Lawmakers seek to criminalize corruption in private sector

TWO party-list lawmakers are pushing to criminalize corruption in the private sector. House Bill (HB) 5298, authored by Cibac Party-list Reps. Sherwin Tugna and Cinchona Cruz-Gonzales, seeks to amend Republic Act (A) 3019, otherwise known as “The Anti-Graft and Corrupt Practices Act.”

HB 5298, now pending at the Committee on Civil Service, seeks the amendment of Section 1 of RA 3019 on the Statement of Policy so that “The Philippine government also recognizes that to fight the evils of graft and corruption, all citizens must participate and take part in it. Consequently, graft and corrupt practices or any act which may lead thereto occurring in the private sector and only between and among persons working for and transacting with the private sector must be repressed and penalized.”

It also amends Section 2 of RA 3019 by redefining the following terms: advantage; agent; entertainment; government; individual, person; principal; public officer and receiving any advantage.

It seeks to add a new Section 7 so that in the corruption by private persons, the following shall be liable for an offense: Any agent who, without reasonable excuse solicits or accepts any advantage as an inducement to or reward for; Any person who, without reasonable excuse, offers any advantage to any agent as an inducement to or reward for; Any agent who, with intent to deceive his principal uses any receipt, account or other document; If an agent accepts an advantage, neither he nor the person who offered the advantage shall be guilty of an offense if the act is done with the permission of his principal, the advantage is unsolicited and the advantage is of small or insignificant value and given as mere ordinary token of gratitude or friendship; and If the act is done with the permission of an agent’s principal, the permission shall be given before the advantage is offered or accepted or if accepted without prior permission, be applied for and given as soon as reasonably possible after such offer or acceptance.

The bill said that any public officer or private individual committing any of the unlawful acts or omissions enumerated in the act shall be punished with imprisonment for six years and one month to 15 years, and a fine of P500,000 to P1 million, perpetual disqualification from public office, and confiscation or forfeiture in favor of the government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.

Furthermore, any person committing the acts mentioned in Section 7 shall be punished with imprisonment of six years and one month to 15 years and a fine of P500,000 to P1 million, and payment of damages to persons prejudiced by the acts committed.

The bill said that all heads of government offices, agencies and departments, as well as heads of corporations and businesses, or of their applicable departments or offices must make available reports of advantages received and permitted under this law. The reports shall be made available for inspection, copying, reproduction by the Office of the Ombudsman at regular working hours on regular business days.

In filing the bill, Tugna noted that while corruption has always been associated with the government, the problem occurs in the private sector, as well. Tugna added the country currently has no laws that penalize corruption in the private sector although graft and corruption is not limited in the government sector.

“People always see that corruption is only prevalent in the government offices, agencies and departments. They believe that public officials are the only ones who abuse their power and position to gain advantage.  But the evils of graft and corruption have always plagued both the public and private sectors of our society in the Philippines,” he said.

Tugna, a deputy majority leader, said it is a reality that people use money, position, or any advantage as an inducement or reward in order to get what they want. These activities are considered forms of graft and corruption according to him.

In line with the thrust of the United Nations Convention Against Corruption, which was signed by the Philippines in November 2006, Tugna said now is the right time to amend RA 3019 to include a provision that will penalize corruption in the private sector.

source:  Business Mirror

DSWD opposes lowering of minimum age of criminal responsibility in new Criminal Code

The Department of Social Welfare and Development (DSWD) and the Juvenile Justice and Welfare Council (JJWC) said Tuesday that they strongly oppose the lowering of the minimum age of criminal responsibility (MACR) from 15 years old to 13 as provided in the New Criminal Code – Book I.

According to DSWD Secretary Corazon J. Soliman, the proposed provisions in the New Criminal Code – Book I does not conform with international laws.

Soliman cited that the Philippines is a State Party to the United Nations Convention on the Rights of the Child (UNCRC) and other international treaties promoting and protecting children’s rights.

“Hence, the Philippines has obliged itself to respond to children in conflict with the law, in accordance with these treaties, to effectively serve the best interests of children and, in the short and long term, the interest of the society,” Soliman pointed out.

Soliman added that the proposed provisions are not consistent with the UNCRC and other treaties that call for States to develop a juvenile justice system that does not resort to judicial proceedings and to use the deprivation of liberty only as a last measure.

She said that lowering the MACR in Section 8 of the proposed Code will lead to an increased chances for more teenagers to be subjected to judicial proceedings which is contrary to the spirit and intent of the Convention.

“Moreover, once a higher MACR has been established, the State must not lower it but must only progressively increase the minimum age. The proposed Section 8 provision is a setback to the Philippines efforts in advancing child rights protection,” she stressed.

In 2009, the UNCRC Committee, in its 2009 concluding observations to the Philippines report to UNCRC compliance, commended the country’s passage of the Juvenile Justice and Welfare Act of 2006 (or RA 9344), which raised the MACR from 9 to 15 years old.

It also expressed its concern on the initiatives to lower the MACR.

It particularly urged the Philippines to ensure that the MACR is not lowered.

The DSWD chief added that the proposed Section 9 provision also contravenes the international principle against discrimination when it allowed children to be tried as adults for serious crimes committed.

She added that children do not become adults when they commit serious crimes.

“It is not the offense that determines the full maturity of children but their age, and physical and mental development. Therefore, the full protection and coverage of juvenile justice should be for all children below 18 years old,” she stated.

She cited that the Philippine Constitution guarantees to ensure and defend the right of children from all forms of conditions prejudicial to their development.

“Because of this mandate and by virtue of our international obligations, RA 9344, as amended, was enacted. The proposed provisions on children in Sections 8 and 9 of the Criminal Code are therefore not consistent with the Philippines laws,” she again added.

According to the DSWD chief, criminalizing younger children is “anti-poor”.

Prior to the enactment of RA 9344, studies found that most children involved in crimes were poor.

Most came from dysfunctioning families who lack access to basic needs, parental love and support, with very little education and were usually neglected or abused.

Most committed theft and crimes against property.

“Clearly, such were crimes committed for survival, safety and security,” she said.

She recalled that prior to RA 9344, when the MACR was low, very young children were often arrested and detained without proper procedures.

“It was common to find young children accused of stealing or vagrancy in overcrowded cells, mixed with adult prisoners who had been charged with rape, murder and other serious crimes. Various reports showed how these children became subjected to bullying by guards and older prisoners and had to endure the sub-human conditions of the jail,” she explained.

She cited that since most of them came from poor families, they stayed longer in prison for lack of proper representation in the courts and thereby results to suffering of different kinds of abuse during arrest and detention and came out of jail worse off than before.

The Lady DSWD chief further stressed that what these children need were help and assistance because their families cannot provide for them in which RA 9344 was enacted for.

She cited also that was is highly needed is full implementation of RA 9344 as amended by RA 10630.

She said that RA 10630 follows the principle of restorative justice and provides for a comprehensive and child-sensitive juvenile justice and welfare system.

Under the said law children are not tried as adults but are provided alternative measures for their accountability through diversion and provided with intervention for their rehabilitation and reintegration to the community.

She then called for joining hands in rehabilitating the children and leading away from the life of crime as restorative way that can benefit both the children and the nation as well. PNA

source:  Manila Times

Bail depends on crime and evidence of guilt

Dear PAO,
My neighbor is being accused of committing a drug-related crime. The information says that his case is “non-bailable” Does this mean he can’t post bail? Thank you.
Suzy

Dear Suzy,
Our answer on whether your friend can post bail will depend on the crime he is being accused of and whether the evidence of guilt against him is strong.

Bail is defined as the “security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions herein specified” (Sec. 1, Rule 114, Rules of Criminal Procedure).

Bail emanates from a person’s constitutional right to be presumed innocent until proven otherwise. The right to bail is guaranteed by our Constitution.

Section 13 of Article III of the 1987 Constitution states that, “All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. Xxx” Sec. 3, Rule 114 of the Rules on Criminal Procedure states that:

“All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment.”

The Constitution and the Rules are clear that a person has a right to bail unless that person is being charged of an offense punishable by reclusion perpetua, death, or life imprisonment, and the evidence of the person’s guilt is strong.

You did not state what crime your friend was being accused of.

Most probably he is being accused of a drug-related crime being pu–nished with life imprisonment.

Therefore, he is not entitled to bail only when the evidence of guilt is strong against him.

In order to determine this, he must file a petition for bail, so that the court can decide whether or not to grant him bail. If the court, after hearing the Petition, finds that the evidence of guilt is not strong against him, then he will be allowed to post bail.

We hope that we were able to enlighten you on the matter.

Please be reminded that this advice is based solely on the facts you have narrated and our appreci–ation of the same.

Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

source:  Manila Times

Cash deposit just one form of bail

Dear PAO,
My cousin has a pending criminal case and he wants to apply for bail. Is this possible? My relatives are considering raising money so that my cousin can do so. But first they would like to know the possibility of bail being granted. Are there other forms of bail aside from cash bail?
Janina

Dear Janina,
Bail is a security given for the release of a person who is lawfully detained in order to guarantee his appearance in court. Cash deposit is the most common kind of bail. But bail does not only take the form of a cash deposit. It may also be in the form of a corporate surety, property bond and recognizance (Section 1, Rule 114, Rules of Court).

In your letter, you made no mention as to what particular criminal case your cousin is facing. You also did not mention at which court his case is pending. Nevertheless, as a rule, bail is granted as a matter of right in the following instances: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment (Section 4, Rule 114, Rules of Court).

If your cousin is already convicted before the Regional Trial Court for an offense not punishable by death, reclusion perpetua or life imprisonment, the grant of bail is discretionary upon the court (Section 5, Rules of Court). Also, the grant of bail is left to the discretion of the court if the offense for which your cousin is being charged is punishable by death, reclusion perpetua or life imprisonment and the evidence of guilt against him is not strong.

The grant of bail, however, is not possible if the offense for which your cousin is being charged is punishable by death, reclusion perpetua or life imprisonment and the prosecution has established that the evidence of guilt against him is strong (Section 7, Rules of Court). Further, your cousin will be denied bail, even if the penalty for the offense he committed is not death, reclusion perpetua or life imprisonment, if: (a) he is a recidivist, quasi-recidivist, habitual delinquent or has committed the crime aggravated by the cir–cumstance of reiteration; (b) he has previously escaped from a penal confinement, evaded sentence or has violated the conditions of his bail without valid justification; (c) he committed the offense while under probation, parole or conditional pardon; (d) the circumstances of his case indicate the probability of flight if released on bail; or (e) there is undue risk that he may commit another crime during pendency of the appeal (3rd paragraph, Section 5, Rules of Court).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appre–ciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

The inflated truth about our laws

CLARITY and uniform interpretation over both time and space are thought to be appealing characteristics of laws. Nothing is as straightforward as the classic “eye for an eye and tooth for a tooth,” or the command to “flog the man and woman guilty of fornication each with a hundred stripes.” Or even (when it existed) the death penalty for the crime of rape or for drug dealing. As long as society continues to hold to these correspondences between crimes and their respective penalties, “justice” as society conceives it is implemented uniformly, regardless of time and place.

But certainty and timelessness are easy to come by only in existential extremes such as the above (what economists might call “corner solutions,” such as death). Things become more complex when gradations and distinctions are necessary. This is nowhere more evident than when monetary values are incorporated in the law.

Precision frequently demands that framers of the law prescribe definite monetary amounts. Examples of this abound. Prison terms for estafa and qualified theft will vary depending on the peso amounts stolen. Individual and corporate income taxes under the tax code are defined by a schedule that depends on a person’s or corporation’s peso earnings. The tax on cigarettes depends on whether the brand costs more or less than P11.50 per pack. (At the University of the Philippines, our own subsidised tuition and and assistance scheme requires different fees from students according to levels of their family’s peso incomes.)

The problem, of course, is that those same money amounts used to define categories, penalties and obligations -- clear and unambiguous enough when the laws and rules were crafted -- no longer have the same meaning as time passes. Inflation is the prime culprit. Changes in the general price level alter the value of of the money unit and render the money metric like a rubber ruler, whose length can be stretched and distorted through time. Because of this, one is no longer certain that justice is faithfully and uniformly served across time.

This is highlighted by a case recently decided by the Supreme Court (Lito Corpuz v. People of the Philippines; GR 180016). A person was found guilty of having committed estafa in 1991 involving P98,000. The Revised Penal Code (passed in 1930 and unchanged to this day) imposes varying amounts of jail time for estafa depending on the monetary amounts involved. The maximum amount is “P22,001 and above,” which corresponds to a jail penalty of “eight years and one day, plus one year for every additional P10,000” but not to exceed 20 years. This correspondence between the monetary offense and penalty embodied society’s sense of justice and proportion at the time. Applying the letter of the existing law to the present case, the convicted would have to serve a total of 15 years.

But P98,000 in 1991 prices is certainly not the same as P98,000 in 1930 prices. With high inflation over the years, the equivalent amount in 1930 prices is obviously far less, and therefore so should be the corresponding penalty.

In a lucid dissenting opinion (shared by Justice Marvic Leonen), Justice Roberto Abad makes an educated estimate that prices may have increased a hundredfold between the two periods. If so, then the same offense would merit a far lower penalty: “The P98,000 jewelry items subject of the offense would have a value of only P980 in 1932. Consequently, had [the convicted person] committed the crime in that year, he would have been imprisoned for only two years and four months maximum. But since he committed it 59 years later in 1991 when the jewelry items are now valued at P98,000 due to inflation, he would be imprisoned for 15 years maximum -- the same crime, the same law, yet a shockingly higher penalty. This result would undoubtedly deny Corpuz his constitutional right to equal protection of the law.”

In the end, the rest of the Supreme Court did not support Abad’s and Leonen’s opinions. While half-conceding the validity of the substantive points raised, the other justices refrained from acting on them, on the ground that doing so would amount to revising the law, which is the job of Congress. In the meantime, some obvious injustice is being committed every day not only in this case but in all other instances where superannuated schedules based on nominal money values are applied -- most important are unwarrantedly long deprivations of liberty handed by the courts, no less.

If the Supreme Court persists in its view that it will not interpret real versus nominal values, then clearly the ball is in the legislature’s court. House Speaker Feliciano Belmonte Jr., in a memorandum to the court, essentially stood upon Congress’ prerogative to prescribe punishment (“the recodification of the Revised Penal Code is already being done by Congress”), but more significantly he also denied the need to amend the schedule of penalties, or the need to maintain consistency or “proportionality” in penalties through time. Indeed, he says, the greater punitiveness arising from the change in the peso values has unintentionally but fortuitously made the penalty scheme “more reasonable” and “protective of the poor.” (The Speaker neglects to explain how a penal code that punishes estafa worth P100 with a jail term of four to six months can be pro-poor.) In other words, the Supreme Court has tossed the problem to Congress, and therefore we can expect Congress to do... nothing.

This is unfortunate -- as well as inconsistent. After all, Congress has not shied away from indexing the sin taxes to inflation, increasing the nominal amounts of tax by 4% annually to protect the real value of government revenues. In the opposite manner, however, it has also tarried in adjusting income brackets in the tax code, effectively allowing inflation to push people up the tax brackets and pay higher average and marginal tax rates -- again resulting in higher revenues for government. Index some things but not others. Where is consistency?

All of this can only lead to the suspicion that the government is assiduous only when it comes to protecting the real value of its claims against its citizens -- especially when these claims are in pecuniary form. But it is niggardly and slow in dispensing that most basic and minimal non-monetary claim citizens expect from it -- justice and fair treatment.

(The author is an Oscar M. Lopez professor at the UP School of Economics and an IDEA Fellow.)

source: Businessworld

Knocking someone’s tooth out is serious physical injury

Dear PAO,
My brother had a fight with a bystander. He was only able to strike one blow that landed on the person’s face. Unfortunately, one of the front teeth of that person was knocked out and my brother is now facing a complaint for serious physical injuries. May I know if the complaint was proper? We think that there is a bias in the filing of complaint since that bystander was not seriously injured and not even hospitalized.
April S.

Dear April S.,
Under Article 263 of the Revised Penal Code (RPC), the following constitutes the crime of serious physical injuries if as a consequence of the physical injuries, the injured person shall: (1) become insane, imbecile, impotent, or blind; (2) have lost use of speech or the power to hear or to smell, or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was therefore habitually engaged; (3) become deformed or shall have lost any part of his body or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he was habitually engaged for a period of more than ninety days; or (4) have caused illness or incapacity for labor of the injured person for more than thirty days.

One of the mentioned acts that would amount to serious physical injuries is when the said physical harm has caused deformity to the injured person. The deformity in this case pertains to disfigurement. The loss of teeth if visible and impairs the appearance of the offended party is considered as disfigurement; thus, the offender who caused such a loss may be liable for serious physical injuries. Accordingly, one who unlawfully wounds another is responsible for the consequences of his act. If as a result thereof, the offended party is impaired in his appearance in such a way that the disfigurement cannot be removed by nature, the person causing the injuries is responsible for the disfigurement, and he is not relieved of that responsibility because the offended party might, if he has the means, lessen the disfigurement by some artificial contrivance (People of the Philippines v. Alipio Balubar, G.R. NO. L-40940, October 9, 1934).

Based from the foregoing, your brother may be liable for the crime of serious physical injuries because, as you have stated, his blow, even if it was only a single one, has caused the removal of the bystander’s front teeth, provided that the same is visible and impairs the latter’s appearance and even if he was not seriously injured or confined at the hospital.
We hope that we have answered your query. Our legal opinion may vary if other facts are stated or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Grounds for filing complaint for adultery

Dear PAO,
I am an OFW and I found out from my daughter that my wife is cohabiting with another man in our house while I was abroad. What case can I file against my wife and his paramour who knew from the start that my wife is already married?
ED

Dear ED,
Under our law, the husband and the wife have the obligation to live together, observe mutual love, respect and fidelity and render mutual help and support (Article 68, Family Code of the Philippines). Pursuant to this, the Revised Penal Code (RPC) criminalizes certain acts of infidelity by the husband or the wife.

The act of your wife in cohabiting with another man during the subsistence of your marriage is considered as adultery which is defined and penalized under Article 333 of the RPC, to wit:
“Article 333. Who are guilty of adultery.—Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.

Adultery shall be punished by prision correccional in its medium and maximum periods.‘
If the persons guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.”

You may file a criminal complaint for adultery against your wife and her paramour before the Prosecutor’s Office of the place where they are cohabiting with each other. However, you will not be allowed to prosecute them for this crime if you have consented to the commission of the same or have pardoned your wife and her paramour Article 344, RPC). To successfully prosecute them of the crime of adultery, you need to prove the following elements: 1) that the woman is married; 2) that she has sexual intercourse with a man not her husband; and 3) that as regards the man with whom she has sexual intercourse, he must know her to be married (Luis B. Reyes, The Revised Penal Code, Book Two (14th Edition), page 841).

We hope that we were able to answer your query. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

More credible

This is perhaps one of the most unique cases on record as it involves a husband and wife found guilty of rape. As the court here said, sexual relations outside the marriage bond are not a pixyish play for couples as neither one is allowed to bring in a third person just to satisfy the insatiable lust of the other.
The couple here is Dencio and Nimfa living at a Southern Luzon town in a six meters by eight meters house with their two children. Nimfa is a reputed healer in their province who has supposedly healed a lot of people. She performs her healing session in one room of their house.

Among those who got to know of Nimfa’s healing prowess was Lita whose daughter, Nora is an epileptic. Worried about the worsening condition of her daughter and relying on the advice of her sister-in-law, Lita brought Nora to the residence of Nimfa in the nearby town, for healing sessions.
Three days later Lita even invited Nimfa to the 14th birthday celebration of Nora in their residence. After the celebration, Nimfa persuaded Lita to allow Nora to stay in the house of her mother-in-law in their town since she only conducts healing sessions in the evening.

After about a week stay in the mother-in-law’s house, Nimfa asked Nora who was then cleaning the house, to go to her house. She told Nora to lie down on the floor of the room where the healing sessions were conducted. Nora acceded, thinking that she would be treated.

At this juncture, Nimfa called her husband Dencio and told him “o maghubo ka na” Frightened, Nora struggled and exerted efforts to resist the invasion on her womanhood, but to no avail because Nimfa pinned down her hands on the floor and covered her mouth. Dencio thus succeeded in satisfying his lust and invading the young Nora’s womanhood. Nimfa even laughed and laughed while watching her husband consummate the lecherous act in the treatment room. Then Nimfa warned Nora not to divulge the incident to anybody.

After the ordeal, Nora refused to be treated anymore. She was fetched by her aunt and was continuously crying inside the passenger jeepney. The next day, she disclosed to her mother Lita what was done to her. So after medical examination which confirms that there was sexual penetration done on her, Dencio and Nimfa were charged with the crime of rape.

Nimfa denied the accusation. She testified that it was against human nature to commit rape in broad daylight and with her children in the house. She claimed that Lita and Nora were just trying to discredit her for curing the sick and just want to escape from the obligation of paying her services. Dencio on the other hand testified that on the day of the rape, he was at the elementary school, a walking distance from their house, meeting with the barangay captain and another neighbor looking at the voter’s list for the coming election. Then he went to a repair shop where he worked as a mechanic. Both of these persons corroborated his story.

But after trial, the Regional Trial Court (RTC) nevertheless found Dencio and Nimfa guilty of rape .The RTC found that conspiracy existed between the two of them as it relied more on the straightforward testimony of Nora. Was the RTC correct?

Yes. Nora’s testimony appears straightforward. She positively identified her ravishers and narrated what transpired with simplicity and veracity. Well settled is the doctrine that testimonies of child-victims are given full weight and credit. When a woman or a girl-child says that she has been raped, she says, in effect, all that is necessary to prove that rape was really committed.

Both Dencio and Nimfa are guilty of rape because there is conspiracy between them. Conspiracy exists when two or more persons come to an agreement concerning the commission of an offense and decide to commit it. The facts and circumstances of this case indicate the existence of conspiracy exists: from the time Nimfa called Dencio to remove his pants and pinned down Nora’s hands on the floor up to the time she was laughing and laughing while her husband is perpetrating the act.

So Dencio and Nimfa should suffer the penalty of reclusion perpetua and to pay Nora, P50,000 as indemnity and P50,000 as moral damages (People vs. Saban, G.R. 110559, November 24,  1999. 319 SCRA 36).

*      *      *

E-mail: attyjosesison@gmail.com.

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) 

Garcillano indicted of perjury

THE OFFICE of the Ombudsman has indicted former Commission on Elections (Comelec) commissioner Virgilio O. Garcillano of perjury.

In a 13-page resolution approved yesterday, Ombudsman Conchita Carpio-Morales said her office found probable cause to charge Mr. Garcillano with perjury under Article 183 of the Revised Penal Code and for violation of Section 19 of Republic Act 8239 Philippine Passport Act of 1996.

Ms. Morales said the Office of the Ombudsman found that Mr. Garcillano "made a deliberate and willful assertion of a falsehood" during the congressional hearing when he testified that he never left the Philippines after the so-called "Hello Garci" controversy broke out.

The case stemmed from the complaint-affidavit filed in January 2012 by current and former Bayan Muna Party-list Representatives Neri J. Colmenares and Teddy A. Casiño, respectively, against Mr. Garcillano, who resurfaced after the 2004 "Hello Garci" controversy, for falsely testifying under oath and presenting an alleged spurious passport during the congressional joint committee hearing in December 2005.

The "Hello Garci" controversy arose when audio recordings of an alleged telephone conversation between Mr. Garcillano, and former president and now Pampanga Rep. Gloria Macapagal-Arroyo (2nd district) were made public at the height of the 2004 synchronized national and local elections.

Congress investigated Mr. Garcillano in December 2005 after the reported wiretapped telephone conversations between Mrs. Arroyo and the former poll official, who the former president allegedly referred to as "Garci", was leaked to the media. The conversations pertained to the counting of votes in the 2004 presidential race that Mrs. Arroyo won over chief rival Fernando K. Poe, Jr.

The "Hello Garci" scandal triggered the resignation of key Cabinet members, an apology from Mrs. Arroyo and massive protests. An intelligence unit in the military was believed to have taped the conversations and leaked it to the public.

The Ombudsman, in the resolution, said the note verbale dated Aug. 31, 2005 and issued by the Ministry of Foreign Affairs of the Republic of Singapore "confirmed" that [Mr.] Garcillano "transited in Singapore on July 14, 2005 and departed Singapore on July 15, 2005."

The resolution noted that Mr. Garcillano took his oath before former North Cotabato Rep. Emmylou Talino-Santos (1st district) -- a competent officer authorized to administer oaths -- at the start of the congressional proceedings, as evidenced by the transcript of stenographic notes.

Likewise, Mrs. Morales added that her office found that Mr. Garcillano also violated the Philippine Passport Act "when he presented a forged passport before the congressional hearing".

The Ombudsman cited data from the Bangko Sentral ng Pilipinas (BSP) Laboratory examination report dated March 20, 2006 which concluded that Mr. Garcillano’s passport "does not conform to standard after discovering badges of forgery." "While the DFA [Department of Foreign Affairs] issued a certification that its Regional Consular Office in Cagayan de Oro issued a passport bearing the number JJ243816 to [Mr. Garcillano], he did not show proof that the questioned passport was the same passport issued by the Cagayan de Oro Regional Consular Office," the resolution read.

Citing jurisprudence, the resolution added that Mr. Garcillano, "being in possession of the forged passport and the one to benefit from its presentation before the congressional joint committee, is presumed to be forger."

Meanwhile, the Office of the Ombudsman dismissed the charge of falsification by a public officer under the Revised Penal Code because the element of "taking advantage of official position" was found lacking. "[Mr. Garcillano], although a public officer, acted not by reason of his office, his position as a Comelec commissioner not having anything to do with the issuance of a passport," the Ombudsman explained in the resolution.

Ms. Morales said the Office of the Ombudsman will be filing the perjury charges against Mr. Garcillano before the Sandiganbayan. -- Imee Charlee C. Delavin

source:   Businessworld

Case should be filed where the crime was committed

Dear PAO,
I have an officemate who is currently facing a difficult predicament.
Her husband has been accused of homicide which allegedly transpired sometime in December 2013. The complaint was only filed late January of this year. They have no lawyer and to be quite honest, they have no financial capacity to avail of one. Is it possible to secure assistance from your office? What documents do they need to present?
GED

Dear GED,
Our office, the Public Attorney’s Office or PAO, is mandated by law to render free legal assistance to indigent clients and other qualified persons whose cases are meritorious in all civil, criminal, administrative, labor and other quasi-judicial cases (Section 1, Article II, PAO Operations Manual).
Given that a complaint for Homicide is in the nature of a criminal case, our office considers the same as a meritorious case because we recognize the constitutional right of an accused to be presumed innocent until the contrary is proven (Section 2, Article II, PAO Operations Manual).

Nevertheless, the husband of your officemate must establish that he is a qualified indigent client in order for him to avail the services of our office and the representation of one of our lawyers. In connection thereto, he must present any of the following proofs of indigency: (a) Latest Income Tax Return (ITR), pay slip or other proofs of income; (b) Certificate of Indigency from the Department of Social Welfare and Development (DSWD), its local district office, or the Municipal Social Welfare and Development Office which has jurisdiction over his residence; or (c) Certificate of Indigency from the Barangay Chairman having jurisdiction over his residence (Section 3, Article II, PAO Operations Manual).

It would be best for your officemate and her husband to visit our district office nearest to the place where the alleged crime was committed so that they can personally confer with one of our lawyers as well as for the proper rendition of legal assistance in accordance with existing PAO laws, rules and regulations.

As we have mentioned earlier, a complaint for Homicide is in the nature of a criminal case. Hence, it will necessarily have to be filed before the Office of the City or Provincial Prosecutor, or in the absence thereof, the court which has jurisdiction over the place where the crime was committed.
Please be advised that our district offices are usually located at or near the municipal hall, city hall, provincial hall or hall of justice of each respective municipality, city or province. Please inform your officemate to bring all the pertinent documents relative to the case of her husband on their visit to our district office.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

The right to bail

You can introduce a terminological distinction between a ‘detainee’ and a ‘prisoner’, but the effects belie the verbal sleight-of-hand: A person is deprived of his liberty in so many different ways. But while a prisoner suffers incarceration as penalty for a crime of which he has been duly, we hope, convicted, a detainee is detained (= incarcerated) on suspicion (technically: on the basis of a probability) that he committed an offense. Each acquittal merely proves how mistaken suspicions can be, no matter that they are vested in the legalesse of ‘probable cause’

It is supposed to be common knowledge that most offenses are ‘bailable’, others are ‘non-bailable’. It was something I took too as ‘knowledge’, until one day, my father, Justice Hilarion Aquino, told my brother, an RTC judge and me, that he did not think that there were any non-bailable offenses. That sent me back looking up the text of the Constitution once more, a document I thought I was sufficiently familiar with. Section 13 reads: “All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.

The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.” Shall be bailable—in the law, ‘shall’ mandates. This has led to the traditional formulation of the rule: In all cases except those punishable by reclusion perpetua (or, under special penal laws, life imprisonment) bail is a matter of right. When the offense of which a person stands accused is punishable by reclusion perpetua or life imprisonment, and evidence of guilt is strong, it does not follow that bail must be denied, because that is not what the Constitution provides. It only subjects the grant of bail to judicial discretion. Bail is available then in all cases, if the judge would exercise discretion in favor of its concession, and discretion precisely means that it is the judge’s call. The judge must judge!

But so precious is the right to bail and the liberty that it safeguards that not even the suspension of the privilege of the writ of habeas corpus can impair it. John Rawls concluded, in theorizing on justice, that reasonable people would like society to be organized according to the principle that each person is entitled to the maximal range of liberties compatible with a similar range for all others. While liberty—in the sense of freedom from restraint and detention—was not what he particularly thought of in this first of the principles of justice, it certainly is among the bases of self-respect that the principle covers.
In fact, if, as I think should be the case, the guarantees in the Bill of Rights are read in lexical order, then the very first section enshrines the fundamental right: “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.” At the time a person is deprived of liberty because he is denied bail, he has not yet been convicted. All that ‘justifies’ the deprivation of liberty is suspicion, known as ‘probable cause’. And the Supreme Court has qualified this even further by teaching: “The term does not mean ‘actual and positive cause’ nor does it import absolute certainty. It is merely based on opinion and reasonable belief...It is enough that it is believed that the act or omission complained of constitutes the offense charged.” Fenequito v. Vergara (2012) Scholastic philosophers used to define ‘opinion’ as ‘holding a judgment with the radical fear that it is false’. Is it reasonable to deny a person his liberty and curtail his freedoms because of ‘opinion’, ‘belief’, ‘suspicion’? That would be taking liberty—enshrined as the very first right protected by the Constitution—with undue levity!

There is more to the argument for the grant of bail. When a person who has suffered detention is subsequently acquitted, how does the State make up for the injustice of his detention? Will it do to say that he deserved to be detained because there was ‘belief’, ‘opinion’ or suspicion that he was guilty? We are not talking here about such vagaries as the stigma of imprisonment. What we deal with rather is the curtailment of a basic human right, not least among these, the right to the comfort of one’s home and the company of one’s family.

I was taken aback by the language of the Sandiganbayan when it turned down the former President’s petition for bail. It said in what to me was language shot through with utter insensitivity: The depression and loneliness she suffers from are the conditions suffered by all who are detained. And that I supposed to justify the denial of bail—because it is commonly suffered by all detained? If anything at all, the suffering underscores the injustice of being deprived of one’s liberty even before one’s guilt has been established!

Am I for the universal grant of bail? Most assuredly, I am, and while the Constitution cannot now be amended, judges can always exercise discretion in favor of liberty. That is not a bad thing at all. In fact the qualifier —‘when evidence of guilt is strong’ —makes the case for the exercise of discretion in favor of bail stronger for one never knows that the evidence of guilt is strong until after full trial on the merits. Even if it appears that the prosecution has a strong case—and the prosecution will always make its case appear strong—one must allow for the possibility of a solid defense that causes the the prosecution to totter. But at the time bail is denied, one has not yet heard the defense!

Mine is not an argument from pity nor from some vague sense of humaneness or humanity but from the values of our constitutional order and from the demands of fairness, the first virtue, Rawls teaches, of the social order!

rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
rannie_aquino@yahoo.com

source:  Manila Standard Column By Fr. Ranhilio Aquino

Cybercrime Law: SC upholds online libel law

THE SUPREME COURT (SC) yesterday tamed contentious provisions of the controversial cybercrime law, qualifying the rules pertaining to online libel and participation in an Internet crime.

“The Court partially granted the reliefs sought in the 15 consolidated petitions challenging the constitutionality of Republic Act (RA) 10175,” SC Spokesperson Theodore O. Te said in a press briefing.

Mr. Te said the SC struck down three provisions of the Cybercrime Prevention Act of 2012, and imposed conditions on the constitutionality of three other sections.

The provisions that were declared as unconstitutional include:

• Penalizing the posting of unsolicited commercial communications (Sec. 4c4);

• Authorizing the collection or recording of traffic data in real time (Sec. 12); and

• Allowing the Department of Justice (DoJ) to restrict or block access to suspected computer data (Sec. 19).

The high court upheld the constitutionality of the law’s online libel provisions penalizing the original author of an Internet post, but struck down as unconstitutional a portion which punishes “those who simply receive the post or react to it.”

A section punishing the act of aiding and abetting cybercrimes was sustained as constitutional with respect to: illegal access; illegal interception; data interference; system interference; misuse of devices; cybersquatting; computer-related fraud; identify theft; and cybersex.

However, the high court ruled as unconstitutional the aiding and abetting in offenses punished by child pornography, “unsolicited commercial communications,” and online libel.

DOUBLE JEOPARDY
Section 7, which authorizes the prosecution of an offender in both the cybercrime law and the Revised Penal Code, was struck down with respect to online libel, and child pornography.

The SC rejected the said provision for violating the right against double jeopardy, which protects an accused of being charged with the same offense twice.

A total of 15 petitions have been filed since September 2012 questioning at least 19 provisions of the cybercrime law. Petitioners include journalists, lawyers, activist groups, Internet advocates and lawmakers.

Other provisions that were questioned include a rule imposing a higher degree of penalties for cybercrime, which would be punished by a notch higher than those in the Revised Penal Code.

Petitioners also questioned the power of law enforcement authorities to preserve data, and to order the disclosure of traffic data upon securing a search warrant.

The implementation of the law has been shelved since Oct. 9, 2012, following a 120-day restraining order, which the high court made indefinite on Feb. 5, 2013.

Stakeholders had mixed reactions with the Supreme Court ruling.

In a statement, the DoJ welcomed the high court’s decision, saying it was necessary to balance the power of the state and the rights of citizens.

“A clear legal framework is necessary to protect citizens and balance state duties. We will continue to recommend best practices to improve the law,” the statement quoted Justice Secretary Leila M. de Lima as saying.

DoJ’s cybercrime head, Assistant Secretary Geronimo L. Sy, said: “The hard work begins. We were ready to engage stakeholders to issue the implementing rules and regulations (IRR) as required by law and the procedures that will aid law enforcers to investigate core cybercrime cases.”

Petitioner Party-list Rep. Neri J. Colmenares (Bayan Muna) said they are disappointed with the Supreme Court’s ruling. “You are no longer allowed to tweet or post your anger or disgust with government. This is the meaning of the SC ruling, but we will file for a motion for reconsideration,” he said.

“The government should not be the prosecutor of stained reputations,” Mr. Colmenares said, branding it a “draconian law.”

“No one should go to prison just for expressing oneself, specially on the Internet, where people express their frustration with government,” he added.

RA 10175 was enacted on Sept. 12, 2012 by President Benigno S. C. Aquino III, but opponents quickly said the law gave the government wide powers to curb Internet freedom due to the provisions that impose heavy prison terms for online libel.

The original law also gave the state power to shut down Web sites and monitor online activities, in a country where major protests have been organized through Facebook and Twitter.

Party-list Rep. Terry L. Ridon (Kabataan) vowed to challenge the law. While the high court entertains appeals, it rarely reverses decisions.

“The fight against e-Martial Law is far from over. We call on everyone to up the ante and once again show our collective dissent against this repressive law,” Mr. Ridon said. -- with AFP

source:  Businessworld

Ruby Tuason and the Witness Protection Program

The recent admission of pork barrel scam co-conspirator Ruby Tuason highlights anew the political nature  of the Witness Protection Program. Contrary to popular thinking, the WPP and the discharge of a witness as a state witness are two different things. The first is an executive act which, for all intents and purposes, is under the control and supervision of the Secretary of Justice, The latter is a judicial act and will require that the person sought to be discharged as a state witness first be charged in court.
The Witness Protection Program was created by an act of Congress, RA 6981. Under this statute, a person may either apply to the program if:

a) the offense in which his testimony will be used is a GRAVE FELONY as defined under the Revised Penal Code, or its equivalent under special laws;

b) his testimony can be substantially CORROBORATED in its material points;

c) he or any member of his family within the second civil degree of consanguinity or affinity is subjected to THREATS TO HIS LIFE OR BODILY INJURY or there is a likelihood that he will be KILLED, FORCED, INTIMIDATED, HARASSED OR CORRUPTED to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony.

As a consequence of being admitted into the program, a protected witness may be granted immunity for the crime for which he is testifying, be granted protection and a safe house, and may even keep his loot. This is because according to the web page of the DOJ, a person admitted into the program “may not be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents or writings produced.”

A discharge as state witness, on the other hand, is pursuant to Section 7, Rule 119 of the Revised Rules of Court. Unlike the WPP, the Rules of Court require that a state witness should have already been charged for a crime in court. A person then can be discharged as a State witness if the court is satisfied that:

(a)   There is ABSOLUTE NECESSITY for the testimony of the accused whose discharge is requested;

(b)   There is NO OTHER DIRECT EVIDENCE AVAILABLE for the proper prosecution of the offense committed, except the testimony of said accused;

(c)   The   testimony   of said   accused   can   be   substantially CORROBORATED  in its material points;
 
(d)   Said accused does NOT appear to be the MOST GUILTY; and

 (e)   Said accused has NOT at any time been CONVICTED of any offense involving moral turpitude.”

While both provide for testimonial immunity for the accused who will testify for the state, it is clear that the WPP provides for more benefits. This  includes protection,  a safe house,  and even the right to keep his loot. Moreover, unlike the discharge of a state witness, a person may be admitted into the WPP and be accorded all benefits of the program, including immunity form prosecution, on a very low threshold, that the testimony may be corroborated on its material points. It does not matter hence if the testimony is redundant nor that the testimony will not involve new matters that only the witness can testify on.

Simply put, admission into the WPP -which is tantamount to impunity for one’s criminal acts - is a highly political act. Unlike discharge of a state witness in court, all that is required is that there must be an alleged threat on the life of the witness and that the testimony is subject to corroboration. This is why many are aghast at the possibility that Ruby Tuason, who should be equally be prosecuted as Enrile, Estrada et al, appears to be off the hook. Just because the Secretary of Justice now admits that the cases she filed in connection with the PDAF scam does not have her “slam dunk” testimony, she now wants an equally corrupt character to be off the hook.

I have always believed in good governance and that all corrupt people in government should be thrown behind bars. In this regard, we must ensure that all those who stole from the public coffers should all spend the rest of their lives behind bars, Certainly, the admission to the WPP of Ruby Tuason, including her right now  to keep part of her loot, as I think she has said that she will only return a measly P 40 million, is more reason for decent citizens to be aghast at the manner by which the WPP is being implemented.

The WPP, including the Rules of Court provision on state witnesses, exists to ensure that those who breach the law should be punished for their acts. It certainly should not be implemented in a manner to make some criminals appear luckier than others.

source:  Manila Standard Column of Atty Harry Roque

A lawman or even a civilian can arrest a person attempting, committing or has just committed a crime

Dear PAO,
May the police officers validly arrest anyone without a warrant of arrest?
Norlaine

Dear Norlaine,

Arrest is defined as the taking of a person into custody so that he may be made to answer for the commission of an offense (Section 1, Rule 113, Rules of Court). Since it involves deprivation of liberty, arrests, as a rule, shall be made with a warrant validly issued by a judge. There are instances, however, when a person may be validly arrested without a warrant. These are enumerated in Section 5, Rule 113 of the Rules of Court, to wit:

Section 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.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112. (5a)

On the other hand, if none of the foregoing is present, a person who is being accused of committing a crime may only be arrested if there is a warrant of arrest issued against him. To be valid, a warrant of arrest shall comply with the following requisites: 1) It must be based upon probable cause; 2) The probable cause must be determined personally by the judge; 3) The determination must be made after examination under oath or affirmation of the complainant and the witnesses he may produce; and 4) It must particularly describe the person to be arrested (Constitutional Law by Isagani Cruz (2000 Edition), page 142).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Crimes have different prescription periods

Dear PAO,
Until when may a person who committed a crime or violation of a city ordinance be prosecuted for his act?
Moses

Dear Moses,
Our laws prescribe a certain time within which a person may be prosecuted for his commission of a crime or violation of a special law. The failure of the offended party or the proper authorities to commence an action during these periods shall result in the prescription of the crime or the loss of their right to prosecute the offenders.

The period of prescription for the prosecution of a crime or a violation of city ordinances and special laws, shall depend on the duration of the penalty meted out by the law for such violation. The prescriptive periods for crimes punishable under the Revised Penal Code are found in Article 90 thereof, to wit:
“Article 90. Prescription of crime.—Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one year.

The crime of oral defamation and slander by deed shall prescribe in six months.

Light offenses prescribe in two months.

When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraphs of this article” (As amended by Republic Act No. 4661, approved June 19, 1966).

The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information (Article 91, Revised Penal Code).

On the other hand, the prescriptive periods for violations penalized by special laws and ordinances are found in Section 1 of Act 3326, to wit:

“SECTION 1. Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in accordance with the following rules: (a) after a year for offenses punished only by a fine or by imprisonment for not more than one month, or both; (b) after four years for those punished by imprisonment for more than one month, but less than two years; (c) after eight years for those punished by imprisonment for two years or more, but less than six years; and (d) after twelve years for any other offense punished by imprisonment for six years or more, except the crime of treason, which shall prescribe after twenty years. Violations penalized by municipal ordinances shall prescribe after two months.”

The period shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceeding for its investigation and punishment (Section 2, Act 3326).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net