Overdue process?

By: Artemio V. Panganiban / @inquirerdotnet

Philippine Daily Inquirer

No person shall be deprived of life, liberty or property without due process of law…” is the most basic right enshrined in the first section of our Constitution’s Bill of Rights. Deprivation is not necessarily unconstitutional. What is prohibited is deprivation without due process.

Illegal arrests and searches. Moreover, the second section of the Bill of Rights guarantees “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose.”

To deprive a person of this right—that is, to be able to arrest him/her, or to search his/her “body, houses, papers, and effects”—the arresting officer must first secure an arrest or search warrant from a judge.

In turn, to issue either or both warrants, the judge is required to personally determine “probable cause” by examining under oath the complainants (or the police officers) and the witnesses they may produce. The warrant must specify the place to be searched and the persons or things to be seized. It cannot be used to search any place or to seize any person or thing other than those specified therein.

My Oct. 6 column (“Dismal record in prosecuting drug cases”) explained the exceptions to the need for warrants, like those made in flagrante delicto and in “hot pursuit.”

Note that courts strictly construe these exceptions. Defects in the warrants, like where the judge did not personally examine the witnesses, or where the arresting officer did not have personal knowledge of the facts and depended merely on “surveillance operations,” make the arrest and/or search illegal.

Similarly, our Constitution grants suspects the so-called “Miranda rights” requiring the arresting officer to inform suspects of their rights to remain silent and to have competent and independent counsel; otherwise, the arrest and search would likewise be illegal.

Moreover, confessions extracted with “torture, force, violence, threat, intimidation, or any other means which vitiate the free will” would also be illegal.

In all these instances, the illegally obtained evidence, even if tending to prove guilt, would be inadmissible in evidence, and would thus result in the acquittal of the accused.

Libertarian pendulum. Why is the Constitution so protective of suspects and so strict on police officers? Because when it was crafted in 1987, the horrifying abuses during the martial law regime were still fresh. Our constitution drafters wanted iron-clad protection for the innocent, especially the poor and the marginalized.

However, the libertarian pendulum swung too much to the opposite direction, resulting in the timidity of the police, lest they be held liable administratively and criminally. The net result is the rise in criminality. Grafters, killers, rapists and drug lords misuse the liberality of the Constitution to evade liability for their crimes and misdeeds.

And even when police officers strictly observe constitutional rights, some prosecutors and judges, out of sheer ignorance, apathy, laziness, or corruption, fail the justice system. So, too, witnesses are bribed, lose their memory, or otherwise disappear. Many lawyers thrive in technicalities and delays, rather than in their sworn duty to do justice to everyone.

Extralegal solutions. The consequence is a general revulsion against democratic methods, overlooking that means are as important as ends. Due process is equated with costly suits, tiring delays, inexplicable technicalities, long-winded trials, interminable appeals, unwelcome acquittals and plain injustice.

In frustration, people tend to take matters into their own hands and turn to extralegal and extrajudicial shortcuts.

To solve this revulsion to “overdue process,” the police, the prosecutors, the lawyers and the judges will have to cooperate, think outside the box, moderate the pendulum swing and craft innovative ways to provide quality and speedy justice for all. There must be a way to safeguard our precious constitutional rights without the “over” in due process.

Comments to chiefjusticepanganiban@hotmail.com

Entrapment or instigation?

In catching a suspect, the police can validly resort to entrapment like in a buy bust operation. Sometimes however, the means used is no longer an entrapment but an instigation which may result in the acquittal of an accused. But when is there entrapment and when is there instigation? This case of Sheila explains the difference between the two methods.

Sheila is a resident of a Barangay in a Visayan City which is reputed to be its red light district. She is well known for pimping girls to customers. One of the girls who used to see her pimping girls is Daisy who is just 17 years old.

Daisy used to work as a house helper in another city nearby to help her father but later on transferred to the same city to look for her long time friend Ginny who is working in a disco club. She stayed with her cousin in the city then later on transferred to a boarding house until she finally located her friend Ginny. Upon Ginny’s invitation, Daisy also worked in said Club because she needed money in order to help her father. For a few weeks, Ginny provided customers to Daisy who was paid P200 to have sex with them plus an additional P500.00 as tip.

Later on, Ginny brought Daisy to the same barangay where Shiela resided telling her that there were more customers in that area. At that time a non-governmental organization (NGO) was conducting an operation to entrap persons in human trafficking with the help of the City Police. Thus a team of five police operatives was formed to assist the NGO. The team went to a motel and rented Rooms 12 and 13 which were adjacent to each other. Room 12 was designated for the transaction while Room 13 was the place where the other police operatives stayed. Then with PO1 Dario and PO1 Santos acting as decoys, pretending to be tour guides looking for girls and with marked money provided by the NGO, the team went to a street of the red light district where Sheila noticed them and called their attention by saying “Chicks mo dong” (Do you like girls, guys?).

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After a few minutes of conversation between Sheila and the two policemen who told her that the girls must be young because they have guests waiting at the hotel, Sheila told them to wait and she will get the girls. After the police decoys alerted their chief, Sheila returned with Daisy and another 17-year-old girl Lani. Sheila assured the policemen that the two girls were “good at sex” and told the policemen that their services would cost P500.00 each.

So PO1 Dario and Santos convinced Sheila to go with them at the motel and upon proceeding to Rm 24, gave her the marked money. As Sheila counted the money, the rest of the team proceeded to Rm 12, arrested Sheila and informed her of her constitutional rights. They confiscated the marked money as Daisy and Lani were brought to Rm 13 and placed in the custody of the NGO and the DSWD.

Sheila was charged with violation of R.A. 9208, Section 4 (a) qualified by Section 6 (a) otherwise known as the “Anti Trafficking in Persons Act of 2003” for hiring and/or recruiting the minors Daisy and Lani for purposes of prostitution and sexual exploitation by acting as their procurer for different customers for money, profit or any other consideration.”

At the trial Daisy and the police operatives testified reiterating the above events. For her part, Sheila denied being a pimp and asserted that she worked as a laundry woman and was only buying supper when she was stopped by two men on board a blue car who instigated her into committing the crime. In fact according to Sheila, Daisy admitted that she worked as a prostitute, so it was her decision to display herself to solicit customers.

But the Regional Trial Court (RTC) found her guilty beyond reasonable as charged and sentenced her to suffer imprisonment of twenty years and pay a fine of P1,000,000.00 This decision was affirmed by the Court of Appeals (CA) which even increased the penalty to life imprisonment and imposed an additional P150,000 moral damages.

On further appeal to the Supreme Court (SC), said decisions were affirmed even increasing the moral damages to P500,000 and imposing exemplary damages of P100,000.

The SC ruled that Shiela performed all the elements in the commission of trafficking in persons when she peddled Daisy and Lani and offered their services to the police decoys in exchange for money. The offense was also qualified because the trafficked persons were minors as they were below 18 years old. Even if the minor victim gives her consent, such consent is not given out of her own free will. The act of sexual intercourse need not have been consummated for the mere solicitation for sex and the handing over of the bust money of P1,000 already consummated the act.

There is no instigation by the police here because it was Shiela who commenced the transaction with PO1 Dario and Santos by calling their attention on whether they wanted girls for that evening, and when the officers responded, it was Shiela who told them to wait as she would fetch the girls. In instigation, the law officers conceive the commission of the crime and suggest to the accused who adopts the idea and carries it into execution. So there was a valid entrapment here the idea and the resolve to commit the crime comes from Shiela (People vs.Casio, G.R. 211465, December 3, 2014).

E-mail: attyjosesison@gmail.com

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

Dismal record in prosecuting drug cases

By: Artemio V. Panganiban / @inquirerdotnet

Philippine Daily Inquirer

Dismal is the record of past governments in prosecuting drug cases because the police failed to observe the constitutionally-mandated process in arresting the suspects and in obtaining the evidence.

Recent jurisprudence. The Supreme Court very recently issued two drug-related decisions, Sindac vs People (Oct. 3, 2016) and People vs Manago (Aug. 17, 2016), both penned by Justice Estela M. Perlas-Bernabe, acquitting the accused precisely because of the failure to observe the said process. As “the proverbial fruit of a poisonous tree,” illegally-obtained evidence cannot be used in court.

Usually, the evidence used in drug cases is the shabu or marijuana seized after a search of the body, personal effects, vehicle, or home of the suspect. Note, however, that under the Constitution, searches and seizures can be made only with a search warrant issued by a judge based on “probable cause.”

As one of the exceptions to this rule, a warrantless search may be made as an incident of a lawful arrest. The arrest should precede the search. The process cannot be reversed. Moreover, the evidence obtained in an unlawful search cannot justify the post facto arrest of the suspect.

Warrantless arrests. On the other hand, an arrest is lawful if made with an arrest warrant also issued by a judge and also on probable cause, or made under three exceptions allowed by the Rules of Court. 

Thus, warrantless arrests may be effected:

1) When the suspect is caught in flagrante delicto, that is, when the suspect executes an “overt act” indicating he/she “has just committed, is actually committing, or is attempting to commit a crime; and such overt act is done in the presence of or within the view of the arresting officer.” Here, the officer personally witnesses the commission of the crime. For instance, the officer sees with his very eyes the actual shooting of the victim by the suspect.

2) When done in “hot pursuit,” that is, when an offense had in fact just been committed, and the arresting officer had personal knowledge of facts indicating that the suspect had committed the offense. For instance, the officer sees the victim fall from a bullet wound without seeing who actually pulled the trigger; yet, he personally sees the suspect running away from the origin of the shot while holding a smoking gun. The officer can thus “pursue” and arrest the suspect without a warrant.

3) When the suspect is an escaped prisoner or detainee.

Q and A. Question: Suppose a suspect is arrested on the basis of reliable information gathered after a surveillance operation. After a bodily search, he was found to possess shabu. Can the evidence (shabu) be used to convict him of illegal possession of a prohibited drug?

Answer: No. According to the cited case of Sindac vs People, the arresting officer did not have personal knowledge of the facts. “Reliable information alone—even if it was the product of well-executed surveillance operations—is not sufficient to justify a warrantless arrest.” Since the evidence was illegally obtained, it is inadmissible in evidence. Thus, the Court acquitted the accused.

Question: Suppose an officer personally witnesses a robbery but fails to apprehend the suspect who flees in a car. Through an investigation and verification the next day, the officer traces the suspect riding the same car. Whereupon he intercepts the car, orders the suspect to disembark, searches the vehicle and finds a plastic sachet containing shabu. Can the shabu be used to convict the accused?

Answer: No. Per the cited case of People vs Manago, the investigation and verification yielded sufficient information that could have enabled the officer to secure a search warrant. Furthermore, the search was made before a lawful arrest was effected, thereby tainting the evidence (shabu) as illegally-obtained and inadmissible. Thus, the Court acquitted the accused.

Moral lesson: To improve the conviction rate, the police should study meticulously and follow strictly the constitutional process.

Comments to chiefjusticepanganiban@hotmail.com

SC reminds PNP anew: Follow rules on warrantless arrest

MANILA, Philippines (Philippines News Agency) — The Supreme Court (SC) reminded anew the Philippine National Police to comply with rules on warrantless arrest, particularly on drug suspects.

 

The court made the reiteration after it acquitted a drug convict when it found that his warrantless arrest and the search incidental to his arrest were “unreasonable and unlawful.”

 

In the 11-page decision penned by Justice Estela M. Perlas-Bernabe, the high court’s First Division granted the appeal of accused-appellant Gerrjan Manago to reverse and set aside the May 20, 2013 decision and Nov. 6, 2013 resolution of the Court of Appeals (CA).

 

The CA in the said decision affirmed the March 23, 2009 ruling of the Regional Trial Court (RTC) Branch 58 of Cebu City, finding Manago guilty beyond reasonable doubt of violating Section 11, Article II of RA 9165, the Comprehensive Dangerous Drugs Acts of 2002.

 

“In fine, Manago’s warrantless arrest, and the search incidental thereto, including that of his moving vehicle were all unreasonable and unlawful. In consequence, the shabu seized from him is rendered inadmissible in evidence pursuant to the exclusionary rule under Section 3 (2), Article III of the 1987 Constitution. Since the confiscated shabu is the very corpus delicti of the crime charged, Manago must necessarily be acquitted and exonerated from criminal liability,” the court held.

 

The court, however, said that one of the recognized exceptions to the needs of a warrant before a search may be effect is a search incidental to a lawful arrest. In this instance, the law requires that there first be a lawful arrest before a search can be made and “the process cannot be reversed.”

 

Under Section 5, Rule 113 of the Revised Rules of Criminal Procedure, the three instances when warrantless arrests may be lawfully effected are: (a) an arrest of a suspect in flagrante delicto (in the very act of); (b) an arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the perpetrator of a crime which had just been committed; and (c) an arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined during the pendency of his case or has escaped while being transferred from one confinement to another.

 

The court stressed that in warrantless arrests made pursuant to Sec. 5(b), “it is essential that the element of personal knowledge must be coupled with the element of immediacy; otherwise, the arrest may be nullified, and resultantly, the items yielded through the search incidental thereto will be rendered inadmissible in consonance with the exclusionary rule of the 1987 Constitution.”

 

The court held that while the element of personal knowledge under Sec. 5(b) was present, the police authorities, opting to conduct a “hot pursuit operation which — considering the lack of immediacy — unfortunately failed to meet the legal requirements therefor. Thus, there being no valid warrantless arrest under the “hot pursuit” doctrine, the CA erred in ruling that Manago was lawfully arrested.

 

“In view of the finding that there was no lawful arrest in this case, the CA likewise erred in ruling that the incidental search on Manago’s vehicle and body was valid. In fact, the said search was made even before he was arrested and thus, violated the cardinal rule on searches incidental to lawful arrests that there first be a lawful arrest before a search can be made,” the Court held.

 

The court underscored that “routine inspections do not give police officers carte blanche discretion to conduct warrantless searches in the absence of probable cause.”

 

Records reveal that in the evening of March 15, 2007, PO3 Antonio Din of the Philippine National Police (PNP) Mobile Patrol Group personally witnessed a robbery incident while he was waiting for his turn to have a haircut at Jonas Borces Beauty Parlor. After his brief shootout with the armed robbers, the latter fled using a motorcycle and a red Toyota Corolla. Through an investigation and verification by police authorities, they found out that the armed robbers were staying in Barangay Del Rio Pit-os; and traced the getaways vehicles to Manago. The next day, March 16, 2007, the police set up a checkpoint in Sitio Panagdait where the red Toyota Corolla being driven by Manago passed by and was intercepted by the police officers. The police then ordered Manago to disembark the car, and from there, proceeded to search the vehicle and the body of Manago, which yielded the plastic sachet containing shabu. Thereupon, they effected Manago’s arrest.

 

In this case, the police officers had already conducted a thorough investigation and verification proceedings, which yielded, among others: the identities of the robbery suspects; the place where they reside; and the ownership of the getaway vehicles used in the robbery. These pieces of information were already enough for said police officers to secure the necessary warrants to accost the robbery suspects. Consequently, there was no longer any exigent circumstance that would have justified the necessity of setting up a checkpoint for the purpose of searching the subject vehicle. Also, the checkpoint was arranged for the targeted arrest of Manago, who was already identified as the culprit of the robbery incident. In this regard, it cannot, therefore, be said that the checkpoint was meant to conduct a routinary and indiscriminate search of moving vehicles. Rather, it was used as a subterfuge to put into force the capture of the fleeing suspect.

 

In 2009, Manago was found by the Cebu City RTC guilty beyond reasonable doubt of possession of 0.3852 grams of shabu and sentenced him to suffer the penalty of imprisonment for a period of 12 years and one day, as minimum, to 15 years, as maximum, and to pay a P300,000 fine.

 

The case was elevated to the CA which affirmed Manago’s conviction, prompting the latter to further elevate the matter to the high court.

Supreme Court acquits convict found guilty of drug possession

THE SUPREME COURT (SC) has acquitted a convicted drug user, ruling his warrantless arrest and search as “unreasonable and unlawful.”

In an 11-page decision on Aug. 17, the First Division of the SC reversed the Court of Appeals’ (CA) May 20, 2013 decision affirming the March 23, 2009 decision of the Cebu City Regional Trial Court Branch 58 that found Gerrjan Manago as guilty beyond reasonable doubt for possession of 0.3852 grams of shabu.

The high court said the confiscated shabu should be rendered inadmissible in court as it was obtained through an unlawful search and seizure.

The case stemmed from a robbery-shootout on March 15, 2007 wherein armed robbers escaped in a motorcycle, as well as a red Toyota Corolla that was then traced to Mr. Manago.

The next day Mr. Manago, driving that vehicle, was stopped at a checkpoint in Sitio Panagdait, Cebu City, and told to step out of the car as police officers conducted a search that yielded the sachet of shabu.

The SC decision read in part: “In view of the finding that there was no lawful arrest in this case, the CA likewise erred in ruling that the incidental search on Manago’s vehicle and body was valid. In fact, the said search was made even before he was arrested and thus violated the cardinal rule on searches incidental to lawful arrests that there first be a lawful arrest before a search can be made.”

The Court said “routing inspections do not give police officers carte blanche (unconditional authority) to conduct warrantless searches in the absence of probable cause.”

“Since the confiscated shabu is very corpus delicti (concrete evidence) of the crime charged, Manago must necessarily be acquitted and exonerated from criminal liability,” the Court added.

The decision was penned by Justice Estela M. Perlas-Bernabe.

source:  Businessworld

No double jeopardy yet even if complaints filed only before ‘barangay’ officials

Dear PAO,
Last month, my father filed a complaint before barangay (village) authorities because of physical injuries he sustained in a fight with a neighbor. But he was not able to attend hearings on his complaint because he had to watch over my younger sister who was hospitalized. Besides, it was only last week that my father was able to obtain his medical certificate from the hospital where his injuries were treated. It says in the certificate that it will require him 10 to 15-day medication. He went to the village officials and was told that his complaint was not completely acted upon because it was only the neighbor whom he had fought with who showed up in the three hearings set by the barangay chairman.

My father is considering to refile his complaint but our neighbor said it cannot be done because there is already double jeopardy. Is that correct? Has the crime also prescribed? Please advise me on this matter.
Alyssa

Dear Alyssa,
The principle of double jeopardy provides a barrier to the filing of a second or subsequent complaint against a person who has already been convicted or acquitted of the same offense. This principle is expressly provided for under Section 21, Article III of the 1987 Philippine Constitution, which states that “(n)o person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by law or an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.”

It bears stressing, though, that all the elements of double jeopardy must be present in order for such barrier to attach, to wit: (a) that there has been a valid indictment, (b) such indictment was before a competent court, (c) that it was made after arraignment, (d) after a valid plea having been entered; and (e) that the case was dismissed or otherwise terminated without the express consent of the accused (Icasiano vs. Sandiganbayan, G.R. No. 95642, May 28, 1992).

In the situation that you have presented, we believe that there is no double jeopardy yet considering that the elements thereof are wanting. It is true that your father has filed a complaint against your neighbor but such was only filed before the barangay. While the barangay provides an avenue for parties to amicably settle their disputes and the complaint is well within the jurisdiction of the barangay, such is not considered as a “competent court.”

Corollary thereto, your father may refile his complaint before the barangay if conciliation proceedings concerning the complaint, which he filed last month, has been terminated because of his non-appearance. As mentioned and contrary to what your neighbor claims, there is no double jeopardy yet.

It is also important to note that the complaint may still be filed since the crime has not yet prescribed. Under the Revised Penal Code, the imposable penalty for the crime of less serious physical injuries is arresto mayor or imprisonment for one month and one day to six months. Crimes with such penalty prescribe in five years (Article 265 in relation to Articles 27 and 90, Ibid.). Considering that only a month has passed since the altercation between your father and your neighbor, it is well within the five-year prescriptive period. Hence, it may still be refiled before the barangay.

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

Victim of circumstances

This is another case of conviction based on circumstantial evidence. This is the case of Anton, a poor boy in his late teens who was forced to work early in life.

Anton works as house helper-gardener for the couple Nelson and Mila, a prominent family with big landholdings in a southern Luzon town. The couple has two sons: Martin also a teenager and Isidro a police major in the local PNP. The family is also related to Roman, a police patrolman and nephew of Mila who bears a grudge against the latter regarding a piece of land he is claiming.

One evening when Nelson was away and only Mila and Martin were in their house together with Anton who used to sleep there also, the door suddenly swung open as three men barged in and one of them hacked Mila at the nape with an axe. Horrified Anton scampered to safety in the kitchen and hid behind two jars as the two other men chased but failed to find him. Then they returned inside and turned to Martin standing beside his bed who was mercilessly hit by the same man who hacked Mila causing his instantaneous death.

Report of the incident reached the town’s PNP the next morning. So PO3 Lando and Capt Leo rushed to the crime scene and found the lifeless body of Mila who appeared to have been strangled and fatally wounded at the nape, as well as that of Martin, who likewise sustained wound on his head. On further investigation they also found an axe and a nylon cord believed to have been used in the killing. The house was also ransacked with some items apparently missing.

Also rushing to the scene was Patrolman Roman whose place was just near. From the crime scene he immediately proceeded to the police station where he obtained an order from the Station Commander to hunt for and apprehend Anton. The latter was seen and nabbed after alighting from a bus on his way to the Pier to board a boat. Seized from him were a cassette and a radio belonging to Martin.

After the post mortem examination by the municipal health officer confirming the cause of death due to hacking, stabbing, strangulation that happened the previous night, Anton was accused of robbery with homicide.

The prosecution presented evidence establishing the following circumstances pointing to Anton as the culprit: he was present at the crime scene as he used to sleep in their house while working as their gardener according to Nelson; he also had in his possession articles belonging to the victims at the time he was apprehended by Pat. Roman; he was seen fleeing from the crime scene and boarding a jeepney looking so perturbed and fearful; he sat at the rear and was always looking out until he alighted to ride a bus to the pier without even asking for his change in payment of the jeepney fare as testified by Cherry, niece of Mila who knew him by face and the jeepney owner Mang Kaloy; and he never reported the incident to anyone despite his being at the crime scene.

For his defense Anton pointed to Roman who had a grudge against the victims regarding a piece of land which he claimed belonged to him. It was Roman who swung the door and, without a word hacked Mila and Martin as his companions ransacked the house. He said he fled after the assailants left for fear of his life because he recognized them and would also kill him. He said he did not report the incident because Roman was also assigned at the police station. In fact he said that when he was arrested, Roman tortured him to admit the crime until he was rescued by Maj Isidro who knew him to be working for Mila.

But the lower court convicted Anton and sentenced him to reclusion perpetua as well as to indemnify the heirs of Mila and Martin in the total amount of P100,000. The court said that the circumstantial evidence presented by the prosecution when taken together led to the inescapable conclusion that Anton was indeed the author of the crime.

On appeal, the Supreme Court however reversed the decision and acquitted Anton. According to the SC, the mere presence of Anton at the crime scene cannot solely be interpreted to mean that he committed the crimes charged because it was not unusual that he was there as he was working there. Equally plausible is his explanation that it was Martin who placed the radio and cassette in his bag. His alleged flight from the crime scene looking so scared and his failure to report the gruesome incident was due to fear that the suspects who knew he witnessed the dastardly act would run after him. And his ability to pay his transportation fare do not conclusive demonstrate that the money were proceeds of the robbery. He was working as gardener and helper, so it is also possible that he had money of his own.

All told whatever apparent weakness in Anton’s defense is no reason to sustain his conviction because conviction of an accused rest on the strength of the prosecution’s evidence and not on the weakness of the defense. (People vs. Geron, G.R. 113788, October 17, 1997).

E-mail: attyjosesison@gmail.com

source:  Philippine Star

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

SC acquits Arroyo

IT’S official and final.

Because of weak evidence, former President and now Pampanga Rep. Gloria Macapagal-Arroyo was acquitted by the Supreme Court en banc on Tuesday of the crime of plunder in connection with the alleged misuse of P366 million in intelligence funds of the Philippine Charity Sweepstakes Office (PCSO).

As reported by The Manila Times two weeks ago, Arroyo secured an overwhelming majority of the high court justices, including three of six appointees of her nemesis, former President Benigno Aquino 3rd.

With a vote of 11 against 4, the criminal charge against Arroyo was dismissed by the high court via demurrer to evidence.

The Manila Times on Monday predicted that at least 10 votes would be cast in favor of Arroyo.

The 11 Justices who voted for Arroyo’s acquittal are Associate Justice Lucas Bersamin, the ponente or author of the decision, and Associate Justices Presbitero Velasco Jr., Teresita Leonardo-de Castro, Arturo Brion, Diosdado Peralta, Mariano del Castillo, Jose Perez, Jose Mendoza, Bienvenido Reyes, Estela Perlas-Bernabe and Francis Jardeleza.

Reyes, Perlas-Bernabe and Jardeleza are all appointees of Aquino, whose government kept Arroyo at the Veterans Memorial Medical Center since 2012.

Three other appointees of Aquino voted against Arroyo’s acquittal: Chief Justice Maria Lourdes Sereno and Associate Justices Marvic Leonen and Alfredo Benjamin Caguioa.
Senior Associate Justice Antonio Carpio, an Arroyo appointee, also dissented.

Court spokesman Theodore Te, who announced the results of the vote and read the dispositive portion of the ruling in a news conference, did not give other details.

Several Supreme Court justices who talked to The Manila Times on condition of anonymity said that the ruling means that Arroyo will be immediately released from her detention, after the en banc reversed the Sandiganbayan anti-graft court and granted her plea for demurrer to evidence.

The case cannot be re-filed by the Ombudsman under the principle of double jeopardy.
In effect, the ruling is final and immediately executory.

A demurrer to evidence case happens when the accused pleads for the dismissal of the charges after the prosecution has presented evidence and rested its case.

Arroyo no longer presented evidence before her trial at the Sandiganbayan, arguing that the prosecution, headed by Ombudsman Conchita Carpio-Morales, had insufficient evidence.

The court also voted 10 against 5 to acquit Arroyo’s co-accused, former PCSO official Benigno Aguas.

Justice Bernabe voted against the acquittal of Aguas through a separate concurring and dissenting opinion.

source:  Manila Times

JPE, 92, prevails over state challenge to his bail

The Supreme Court,voting 7-6-1, has denied with finality, for lack of merit the motion for reconsideration filed by the People of the Philippines from the SC’s decision questioning the grant of bail for the temporary liberty of Sen. Juan Ponce Enrile.

The court in its original decision voted 8-4 to  grant bail last August 18 to Enrile,who turned 92 years old last February.

In its original decision  two  SC justices, Diosdado Peralta and Del Castillo qualified their vote citing  the required  “humanitarian grounds.” 

In its resolution, the majority of the tribunal  stated that the people were not kept in the dark about nor were they denied a reasonable opportunity to rebut the instability of his wealth and his advanced age even if these were not raised in the motion for bail.

The court explained that through his omnibus motion dated June 10,2014 and his motion to fix bail dated July 7,2014, Enrile “manifested to the Sandiganbayan his currently frail health,and presented medical certificates to show that his physical condition required constant medical attention.”

The tribunal also cited that through his motion for reconsideration, Enrile “incor-porated the findings of the government physicians to establish the present state of his health.”

On its part, the court also noted that the anti-graft court “solicited the medical opinions of the relevant doctors from the Philippine General Hospital.”

The tribunal also denied there was a preferential treatment accorded to Enrile because he was a senator.

“(T)he court did not grant his (Enrile) provisional liberty because he was a sitting senator of the republic. It did so because there were proper bases—legal as well as factual—for the favorable consideration and treatment of his plea for provisional liberty on bail.”
Those who voted with the ponente , Justice Lucas Bersamin, to deny the motion for reconsideration were Justices Presbitero J. Velasco, Leonardo De Castro,Arturo Brion, Jose Perez and Bienvenido Reyes.Those who joined the dissent by Associate Justice Marvic Leonen were Chief Justice Lourdes Sereno, and Justices Antonio Carpio, Mariano del Castillo, Estela Perlas-Bernabe and Benjamin Caguioa. Justice Francisco Jardeleza took no part and Associate Justice Jose Mendoza is on leave.

Enrile earlier filed a petition for certiorari to assail and annul the resolutions dated July 14, 20142 and August 8, 20143 issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238, where he has been charged with plunder along with several others. Enrile insists that the resolutions, which respectively denied his Motion To Fix Bail and his Motion For Reconsideration, were issued with grave abuse of discretion amounting to lack or excess of jurisdiction, the website of chanrobleslaw quoted the SC’s earlier ruling.

It stated in coming up with antecedents that on June 5, 2014, the Office of the Ombudsman charged Enrile and several others with plunder in the Sandiganbayan on the basis of their purported involvement in the diversion and misuse of appropriations under the Priority Development Assistance Fund (PDAF).

 On June 10, 2014 and June 16, 2014, Enrile respectively filed his Omnibus Motion and Supplemental Opposition,praying, among others, that he be allowed to post bail should probable cause be found against him. The motions were heard by the Sandiganbayan after the Prosecution filed its Consolidated Opposition.7

On July 3, 2014, the Sandiganbayan issued its resolution denying Enrile’s motion, particularly on the matter of bail, on the ground of its prematurity, considering that Enrile had not yet then voluntarily surrendered or been placed under the custody of the law.
The Sandiganbayan ordered the arrest of Enrile  and voluntarily surrendered to Director Benjamin Magalong of the Criminal Investigation and Detection Group (CIDG) in Camp Crame, Quezon City, and was later on confined at the Philippine National Police (PNP) General Hospital following his medical examination.

Enrile argued that he should be allowed to post bail because: (a) the Prosecution had not yet established that the evidence of his guilt was strong; (b) although he was charged with plunder, the penalty as to him would only be reclusion temporal, not reclusion perpetua; and (c) he was not a flight risk, and his age and physical condition must further be seriously considered.

By July 14, 2014, the Sandiganbayan issued its first assailed resolution denying Enrile’s Motion to Fix Bail, saying that the it  is only after the prosecution shall have presented its evidence and the Court shall have made a determination that the evidence of guilt is not strong against accused Enrile can he demand bail as a matter of right. Then and only then will the Court be duty-bound to fix the amount of his bail.

The court added that  no such determination had been made by the Court and that Enrile has not filed an application for bail. Necessarily, no bail hearing can even commence. It is thus exceedingly premature for accused Enrile to ask the Court to fix his bail.

The Sadiganbayan ruling also said that Enrile’s argument was that the Court should grant him bail because while he is charged with plunder, “the maximum penalty that may be possibly imposed on him is reclusion temporal, not reclusion perpetua.” based on Section 2 of R.A. No. 7080, as amended, and on the allegation that he is over seventy (70) years old and that he voluntarily surrendered. “Accordingly, it may be said that the crime charged against Enrile is not punishable by reclusion perpetua, and thus bailable.”
But stated that the argument has no merit.

source:  The Daily Tribune

The death penalty and state monopoly of violence

I WAS developing a column on “due process of law,” built around the prizefight being promoted (by the Inquirer) between the fiscalizer (Sen. Leila de Lima) and The Punisher (President Rodrigo Duterte), when I realized that the boxing imagery would cheapen the more fundamental issues involved in the depressing spectacle of state-sanctioned killings in the country today.

I thought it would be more useful if I examined instead the underlying clash between the right of criminal suspects to due process and the right of society to protect itself and its members.

While doing research on this weighty subject, I was startled to find strong and persuasive literature in support of both sides.

Daniel Webster’s noble summation, “Due process of law is that which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,” stands out as a banner for due process, in addition to the Bill of Rights in the Constitution.

On the other side, there is also much persuasive literature and equally explicit constitutional provisions that argue eloquently for the assertion of state responsibility to suppress the lawless.

Conventional thinking presumes that this debate was settled long ago in favor of the rights of suspects to due process over the rights of society to protect itself.

The advent of Duterte is a reminder that the debate is far from settled. There is a strong current of opinion in this country in favor of a hard-line policy against crime, especially the illegal drugs trade.

Duterte conducting a class on public policy
I think what is happening is this: President Duterte is conducting a class in public policy in which we the citizens are the students.

The subject is not the illegal drugs trade, but two critical and related topics:

1. The moral argument or rationale for capital punishment and the execution of criminals.

2. The state’s monopoly of violence, which seeks to crush lawless elements (organized crime, terrorism, insurgency) in the country.

These are fields of study and research in political science, criminology and police science, and sociology.

To take the topics in sequence, this is what DU30 appears to be telling us.

Why the death penalty is necessary
Like other government executives before him, Duterte believes that the death penalty “affirms life.” By failing to execute murderers or stop drug lords, we signal a lessened regard for the value of the lives of victims. People who oppose the death penalty are like the neighbors of a teenage murder victim, who heard her cries for help but did nothing. They are like the neighbors who looked away while the drug pusher plied their ugly trade and ruined the lives of people.

This is the standard “moral defense” of death as punishment. Even if executions don’t deter violent crime or the drugs trade any more effectively than imprisonment, the death penalty is still required as the only means society has of doing justice in response to the worst of crimes.

One former mayor of New York City, Edward Koch, fully endorses this view of the death penalty. He has authored a famous article, “Death and justice: How capital punishment affirms life,” which lays out his argument cogently and persuasively.

He concluded the article with these words: “The death of anyone—even a convicted killer—diminishes us all. But we are diminished even more by a justice system that fails to function. It is an illusion to let ourselves believe that doing away with capital punishment moves the murderer’s deed from our conscience. The rights of society are paramount…

“It is hard to imagine anything worse than being murdered while neighbors do nothing. But something worse exists. When those same neighbors shrink back from justly punishing the murderer, the victim dies twice.”

Duterte’s thinking with respect to illegal drugs is similar to this. He shares the frustration and anger of people who see that the Aquino government did nothing to combat the drug menace. So what if the death penalty doesn’t work as a deterrent? At least it gives citizens the satisfaction of knowing that we got one or two of the sons of bitches.

State monopoly of violence
The other powerful argument focuses on the state’s monopoly of legitimate physical force in society.

State monopoly of violence is the concept that the state alone has the right to use or authorize the use of physical force. It is widely regarded as a defining characteristic of the modern state.

In his lecture “Politics as a Vocation” (1918), the German sociologist Max Weber defines the state as a “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”

The concept does not imply that the state is the only actor actually using violence but, rather, that it is the only actor that can legitimately authorize its use. The state can grant another actor the right to use violence without losing its monopoly, as long as it remains the only source of the right to use violence.

The monopoly of the legitimate use of physical force, also known as the monopoly on violence, is a core concept of modern public law.

This monopoly is limited to a certain geographical area. A necessary condition of statehood is the retention of such a monopoly.

De Lima vs Duterte
Because government has failed miserably to solve the great problems of national life, Duterte is taking us back to the basics of governance to find the wellsprings for effective government.

In law enforcement, his government is searching for the right policy mix that will enable it to overcome the threat posed by organized crime, repel the threat of Islamist terrorism, and negotiate lasting peace with insurgents.

At the moment, the public eye is riveted more on the responsibility of government than on the rights of criminal suspects.

The safety of society comes first. The court process can wait. This is one big reason why the death toll is high and mounting.

The balance will tilt when Congress debates the issue and conducts its promised inquiries into the killings.

“I am watching you,” Sen. De Lima has warned the President.

No doubt, the President is watching her in turn.

This is going to be one hell of a prizefight, when Sen. Manny Pacquiao also gets into the ring.

yenmakabenta@yahoo.com

source:  Manila Times

Aquino, Abad charged over DAP

Various groups charged former president Benigno Aquino 3rd and former Budget chief Florencio Abad for technical malversation on Friday, making good on their vow to bring the two to court over the implementation of the controversial Disbursement Acceleration Program (DAP).

In a 26-page complaint filed before the Ombudsman, groups led by the Volunteers Against Crime and Corruption, Bayan Muna and Gabriela argued that the DAP—supposedly an economic stimulus program that allowed agencies under the executive branch to declare their unspent appropriations as savings anytime and realign the funding with the previous administration’s pet projects including those of lawmakers—was a clear mismanagement of public funds.

The Supreme Court declared the DAP illegal in July 2014 and affirmed its ruling in February 2015 on the grounds that the Constitution does not allow agencies to declare savings at any time and transfer the money to another branch of government.

Former deputy presidential spokesperson Abigail Valte said the complaint was not surprising.

“It is clearly part of their continuing harassment of a president who refused to be cowed by their chest-beating during his entire term,” she said.

The high tribunal left open the possibility of the “authors” of DAP being held liable for malversation of funds.

“The DAP was nothing more than presidential pork taken from forced savings then realigned for pet projects of the President. It was presidential pork used to entice lawmakers to impeach then convict former chief justice Renato Corona,” Bayan Muna party-list Rep. Carlos Zarate said.

Corona, who succumbed to cardiac arrest in April, was convicted by the Senate impeachment court of betrayal of public trust and culpable violation of the Constitution for supposedly hiding his wealth in his statements of assets and liabilities from 2002 to 2012.

To bolster their claims, the complainants cited a memorandum sent by Abad on October 12, 2011 to then President Aquino stating: “Mr. President, this is to formally confirm your approval of the Disbursement Acceleration Program totaling P72.11 billion. We are already working with all the agencies concerned for the immediate execution of the projects therein.”

This memorandum was followed by another memorandum for the President dated December 12, 2011 requesting omnibus authority to consolidate savings and unutilized balances for fiscal year 2011.

Identical requests for authority to pool savings and to fund projects were also contained in various other memoranda from Abad dated June 25, 2012, September 4, 2012, December 19, 2012, May 20, 2013 and September 25, 2013.

Then President Aquino approved all the requests, withholding approval only on proposed projects contained in the June 25, 2012 memorandum, as shown by his marginal note that indicated that the proposed projects should still be “subject to further discussions.”

The Supreme Court ruling against the DAP pointed out that unreleased appropriations and withdrawn and unobligated allotments under the DAP were not savings, and the use of such appropriations contravened Section 25(5), Article VI of the 1987 Constitution.

Aside from technical malversation, Aquino and Abad were also accused of usurpation of legislative powers as well as graft and corruption.

But for Citizens’ Battle Against Corruption party-list Rep. Sherwin Tugna, the charges against Aquino and Abad would not prosper because the same Supreme Court ruling that found DAP illegal also stated that the President acted with good intentions.

“The virtue of the statement made by the Supreme Court in the DAP case where the SC [Supreme Court] said the executive department acted in good faith… that is a strong defense that the former President can anchor on,” Tugna, a lawyer, said.

The complainants, however, countered that good faith was not an excuse.

“We do not doubt the existence of the presumptions of ‘good faith’ or ‘regular performance of official duty,’ yet these presumptions are disputable and may be contradicted and overcome by other [pieces of] evidence,” they said.

“Many civil actions are oriented toward overcoming any number of these presumptions, and a cause of action can certainly be geared toward such effect. The very purpose of trial is to allow a party to present evidence to overcome the disputable presumptions involved,” the complainants added.

source:  Manila Times

When to file charges for kidnapping and failure to return a minor

Dear PAO,
My friend is a single mother who has a 9-year-old son. She went to Cebu last month for a seminar. Since her parents are both really old and her son’s father abandoned them a long time ago, she opted to leave her son with her former officemate, because the latter offered to look after her son while she was away. They agreed that my friend will fetch his son from her house upon her return from the seminar.

When my friend came back, she immediately contacted her former officemate who told her that she will bring her son to her work the next day. Unfortunately, her former officemate did not show up. My friend went to her house but she was not there. She again contacted her, but the latter was unwilling to return the child and kept on giving so many excuses.

My friend is now contemplating of filing a complaint against her former officemate. Some people advised her to file a complaint for kidnapping and serious illegal detention. Do you think this is correct? Please advise.
Libby

Dear Libby,
The crime of kidnapping and serious illegal detention is one of the crimes against liberty. It is committed when any private individual kidnaps or detains another, or in any other manner deprives him of his liberty, under any of the following circumstances: (1) If the kidnapping or detention shall have lasted more than three days; (2) If it shall have been committed simulating public authority; (3) If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made; or (4) If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer (Article 267, Revised Penal Code).

In order to hold a person criminally responsible under Article 267 of the penal code, it is imperative to prove that he has taken and has detained another and such act of taking and detention be unlawful or illegal. If, for instance, it cannot be clearly shown that the taking is unlawful, then it cannot be said that the crime of kidnapping is committed.

In the situation you have presented, there is no clear showing that your friend’s son was unlawfully taken from her, for which reason, we cannot recommend the filing of a complaint for kidnapping and serious illegal detention under Article 267 of the same law.

On the contrary, you mentioned that your friend entrusted her son with her former officemate while she was away for a seminar, only that the latter failed and is now seemingly refusing to return the child despite several demands. In that case, we believe that the more appropriate complaint to file is kidnapping and failure to return a minor because Article 270 of the Revised Penal Code specifically provides, “The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians.” The case of People of the Philippines vs. Marquez (G.R. No. 181440, April 13, 2011) may serve as a guiding principle:

“x x x This court, in elucidating on the elements of Article 270, stated that while one of the essential elements of this crime is that the offender was entrusted with the custody of the minor, what is actually being punished is not the kidnapping but the deliberate failure of that person to restore the minor to his parents or guardians. As the penalty for such an offense is so severe, the court further explained what “deliberate” as used in Article 270 means: Indeed, the word deliberate as used in Article 270 of the Revised Penal Code must imply something more than mere negligence–it must be premeditated, headstrong, foolishly daring or intentionally and maliciously wrong. x x x”

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