Difference between arbitrary detention and unlawful arrest

Dear PAO,
We want to ask for clarification about the difference between the crime of arbitrary detention and illegal arrest. My neighbor was arrested and detained by our barangay (village) officials for unspecified reason. As a concerned citizen, I find the action as somewhat abusive. What is the proper case to file against these officials? I hope for your helpful response.
Janus

Dear Janus,
To explain and compare the difference between the crime of arbitrary detention and illegal arrest, we shall refer to the Revised Penal Code (RPC) of the Philippines, which provides legal definition of these crimes.

According to Article 124 of the RPC, arbitrary detention is committed by any public officer or employee who without legal grounds detains a person. Under this provision, the commission of a crime or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person. (Ibid.)

On the other hand, Article 269 of the law provides that unlawful arrest is committed by any person who, in any case other than those authorized by law, or without reasonable ground, shall arrest or detain another for the purpose of delivering him to the proper authorities.

As seen from the above-cited definitions, arbitrary detention is committed by a public officer while both public officers and private persons can commit the crime of unlawful arrest. The essence of the crime of arbitrary detention is a public officer’s act of detaining a person without any lawful cause. In unlawful arrest, the crime is the act of arresting a person without a legal cause for the purpose of delivering the person arrested to proper authorities. Conversely, it is considered arbitrary detention when the public officer merely detains a person without any intention in bringing the person to the proper authorities.

Therefore in your situation in the barangay, if the person was detained for no lawful reason, the village officials may be liable for arbitrary detention. If your neighbor, however, was arrested illegally for the purpose of bringing him to judicial authorities, then your officials may be liable for unlawful arrest.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

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

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

Consummated crime

Is a person still liable for the crime of bigamy despite the fact that after contracting the second marriage, his first marriage has been judicially declared null and void? This is the question raised and resolved in the case of Charlie.

Charlie has been civilly married to Tina for almost 9 years. Since they got married before a Judge of a Metropolitan Trial Court of Muntinlupa City on Oct. 25, 1992, Tina left to work abroad and would only come home to the Philippines for vacations. Such situation apparently led Charlie into the arms of another woman, Nena whom he courted and eventually married on Nov. 12, 2001 in Meycauayan, Bulacan according to the rites of a Protestant Church.

So when Tina went home for a vacation in 2002, she was informed of such marriage between Charlie and Nena. To verify the information, she went to the National Statistics Office and secured a copy of the marriage certificate confirming the marriage of Charlie and Nena. But since she was working abroad, she had no time to immediately take any steps against Charlie.

It was only on March 14, 2006, when Tina’s uncle filed before the Office of the Provincial Prosecutor of Malolos, a complaint accusing Charlie of committing the crime of bigamy. And on May 7, 2006, Charlie was charged before the Regional Trial Court (RTC) of Bulacan with bigamy defined and penalized under Article 349 of the Revised Penal Code as amended.

It turned out however that Charlie had also filed an action before the RTC of Caloocan City for the declaration of nullity of his marriage to Tina on the ground of the latter’s psychological incapacity to comply with her essential marital obligation. The RTC of Caloocan has already rendered a decision declaring his marriage to Tina null and void which became final on May 28, 2006.

Using this final judgment declaring his first marriage to Tina null and void, Charlie claimed that there is no bigamy to speak of because there is in effect no such first marriage to Tina. He tried to differentiate between a previously valid but voidable marriage and a marriage null and void from the beginning (ab initio) and contended that while a voidable marriage requires a judicial dissolution before one can validly contract a second marriage, a void marriage need not be judicially determined.

Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1

But the RTC nevertheless convicted Charlie of the crime of bigamy and sentenced him to suffer the penalty of imprisonment of 4 years, 2 months and 1 day, minimum to 6 years and 1 day as maximum. Was the trial court correct?

Yes. A judicial declaration of absolute nullity of a previous marriage is necessary before a person can contract a second marriage. Parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of that marriage before they can be allowed to marry again.

In this case, Charlie legally married Tina on Oct. 25, 1992. He contracted a second and subsequent marriage with Nena on Nov. 12, 2001. At the time of his second marriage to Nena, his first marriage to Tina was still legally subsisting. The decision declaring his first marriage to Tina became final only on May 28, 2006 or about 5 years after his second marriage to Nena. It is evident therefore that he has committed the crime charged. Criminal culpability attaches to the offender upon commission of the offense.

If Charlie’s contention will be allowed, a person who commits bigamy can simply evade prosecution or conviction by immediately filing a petition for declaration of nullity of his earlier marriage and hope that a favorable decision is rendered therein before anyone institutes a complaint against him or before he is convicted of the crime charged (Teves vs. People, et. al. G.R. 18775, August 24, 2011, 656 SCRA 307).

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E-mail: attyjosesison@gmail.com

A LAW EACH DAY(KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star) 

Supreme Court denies militants’ court protection

THE SUPREME COURT (SC) has denied lawmakers from the progressive Makabayan bloc protection from alleged state-sanctioned harassment.

SC Public Information Office Chief Theodore O. Te said in a briefing the petition for writ of amparo and habeas data by nine militant activists was dismissed for “lack of merit.”

The petitioners have cited their inclusion in the Criminal Investigation and Detection Group’s (CIDG) “rogues gallery,” which they claimed indicated they were subject to state surveillance in violation of their rights to life and liberty.

But the full court said they failed to show how their right to privacy was violated “given that the information contained in the rogues gallery is only their photographs, their names, and their position in their respective organizations.”

“All these data are of public knowledge, and are readily accessible to anyone as petitioners are known personalities,” read an excerpt of the decision reached during Tuesday’s en banc session.

Incumbent Representatives Carlos Isagani T. Zarate (Bayan Muna party-list) and Emerenciana A. de Jesus (Gabriela Women’s Party) as well as former representatives Rafael V. Mariano (Anakpawis) and Teodoro A. Casiño (Bayan Muna) led the petitioners.

Other petitioners were Karapatan Secretary-General Cristina Palabay, Sr., Mary Francis Añover of the Rural Missionaries of the Philippines, Rev. Irma M. Balaba of the National Council of Churches of the Philippines, Children’s Rehabilitation Center executive director Jacquiline Ruiz, and the family of the late activist and labor leader Crispin B. Beltran.

They said they have been subject to trumped-up charges for taking up the rights of Mindanao’s lumad (indigenous peoples) evacuees in Davao City, who fled their homes in Talaingod, Davao del Norte, to escape militarization and paramilitary harassment.

The respondents were President Benigno S. C. Aquino III, Defense Secretary Voltaire T. Gazmin, Gen. Hernando Delfin Carmelo A. Iriberri, AFP Deputy Commander for Intelligence Maj. Gen. Virgilio A. Hernandez, Intelligence Service of the AFP (ISAFP) Chief Brig. Gen. Arnold M. Quiapo, Philippine Army Commanding General Maj. Gen. Eduardo M. Año, AFP Deputy Commanding General for Personnel Brig. Gen. Honorato S. delos Reyes, Philippine National Police Director Ricardo C. Marquez, and PNP Criminal Investigation and Detection Group Director Chief Supt. Victor P. Deona.

Also impleaded were the following Mindanao military and police authorities: Eastern Mindanao Command Commanding General Lt. Gen. Aurelio B. Baladad, 60th Infantry Division Commanding Officer Lt. Col. Roberto Bunagan, Eastern Mindanao CIDG Regional Director Police Senior Supt. Joel C. Pernito, Davao City Criminal Investigation Division Team Leader Police Chief Insp. Warren E. Dablo, and several John Does and Jane Does.

Although the activists in the rejected petition failed in their request for court protection, the SC had previously granted the writ of amparo to 22 union leaders on Aug. 4, and to 11 activists from health workers and youth groups on Sept. 8. -- Vince Alvic Alexis F. Nonato

source:  Businessworld

‘Criminal’-Negligence

By Amado P. Macasaet

November 12, 2015

The Government Service Insurance System is arguing with the wrong reason the demand of damages from an  aging member for  the annotation of the title he pledged for a loan way back 42 years ago. 

The reply to his first letter of demand was delayed because the management of the GSIS said it would have the matter studied by its legal department. The reply to the second letter was signed by Apollo M. Escarez, head of the real estate asset distribution and management office. Escarez could very well be a lawyer but his title does not seem to give him authority to approve or deny demands for damages. 

His reply admits guilt by negligence. Escarez said: “We regret that we are not in a position to accede to this demand for damages. The transaction ... dates back to back in July 13 or 43 years ago. The GSIS personnel involved in the annotation of adverse claim is no longer connected with GSIS and, thus, except for averments in the Affidavit of Adverse Claim, we are unable to ascertain the circumstances leading to the annotation ... of the title.” 

The allegation of inability to ascertain the circumstances “leading to the annotation” is most telling. Escarez was practically saying he or the GSIS does not know how the adverse claim was annotated on the back of the title of the property of the claimant. It could not even produce documents such as a stern warning the borrower an adverse claim would be annotated on title of the property if “overdue” obligation  is not paid within the time the GSIS itself is duty bound to specify. 

Yet, the records of the GSIS clearly show said annotation was made after the borrower paid the loan in full. He paid more than the value of the loan, suggesting he went into deep arrears and like all borrowers, had to be penalized for it with a bigger obligation. The borrower never argued that point. The record shows full payment was made during a period when the GSIS was implementing a program we might call condonation of penalties and other charges. 

The claim for damages arose from what the borrower now claims to be embarrassment and shame the GSIS subjected him to with a buyer of the   property. The borrower was never informed of such annotation believing his payment in full settled everything. 

Sensibly the buyer of the property went to the register of deeds to verify whether the asset is encumbered or clean. He got the surprise of his life when he was shown by the Register of Deeds the title of the property had an adverse claim by the GSIS. How can a lender like the GSIS annotate the title of a borrower with an adverse claim when the records show the loan has been paid in full? 

The buyer went to the GSIS and was told that indeed, there was an adverse claim on title of the property he was buying. He backed out. In fairness, the GSIS lifted the annotation but not before the word went around the property owner was trying to sell a piece of land that had an encumbrance.

Beyond admitting the title was indeed annotated and full payment was accepted, the GSIS cannot recall the circumstances that led to the annotation. Such inability is now being used by the GSIS as its defense for denying the claim for damages.

There must be other reasons acceptable to a common mind. The borrower claims there could be no valid reason for the adverse claim. His argument is simple. He paid the obligations in full many years before the annotation was made. 

Strangely, the GSIS put the cart before the horse when it caused the annotation after full payment. 

The GSIS said it does not know what was inscribed on the back of the title. Its lame argument is the person who caused the annotation has long resigned. The GSIS now makes it appear the person was or is the only one who knew the circumstances. He must have left some documents. If he did, GSIS cannot find them. 

Escarez now says “....there is nothing in the records that would explain the circumstances leading to the annotation of the adverse claim itself, signed and executed by Mr. Dela Vega on Jan. 12, 1981.” For 34 long years, the borrower having fully paid his obligation, continued to believe he could do whatever he wanted including selling the asset. 

Manolo A. Dela Vega was the GSIS personnel involved in the annotation. He retired on Dec. 29, 1985. His retirement does not free the GSIS from the responsibility of knowing the circumstances that led to the annotation. Dela Vega caused the annotation long after the loan was fully paid. The GSIS does not seem to have a paper trail of Dela Vega’s decisions but acted swiftly to correct his mistake by telling the Register of Deeds to remove the adverse claim. 

If the borrower had not decided to sell the property knowing his title was “quieted” by full payment, the annotation would have stayed on the back of the title forever. Or, as it happened, if he sold the land used to secure the loan. In which case, as repeatedly explained, the buyer would verify the status of the title before he parts with his money in payment of the sale. 

The annotation was lifted not because the GSIS realized it committed a shameful mistake that embarrassed the borrower with a prospective buyer. The annotation would have stayed on the title if the borrower did not find a buyer who instinctively verified the title. The discovery of the annotation was made not by the ower but by the GSIS itself when a complaint was filed.

The GSIS aborted the sale when the buyer learned the title has an adverse claim. The action of the GSIS in removing the annotation is admission of an unnecessary, in fact willful error the owner now claims he is paying for with the unnecessary tainting of his reputation. 

If the GSIS had a valid reason to cause the annotation it would argue its case to kingdom come. Its defense that it does not know  the circumstances that led to the annotation is admission of guilt. The GSIS does not find any obligation to restore the integrity and reputation of a borrower whose name is said to be known name in the world of business and among powerful politicians maybe including President Aquino, although he is not a businessman.

The law punishes such negligence especially when it puts in doubt the reputation of a person.

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email: amadomacasaet@yahoo.com

source:  Malaya

Threatening to inflict harm on a person a crime

Dear PAO,
During an argument with the second husband of my mother, I heard him utter the words: “Magpatayan na lang tayo!” and from the corner of my eye I could see him approaching me. My mother was in the middle of us and eventually sent him to the other direction. Can this be considered as grave threat?

My mother suffered multiple physical injuries from him when I was a child, but my mother would not do anything about it. Do I need to go to the barangay (village) authorities or straight to the police station in our place?
J.L.

Dear J.L.,
The crime of grave threat is punishable under Article 282 of the Revised Penal Code (RPC). It is stated therein that any person who shall threaten another with the infliction upon the person, honor or property of the latter or his family is committing a wrong amounting to a crime. The threat is considered to be grave if the offender shall have made the threat demanding money or imposing any other condition, even though not unlawful, and that the offender shall have attained his purpose. The crime shall also be grave threat even if the threat of infliction of harm upon a person, his honor or property was not made subject to a condition.

The second husband of your mother may be liable for the crime of grave threat considering that he has uttered, “Magpatayan na lang tayo!” These are words that have threatened you with the infliction upon your person of harm amounting to a crime, which may be homicide or murder. The penalty for this crime is merely arresto mayor or imprisonment of one (1) month and one (1) day to six (6) months and fine not exceeding 500 pesos because the threat was not subject to a condition.

Considering that the maximum penalty for grave threat is six (6) months, you need to go to your barangay to file a complaint in order that the officials therein could exert efforts for possible amicable settlement (Section 408, Local Government Code). It is only after a failed settlement in the barangay and after the issuance of a Certificate to File Action that you can pursue your complaint at the higher office or the Office of the Prosecutor (Section 18, Rules on Summary Procedure).

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

Reference:

PROCEDURE IN THE MUNICIPAL TRIAL COURTS; SUMMARY PROCEDURE

RESOLUTION  OF  THE  COURT  EN  BANC  DATED  OCTOBER  15,  1991 PROVIDING  FOR  THE  REVISED  RULE  ON  SUMMARY  PROCEDURE FOR METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,  MUNICIPAL   TRIAL  COURTS  AND   MUNICIPAL  CIRCUIT TRIAL COURTS. 
 
I. Applicability 
 
Section 1.  Scope. — This rule shall govern the summary procedure in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in 
the following cases falling within their jurisdiction: 
 
xxx xxx xxx 
 
B.  Criminal Cases: 
  
(1)  Violations of traffic laws, rules and regulations; 
 
(2)  Violations of the rental law; 
 
(3)  Violations of municipal or city ordinances; 
  
(4)    All  other  criminal  cases  where  the  penalty  prescribed  by  law for the offense charged is imprisonment not exceeding six months, or a fine not exceeding (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising  therefrom:  Provided,  however,  that  in  offenses  involving damage  to  property  through  criminal  negligence,  this  Rule  shall 
govern  where  the  imposable  fine  does  not  exceed  ten  thousand pesos (P10,000.00). 
 
This Rule shall not apply to a civil case where the plaintiffs cause of action  is  pleaded  in  the  same  complaint  with  another  cause  of action  subject  to  the  ordinary  procedure;  nor  to  a  criminal  case where  the  offense   charged  is  necessarily   related  to  another criminal case subject to the ordinary procedure.

Sec. 2.  Determination of applicability. — Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not the case shall  be governed by this Rule. A  patently erroneous 
determination  to  avoid  the  application  of  the  Rule  on  Summary Procedure is a ground for disciplinary action.

HOW   IS   A   CRIMINAL   CASE   COMMENCED   IN   A   SUMMARY PROCEDURE?

     The  filing  of  criminal  cases  falling  within  the  scope  of  this  Rule shall be either by complaint or by information: Provided, however, that  in  Metropolitan  Manila  and  in  Chartered  Cities,  such  cases shall be commenced only by information, except when the offense cannot be prosecuted de oficio. 

     The  complaint  or  information  shall  be  accompanied  by  the affidavits of the compliant and of his witnesses in such number of copies  as  there  are  accused  plus  two  (2)  copies  for  the  court's files.  If this requirement is not complied with within five (5) days from date of filing, the case may be dismissed

Sec.  12.  Duty of court. —  
 
(a)  If commenced by compliant. — On the  basis of  the compliant and the affidavits and other evidence accompanying the same, the court  may  dismiss  the  case  outright  for  being  patently  without 
basis or merit and order the release of the accused if in custody. 
 
(b)  If commenced by information. — When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph,  the  court  shall  issue  an  order  which,  together  with 
copies  of  the  affidavits  and  other  evidence  submitted  by  the prosecution,  shall  require  the  accused  to  submit  his  counter-affidavit and the affidavits of his witnesses as well as any evidence 
in  his  behalf,  serving   copies  thereof  on  the  complainant  or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense. 

Sec.    13.    Arraignment  and  trial.  —  Should  the  court,  upon  a consideration  of  the  complaint  or  information  and  the  affidavits submitted  by  both  parties,  find  no  cause  or  ground  to  hold  the  accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial. 
 
If  the  accused  is  in  custody  for  the  crime  charged,  he  shall  be immediately  arraigned  and  if  he  enters  a  plea  of  guilty,  he  shall forthwith be sentenced. 
 
Sec.  14.  Preliminary conference. — Before conducting the trial, the court shall call the parties to a preliminary conference during which a  stipulation  of  facts  may  be  entered  into,  or  the  propriety  of 
allowing  the  accused  to  enter  a  plea  of  guilty  to  a  lesser  offense may  be  considered,  or  such  other  matters  may  be  taken  up  to clarify  the  issues  and  to  ensure  a  speedy  disposition  of  the  case. However,  no  admission  by  the  accused  shall  be  used  against  him unless  reduced  to  writing  and  signed  by  the  accused  and  his counsel.    A  refusal  or  failure  to  stipulate  shall  not  prejudice  the accused.

Sec.  15.  Procedure of trial. — At the trial, the affidavits submitted by  the  parties  shall  constitute  the  direct  testimonies  of  the witnesses who executed the same. Witnesses who testified may be 
subjected  to  cross-examination,  redirect  or  re-cross  examination. Should   the   affiant   fail   to   testify,   his   affidavit   shall   not   be considered  as  competent  evidence  for  the  party  presenting  the affidavit,  but  the  adverse  party  may  utilize  the  same  for  any admissible purpose. 
 
Except  in  rebuttal  or  surrebuttal,  no  witness  shall  be  allowed  to testify unless his affidavit was previously submitted to the court in accordance with Section 12 hereof. 
  
However,  should  a  party  desire  to  present  additional  affidavits  or counter-affidavits  as  part  of  his  direct  evidence,  he  shall  so manifest  during  the  preliminary  conference,  stating  the  purpose 
thereof.    If  allowed  by  the  court,  the  additional  affidavits  of  the prosecution  or  the  counter-affidavits  of  the  defense  shall  be submitted  to  the  court  and  served  on  the  adverse  party  not  later than  three  (3)  days  after  the  termination  of  the  preliminary conference.  If  the  additional  affidavits  are  presented  by  the prosecution, the accused may file his  counter-affidavits  and serve 
the  same  on  the  prosecution  within  three  (3)  days  from  such service. 
 
Sec.  16.  Arrest of accused. — The court shall not order the arrest of  the  accused  except  for  failure  to  appear  whenever  required. Release  of  the  person  arrested  shall  either  be  on  bail  or  on 
recognizance by a responsible citizen acceptable to the court.

Sec.  17.  Judgment. — Where a trial has been conducted, the court shall promulgate the judgment not later than thirty (30) days after the termination of trial. 

IV. COMMON PROVISIONS 
 
Sec.  18.  Referral to Lupon. — Cases requiring referral to the Lupon for  conciliation  under  the  provisions  of  Presidential  Decree  No. 1508   where   there   is   no   showing   of   compliance   with   such requirement,  shall  be  dismissed  without  prejudice  and  may  be revived only after such requirement shall have been complied with.   This provision shall not apply to criminal cases where the accused was arrested without a warrant. 

Sec.    19.    Prohibited  pleadings  and  motions.  —  The  following pleadings,  motions  or  petitions  shall  not  be  allowed  in  the  cases covered by this Rule: 
  
(a)  Motion to dismiss the complaint or to quash the complaint or information  except  on  the  ground  of  lack  of  jurisdiction  over  the subject matter, or failure to comply with the preceding section; 
 
(b)  Motion for a bill of particulars; 
 
(c)   Motion for new trial, or  for  reconsideration of a judgment, or for opening of trial; 
 
(d)  Petition for relief from judgment; 
 
(e)  Motion for extension of time to file pleadings, affidavits or any other paper; 
  
(f)  Memoranda; 
 
(g)    Petition  for  certiorari,  mandamus,  or  prohibition  against  any interlocutory order issued by the court; 
 
(h)  Motion to declare the defendant in default; 
  
(i)  Dilatory motions for postponement; 
 
(j)  Reply; 
 
(k)  Third party complaints; 

(l)  Interventions. 

Sec.    20.    Affidavits.  —  The  affidavits  required  to  be  submitted under this Rule shall state only facts of direct personal knowledge of  the  affiants  which  are  admissible  in  evidence,  and  shall  show their competence to testify to the matters stated therein. 
 
A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge  the  inadmissible  affidavit  or  portion  thereof  from  the record. 

Sec.  21.  Appeal. — The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the same in  accordance  with  Section  22  of  Batas  Pambansa  Blg.  129.  The 
decision of the Regional Trial Court in civil cases governed by this Rule,  including  forcible  entry  and  unlawful  detainer,  shall  be immediately executory, without prejudice to a further appeal that 
may  be  taken  therefrom.    Section  10  of  Rule  70  shall  be  deemed repealed. 
 
Sec.  22.  Applicability of the regular rules. — The regular procedure prescribed  in  the  Rules  of  Court  shall  apply  to  the  special  cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith.  

The 4 elements of bigamy

Dear PAO,
My cousin married at the age of 21. His wife moved to Singapore to fulfill her professional dreams, and they eventually stopped communicating with one another. My cousin met another woman subsequently. He has been very open to her about his marital status and, though their relationship has deepened, he has remained firm with his decision that he will not marry again until his marriage with his wife is annulled.

One night, we were having a drinking spree at my cousin’s house. His girlfriend was inducing him to sign a document. When my cousin saw that it appeared to be a contract of marriage, he refused to sign. But his girlfriend told him that it is not an official contract and she will just use it to pull a joke on her friends. Since he was starting to get annoyed, he just gave in and signed the document. Unfortunately, their relationship turned sour months later because of irreconcilable differences.

Now, my cousin’s ex-girlfriend is threatening to sue him for bigamy. She said she will use the document he signed against him. Do you think this action will prosper in court? Please advise.

Loveliness

Dear Loveliness,
Bigamy is a crime punishable under Article 349 of the Revised Penal Code of the Philippines. In order for a person accused of the commission thereof to be held criminally responsible, the following elements must exist: The offender is legally married; the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; a second or subsequent marriage is contracted; and such second or subsequent marriage has all the essential requisites of a valid marriage.

In the situation of your cousin, it is apparent that the first and second elements are present. The presence of the third and fourth elements, however, is doubtful. While your cousin signed a document, which was purported to be a contract of marriage, that document alone will not suffice to conclude that he is, in fact, married to his former girlfriend. Keep in mind that there is only a valid contract of marriage if the following essential and formal requisites are present: legal capacity of the contracting parties who must be a male and a female; consent freely given by the parties in the presence of the solemnizing officer; the solemnizing officer has authority to solemnize the marriage; a valid marriage license, except in the cases allowed by law; and a marriage ceremony that takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not fewer than two witnesses of legal age (Articles 2 and 3, Family Code of the Philippines).

Since your cousin and his former girlfriend did not appear to have secured a valid marriage license, and neither was there a marriage ceremony that took place in accordance with the tenets of our law, it cannot be argued that all the elements to a valid contract of marriage are present. Thus, we are inclined to believe that there exists no true contract of marriage between them. Taking these into consideration, we are not persuaded to conclude that a case for bigamy against your cousin will prosper in 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 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

‘INC leaders tried to kill me’

Former Iglesia minister: I was illegally detained

Lowell Menorca 2nd, an expelled minister of the Iglesia ni Cristo (INC or Church of Christ) on Sunday claimed that officials of the religious group ordered him killed in July this year.

Menorca, accompanied by his wife Jinky, said he and his family were illegally detained by the INC for three months.

Recounting his ordeal to media, the former minister said he and his family were abducted in Bulan, Sorsogon, and taken to Dasmariñas City in Cavite where two attempts on his life were made.

He said he was handcuffed for 17 hours during the trip from Sorsogon to Cavite.

According to Menorca, he was forced into an empty car and a grenade was tossed inside but it did not explode.

A police officer was then sent to finish him off but Menorca said he pleaded for his life.

“Sabi ko, please don’t kill me. Maawa ka na sa akin. Ang katunayan po ay ministro ako ng Iglesia ni Cristo at may asawa po ako at isang anak [I told him, have mercy on me. I am a minister of the Iglesia ni Cristo, and I have a wife and a child]. I was already crying. Sabi ko I am not a bad person. Huwag niyo naman po sanang hayaan na lumaki ang anak ko na walang ama [I told him please do not allow my child to grow up without a father],’” Menorca said.

He said the policeman took pity on him and agreed not to kill him on condition that criminal charges will be filed against the minister.

“He [police officer] said he will let me live if I can promise that I will agree to whatever charge he will give me in prison, and that I will not make a scandal,” Menorca added.

Charges of illegal possession of firearms were later filed against the minister in a Cavite court.

Menorca, whose petition for a writ of amparo filed in his behalf by his brother was recently granted by the Supreme Court, blamed the INC’s Council of Elders for his torture.

He, however, refused to identify them, saying they will be named when he files criminal charges against them in court.

Menorca said his travails started in July when he was ordered to report to the church’s district office for some incursion while officiating a worship service.

He was then directed to write a statement accusing the estranged sibling of INC executive minister Eduardo Manalo as the person behind several blog posts critical of the INC.

Menorca refused. Several days later, a group of armed men, which included some policemen, accosted him.

“Habang papasok sila at nakita nilang nakita ko na sila ay patakbo silang pumunta sa akin na sumisigaw ng ‘Dapa! Dapa kung ayaw mong masaktan.’ Nakatutok ang lahat ng kanilang baril sa akin [I saw them coming. They were running and they told me to get down if I did not want to be hurt. Their guns were pointed at me],” he said.

From Cavite, Menorca said he and his family were taken to the INC compound in Quezon City where they were detained for three months.

He claimed that they were forbidden to communicate with other people and that he was allowed to go out under heavy guard to deliver statements prepared by church officials to make it appear that all is well.

The former minister said he was suspected to be one of the persons critical of the INC leadership.

“For three months we were there, for three months we were incarcerated. We were never free to go out,’” he told reporters.

Last week, the Supreme Court ordered Manalo to appear before the Court of Appeals (CA) and to bring with him the members of his congregation who were allegedly being held by the church against their will.

The High Court’s order also directed the CA to hear and decide on the petition filed by Anthony Menorca and Jungko Otsuka. Anthony is the brother of Lowell.

A writ of amparo is a remedy available to any person whose right to life, liberty and security has been violated or threatened.

Trixie Angeles, lawyer for the Menorca camp, said charges of illegal detention will be filed against some officials of the religious group.

source:  Manila Times

SC affirms life term on motorcycle theft

The Supreme Court (SC) has affirmed the Court of Appeals (CA) and lower court decisions finding a man guilty of carnapping and qualified theft for stealing a motorcycle in Mandaluyong City in 2007.

In a ruling written by Senior Associate Justice Martin S. Villarama, Jr., the SC’s Third Division dismissed the appeal filed by Julkipli Asamuddin.

The SC upheld the decision of the CA dated May 22, 2014.

Records of the case show that in July 2007, Asamuddin carted away the Honda XRM motorcycle with Plate No. UU-9142 amounting to Php49,000 owned by Emelina Gloria.

The case was elevated to the SC when Asamuddin did not get a favorable decision both from the CA and the Mandaluyong City Regional Trial Court (RTC).

In its Sept. 2, 2015 ruling, the SC said that the RTC and the CA were right when they ruled against Asamuddin.

“The RTC, as affirmed by the CA, correctly imposed in the criminal case for carnapping the penalty of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum, which is within the range of the imposable penalty under Section 14 of R.A. No. 6539[,]” the SC said.

The SC said that “the appellant was correctly meted the penalty of reclusion perpetua for Qualified Theft in [a separate case.]”

“The penalty for Qualified Theft is two degrees higher under Article 31062 of the Revised Penal Code, thus appellant was correctly sentenced to reclusion perpetua. However, appellant is disqualified under R.A. No. 9346 in relation to Resolution No. 24-4-1064 to avail the benefits of parole.”

Concurring with the ruling were Associate Justices Diosdado M. Peralta, Jose P. Perez and Jose C. Mendoza. PNA

source:  Manila Times

Prescription of crimes

Dear PAO, 
In 2006, the owner of the house I am renting, with the help of other persons, forcibly entered our home and took my antique cabinets. What happened is that they lured my wife out of the house and forcibly entered our house through the rear door. Then, they refused to let us in and began piling our belongings outside on the street. However, the antique cabinets were kept as payment for our back rentals. Can we still file a case against them though the incident happened in 2006?        
Sonica5

Dear Sonica5,
Before answering your question concerning prescription of crimes, it is crucial to establish first what crime was actually committed.

Based on your narration, the acts of the owner of the house and his aides would constitute theft. There is theft when a person who, with intent to gain but without violence against, or intimidation of persons or force upon things, shall take personal property of another without the latter’s consent (Art. 308, Revised Penal Code [RPC]). The elements of the crime of theft are: 1) taking of personal property; 2) the property belongs to another; 3) done with intent to gain; 4) done without consent of the owner; and 5) accomplished without the use of violence against or intimidation of persons, or force upon things (People vs. Yusay, 50 Phil. 598).

Applying the foregoing to your case, it is clear that the first four elements are present. The owner of the house and his aides took the antique cabinets you own with intent to gain, that is, to apply it to the unpaid rents, and that the same was executed without your consent. As to the last element referring to violence, intimidation and force, your narration is devoid of any allegation of violence or intimidation employed by the owner of the house and his aides against you and your wife to secure possession of the antique cabinets. Hence, we assume that there is none. Moreover, though you mention a forcible entry, none of the instances mentioned in Article 299 of the RPC, constituting force upon things such as breaking of door, using false keys or pretending the exercise of public authority to enter your house is apparent from your narration. The lack of allegation on these matters leads us to conclude that there is no violence, intimidation of persons, or force upon things present in your case, satisfying the final element of the crime of theft.

This is not to say that forcible entry into a house is not punishable by law. The forcible entry into your house could be separately considered as trespass to dwelling. Trespass to dwelling is committed by any person who shall enter the dwelling of another against the latter’s will. (Art. 280, Id.) Under this law, the offender may be prosecuted so long as the entry is prohibited by the owner, expressly or impliedly, even though no violence was employed. The entry of the owner of the house and his aides into your house which you categorize as forcible creates an impression to us that the entry was effected against your will and thus we consider the crime of trespass to dwelling.

Going to your query on prescription of crimes, Article 90 of the Revised Penal Code sets the period of prescription of crimes or the period allowed to institute a case which is not uniform for all crimes. It ranges from two months to 20 years depending on the classification of the imposable penalty. In general, the higher the penalty, the longer the prescription period.

Theft is penalized according to the value of personal property taken and the penalty that can be imposed on the offender ranges from aresto menor in its minimum period to reclusion temporal. Thus, depending on the value of personal property taken, the crime of theft prescribes in two months or up to 20 years (Article 309 in relation to Sections 25 & 90, Id.) As there is no allegation as to the value of the antique cabinets taken, the period of prescription cannot be ascertained. Assuming, however, that the value of the antique cabinets taken were more than P12,000, then you at least have 15 years to file the case.

As to the trespassing case, we regret to inform you that the case may no longer be filed. Simple trespass to dwelling is punishable by aresto mayor which prescribes in five years. (Article 280 in relation to Sections 25 & 90, Id.) Considering that the crime occurred in 2006 or around nine years ago, your right to file the case has already prescribed.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

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

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

Applications for probation not automatically granted

Dear PAO,
Are applications for probation of an accused who was sentenced to an imprisonment automatically granted by the court? If granted, how long will the offender be placed on probation?
Nadia

Dear Nadia,
Probation is defined as a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer (Section 3(A), Presidential Decree (PD) 968). By probation, a qualified offender will not serve his sentence in jail, but will only be subjected to a community-based rehabilitation or reformation program.

Not all applications for probation, however, are automatically granted by the court. In determining whether an applicant may be granted probation, the court takes into consideration all the information relative to the character, antecedents, environment, mental and physical condition of the offender and available institutional and community resources. It shall deny the application for probation of a convicted offender if it finds that: 1) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; 2) there is an undue risk that during the period of probation the offender will commit another crime; or 3) probation will depreciate the seriousness of the offense committed (Section 8, PD 968).

In addition, the benefit of probation shall also not be granted to the following disqualified offenders: 1) those who have been sentenced to serve a maximum term of imprisonment of more than six (6) years; 2) those who are convicted of subversion or any crime against the national security or the public order; 3) those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than two hundred pesos; 4) those who have been once on probation under the provisions of this decree; and 5) those who are already serving sentence at the time the substantive provisions of this decree became applicable pursuant to Section 33 hereof (Section 9, Ibid.)

Regarding your second question, the period within which a person may be placed on probation shall depend on the term of imprisonment handed by the court. The period of probation for those who are sentenced to imprisonment of not more than one (1) year shall not exceed two (2) years and, in all other cases, the period shall not exceed six (6) years (Section 14, Id.)

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

Protesters who attack policemen face assault raps

Dear PAO, 
I am a police officer detailed somewhere in Metro Manila. One day, together with five other police officers, I was assigned to secure a certain private parking area that has been a frequent venue for rallies and protests without the necessary permits. We were ordered to maintain peace and order in the area, and in the event of a rally, maintain maximum tolerance.

In one instance, a group of around 10 people gathered at the entrance of the parking lot and insisted to enter. My fellow police officers and I calmly asked if they had a permit to use the parking lot for a protest rally, but they could not show any permit. They began being agitated and started to shout foul words at us, and began throwing materials at us such as their banners, rocks, even monobloc chairs.

Bystanders merely walked past us, but some offered help and were trying to pacify the unruly group. The scuffle ended with four of us police officers hurt. I would just like to know if we, police officers, can file any criminal case against them. If so, what particular case? 
PO2 Ramon

Dear PO2 Ramon,
Although the 1987 Constitution guarantees freedom of speech and freedom of expression to all persons, it is not an absolute right. Protest rallies may be done in designated freedom parks; otherwise, there is a need for a permit from the local government unit having jurisdiction over the place where the intended rally is to be held. In your case, the protesters did not have a permit and they were attempting to hold a protest rally in a private parking area. Therefore, you and your police officer companions had the duty to ensure and maintain peace and order. You were correct in standing your ground and exercising maximum tolerance.

As for the scuffle that ensued, the persons who threw things at you and the other police officers while engaged in the lawful performance of your duties could be charged with Direct Assault under Art 148 of the Revised Penal Code (RPC). The pertinent portions of which read:

“Any person or persons who, without a public uprising xxx xxx shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance xxx”

Under this provision of the RPC, those persons are liable for attacking you and the other police officers who were in the lawful performance of your official duties. As law enforcers, you and your companions are considered persons in authority. Hence, throwing things such as banners, rocks, monobloc chairs at police officers is clearly an attack on a person in authority.

On the other hand, it could be argued that the incident happened during a public apprising; and thus, exempting the persons from the crime of Direct Assault. It would then be up to the courts and the evidence presented whether or not there was a public apprising at that time that would exempt those involved from the crime of Direct Assault.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

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

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

After granting bail to Enrile, will Supreme Court do the same for Arroyo?

The Supreme Court has final authority on questions of law, including the Constitution. In the legal community, the Supreme Court’s pronouncement is law. And the gods of Padre Faura have spoken.

Associate Justice Lucas P. Bersamin declared that “Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial.” The Supreme Court ruled, therefore, that the fragile state of Sen. Juan Ponce Enrile’s health presented a compelling justification for his admission to bail.

Supreme Court Associate Justice Marvic Mario Victor F. Leonen vented in his dissenting opinion that the granting of bail to Sen. Enrile for humanitarian reason set a dangerous precedent.

The decision “will usher in an era of truly selective justice not based on clear legal provisions, but one that is unpredictable, partial and grounded on the presence or absence of human compassion,” wrote the most junior member of the Court.

Every court, including the Supreme Court itself, is now bound by that precedent. Bail will be granted if the poor health of the petitioner justifies it, even if not presented by the accused as the basis of his plea for provisional liberty. Sen. Enrile did not present his feeble health as argument for his release from detention.

However, those who expect human rights lawyers to swamp the courts with petition for bail for the hundreds of enfeebled septuagenarian and octogenarian languishing in penal colonies and city jails on the basis of the new law would be terribly disappointed. Justice Leonen said that the decision was ‘especially tailored’ for Enrile. I say it was “coutouriered” exclusively for former President Gloria Macapagal-Arroyo.

Take note of what Associate Justice Bersamin, who penned the decision, said of Sen. Enrile, “With his solid reputation in his public and his private lives, his long years of public service, and history’s judgment of him being at stake, he should be granted bail.” Only former president Gloria Arroyo among the many ailing lolos andlolas in prisons can be described similarly.

Sen. Enrile was confined for a year in a general hospital because his fragile health required continuous medical attention and care.

With the death of Andal S. Ampatuan, Sr. only Mrs. Arroyo, who has remained in custody in the Veterans Memorial Medical Center since December 2013, among the many aged and ill prisoners, is situated similarly.

Sometime in October 2010, retired Supreme Court Chief Justice Artemio V. Panganiban wrote in his Philippine Daily Inquirer column: “The sociological school of legal philosophy holds that to predict how case would be decided (by the Supreme Court), one must consider the personality of the magistrate and the various stimuli attendant to a case per this formula: personality times stimuli equals decision (P x S = D). The personality of a magistrate includes intrinsic qualities like upbringing, education, relationships, etc. Stimuli refer to how he/she responds to externals like public opinion, peer pressure, religious leaders, medical condition, appointing authority, appointment sponsor, close friends, etc.”

That observation strongly suggested that justices of the Supreme Court sometimes decide not only on the basis of an objective interpretation of the law and the established facts but on personal considerations as well. The suggestion led me to believe that some of the landmark decisions of the Supreme Court under former chief justice Renato C. Corona were prompted by personal considerations.

Renato Corona would not have been chosen Chief Justice of the Supreme Court if a provision of the Constitution had been observed. Section 15, Article VII of the 1987 Constitution prohibits the President from making any appointment two months before the presidential election up to the end of his/her term. The presidential election was held on May 10, 2010 and Pres. Arroyo’s term was to end on June 30, 2010.

President-elect Benigno S. C. Aquino III had made known he was not going to replace retired Chief Justice Reynato Puno with Mr. Corona. So, Pres. Arroyo appointed Mr. Corona, her former chief of staff, Chief Justice on May 12, 2010, in violation of the Constitution as the appointment was made within the prohibition period.

The same associate justices set aside the Constitution so that Diosdado Ignacio “Dado” M. Arroyo, son of Mrs. Arroyo, can have a district to represent. The representative of the old 2nd District of Camarines Sur before Mr. Arroyo wanted to be back in Congress as the district’s representative. The Arroyo-subservient Congress broke up the district into two, one for Mr. Arroyo and the other for the former representative, Rolando G. Andaya, Jr.

That act of Congress was questioned before the Supreme Court as there would be disproportionate representation of Camarines Sur in Congress in contravention of the provision of the Constitution on equal representation. However, the Court upheld Congress. So, the district formerly represented in Congress by one congressman is now represented by two whereas the two larger districts are represented by only one each.

The older brother of Dado, Juan Miguel “Mikey” M. Arroyo, also had to have a seat in Congress, his old seat having been taken by his mother. The sycophants of Mrs. Arroyo in the Commission on Elections allowed him to represent Ang Galing Pinoy, the party-list of tricycle drivers and security guards, in Congress. Some groups questioned before the Court the eligibility of millionaire Mr. Mikey Arroyo to represent tricycle drivers and security guards. The Court quickly dismissed the disqualification complaint, saying that the case was outside its jurisdiction.

But the same Corona Court moved swiftly to stop impeachment proceedings against Ombudsman Merceditas Gutierrez following her petition for certiorari and prohibition, when impeachment is well within the province of the House of Representatives.

In 2011, Mrs. Arroyo, who had been charged with electoral fraud, was under a hold departure order (HDO).

On Nov. 15 of the same year, the Corona Court issued a temporary restraining order (TRO) against the HDO. Those who voted in favor of the issuance of the TRO were Chief Justice Corona, Associate Justices Bersamin, Arturo D. Brion, Diosdado M. Peralta, Presbitero J. Velasco Jr., Jose P. Perez, Martin S. Villarama Jr., and. Roberto A. Abad, all appointees of Mrs. Arroyo to the Supreme Court. Mr. Abad retired last year.

According to some nonpartisan lawyers, Chief Justice Corona should have called an en banc session to hear the oral arguments against the TRO before issuing it and making it immediately executory. The undue and unusual haste with which the TRO was issued raised the suspicion that the appointees of Mrs. Arroyo to the Supreme Court were really giving her the chance to flee.

Those who voted in favor of the precedent-setting ruling to grant provisional liberty to the accused for humanitarian reason were Associate Justices Bersamin, Brion, Peralta, Velasco, Perez, and Teresita Leonardo-de Castro (also an appointee of Mrs. Arroyo). Associate Justice Villarama was on leave.

In our democratic system of government the enactment of laws rests with the duly elected representatives of the people, the members of Congress. But eight lawyers unelected by the people have in effect enacted a new law seemingly to benefit a person, Mrs. Arroyo, to whom they are all beholden.

Oscar P. Lagman, Jr. is a member of Manindigan!, a cause-oriented group that takes stands on national issues.

oplagman@yahoo.com

source:  Businessworld