No violation of press freedom

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

Press freedom has been a hot topic for several days now. It all started with the arrest of Maria Ressa, one of the founders and the incumbent chief executive officer of Rappler, a modern and unique company that goes beyond journalism by using “all possibilities that technology now makes possible” (Rappler.com).

Ressa and another Rappler officer, Reynaldo Santos, were charged with violation of Republic Act 10175 or the Cybercrime Law by businessman Wilfredo Keng based on an article posted way back in May 2012 linking him to human trafficking and drug smuggling. In said article, Rappler also reported that he was the owner of a black Chevrolet Suburban being allegedly used by then Chief Justice Renato Corona allegedly because one of Keng’s companies had a pending case in the lower court. They were charged with a crime legally denominated as “Cyber Libel”  due to the posting of said article.

Apparently, Ressa is exploiting said case as a violation of the freedom of the press guaranteed by our Constitution more specifically Section 4, Article III which provides that: “No law shall be passed abridging the freedom of speech, of expression, or of the press xxx”.  “Speech”, “expression” and “press” consist of every form of expression whether oral, written, tape or disc recorded including movies, wearing  of an armband as a symbol of protest and peaceful picketing (Bernas, The 1987 Constitutional  Reviewer-Primer p. 62).

Pursuant to the afore-quoted vonstitutional provision, prior restraint and subsequent punishment is prohibited. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. This prohibition was due to attempts to control the press by requiring licenses and permits to publish, judicial injunction against publication, movie censorship, license taxes measured by gross receipts in advertising business of any newspaper or flat license fees for selling religious books (Idem, p.62). Subsequent punishment is also prohibited because it has the effect of unduly curtailing expression. As Fr. Bernas wrote, “if the prohibition consists only of prior restraint, freedom of expression would be a mockery and a delusion (Idem p.64)”.

As held in Salonga vs. Pano, 134 SCRA 438, freedom of expression ranks higher than property in the hierarchy of constitutional rights. So, the norms for the regulation of expression place more stringent limits on State action by setting standards for allowable subsequent punishment of expression. These standards are the dangerous tendency, clear and present danger and balancing of interest rules.

Under the dangerous tendency rule, free speech may be curtailed or punished if there is a rational connection between the speech and the evil apprehended. An example here is the remark made by a citizen in a political discussion at a town hall as follows: “And the Filipinos like myself, must use bolos for cutting off the head of US Governor General Leonard Wood because he recommended a bad thing for the Philippines.” This citizen was prosecuted and convicted for the crime of sedition because the court found in such speech a “seditious tendency” which could easily produce dissatisfaction among the people and  state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws” (People vs Perez, 45 Phil.599).

The second standard, which is the dangerous tendency rule, was explained in a US case (Schenck vs. United States, U.S.47) as follows: “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Thus “an attempt to overthrow the government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is sufficient for Congress to prevent (Dennis vs. United States, 341 U.S. 494).
The third standard or the “balancing of interest” rule rests on the basis that free speech or expression or freedom of the press are not absolute and may be abridged to some extent to serve appropriate and important interest (Gonzales vs. Comelec, 27, SCRA, 835). An example here is Republic Act (RA) 4880 which prohibits among other things too early political nomination of political candidates and limits the period of political activity (Gonzales vs. Comelec, Idem). Thus the Comelec has the power to regulate time in broadcast media and space in the papers because it will not violate the freedom of expression under the balancing of interest test (UNIDO vs. Comelec 104 SCRA 17).

In Ressa’s case, the crime charged is libel in cyber space. Libel is defined by the Revised Penal Code as “a public and malicious imputation of a crime, or of a vice or a defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause dishonor, discredit or contempt of a natural or juridical person or to blacken the memory of one who is dead” (Article 353). Clearly such crime is not protected by the Constitution under the freedom of speech and of the press. They are not “essential part of any exposition of ideas, and are of such slight social value…such that any benefit derived from them is clearly outweighed by the social interests to preserve order and morality” (Chaplinsky vs. New Hampshire 3125 U.S. 572).

Based on the foregoing laws, rules and decision, the case of Ressa is not a violation of the freedom of the press. In fact she has been afforded the right to be heard and present her defense before the case was filed in Court because there is probable cause to prosecute her. The only problem here is the timing of the service of the warrant of arrest which she is now exploiting and blowing out of proportion. Her case would be a violation of press freedom only if, after trial, she would be convicted even there is no proof beyond reasonable doubt about her guilt.

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Email: attyjosesison@gmail.com

Grave Threat on "putang ina mo, papatayin kita"

FACTS
After the trial, petitioner was convicted of the crime charged for uttering the words: "Putang-ina mo Peejay, mag-iingat ka sa akin, papatayin kita." 

RULING
With regard to the argument of petitioner that the uttered words do not constitute the crime of Grave Threats the same cannot be sustained. As correctly pointed out by the Court of Appeals, all the elements of the crime were established by the prosecution. 

1. Petitioner threatened complainant with the infliction of a crime upon his person. 
2. The threat was made without petitioner attaining his purpose. 
3. Lastly, the threat was not subject to a condition. 

source:
ANTONIO MILITAR vs. PEOPLE OF THE PHILIPPINES.
G.R. No. 138281. July 12, 1999
First Division  

Grave Threats, 3 Counts

The Facts

As punong barangay of Mampas, Bacong, Negros Oriental, petitioner Santiago Paera (petitioner) allocated his constituents use of communal water coming from a communal tank by limiting distribution to the residents of Mampas, Bacong. The tank sits on a land located in the neighboring barangay of Mampas, Valencia and owned by complainant Vicente Darong (Vicente), father of complainant Indalecio Darong (Indalecio). Despite petitioners scheme, Indalecio continued drawing water from the tank. On 7 April 1999, petitioner reminded Indalecio of the water distribution scheme and cut Indalecios access.

The following day, petitioner inspected the tank after constituents complained of water supply interruption. Petitioner discovered a tap from the main line which he promptly disconnected. To stem the flow of water from the ensuing leak, petitioner, using a borrowed bolo, fashioned a wooden plug. It was at this point when Indalecio arrived. What happened next is contested by the parties.

According to the prosecution, petitioner, without any warning, picked-up his bolo and charged towards Indalecio, shouting Patyon tikaw! (I will kill you!). Indalecio ran for safety, passing along the way his wife, Diosetea Darong (Diosetea) who had followed him to the water tank. Upon seeing petitioner, Diosetea inquired what was the matter. Instead of replying, petitioner shouted Wala koy gipili, bisag babaye ka, patyon tikaw! (I dont spare anyone, even if you are a woman, I will kill you!). Diosetea similarly scampered and sought refuge in the nearby house of a relative. Unable to pursue Diosetea, petitioner turned his attention back to Indalecio. As petitioner chased Indalecio, he passed Vicente, and, recognizing the latter, repeatedly thrust his bolo towards him, shouting Bisag gulang ka, buk-on nako imo ulo! (Even if you are old, I will crack open your skull!).

 
RULING

 Petitioner Liable for Three Counts of Grave Threats. xxx Similarly, petitioners intent to threaten Indalecio, Diosetea, and Vicente with bodily harm arose only when he chanced upon each of his victims.

Article 282 of the RPC holds liable for Grave Threats any person who shall threaten another with the infliction upon the person x x x of the latter or his family of any wrong amounting to a crime[.] This felony is consummated as soon as the threats come to the knowledge of the person threatened.¹²

Applying these parameters, it is clear that petitioners threat to kill Indalecio and Diosetea and crack open Vicentes skull are wrongs on the person amounting to (at the very least) homicide and serious physical injuries as penalized under the RPC. These threats were consummated as soon as Indalecio, Diosetea, and Vicente heard petitioner utter his threatening remarks. Having spoken the threats at different points in time to these three individuals, albeit in rapid succession, petitioner incurred three separate criminal liabilities.

source:  

SANTIAGO PAERA vs PEOPLE OF THE PHILIPPINES,

G.R. No. 181626 (May 30, 2011 - Second Division)

Grave Threats

FACTS:
The petitioner herein, Rosauro Reyes, was a former civilian employee of the Navy Exchange, Sangley Point, Cavite City, whose services were terminated on May 6, 1961. In the afternoon of June 6, 1961, he led a group of about 20 to 30 persons in a demonstration staged in front of the main gate of the United States Naval Station at Sangley Point. They carried placards bearing statements such as, "Agustin, mamatay ka;" "To, alla boss con Nolan;" "Frank do not be a common funk;" "Agustin, mamamatay ka rin"; "Agustin, Nolan for you;" "Agustin alla bos con Nolan;" "Agustin, dillega, el dia di quida rin bo chiquiting;" and others. The base commander, Capt. McAllister, called up Col. Patricia Monzon, who as Philippine Military Liaison Officer at Sangley Point was in charge of preserving harmonious relations between personnel of the naval station and the civilian population of Cavite City. Capt. McAllister requested Col. Monzon to join him at the main gate of the base to meet the demonstrators. Col. Monzon went to the place and talked to Rosauro Reyes and one Luis Buenaventura upon learning that the demonstration was not directed against the naval station but against Agustin Hallare and a certain Frank Nolan for their having allegedly caused the dismissal of Rosauro Reyes from the Navy Exchange, Col. Monzon suggested to them to demonstrate in front of Hallare's residence, but they told him that they would like the people in the station to know how they felt about Hallare and Nolan. They assured him, however, that they did not intend to use violence, as "they just wanted to blow off steam."

  At that time Agustin Hallare was in his office inside the naval station. When he learned about the demonstration he became apprehensive about his safety, so he sought Col. Monzon's protection. The colonel thereupon escorted Hallare, his brother, and another person in going out of the station, using his (Monzon's) car for the purpose. Once outside, Col. Monzon purpose slowed down to accommodate the request of Reyes. He told Hallare to take a good look at the demonstrators and at the placards they were carrying. When the demonstrators saw Hallare they shouted, "Mabuhay si Agustin." Then they boarded their jeeps and followed the car. One jeep overtook passed the car while the other to led behind. After Hallare and his companions had alighted in front of his residence at 967 Burgos St., Cavite City, Col. Monzon sped away.

  The three jeeps carrying the demonstrators parked in front of Hallare's residence after having gone by it twice Rosauro Reyes got off his jeep and posted himself at the gate, and with his right hand inside his pocket and his left holding the gate-door, he shouted repeatedly, "Agustin, putang ina mo. Agustin, mawawala ka. Agustin lumabas ka, papatayin kita." Thereafter, he boarded his jeep and the motorcade left the premises. Meanwhile, Hallare, frightened by the demeanor of Reyes and the other demonstrators, stayed inside the house.

  On the basis of the foregoing events Rosauro Reyes was charged on July 24 and 25, 1961 with grave threats and grave oral defamation.

RULING:

  After a careful consideration of the original information, we find that all the elements of the crime of grave threats as defined in Article 282 1 of the Revised Penal Code and penalized by its paragraph 2 were alleged therein namely: (1) that the offender threatened another person with the infliction upon his person of a wrong; (2) that such wrong amounted to a crime; and (3) that the threat was not subject to a condition. Hence, petitioner could have been convicted thereunder

It is to be noted that under the aforementioned provision the particular manner in which the threat is made not a qualifying ingredient of the offense, such that the deletion of the word "orally" did not affect the nature and essence of the crime as charged originally. 

In our view the deletion of the word "orally" was effected in order to make the information conformable to the evidence to be presented during the trial. It was merely a formal amendment which in no way prejudiced petitioner's rights.

The demonstration led by petitioner Agustin Hallare in front of the main gate of the naval station; the fact that placards with threatening statements were carried by the demonstrators; their persistence in trailing Hallare in a motorcade up to his residence; and the demonstration conducted in front thereof, culminating in repeated threats flung by petitioner in a loud voice, give rise to only one conclusion: that the threats were made "with the deliberate purpose of creating in the mind of the person threatened the belief that the threat would be carried into effect." ² Indeed, Hallare became so apprehensive of his safety that he sought the protection of Col. Monzon, who had to escort him home, wherein he stayed while the demonstration was going on. It cannot be denied that the threats were made deliberately and not merely in a temporary fit of anger, motivated as they were by the dismissal of petitioner one month before the incident. We, therefore, hold that the appellate court was correct in upholding petitioner's conviction for the offense of grave threats.

Grave, Light anf Other Light Threats

Under the Revised Penal Code, there are three kinds of threats: grave threats (Article 282), light threats (Article 283) and other light threats (Article 285).

In grave threats, the wrong threatened amounts to a crime which may or may not be accompanied by a condition. In light threats, the wrong threatened does not amount to a crime but is always accompanied by a condition. In other light threats, the wrong threatened does not amount to a crime and there is no condition.

 The records show that at around 7:30 in the evening, Julia Denido left her house to go to the barangay hall to report the mauling of her husband which she witnessed earlier at around 4:00 oclock in the afternoon. On her way there, petitioner confronted her and pointed a gun to her forehead, while at the same time saying Saan ka pupunta, gusto mo ito? Considering what transpired earlier between petitioner and Julias husband, petitioners act of pointing a gun at Julias forehead clearly enounces a threat to kill or to inflict serious physical injury on her person. Actions speak louder than words. Taken in the context of the surrounding circumstances, the uttered words do not go against the threat to kill or to inflict serious injury evinced by petitioners accompanying act.

Given the surrounding circumstances, the offense committed falls under Article 282, par. 2 (grave threats) since: (1) killing or shooting someone amounts to a crime, and (2) the threat to kill was not subject to a condition.

Article 285, par. 1 (other light threats) is inapplicable although it specifically states, shall threaten another with a weapon or draw such weapon in a quarrel, since it presupposes that the threat to commit a wrong will not constitute a crime. That the threat to commit a wrong will constitute or not constitute a crime is the distinguishing factor between grave threats on one hand, and light and other light threats on the other. 

source: 

Ronnie Caluag vs People of The Philippines, GR G.R. No. 171511 (March 4, 2009 – Second Division)

Rem Notes:
Threat (with or without condition) = Crime = "Grave Threat"

Threat (with condition) = Not a Crime = "Light Threat"
Threat (as specified) = Not a Crime = "Other Light Threat"

1. drawing of weapon
2. in the heat of anger, orally threaten and did not persist

  

The Imelda Marcos conviction and judicial courage

Manila Bulletin,  
PAPER VIEW
By ATTY. MEL STA. MARIA

What are the salient points of the recent Imelda Marcos conviction by the Sandiganbayan?
First.  Imelda Marcos  was  convicted of  Section 3 (h) of the Anti-Graft and Corrupt Practices Act making it unlawful for a public official to “directly or indirectly have financial or pecuniary interest in any business, contract, or transaction in connection with which he (she) intervenes or takes part in his (her) official capacity, or in which he (she) is prohibited by the Constitution or by any law from having any interest.” To convict, proof beyond reasonable doubt was required. That means moral certainty, not  absolute certainty, that the accused feloniously committed the crime. That was achieved.

Second. Approximately US$200,000,000 were involved in the seven private foundations of the Marcoses in Switzerland despite their salary only estimated as not even reaching US$1,000,000. Imelda Marcos was, at that time, minister of human settlements and member of the Batasan Pambansa. The positions were full-time government jobs. No strong countervailing evidence was  effectively presented to debunk such proven facts despite chances for Imelda Marcos to present witnesses for such purpose.

Third. The “trier of facts” was a collegiate body of three justices of the Sandiganbayan’s fifth division. Their determination was unanimous. At this point, only a stretching of  the imagination can say that  these three magistrates  — trained in the appreciation of evidence and with lengthy experience in deciding criminal cases — can be so negligent  or, borrowing the words of the Supreme Court in abuse-of discretion-cases, acted “whimsically or arbitrarily in a manner so patent and so gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined.” Neither can they be accused of partisanship considering the patience they showed and the opportunities they gave to Imelda Marcos to present witnesses for her defense.

Fourth. It is quite revealing that, at the very end, Imelda Marcos seems to take the case nonchalantly. Neither she nor her lawyers attended the decision’s promulgation. While the accused may be excused due to very meritorious reasons, such as being ill-disposed, the lawyers must at least be present. The Sandiganbayan’s order of arrest could have been prevented had the lawyers, in open court, requested the availment of her exising bail for her provisional liberty during the motion for reconsideration or appeal.  It is interesting to see the explanation on their absence. At any rate, bail will most likely be granted.

Fifth. In the event that the case is appealed, the Supreme Court cannot entertain new evidence. The limit of its review is to examine only the proofs deliberated upon by the “trier of facts.” 
Accordingly, the Supreme Court is duty-bound to give the greatest weight to the Sandiganbayan’s  factual findings.

But  all those who rejoice in the Sandiganbayan’s decision must manage their expectations. The Supreme Court has lately favored the family of the dictator Ferdinand Marcos in their decisions:  the grant of the Marcos burial at the Libingan ng mga Bayani, the exoneration of Imelda Marcos in the LRT-PGH graft and dollar-salting charges, and the dismissal of the Imee Marcos case involving the damages sought against her concerning the death of Archimedes Trajano. Many ask: would the final outcome be any different in this latest Imelda Marcos? Will a majority of the members of the Supreme Court again save her from this  ignominy which, to many, is so deserving? Will Associate Justice Marvin Leonen’s eye-opening observation in his dissent in the Enrile bail case once again come to fore that, in our justice system, “there are just some among us who are elite” and “who are powerful and networked to enjoy privileges not shared by all”?  Let us hold our breath.

But there is one surprising revelation emerging. We are now witnessing the courage of the courts to decide against those who are considered as powerful and close to the “powers that be.”

And there is a greater revelation. Judicial independence is now perceived by many, not as emanating from majority of the Supreme Court justices but, astoundingly, as coming from the lower court judges.  We have seen this first in Judge Andres Soriano of the Makati Regional Trial Court Branch 148 who rendered ineffective President Duterte’s arrest-order against Senator Trillanes. Now, it’s Sandiganbayan Associate Justices Rafael Lagos, Maria Theresa Mendoza-Arcega, and Maryan Corpus-Mañalac.

Truly,  this emerging  exhibition of judicial courage exponentially elevates the significance of Imelda Marcos’ conviction to an institutional level. Hopefully it continues.

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