CLARITY and uniform interpretation over
both time and space are thought to be appealing characteristics of laws.
Nothing is as straightforward as the classic “eye for an eye and tooth
for a tooth,” or the command to “flog the man and woman guilty of
fornication each with a hundred stripes.” Or even (when it existed) the
death penalty for the crime of rape or for drug dealing. As long as
society continues to hold to these correspondences between crimes and
their respective penalties, “justice” as society conceives it is
implemented uniformly, regardless of time and place.
But certainty and timelessness are easy to
come by only in existential extremes such as the above (what economists
might call “corner solutions,” such as death). Things become more
complex when gradations and distinctions are necessary. This is nowhere
more evident than when monetary values are incorporated in the law.
Precision frequently demands that framers of the law prescribe definite
monetary amounts. Examples of this abound. Prison terms for estafa and
qualified theft will vary depending on the peso amounts stolen.
Individual and corporate income taxes under the tax code are defined by a
schedule that depends on a person’s or corporation’s peso earnings. The
tax on cigarettes depends on whether the brand costs more or less than
P11.50 per pack. (At the University of the Philippines, our own
subsidised tuition and and assistance scheme requires different fees
from students according to levels of their family’s peso incomes.)
The problem, of course, is that those same money amounts used to define
categories, penalties and obligations -- clear and unambiguous enough
when the laws and rules were crafted -- no longer have the same meaning
as time passes. Inflation is the prime culprit. Changes in the general
price level alter the value of of the money unit and render the money
metric like a rubber ruler, whose length can be stretched and distorted
through time. Because of this, one is no longer certain that justice is
faithfully and uniformly served across time.
This is highlighted by a case recently decided by the Supreme Court
(Lito Corpuz v. People of the Philippines; GR 180016). A person was
found guilty of having committed estafa in 1991 involving P98,000. The
Revised Penal Code (passed in 1930 and unchanged to this day) imposes
varying amounts of jail time for estafa depending on the monetary
amounts involved. The maximum amount is “P22,001 and above,” which
corresponds to a jail penalty of “eight years and one day, plus one year
for every additional P10,000” but not to exceed 20 years. This
correspondence between the monetary offense and penalty embodied
society’s sense of justice and proportion at the time. Applying the
letter of the existing law to the present case, the convicted would have
to serve a total of 15 years.
But P98,000 in 1991 prices is certainly not the same as P98,000 in 1930
prices. With high inflation over the years, the equivalent amount in
1930 prices is obviously far less, and therefore so should be the
corresponding penalty.
In a lucid dissenting opinion (shared by Justice Marvic Leonen), Justice
Roberto Abad makes an educated estimate that prices may have increased a
hundredfold between the two periods. If so, then the same offense would
merit a far lower penalty: “The P98,000 jewelry items subject of the
offense would have a value of only P980 in 1932. Consequently, had [the
convicted person] committed the crime in that year, he would have been
imprisoned for only two years and four months maximum. But since he
committed it 59 years later in 1991 when the jewelry items are now
valued at P98,000 due to inflation, he would be imprisoned for 15 years
maximum -- the same crime, the same law, yet a shockingly higher
penalty. This result would undoubtedly deny Corpuz his constitutional
right to equal protection of the law.”
In the end, the rest of the Supreme Court did not support Abad’s and
Leonen’s opinions. While half-conceding the validity of the substantive
points raised, the other justices refrained from acting on them, on the
ground that doing so would amount to revising the law, which is the job
of Congress. In the meantime, some obvious injustice is being committed
every day not only in this case but in all other instances where
superannuated schedules based on nominal money values are applied --
most important are unwarrantedly long deprivations of liberty handed by
the courts, no less.
If the Supreme Court persists in its view that it will not interpret
real versus nominal values, then clearly the ball is in the
legislature’s court. House Speaker Feliciano Belmonte Jr., in a
memorandum to the court, essentially stood upon Congress’ prerogative to
prescribe punishment (“the recodification of the Revised Penal Code is
already being done by Congress”), but more significantly he also denied
the need to amend the schedule of penalties, or the need to maintain
consistency or “proportionality” in penalties through time. Indeed, he
says, the greater punitiveness arising from the change in the peso
values has unintentionally but fortuitously made the penalty scheme
“more reasonable” and “protective of the poor.” (The Speaker neglects to
explain how a penal code that punishes estafa worth P100 with a jail
term of four to six months can be pro-poor.) In other words, the Supreme
Court has tossed the problem to Congress, and therefore we can expect
Congress to do... nothing.
This is unfortunate -- as well as inconsistent. After all, Congress has
not shied away from indexing the sin taxes to inflation, increasing the
nominal amounts of tax by 4% annually to protect the real value of
government revenues. In the opposite manner, however, it has also
tarried in adjusting income brackets in the tax code, effectively
allowing inflation to push people up the tax brackets and pay higher
average and marginal tax rates -- again resulting in higher revenues for
government. Index some things but not others. Where is consistency?
All of this can only lead to the suspicion that the government is
assiduous only when it comes to protecting the real value of its claims
against its citizens -- especially when these claims are in pecuniary
form. But it is niggardly and slow in dispensing that most basic and
minimal non-monetary claim citizens expect from it -- justice and fair
treatment.
(The author is an Oscar M. Lopez professor at the UP School of Economics and an IDEA Fellow.)
source: Businessworld
Wednesday, June 25, 2014
Knocking someone’s tooth out is serious physical injury
Dear PAO,
My brother had a fight with a bystander. He was only able to strike one blow that landed on the person’s face. Unfortunately, one of the front teeth of that person was knocked out and my brother is now facing a complaint for serious physical injuries. May I know if the complaint was proper? We think that there is a bias in the filing of complaint since that bystander was not seriously injured and not even hospitalized.
April S.
Dear April S.,
Under Article 263 of the Revised Penal Code (RPC), the following constitutes the crime of serious physical injuries if as a consequence of the physical injuries, the injured person shall: (1) become insane, imbecile, impotent, or blind; (2) have lost use of speech or the power to hear or to smell, or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was therefore habitually engaged; (3) become deformed or shall have lost any part of his body or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he was habitually engaged for a period of more than ninety days; or (4) have caused illness or incapacity for labor of the injured person for more than thirty days.
One of the mentioned acts that would amount to serious physical injuries is when the said physical harm has caused deformity to the injured person. The deformity in this case pertains to disfigurement. The loss of teeth if visible and impairs the appearance of the offended party is considered as disfigurement; thus, the offender who caused such a loss may be liable for serious physical injuries. Accordingly, one who unlawfully wounds another is responsible for the consequences of his act. If as a result thereof, the offended party is impaired in his appearance in such a way that the disfigurement cannot be removed by nature, the person causing the injuries is responsible for the disfigurement, and he is not relieved of that responsibility because the offended party might, if he has the means, lessen the disfigurement by some artificial contrivance (People of the Philippines v. Alipio Balubar, G.R. NO. L-40940, October 9, 1934).
Based from the foregoing, your brother may be liable for the crime of serious physical injuries because, as you have stated, his blow, even if it was only a single one, has caused the removal of the bystander’s front teeth, provided that the same is visible and impairs the latter’s appearance and even if he was not seriously injured or confined at the hospital.
We hope that we have answered your query. Our legal opinion may vary if other facts are stated or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
My brother had a fight with a bystander. He was only able to strike one blow that landed on the person’s face. Unfortunately, one of the front teeth of that person was knocked out and my brother is now facing a complaint for serious physical injuries. May I know if the complaint was proper? We think that there is a bias in the filing of complaint since that bystander was not seriously injured and not even hospitalized.
April S.
Dear April S.,
Under Article 263 of the Revised Penal Code (RPC), the following constitutes the crime of serious physical injuries if as a consequence of the physical injuries, the injured person shall: (1) become insane, imbecile, impotent, or blind; (2) have lost use of speech or the power to hear or to smell, or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was therefore habitually engaged; (3) become deformed or shall have lost any part of his body or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he was habitually engaged for a period of more than ninety days; or (4) have caused illness or incapacity for labor of the injured person for more than thirty days.
One of the mentioned acts that would amount to serious physical injuries is when the said physical harm has caused deformity to the injured person. The deformity in this case pertains to disfigurement. The loss of teeth if visible and impairs the appearance of the offended party is considered as disfigurement; thus, the offender who caused such a loss may be liable for serious physical injuries. Accordingly, one who unlawfully wounds another is responsible for the consequences of his act. If as a result thereof, the offended party is impaired in his appearance in such a way that the disfigurement cannot be removed by nature, the person causing the injuries is responsible for the disfigurement, and he is not relieved of that responsibility because the offended party might, if he has the means, lessen the disfigurement by some artificial contrivance (People of the Philippines v. Alipio Balubar, G.R. NO. L-40940, October 9, 1934).
Based from the foregoing, your brother may be liable for the crime of serious physical injuries because, as you have stated, his blow, even if it was only a single one, has caused the removal of the bystander’s front teeth, provided that the same is visible and impairs the latter’s appearance and even if he was not seriously injured or confined at the hospital.
We hope that we have answered your query. Our legal opinion may vary if other facts are stated or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
Sunday, June 22, 2014
Grounds for filing complaint for adultery
Dear PAO,
I am an OFW and I found out from my daughter that my wife is cohabiting with another man in our house while I was abroad. What case can I file against my wife and his paramour who knew from the start that my wife is already married?
ED
Dear ED,
Under our law, the husband and the wife have the obligation to live together, observe mutual love, respect and fidelity and render mutual help and support (Article 68, Family Code of the Philippines). Pursuant to this, the Revised Penal Code (RPC) criminalizes certain acts of infidelity by the husband or the wife.
The act of your wife in cohabiting with another man during the subsistence of your marriage is considered as adultery which is defined and penalized under Article 333 of the RPC, to wit:
“Article 333. Who are guilty of adultery.—Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.
Adultery shall be punished by prision correccional in its medium and maximum periods.‘
If the persons guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.”
You may file a criminal complaint for adultery against your wife and her paramour before the Prosecutor’s Office of the place where they are cohabiting with each other. However, you will not be allowed to prosecute them for this crime if you have consented to the commission of the same or have pardoned your wife and her paramour Article 344, RPC). To successfully prosecute them of the crime of adultery, you need to prove the following elements: 1) that the woman is married; 2) that she has sexual intercourse with a man not her husband; and 3) that as regards the man with whom she has sexual intercourse, he must know her to be married (Luis B. Reyes, The Revised Penal Code, Book Two (14th Edition), page 841).
We hope that we were able to answer your query. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
I am an OFW and I found out from my daughter that my wife is cohabiting with another man in our house while I was abroad. What case can I file against my wife and his paramour who knew from the start that my wife is already married?
ED
Dear ED,
Under our law, the husband and the wife have the obligation to live together, observe mutual love, respect and fidelity and render mutual help and support (Article 68, Family Code of the Philippines). Pursuant to this, the Revised Penal Code (RPC) criminalizes certain acts of infidelity by the husband or the wife.
The act of your wife in cohabiting with another man during the subsistence of your marriage is considered as adultery which is defined and penalized under Article 333 of the RPC, to wit:
“Article 333. Who are guilty of adultery.—Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void.
Adultery shall be punished by prision correccional in its medium and maximum periods.‘
If the persons guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.”
You may file a criminal complaint for adultery against your wife and her paramour before the Prosecutor’s Office of the place where they are cohabiting with each other. However, you will not be allowed to prosecute them for this crime if you have consented to the commission of the same or have pardoned your wife and her paramour Article 344, RPC). To successfully prosecute them of the crime of adultery, you need to prove the following elements: 1) that the woman is married; 2) that she has sexual intercourse with a man not her husband; and 3) that as regards the man with whom she has sexual intercourse, he must know her to be married (Luis B. Reyes, The Revised Penal Code, Book Two (14th Edition), page 841).
We hope that we were able to answer your query. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
Thursday, March 20, 2014
More credible
This is perhaps one of the most unique cases on record as it involves
a husband and wife found guilty of rape. As the court here said, sexual
relations outside the marriage bond are not a pixyish play for couples
as neither one is allowed to bring in a third person just to satisfy the
insatiable lust of the other.
The couple here is Dencio and Nimfa living at a Southern Luzon town in a six meters by eight meters house with their two children. Nimfa is a reputed healer in their province who has supposedly healed a lot of people. She performs her healing session in one room of their house.
Among those who got to know of Nimfa’s healing prowess was Lita whose daughter, Nora is an epileptic. Worried about the worsening condition of her daughter and relying on the advice of her sister-in-law, Lita brought Nora to the residence of Nimfa in the nearby town, for healing sessions.
Three days later Lita even invited Nimfa to the 14th birthday celebration of Nora in their residence. After the celebration, Nimfa persuaded Lita to allow Nora to stay in the house of her mother-in-law in their town since she only conducts healing sessions in the evening.
After about a week stay in the mother-in-law’s house, Nimfa asked Nora who was then cleaning the house, to go to her house. She told Nora to lie down on the floor of the room where the healing sessions were conducted. Nora acceded, thinking that she would be treated.
At this juncture, Nimfa called her husband Dencio and told him “o maghubo ka na” Frightened, Nora struggled and exerted efforts to resist the invasion on her womanhood, but to no avail because Nimfa pinned down her hands on the floor and covered her mouth. Dencio thus succeeded in satisfying his lust and invading the young Nora’s womanhood. Nimfa even laughed and laughed while watching her husband consummate the lecherous act in the treatment room. Then Nimfa warned Nora not to divulge the incident to anybody.
After the ordeal, Nora refused to be treated anymore. She was fetched
by her aunt and was continuously crying inside the passenger jeepney.
The next day, she disclosed to her mother Lita what was done to her. So
after medical examination which confirms that there was sexual
penetration done on her, Dencio and Nimfa were charged with the crime of
rape.
Nimfa denied the accusation. She testified that it was against human nature to commit rape in broad daylight and with her children in the house. She claimed that Lita and Nora were just trying to discredit her for curing the sick and just want to escape from the obligation of paying her services. Dencio on the other hand testified that on the day of the rape, he was at the elementary school, a walking distance from their house, meeting with the barangay captain and another neighbor looking at the voter’s list for the coming election. Then he went to a repair shop where he worked as a mechanic. Both of these persons corroborated his story.
But after trial, the Regional Trial Court (RTC) nevertheless found Dencio and Nimfa guilty of rape .The RTC found that conspiracy existed between the two of them as it relied more on the straightforward testimony of Nora. Was the RTC correct?
Yes. Nora’s testimony appears straightforward. She positively identified her ravishers and narrated what transpired with simplicity and veracity. Well settled is the doctrine that testimonies of child-victims are given full weight and credit. When a woman or a girl-child says that she has been raped, she says, in effect, all that is necessary to prove that rape was really committed.
Both Dencio and Nimfa are guilty of rape because there is conspiracy between them. Conspiracy exists when two or more persons come to an agreement concerning the commission of an offense and decide to commit it. The facts and circumstances of this case indicate the existence of conspiracy exists: from the time Nimfa called Dencio to remove his pants and pinned down Nora’s hands on the floor up to the time she was laughing and laughing while her husband is perpetrating the act.
So Dencio and Nimfa should suffer the penalty of reclusion perpetua and to pay Nora, P50,000 as indemnity and P50,000 as moral damages (People vs. Saban, G.R. 110559, November 24, 1999. 319 SCRA 36).
(The Philippine Star)
The couple here is Dencio and Nimfa living at a Southern Luzon town in a six meters by eight meters house with their two children. Nimfa is a reputed healer in their province who has supposedly healed a lot of people. She performs her healing session in one room of their house.
Among those who got to know of Nimfa’s healing prowess was Lita whose daughter, Nora is an epileptic. Worried about the worsening condition of her daughter and relying on the advice of her sister-in-law, Lita brought Nora to the residence of Nimfa in the nearby town, for healing sessions.
Three days later Lita even invited Nimfa to the 14th birthday celebration of Nora in their residence. After the celebration, Nimfa persuaded Lita to allow Nora to stay in the house of her mother-in-law in their town since she only conducts healing sessions in the evening.
After about a week stay in the mother-in-law’s house, Nimfa asked Nora who was then cleaning the house, to go to her house. She told Nora to lie down on the floor of the room where the healing sessions were conducted. Nora acceded, thinking that she would be treated.
At this juncture, Nimfa called her husband Dencio and told him “o maghubo ka na” Frightened, Nora struggled and exerted efforts to resist the invasion on her womanhood, but to no avail because Nimfa pinned down her hands on the floor and covered her mouth. Dencio thus succeeded in satisfying his lust and invading the young Nora’s womanhood. Nimfa even laughed and laughed while watching her husband consummate the lecherous act in the treatment room. Then Nimfa warned Nora not to divulge the incident to anybody.
Nimfa denied the accusation. She testified that it was against human nature to commit rape in broad daylight and with her children in the house. She claimed that Lita and Nora were just trying to discredit her for curing the sick and just want to escape from the obligation of paying her services. Dencio on the other hand testified that on the day of the rape, he was at the elementary school, a walking distance from their house, meeting with the barangay captain and another neighbor looking at the voter’s list for the coming election. Then he went to a repair shop where he worked as a mechanic. Both of these persons corroborated his story.
But after trial, the Regional Trial Court (RTC) nevertheless found Dencio and Nimfa guilty of rape .The RTC found that conspiracy existed between the two of them as it relied more on the straightforward testimony of Nora. Was the RTC correct?
Yes. Nora’s testimony appears straightforward. She positively identified her ravishers and narrated what transpired with simplicity and veracity. Well settled is the doctrine that testimonies of child-victims are given full weight and credit. When a woman or a girl-child says that she has been raped, she says, in effect, all that is necessary to prove that rape was really committed.
Both Dencio and Nimfa are guilty of rape because there is conspiracy between them. Conspiracy exists when two or more persons come to an agreement concerning the commission of an offense and decide to commit it. The facts and circumstances of this case indicate the existence of conspiracy exists: from the time Nimfa called Dencio to remove his pants and pinned down Nora’s hands on the floor up to the time she was laughing and laughing while her husband is perpetrating the act.
So Dencio and Nimfa should suffer the penalty of reclusion perpetua and to pay Nora, P50,000 as indemnity and P50,000 as moral damages (People vs. Saban, G.R. 110559, November 24, 1999. 319 SCRA 36).
* * *
E-mail: attyjosesison@gmail.com.(The Philippine Star)
Wednesday, March 19, 2014
Garcillano indicted of perjury
THE OFFICE of the Ombudsman has indicted
former Commission on Elections (Comelec) commissioner Virgilio O.
Garcillano of perjury.
In a 13-page resolution approved yesterday, Ombudsman Conchita Carpio-Morales said her office found probable cause to charge Mr. Garcillano with perjury under Article 183 of the Revised Penal Code and for violation of Section 19 of Republic Act 8239 Philippine Passport Act of 1996.
Ms. Morales said the Office of the Ombudsman found that Mr. Garcillano "made a deliberate and willful assertion of a falsehood" during the congressional hearing when he testified that he never left the Philippines after the so-called "Hello Garci" controversy broke out.
The case stemmed from the complaint-affidavit filed in January 2012 by current and former Bayan Muna Party-list Representatives Neri J. Colmenares and Teddy A. Casiño, respectively, against Mr. Garcillano, who resurfaced after the 2004 "Hello Garci" controversy, for falsely testifying under oath and presenting an alleged spurious passport during the congressional joint committee hearing in December 2005.
The "Hello Garci" controversy arose when audio recordings of an alleged telephone conversation between Mr. Garcillano, and former president and now Pampanga Rep. Gloria Macapagal-Arroyo (2nd district) were made public at the height of the 2004 synchronized national and local elections.
Congress investigated Mr. Garcillano in December 2005 after the reported wiretapped telephone conversations between Mrs. Arroyo and the former poll official, who the former president allegedly referred to as "Garci", was leaked to the media. The conversations pertained to the counting of votes in the 2004 presidential race that Mrs. Arroyo won over chief rival Fernando K. Poe, Jr.
The "Hello Garci" scandal triggered the resignation of key Cabinet members, an apology from Mrs. Arroyo and massive protests. An intelligence unit in the military was believed to have taped the conversations and leaked it to the public.
The Ombudsman, in the resolution, said the note verbale dated Aug. 31, 2005 and issued by the Ministry of Foreign Affairs of the Republic of Singapore "confirmed" that [Mr.] Garcillano "transited in Singapore on July 14, 2005 and departed Singapore on July 15, 2005."
The resolution noted that Mr. Garcillano took his oath before former North Cotabato Rep. Emmylou Talino-Santos (1st district) -- a competent officer authorized to administer oaths -- at the start of the congressional proceedings, as evidenced by the transcript of stenographic notes.
Likewise, Mrs. Morales added that her office found that Mr. Garcillano also violated the Philippine Passport Act "when he presented a forged passport before the congressional hearing".
The Ombudsman cited data from the Bangko Sentral ng Pilipinas (BSP) Laboratory examination report dated March 20, 2006 which concluded that Mr. Garcillano’s passport "does not conform to standard after discovering badges of forgery." "While the DFA [Department of Foreign Affairs] issued a certification that its Regional Consular Office in Cagayan de Oro issued a passport bearing the number JJ243816 to [Mr. Garcillano], he did not show proof that the questioned passport was the same passport issued by the Cagayan de Oro Regional Consular Office," the resolution read.
Citing jurisprudence, the resolution added that Mr. Garcillano, "being in possession of the forged passport and the one to benefit from its presentation before the congressional joint committee, is presumed to be forger."
Meanwhile, the Office of the Ombudsman dismissed the charge of falsification by a public officer under the Revised Penal Code because the element of "taking advantage of official position" was found lacking. "[Mr. Garcillano], although a public officer, acted not by reason of his office, his position as a Comelec commissioner not having anything to do with the issuance of a passport," the Ombudsman explained in the resolution.
Ms. Morales said the Office of the Ombudsman will be filing the perjury charges against Mr. Garcillano before the Sandiganbayan. -- Imee Charlee C. Delavin
source: Businessworld
In a 13-page resolution approved yesterday, Ombudsman Conchita Carpio-Morales said her office found probable cause to charge Mr. Garcillano with perjury under Article 183 of the Revised Penal Code and for violation of Section 19 of Republic Act 8239 Philippine Passport Act of 1996.
Ms. Morales said the Office of the Ombudsman found that Mr. Garcillano "made a deliberate and willful assertion of a falsehood" during the congressional hearing when he testified that he never left the Philippines after the so-called "Hello Garci" controversy broke out.
The case stemmed from the complaint-affidavit filed in January 2012 by current and former Bayan Muna Party-list Representatives Neri J. Colmenares and Teddy A. Casiño, respectively, against Mr. Garcillano, who resurfaced after the 2004 "Hello Garci" controversy, for falsely testifying under oath and presenting an alleged spurious passport during the congressional joint committee hearing in December 2005.
The "Hello Garci" controversy arose when audio recordings of an alleged telephone conversation between Mr. Garcillano, and former president and now Pampanga Rep. Gloria Macapagal-Arroyo (2nd district) were made public at the height of the 2004 synchronized national and local elections.
Congress investigated Mr. Garcillano in December 2005 after the reported wiretapped telephone conversations between Mrs. Arroyo and the former poll official, who the former president allegedly referred to as "Garci", was leaked to the media. The conversations pertained to the counting of votes in the 2004 presidential race that Mrs. Arroyo won over chief rival Fernando K. Poe, Jr.
The "Hello Garci" scandal triggered the resignation of key Cabinet members, an apology from Mrs. Arroyo and massive protests. An intelligence unit in the military was believed to have taped the conversations and leaked it to the public.
The Ombudsman, in the resolution, said the note verbale dated Aug. 31, 2005 and issued by the Ministry of Foreign Affairs of the Republic of Singapore "confirmed" that [Mr.] Garcillano "transited in Singapore on July 14, 2005 and departed Singapore on July 15, 2005."
The resolution noted that Mr. Garcillano took his oath before former North Cotabato Rep. Emmylou Talino-Santos (1st district) -- a competent officer authorized to administer oaths -- at the start of the congressional proceedings, as evidenced by the transcript of stenographic notes.
Likewise, Mrs. Morales added that her office found that Mr. Garcillano also violated the Philippine Passport Act "when he presented a forged passport before the congressional hearing".
The Ombudsman cited data from the Bangko Sentral ng Pilipinas (BSP) Laboratory examination report dated March 20, 2006 which concluded that Mr. Garcillano’s passport "does not conform to standard after discovering badges of forgery." "While the DFA [Department of Foreign Affairs] issued a certification that its Regional Consular Office in Cagayan de Oro issued a passport bearing the number JJ243816 to [Mr. Garcillano], he did not show proof that the questioned passport was the same passport issued by the Cagayan de Oro Regional Consular Office," the resolution read.
Citing jurisprudence, the resolution added that Mr. Garcillano, "being in possession of the forged passport and the one to benefit from its presentation before the congressional joint committee, is presumed to be forger."
Meanwhile, the Office of the Ombudsman dismissed the charge of falsification by a public officer under the Revised Penal Code because the element of "taking advantage of official position" was found lacking. "[Mr. Garcillano], although a public officer, acted not by reason of his office, his position as a Comelec commissioner not having anything to do with the issuance of a passport," the Ombudsman explained in the resolution.
Ms. Morales said the Office of the Ombudsman will be filing the perjury charges against Mr. Garcillano before the Sandiganbayan. -- Imee Charlee C. Delavin
source: Businessworld
Tuesday, March 18, 2014
Case should be filed where the crime was committed
Dear PAO,
I have an officemate who is currently facing a difficult predicament.
Her husband has been accused of homicide which allegedly transpired sometime in December 2013. The complaint was only filed late January of this year. They have no lawyer and to be quite honest, they have no financial capacity to avail of one. Is it possible to secure assistance from your office? What documents do they need to present?
GED
Dear GED,
Our office, the Public Attorney’s Office or PAO, is mandated by law to render free legal assistance to indigent clients and other qualified persons whose cases are meritorious in all civil, criminal, administrative, labor and other quasi-judicial cases (Section 1, Article II, PAO Operations Manual).
Given that a complaint for Homicide is in the nature of a criminal case, our office considers the same as a meritorious case because we recognize the constitutional right of an accused to be presumed innocent until the contrary is proven (Section 2, Article II, PAO Operations Manual).
Nevertheless, the husband of your officemate must establish that he is a qualified indigent client in order for him to avail the services of our office and the representation of one of our lawyers. In connection thereto, he must present any of the following proofs of indigency: (a) Latest Income Tax Return (ITR), pay slip or other proofs of income; (b) Certificate of Indigency from the Department of Social Welfare and Development (DSWD), its local district office, or the Municipal Social Welfare and Development Office which has jurisdiction over his residence; or (c) Certificate of Indigency from the Barangay Chairman having jurisdiction over his residence (Section 3, Article II, PAO Operations Manual).
It would be best for your officemate and her husband to visit our district office nearest to the place where the alleged crime was committed so that they can personally confer with one of our lawyers as well as for the proper rendition of legal assistance in accordance with existing PAO laws, rules and regulations.
As we have mentioned earlier, a complaint for Homicide is in the nature of a criminal case. Hence, it will necessarily have to be filed before the Office of the City or Provincial Prosecutor, or in the absence thereof, the court which has jurisdiction over the place where the crime was committed.
Please be advised that our district offices are usually located at or near the municipal hall, city hall, provincial hall or hall of justice of each respective municipality, city or province. Please inform your officemate to bring all the pertinent documents relative to the case of her husband on their visit to our district office.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
I have an officemate who is currently facing a difficult predicament.
Her husband has been accused of homicide which allegedly transpired sometime in December 2013. The complaint was only filed late January of this year. They have no lawyer and to be quite honest, they have no financial capacity to avail of one. Is it possible to secure assistance from your office? What documents do they need to present?
GED
Dear GED,
Our office, the Public Attorney’s Office or PAO, is mandated by law to render free legal assistance to indigent clients and other qualified persons whose cases are meritorious in all civil, criminal, administrative, labor and other quasi-judicial cases (Section 1, Article II, PAO Operations Manual).
Given that a complaint for Homicide is in the nature of a criminal case, our office considers the same as a meritorious case because we recognize the constitutional right of an accused to be presumed innocent until the contrary is proven (Section 2, Article II, PAO Operations Manual).
Nevertheless, the husband of your officemate must establish that he is a qualified indigent client in order for him to avail the services of our office and the representation of one of our lawyers. In connection thereto, he must present any of the following proofs of indigency: (a) Latest Income Tax Return (ITR), pay slip or other proofs of income; (b) Certificate of Indigency from the Department of Social Welfare and Development (DSWD), its local district office, or the Municipal Social Welfare and Development Office which has jurisdiction over his residence; or (c) Certificate of Indigency from the Barangay Chairman having jurisdiction over his residence (Section 3, Article II, PAO Operations Manual).
It would be best for your officemate and her husband to visit our district office nearest to the place where the alleged crime was committed so that they can personally confer with one of our lawyers as well as for the proper rendition of legal assistance in accordance with existing PAO laws, rules and regulations.
As we have mentioned earlier, a complaint for Homicide is in the nature of a criminal case. Hence, it will necessarily have to be filed before the Office of the City or Provincial Prosecutor, or in the absence thereof, the court which has jurisdiction over the place where the crime was committed.
Please be advised that our district offices are usually located at or near the municipal hall, city hall, provincial hall or hall of justice of each respective municipality, city or province. Please inform your officemate to bring all the pertinent documents relative to the case of her husband on their visit to our district office.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
Monday, February 24, 2014
The right to bail
You can introduce a terminological distinction between a ‘detainee’
and a ‘prisoner’, but the effects belie the verbal sleight-of-hand: A
person is deprived of his liberty in so many different ways. But while a
prisoner suffers incarceration as penalty for a crime of which he has
been duly, we hope, convicted, a detainee is detained (= incarcerated)
on suspicion (technically: on the basis of a probability) that he
committed an offense. Each acquittal merely proves how mistaken
suspicions can be, no matter that they are vested in the legalesse of
‘probable cause’
It is supposed to be common knowledge that most offenses are ‘bailable’, others are ‘non-bailable’. It was something I took too as ‘knowledge’, until one day, my father, Justice Hilarion Aquino, told my brother, an RTC judge and me, that he did not think that there were any non-bailable offenses. That sent me back looking up the text of the Constitution once more, a document I thought I was sufficiently familiar with. Section 13 reads: “All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.
The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.” Shall be bailable—in the law, ‘shall’ mandates. This has led to the traditional formulation of the rule: In all cases except those punishable by reclusion perpetua (or, under special penal laws, life imprisonment) bail is a matter of right. When the offense of which a person stands accused is punishable by reclusion perpetua or life imprisonment, and evidence of guilt is strong, it does not follow that bail must be denied, because that is not what the Constitution provides. It only subjects the grant of bail to judicial discretion. Bail is available then in all cases, if the judge would exercise discretion in favor of its concession, and discretion precisely means that it is the judge’s call. The judge must judge!
But so precious is the right to bail and the liberty that it safeguards that not even the suspension of the privilege of the writ of habeas corpus can impair it. John Rawls concluded, in theorizing on justice, that reasonable people would like society to be organized according to the principle that each person is entitled to the maximal range of liberties compatible with a similar range for all others. While liberty—in the sense of freedom from restraint and detention—was not what he particularly thought of in this first of the principles of justice, it certainly is among the bases of self-respect that the principle covers.
In fact, if, as I think should be the case, the guarantees in the Bill of Rights are read in lexical order, then the very first section enshrines the fundamental right: “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.” At the time a person is deprived of liberty because he is denied bail, he has not yet been convicted. All that ‘justifies’ the deprivation of liberty is suspicion, known as ‘probable cause’. And the Supreme Court has qualified this even further by teaching: “The term does not mean ‘actual and positive cause’ nor does it import absolute certainty. It is merely based on opinion and reasonable belief...It is enough that it is believed that the act or omission complained of constitutes the offense charged.” Fenequito v. Vergara (2012) Scholastic philosophers used to define ‘opinion’ as ‘holding a judgment with the radical fear that it is false’. Is it reasonable to deny a person his liberty and curtail his freedoms because of ‘opinion’, ‘belief’, ‘suspicion’? That would be taking liberty—enshrined as the very first right protected by the Constitution—with undue levity!
There is more to the argument for the grant of bail. When a person who has suffered detention is subsequently acquitted, how does the State make up for the injustice of his detention? Will it do to say that he deserved to be detained because there was ‘belief’, ‘opinion’ or suspicion that he was guilty? We are not talking here about such vagaries as the stigma of imprisonment. What we deal with rather is the curtailment of a basic human right, not least among these, the right to the comfort of one’s home and the company of one’s family.
I was taken aback by the language of the Sandiganbayan when it turned down the former President’s petition for bail. It said in what to me was language shot through with utter insensitivity: The depression and loneliness she suffers from are the conditions suffered by all who are detained. And that I supposed to justify the denial of bail—because it is commonly suffered by all detained? If anything at all, the suffering underscores the injustice of being deprived of one’s liberty even before one’s guilt has been established!
Am I for the universal grant of bail? Most assuredly, I am, and while the Constitution cannot now be amended, judges can always exercise discretion in favor of liberty. That is not a bad thing at all. In fact the qualifier —‘when evidence of guilt is strong’ —makes the case for the exercise of discretion in favor of bail stronger for one never knows that the evidence of guilt is strong until after full trial on the merits. Even if it appears that the prosecution has a strong case—and the prosecution will always make its case appear strong—one must allow for the possibility of a solid defense that causes the the prosecution to totter. But at the time bail is denied, one has not yet heard the defense!
Mine is not an argument from pity nor from some vague sense of humaneness or humanity but from the values of our constitutional order and from the demands of fairness, the first virtue, Rawls teaches, of the social order!
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
rannie_aquino@yahoo.com
source: Manila Standard Column By
It is supposed to be common knowledge that most offenses are ‘bailable’, others are ‘non-bailable’. It was something I took too as ‘knowledge’, until one day, my father, Justice Hilarion Aquino, told my brother, an RTC judge and me, that he did not think that there were any non-bailable offenses. That sent me back looking up the text of the Constitution once more, a document I thought I was sufficiently familiar with. Section 13 reads: “All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.
The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.” Shall be bailable—in the law, ‘shall’ mandates. This has led to the traditional formulation of the rule: In all cases except those punishable by reclusion perpetua (or, under special penal laws, life imprisonment) bail is a matter of right. When the offense of which a person stands accused is punishable by reclusion perpetua or life imprisonment, and evidence of guilt is strong, it does not follow that bail must be denied, because that is not what the Constitution provides. It only subjects the grant of bail to judicial discretion. Bail is available then in all cases, if the judge would exercise discretion in favor of its concession, and discretion precisely means that it is the judge’s call. The judge must judge!
But so precious is the right to bail and the liberty that it safeguards that not even the suspension of the privilege of the writ of habeas corpus can impair it. John Rawls concluded, in theorizing on justice, that reasonable people would like society to be organized according to the principle that each person is entitled to the maximal range of liberties compatible with a similar range for all others. While liberty—in the sense of freedom from restraint and detention—was not what he particularly thought of in this first of the principles of justice, it certainly is among the bases of self-respect that the principle covers.
In fact, if, as I think should be the case, the guarantees in the Bill of Rights are read in lexical order, then the very first section enshrines the fundamental right: “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.” At the time a person is deprived of liberty because he is denied bail, he has not yet been convicted. All that ‘justifies’ the deprivation of liberty is suspicion, known as ‘probable cause’. And the Supreme Court has qualified this even further by teaching: “The term does not mean ‘actual and positive cause’ nor does it import absolute certainty. It is merely based on opinion and reasonable belief...It is enough that it is believed that the act or omission complained of constitutes the offense charged.” Fenequito v. Vergara (2012) Scholastic philosophers used to define ‘opinion’ as ‘holding a judgment with the radical fear that it is false’. Is it reasonable to deny a person his liberty and curtail his freedoms because of ‘opinion’, ‘belief’, ‘suspicion’? That would be taking liberty—enshrined as the very first right protected by the Constitution—with undue levity!
There is more to the argument for the grant of bail. When a person who has suffered detention is subsequently acquitted, how does the State make up for the injustice of his detention? Will it do to say that he deserved to be detained because there was ‘belief’, ‘opinion’ or suspicion that he was guilty? We are not talking here about such vagaries as the stigma of imprisonment. What we deal with rather is the curtailment of a basic human right, not least among these, the right to the comfort of one’s home and the company of one’s family.
I was taken aback by the language of the Sandiganbayan when it turned down the former President’s petition for bail. It said in what to me was language shot through with utter insensitivity: The depression and loneliness she suffers from are the conditions suffered by all who are detained. And that I supposed to justify the denial of bail—because it is commonly suffered by all detained? If anything at all, the suffering underscores the injustice of being deprived of one’s liberty even before one’s guilt has been established!
Am I for the universal grant of bail? Most assuredly, I am, and while the Constitution cannot now be amended, judges can always exercise discretion in favor of liberty. That is not a bad thing at all. In fact the qualifier —‘when evidence of guilt is strong’ —makes the case for the exercise of discretion in favor of bail stronger for one never knows that the evidence of guilt is strong until after full trial on the merits. Even if it appears that the prosecution has a strong case—and the prosecution will always make its case appear strong—one must allow for the possibility of a solid defense that causes the the prosecution to totter. But at the time bail is denied, one has not yet heard the defense!
Mine is not an argument from pity nor from some vague sense of humaneness or humanity but from the values of our constitutional order and from the demands of fairness, the first virtue, Rawls teaches, of the social order!
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
rannie_aquino@yahoo.com
source: Manila Standard Column By
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