In the recent case of SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., vs. ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, et. al., G.R. No. 178552, Oct. 5, 2010, which involved the issue of constitutionality of the HUMAN SECURITY ACT (anti-terrorism law), the Supreme Court dismissed the petitions questioning the constitutionality of the said law on the basis of the following doctrinal pronouncements, which are extensively quoted below, for research purposes, to wit:
1. Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.
2. In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.[10]
3. Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[11]
4. Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.
5. A party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of.
6. For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.)
7. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable.
8. Things of “common knowledge,” of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge.[16] (emphasis and underscoring supplied.)
9. While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America[17] (US) and the European Union[18] (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as terrorist organizations.[19] Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372.
10. The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members with standing.[27] The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372.
11. Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress,[28] whereas citizen standing must rest on direct and personal interest in the proceeding.[29]
12. RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law.
13. It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key.
14. By constitutional fiat, judicial power operates only when there is an actual case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.[30]
15. The power of judicial review is limited to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
16. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.[32]
17. Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciable—definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.
18. The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate the issues.[38]
19. Petitioners’ obscure allegations of sporadic “surveillance” and supposedly being tagged as “communist fronts” in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function.[43]
20. Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by “double contingency,” where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.[44]
21. The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused.[45] Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable.
22. A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly excepted
23. Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism[46] under RA 9372 in that terms like “widespread and extraordinary fear and panic among the populace” and “coerce the government to give in to an unlawful demand” are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts.
24. The overbreadth and the vagueness doctrines have special application only to free-speech cases, and are not appropriate for testing the validity of penal statutes.[50] It added that, at any rate, the challenged provision, under which the therein petitioner was charged, is not vague.[51]
25. A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.
26. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." Claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."
27. In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.
28. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts.
29. To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.[57] The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.[58]
30. As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.[59]
31. A “facial” challenge is likewise different from an “as-applied” challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.[60]
32. The vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.
33. The allowance of a facial challenge in free speech cases is justified by the aim to avert the “chilling effect” on protected speech, the exercise of which should not at all times be abridged.[62] As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an “in terrorem effect” in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.[63]
34. The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the State’s power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him.[65] (Emphasis and underscoring supplied)
35. It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.
36. In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,[67] observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment,[68] and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words.[69] In Virginia v. Hicks,[70] it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the “transcendent value to all society of constitutionally protected expression.”[71]
37. American jurisprudence[74] instructs that “vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity.”
38. In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the constitutionality of criminal statutes. In at least three cases,[76] the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case.
39. From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand.
40. Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an “unlawful demand.” Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech.
42. As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of “terrorism” is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statute’s future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress.
Friday, October 15, 2010
Not every mistake a judge commits in perfoming his judiucial duties makes him criminally or civilly liable.
In the recent case of 3-D INDUSTRIES, INC. and SMARTNET PHILIPPINES, INC. vs. JUSTICES VICENTE Q. ROXAS and JUAN Q. ENRIQUEZ, JR., AM Mo. Ca-10-50-J, October 5, 2010 , the Supreme Court dismissed the criminal complaint for violation of the anti-graft and corrupt practices act filed by losing litigants against two appellate justices. The Court held, inter alia, that "not every error or mistake that a judge commits in the performance of his duties renders him liable, unless he is shown to have acted in bad faith or with deliberate intent to do an injustice,[26] which is not the case here." The doctrinal pronouncements of the Court are quoted below, for legal research purposes, thus:
1. There are two ways by which Section 3(e), R.A. No. 3019 may be violated,[16] viz: 1) by giving undue injury to any party, including the Government, 2) by causing any private party any unwarranted benefit, advantage or preference.[17] These acts must be committed with manifest partiality, evident bad faith, or gross and inexcusable negligence.
2. Manifest partiality has been defined as “a clear, notorious or plain inclination or predilection to favor one side rather than the other.”[18] Bad faith connotes not only bad judgment or negligence, but also a dishonest purpose, a conscious wrongdoing, or a breach of duty amounting to fraud.[19] Gross negligence is the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences as far as other persons are concerned.[20]
3. That the assailed Resolutions issued by respondents favored NICI and the Guy family does not necessarily render respondents guilty of violation of Section 3(e) of R.A. No. 3019, absent proven particular acts of manifest, evident bad faith or gross inexcusable negligence, good faith and regularity being generally presumed in the performance of official duties by public officers.[21]
4. That is why administrative complaints against judges must always be examined with a discriminating eye for its consequential effects are, by their nature, highly penal, such that they stand to face the sanction of dismissal and/or disbarment.[22] In order for this administrative offense to prosper, the subject order or actuation of the judge in the performance of his official duties must not only be contrary to existing law and jurisprudence but, more importantly, must be attended by bad faith, fraud, dishonesty or corruption.[23]
5. Since the impleading of additional parties, on motion of any party or motu proprio at any stage of the action and/or such times as are just is allowed,[24] the Court finds that respondents’ participation in the admission of the supplemental petitions impleading herein complainants as respondents in CA-G.R.SP No. 87104 does not render them administratively liable.
6. While respondents may have based the assailed Resolutions on mere allegations, thus disregarding what has been established in jurisprudence that “mere allegation that a corporation is the alter ego of the individual stockholders is insufficient,”[25] this does not render them administratively liable because not every error or mistake that a judge commits in the performance of his duties renders him liable, unless he is shown to have acted in bad faith or with deliberate intent to do an injustice,[26] which is not the case here.
1. There are two ways by which Section 3(e), R.A. No. 3019 may be violated,[16] viz: 1) by giving undue injury to any party, including the Government, 2) by causing any private party any unwarranted benefit, advantage or preference.[17] These acts must be committed with manifest partiality, evident bad faith, or gross and inexcusable negligence.
2. Manifest partiality has been defined as “a clear, notorious or plain inclination or predilection to favor one side rather than the other.”[18] Bad faith connotes not only bad judgment or negligence, but also a dishonest purpose, a conscious wrongdoing, or a breach of duty amounting to fraud.[19] Gross negligence is the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences as far as other persons are concerned.[20]
3. That the assailed Resolutions issued by respondents favored NICI and the Guy family does not necessarily render respondents guilty of violation of Section 3(e) of R.A. No. 3019, absent proven particular acts of manifest, evident bad faith or gross inexcusable negligence, good faith and regularity being generally presumed in the performance of official duties by public officers.[21]
4. That is why administrative complaints against judges must always be examined with a discriminating eye for its consequential effects are, by their nature, highly penal, such that they stand to face the sanction of dismissal and/or disbarment.[22] In order for this administrative offense to prosper, the subject order or actuation of the judge in the performance of his official duties must not only be contrary to existing law and jurisprudence but, more importantly, must be attended by bad faith, fraud, dishonesty or corruption.[23]
5. Since the impleading of additional parties, on motion of any party or motu proprio at any stage of the action and/or such times as are just is allowed,[24] the Court finds that respondents’ participation in the admission of the supplemental petitions impleading herein complainants as respondents in CA-G.R.SP No. 87104 does not render them administratively liable.
6. While respondents may have based the assailed Resolutions on mere allegations, thus disregarding what has been established in jurisprudence that “mere allegation that a corporation is the alter ego of the individual stockholders is insufficient,”[25] this does not render them administratively liable because not every error or mistake that a judge commits in the performance of his duties renders him liable, unless he is shown to have acted in bad faith or with deliberate intent to do an injustice,[26] which is not the case here.
Philippines slips in Rule of Law - World Justice Project, 2010 report.
BusinessWorld Online Edition: Philippines slips in Rule of Law
Access to justice subfactors are impartial and accountable judicial system; efficient, accessible and effective judicial system; competent and independent attorneys or representatives; fair and efficient alternative dispute resolution; and fair and efficient traditional justice. Other categories were accountable government; publicized and stable laws that protect fundamental rights; and accessible, fair and efficient process. - World Justice Project.
Philippines slips in Rule of Law
Posted on 10:31 PM, October 14, 2010
Business World Online
See - http://www.bworldonline.com/main/content.php?id=19549
THE PHILIPPINES has slipped in terms of providing a strong justice system and addressing corruption, according to a new global index upholding the rule of law.
The World Justice Project (WJP) found the Philippines dragged down by weak justice systems and corruption in the latest version of its Rule of Law Index released in the United States yesterday.
The complete 2010 report, whose categories have been tweaked for the third time since the first report in 2008, has yet to be released as of press time.
A report from AFP, however, said the Philippine score was "dragged down by weak justice systems and corruption," two of nine categories used to measure the performance of 35 countries covered by the index.
The first report in 2008 only surveyed six countries.
The Philippines also fared poorly in all factors of the category "access to justice" in the 2009 index.
Access to justice subfactors are impartial and accountable judicial system; efficient, accessible and effective judicial system; competent and independent attorneys or representatives; fair and efficient alternative dispute resolution; and fair and efficient traditional justice.
Other categories were accountable government; publicized and stable laws that protect fundamental rights; and accessible, fair and efficient process.
Benchmarks
According to WJP’s Web site, the index measures a government’s competitiveness, provides data on various aspects of the rule of law to assist policy makers to assess a nation’s compliance to its existing rule of law, and identify a nation’s strengths and weakness compared to their neighbors.
"Establishing the rule of law is fundamental to achieving communities of opportunity and equity-communities that offer sustainable economic development, accountable government, and respect for fundamental rights," AFP quoted the 2010 report said.
By next year, WJP plans to add another 35 countries in its index for a total of 70 and expand it to 100 by 2012.
"Without the rule of law, medicines do not reach health facilities due to corruption; women in rural areas remain unaware of their rights; people are killed in criminal violence; and firms’ costs increase because of expropriation risk," the report said.
The rule of law is the cornerstone to improving public health, safeguarding participation, ensuring security, and fighting poverty, it added.
The Palace could not be immediately reached for comment. -- Ana Mae G. Roa
Access to justice subfactors are impartial and accountable judicial system; efficient, accessible and effective judicial system; competent and independent attorneys or representatives; fair and efficient alternative dispute resolution; and fair and efficient traditional justice. Other categories were accountable government; publicized and stable laws that protect fundamental rights; and accessible, fair and efficient process. - World Justice Project.
Philippines slips in Rule of Law
Posted on 10:31 PM, October 14, 2010
Business World Online
See - http://www.bworldonline.com/main/content.php?id=19549
THE PHILIPPINES has slipped in terms of providing a strong justice system and addressing corruption, according to a new global index upholding the rule of law.
The World Justice Project (WJP) found the Philippines dragged down by weak justice systems and corruption in the latest version of its Rule of Law Index released in the United States yesterday.
The complete 2010 report, whose categories have been tweaked for the third time since the first report in 2008, has yet to be released as of press time.
A report from AFP, however, said the Philippine score was "dragged down by weak justice systems and corruption," two of nine categories used to measure the performance of 35 countries covered by the index.
The first report in 2008 only surveyed six countries.
The Philippines also fared poorly in all factors of the category "access to justice" in the 2009 index.
Access to justice subfactors are impartial and accountable judicial system; efficient, accessible and effective judicial system; competent and independent attorneys or representatives; fair and efficient alternative dispute resolution; and fair and efficient traditional justice.
Other categories were accountable government; publicized and stable laws that protect fundamental rights; and accessible, fair and efficient process.
Benchmarks
According to WJP’s Web site, the index measures a government’s competitiveness, provides data on various aspects of the rule of law to assist policy makers to assess a nation’s compliance to its existing rule of law, and identify a nation’s strengths and weakness compared to their neighbors.
"Establishing the rule of law is fundamental to achieving communities of opportunity and equity-communities that offer sustainable economic development, accountable government, and respect for fundamental rights," AFP quoted the 2010 report said.
By next year, WJP plans to add another 35 countries in its index for a total of 70 and expand it to 100 by 2012.
"Without the rule of law, medicines do not reach health facilities due to corruption; women in rural areas remain unaware of their rights; people are killed in criminal violence; and firms’ costs increase because of expropriation risk," the report said.
The rule of law is the cornerstone to improving public health, safeguarding participation, ensuring security, and fighting poverty, it added.
The Palace could not be immediately reached for comment. -- Ana Mae G. Roa
Sunday, October 10, 2010
Court employee cheats in civil service exams; dismissed.
In "RE: COMPLAINT OF THE CIVIL SERVICE COMMISSION, CORDILLERA ADMINISTRATIVE REGION, BAGUIO CITY against RITA S. CHULYAO, CLERK OF COURT, MUNICIPAL CIRCUIT TRIAL COURT-BARLIG, MOUNTAIN PROVINCE", Per Curiam, AM No. P-07-2292, the Supreme Court found RITA S. CHULYAO, Clerk of Court II, of the Municipal Circuit Trial Court, Barlig, Mountain Province, GUILTY of DISHONESTY and ordered her DISMISSAL from the service, with forfeiture of all retirement benefits and privileges, except accrued leave credits, if any, with prejudice to re-employment in any branch or instrumentality of the government, including government-owned or controlled corporations. The salient parts thereof are extensively quoted below, for research purposes, thus:
x x x.
On December 9, 2004, the Civil Service Commission (CSC)-Examination Division received an Anonymous Complaint, which alleged an examination irregularity involving Rita S. Chulyao (Chulyao), Clerk of Court II, MCTC of Barlig, Mountain Province. The complaint averred that Chulyao employed her sister, Raquel S. Pangowon (Pangowon), a school teacher of Barlig National High School, to take for and in her behalf the July 31, 1988 Career Service Professional Examination (CSPE) conducted in Baguio City.
Upon verification from the examination records of the CSC-Region 1 and CSC-Integrated Records Management Office, it appeared that one Rita S. Chulyao actually took the CSPE on July 31, 1988 in Baguio City.
Upon further verification from the Office of the Court Administrator (OCA), Supreme Court, it revealed that per employment records of Chulyao, she passed the CSPE held in Baguio City on July 31, 1988 with a rating of 72%.
Thus, for purposes of comparison, the employment records of Pangowon were requested from the CSC-Cordillera Administrative Region (CSC-CAR), Mountain Province Field Office. From Pangowon's personal data sheets, it was found that the picture attached therein was that of the same person who took the CSPE on July 31, 1988 based on the picture attached in the picture seat plan. These gave the impression that the actual person who took the CSPE was Raquel Pangowon instead of the supposed examinee Rita Chulyao.
Subsequently, the CSC directed both Chulyao and Pangowon to submit their Comments on the complaint.
Chulyao moved for the summary dismissal of the complaint and manifested that the same was filed by scrupulous people motivated by revenge and envy.
In an Order dated February 15, 2005, Chulyao and Pangowon were directed to appear before the CSC-CAR for preliminary investigation on March 3, 2005. Both respondents failed to appear.
Again, in an Order dated July 21, 2005, Pangowon was directed to appear before the CSC-CAR for preliminary investigation. By special appearance, Pangowon appeared for preliminary investigation on September 6, 2005.
Chulyao, on the other hand, was again directed to appear for a preliminary investigation on August 29, 2005. However, despite notice, Chulyao failed to show up.
Subsequently, the CSC-CAR issued a formal charge against Pangowon for Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service for applying and taking the July 31, 1988 CSPE for and in behalf of her sister, Rita S. Chulyao.[1]
However, the CSC-CAR, in Decision No. CAR-06-057DC, dated May 4, 2006, the complaint against Chulyao was dismissed for lack of jurisdiction since the latter is a court employee.[2]
On June 14, 2006, the Decision of the CSC-CAR, dated May 4, 2006, was forwarded to the OCA for proper action.
On June 23, 2006, the OCA directed Chulyao to submit her Comment on the CSC-CAR Decision against her.[3]
In her Comment[4] dated July 14, 2006, Chulyao denied anew the allegations contained in the CSC Decision. She denied that she committed any examination irregularity in the CSPE conducted in Baguio City on July 31, 1988. She narrated that the week before she went to Baguio City for the examination, her sister, Pangowon, gave her certain photo negatives for developing. On July 30, 1988, Chulyao narrated that she and her townmates who are taking the CSC examinations arrived in Baguio City late in the afternoon. Since she was not familiar with the place, she asked her sister-in-law to go to the photo studio to have her photo negative, as well as that of her sister's, developed. Her sister-in-law told her that the photos will be claimed the following day.
In the early morning of July 31, 1988, she and her sister-in-law went to the photo studio to claim the photos, but the studio was still closed. Chulyao claimed that they were able to redeem the photos only after 8:00 a.m. and she was already late for the examination. She said that because she was already late, the proctor assisted her and asked for her identification (I.D.) picture for the seat plan. Chulyao further claimed that she took the I.D. picture from the small envelope and gave it to the proctor. Later, after a week or two, Chulyao alleged that she received a note from her sister inquiring about the photos she asked her to have developed. Chulyao claimed that she counted her I.D. pictures and there were six (6) copies, while the number of copies her sister had was only five instead of six. She said that she was alarmed about what happened, but she never had the courage to report the same to the CSC.[5]
On December 6, 2006, the OCA recommended to this Court the re-docketing of the complaint against Chulyao as a regular administrative matter. It also found Chulyao guilty of dishonesty, thus, recommended that Chulyao be dismissed from service.[6]
On January 30, 2007, the Court resolved to re-docket the subject complaint as A.M. No. P-07-2292 (Civil Service Commission, C.A.R., Baguio City v. Rita S. Chulyao, Clerk of Court II, Municipal Circuit Trial Court, Barlig, Mountain Province) and further required Chulyao to file her Comment thereon.[7]
In her Comment[8] dated March 27, 2007, Chulyao, as in her previous Comment, reiterated that the irregularity were merely due to inadvertence when she submitted her sister's photo instead of her's to the proctor during the CSPE. She claimed to be unaware that the photo she gave was that of her sister's.
Chulyao refuted the allegation that it was her sister, Pangowon, who took the examination for and in her behalf on July 31, 1988 by reasoning that her sister was in Kadaclan, Barlig, Mountain Province, as it was planting season at that time in their ricefield, and she was also working there as a teacher. She claimed that they are look-alikes and that they have the same facial features which she insinuated where the confusion started. She submitted the Affidavit of one Diosdado F. Foyagan,[9] her seatmate at the time of the examination, who attested that he saw Chulyao inside the examination room on July 31, 1988. Chulyao also submitted a document showing that her sister was never absent in her class during said date, thus, she claimed that it was impossible for her sister to be in Baguio City, since it will take two to three days to travel from Barlig to Baguio City and vice- versa. Likewise, Chulyao submitted the Personal Data Sheet of Pangowon to prove that she never took the Civil Service Examination on July 31, 1988.
On June 17, 2008, the Court referred the instant matter to the OCA for evaluation, report and recommendation.
Meanwhile, on July 7, 2008, the CSC, in Resolution No. 081285,[10] affirmed the dismissal of Raquel S. Pangowon from service for Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service.
In compliance, on July 22, 2009, in a Memorandum to Chief Justice Reynato S. Puno, the OCA recommended that Chulyao be dismissed from service having found to be guilty of Dishonesty.
In its Report, the OCA, adopting the CSC findings, noted that indeed the photo appearing on the picture seat plan over the name and signature of Chulyao was that of her sister, Pangowon. Chulyao even categorically admitted this fact, but denied it was intentional. Likewise, it also found substantial dissimilarity between the signature appearing in Chulyao's personal data sheet and the signature appearing on the picture seat plan. The OCA noted that while Chulyao insisted that the name and signature appearing below the alleged photo of Raquel Pangowon was hers and not of Raquel Pangowon, she, however, failed to present any evidence to prove that the signature appearing on the picture seat plan was really her own. Thus, the OCA concluded that the unexplained discrepancy which is clear to the naked eye is proof enough that indeed another person took the examination for and in behalf of Chulyao.
The OCA gave no credence to the documents submitted by Chulyao to prove that her sister was never absent from her classes; thus, she cannot be the one who took the examination. The document presented was merely Pangowon's service record which does not contain any specific log of Pangowon's daily time-in and time-out. The document, therefore, cannot prove that Pangowon was not in Baguio City on July 31, 1988. Likewise, the Affidavit of Foyagan was given scant consideration, since the affidavit was found to be lacking the requisite community tax certificate number and its place and date of issue. Hence, the identity of Foyagan was questionable.
Over-all, the OCA found Chulyao's defense as merely an alibi unsubstantiated by clear and convincing evidence of non-culpability.
We adopt the recommendation of the OCA.
Dishonesty is defined as “intentionally making a false statement in any material fact, or practicing or attempting to practice any deception of fraud in securing his examination, registration, appointment or promotion.” It is also understood to imply a “disposition to lie, cheat, deceive, or defraud; unworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray.[11]
In the instant case, respondent Chulyao would like us to believe that she is not liable for dishonesty as the alleged irregularities imputed against her occurred due to mere inadvertence or negligence; thus, in effect raising good faith as her defense for the discrepancies discovered during the CSPE on July 31, 1988.
The evidence on record, however, is overwhelming to support the findings that Chulyao employed her sister, Pangowon, to take the July 31, 1988 CSPE conducted in Baguio City for her and in her behalf and claimed the result thereof as her own in her personal data sheet accomplished on April 23, 2007.
As observed by the CSC, there was a significant difference in the signature of the examinee Chulyao and that of the true Rita Chulyao. It noted that the true Rita Chulyao spells vividly the letter R and the letter S overlapping each other, while the examinee Rita Chulyao was not able to spell these letters as vividly and vibrantly as that of the true Rita Chulyao. The CSC added that despite the obvious effort on the part of the examinee Rita Chulyao to imitate the signature of the true Rita Chulyao, the former failed to successfully reproduce a signature as that of the true Rita Chulyao. The difference in the loops, lines, slant, pressure, fineness, contours and style revealed that the signatures belong to two different persons.
The improbability of Chulyao's claim that the irregularity was due to mere inadvertence when she gave the picture of her sister instead of her own picture for the picture seat plan was clearly explained by the CSC.
The CSC ratiocinated, and we quote:
The CSC has devised methods and strategies in the conduct of any civil service exam to ensure the integrity of the civil service examination. The procedure in taking any civil service exam is very rigid, stiff and taut. With the well established procedure in administering the Civil Service Exams, it could not and never happen that the I.D. Picture of another person be pasted in the picture seat plan instead of the picture of the actual examinee. This is so because before the I.D. Picture of the examinee is pasted in the seat plan, the proctor will validate if the I.D. Picture submitted by the examinee is the examinee's picture. The proctor will see to it that the I.D. Picture being submitted by the examinee is his or her own picture. After the I.D. is pasted, the examinee will be required to sign below said I.D. and the signature is again validated by the proctor if the said signature is the same as the signature appearing in the application form. Hence, it would be highly improbable that the I.D. picture of another person would be pasted in the PSP.[12]
The CSC maintained that the person who actually took the examination was respondent's sister, Pangowon. The existence of impersonation was all the more established when Chulyao in her comments admitted that the picture appearing on the picture seat plan of the examination room was that of her sister's. The CSC stressed that the impersonation started right from the time of the filling-up of the application form until the actual examination, it was Chulyao's sister who performed all the acts of impersonation using the name of the person impersonated − Rita Chulyao. The truth was unveiled only when the result thereof was utilized by the respondent in her employment in the government service. When Chulyao filled up her personal data sheet and attached her photo thereon and eventually the picture in the personal data sheet was compared to the picture on the picture seat plan, it was only then that the impersonation was discovered, because the person appearing on the picture seat plan was different from the person whose picture was attached to the personal data sheet.
No amount of good faith can be attributed to Chulyao. Good faith necessitates honesty of intention, free from any knowledge of circumstances that ought to have prompted him to undertake an inquiry.[13] Chulyao admitted that she discovered after a week or two, from the day of examination, that she had given the picture of her sister to the proctor on July 31, 1988 and yet she did not immediately report and correct said error. When the CSC called her twice to appear before the investigation being conducted regarding the incident, Chulyao failed to appear. An innocent person caught in a like situation would more likely immediately profess his innocence rather than evade an investigation which could shed light on the controversy. A truly innocent person would normally grasp the first available opportunity to defend himself and assert his innocence.[14] Thus, Chulyao's protestation of good faith and inadvertence are too incredible to be given weight. To our mind, Chulyao acted with malicious intent to perpetrate a fraud.
Furthermore, it has been a settled rule in this jurisdiction that the duly accomplished form of the Civil Service is an official document of the Commission, which, by its very nature is considered in the same category as that of a public document, admissible in evidence without need of further proof. As an official document, the contents/entries therein made in the course of official duty are prima facie evidence of the facts stated therein.[15]
Indeed, Chulyao's act of using for her benefit the fake or spurious civil service eligibility not only amounted to violation of the Civil Service Examinations, but it also resulted to the prejudice of the government and the public in general. Under the Qualification Standards (QS) of the Civil Service Commission, the eligibility needed for the position of Clerk of Court II is Career Service (Professional) Second Level Eligibility. Thus, it is clear that Chulyao was able to get her appointment as Clerk of Court II at the MCTC, Barlig, Mountain Province, by using the obtained result of the July 31, 1988 Career Service Professional Eligibility Examination.
The Court cannot turn a blind eye to what are clearly transgressions of the law. Dishonesty and falsification are malevolent acts that have no place in the Judiciary. Under Section 52, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws, dishonesty is considered a grave offense punishable by dismissal even for the first offense.
Assumption of public office is impressed with the paramount public interest that requires the highest standards of ethical conduct. A person aspiring for public office must observe honesty, candor, and faithful compliance with the law. Nothing less is expected.[16]
x x x.
x x x.
On December 9, 2004, the Civil Service Commission (CSC)-Examination Division received an Anonymous Complaint, which alleged an examination irregularity involving Rita S. Chulyao (Chulyao), Clerk of Court II, MCTC of Barlig, Mountain Province. The complaint averred that Chulyao employed her sister, Raquel S. Pangowon (Pangowon), a school teacher of Barlig National High School, to take for and in her behalf the July 31, 1988 Career Service Professional Examination (CSPE) conducted in Baguio City.
Upon verification from the examination records of the CSC-Region 1 and CSC-Integrated Records Management Office, it appeared that one Rita S. Chulyao actually took the CSPE on July 31, 1988 in Baguio City.
Upon further verification from the Office of the Court Administrator (OCA), Supreme Court, it revealed that per employment records of Chulyao, she passed the CSPE held in Baguio City on July 31, 1988 with a rating of 72%.
Thus, for purposes of comparison, the employment records of Pangowon were requested from the CSC-Cordillera Administrative Region (CSC-CAR), Mountain Province Field Office. From Pangowon's personal data sheets, it was found that the picture attached therein was that of the same person who took the CSPE on July 31, 1988 based on the picture attached in the picture seat plan. These gave the impression that the actual person who took the CSPE was Raquel Pangowon instead of the supposed examinee Rita Chulyao.
Subsequently, the CSC directed both Chulyao and Pangowon to submit their Comments on the complaint.
Chulyao moved for the summary dismissal of the complaint and manifested that the same was filed by scrupulous people motivated by revenge and envy.
In an Order dated February 15, 2005, Chulyao and Pangowon were directed to appear before the CSC-CAR for preliminary investigation on March 3, 2005. Both respondents failed to appear.
Again, in an Order dated July 21, 2005, Pangowon was directed to appear before the CSC-CAR for preliminary investigation. By special appearance, Pangowon appeared for preliminary investigation on September 6, 2005.
Chulyao, on the other hand, was again directed to appear for a preliminary investigation on August 29, 2005. However, despite notice, Chulyao failed to show up.
Subsequently, the CSC-CAR issued a formal charge against Pangowon for Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service for applying and taking the July 31, 1988 CSPE for and in behalf of her sister, Rita S. Chulyao.[1]
However, the CSC-CAR, in Decision No. CAR-06-057DC, dated May 4, 2006, the complaint against Chulyao was dismissed for lack of jurisdiction since the latter is a court employee.[2]
On June 14, 2006, the Decision of the CSC-CAR, dated May 4, 2006, was forwarded to the OCA for proper action.
On June 23, 2006, the OCA directed Chulyao to submit her Comment on the CSC-CAR Decision against her.[3]
In her Comment[4] dated July 14, 2006, Chulyao denied anew the allegations contained in the CSC Decision. She denied that she committed any examination irregularity in the CSPE conducted in Baguio City on July 31, 1988. She narrated that the week before she went to Baguio City for the examination, her sister, Pangowon, gave her certain photo negatives for developing. On July 30, 1988, Chulyao narrated that she and her townmates who are taking the CSC examinations arrived in Baguio City late in the afternoon. Since she was not familiar with the place, she asked her sister-in-law to go to the photo studio to have her photo negative, as well as that of her sister's, developed. Her sister-in-law told her that the photos will be claimed the following day.
In the early morning of July 31, 1988, she and her sister-in-law went to the photo studio to claim the photos, but the studio was still closed. Chulyao claimed that they were able to redeem the photos only after 8:00 a.m. and she was already late for the examination. She said that because she was already late, the proctor assisted her and asked for her identification (I.D.) picture for the seat plan. Chulyao further claimed that she took the I.D. picture from the small envelope and gave it to the proctor. Later, after a week or two, Chulyao alleged that she received a note from her sister inquiring about the photos she asked her to have developed. Chulyao claimed that she counted her I.D. pictures and there were six (6) copies, while the number of copies her sister had was only five instead of six. She said that she was alarmed about what happened, but she never had the courage to report the same to the CSC.[5]
On December 6, 2006, the OCA recommended to this Court the re-docketing of the complaint against Chulyao as a regular administrative matter. It also found Chulyao guilty of dishonesty, thus, recommended that Chulyao be dismissed from service.[6]
On January 30, 2007, the Court resolved to re-docket the subject complaint as A.M. No. P-07-2292 (Civil Service Commission, C.A.R., Baguio City v. Rita S. Chulyao, Clerk of Court II, Municipal Circuit Trial Court, Barlig, Mountain Province) and further required Chulyao to file her Comment thereon.[7]
In her Comment[8] dated March 27, 2007, Chulyao, as in her previous Comment, reiterated that the irregularity were merely due to inadvertence when she submitted her sister's photo instead of her's to the proctor during the CSPE. She claimed to be unaware that the photo she gave was that of her sister's.
Chulyao refuted the allegation that it was her sister, Pangowon, who took the examination for and in her behalf on July 31, 1988 by reasoning that her sister was in Kadaclan, Barlig, Mountain Province, as it was planting season at that time in their ricefield, and she was also working there as a teacher. She claimed that they are look-alikes and that they have the same facial features which she insinuated where the confusion started. She submitted the Affidavit of one Diosdado F. Foyagan,[9] her seatmate at the time of the examination, who attested that he saw Chulyao inside the examination room on July 31, 1988. Chulyao also submitted a document showing that her sister was never absent in her class during said date, thus, she claimed that it was impossible for her sister to be in Baguio City, since it will take two to three days to travel from Barlig to Baguio City and vice- versa. Likewise, Chulyao submitted the Personal Data Sheet of Pangowon to prove that she never took the Civil Service Examination on July 31, 1988.
On June 17, 2008, the Court referred the instant matter to the OCA for evaluation, report and recommendation.
Meanwhile, on July 7, 2008, the CSC, in Resolution No. 081285,[10] affirmed the dismissal of Raquel S. Pangowon from service for Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service.
In compliance, on July 22, 2009, in a Memorandum to Chief Justice Reynato S. Puno, the OCA recommended that Chulyao be dismissed from service having found to be guilty of Dishonesty.
In its Report, the OCA, adopting the CSC findings, noted that indeed the photo appearing on the picture seat plan over the name and signature of Chulyao was that of her sister, Pangowon. Chulyao even categorically admitted this fact, but denied it was intentional. Likewise, it also found substantial dissimilarity between the signature appearing in Chulyao's personal data sheet and the signature appearing on the picture seat plan. The OCA noted that while Chulyao insisted that the name and signature appearing below the alleged photo of Raquel Pangowon was hers and not of Raquel Pangowon, she, however, failed to present any evidence to prove that the signature appearing on the picture seat plan was really her own. Thus, the OCA concluded that the unexplained discrepancy which is clear to the naked eye is proof enough that indeed another person took the examination for and in behalf of Chulyao.
The OCA gave no credence to the documents submitted by Chulyao to prove that her sister was never absent from her classes; thus, she cannot be the one who took the examination. The document presented was merely Pangowon's service record which does not contain any specific log of Pangowon's daily time-in and time-out. The document, therefore, cannot prove that Pangowon was not in Baguio City on July 31, 1988. Likewise, the Affidavit of Foyagan was given scant consideration, since the affidavit was found to be lacking the requisite community tax certificate number and its place and date of issue. Hence, the identity of Foyagan was questionable.
Over-all, the OCA found Chulyao's defense as merely an alibi unsubstantiated by clear and convincing evidence of non-culpability.
We adopt the recommendation of the OCA.
Dishonesty is defined as “intentionally making a false statement in any material fact, or practicing or attempting to practice any deception of fraud in securing his examination, registration, appointment or promotion.” It is also understood to imply a “disposition to lie, cheat, deceive, or defraud; unworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray.[11]
In the instant case, respondent Chulyao would like us to believe that she is not liable for dishonesty as the alleged irregularities imputed against her occurred due to mere inadvertence or negligence; thus, in effect raising good faith as her defense for the discrepancies discovered during the CSPE on July 31, 1988.
The evidence on record, however, is overwhelming to support the findings that Chulyao employed her sister, Pangowon, to take the July 31, 1988 CSPE conducted in Baguio City for her and in her behalf and claimed the result thereof as her own in her personal data sheet accomplished on April 23, 2007.
As observed by the CSC, there was a significant difference in the signature of the examinee Chulyao and that of the true Rita Chulyao. It noted that the true Rita Chulyao spells vividly the letter R and the letter S overlapping each other, while the examinee Rita Chulyao was not able to spell these letters as vividly and vibrantly as that of the true Rita Chulyao. The CSC added that despite the obvious effort on the part of the examinee Rita Chulyao to imitate the signature of the true Rita Chulyao, the former failed to successfully reproduce a signature as that of the true Rita Chulyao. The difference in the loops, lines, slant, pressure, fineness, contours and style revealed that the signatures belong to two different persons.
The improbability of Chulyao's claim that the irregularity was due to mere inadvertence when she gave the picture of her sister instead of her own picture for the picture seat plan was clearly explained by the CSC.
The CSC ratiocinated, and we quote:
The CSC has devised methods and strategies in the conduct of any civil service exam to ensure the integrity of the civil service examination. The procedure in taking any civil service exam is very rigid, stiff and taut. With the well established procedure in administering the Civil Service Exams, it could not and never happen that the I.D. Picture of another person be pasted in the picture seat plan instead of the picture of the actual examinee. This is so because before the I.D. Picture of the examinee is pasted in the seat plan, the proctor will validate if the I.D. Picture submitted by the examinee is the examinee's picture. The proctor will see to it that the I.D. Picture being submitted by the examinee is his or her own picture. After the I.D. is pasted, the examinee will be required to sign below said I.D. and the signature is again validated by the proctor if the said signature is the same as the signature appearing in the application form. Hence, it would be highly improbable that the I.D. picture of another person would be pasted in the PSP.[12]
The CSC maintained that the person who actually took the examination was respondent's sister, Pangowon. The existence of impersonation was all the more established when Chulyao in her comments admitted that the picture appearing on the picture seat plan of the examination room was that of her sister's. The CSC stressed that the impersonation started right from the time of the filling-up of the application form until the actual examination, it was Chulyao's sister who performed all the acts of impersonation using the name of the person impersonated − Rita Chulyao. The truth was unveiled only when the result thereof was utilized by the respondent in her employment in the government service. When Chulyao filled up her personal data sheet and attached her photo thereon and eventually the picture in the personal data sheet was compared to the picture on the picture seat plan, it was only then that the impersonation was discovered, because the person appearing on the picture seat plan was different from the person whose picture was attached to the personal data sheet.
No amount of good faith can be attributed to Chulyao. Good faith necessitates honesty of intention, free from any knowledge of circumstances that ought to have prompted him to undertake an inquiry.[13] Chulyao admitted that she discovered after a week or two, from the day of examination, that she had given the picture of her sister to the proctor on July 31, 1988 and yet she did not immediately report and correct said error. When the CSC called her twice to appear before the investigation being conducted regarding the incident, Chulyao failed to appear. An innocent person caught in a like situation would more likely immediately profess his innocence rather than evade an investigation which could shed light on the controversy. A truly innocent person would normally grasp the first available opportunity to defend himself and assert his innocence.[14] Thus, Chulyao's protestation of good faith and inadvertence are too incredible to be given weight. To our mind, Chulyao acted with malicious intent to perpetrate a fraud.
Furthermore, it has been a settled rule in this jurisdiction that the duly accomplished form of the Civil Service is an official document of the Commission, which, by its very nature is considered in the same category as that of a public document, admissible in evidence without need of further proof. As an official document, the contents/entries therein made in the course of official duty are prima facie evidence of the facts stated therein.[15]
Indeed, Chulyao's act of using for her benefit the fake or spurious civil service eligibility not only amounted to violation of the Civil Service Examinations, but it also resulted to the prejudice of the government and the public in general. Under the Qualification Standards (QS) of the Civil Service Commission, the eligibility needed for the position of Clerk of Court II is Career Service (Professional) Second Level Eligibility. Thus, it is clear that Chulyao was able to get her appointment as Clerk of Court II at the MCTC, Barlig, Mountain Province, by using the obtained result of the July 31, 1988 Career Service Professional Eligibility Examination.
The Court cannot turn a blind eye to what are clearly transgressions of the law. Dishonesty and falsification are malevolent acts that have no place in the Judiciary. Under Section 52, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws, dishonesty is considered a grave offense punishable by dismissal even for the first offense.
Assumption of public office is impressed with the paramount public interest that requires the highest standards of ethical conduct. A person aspiring for public office must observe honesty, candor, and faithful compliance with the law. Nothing less is expected.[16]
x x x.
Seniority rule in judicial appointments - and the role of bar codes.
In "Re: Seniority Among the Four (4) Most Recent Appointments to the Position of Associate Justices of the Court of Appeals", En Banc, AM No. 10-4-22-SC, September 28, 2010, the Supreme Court gives us a clarification on the seniority rule vis-a-vis judicial appointments, with emphasis on the significance of the evidentiary role of bar codes on the appointment papers when the appointments bear the same date, thus:
x x x.
According to the CA Committee on Rules, there appears to be a conflict between certain provisions of the 2009 Internal Rules of the Court of Appeals (2009 IRCA). In particular, Section 1, Rule I thereof provides:
RULE I
THE COURT, ITS ORGANIZATION AND OFFICIALS
Section 1. Composition of the Court of Appeals. — Unless otherwiseprovided by law, the Court of Appeals is composed of a Presiding Justice and sixty-eight (68) Associate Justices. It sits en banc, or in twenty-three (23) Divisions of three (3) Justices each. The members of the Court are classified into three groups according to the order of their seniority. The date and sequence of the appointment of the Justices determine their seniority courtwide.
When a senior member is designated to act as Chairperson of a Division, he/she shall be designated as an “Acting Chairperson”. In like manner, a junior member designated to act as senior member of a Division shall be an “Acting Senior Member”. (Emphasis supplied)
On the other hand, Section 1, Rule II thereof states:
RULE II
RULE ON PRECEDENCE AND PROTOCOL
Section 1. Concept. — The Presiding Justice enjoys precedence over all the other members of the Court in all official functions. The Associate Justices shall have precedence according to the order of their appointments as officially transmitted to the Supreme Court. (Emphasis supplied)
The CA Committee on Rules opined:
As between the foregoing provisions, it may be conceded that Section 1, Rule II should prevail over Section 1, Rule I pursuant to the basic rule of statutory construction that gives premium to a specific provision over a general one. However, reckoned alongside the circumstances surrounding the appointment of the above-named Associate Justices, it is our considered view that any conflict between or confusion engendered by the above-quoted provisions should be resolved in accordance with Republic Act No. 8246, entitled “An Act Creating Additional Divisions in the Court of Appeals, Increasing the Number of Court of Appeals Justices from Fifty-One (51) to Sixty-Nine (69), Amending for the Purpose Batas Pambansa Bilang 129, As Amended, Otherwise Known as the Judiciary Reorganization Act of 1990, Appropriating Funds Therefor, and for Other Purposes.” Section of said lawcategorically states:
“Section 1. Section 3, Chapter 1 of Batas Pambansa Blg. 129, as amended, is hereby further amended to read as follows:
‘Sec. 3. Organization. — There is hereby created a Court of Appeals which shall consist of a Presiding Justice and sixty-eight (68) Associate Justices who shall be appointed by the President of the Philippines. The Presiding Justice shall be so designated in his appointment, and the Associate Justices shall have precedence according to the dates of their respective appointments, or when the appointments of two or more of them shall bear the same date, according to the order in which their appointments were issued by the President.’”[1]
Evident from the foregoing provision is a clear legislative intent to determine the order of precedence seniority of this Court’s Justices “according to the dates of their respective appointments.” In addition to the general rule of construction that applicable legal provisions should, as far as practicable, always be harmonized with each other, the spirit and intent behind Republic Act No. 8246 should be given precedence if only because it is the enabling law to which the IRCA should conform. Moreover, given its clarity, it also goes without saying that Section 1 of the law should be applied according to its literal tenor, without equivocation and further need of extended ratiocination from the Committee.
Applying Section 1, Rule I and Section I, Rule II of the IRCA vis-a-vis Section 1 of Republic Act No. 8246, the order of precedence/seniority among Justices Fernandez, Peralta, Jr. and Hernando should be determined according to the chronological order indicated in the March 10, 2010 letter of transmittal from Hon. Executive secretary Leandro R. Mendozaand the barcodes accompanying their respective appointment papers. On the other hand, having been appointed on February 16, 2010, it logically follows that said Justices collectively have precedence/seniority over Justice Valenzuela who, despite the placement of her name in said transmittal letter before the names of the other three new justices of the Court of Appeals and the lower bar code number accompanying her appointed, was appointed only on February 24, 2010.
x x x x x x x x x
While obviously intended to authenticate the appointment papers under consideration, the mechanically-stamped barcode cannot prevail over the date of appointment indicated in the President’s own handwriting. Having been personally signed and dated by the President who is the appointing authority, the practical and legal import of said appointment papers of the Justices concerned should be upheld over that of the March 10, 2010 transmittal letter from the Executive Secretary. It should, however, be pointed out that the foregoing interpretation of the Rule on precedence and seniority should only apply to the above named Associate Justices, in view of the peculiar circumstances which attended the issuance/transmission of their appointment papers.[2]
Justice Antonio-Valenzuela disagreed with the interpretation of the CA Committee on Rules, insisting that she is the most senior among the four newly appointed CA Associate Justices pursuant to Section 1, Rule 2 of the 2009 IRCA which provides that seniority of the Associate Justices shall be determined “according to the order of their appointments as transmitted to the Supreme Court.” She argued that “the final act in the process of appointing a member of the Judiciary is the transmittal of the appointment to the Supreme Court.” She also took “serious exception” to the statement of the CA Committee on Rules that “the foregoing interpretation of the Rule on precedence and seniority should only apply to the above named Associate Justices, in view of the peculiar circumstances which attended the issuance/transmission of their appointment papers.” According to her, there was nothing novel or peculiar about the circumstances attending the issuance and transmission of the four newly appointed members of the CA.
The matter was referred to the CA en banc for appropriate action. After deliberation, the CA en banc adopted the opinion of the CA Rules Committee. This was approved by this Court in a resolution dated July 20, 2010.
Justice Antonio-Valenzuela now seeks reconsideration of this Court’s resolution dated July 20, 2010. She insists that all four CA Associate Justices whose seniority is involved in this matter “were appointed on March 10, 2010, the day that their appointments were transmitted by the Office of the President” to this Court.
We disagree.
An appointment to a public office is the unequivocal act, of one who has the authority, of designating or selecting an individual to discharge and perform the duties and functions of an office or trust.[3] Where the power of appointment is absolute and the appointee has been determined upon, no further consent or approval is necessary and the formal evidence of the appointment, the commission, may issue at once.[4] The appointment is deemed complete once the last act required of the appointing authority has been complied with.[5]
In Valencia v. Peralta,[6] the Court ruled that a written memorial that can render title to public office indubitable is required. This written memorial is known as the commission. For purposes of completion of the appointment process, the appointment is complete when the commission is signed by the executive, and sealed if necessary, and is ready to be delivered or transmitted to the appointee.[7] Thus, transmittal of the commission is an act which is done after the appointment has already been completed. It is not required to complete the appointment but only to facilitate the effectivity of the appointment by the appointee’s receipt and acceptance thereof.
For purposes of appointments to the judiciary, therefore, the date the commission has been signed by the President (which is the date appearing on the face of such document) is the date of the appointment. Such date will determine the seniority of the members of the Court of Appeals in connection with Section 3, Chapter I of BP 129, as amended by RA 8246. In other words, the earlier the date of the commission of an appointee, the more senior he/she is over the other subsequent appointees. It is only when the appointments of two or more appointees bear the same date that the order of issuance of the appointments by the President becomes material. This provision of statutory law (Section 3, Chapter I of BP 129, as amended by RA 8246) controls over the provisions of the 2009 IRCA which gives premium to the order of appointments as transmitted to this Court. Rules implementing a particular law cannot override but must give way to the law they seek to implement.
In view of the foregoing, the CA en banc acted correctly when it adopted the view of the CA Rules Committee insofar as the reckoning of the seniority of CA Justices Fernandez, Peralta, Jr., Hernando and Antonio-Valenzuela is concerned but erred when it declared that the CA Rules Committee’s interpretation applies only to the case of the four aforementioned Justices.
x x x.
x x x.
According to the CA Committee on Rules, there appears to be a conflict between certain provisions of the 2009 Internal Rules of the Court of Appeals (2009 IRCA). In particular, Section 1, Rule I thereof provides:
RULE I
THE COURT, ITS ORGANIZATION AND OFFICIALS
Section 1. Composition of the Court of Appeals. — Unless otherwiseprovided by law, the Court of Appeals is composed of a Presiding Justice and sixty-eight (68) Associate Justices. It sits en banc, or in twenty-three (23) Divisions of three (3) Justices each. The members of the Court are classified into three groups according to the order of their seniority. The date and sequence of the appointment of the Justices determine their seniority courtwide.
When a senior member is designated to act as Chairperson of a Division, he/she shall be designated as an “Acting Chairperson”. In like manner, a junior member designated to act as senior member of a Division shall be an “Acting Senior Member”. (Emphasis supplied)
On the other hand, Section 1, Rule II thereof states:
RULE II
RULE ON PRECEDENCE AND PROTOCOL
Section 1. Concept. — The Presiding Justice enjoys precedence over all the other members of the Court in all official functions. The Associate Justices shall have precedence according to the order of their appointments as officially transmitted to the Supreme Court. (Emphasis supplied)
The CA Committee on Rules opined:
As between the foregoing provisions, it may be conceded that Section 1, Rule II should prevail over Section 1, Rule I pursuant to the basic rule of statutory construction that gives premium to a specific provision over a general one. However, reckoned alongside the circumstances surrounding the appointment of the above-named Associate Justices, it is our considered view that any conflict between or confusion engendered by the above-quoted provisions should be resolved in accordance with Republic Act No. 8246, entitled “An Act Creating Additional Divisions in the Court of Appeals, Increasing the Number of Court of Appeals Justices from Fifty-One (51) to Sixty-Nine (69), Amending for the Purpose Batas Pambansa Bilang 129, As Amended, Otherwise Known as the Judiciary Reorganization Act of 1990, Appropriating Funds Therefor, and for Other Purposes.” Section of said lawcategorically states:
“Section 1. Section 3, Chapter 1 of Batas Pambansa Blg. 129, as amended, is hereby further amended to read as follows:
‘Sec. 3. Organization. — There is hereby created a Court of Appeals which shall consist of a Presiding Justice and sixty-eight (68) Associate Justices who shall be appointed by the President of the Philippines. The Presiding Justice shall be so designated in his appointment, and the Associate Justices shall have precedence according to the dates of their respective appointments, or when the appointments of two or more of them shall bear the same date, according to the order in which their appointments were issued by the President.’”[1]
Evident from the foregoing provision is a clear legislative intent to determine the order of precedence seniority of this Court’s Justices “according to the dates of their respective appointments.” In addition to the general rule of construction that applicable legal provisions should, as far as practicable, always be harmonized with each other, the spirit and intent behind Republic Act No. 8246 should be given precedence if only because it is the enabling law to which the IRCA should conform. Moreover, given its clarity, it also goes without saying that Section 1 of the law should be applied according to its literal tenor, without equivocation and further need of extended ratiocination from the Committee.
Applying Section 1, Rule I and Section I, Rule II of the IRCA vis-a-vis Section 1 of Republic Act No. 8246, the order of precedence/seniority among Justices Fernandez, Peralta, Jr. and Hernando should be determined according to the chronological order indicated in the March 10, 2010 letter of transmittal from Hon. Executive secretary Leandro R. Mendozaand the barcodes accompanying their respective appointment papers. On the other hand, having been appointed on February 16, 2010, it logically follows that said Justices collectively have precedence/seniority over Justice Valenzuela who, despite the placement of her name in said transmittal letter before the names of the other three new justices of the Court of Appeals and the lower bar code number accompanying her appointed, was appointed only on February 24, 2010.
x x x x x x x x x
While obviously intended to authenticate the appointment papers under consideration, the mechanically-stamped barcode cannot prevail over the date of appointment indicated in the President’s own handwriting. Having been personally signed and dated by the President who is the appointing authority, the practical and legal import of said appointment papers of the Justices concerned should be upheld over that of the March 10, 2010 transmittal letter from the Executive Secretary. It should, however, be pointed out that the foregoing interpretation of the Rule on precedence and seniority should only apply to the above named Associate Justices, in view of the peculiar circumstances which attended the issuance/transmission of their appointment papers.[2]
Justice Antonio-Valenzuela disagreed with the interpretation of the CA Committee on Rules, insisting that she is the most senior among the four newly appointed CA Associate Justices pursuant to Section 1, Rule 2 of the 2009 IRCA which provides that seniority of the Associate Justices shall be determined “according to the order of their appointments as transmitted to the Supreme Court.” She argued that “the final act in the process of appointing a member of the Judiciary is the transmittal of the appointment to the Supreme Court.” She also took “serious exception” to the statement of the CA Committee on Rules that “the foregoing interpretation of the Rule on precedence and seniority should only apply to the above named Associate Justices, in view of the peculiar circumstances which attended the issuance/transmission of their appointment papers.” According to her, there was nothing novel or peculiar about the circumstances attending the issuance and transmission of the four newly appointed members of the CA.
The matter was referred to the CA en banc for appropriate action. After deliberation, the CA en banc adopted the opinion of the CA Rules Committee. This was approved by this Court in a resolution dated July 20, 2010.
Justice Antonio-Valenzuela now seeks reconsideration of this Court’s resolution dated July 20, 2010. She insists that all four CA Associate Justices whose seniority is involved in this matter “were appointed on March 10, 2010, the day that their appointments were transmitted by the Office of the President” to this Court.
We disagree.
An appointment to a public office is the unequivocal act, of one who has the authority, of designating or selecting an individual to discharge and perform the duties and functions of an office or trust.[3] Where the power of appointment is absolute and the appointee has been determined upon, no further consent or approval is necessary and the formal evidence of the appointment, the commission, may issue at once.[4] The appointment is deemed complete once the last act required of the appointing authority has been complied with.[5]
In Valencia v. Peralta,[6] the Court ruled that a written memorial that can render title to public office indubitable is required. This written memorial is known as the commission. For purposes of completion of the appointment process, the appointment is complete when the commission is signed by the executive, and sealed if necessary, and is ready to be delivered or transmitted to the appointee.[7] Thus, transmittal of the commission is an act which is done after the appointment has already been completed. It is not required to complete the appointment but only to facilitate the effectivity of the appointment by the appointee’s receipt and acceptance thereof.
For purposes of appointments to the judiciary, therefore, the date the commission has been signed by the President (which is the date appearing on the face of such document) is the date of the appointment. Such date will determine the seniority of the members of the Court of Appeals in connection with Section 3, Chapter I of BP 129, as amended by RA 8246. In other words, the earlier the date of the commission of an appointee, the more senior he/she is over the other subsequent appointees. It is only when the appointments of two or more appointees bear the same date that the order of issuance of the appointments by the President becomes material. This provision of statutory law (Section 3, Chapter I of BP 129, as amended by RA 8246) controls over the provisions of the 2009 IRCA which gives premium to the order of appointments as transmitted to this Court. Rules implementing a particular law cannot override but must give way to the law they seek to implement.
In view of the foregoing, the CA en banc acted correctly when it adopted the view of the CA Rules Committee insofar as the reckoning of the seniority of CA Justices Fernandez, Peralta, Jr., Hernando and Antonio-Valenzuela is concerned but erred when it declared that the CA Rules Committee’s interpretation applies only to the case of the four aforementioned Justices.
x x x.
Thursday, September 30, 2010
Indecent judge
In the fresh case of REYES vs. JUDGE DUQUE, En Banc, A.M. No. RTJ-08-2136, Sept. 21, 2010, the Philippine Supreme Court found the respondent Judge Manuel N. Duque, of Las Pinas City, GUILTY of IMPROPRIETY and GROSS MISCONDUCT. The judge having previously retired from the service, it imposed on him a FINE of P40,000 to be deducted from his retirement benefits.
In her Verified Complaint, Susan O. Reyes (Reyes) charged respondent Judge Manuel N. Duque (Judge Duque) of the Regional Trial Court, Branch 197, Las Piñas City (RTC-Branch 197), with Impropriety, Corruption and Gross Misconduct. Reyes alleged that she was a party-in-intervention in Land Registration Case No. 06-005 entitled “In re: Petition of Philippine Savings Bank for Issuance of a Writ of Possession under Act No. 3135 over Properties covered by TCT Nos. T-85172 and T-84847” filed by the Philippine Savings Bank (bank) against the spouses Carolyn Choi and Nak San Choi (spouses Choi). In a Decision dated 6 November 2006, Judge Duque granted the motion for the issuance of a writ of possession in favor of the bank and ordered the spouses Choi and all those claiming rights under them to vacate the properties covered by TCT Nos. T-85172, T-84848, and T-84847 situated in BF Resort Village, Talon 2, Las Piñas. On 13 August 2007, Reyes filed an “Urgent Petition for Lifting and Setting Aside of Writ of Possession and Quashal of Notice to Vacate” claiming that she bought the subject property covered by TCT No. T-85172 from the spouses Choi and that she was in actual possession of the property with full knowledge of the bank.
At the hearing of Reyes’ petition, Atty. Herminio Ubana, Sr., (Atty. Ubana) the lawyer of Reyes, introduced her to Judge Duque who allegedly gave Reyes 30 days to settle matters with the bank. Reyes was unable to re-negotiate with the bank. On the first week of December 2007, Reyes allegedly received a phone call from Judge Duque and the latter instructed Reyes to go “to his house and bring some money in order that he can deny the pending motion to break open.” As she did not have the money yet, Reyes allegedly told Judge Duque that she would see him the following day as her allotment might arrive by that time. The following day, when her allotment arrived, Reyes went to the PNB Cubao Branch in Quezon City to withdraw P20,000. She, her secretary, and driver went to the house of Judge Duque at No. 9 CRM Corazon, BF Almanza, Las Piñas. The son of Judge Duque opened the gate. At his house, Judge Duque demanded P100,000. Reyes gave him P20,000 and she asked for time to give him the balance. After a week, Atty. Ubana called Reyes telling her that Judge Duque was asking for her and waiting for the balance he demanded. On 21 December 2007, Reyes went to the house of Judge Duque with P18,000 on hand. Judge Duque allegedly scolded her for not bringing the whole amount of P80,000. Reyes explained that she had difficulty raising the amount. Judge Duque locked the main door of his house and asked Reyes to step into his office. Judge Duque pointed to a calendar posted on the wall and pointed to December 26 as the date when she should complete the amount. All of a sudden, Judge Duque held the waist of Reyes, embraced and kissed her. Reyes tried to struggle and free herself. Judge Duque raised her skirt, opened her blouse and sucked her breasts. He touched her private parts and attempted to have sexual intercourse with Reyes. Reyes shouted for help but the TV was too loud. As a desperate move, Reyes appealed to Judge Duque saying: “kung gusto mo, huwag dito. Sa hotel, sasama ako sayo.” Judge Duque suddenly stopped his sexual advances and ordered Reyes to fix her hair.
The doctrinal parts of the decision of the Court are quoted below, thus:
1. On the charge of graft and corruption, the Investigating Justice and the OCA found insufficient evidence to sustain Reyes’ allegation that Judge Duque demanded and received money from her in consideration of a favorable ruling. Thus, this charge should be dismissed for being unsubstantiated.
2. On the charge of impropriety and gross misconduct, and after a thorough investigation conducted by the Investigating Justice, it was established, and Judge Duque admitted, that Reyes went to his house. Substantial evidence also pointed to Judge Duque’s liability for impropriety and gross misconduct when he sexually assaulted Reyes. There is no need to detail again the lewd acts of Judge Duque. The Investigating Justice’s narration was sufficient and thorough. The Investigating Justice likewise observed that Judge Duque merely attempted to destroy the credibility of Reyes when he insinuated that she could be a “woman of ill repute or a high class prostitute” or one whose “moral value is at its lowest level.” However, no judge has a right to solicit sexual favors from a party litigant even from a woman of loose morals.
3. We have repeatedly reminded members of the Judiciary to so conduct themselves as to be beyond reproach and suspicion, and to be free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday lives. For no position exacts a greater demand on the moral righteousness and uprightness of an individual than a seat in the Judiciary. Judges are mandated to maintain good moral character and are at all times expected to observe irreproachable behavior so as not to outrage public decency. We have adhered to and set forth the exacting standards of morality and decency, which every member of the judiciary must observe. A magistrate is judged not only by his official acts but also by his private morals, to the extent that such private morals are externalized. He should not only possess proficiency in law but should likewise possess moral integrity for the people look up to him as a virtuous and upright man.
4. Judges should avoid impropriety and the appearance of impropriety in all of their activities. Judges should conduct themselves in a way that is consistent with the dignity of the judicial office. Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they should always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.
5. The conduct of Judge Duque fell short of the exacting standards for members of the judiciary. He failed to behave in a manner that would promote confidence in the judiciary. Considering that a judge is a visible representation of the law and of justice, he is naturally expected to be the epitome of integrity and should be beyond reproach. Judge Duque’s conduct indubitably bore the marks of impropriety and immorality. He failed to live up to the high moral standards of the judiciary and even transgressed the ordinary norms of decency of society. Had Judge Duque not retired, his misconduct would have merited his dismissal from the service.
In her Verified Complaint, Susan O. Reyes (Reyes) charged respondent Judge Manuel N. Duque (Judge Duque) of the Regional Trial Court, Branch 197, Las Piñas City (RTC-Branch 197), with Impropriety, Corruption and Gross Misconduct. Reyes alleged that she was a party-in-intervention in Land Registration Case No. 06-005 entitled “In re: Petition of Philippine Savings Bank for Issuance of a Writ of Possession under Act No. 3135 over Properties covered by TCT Nos. T-85172 and T-84847” filed by the Philippine Savings Bank (bank) against the spouses Carolyn Choi and Nak San Choi (spouses Choi). In a Decision dated 6 November 2006, Judge Duque granted the motion for the issuance of a writ of possession in favor of the bank and ordered the spouses Choi and all those claiming rights under them to vacate the properties covered by TCT Nos. T-85172, T-84848, and T-84847 situated in BF Resort Village, Talon 2, Las Piñas. On 13 August 2007, Reyes filed an “Urgent Petition for Lifting and Setting Aside of Writ of Possession and Quashal of Notice to Vacate” claiming that she bought the subject property covered by TCT No. T-85172 from the spouses Choi and that she was in actual possession of the property with full knowledge of the bank.
At the hearing of Reyes’ petition, Atty. Herminio Ubana, Sr., (Atty. Ubana) the lawyer of Reyes, introduced her to Judge Duque who allegedly gave Reyes 30 days to settle matters with the bank. Reyes was unable to re-negotiate with the bank. On the first week of December 2007, Reyes allegedly received a phone call from Judge Duque and the latter instructed Reyes to go “to his house and bring some money in order that he can deny the pending motion to break open.” As she did not have the money yet, Reyes allegedly told Judge Duque that she would see him the following day as her allotment might arrive by that time. The following day, when her allotment arrived, Reyes went to the PNB Cubao Branch in Quezon City to withdraw P20,000. She, her secretary, and driver went to the house of Judge Duque at No. 9 CRM Corazon, BF Almanza, Las Piñas. The son of Judge Duque opened the gate. At his house, Judge Duque demanded P100,000. Reyes gave him P20,000 and she asked for time to give him the balance. After a week, Atty. Ubana called Reyes telling her that Judge Duque was asking for her and waiting for the balance he demanded. On 21 December 2007, Reyes went to the house of Judge Duque with P18,000 on hand. Judge Duque allegedly scolded her for not bringing the whole amount of P80,000. Reyes explained that she had difficulty raising the amount. Judge Duque locked the main door of his house and asked Reyes to step into his office. Judge Duque pointed to a calendar posted on the wall and pointed to December 26 as the date when she should complete the amount. All of a sudden, Judge Duque held the waist of Reyes, embraced and kissed her. Reyes tried to struggle and free herself. Judge Duque raised her skirt, opened her blouse and sucked her breasts. He touched her private parts and attempted to have sexual intercourse with Reyes. Reyes shouted for help but the TV was too loud. As a desperate move, Reyes appealed to Judge Duque saying: “kung gusto mo, huwag dito. Sa hotel, sasama ako sayo.” Judge Duque suddenly stopped his sexual advances and ordered Reyes to fix her hair.
The doctrinal parts of the decision of the Court are quoted below, thus:
1. On the charge of graft and corruption, the Investigating Justice and the OCA found insufficient evidence to sustain Reyes’ allegation that Judge Duque demanded and received money from her in consideration of a favorable ruling. Thus, this charge should be dismissed for being unsubstantiated.
2. On the charge of impropriety and gross misconduct, and after a thorough investigation conducted by the Investigating Justice, it was established, and Judge Duque admitted, that Reyes went to his house. Substantial evidence also pointed to Judge Duque’s liability for impropriety and gross misconduct when he sexually assaulted Reyes. There is no need to detail again the lewd acts of Judge Duque. The Investigating Justice’s narration was sufficient and thorough. The Investigating Justice likewise observed that Judge Duque merely attempted to destroy the credibility of Reyes when he insinuated that she could be a “woman of ill repute or a high class prostitute” or one whose “moral value is at its lowest level.” However, no judge has a right to solicit sexual favors from a party litigant even from a woman of loose morals.
3. We have repeatedly reminded members of the Judiciary to so conduct themselves as to be beyond reproach and suspicion, and to be free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday lives. For no position exacts a greater demand on the moral righteousness and uprightness of an individual than a seat in the Judiciary. Judges are mandated to maintain good moral character and are at all times expected to observe irreproachable behavior so as not to outrage public decency. We have adhered to and set forth the exacting standards of morality and decency, which every member of the judiciary must observe. A magistrate is judged not only by his official acts but also by his private morals, to the extent that such private morals are externalized. He should not only possess proficiency in law but should likewise possess moral integrity for the people look up to him as a virtuous and upright man.
4. Judges should avoid impropriety and the appearance of impropriety in all of their activities. Judges should conduct themselves in a way that is consistent with the dignity of the judicial office. Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they should always conduct themselves in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.
5. The conduct of Judge Duque fell short of the exacting standards for members of the judiciary. He failed to behave in a manner that would promote confidence in the judiciary. Considering that a judge is a visible representation of the law and of justice, he is naturally expected to be the epitome of integrity and should be beyond reproach. Judge Duque’s conduct indubitably bore the marks of impropriety and immorality. He failed to live up to the high moral standards of the judiciary and even transgressed the ordinary norms of decency of society. Had Judge Duque not retired, his misconduct would have merited his dismissal from the service.
Court stenographer dismissed for grave misconduct, deceit.
In the recent case of ESCALONA vs. PADILLO, En Banc & Per Curiam, A.M. No.P-10-2785, Sept. 21, 2010, the Philippine Supreme Court found respondent Consolacion S. Padillo, a Court Stenographer, GUILTY of GRAVE MISCONDUCT. Accordingly, her retirement benefits, except accrued leave credits, were FORFEITED. Her civil service eligibility was CANCELLED and she was PERPETUALLY DISQUALIFIED for reemployment in any branch of the government or any of its agencies or instrumentalities, including government-owned and controlled corporations. This decision was immediately executory.
Complainant Lourdes S. Escalona (Escalona) filed on 22 January 2007 a complaint charging respondent Consolacion S. Padillo (Padillo), Court Stenographer III of the Regional Trial Court (RTC) of Branch 260, Parañaque City with Grave Misconduct. Escalona claimed that she approached Jun Limcaco (Limcaco), the president of their homeowners’ association, regarding her problem with Loresette Dalit (Dalit). Limcaco referred her to Padillo to help facilitate the filing of a case against Dalit. Padillo allegedly promised to prepare the necessary documents and asked for P20,000 purportedly as payment for the prosecutor. Escalona requested that the amount be reduced to P15,000. Padillo received the P15,000 at the Little Quiapo Branch Better Living Subdivision. Thereafter, Escalona received a text message from Padillo informing her that the prosecutor was not amenable to the reduced amount of P15,000. After two weeks, Escalona gave the balance of P5,000 to Padillo allegedly for the service of the warrant of arrest. Escalona was also asked to submit a barangay clearance and to first take an oath before Prosecutor Antonio Arquiza, Jr. and later before Prosecutor Napoleon Ramolete. However, subsequent verification from the Prosecutor’s Office showed no record of a case filed against Dalit. Escalona confronted Padillo who promised to return to her the money. Padillo reneged on her promise. Hence, this complaint.
The Court Administrator, in his Memorandum dated 8 December 2009, found Padillo guilty of grave misconduct for soliciting money from Escalona in exchange for facilitating the filing of a case against Dalit. Padillo’s act of soliciting money from Escalona is an offense which merited the grave penalty of dismissal from the service. However, considering that Padillo tendered her resignation on 18 February 2007, a month after the complaint was filed but did not and had not filed any claim relative to the benefits due her, the Court Administrator recommended that all benefits due her, except accrued leave credits, be forfeited and that she be disqualified from reemployment in any branch of the government or any of its instrumentalities, including government-owned and controlled corporations.
The Supreme Court agreed with the Court Administrator that the Court could no longer impose the penalty of dismissal from the service because Padillo resigned a month after the filing of the administrative complaint. However, her resignation did not render the complaint against her moot. Resignation is not and should not be a convenient way or strategy to evade administrative liability when a court employee is facing administrative sanction.
There was no doubt that Padillo received from Escalona P20,000 purportedly “for fiscal & judge” and “for warrant officer” and this amount was “intended to facilitate” the case against Dalit. This was shown in the receipt signed by Padillo herself.
Section 2, Canon 1 of the Code of Conduct of Court Personnel provides that “(C)ourt personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions.” Section 52 (A)(11) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service also provides that dismissal is the penalty for improper solicitation even if it is the first offense. Section 58(a) of the same Rule provides that the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from reemployment in the government service.
Escalona submitted an Affidavit of Desistance alleging that the P20,000 was “refunded” to her and this she “voluntarily accepted” in the presence of Florante Gaerlan, Interpreter of RTC, Branch 119, Pasay City and Erlinda Dineros, Interpreter of RTC, Branch 260, Parañaque City. However, even Escalona’s affidavit of desistance will not absolve Padillo from administrative liability. The Court has always held that the withdrawal of the complaint or the desistance of a complainant does not warrant the dismissal of an administrative complaint. This Court has an interest in the conduct and behavior of its officials and employees and in ensuring at all times the proper delivery of justice to the people. No affidavit of desistance can divest this Court of its jurisdiction under Section 6, Article VIII of the Constitution to investigate and decide complaints against erring officials and employees of the judiciary. The issue in an administrative case is not whether the complainant has a cause of action against the respondent, but whether the employee has breached the norms and standards of the courts. Neither can the disciplinary power of this Court be made to depend on a complainant’s whims. To rule otherwise would undermine the discipline of court officials and personnel. The people, whose faith and confidence in their government and its instrumentalities need to be maintained, should not be made to depend upon the whims and caprices of complainants who, in a real sense, are only witnesses. Administrative actions are not made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. Such unilateral act does not bind this Court on a matter relating to its disciplinary power.
Complainant Lourdes S. Escalona (Escalona) filed on 22 January 2007 a complaint charging respondent Consolacion S. Padillo (Padillo), Court Stenographer III of the Regional Trial Court (RTC) of Branch 260, Parañaque City with Grave Misconduct. Escalona claimed that she approached Jun Limcaco (Limcaco), the president of their homeowners’ association, regarding her problem with Loresette Dalit (Dalit). Limcaco referred her to Padillo to help facilitate the filing of a case against Dalit. Padillo allegedly promised to prepare the necessary documents and asked for P20,000 purportedly as payment for the prosecutor. Escalona requested that the amount be reduced to P15,000. Padillo received the P15,000 at the Little Quiapo Branch Better Living Subdivision. Thereafter, Escalona received a text message from Padillo informing her that the prosecutor was not amenable to the reduced amount of P15,000. After two weeks, Escalona gave the balance of P5,000 to Padillo allegedly for the service of the warrant of arrest. Escalona was also asked to submit a barangay clearance and to first take an oath before Prosecutor Antonio Arquiza, Jr. and later before Prosecutor Napoleon Ramolete. However, subsequent verification from the Prosecutor’s Office showed no record of a case filed against Dalit. Escalona confronted Padillo who promised to return to her the money. Padillo reneged on her promise. Hence, this complaint.
The Court Administrator, in his Memorandum dated 8 December 2009, found Padillo guilty of grave misconduct for soliciting money from Escalona in exchange for facilitating the filing of a case against Dalit. Padillo’s act of soliciting money from Escalona is an offense which merited the grave penalty of dismissal from the service. However, considering that Padillo tendered her resignation on 18 February 2007, a month after the complaint was filed but did not and had not filed any claim relative to the benefits due her, the Court Administrator recommended that all benefits due her, except accrued leave credits, be forfeited and that she be disqualified from reemployment in any branch of the government or any of its instrumentalities, including government-owned and controlled corporations.
The Supreme Court agreed with the Court Administrator that the Court could no longer impose the penalty of dismissal from the service because Padillo resigned a month after the filing of the administrative complaint. However, her resignation did not render the complaint against her moot. Resignation is not and should not be a convenient way or strategy to evade administrative liability when a court employee is facing administrative sanction.
There was no doubt that Padillo received from Escalona P20,000 purportedly “for fiscal & judge” and “for warrant officer” and this amount was “intended to facilitate” the case against Dalit. This was shown in the receipt signed by Padillo herself.
Section 2, Canon 1 of the Code of Conduct of Court Personnel provides that “(C)ourt personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions.” Section 52 (A)(11) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service also provides that dismissal is the penalty for improper solicitation even if it is the first offense. Section 58(a) of the same Rule provides that the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from reemployment in the government service.
Escalona submitted an Affidavit of Desistance alleging that the P20,000 was “refunded” to her and this she “voluntarily accepted” in the presence of Florante Gaerlan, Interpreter of RTC, Branch 119, Pasay City and Erlinda Dineros, Interpreter of RTC, Branch 260, Parañaque City. However, even Escalona’s affidavit of desistance will not absolve Padillo from administrative liability. The Court has always held that the withdrawal of the complaint or the desistance of a complainant does not warrant the dismissal of an administrative complaint. This Court has an interest in the conduct and behavior of its officials and employees and in ensuring at all times the proper delivery of justice to the people. No affidavit of desistance can divest this Court of its jurisdiction under Section 6, Article VIII of the Constitution to investigate and decide complaints against erring officials and employees of the judiciary. The issue in an administrative case is not whether the complainant has a cause of action against the respondent, but whether the employee has breached the norms and standards of the courts. Neither can the disciplinary power of this Court be made to depend on a complainant’s whims. To rule otherwise would undermine the discipline of court officials and personnel. The people, whose faith and confidence in their government and its instrumentalities need to be maintained, should not be made to depend upon the whims and caprices of complainants who, in a real sense, are only witnesses. Administrative actions are not made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. Such unilateral act does not bind this Court on a matter relating to its disciplinary power.
Saturday, September 25, 2010
Recent New York Bar ethics opinions
Click the link above to access the latest ethics opinions of the New York Bar Association.
Social networking sites are good sources of relevant and material data that can impeach adverse parties or their witnesses.
When may a trial lawyer access the Facebook or Myspace pages of adverse parties or their witnesses for purposes of impeachment during the trial?
The New York State Bar Association’s Committee on Professional Ethics has determined that an attorney representing a party in pending litigation may access the public pages of another party’s social networking website for the purpose of obtaining information about that party.
The opinion rendered by the Committee on Professional Ethics focused solely on whether an attorney could access information from a party other than the attorney’s client where the information sought was contained in public pages posted by that party and accessible to all members of a particular social networking site.
According to Opinion 843, “A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material.
“As long as the lawyer does not ‘friend’ the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 of the New York Rules of Professional Conduct (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by non-lawyers acting at their direction).”
Social networking sites are good sources of relevant and material data that can impeach adverse parties or their witnesses.
When may a trial lawyer access the Facebook or Myspace pages of adverse parties or their witnesses for purposes of impeachment during the trial?
The New York State Bar Association’s Committee on Professional Ethics has determined that an attorney representing a party in pending litigation may access the public pages of another party’s social networking website for the purpose of obtaining information about that party.
The opinion rendered by the Committee on Professional Ethics focused solely on whether an attorney could access information from a party other than the attorney’s client where the information sought was contained in public pages posted by that party and accessible to all members of a particular social networking site.
According to Opinion 843, “A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material.
“As long as the lawyer does not ‘friend’ the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 of the New York Rules of Professional Conduct (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by non-lawyers acting at their direction).”
Wednesday, September 22, 2010
On vague laws: Laserna interview.
Click the link above. The Business World Online recently interviewed me on the topics of vague laws and legal loopholes and their ill effects on the justice system and our democratic form of government. It extensively quoted my opinions.
Report on the Manila Hostage-Taking Incident Released
Click the link above. Full text of the DOJ-led committee report on the Aug. 23, 2010 hostage-taking incident has been posted on www.gov.ph (official Phil. govt portal). Minus the last page containing the names of the officials recommended for indictment. I will digest and analyze the report later this week when I have the time.
Monday, September 20, 2010
Abadilla 5: Carpio's dissent earns the respect of the intelligent.
In the very fresh EN BANC cases of the “ABADILLA 5”, i.e., G.R. No. 182555: LENIDO LUMANOG and AUGUSTO SANTOS, petitioners, v. PEOPLE OF THE PHILIPPINES, respondent; G.R. No. 185123: CESAR FORTUNA, petitioner, v. PEOPLE OF THE PHILIPPINES, respondent; G.R. No. 187745: PEOPLE OF THE PHILIPPINES, plaintiff-appellee, v. SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA, LENIDO LUMANOG y LUISTRO, JOEL DE JESUS y VALDEZ and AUGUSTO SANTOS y GALANG, accused, RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ, accused-appellants, all dated September 7, 2010, Assoc. Justice A. Carpio’s very strong and persuasive dissenting opinion earned the respect of the intelligent sectors of Philippine society, especially the mass media, for its wisdom and common sense, for which reason, I wish to quote its salient doctrinal parts, e.g., in re: defective identification of the accused, tainted police lineup, right to counsel, media exposure, and presumption of innocence, to wit:
1. An accused has the right to be presumed innocent unless proven guilty beyond reasonable doubt. No less than the fundamental law guarantees such human right. Section 14(2), Article III of the Constitution mandates that “In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.” Reinforcing this right, Section 2, Rule 134 of the Rules of Court specifically provides that “In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.”
2. The “presumption of innocence” serves to emphasize that the prosecution has the obligation to prove not only each element of the offense beyond reasonable doubt but also the identity of the accused as the perpetrator. The accused, on the other hand, bears no burden of proof. The prosecution evidence must stand or fall on its own weight and cannot draw strength from the weakness of the defense.
3. As the majority found, “when appellants (accused) were arrested they were already considered suspects: Joel was pinpointed by security guard Alejo who went along with the PARAC squad to Fairview on June 19, 1996, x x x.” In other words, insofar as the police was concerned, Joel was already a suspect even before Alejo went with them to “identify” Joel. In fact, before Alejo pinpointed Joel as one of the suspects, the police showed Alejo a photograph of Joel, supporting the fact that the police focused on Joel as a suspect in the Abadilla killing.
4. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at the time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure. (Emphasis supplied)
5. Hence, in an out-of-court identification, among the factors to be considered is the suggestiveness of the procedure. In this case, the police resorted to a photographic identification of Joel, who was the first suspect to be apprehended and who provided the identities of the other accused.
6. Although showing mug shots of suspects is one of the established methods of identifying criminals, the procedure used in this case is unacceptable. The first rule in proper photographic identification procedure is that a series of photographs must be shown, and not merely that of the suspect. The second rule directs that when a witness is shown a group of pictures, their arrangement and display should in no way suggest which one of the pictures pertains to the suspect.
7. Where a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the witness’s recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to attempt a corporeal identification of a person whose photograph he previously identified may say, "That’s the man that did it," what he may actually mean is, "That’s the man whose photograph I identified." A recognition of this psychological phenomenon leads logically to the conclusion that where a witness has made a photographic identification of a person, his subsequent corporeal identification of that same person is somewhat impaired in value, and its accuracy must be evaluated in light of the fact that he first saw a photograph. (Emphasis supplied)
8. Similarly, in this case, Alejo was first shown a photograph of Joel before Alejo pinpointed Joel as one of the suspects. The police showed only one photograph, that of Joel’s, highlighting the fact that the police primed and conditioned Alejo to identify Joel as one of the murderers of Abadilla. The police focused on Joel as one of the suspects, prior to Alejo’s identification. The police did not show Alejo any other photograph, only that of Joel’s. Assuming Alejo refused to glance at Joel’s photograph, which is quited unbelievable, the fact that he was shown only one photograph violates standard operating procedures in criminal investigations. Clearly, the police, in showing Alejo only a photograph of Joel, instead of a series of photographs arranged in an unsuspicious manner, breached the recognized rules in photographic identification. Undoubtedly, this procedure seriously corrupted the identification process with impermissible suggestion.
9. In People v. Rodrigo, the Court, speaking thru Justice Arturo Brion, acquitted the accused for failure of the prosecution to identify the accused as the perpetrator of the crime, which identification is extremely crucial to the prosecution’s burden of proof. Stressing the importance of a proper identification of the accused, most especially “when the identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification,” just like in this case, the Court held:
The greatest care should be taken in considering the identification of the accused especially, when this identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification. This level of care and circumspection applies with greater vigor when, as in the present case, the issue goes beyond pure credibility into constitutional dimensions arising from the due process rights of the accused.
x x x x
That a single photograph, not a series, was shown to Rosita is admitted by Rosita herself in her testimony.
x x x x
We hold it highly likely, based on the above considerations, that Rosita’s photographic identification was attended by an impermissible suggestion that tainted her in-court identification of Rodrigo as one of the three robbers. We rule too that based on the other indicators of unreliability we discussed above, Rosita’s identification cannot be considered as proof beyond reasonable doubt of the identity of Rodrigo as one of the perpetrators of the crime.
A first significant point to us is that Rosita did not identify a person whom she had known or seen in the past. The robbers were total strangers whom she saw very briefly. It is unfortunate that there is no direct evidence of how long the actual robbery and the accompanying homicide lasted. But the crime, as described, could not have taken long, certainly not more than a quarter of an hour at its longest. This time element alone raises the question of whether Rosita had sufficiently focused on Rodrigo to remember him, and whether there could have been a reliable independent recall of Rodrigo’s identity.
We also find it significant that three robbers were involved, all three brandishing guns, who immediately announced a holdup. This is an unusual event that ordinarily would have left a person in the scene nervous, confused, or in common parlance, "rattled." To this already uncommon event was added the shooting of Rosita’s husband who charged the robbers with a "bangko" and was promptly shot, not once but three times. These factors add up to our conclusion of the unlikelihood of an independent and reliable identification. (Emphasis supplied)
10. The clear import of Rodrigo is that an out-of-court identification, made by the lone witness, who was subjected to impermissible photographic suggestion, fatally tainted the subsequent in-court identification made by the same witness. Accordingly, the testimony of such witness on the identification of the accused, by itself, cannot be considered as proof beyond reasonable doubt of the identity of the perpetrator of the crime. Without proof beyond reasonable doubt of the identity of the perpetrator, the accused deserves an acquittal.
11. Inasmuch as the present case involves the alleged positive identification by a lone eyewitness and the entire case depends on such identification, the Rodrigo case squarely applies here. Moreover, similar to this case, the witness in Rodrigo was initially shown a single photograph of the accused. Applying Rodrigo to this case, the sole eyewitness Alejo’s out-of-court identification which proceeded from impermissible suggestion tainted his in-court identification of Joel as one of the perpetrators of the crime. As a result, Alejo’s corrupted testimony on the identification of Joel cannot be considered as proof beyond reasonable doubt of the identity of Joel as one of the perpetrators. Without such proof, Joel must be acquitted.
12. Further, it must be emphasized that a highly suggestive identification results in a denial of the accused’s right to due process since it effectively and necessarily deprives the accused of a fair trial. In Rodrigo, the Court stated:
The initial photographic identification in this case carries serious constitutional law implications in terms of the possible violation of the due process rights of the accused as it may deny him his rights to a fair trial to the extent that his in-court identification proceeded from and was influenced by impermissible suggestions in the earlier photographic identification. In the context of this case, the investigators might not have been fair to Rodrigo if they themselves, purposely or unwittingly, fixed in the mind of Rosita, or at least actively prepared her mind to, the thought that Rodrigo was one of the robbers. Effectively, this act is no different from coercing a witness in identifying an accused, varying only with respect to the means used. Either way, the police investigators are the real actors in the identification of the accused; evidence of identification is effectively created when none really exists.
13. In Pineda, the Court pointed out the dangers a photographic identification spawns: an impermissible suggestion and the risk that the eyewitness would identify the person he saw in the photograph and not the person he saw actually committing the crime. Citing Patrick M. Wall, the Court stated:
[W]here a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the witness’ recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to attempt a corporeal identification of a person whose photograph he previously identified may say, "That’s the man that did it," what he may actually mean is, "That’s the man whose photograph I identified."
x x x x
A recognition of this psychological phenomenon leads logically to the conclusion that where a witness has made a photographic identification of a person, his subsequent corporeal identification of that same person is somewhat impaired in value, and its accuracy must be evaluated in light of the fact that he first saw a photograph.
14. Due process dictates that the photographic identification must be devoid of any impermissible suggestions in order to prevent a miscarriage of justice. In People v. Alcantara, the Court declared:
Due process demands that identification procedure of criminal suspects must be free from impermissible suggestions. As appropriately held in US vs. Wade, “the influence of improper suggestion upon identifying witness probably accounts for more miscarriages of justice than any other single factor.” (Emphasis supplied)
15. Therefore, the police’s act of showing a single photograph to Alejo, prior to “identifying” Joel as a suspect, corrupted the identification procedure with impermissible suggestion. Through this illegal procedure, the police, purposely or otherwise, suggested and implanted on Alejo’s mind that Joel was one of the perpetrators, thereby violating Joel’s right as an accused to due process. Not only did the police disregard recognized and accepted rules in photographic identification, they likewise transgressed the clear mandate of the Constitution that “No person shall be deprived of life, liberty, or property without due process of law.” More particularly, the police violated Section 14(1) of the Constitution which provides: “No person shall be held to answer for a criminal offense without due process of law.”
16. More importantly, the police denied Joel his right to counsel during the line-up, contrary to Section 12(1) of the Constitution which provides:
Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
17. In People v. Escordial, the Court pertinently ruled:
As a rule, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of the custodial inquest. However, the cases at bar are different inasmuch as accused-appellant, having been the focus of attention by the police after he had been pointed to by a certain Ramie as the possible perpetrator of the crime, was already under custodial investigation when these out-of-court identifications were conducted by the police.
An out-of-court identification of an accused can be made in various ways. In a show-up, the accused alone is brought face to face with the witness for identification, while in a police line-up, the suspect is identified by a witness from a group of persons gathered for that purpose. During custodial investigation, these types of identification have been recognized as “critical confrontations of the accused by the prosecution” which necessitate the presence of counsel for the accused. This is because the results of these pre-trial proceedings “might well settle the accused’s fate and reduce the trial itself to a mere formality.” We have thus ruled that any identification of an uncounseled accused made in a police line-up, or in a show-up for that matter, after the start of the custodial investigation is inadmissible as evidence against him. (Emphasis supplied)
18. As stated in Escordial, generally, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of custodial investigation. An exception to this rule is when the accused had been the focus of police attention at the start of the investigation. The line-up in this case squarely falls under this exception. It was established that Joel was already a suspect prior to the police line-up. In fact, even before Joel’s apprehension, the police had already zeroed in on Joel as one of Abadilla’s killers. As such, Joel was entitled to counsel during the police line-up.
However, there is no question that Joel was not assisted by counsel, whether of his own choice or provided by the police, during the line up. As Joel’s identification was uncounseled, it cannot be admitted in evidence for grossly violating Joel’s right to counsel under Section 12(1) of the Constitution.
19. Further, the Court held in Escordial that the testimony of the witness regarding the inadmissible identification cannot be admitted as well, thus:
Here, accused-appellant was identified by Michelle Darunda in a show-up on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a police line-up on various dates after his arrest. Having been made when accused-appellant did not have the assistance of counsel, these out-of-court identifications are inadmissible in evidence against him. Consequently, the testimonies of these witnesses regarding these identifications should have been held inadmissible for being “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’”
20. Citing Patrick M. Wall, the majority enumerated the danger signals which give warning that the identification may be erroneous even though the method used is proper. Contrary to the majority, some of these danger signals are present in this case: (1) a serious discrepancy exists between the identifying witness’ original description and the actual description of the accused; (2) the limited opportunity on the part of the witness to see the accused before the commission of the crime; (3) a considerable time elapsed between the witness’ view of the criminal and his identification of the accused; and (4) several persons committed the crime.
21. The majority’s explanation is purely speculative. There was no evidence presented to prove (1) that Joel plied his tricycle everyday during daytime; (2) the amount of Joel’s exposure to sunlight; and (3) such exposure was excessive as to result to premature aging of the facial skin. Moreover, Joel’s height is 5’9” whereas the man whom Alejo described as lookout was about 5’5”-5’6” tall. There was no explanation offered as to the disparity in the height. To repeat, Alejo described only one lookout in his sworn statement, contrary to his testimony that there were two lookouts.
22. We agree with the accused that the swiftness by which the crime was committed and the physical impossibility of memorizing the faces of all the perpetrators of the crime whom the witness saw for the first time and only for a brief moment under life-threatening and stressful circumstances incite disturbing doubts as to whether the witness could accurately remember the identity of the perpetrators of the crime.
23. The crime took place on 13 June 1996, while Alejo testified in August 1996. Alejo was never made to identify Lumanog, Santos, Rameses, and Fortuna prior to their arrest until their in-court identification was made. Two months had elapsed between Alejo’s view of the criminals and his identification of the accused in open court. Alejo’s memory, just like any other human’s, is frail. In fact, as noted by the trial court, Alejo’s recollection at the time he gave his statement before the police investigators was more recent and fresher than when Alejo testified in court. Accordingly, the trial court gave more credence to Alejo’s sworn statement than his testimony in acquitting Delos Santos.
24. The police did not posses any description or prior identification of these accused. There was no leading information, or any piece of reliable information for that matter, on the identity of the killers, except Joel’s illegally extracted extrajudicial confession. Neither did the police have any evidence linking the other accused to the crime. To repeat, Joel provided the police, through a coerced confession, with the identities of his supposed co-conspirators and where they could be found. Clearly, “the police investigators are the real actors in the identification of the accused; evidence of identification is effectively created when none really exists.”
25. In Escordial, the Court stated that the testimonies of the witnesses on the identification of the accused should be held inadmissible for being “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’” Here, being a direct result of an illegal police activity, that is the coerced extraction of a confession from Joel, the subsequent in-court identification by Alejo of Lumanog, Rameses, Fortuna and Santos must be rejected. The testimony of Alejo on the identification of the accused as perpetrators of the crime cannot be given any weight. Alejo’s in-court identification of Lumanog, Rameses, Fortuna, and Santos was fatally tainted because the identity of the suspects came from a coerced confession of Joel, who himself was identified as a suspect through a fatally defective impermissible suggestion to Alejo. In short, Alejo’s identification of Joel was fatally defective; Alejo’s identification of Lumanog, Rameses, Fortuna and Santos was also fatally defective. Both identification directly emanated from illegal police activities – impermissible suggestion and coerced confession.
26. After the police investigators had illegally extracted from Joel the identities and locations of the other suspects, and after they had arrested Lumanog, Rameses, Fortuna and Santos, the police proudly declared: “crime solved” and “case closed.” With this remarkable development, the accused were presented before the media in a press conference in Camp Crame on 24 June 1996 or 11 days after the killing. The accused were photographed by mediamen and interviewed by members of the press. During the press conference, the accused were made to squat on the floor, their names written on boards dangling from their necks.
Indisputably, the police extracted the identities of the accused from a coerced confession of Joel. Then the police arrested the accused, and allowed the media to take their pictures with their names written on boards around their necks. The media promptly published these pictures in several newspapers. Thus, at that time, the faces of the accused were regularly splashed all over the newspapers and on television screens in news reports. Alejo could not have missed seeing the faces of the accused before he identified them in court. To rule otherwise strains credulity.
27. Alejo, as the star witness in this case, must naturally be interested to look, or even stare, at the faces of the alleged killers to make sure he identifies them in court. Assuming Alejo failed to personally see the faces of the accused in the newspapers or television, which is highly improbable, if not totally impossible, his family and friends, if not the police, would have provided him with photographs of the accused from the newspapers for easier identification later in court. Surely, Alejo had ample time to memorize and familiarize himself with the faces of the accused before he testified in court and identified Lumanog, Santos, Rameses, Joel, and Fortuna as the killers of Abadilla.
To give credence to Alejo’s in-court identification of the accused is to admit and give probative value to the coerced confession of Joel. Clearly, the publication of the pictures of the accused in the newspapers and television came directly from the coerced confession of Joel. Alejo would not have been able to identify the accused without the pictures of the accused that were taken by media as a result of the coerced confession of Joel.
28. Inexplicably, the majority fails to consider this extensive media exposure of the accused in ascertaining the reliability and admissibility of Alejo’s testimony on the identities of the accused. The majority ignores the fact that Alejo had seen the accused in print and on television, guaranteeing Alejo’s in-court identification of the accused as the perpetrators of the crime. The media exposure of the accused casts serious doubts on the integrity of Alejo’s testimony on the identification of the murderers. Such doubts are sufficient to rule that Alejo’s in-court identification of the accused as the perpetrators of the crime is neither positive nor credible. “It is not merely any identification which would suffice for conviction of the accused. It must be positive identification made by a credible witness, in order to attain the level of acceptability and credibility to sustain moral certainty concerning the person of the offender.”
29. The police arrested Joel, without any warrant, on 19 June 1996 or six days after the killing. Six days is definitely more than enough to secure an arrest warrant, and yet the police opted to arrest Joel and the other accused, without any warrant, claiming that it was conducted in “hot pursuit.” In law enforcement, “hot pursuit” can refer to an immediate pursuit by the police such as a car chase. Certainly, the warrantless arrrest of Joel, made six days after the murder, does not fall within the ambit of “hot pursuit.” The question now is whether the successive warrantless arrests of the accused are legal. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
30. None of the above instances is present in this case: (1) the accused were not arrested in flagrante delicto; (2) the arrest was not based on personal knowledge of the arresting officers that there is probable cause that the accused were the authors of the crime which had just been committed; (3) the accused were not prisoners who have escaped from custody serving final judgment or temporarily confined while their case is pending. There is no question that all the accused were apprehended several days after the crime while doing ordinary and unsuspicious activities. There is also no question that the police had no personal knowledge of probable cause that the accused were responsible for the crime which had been committed. The third situation is inapplicable since the accused are not prison escapees. Considering these facts, there is indeed no justification for the warrantless arrests effected by the police in their so-called “hot pursuit.” Such warrantless arrest, therefore, amounts to a violation of Section 2, Article III of the Constitution, which provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
31. The police investigation work in this case, which led to the unlawful warrantless arrest of the accused, is nothing but sloppy: (1) they chose to rely solely on the sworn statement of one eyewitness (Alejo); (2) they failed to obtain any description of the suspects from other eyewitnesses, including the owner of the Kia Pride which was forcefully obtained by the suspects as a get-away car; (3) they showed Alejo a picture of Joel to assist him in identifying the “suspect”; and (4) they arrested the other accused based entirely on the illegally extracted extrajudicial confession of Joel.
32. Worse than their illegal warrantless arrest, the accused reportedly underwent unspeakable torture in the hands of the police. While the Commission on Human Rights, “in its Resolution dated July 16, 1996, did not make any categorical finding of physical violence inflicted on the appellants by the police authorities, the CHR found prima facie evidence that the police officers could have violated Republic Act No. 7438, particularly on visitorial rights and the right to counsel, including the law on arbitrary detention, x x x.”
33. The speedy resolution of a crime is never a license for the police to apprehend any person and beat him to admit his participation in a gruesome crime. In this case, without any credible evidence linking the accused to the murder, the police blindly resorted to careless investigation and unlawful apprehension of innocent men. Worse, the police apparently tortured the accused to answer for the brutal slaying of Abadilla.
34. Indisputably, torturing the accused to extract incriminating confessions is repugnant to the Constitution. Section 12(2), Article III of the Constitution expressly provides “[n]o torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against [an accused].” The blatant and unacceptable transgression of the accused’s constitutional rights, for the sake of delivering speedy, but false, justice to the aggrieved, can never be countenanced. This Court can never tolerate official abuses and perpetuate the gross violation of these rights. The presumption that a public officer had regularly performed his official duty can at no instance prevail over the presumption of innocence.
35. In reviewing criminal cases, the Court must carefully determine and establish “first, the identification of the accused as perpetrator of the crime, taking into account the credibility of the prosecution witness who made the identification as well as the prosecution’s compliance with legal and constitutional standards; and second, all the elements constituting the crime were duly proven by the prosecution to be present.” The inexistence of any of these two factors compels us to acquit the accused.
36. It devolves upon the police authorities, as law enforcers, to ensure the proper and strict implementation of the laws, most specially, the fundamental law of the land. Lamentably, the present case showcases the dark reality in our country, where the police at times assumes the role of law offenders. The policemen, boasting of solving a highly sensationalized crime, flagrantly disregarded the accused’s constitutional rights. These men in uniform openly defiled the Constitution, which they are bound to observe and respect, by infringing upon the accused’s rights guaranteed under (1) Section 1, Article III; (2) Section 14(1); (3) Section 12(1); (4) Section 12 (2); and (5) Section 2, Article III of the Constitution. Such violations simply cannot be countenanced. Instead, they deserve utmost condemnation. As the Court declared emphatically in Alcantara:
The records show that [the police] illegally arrested appellant, arbitrarily detained, physically abused and coerced him to confess to a crime penalized by nothing less than reclusion perpetua. Too often, our law
enforcers, in their haste to solve crimes, strip people accused of serious
offenses of the sanctity of their constitutional rights. It is again time to pound on these law enforcers with the crania of cavern men that the guarantees of the rights of an accused in the Constitution are not mere saccharine statements but the bedrock of our liberty. If we allow a meltdown of these guarantees, our democracy will be a delusion. (Emphasis supplied)
37. In view of the gross violations of the accused’s constitutional rights as well as the seriously flawed identification of the accused as the perpetrators of the crime, there is sufficient reason to doubt the accused’s guilt for the crime charged. To repeat, the prosecution failed to discharge its burden of proof, specifically to prove the identity of the perpetrators of the crime beyond reasonable doubt. Accordingly, the presumption of innocence in favor of the accused prevails. The accused need not even raise the defenses of denial and alibi as the burden of proof never shifted to the defense. “Any consideration of the merits of these defenses is rendered moot and will serve no useful purpose.” Therefore, the accused are entitled to an acquittal.
1. An accused has the right to be presumed innocent unless proven guilty beyond reasonable doubt. No less than the fundamental law guarantees such human right. Section 14(2), Article III of the Constitution mandates that “In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.” Reinforcing this right, Section 2, Rule 134 of the Rules of Court specifically provides that “In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.”
2. The “presumption of innocence” serves to emphasize that the prosecution has the obligation to prove not only each element of the offense beyond reasonable doubt but also the identity of the accused as the perpetrator. The accused, on the other hand, bears no burden of proof. The prosecution evidence must stand or fall on its own weight and cannot draw strength from the weakness of the defense.
3. As the majority found, “when appellants (accused) were arrested they were already considered suspects: Joel was pinpointed by security guard Alejo who went along with the PARAC squad to Fairview on June 19, 1996, x x x.” In other words, insofar as the police was concerned, Joel was already a suspect even before Alejo went with them to “identify” Joel. In fact, before Alejo pinpointed Joel as one of the suspects, the police showed Alejo a photograph of Joel, supporting the fact that the police focused on Joel as a suspect in the Abadilla killing.
4. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at the time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure. (Emphasis supplied)
5. Hence, in an out-of-court identification, among the factors to be considered is the suggestiveness of the procedure. In this case, the police resorted to a photographic identification of Joel, who was the first suspect to be apprehended and who provided the identities of the other accused.
6. Although showing mug shots of suspects is one of the established methods of identifying criminals, the procedure used in this case is unacceptable. The first rule in proper photographic identification procedure is that a series of photographs must be shown, and not merely that of the suspect. The second rule directs that when a witness is shown a group of pictures, their arrangement and display should in no way suggest which one of the pictures pertains to the suspect.
7. Where a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the witness’s recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to attempt a corporeal identification of a person whose photograph he previously identified may say, "That’s the man that did it," what he may actually mean is, "That’s the man whose photograph I identified." A recognition of this psychological phenomenon leads logically to the conclusion that where a witness has made a photographic identification of a person, his subsequent corporeal identification of that same person is somewhat impaired in value, and its accuracy must be evaluated in light of the fact that he first saw a photograph. (Emphasis supplied)
8. Similarly, in this case, Alejo was first shown a photograph of Joel before Alejo pinpointed Joel as one of the suspects. The police showed only one photograph, that of Joel’s, highlighting the fact that the police primed and conditioned Alejo to identify Joel as one of the murderers of Abadilla. The police focused on Joel as one of the suspects, prior to Alejo’s identification. The police did not show Alejo any other photograph, only that of Joel’s. Assuming Alejo refused to glance at Joel’s photograph, which is quited unbelievable, the fact that he was shown only one photograph violates standard operating procedures in criminal investigations. Clearly, the police, in showing Alejo only a photograph of Joel, instead of a series of photographs arranged in an unsuspicious manner, breached the recognized rules in photographic identification. Undoubtedly, this procedure seriously corrupted the identification process with impermissible suggestion.
9. In People v. Rodrigo, the Court, speaking thru Justice Arturo Brion, acquitted the accused for failure of the prosecution to identify the accused as the perpetrator of the crime, which identification is extremely crucial to the prosecution’s burden of proof. Stressing the importance of a proper identification of the accused, most especially “when the identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification,” just like in this case, the Court held:
The greatest care should be taken in considering the identification of the accused especially, when this identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification. This level of care and circumspection applies with greater vigor when, as in the present case, the issue goes beyond pure credibility into constitutional dimensions arising from the due process rights of the accused.
x x x x
That a single photograph, not a series, was shown to Rosita is admitted by Rosita herself in her testimony.
x x x x
We hold it highly likely, based on the above considerations, that Rosita’s photographic identification was attended by an impermissible suggestion that tainted her in-court identification of Rodrigo as one of the three robbers. We rule too that based on the other indicators of unreliability we discussed above, Rosita’s identification cannot be considered as proof beyond reasonable doubt of the identity of Rodrigo as one of the perpetrators of the crime.
A first significant point to us is that Rosita did not identify a person whom she had known or seen in the past. The robbers were total strangers whom she saw very briefly. It is unfortunate that there is no direct evidence of how long the actual robbery and the accompanying homicide lasted. But the crime, as described, could not have taken long, certainly not more than a quarter of an hour at its longest. This time element alone raises the question of whether Rosita had sufficiently focused on Rodrigo to remember him, and whether there could have been a reliable independent recall of Rodrigo’s identity.
We also find it significant that three robbers were involved, all three brandishing guns, who immediately announced a holdup. This is an unusual event that ordinarily would have left a person in the scene nervous, confused, or in common parlance, "rattled." To this already uncommon event was added the shooting of Rosita’s husband who charged the robbers with a "bangko" and was promptly shot, not once but three times. These factors add up to our conclusion of the unlikelihood of an independent and reliable identification. (Emphasis supplied)
10. The clear import of Rodrigo is that an out-of-court identification, made by the lone witness, who was subjected to impermissible photographic suggestion, fatally tainted the subsequent in-court identification made by the same witness. Accordingly, the testimony of such witness on the identification of the accused, by itself, cannot be considered as proof beyond reasonable doubt of the identity of the perpetrator of the crime. Without proof beyond reasonable doubt of the identity of the perpetrator, the accused deserves an acquittal.
11. Inasmuch as the present case involves the alleged positive identification by a lone eyewitness and the entire case depends on such identification, the Rodrigo case squarely applies here. Moreover, similar to this case, the witness in Rodrigo was initially shown a single photograph of the accused. Applying Rodrigo to this case, the sole eyewitness Alejo’s out-of-court identification which proceeded from impermissible suggestion tainted his in-court identification of Joel as one of the perpetrators of the crime. As a result, Alejo’s corrupted testimony on the identification of Joel cannot be considered as proof beyond reasonable doubt of the identity of Joel as one of the perpetrators. Without such proof, Joel must be acquitted.
12. Further, it must be emphasized that a highly suggestive identification results in a denial of the accused’s right to due process since it effectively and necessarily deprives the accused of a fair trial. In Rodrigo, the Court stated:
The initial photographic identification in this case carries serious constitutional law implications in terms of the possible violation of the due process rights of the accused as it may deny him his rights to a fair trial to the extent that his in-court identification proceeded from and was influenced by impermissible suggestions in the earlier photographic identification. In the context of this case, the investigators might not have been fair to Rodrigo if they themselves, purposely or unwittingly, fixed in the mind of Rosita, or at least actively prepared her mind to, the thought that Rodrigo was one of the robbers. Effectively, this act is no different from coercing a witness in identifying an accused, varying only with respect to the means used. Either way, the police investigators are the real actors in the identification of the accused; evidence of identification is effectively created when none really exists.
13. In Pineda, the Court pointed out the dangers a photographic identification spawns: an impermissible suggestion and the risk that the eyewitness would identify the person he saw in the photograph and not the person he saw actually committing the crime. Citing Patrick M. Wall, the Court stated:
[W]here a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the witness’ recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to attempt a corporeal identification of a person whose photograph he previously identified may say, "That’s the man that did it," what he may actually mean is, "That’s the man whose photograph I identified."
x x x x
A recognition of this psychological phenomenon leads logically to the conclusion that where a witness has made a photographic identification of a person, his subsequent corporeal identification of that same person is somewhat impaired in value, and its accuracy must be evaluated in light of the fact that he first saw a photograph.
14. Due process dictates that the photographic identification must be devoid of any impermissible suggestions in order to prevent a miscarriage of justice. In People v. Alcantara, the Court declared:
Due process demands that identification procedure of criminal suspects must be free from impermissible suggestions. As appropriately held in US vs. Wade, “the influence of improper suggestion upon identifying witness probably accounts for more miscarriages of justice than any other single factor.” (Emphasis supplied)
15. Therefore, the police’s act of showing a single photograph to Alejo, prior to “identifying” Joel as a suspect, corrupted the identification procedure with impermissible suggestion. Through this illegal procedure, the police, purposely or otherwise, suggested and implanted on Alejo’s mind that Joel was one of the perpetrators, thereby violating Joel’s right as an accused to due process. Not only did the police disregard recognized and accepted rules in photographic identification, they likewise transgressed the clear mandate of the Constitution that “No person shall be deprived of life, liberty, or property without due process of law.” More particularly, the police violated Section 14(1) of the Constitution which provides: “No person shall be held to answer for a criminal offense without due process of law.”
16. More importantly, the police denied Joel his right to counsel during the line-up, contrary to Section 12(1) of the Constitution which provides:
Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
17. In People v. Escordial, the Court pertinently ruled:
As a rule, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of the custodial inquest. However, the cases at bar are different inasmuch as accused-appellant, having been the focus of attention by the police after he had been pointed to by a certain Ramie as the possible perpetrator of the crime, was already under custodial investigation when these out-of-court identifications were conducted by the police.
An out-of-court identification of an accused can be made in various ways. In a show-up, the accused alone is brought face to face with the witness for identification, while in a police line-up, the suspect is identified by a witness from a group of persons gathered for that purpose. During custodial investigation, these types of identification have been recognized as “critical confrontations of the accused by the prosecution” which necessitate the presence of counsel for the accused. This is because the results of these pre-trial proceedings “might well settle the accused’s fate and reduce the trial itself to a mere formality.” We have thus ruled that any identification of an uncounseled accused made in a police line-up, or in a show-up for that matter, after the start of the custodial investigation is inadmissible as evidence against him. (Emphasis supplied)
18. As stated in Escordial, generally, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of custodial investigation. An exception to this rule is when the accused had been the focus of police attention at the start of the investigation. The line-up in this case squarely falls under this exception. It was established that Joel was already a suspect prior to the police line-up. In fact, even before Joel’s apprehension, the police had already zeroed in on Joel as one of Abadilla’s killers. As such, Joel was entitled to counsel during the police line-up.
However, there is no question that Joel was not assisted by counsel, whether of his own choice or provided by the police, during the line up. As Joel’s identification was uncounseled, it cannot be admitted in evidence for grossly violating Joel’s right to counsel under Section 12(1) of the Constitution.
19. Further, the Court held in Escordial that the testimony of the witness regarding the inadmissible identification cannot be admitted as well, thus:
Here, accused-appellant was identified by Michelle Darunda in a show-up on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a police line-up on various dates after his arrest. Having been made when accused-appellant did not have the assistance of counsel, these out-of-court identifications are inadmissible in evidence against him. Consequently, the testimonies of these witnesses regarding these identifications should have been held inadmissible for being “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’”
20. Citing Patrick M. Wall, the majority enumerated the danger signals which give warning that the identification may be erroneous even though the method used is proper. Contrary to the majority, some of these danger signals are present in this case: (1) a serious discrepancy exists between the identifying witness’ original description and the actual description of the accused; (2) the limited opportunity on the part of the witness to see the accused before the commission of the crime; (3) a considerable time elapsed between the witness’ view of the criminal and his identification of the accused; and (4) several persons committed the crime.
21. The majority’s explanation is purely speculative. There was no evidence presented to prove (1) that Joel plied his tricycle everyday during daytime; (2) the amount of Joel’s exposure to sunlight; and (3) such exposure was excessive as to result to premature aging of the facial skin. Moreover, Joel’s height is 5’9” whereas the man whom Alejo described as lookout was about 5’5”-5’6” tall. There was no explanation offered as to the disparity in the height. To repeat, Alejo described only one lookout in his sworn statement, contrary to his testimony that there were two lookouts.
22. We agree with the accused that the swiftness by which the crime was committed and the physical impossibility of memorizing the faces of all the perpetrators of the crime whom the witness saw for the first time and only for a brief moment under life-threatening and stressful circumstances incite disturbing doubts as to whether the witness could accurately remember the identity of the perpetrators of the crime.
23. The crime took place on 13 June 1996, while Alejo testified in August 1996. Alejo was never made to identify Lumanog, Santos, Rameses, and Fortuna prior to their arrest until their in-court identification was made. Two months had elapsed between Alejo’s view of the criminals and his identification of the accused in open court. Alejo’s memory, just like any other human’s, is frail. In fact, as noted by the trial court, Alejo’s recollection at the time he gave his statement before the police investigators was more recent and fresher than when Alejo testified in court. Accordingly, the trial court gave more credence to Alejo’s sworn statement than his testimony in acquitting Delos Santos.
24. The police did not posses any description or prior identification of these accused. There was no leading information, or any piece of reliable information for that matter, on the identity of the killers, except Joel’s illegally extracted extrajudicial confession. Neither did the police have any evidence linking the other accused to the crime. To repeat, Joel provided the police, through a coerced confession, with the identities of his supposed co-conspirators and where they could be found. Clearly, “the police investigators are the real actors in the identification of the accused; evidence of identification is effectively created when none really exists.”
25. In Escordial, the Court stated that the testimonies of the witnesses on the identification of the accused should be held inadmissible for being “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’” Here, being a direct result of an illegal police activity, that is the coerced extraction of a confession from Joel, the subsequent in-court identification by Alejo of Lumanog, Rameses, Fortuna and Santos must be rejected. The testimony of Alejo on the identification of the accused as perpetrators of the crime cannot be given any weight. Alejo’s in-court identification of Lumanog, Rameses, Fortuna, and Santos was fatally tainted because the identity of the suspects came from a coerced confession of Joel, who himself was identified as a suspect through a fatally defective impermissible suggestion to Alejo. In short, Alejo’s identification of Joel was fatally defective; Alejo’s identification of Lumanog, Rameses, Fortuna and Santos was also fatally defective. Both identification directly emanated from illegal police activities – impermissible suggestion and coerced confession.
26. After the police investigators had illegally extracted from Joel the identities and locations of the other suspects, and after they had arrested Lumanog, Rameses, Fortuna and Santos, the police proudly declared: “crime solved” and “case closed.” With this remarkable development, the accused were presented before the media in a press conference in Camp Crame on 24 June 1996 or 11 days after the killing. The accused were photographed by mediamen and interviewed by members of the press. During the press conference, the accused were made to squat on the floor, their names written on boards dangling from their necks.
Indisputably, the police extracted the identities of the accused from a coerced confession of Joel. Then the police arrested the accused, and allowed the media to take their pictures with their names written on boards around their necks. The media promptly published these pictures in several newspapers. Thus, at that time, the faces of the accused were regularly splashed all over the newspapers and on television screens in news reports. Alejo could not have missed seeing the faces of the accused before he identified them in court. To rule otherwise strains credulity.
27. Alejo, as the star witness in this case, must naturally be interested to look, or even stare, at the faces of the alleged killers to make sure he identifies them in court. Assuming Alejo failed to personally see the faces of the accused in the newspapers or television, which is highly improbable, if not totally impossible, his family and friends, if not the police, would have provided him with photographs of the accused from the newspapers for easier identification later in court. Surely, Alejo had ample time to memorize and familiarize himself with the faces of the accused before he testified in court and identified Lumanog, Santos, Rameses, Joel, and Fortuna as the killers of Abadilla.
To give credence to Alejo’s in-court identification of the accused is to admit and give probative value to the coerced confession of Joel. Clearly, the publication of the pictures of the accused in the newspapers and television came directly from the coerced confession of Joel. Alejo would not have been able to identify the accused without the pictures of the accused that were taken by media as a result of the coerced confession of Joel.
28. Inexplicably, the majority fails to consider this extensive media exposure of the accused in ascertaining the reliability and admissibility of Alejo’s testimony on the identities of the accused. The majority ignores the fact that Alejo had seen the accused in print and on television, guaranteeing Alejo’s in-court identification of the accused as the perpetrators of the crime. The media exposure of the accused casts serious doubts on the integrity of Alejo’s testimony on the identification of the murderers. Such doubts are sufficient to rule that Alejo’s in-court identification of the accused as the perpetrators of the crime is neither positive nor credible. “It is not merely any identification which would suffice for conviction of the accused. It must be positive identification made by a credible witness, in order to attain the level of acceptability and credibility to sustain moral certainty concerning the person of the offender.”
29. The police arrested Joel, without any warrant, on 19 June 1996 or six days after the killing. Six days is definitely more than enough to secure an arrest warrant, and yet the police opted to arrest Joel and the other accused, without any warrant, claiming that it was conducted in “hot pursuit.” In law enforcement, “hot pursuit” can refer to an immediate pursuit by the police such as a car chase. Certainly, the warrantless arrrest of Joel, made six days after the murder, does not fall within the ambit of “hot pursuit.” The question now is whether the successive warrantless arrests of the accused are legal. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
30. None of the above instances is present in this case: (1) the accused were not arrested in flagrante delicto; (2) the arrest was not based on personal knowledge of the arresting officers that there is probable cause that the accused were the authors of the crime which had just been committed; (3) the accused were not prisoners who have escaped from custody serving final judgment or temporarily confined while their case is pending. There is no question that all the accused were apprehended several days after the crime while doing ordinary and unsuspicious activities. There is also no question that the police had no personal knowledge of probable cause that the accused were responsible for the crime which had been committed. The third situation is inapplicable since the accused are not prison escapees. Considering these facts, there is indeed no justification for the warrantless arrests effected by the police in their so-called “hot pursuit.” Such warrantless arrest, therefore, amounts to a violation of Section 2, Article III of the Constitution, which provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
31. The police investigation work in this case, which led to the unlawful warrantless arrest of the accused, is nothing but sloppy: (1) they chose to rely solely on the sworn statement of one eyewitness (Alejo); (2) they failed to obtain any description of the suspects from other eyewitnesses, including the owner of the Kia Pride which was forcefully obtained by the suspects as a get-away car; (3) they showed Alejo a picture of Joel to assist him in identifying the “suspect”; and (4) they arrested the other accused based entirely on the illegally extracted extrajudicial confession of Joel.
32. Worse than their illegal warrantless arrest, the accused reportedly underwent unspeakable torture in the hands of the police. While the Commission on Human Rights, “in its Resolution dated July 16, 1996, did not make any categorical finding of physical violence inflicted on the appellants by the police authorities, the CHR found prima facie evidence that the police officers could have violated Republic Act No. 7438, particularly on visitorial rights and the right to counsel, including the law on arbitrary detention, x x x.”
33. The speedy resolution of a crime is never a license for the police to apprehend any person and beat him to admit his participation in a gruesome crime. In this case, without any credible evidence linking the accused to the murder, the police blindly resorted to careless investigation and unlawful apprehension of innocent men. Worse, the police apparently tortured the accused to answer for the brutal slaying of Abadilla.
34. Indisputably, torturing the accused to extract incriminating confessions is repugnant to the Constitution. Section 12(2), Article III of the Constitution expressly provides “[n]o torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against [an accused].” The blatant and unacceptable transgression of the accused’s constitutional rights, for the sake of delivering speedy, but false, justice to the aggrieved, can never be countenanced. This Court can never tolerate official abuses and perpetuate the gross violation of these rights. The presumption that a public officer had regularly performed his official duty can at no instance prevail over the presumption of innocence.
35. In reviewing criminal cases, the Court must carefully determine and establish “first, the identification of the accused as perpetrator of the crime, taking into account the credibility of the prosecution witness who made the identification as well as the prosecution’s compliance with legal and constitutional standards; and second, all the elements constituting the crime were duly proven by the prosecution to be present.” The inexistence of any of these two factors compels us to acquit the accused.
36. It devolves upon the police authorities, as law enforcers, to ensure the proper and strict implementation of the laws, most specially, the fundamental law of the land. Lamentably, the present case showcases the dark reality in our country, where the police at times assumes the role of law offenders. The policemen, boasting of solving a highly sensationalized crime, flagrantly disregarded the accused’s constitutional rights. These men in uniform openly defiled the Constitution, which they are bound to observe and respect, by infringing upon the accused’s rights guaranteed under (1) Section 1, Article III; (2) Section 14(1); (3) Section 12(1); (4) Section 12 (2); and (5) Section 2, Article III of the Constitution. Such violations simply cannot be countenanced. Instead, they deserve utmost condemnation. As the Court declared emphatically in Alcantara:
The records show that [the police] illegally arrested appellant, arbitrarily detained, physically abused and coerced him to confess to a crime penalized by nothing less than reclusion perpetua. Too often, our law
enforcers, in their haste to solve crimes, strip people accused of serious
offenses of the sanctity of their constitutional rights. It is again time to pound on these law enforcers with the crania of cavern men that the guarantees of the rights of an accused in the Constitution are not mere saccharine statements but the bedrock of our liberty. If we allow a meltdown of these guarantees, our democracy will be a delusion. (Emphasis supplied)
37. In view of the gross violations of the accused’s constitutional rights as well as the seriously flawed identification of the accused as the perpetrators of the crime, there is sufficient reason to doubt the accused’s guilt for the crime charged. To repeat, the prosecution failed to discharge its burden of proof, specifically to prove the identity of the perpetrators of the crime beyond reasonable doubt. Accordingly, the presumption of innocence in favor of the accused prevails. The accused need not even raise the defenses of denial and alibi as the burden of proof never shifted to the defense. “Any consideration of the merits of these defenses is rendered moot and will serve no useful purpose.” Therefore, the accused are entitled to an acquittal.
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