice to the people should not be frustrated and put to naught by private arrangements between the parties as in the instant case.
Respondent Judge should not be allowed to capitalize on the Acknowledgement Receipt dated December 3, 2006 showing that complainant and his spouse had already agreed to amicably settle the cases they previously filed against him. Apparently, respondent Judge made a partial payment of P250,000.00 to the complainant with a promise to pay another P500,000.00 within two (2) months from the date when the said Acknowledgment Receipt was executed. This deplorable act of respondent Judge in giving money in exchange for the withdrawal of the cases filed against him by the complainant cannot be countenanced, being considered by law as an obstruction of justice.
X x x.
We hold that respondent Judge was inexcusably negligent when he issued a Warrant of Arrest and Commitment to Final Sentence despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment. In the performance of his duties, respondent Judge failed to observe that diligence, prudence and circumspection which the law requires in the rendition of any public service. If only respondent Judge had exercised the requisite thoroughness and caution, he would have noted not only the modification of the monetary awards by the appellate court, but also the deletion of the penalty of imprisonment upon which the Warrant of Arrest and Commitment to Final Sentence that he signed was based.
Respondent Judge cannot pass on the blame to his Clerk of Court and/or Stenographer. A judge cannot take refuge behind the inefficiency or mismanagement of his very own court personnel. Certainly, a judge is responsible not only for the dispensation of justice but also for managing his court efficiently to ensure the prompt delivery of court services. In the discharge of the functions of his office, respondent Judge must strive to act in a manner that puts him and his conduct above reproach and beyond suspicion. He must act with extreme care for his office indeed is laden with a heavy burden of responsibility. Surely, a judge is enjoined to pore over all documents whereon he is required to affix his signature and give his official imprimatur. The negligence of respondent Judge in this case simply cannot be countenanced.
X x x.
Membership in the judiciary circumscribes one’s personal conduct and imposes upon him certain restrictions, the faithful observance of which is the price one has to pay for holding such a distinguished position. Accordingly, a magistrate of the law must comport himself in a manner that his conduct must be free of a whiff of impropriety, not only with respect to the performance of his official duties, but also to his behavior outside his sala and as a private individual. His conduct must be able to withstand the most searching public scrutiny, for the ethical principles and sense of propriety of a judge are essential to the preservation of the people’s faith in the judicial system lest public confidence in the judiciary would be eroded by the incompetent, irresponsible and negligent conduct of judges.
To recapitulate, we find respondent Judge’s act of issuing an order for the arrest of herein complainant, despite the deletion by the appellate court of that portion of the judgment imposing the penalty of imprisonment, an act of inexcusable negligence and conduct which is prejudicial to the best interest of the service.
X x x.
Oppressive law
I find the Trust Receipts Law (P.D. No. 115), one of the obnoxious legacies of the late dictator Pres. Ferdinand Marcos to the Filipino people, to be cruel, oppressive, unreasonable, and unconstitutional for being violative of the due process clause and the equal protection clause of the 1987 Philippine Constitution.
I believe that, unless there is a clear showing of criminal fraud or deceit, any violation of the Trust Receipt Law should not be treated as a crime and that the pecuniary claim of the banks under the trust receipt agreement should be treated merely as an ordinary civil obligation of the defaulting customer. The true spirit of a trust receipt agreement is one of a secured loan obligation. The financial liability of the customer thereunder should be treated as purely civil in character.
The banks are indeed very happy with the law, for it protects their multi-billion treasuries. They will collectively use all their financial and political resources to vehemently oppose and defeat any attempt to repeal the law. Fortunately for the banks, as the Philippine jurisprudence now stands, the law is fair, just, reasonable, and constitutional.
The truth of the matter is that the banks have abused and continue to abuse the law to harass their customers, thus, making our trial courts as their obedient de facto collection agencies.
The very recent case of METROPOLITAN BANK & TRUST COMPANY vs. HON. SECRETARY OF JUSTICE RAUL M. GONZALES, OLIVER T. YAO and DIANA T. YAO, G.R. No. 180165, April 7, 2009 was one such case. It involved the case of estafa under Article 315, paragraph 1(b) of the Revised Penal Code, in relation to Presidential Decree No. 115. (Trust Receipts Law).
In this case, the investigating prosecutor indicted the private respondents for the crime charged by the bank. They subsequently appealed their indictment to the Secretary of Justice, who ruled that there was no probable cause to prosecute private respondents. He declared that the legitimate transactional relationship between the parties being merely a contract of loan, violations of the terms thereunder were not covered by Presidential Decree No. 115.
Acting on the directive of the Secretary of Justice, the City Prosecutor moved for the withdrawal of the Informations. The Regional Trial Court (RTC) granted the same. The bank elevated the matter to the Court of Appeals (CA), which dismissed its petition after finding that the Secretary of Justice committed no grave abuse of discretion in ruling against the existence of probable cause to prosecute private respondents.
The CA recognized the authority of the Secretary of Justice to control and supervise the prosecutors, which included the power to reverse or modify their decisions without committing grave abuse of discretion. Unfazed by the turn of events, petitioner went up to the Supreme Court, urging it to reverse the Court of Appeals and to direct the filing of the proper criminal Informations against private respondents.
The Supreme Court found the petition to be meritorious. It concluded that there was probable cause to warrant the prosecution of private respondents for estafa. It stressed that “probable cause did not require an inquiry into whether there is sufficient evidence to procure a conviction”.
The Court held that 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, constituted a criminal offense that caused prejudice not only to another, but more to the public interest.
The Court rejected the allegation of private respondents that they did not give much significance to the documents that they had signed. According to the Court, considering the enormous value of the transaction involved, it was highly improbable to mistake trust receipt documents for a contract of loan when the heading thereon printed in bold and legible letters reads: “Trust Receipts.” Although it said that it was “not prejudging the case on the merits”, the Court stated that “by merely glancing at the documents submitted by petitioner entitled Trust Receipts and the arguments advanced by private respondents, it was convinced that there was probable cause to file the case and to hold them for trial.”
I wish to digest the doctrinal pronouncements of the Court in the above-cited, for legal research purposes of the visitors of this blog. Thus:
X x x .
Probable cause has been 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. Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.
The term does not mean “actual or positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.
To determine the existence of probable cause, there is need to conduct preliminary investigation. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case. Its purpose is to determine whether (a) a crime has been committed; and (b) whether there is a probable cause to believe that the accused is guilty thereof. It is a means of discovering which person or persons may be reasonably charged with a crime.
The conduct of preliminary investigation is executive in nature. The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutor’s function unless there is a showing of grave abuse of discretion or manifest error in his findings. Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or excess of jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by reason of passion or personal hostility. It must have been so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.
In the present case, the abuse of discretion is patent in the act of the Secretary of Justice holding that the contractual relationship forged by the parties was a simple loan, for in so doing, the Secretary of Justice assumed the function of the trial judge of calibrating the evidence on record, done only after a full-blown trial on the merits. The fact of existence or non-existence of a trust receipt transaction is evidentiary in nature, the veracity of which can best be passed upon after trial on the merits, for it is virtually impossible to ascertain the real nature of the transaction involved based solely on the self-serving allegations contained in the opposing parties’ pleadings. Clearly, the Secretary of Justice is not in a competent position to pass judgment on substantive matters. The bases of a party’s accusation and defenses are better ventilated at the trial proper than at the preliminary investigation.
We need not overemphasize that in a preliminary investigation, the public prosecutor merely determines whether there is probable cause or sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial. It does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. The complainant need not present at this stage proof beyond reasonable doubt. A preliminary investigation does not require a full and exhaustive presentation of the parties’ evidence. Precisely, there is a trial to allow the reception of evidence for both parties to substantiate their respective claims.
Having said the foregoing, this Court now proceeds to determine whether probable cause exists for holding private respondents liable for estafa in relation to Presidential Decree No. 115.
Trust receipt transactions are governed by the provisions of Presidential Decree No. 115 which defines such a transaction as follows:
Section 4. What constitutes a trust receipt 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 the 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 one 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 goods, documents or instruments by a person in the business of selling goods, documents or instruments for profit who, at the outset of the 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.
An entrustee is one having or taking possession of goods, documents or instruments under a trust receipt transaction, and any successor in interest of such person for the purpose of payment specified in the trust receipt agreement. The entrustee is obliged to (1) hold the goods, documents or instruments in trust for the entruster and shall dispose of them strictly in accordance with the terms and conditions of the trust receipt; (2) receive the proceeds in trust for the entruster and turn over the same to the entruster to the extent of the amount owed to the entruster or as appears on the trust receipt; (3) insure the goods for their total value against loss from fire, theft, pilferage or other casualties; (4) keep said goods or the proceeds therefrom whether in money or whatever form, separate and capable of identification as property of the entruster; (5) return the goods, documents or instruments in the event of non-sale or upon demand of the entruster; and (6) observe all other terms and conditions of the trust receipt not contrary to the provisions of the decree.
The entruster shall be entitled to the proceeds from the sale of the goods, documents or instruments released under a trust receipt to the entrustee to the extent of the amount owed to the entruster or as appears in the trust receipt; or to the return of the goods, documents or instruments in case of non-sale; and to the enforcement of all other rights conferred on him in the trust receipt, provided these are not contrary to the provisions of the document. A violation of any of these undertakings constitutes estafa defined under Article 315(1)(b) of the Revised Renal Code, as provided by Section 13 of Presidential Decree No. 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.
Apropos thereto, Article 315(1)(b) of the Revised Renal Code punishes estafa committed as follows:
ARTICLE 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor to reclusion temporal, as the case may be.
2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and
4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means; x x x.
As found in the Complaint-Affidavit of petitioner, private respondents were charged with failing to account for or turn over to petitioner the merchandise or goods covered by the trust receipts or the proceeds of the sale thereof in payment of their obligations thereunder. The following pieces of evidence adduced from the affidavits and documents submitted before the City Prosecutor are sufficient to establish the existence of probable cause, to wit:
First, the trust receipts bearing the genuine signatures of private respondents; second, the demand letter of petitioner addressed to respondents; and third, the initial admission by private respondents of the receipt of the imported goods from petitioner.
Prescinding from the foregoing, we conclude that there is ample evidence on record to warrant a finding that there is a probable cause to warrant the prosecution of private respondents for estafa. It must be once again stressed that probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged.
That private respondents did not sell the goods under the trust receipt but allowed it to be used by their sister company is of no moment. 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. Even more incredible is the contention of private respondents that they did not give much significance to the documents they signed, considering the enormous value of the transaction involved. Thus, it is highly improbable to mistake trust receipt documents for a contract of loan when the heading thereon printed in bold and legible letters reads: “Trust Receipts.” We are not prejudging this case on the merits. However, by merely glancing at the documents submitted by petitioner entitled “Trust Receipts” and the arguments advanced by private respondents, we are convinced that there is probable cause to file the case and to hold them for trial.
All told, the evidentiary measure for the propriety of filing criminal charges has been reduced and liberalized to a mere probable cause. As implied by the words themselves, “probable cause” is concerned with probability, not absolute or moral certainty.
x x x.
I believe that, unless there is a clear showing of criminal fraud or deceit, any violation of the Trust Receipt Law should not be treated as a crime and that the pecuniary claim of the banks under the trust receipt agreement should be treated merely as an ordinary civil obligation of the defaulting customer. The true spirit of a trust receipt agreement is one of a secured loan obligation. The financial liability of the customer thereunder should be treated as purely civil in character.
The banks are indeed very happy with the law, for it protects their multi-billion treasuries. They will collectively use all their financial and political resources to vehemently oppose and defeat any attempt to repeal the law. Fortunately for the banks, as the Philippine jurisprudence now stands, the law is fair, just, reasonable, and constitutional.
The truth of the matter is that the banks have abused and continue to abuse the law to harass their customers, thus, making our trial courts as their obedient de facto collection agencies.
The very recent case of METROPOLITAN BANK & TRUST COMPANY vs. HON. SECRETARY OF JUSTICE RAUL M. GONZALES, OLIVER T. YAO and DIANA T. YAO, G.R. No. 180165, April 7, 2009 was one such case. It involved the case of estafa under Article 315, paragraph 1(b) of the Revised Penal Code, in relation to Presidential Decree No. 115. (Trust Receipts Law).
In this case, the investigating prosecutor indicted the private respondents for the crime charged by the bank. They subsequently appealed their indictment to the Secretary of Justice, who ruled that there was no probable cause to prosecute private respondents. He declared that the legitimate transactional relationship between the parties being merely a contract of loan, violations of the terms thereunder were not covered by Presidential Decree No. 115.
Acting on the directive of the Secretary of Justice, the City Prosecutor moved for the withdrawal of the Informations. The Regional Trial Court (RTC) granted the same. The bank elevated the matter to the Court of Appeals (CA), which dismissed its petition after finding that the Secretary of Justice committed no grave abuse of discretion in ruling against the existence of probable cause to prosecute private respondents.
The CA recognized the authority of the Secretary of Justice to control and supervise the prosecutors, which included the power to reverse or modify their decisions without committing grave abuse of discretion. Unfazed by the turn of events, petitioner went up to the Supreme Court, urging it to reverse the Court of Appeals and to direct the filing of the proper criminal Informations against private respondents.
The Supreme Court found the petition to be meritorious. It concluded that there was probable cause to warrant the prosecution of private respondents for estafa. It stressed that “probable cause did not require an inquiry into whether there is sufficient evidence to procure a conviction”.
The Court held that 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, constituted a criminal offense that caused prejudice not only to another, but more to the public interest.
The Court rejected the allegation of private respondents that they did not give much significance to the documents that they had signed. According to the Court, considering the enormous value of the transaction involved, it was highly improbable to mistake trust receipt documents for a contract of loan when the heading thereon printed in bold and legible letters reads: “Trust Receipts.” Although it said that it was “not prejudging the case on the merits”, the Court stated that “by merely glancing at the documents submitted by petitioner entitled Trust Receipts and the arguments advanced by private respondents, it was convinced that there was probable cause to file the case and to hold them for trial.”
I wish to digest the doctrinal pronouncements of the Court in the above-cited, for legal research purposes of the visitors of this blog. Thus:
X x x .
Probable cause has been 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. Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so.
The term does not mean “actual or positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.
To determine the existence of probable cause, there is need to conduct preliminary investigation. A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case. Its purpose is to determine whether (a) a crime has been committed; and (b) whether there is a probable cause to believe that the accused is guilty thereof. It is a means of discovering which person or persons may be reasonably charged with a crime.
The conduct of preliminary investigation is executive in nature. The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutor’s function unless there is a showing of grave abuse of discretion or manifest error in his findings. Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or excess of jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by reason of passion or personal hostility. It must have been so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.
In the present case, the abuse of discretion is patent in the act of the Secretary of Justice holding that the contractual relationship forged by the parties was a simple loan, for in so doing, the Secretary of Justice assumed the function of the trial judge of calibrating the evidence on record, done only after a full-blown trial on the merits. The fact of existence or non-existence of a trust receipt transaction is evidentiary in nature, the veracity of which can best be passed upon after trial on the merits, for it is virtually impossible to ascertain the real nature of the transaction involved based solely on the self-serving allegations contained in the opposing parties’ pleadings. Clearly, the Secretary of Justice is not in a competent position to pass judgment on substantive matters. The bases of a party’s accusation and defenses are better ventilated at the trial proper than at the preliminary investigation.
We need not overemphasize that in a preliminary investigation, the public prosecutor merely determines whether there is probable cause or sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably guilty thereof and should be held for trial. It does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. The complainant need not present at this stage proof beyond reasonable doubt. A preliminary investigation does not require a full and exhaustive presentation of the parties’ evidence. Precisely, there is a trial to allow the reception of evidence for both parties to substantiate their respective claims.
Having said the foregoing, this Court now proceeds to determine whether probable cause exists for holding private respondents liable for estafa in relation to Presidential Decree No. 115.
Trust receipt transactions are governed by the provisions of Presidential Decree No. 115 which defines such a transaction as follows:
Section 4. What constitutes a trust receipt 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 the 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 one 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 goods, documents or instruments by a person in the business of selling goods, documents or instruments for profit who, at the outset of the 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.
An entrustee is one having or taking possession of goods, documents or instruments under a trust receipt transaction, and any successor in interest of such person for the purpose of payment specified in the trust receipt agreement. The entrustee is obliged to (1) hold the goods, documents or instruments in trust for the entruster and shall dispose of them strictly in accordance with the terms and conditions of the trust receipt; (2) receive the proceeds in trust for the entruster and turn over the same to the entruster to the extent of the amount owed to the entruster or as appears on the trust receipt; (3) insure the goods for their total value against loss from fire, theft, pilferage or other casualties; (4) keep said goods or the proceeds therefrom whether in money or whatever form, separate and capable of identification as property of the entruster; (5) return the goods, documents or instruments in the event of non-sale or upon demand of the entruster; and (6) observe all other terms and conditions of the trust receipt not contrary to the provisions of the decree.
The entruster shall be entitled to the proceeds from the sale of the goods, documents or instruments released under a trust receipt to the entrustee to the extent of the amount owed to the entruster or as appears in the trust receipt; or to the return of the goods, documents or instruments in case of non-sale; and to the enforcement of all other rights conferred on him in the trust receipt, provided these are not contrary to the provisions of the document. A violation of any of these undertakings constitutes estafa defined under Article 315(1)(b) of the Revised Renal Code, as provided by Section 13 of Presidential Decree No. 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.
Apropos thereto, Article 315(1)(b) of the Revised Renal Code punishes estafa committed as follows:
ARTICLE 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor to reclusion temporal, as the case may be.
2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and
4th. By arresto mayor in its medium and maximum periods, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means; x x x.
As found in the Complaint-Affidavit of petitioner, private respondents were charged with failing to account for or turn over to petitioner the merchandise or goods covered by the trust receipts or the proceeds of the sale thereof in payment of their obligations thereunder. The following pieces of evidence adduced from the affidavits and documents submitted before the City Prosecutor are sufficient to establish the existence of probable cause, to wit:
First, the trust receipts bearing the genuine signatures of private respondents; second, the demand letter of petitioner addressed to respondents; and third, the initial admission by private respondents of the receipt of the imported goods from petitioner.
Prescinding from the foregoing, we conclude that there is ample evidence on record to warrant a finding that there is a probable cause to warrant the prosecution of private respondents for estafa. It must be once again stressed that probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged.
That private respondents did not sell the goods under the trust receipt but allowed it to be used by their sister company is of no moment. 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. Even more incredible is the contention of private respondents that they did not give much significance to the documents they signed, considering the enormous value of the transaction involved. Thus, it is highly improbable to mistake trust receipt documents for a contract of loan when the heading thereon printed in bold and legible letters reads: “Trust Receipts.” We are not prejudging this case on the merits. However, by merely glancing at the documents submitted by petitioner entitled “Trust Receipts” and the arguments advanced by private respondents, we are convinced that there is probable cause to file the case and to hold them for trial.
All told, the evidentiary measure for the propriety of filing criminal charges has been reduced and liberalized to a mere probable cause. As implied by the words themselves, “probable cause” is concerned with probability, not absolute or moral certainty.
x x x.
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