Enrile seeks fair trial on plunder case, requests for bill of particulars

MANILA – Seeking due process in the plunder case against him, detained Senator Juan Ponce Enrile petitioned the Supreme Court to furnish him a bill of particulars on the plunder and graft charges filed against him.

“The denial by the Sandiganbayan of petitioner Enrile’s motion for bill of particulars is… not a mere denial of a procedural right granted an accused under the Rules of Court but of rights vested in an accused under the Constitution to assure fairness of the trial of the offense charged. For, indeed, only when the trial is fair can there be a judgment that is just,” Enrile’s petition read, mentioning that he earlier asked the Sandiganbayan for a bill of particulars but was denied.

The detained senator was referring to Section 9, Rule 116, of the Rules of Court which stated that ‘the accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial.’

In law, a bill of particulars is a ‘detailed, formal and written statement of charges or claims given upon a formal request to the court for more detailed information.’

Last year, Enrile was charged of violating the Anti-Graft and Corrupt Practices Act for allegedly using his P172.8 million Priority Development Assistance Fund (PDAF) to fund multi-billion pork barrel scam mastermind Janet Lim-Napoles’ bogus foundations and nongovernment organizations’ ghost projects and programs in exchange of commissions.

Enrile then asked the Supreme Court for a bill of particulars on his purported misuse of the PDAF which was originally intended to be used for projects and programs that would alleviate poverty in the Philippines.

The High Court yesterday granted Enrile’s plea and ‘directed the Office of the Ombudsman to submit a Bill of Particulars, providing the information to be contained in the Court’s judgment.’

With the Court granting his petition, the senator then sought for clarifications in the following questions:

Who among the accused acquired the alleged ill-gotten wealth worth P172 million;

What are the particular overt acts they have committed to constitute the ‘combination’;

What are the particular overt acts which constitute the ‘series’;

What was ‘repeatedly’ received;

What is the basis in describing the said projects as fictitious; and

How did Enrile take advantage of his position and why?

source:  

Philippine Canadian Inquirer on August 12, 2015

Gigi Reyes may be held principally liable in Enrile’s plunder case

MANILA – Senator Juan Ponce Enrile’s former chief of staff Jessica Lucila “Gigi” Reyes may be held ‘principally liable’ for his alleged P172-million commissions from P10-billion pork barrel scam mastermind Janet Lim-Napoles’ bogus foundations’ ghost programs and projects.

With Enrile’s request for a bill of particulars, which will be handed over by the Sandiganbayan anytime soon, Reyes could be held responsible for Enrile’s purported misappropriation of his Priority Development Assistance Fund (PDAF) allocations.

In law, a bill of particulars is a ‘detailed, formal and written statement of charges or claims given upon a formal request to the court for more detailed information.’

Backstory: Enrile seeks fair trial on plunder case, requests for bill of particulars

Napoles’ scam whistle-blowers’ former lawyer Levito Baligod said in a Philippine Daily Inquirer report that if Reyes would not speak soon, she may be presumed as the ‘ultimate recipient’ of Enrile’s alleged kickbacks.

“Enrile’s motion for a bill of particulars intends to highlight the fact that Reyes will be made principally liable for the plunder case because allegations point to her as the recipient of the kickbacks amounting to plunder level,” Baligod said in the report.

“If Reyes will keep silent on this point, she will be presumed to be the ultimate recipient of the kickbacks, hence the mastermind, and everybody else, including Enrile, maybe considered mere accomplices,” he added.

Moreover, Enrile earlier admitted allowing Reyes to handle his PDAF allocations on his behalf. The 91-year-old senator also denied signing some liquidation documents.

Enrile’s plunder case remained on trial. Senators Jinggoy Estrada and Bong Revilla, who were also linked to the multi-billion pork barrel scam, had pending bail petitions.

source:

Philippine Canadian Inquirer on August 24, 2015

Person who defends a stranger not culpable of physical injuries

Dear PAO,
I am being sued for slight physical injuries. But I did not intend to hurt the person because I was only protecting a beggar whom he was mauling at that time. Can I use the defense that I only helped the beggar to clear my name in the criminal case?
Samuel

Dear Samuel,
The crime of slight physical injuries is punishable by one day to 30 days of imprisonment (arresto menor) or payment of fine (Article 266, Revised Penal Code). However, the accused is considered not to have incurred any criminal liabilities, and thus, he shall not be punished with the penalty for the crime of slight physical injuries if his act is one of the justifying circumstances mentioned under Article 11 of the Revised Penal Code.

Defense of a stranger is one of the justifying circumstances under the law. Thus, a person who acts in defense of a stranger incurs no criminal liability. Defense of a beggar may be considered as defense of a stranger and is governed by Paragraph 3 of Article 11 of the said law, to wit:

Anyone who acts in defense of the person or rights of a stranger, provided that first and second requisites mentioned in the first circumstance of this article are present and that the person defending be not induced by revenge, resentment or other evil motive.
In relation to this, Paragraph 1 of Article 11 of the RPC provides:

Anyone who acts in defense of his person or rights provided that the following circumstances concur: Unlawful aggression; Reasonable necessity of the means employed to prevent or repel it; Lack of sufficient provocation on the part of the person defending himself.

Based from the foregoing, you may use defense of a stranger in your criminal complaint to be exonerated from criminal liability since, as you stated, you merely hurt the complainant because you protected the beggar whom he was mauling. However, you can only be successful in invoking defense of a stranger if the requisites under Article 11 of the Revised Penal Code are present. As stated, there must be unlawful aggression on the part of the complainant and that you have employed only the reasonable means to prevent or repel the said aggression. It is likewise important that you are not induced by revenge, resentment or other evil motive in making the defense.

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

Usurpation of authority a criminal act

Dear PAO, 
I am a businessman operating a boutique in a commercial strip. Similar establishments in the area reported a man who identifies himself as an inspector officer of the fire department of our city and often inspects the establishments in our area. Some business owners became suspicious of his actions since he does not seem knowledgeable on what he is doing particularly the technicalities of his inspection when asked about it. Other concerned businessmen communicated with the fire department to confirm if they really have such an inspector tasked to check up commercial establishments. While the fire department confirmed that they indeed had rounds of inspection in our area, they denied that the person who inspected our area was an officer or even a staff of the fire department.

Since knowing this information, the man pretending to be an inspector failed to return, and so we are unable to confront him. Because of this, I am wondering what we can file against that person if he ever comes back and pretends to inspect our establishment. We hope to receive your advice soon. Thank you! 
Mares

Dear Mares,
Based from your narration, you may file a criminal charge against the man pretending to be a fire inspector officer who goes around inspecting business establishments. This person’s actions can be prosecuted under Article 177 of the Revised Penal Code of the Philippines for usurpation of authority or official functions.

This law provides that:

“Art. 177. Usurpation of authority or official functions. — Any person who shall knowingly and falsely represent himself to be an officer, agent or representative of any department or agency of the Philippine Government or of any foreign government, or who, under pretense of official position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government or any foreign government, or any agency thereof, without being lawfully entitled to do so, shall suffer the penalty of prision correccional in its minimum and medium periods.”

As seen from the cited law, there are two ways of committing the crime of usurpation of authority or official functions. First is by pretending to be an officer of the government and the second one is by performing acts of a person in authority or public officer under the pretense of such authority despite being unauthorized to do so.

It is clear in your narration that the person pretending to be a fire inspector officer was performing an act, the inspection of establishments, which is a task being performed by authorized government officers. The said person also misrepresented himself as an authorized officer despite being unauthorized to do so. Thus, this person pretending to be and acting like a fire inspector is clearly usurping the authority and official functions of a public officer which makes him criminally liable for his actions.

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

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

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Dispute over money should first be heard by barangay

Dear PAO,
My brother’s officemate borrowed money from him amounting to P50,000. They agreed that the monthly interest will be at P500 per month and that this amount should be settled on or before January 2015. Unfortunately, until now my brother’s officemate has not paid even a single centavo. He demanded from him several times already but he kept avoiding my brother. He no longer answers my brother’s calls or text messages. Now, my brother filed a report before our Barangay and considers filing a complaint for swindling. Do you think this is the proper remedy? Please advise.
Berna

Dear Berna,
Swindling, or more commonly termed as estafa, is a criminal offense which is punishable under Article 315 of the Revised Penal Code (RPC). In order for an accused to be held responsible for the commission of this crime, it is essential to prove that damage or prejudice, which is capable of pecuniary estimation, was brought upon the private complainant. However, it is equally important to establish that the accused defrauded the private complainant, which may be committed either: (a) with unfaithfulness or abuse of confidence; (b) by means of false pretenses or fraudulent acts; or (c) through fraudulent means. (Id.)

In the situation of your brother which you have relayed to us, we cannot categorically conclude that he was particularly defrauded by his officemate as there is no clear showing that there was unfaithfulness or abuse of confidence on the part of the creditor. Neither is there any showing that false pretenses or fraudulent acts were employed to obtain the money. Rather, what is clear from the facts that you have shared is that your brother lent his officemate P50,000, with the agreement that the said amount will earn a monthly interest of P500, the settlement thereof is due on January 2015, and the same has not been completely paid up to this point.

Accordingly, we believe that filing a complaint for swindling is not the proper recourse. The elements of the crime is wanting, thus pursuing the complaint may only result in the dismissal thereof.

Nonetheless, your brother may opt to file a small claims case against his officemate. Said action must be filed before the Metropolitan Trial Court, Municipal Trial Court or Municipal Circuit Trial Court of the place where he resides. (Section 2 in relation to Section 4, Rules of Procedure for Small Claims Cases as Amended, SC En Banc Resolution dated October 27, 2009 in Administrative Matter No. 08-8-7-SC) However, if they are living within the same city or municipality, he must first bring the matter before the Barangay. This is pursuant to Section 412 of Republic Act (R.A.) No. 7610 which states: “(a) No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon or pangkat secretary or unless the settlement has been repudiated by the parties thereto. x x x”

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Jail escapees not eligible for parole

Dear PAO,
A former neighbor asked for my help because her son has been in jail for several years already, although there was a time that he escaped from detention and was merely arrested again. She would like to know if her son can be qualified to apply for parole. I hope you can enlighten us. Thank you.
Lupi

Dear Lupi,
Parole is a form of conditional release of a person who is detained in a penal confinement or correctional institution. In order to be eligible for parole, the detainee or prisoner must (1) be confined in prison or detention facility to serve an indeterminate sentence, the maximum period of which must exceed one year, pursuant to a final judgment of conviction which has become final and executory, and (2) have served the minimum period of his sentence (Rule 2.1, Rules on Parole, 2006 Revised Manual, Board of Pardons and Parole).

However, not all detention prisoners who possess the abovementioned qualifications will be granted parole. For instance, in the situation of your neighbor’s son, although he may have been convicted with finality, serving an indeterminate sentence, the maximum period of which must exceed one year, and has served the minimum period thereof, he may still be disqualified from applying for parole on account of the fact that he has escaped from confinement. This is in consonance with Rule 2.2 of the Rules on Parole which provides that: “Pursuant to, among others, Section 2 of Act No. 4103, as amended, otherwise known as the Indeterminate Sentence Law, said Act shall not apply, and parole shall not be granted, to the following prisoners: x x x (f) Those who escaped from confinement or evaded sentence; x x x”

Apart from the foregoing, the following are likewise disqualified from applying for parole: those convicted of an offense punished with death penalty, reclusion perpetua or life imprisonment; those convicted of treason, conspiracy or proposal to commit treason or espionage; those convicted of misprision of treason, rebellion, sedition or coup d’ etat; those convicted of piracy or mutiny on the high seas or Philippine waters; those who are habitual delinquents; those granted conditional pardon but violated the terms thereof; those suffering from mental disorder as certified by a government psychiatrist/psychologist; those whose conviction is on appeal or has not yet become final and executory; those who have pending criminal cases; or national prisoners serving sentence in a municipal city, district or provincial jail, unless confinement therein is in good faith or due to circumstances beyond the prisoner’s control (Id.).

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

Know your rights on inquest investigations

Someone calls you and in a panicked voice tells you that he has been caught, arrested without a warrant of arrest, and is now detained at the police station. He asks you what he should do.

The first thing to know is the time when he was arrested and then detained, and the number of hours that has lapsed since then.

This is important because if the person has been detained for far too long without the complainant or the police authorities having immediately lodged a complaint against him and initiate an investigation, then he should be released. Article 125 of the Revised Penal Code deems it unlawful, and thus penalizes, delay in the delivery of detained persons to the proper judicial authorities (12 hours for crimes or offenses punishable by light penalties, 18 hours for crimes or offenses punishable by correctional penalties or their equivalent, and 36 hours for crimes or offenses punishable by capital penalties or their equivalent).

If however the person was subjected to an inquest investigation before the lapse of any of these periods, then some important matters must be taken into account.

An inquest investigation is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest. The conduct of such an investigation covers all offenses under the Revised Penal Code and special laws, rules and regulations, unless a minor is involved, in which case only those offenses punishable by imprisonment of not less than six years and one day are covered. Note that no inquest investigation may be conducted involving a minor without first referring the arrested or detained minor to the local branch of the Department of Social Welfare and Development for proper disposition pursuant to Republic Act 9344, otherwise known as the Juvenile Justice and Welfare Act of 2006.

Inquest investigations may be conducted at any time of the week, but only during the hours of the designated assignments of the assigned inquest prosecutors. They may be conducted at the police station or at the office of the inquest prosecutor.

The person’s presence is generally required during the inquest proceedings, except if he is in the hospital, detained in a place under maximum security, if his presence will involve maximum security risk, or if his presence is not feasible by reason of age, health, sex and other similar factors.

The inquest proceedings start upon receipt by the inquest prosecutor of the affidavit of arrest executed by the arresting officer, the investigation report, the sworn statements of the complainant and the witnesses, and other supporting pieces of evidence. The documents may be subscribed before another prosecutor or a notary public, but should be re-affirmed before the inquest prosecutor.

When the documents are insufficient to establish probable cause to file a case in court, the inquest prosecutor shall direct the arresting officers to complete it, but still within the period prescribed under Article 125 of the Revised Penal Code. Failure to do so constrains the inquest prosecutor to order the release of the detained person.

After determining the completeness of documents, the inquest prosecutor will then determine if the arrest without a warrant was validly effected, by summarily examining the arresting officers on the circumstances surrounding the arrest or apprehension. Should he find that the warrantless arrest was not validly effected, he will have to recommend the release of the detained person and prepare a resolution with the reasons for the action taken. This is without prejudice to serving a subpoena or notice of preliminary investigation on the detained person if the evidence on hand warrants the conduct of a regular preliminary investigation.

On the other hand, should the inquest prosecutor find that the arrest was properly effected, then he asks the detained person if he desires to avail himself of a preliminary investigation. If he does, the detained person, with the assistance of a lawyer, will be made to execute a waiver of the provisions of Article 125 of the Revised Penal Code, and a preliminary investigation will then be conducted. The investigation must be terminated within 15 days from when it started.

If the detained person does not wish to avail himself of a preliminary investigation, then the inquest prosecutor will continue with the proceedings, and will issue a resolution either dismissing the complaint or finding probable cause and recommending the filing of information with the court.

The detained person may apply for and post bail before the filing of the information, without being deemed to have waived his right to a preliminary investigation. In such a case, the inquest prosecutor will simply issue a certification that the person arrested is being charged with an offense in an inquest proceeding and specifying the recommended bail. Also, if there are recovered articles belonging to the detained person, he may file a written request for the release of the articles and file this with the inquest prosecutor.


source:  Businessworld's Jessa G. Wong-Cantano is a Senior Associate at ACCRALAW Davao Branch. jgwong@accralaw.com

Lawmakers seek to criminalize corruption in private sector

TWO party-list lawmakers are pushing to criminalize corruption in the private sector. House Bill (HB) 5298, authored by Cibac Party-list Reps. Sherwin Tugna and Cinchona Cruz-Gonzales, seeks to amend Republic Act (A) 3019, otherwise known as “The Anti-Graft and Corrupt Practices Act.”

HB 5298, now pending at the Committee on Civil Service, seeks the amendment of Section 1 of RA 3019 on the Statement of Policy so that “The Philippine government also recognizes that to fight the evils of graft and corruption, all citizens must participate and take part in it. Consequently, graft and corrupt practices or any act which may lead thereto occurring in the private sector and only between and among persons working for and transacting with the private sector must be repressed and penalized.”

It also amends Section 2 of RA 3019 by redefining the following terms: advantage; agent; entertainment; government; individual, person; principal; public officer and receiving any advantage.

It seeks to add a new Section 7 so that in the corruption by private persons, the following shall be liable for an offense: Any agent who, without reasonable excuse solicits or accepts any advantage as an inducement to or reward for; Any person who, without reasonable excuse, offers any advantage to any agent as an inducement to or reward for; Any agent who, with intent to deceive his principal uses any receipt, account or other document; If an agent accepts an advantage, neither he nor the person who offered the advantage shall be guilty of an offense if the act is done with the permission of his principal, the advantage is unsolicited and the advantage is of small or insignificant value and given as mere ordinary token of gratitude or friendship; and If the act is done with the permission of an agent’s principal, the permission shall be given before the advantage is offered or accepted or if accepted without prior permission, be applied for and given as soon as reasonably possible after such offer or acceptance.

The bill said that any public officer or private individual committing any of the unlawful acts or omissions enumerated in the act shall be punished with imprisonment for six years and one month to 15 years, and a fine of P500,000 to P1 million, perpetual disqualification from public office, and confiscation or forfeiture in favor of the government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.

Furthermore, any person committing the acts mentioned in Section 7 shall be punished with imprisonment of six years and one month to 15 years and a fine of P500,000 to P1 million, and payment of damages to persons prejudiced by the acts committed.

The bill said that all heads of government offices, agencies and departments, as well as heads of corporations and businesses, or of their applicable departments or offices must make available reports of advantages received and permitted under this law. The reports shall be made available for inspection, copying, reproduction by the Office of the Ombudsman at regular working hours on regular business days.

In filing the bill, Tugna noted that while corruption has always been associated with the government, the problem occurs in the private sector, as well. Tugna added the country currently has no laws that penalize corruption in the private sector although graft and corruption is not limited in the government sector.

“People always see that corruption is only prevalent in the government offices, agencies and departments. They believe that public officials are the only ones who abuse their power and position to gain advantage.  But the evils of graft and corruption have always plagued both the public and private sectors of our society in the Philippines,” he said.

Tugna, a deputy majority leader, said it is a reality that people use money, position, or any advantage as an inducement or reward in order to get what they want. These activities are considered forms of graft and corruption according to him.

In line with the thrust of the United Nations Convention Against Corruption, which was signed by the Philippines in November 2006, Tugna said now is the right time to amend RA 3019 to include a provision that will penalize corruption in the private sector.

source:  Business Mirror