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
Monday, February 24, 2014
Wednesday, February 19, 2014
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
“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
Thursday, February 13, 2014
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
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
Tuesday, February 11, 2014
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
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
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