Jardeleza to ban ‘tokhang’ house visits

Sisyphus’ Lament By: Oscar Franklin Tan

SINGAPORE — Justice Francis Jardeleza proclaimed a slam dunk theory to end “Project Tokhang” house visits during the second Supreme Court “tokhang” hearing last Nov. 28.
On deck were Free Legal Assistance Group led by Dean Jose Manuel “Chel” Diokno, and CenterLaw’s young lawyers led by Inquirer columnist Joel Butuyan. CenterLaw’s Gil Anthony Aquino and Cristina Antonio joined the bar in 2016 and 2015, almost 30 years after Diokno.

In the first hearing, Diokno attacked Command Memorandum Circular (CMC) 16-2016, claiming its terms “negate” and “neutralize” mean “kill.”

But his case collapsed within Senior Associate Justice Antonio Carpio’s first nine minutes of questions, including a standard freshman exam question on the right against unreasonable search that was answered wrong.

Only Jardeleza bolstered Diokno’s “top level” attack on CMC 16-2016’s wording, contrasted with Butuyan’s “ground level” attack on its implementation specifically in San Andres Bukid, Manila.

Jardeleza asked Diokno to recast his case per his suggestions. Innocuously, he asked Butuyan to argue the same, even if he did not formally attack CMC 16-2016. His clients were too scared to authorize this.

In the second hearing, Jardeleza repeated Butuyan’s argument that “house visitations of suspected drug personalities” violate the right against unreasonable search. Any consent to enter cannot be valid because it is made under threat of “immediate case buildup and negation” under CMC 16-2016 if entry is refused.

Solicitor General Jose Calida likened “tokhang” to “bayanihan,” where barangay officials join police. He refuted that police do not enter homes, make arrests or seize evidence; they merely talk with no coercion intended.

But Jardeleza countered this then triggers the right against self-incrimination and custodial investigation rights under Republic Act No. 7438, including the right to a lawyer and other “Miranda rights.”

These are not ordinary conversations because the person visited is already listed as a suspect, though there is no evidence to apply for a search or arrest warrant.

Calida parried that custodial investigation involves actually being brought into custody, not speaking with police at one’s own door.

Jardeleza cited Sec. 2(f) of RA 7438: “‘custodial investigation’ shall include the practice of issuing an ‘invitation’ to a person who is investigated.”

If police cannot invite one to the police station unless there is cause for arrest, he paralleled, neither should they be able to invite themselves to one’s home. “Tokhang” creates a coercive atmosphere such that the police station is practically transported to one’s home when several policemen knock on one’s door.

Jardeleza thus pronounced a “prima facie case” for stopping further “tokhang” house visits. This is a powerful argument because custodial rights are one area where the Constitution always favors the suspect, given the sheer imbalance relative to police.
Calida eventually asked to answer Jardeleza in a memorandum, a polite way of calling a time out.

Completing Jardeleza’s masterstroke, no one noticed how he transplanted Butuyan’s arguments to salvage Diokno’s case, when he curiously asked Butuyan to argue Diokno’s case in the previous hearing.

It was Butuyan who prominently cited custodial rights in his opening speech, and RA 7438 is raised in page 49 of Butuyan’s written petition but not cited in Diokno’s.
Justice Marvic Leonen spoke for one out of the second hearing’s three hours, injecting drama by asking Philippine National Police Chief Ronald “Bato” dela Rosa if he ever issued a kill order.

Before Calida spoke, Butuyan was grilled at length by Justices Presbitero Velasco Jr. and Alexander Gesmundo. The latter tried to trap him by arguing there is no penalty for police who conduct unauthorized searches.

Butuyan won the skirmish, correctly citing “violation of domicile,” Art. 128 of our Revised Penal Code. The trap was odd, though, as a circular’s invalidity is not the same issue as implementing policemen’s liability.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

source:  Inquirer

CenterLaw: Philippine National Police’s worst nightmare

By: Oscar Franklin Tan

His clients are too terrified to prosecute policemen who shot their relatives in supposed drug raids.
Lawyer Joel Butuyan outlined to the Supreme Court during the “Oplan Tokhang” hearing on Nov. 21 why prosecution was impossible. But his solution could become the blueprint for anti-Tokhang cases all over the country.

No evidence

Butuyan’s clients from the slums of San Andres Bukid, Manila, lack money to commute to the courthouse, much less prosecute.
 

And they lack evidence. Eyewitnesses to Tokhang deaths —the victims — are unavailable to testify.

Residents claim security cameras were shut off before several nighttime attacks. Police formed a perimeter in eight raids, shooing bystanders away with flashlights.

Before drug surrenderer Jack Lord was shot, his brother saw police order nearby stores to close shop.

When Ramon Rodriguez was shot, police guarding the door told relatives, “We were told to watch.” They heard gunshots and shouts of “That’s wrong!”

Police also detained relatives who witnessed or inquired about a death.

Reynaldo “JR” Javier Jr. was killed just as his wife went into labor. She and JR’s mother were detained, but she was allowed to leave to give birth the next day then returned to the jail.

And evidence appeared planted. Required forensic investigation was never done.

Writ of amparo

Butuyan leads Centerlaw, a team of young human rights lawyers founded in 2003. They solved the lack of evidence and unwillingness to prosecute by reframing the San Andres Bukid cases into a petition for a writ of amparo.

The writ of amparo is a special protection order created in 2007. A judge can issue it immediately because it orders protection, not to jail someone.

The strategy does not need the definitive evidence needed for a full trial. It can be enough for a lawyer to document survivors’ fear for their lives.

It is a brilliant, simple solution, a template easily copied in other cities.

Centerlaw’s test case was that of vegetable vendor Efren Morillo. Five armed men shot him and four garbage collectors as they played billiards near the Payatas dump in Quezon City on Aug. 21, 2016.

Morillo played dead and rolled into a ravine behind the house. He was eventually taken to the police station near Payatas.

He heard: “He’s tough. He was shot at 3 p.m. but he’s alive up to now.”

He was taken to East Avenue Medical Center at midnight.

One of the armed men later told reporters that he was Senior Insp. Emil Garcia and that his team just killed drug suspects and known robbers.

Police charged Morillo with assault.

Centerlaw took the rare chance to pilot its amparo strategy with an eyewitness who miraculously survived.

Gil Anthony Aquino and Cristina Antonio—admitted 2016 and 2015—transformed Morillo’s story into a heart-wrenching petition to the Supreme Court. (Aquino was captain of the UP Law team that won the Square Off TV debates in October 2014 and the Price Media Law Moot Court international competition in March 2015.)

The facts were so compelling that the police did not even contest the case. In just a week, the Supreme Court ordered them not to go within 1 kilometer of Morillo.

That was in January and it was a historic first win against Tokhang.

Expanded strategy

Centerlaw expanded its legal strategy by going to San Andres, which had 35 Tokhang deaths in 12 months. Lacking a miracle eyewitness, the lawyers painstakingly compiled affidavits from 39 residents and presented the killings as a systematic pattern.

Twenty-three of the 35 Tokhang deaths involved police. Twenty-four of the victims died during a “kill time”—between 10 p.m. and 3 a.m. Twenty-one died in their homes. Several of them were drug surrenderers or their relatives.

Centerlaw’s next innovation was a class suit. It argued that the right to security is a community right.

After Jerry Estreller Jr. and Randy Concordia were killed on Estrada Street, 19 relatives and neighbors slept on tables in a nearby market for three months.

When it rained, they slept in parked jeepneys. The neighborhood needs protection, not just the deceased, Butuyan argued.

He told the Supreme Court that police forced barangay captains to repudiate the suit and confront the lawyers.

Will the court grant?

Butuyan’s key challenge is that the Supreme Court does not try facts. Morillo’s win was an exception. The second case is more difficult.

But several justices appeared open. Justice Lucas Bersamin encouraged criminal charges so a trial court could take permanent jurisdiction over the case.

Senior Associate Justice Antonio Carpio spoke about command responsibility and crimes against humanity. Chief Justice Maria Lourdes Sereno and Justice Marvic Leonen suggested a privacy protection or habeas data order to remove Butuyan’s clients from drug lists.

Unlike Morillo’s win, the Supreme Court might forward the San Andres Bukid cases to Manila judges for review. But even this could inspire other young guns to replicate Centerlaw’s blueprint in suits all over the country.

One hopes police act to distinguish professionals from rogues in their own ranks. It is best for the country if they avoid their worst nightmare: a flood of human rights cases or, as Carpio has warned, a case in the International Criminal Court.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

source:  Philippine Daily Inquirer

One of the grossest injustices in recent memory

Reader, I am obsessed with the case of Sen. Leila de Lima and her persecution by President Duterte and his minions. You should be, too, because if it can happen to the senator, the more it can happen to any of us: victims of blatant abuse of authority, victims of persecution through prosecution. Truly, this is exactly what happened during the dictatorship of Ferdinand Marcos (although he often didn’t bother to prosecute). But wait a minute. We are not under a dictatorship now, are we? So why is it happening?

And, it is obvious, the outside world is worried, too. The 128-year-old International Parliamentary Union (IPU), composed of 176 member-countries and 11 associates (regional assemblies), has made representations that the senator should be released because the charges seem baseless (false and incredible witnesses—not the IPU’s language but mine—SCM), and if that does not happen, it will send someone to attend and observe her trial.


Is the IPU bullying us, as Communications Secretary Martin Andanar claims? Of course not. Its human rights committee makes a report every year to the assembly about human rights violations against legislators (members of parliament). Last year it reported 456 cases all over the world. So we are not being singled out.

Why is De Lima being persecuted? She has been in police custody for eight months and counting, for the crime of trading in illegal drugs. But the Information offered by the Department of Justice against her, and which was the basis of the judge’s warrant of arrest, did not include any of the essential elements of that crime. It failed to identify who the buyers were, who the sellers were, what the product was, and when the deliveries and the payments for them took place. There was even no presentation of the corpus delicti (in this case, the illegal drugs traded). And yet the judge issued the warrant of arrest (that’s gross abuse in my book). And worse, the Supreme Court, by a vote of 9-6, gave its imprimatur. (This act evoked memories of the Supreme Court in the 1970s giving its imprimatur—only 2 dissents out of 11.) Imprimatur to what? To the violation of De Lima’s constitutional right to know what she is charged with, and, as far as I am concerned, her right to justice.

Let’s talk about that decision of the high court for a while. On the face of it, all four Duterte appointees and five of the six Arroyo appointees voted as a majority. And all five of the Aquino appointees plus the one other Arroyo appointee constituted the minority. So on that basis, it seemed the high court voted along “party lines.”

Be that as it may, to remove any of those nasty suspicions, I will quote only from the opinion of the lone justice who crossed party lines: Antonio Carpio. One cannot accuse him of bias: He voted with Chief Justice Maria Lourdes Sereno (who had earlier nudged him out of the chief justice’s post) and against so many of his long-time colleagues in the high court. So what did Carpio’s dissent say?

In a word, his dissent was like a juggernaut that reduced to rubble any and all pretensions of the majority. I especially admired how he threw the ponente’s (and a lot of the majority’s) previous decisions in their faces—where they repeatedly ruled that the Information must allege all the essential elements of the offense charged. Yet in the De Lima case, this was all ignored.

According to Carpio, “what is apparent is that the crime alleged in the Information [against De Lima] is Direct Bribery.” So why do the authorities insist on the latter? Simple, really. Direct bribery is bailable, and illegal drug trading is not. Remember, Mr. Duterte wanted her to “rot in jail.” See what I mean?

Anyway, Carpio easily disposes of every substantive (very few) and procedural (very many) argument made by the majority. Says he: “Based on the Information itself, the accusation of illegal trade in drugs … is blatantly a pure invention. This Court, the last bulwark of democracy and liberty in the land, should never countenance such a fake charge. To allow the continued detention of petitioner under this Information is one of the grossest injustices ever perpetrated in recent memory in full view of the Filipino nation and the entire world.”

Free Leila de Lima!

source:  Inquirer

Supreme Court's 9-6 ruling keeps De Lima in jail

(5th UPDATE) The High Court rules the Sandiganbayan has no jurisdiction over De Lima. This means her case will not be handled by the Office of the Ombudsman, but by DOJ prosecutors who will defend their case against her before the Muntinlupa RTC.

MANILA, Philippines (5th UPDATE) – Voting 9-6, the Supreme Court (SC) en banc on Tuesday, October 10, junked the petition of Senator Leila de Lima, saying it is the Muntinlupa Regional Trial Court (RTC), rather than the anti-graft court Sandiganbayan, that has jurisdiction over the drug trade cases filed against her.

De Lima will remain in jail at the custodial center in Camp Crame.

SC Spokesman Theodore Te confirmed the ruling in a press conference on Tuesday.
De Lima petitioned the High Court to nullify the warrant of arrest issued against her by RTC Judge Juanita Guerrero, citing lack of jurisdiction. Included in her petition was a plea to the SC to stop Guerrero from conducting further proceedings on her drug case.
De Lima’s petition, in essence, wanted the SC to rule that the Department of Justice (DOJ) and RTC don’t have jurisdiction over her cases so that they can be dismissed and she can be set free.

In dismissing the senator's petition, the SC gave the 3 RTC branches of Muntinlupa handling her cases the go-signal to continue with their proceedings. (READ: EXPLAINER: Issues on jurisdiction in De Lima cases)

The 6 justices who voted for De Lima are Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio, Associate Justices Estela Perlas-Bernabe, Francis Jardeleza, Marvic Leonen, and Benjamin Caguioa.

The 9 justices who voted against De Lima are Associate Justices Presbitero Velasco Jr, Teresita Leonardo-De Castro, Diosdado Peralta, Lucas Bersamin, Mariano Del Castillo, Samuel Martires, Noel Tijam, Andres Reyes, and Alexander Gesmundo.

De Castro, Peralta, Martires and Gesmundo were all justices of the Sandiganbayan before their appointments to the SC. They ruled that the Sandiganbayan has no jurisdiction over De Lima.

The SC decision means that De Lima's case will not be handled by the Office of the Ombudsman, but by the DOJ state prosecutors who will prove their case against De Lima before the Muntinlupa RTC.

So far, Branches 204 and 205 have issued arrest warrants. The one issued in February by Branch 204 Judge Guerrero was the subject of De Lima's petition, saying the judge committed grave abuse of discretion.

The SC decision marks another episode in the battle of De Lima, staunchest critic of President Rodrigo Duterte. (READ: De Lima in jail: 'I never imagined Duterte would be this vindictive')

One of De Lima's counsels, former solicitor general Florin Hilbay, said that the ruling affects DOJ prosecutors who are the “most worried” and who will “now have to establish a case without evidence.”

Hilbay said on Twitter: “The path to justice for Leila De Lima is a steep incline, but her strong heart & unconquerable spirit will persist till justice is done.”

Solicitor General Jose Calida said the ruling only proves that Duterte’s war on drugs is not a war against the poor.

“The decision further negates the erroneous perception that the government’s war on drugs is waged only against the unlettered and the underprivileged,” Calida said in a statement.

Ruling
The SC sided with Calida’s argument that under the Dangerous Drugs Act, it is the RTC which has sole jurisdiction to try the charges under that law.

“The Court did not agree with petitioner’s characterization of the offense as Direct Bribery under the Revised Penal Code but maintained that the Information are sufficient to characterize the offense as a violation of the Dangerous Drugs Act,” the SC said in a summary sent by Te.
De Lima’s camp had insisted that she falls under the jurisdiction of the Sandiganbayan because she falls under the classification of a public official with Salary Grade 27 and higher, and that the alleged offense was committed in relation to her office.
The SC did not agree, saying, “The Sandiganbayan’s jurisdiction is limited to violations of the anti-graft laws and [does] not extend to violations of the drugs law.”
The Sandiganbayan, however, handles other cases of public officials apart from graft. In the case of the "Morong 43", for example, police and soldiers are accused of violating the rights of arrested or detained persons.

The SC also ruled that Judge Guerrero did not commit grave abuse of discretion in ordering De Lima’s arrest before resolving the Senator’s motion to quash. Judge Guerrero was just complying with the Rules of Court, which impose a 10-day period to evaluate evidence upon filing of charges, the High Court said.

The SC also said De Lima “violated the rule on hierarchy of courts and the prohibition against forum shopping.”

The SC also gave merit to Calida's argument that De Lima falsified the jurat or notarization of her pleading.

"The Court also found that the petition was not properly executed under oath and that the jurat (certification) was defective for not having subscribed to the same in the presence of the notary public," the SC said.

Criticized by the De Lima camp then as "legal nitpicking and hairsplitting," they admitted that the notarization was not done face to face. They said De Lima met with the notary public on the day of her arrest, but due to the circumstances, could not be in the presence of the lawyer when it was officially signed, also on the same day.

The ponente of the case is Justice Velasco, whose inhibition from the case De Lima sought, citing conflict of interest. It is unclear whether the en banc also resolved De Lima’s motion for inhibition, but Velasco had already voted against the senator.
Arrest
De Lima was arrested late February for allegedly receiving money from drug convicts inside Bilibid in exchange for their protection. The money, the convicts said, was intended to fund De Lima's senatorial bid in 2016. (READ: EXPLAINER: What is Leila de Lima being accused of?)

It was the conclusion of a series of sensational congressional inquiries where Bilibid convicts pointed to De Lima, as having been complicit in the proliferation of the drug trade inside the jails.

A panel of prosecutors from the Department of Justice (DOJ) handled the complaints, despite De Lima's contention that it is the Ombudsman who has jurisdiction over her.
De Lima first sought relief from the Court of Appeals but the CA refused to give her a Temporary Restraining Order (TRO). A week after, the DOJ proceeded to file the charges before the Muntinlupa RTC.

The DOJ also cleared 5 high-profile convicts in the De Lima cases, in order to use them as witnesses against the senator.

De Lima immediately filed a motion to quash. In her petition, De Lima said Judge Guerrero committed grave abuse of discretion because she issued a warrant of arrest without ruling on the motion to quash first.

The SC heard the De Lima petitions in 3 days of oral arguments in March. Hilbay argued for De Lima, while Calida argued for the government.

source:  Rappler

EXPLAINER: Issues on jurisdiction in De Lima cases

MANILA, Philippines – The main contention over the charges against Senator Leila de Lima is whether the Department of Justice (DOJ) as investigating body and the Muntinlupa Regional Trial Court (RTC) have jurisdiction.

This is what De Lima’s petition before the Supreme Court (SC) is all about – to dismiss the charges against her for lack of jurisdiction. In her petition, De Lima’s lawyers cited the pronouncement of Muntinlupa RTC Branch 204 Judge Juanita Guerrero during a hearing that she does not have jurisdiction over the detained senator yet.

"I have no jurisdiction yet over the persons of the accused, right? So how can I rule on your motion to quash?" said Guerrero, based on the official transcript of the hearing on February 24, the day De Lima was arrested and her camp filed a motion to quash before the same court.

2 kinds of jurisdiction

There are two kinds of jurisdiction: jurisdiction over the person and jurisdiction over the offense.

During the first round of oral arguments at the SC on March 14, former solicitor general Florin Hilbay, lead oralist for the De Lima camp, asserted that according to the Sandiganbayan Act of 2014, it is the anti-graft court which shall have the jurisdiction to try an appointed official like De Lima, who was justice secretary when she allegedly committed the crime. (READ: Hilbay: OSG case vs De Lima different from drug charges)

Hilbay said De Lima belongs to this category under the law: "Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher."

In his interpellation, Justice Diosdado Peralta pointed out the difference between the two kinds of jurisdiction, and said that the Sandiganbayan Act only has jurisdiction over De Lima as an accused.

“I think the Sandiganbayan law refers to jurisdiction over the accused. If you look at paragraph A and paragraph B, the Sandiganbayan has jurisdiction over the following: those who have salary grade of 27, and those who occupy the following positions. In paragraph B, it says: those who belong to category...those who receive salary grade 27 as provided by paragraph A in relation to office. It’s not actually jurisdiction over the offense, but jurisdiction over the person or the accused," Peralta said in a mix of English and Filipino.

“The Sandiganbayan law...there was an obvious legislative intent to cover as much ground as possible when you talk about offenses committed by public officials in relation to their office, that's why exclusive, original, that's why it says all, and then you have specification of the crimes, and then you have a catch all provision, all other offenses and felonies in relation to their office, that exhausts all possibilities, your honor,” Hilbay answered.

Is the crime related to office?

Peralta’s interpellation shifted to whether De Lima's alleged crime is related to her office then, the Department of Justice. 

Peralta used the example of Senator Panfilo “Ping” Lacson who was then accused, along with other policemen, of killing suspected members of the Kuratong Baleleng robbery gang. Lacson was then police chief superintendent and head of the Presidential Anti-Organized Crime Task Force (PAOCTF).

“The court says the RTC has jurisdiction over the crime of murder, although those who died allegedly were killed while the PNP officials were performing their duty, and there was an allegation of in relation to their office,” Peralta said.

Hilbay said De Lima could not be likened to Lacson in that case because the latter could still have committed the crime even if he wasn’t the police chief.

“The police officers who were accused in that case could have performed or done what they did without even having to pretend that they were public officials. in that case, they simply used their position as a cloak to perform what is otherwise murder. [In De Lima’s case] the allegations say the money was given for protection so that she can run for public office, they would not have allegedly given her money because they supported her campaign, she extorted, and the only way she could have extorted was because she was the secretary of justice,” Hilbay said.

Corruption charge or drug charge?

Justice Lucas Bersamin reminded Hilbay that to prove the Sandiganbayan has jurisdiction, he has to cite the specific contents in the 3 informations filed against De Lima that would say so. (READ: Explainer: What is Leila de Lima being accused of?)

Hilbay mentioned two phrases:

1. “By taking advantage of their position…”

2. “With the use of their power, position and authority, demand, solicit and extort money…”

Echoing the argument of Solicitor General Jose Calida, Bersamin cited Section 28 of the Comprehensive Dangerous Drugs Act which states that any government official found guilty of violating the law shall be held criminally liable with the maximum penalties provided for by the said law.

“This is hypothetical theory – if one is charged, a govenrment official is charged under these portions of the law on drugs, would you have these government officials charged and tried with the Sandiganbayan?” Bersamin asked Hilbay.

Hilbay said, “The basic question is whether or not this is a corruption charge or a real drug trade charge.”

In arguing his position, Hilbay said that the informations do not accuse De Lima of drug trade but of corruption.

“It wasn’t as if she talked to an inmate and said, 'I want to become part of the trade, I want to become part of the business, I want to enter into contract in the sale of drugs, now I’ll give you cellphone so you can do that.' No, she did not do that, as per the allegation, she was interested in running for the Senate, she needed money, and therefore she demanded and solicited. That is corruption,” Hilbay said. (READ: Leonen: De Lima relief from SC may set precedent)

Calida’s arguments

In his argument on jurisdiction, Calida cited Section 39 of RA 6425 or the Dangerous Drugs Act of 1972, which stated that the “circuit criminal court shall have exclusive original jurisdiction over all cases involving offenses punishable under this act.”

He also cited the Judiciary Act of 1948 which says that the courts of first instance shall have original jurisdiction in all criminal cases in which the penalty is imprisonment for more than 6 months or a fine of more than P200.

The circuit criminal court and the court of first instance are what we now know as the RTC.

Calida also cited Section 90 of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002, which says the “Supreme Court shall designate special courts from among the existing regional trial courts in each judicial region to exclusively try and hear cases involving violations of this act.”

Peralta used the same provision when he interpellated Hilbay.

“That is clear – the Supreme Court shall designate RTC as special court; that is the law. The law does not say the SC shall likewise designate MTC courts to try drug cases; that’s specific, it’s actually a directive to us,” Peralta said.

Hilbay argued that the power of the SC was only administrative, and that the determining law shall still be the Sandiganbayan law.

“If it happens that the RTC has jurisdiction, that’s only when Section 90 would kick in because that grants the SC the power to administratively designate RTCs that have jurisdiction to act exclusively on drugs cases,” Hilbay said.

Hilbay reiterated during round one of the oral arguments that even if there are disagreements due to different laws, the Sandiganbayan law shall prevail because it is the latest among the laws.

Calida has promised to throw “knock-out” punches when it’s his turn to argue before the SC.

Ahead of turn, however, Calida made public last week his manifestation that De Lima’s petitions should be dismissed by the High Court because she falsified the notarization on her affidavits.

Citing logbooks and testimonies from security officers at the Philippine National Police (PNP) Custodial Center, Calida said there was no evidence that De Lima personally appeared and swore before the notarizing lawyer, Maria Cecile C. Tresvalles-Cabalo, in relation to her affidavits on February 24, the day the senator was detained at Camp Crame.

De Lima’s lawyer, Alexander Padilla, said the execution of the affidavits happened at the headquarters of the Criminal Investigation and Detection Group (CIDG) where De Lima spent a couple of hours before she was taken to her detention cell.

The second round of the oral arguments will begin at 2 pm on Tuesday, March 21. – 

Rappler.com

BSP looking into Metrobank ‘internal fraud’

THE Bangko Sentral ng Pilipinas (BSP) is currently looking into internal lapses that led to a reported P900-million fraud case faced by Metropolitan Bank & Trust Co. (Metrobank), alongside criminal raps lodged against the bank official said to have crafted the scheme.

A newspaper report alleged that a vice president of the listed lender has engineered an internal fraud that has costed the bank at least P900 million by using loan proceeds to fake bank accounts which eventually ended up in her own account.

“We are looking into it already,” BSP Governor Nestor A. Espenilla, Jr. told reporters on Friday, noting that the regulator has already deployed a team to investigate the bank.

“We first have to establish facts. Our banks have their natural internal controls precisely to prevent these things from happening, so we will have to look into the adequacy of those controls if in fact a significant crime happened within the bank.”

In the report, Metrobank Assistant Vice President and Corporate Service Management head Maria Victoria S. Lopez is said to have crafted fake loan disbursements using the bank’s long-time client Universal Robina Corp. (URC) in tranches of P30 million.

National Bureau of Investigation (NBI) Director Dante A. Gierran said the Metrobank official has been in custody over charges of qualified theft, falsification, and violation of the General Banking Law.

The bank lodged a complaint before the NBI on July 13 after discovering “irregularities” in letters and checks filed by Ms. Lopez on the client’s behalf, which were later discovered to be fake.

Ms. Lopez, who has been working at the bank for 30 years and earning around P250,000 a month, was nabbed by authorities during an entrapment operation last Monday. She had ordered the debit of P2.25 million from the loan account, but the bank was able to confirm that the client was unaware of the supposed loan, which led to her arrest.

In a press briefing on Friday, NBI spokesman Ferdinand Lavin said the agency is conducting a follow through investigation on the alleged fraud.

“The biggest loss on this is the integrity of the banking system and the internal control system of the bank,” he said.

The NBI presented Ms. Lopez, who wore an orange shirt and covered her face with a scarf, during the briefing but did not make any statement.

METROBANK SHARES FALL
Shares in Metrobank dropped by 5.03% to P86.90 on Friday, coming from P91.50 apiece the previous day.

In a disclosure, Metrobank assured that the bank will continue with its day-to-day operations.

“The Bank is reinforcing its commitment to the highest standards of integrity and upholds the protection of its customers as its main priority. No customer has been affected in this incident,” the George S.K. Ty-owned lender told the local bourse.

“In the context of the Bank’s P1.9 trillion financial resources, rest assured that we continue to operate business as usual for the bank and our customers.”

Metrobank is the Philippines’ second-biggest bank in asset terms and controls P1.9 trillion worth of resources. It raked in P18.1 billion in net income last year, and P5.6 billion during the first three months of 2017.

In a separate statement, URC said it will keep its business deals with Metrobank despite the case, after bank president Fabian S. Dee assured that the conglomerate’s accounts would not be affected.

The Gokongwei-led firm said URC would not incur any losses while active bank accounts will be kept intact.

For its part, the Bankers Association of the Philippines said it is “confident” that Metrobank will be able to resolve the issue: “This appears to be an isolated incident and we are confident the facts will arise from the ongoing investigations being carried out by both Metrobank and the Bangko Sentral ng Pilipinas.”

source:  Businessworld

Legal Reference :  Act 3815 - Revised Penal Code 

Article 310.  Qualified Theft. 
The crime of theft shall be punished by the penalties next higher in degree than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is large cattle or consists of coconuts, or fish taken from a fishpond or fishery.

Aguirre suspends Manila prosecutor, names Duterte frat brod as OIC

Justice Secretary Vitaliano Aguirre II has suspended for 90 days Manila City Prosecutor Edward M. Togonon for not following his order to release three detainees arrested for drugs despite the dismissal of cases against them.

“He was suspended for not following the D.O. (Department Order) in not releasing three detainees despite the dismissal of the case against them,” Aguirre said in a text message Friday, adding that the suspension will be for 90 days.

He designated as officer-in-charge Atty. Alexander Ramos, currently the Witness Protection Program (WPP) Director and a fellow member of Lex Talionis Fraternity where both Aguirre and President Rodrigo Duterte are members.

On Jan. 4, 2017, Aguirre issued Department Circular No. 004 which provide that a respondent whose case for violation of the Comprehensive Dangerous Drugs even if it involves the maximum penalty of reclusion perpetua (20 years and 1 day to 40 years imprisonment) shall be immediately released from detention even if the case is pending for automatic review before the Department of Justice (DOJ).

Aguirre reversed the Department Circular (DC) No. 022 dated February 12, 2013 issued by former Justice Secretary Leila M. De Lima, with the subject “Guidelines on the Release of Respondents/Accused Pending Automatic Review of Dismissed Cases involving Republic Act No. 9165 (Comprehensive Dangerous Drugs Act).”

Under the said Circular, certain respondents when arrested shall remain in detention while their respective cases are under Automatic Review, despite dismissal of the preliminary investigation of cases against them.

Furthermore, DC No. 050 dated December 18, 2015 issued by then Sec. Alfredo Benjamin S. Caguioa amended the same in requiring that the respondent shall be immediately released from detention pending automatic review only if the case subject for the automatic review is not resolved within 30 days.

Aguirre said the two issuances made by De Lima and Caguioa are in violation of the people’s right to liberty. He thus issued, DC No. 004 dated January 4, 2017 which mandates that even with the automatic review, a respondent may be released from detention if initial probe orders the dismissal of case filed against him.

Incredible defenses

In some crimes, an accused may be exempted from criminal liability because of imbecility and his being prompted to act the way he did due to uncontrollable fear of an equal or greater injury. These cases of Cardo and Nardo explain the meaning of these exempting circumstances within the contemplation of the law (Article 12 of the Revised Penal Code).

One afternoon at about 1:15 pm, the accused Cardo, went inside the campus of a private school and approached Benjo, a 14-year-old high school student. He persuaded Benjo to go with him on the pretext that he would turn over the proceeds of the sale of a property to Benjo’s father. Cardo also persuaded Benjo to bring along his classmate, Kevin also 14 years old, so he will have a companion when they go home later. Kevin agreed as he and Benjo were best of friends in and out of school even if Benjo is the scion of a well to do family while Kevin is the son of a jeepney driver only.

The two boys were brought to a nipa hut in the middle of a fishpond to await a certain “Ka Berto,” another accused. Benjo and Kevin attempted to go home, but Cardo stopped them and told them that Ka Berto was already arriving and wanted them blindfolded with their feet tied. So Cardo tied their hands and feet with a wire rope. While the two protested, Cardo assured them that they will not be harmed.

–– ADVERTISEMENT ––

Later, the other accused Nardo came and checked if the two boys were securely tied after which Cardo played a tape demanding P3 million from Benjo’s parents in exchange for his release. Benjo was likewise made to record his own voice pleading his parents to pay the ransom demanded. Then Nardo carried Kevin to the river and kicked Benjo to go with them. At the river Cardo dragged Kevin by the neck towards the middle and left him to drown. After asking Nardo to look for the necklace of Kevin, they returned to the hut where Nardo stood guard over Benjo as Cardo went to sleep.

In the hut, Benjo managed to untie his feet and asked Nardo to remove the wire around his hands on the assurance that he would not escape and would just sleep. The following morning, when Cardo went to Benjo’s parents to deliver the tape recordings and while Nardo was busy cutting the grass near the river, Benjo escaped and proceeded to the house of Cardo where he called up his grandmother. Later he was fetched by his father and grandmother and they reported the kidnapping at the police station. Two days later, Kevin’s body was recovered at the river with both hands and feet still tied and his mouthed gagged.

After investigation, Cardo, Nardo and Ka Berto were charged with the crimes of kidnapping with murder and kidnapping for ransom. Only Cardo and Nardo were arrested and tried as “Ka Berto” remained at large. The lower court in a joint decision convicted them of both crimes charged and sentenced them to suffer the penalty of reclusion perpetua for each crime. Only Nardo appealed and insisted that he is an imbecile with a very low level of intelligence citing his act of cutting the grass when he should be guarding Benjo. He also averred that he merely acted under fear and duress as his co-accused Cardo poked a gun at him and threatened him with death if he will not follow his orders.

But the Supreme Court did not accept Nardo’s defense. According to the SC, imbecility is   a mental condition approaching that of insanity. An imbecile within the meaning of the Article 12 RPC, is one who must be completely deprived of reason or discernment and freedom of will at the time of committing the crime. He is one who, while advanced in age, has a mental development comparable to that of a child between two and seven years old. Nardo’s act of cutting grass rather than guarding his victim could hardly be indicative of imbecility. Rather, it may be considered as negligence but definitely not childishness or even that of one completely deprived of reason or discernment and freedom of the will.  In fact Nardo admitted on cross examination that he can tell what is right and what is wrong. So his feeblemindedness is not an exempting circumstance because he could distinguish between right and wrong.

Nardo’s claim that he was forced to do what he did on account of uncontrollable fear, duress or intimidation is belied by the fact that he had at least four chances to escape: (1) when Cardo brought Kevin to the middle of the river while he remained on the rice paddy; (2) when Cardo was sleeping in the nipa hut; (3) when Cardo asked him to look for the necklace of Kevin on the river bank; and when Cardo left him and Benjo to deliver the taped recorded ransom demand to Benjo’s family. By not availing of these chances to escape his allegation of fear and duress becomes incredible.

Nardo’s knowledge of what is right and wrong and his failure to escape shows that he also conspired with Cardo to commit the crime charged as can be deduced from his following acts: first, when he arrived, he immediately checked if the victims are securely tied; second when he carried Kevin to the river; and third when he kicked Benjo after ordering him to go to the river.

So Cardo and Nardo are guilty of kidnapping for ransom with respect to Benjo and should therefore be sentenced to reclusion perpetua. Considering however that Cardo and Nardo never intended to hold Kevin for ransom as he was the son of a jeepney driver, the crime committed by them against Kevin is only homicide. So their sentence should only be from 10 years and one day up to 18 years, 6 months and 1 day (People vs. Nunez and Cayetano, G.R. 112429-30, July 23, 1997).

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