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

DSWD opposes lowering of minimum age of criminal responsibility in new Criminal Code

The Department of Social Welfare and Development (DSWD) and the Juvenile Justice and Welfare Council (JJWC) said Tuesday that they strongly oppose the lowering of the minimum age of criminal responsibility (MACR) from 15 years old to 13 as provided in the New Criminal Code – Book I.

According to DSWD Secretary Corazon J. Soliman, the proposed provisions in the New Criminal Code – Book I does not conform with international laws.

Soliman cited that the Philippines is a State Party to the United Nations Convention on the Rights of the Child (UNCRC) and other international treaties promoting and protecting children’s rights.

“Hence, the Philippines has obliged itself to respond to children in conflict with the law, in accordance with these treaties, to effectively serve the best interests of children and, in the short and long term, the interest of the society,” Soliman pointed out.

Soliman added that the proposed provisions are not consistent with the UNCRC and other treaties that call for States to develop a juvenile justice system that does not resort to judicial proceedings and to use the deprivation of liberty only as a last measure.

She said that lowering the MACR in Section 8 of the proposed Code will lead to an increased chances for more teenagers to be subjected to judicial proceedings which is contrary to the spirit and intent of the Convention.

“Moreover, once a higher MACR has been established, the State must not lower it but must only progressively increase the minimum age. The proposed Section 8 provision is a setback to the Philippines efforts in advancing child rights protection,” she stressed.

In 2009, the UNCRC Committee, in its 2009 concluding observations to the Philippines report to UNCRC compliance, commended the country’s passage of the Juvenile Justice and Welfare Act of 2006 (or RA 9344), which raised the MACR from 9 to 15 years old.

It also expressed its concern on the initiatives to lower the MACR.

It particularly urged the Philippines to ensure that the MACR is not lowered.

The DSWD chief added that the proposed Section 9 provision also contravenes the international principle against discrimination when it allowed children to be tried as adults for serious crimes committed.

She added that children do not become adults when they commit serious crimes.

“It is not the offense that determines the full maturity of children but their age, and physical and mental development. Therefore, the full protection and coverage of juvenile justice should be for all children below 18 years old,” she stated.

She cited that the Philippine Constitution guarantees to ensure and defend the right of children from all forms of conditions prejudicial to their development.

“Because of this mandate and by virtue of our international obligations, RA 9344, as amended, was enacted. The proposed provisions on children in Sections 8 and 9 of the Criminal Code are therefore not consistent with the Philippines laws,” she again added.

According to the DSWD chief, criminalizing younger children is “anti-poor”.

Prior to the enactment of RA 9344, studies found that most children involved in crimes were poor.

Most came from dysfunctioning families who lack access to basic needs, parental love and support, with very little education and were usually neglected or abused.

Most committed theft and crimes against property.

“Clearly, such were crimes committed for survival, safety and security,” she said.

She recalled that prior to RA 9344, when the MACR was low, very young children were often arrested and detained without proper procedures.

“It was common to find young children accused of stealing or vagrancy in overcrowded cells, mixed with adult prisoners who had been charged with rape, murder and other serious crimes. Various reports showed how these children became subjected to bullying by guards and older prisoners and had to endure the sub-human conditions of the jail,” she explained.

She cited that since most of them came from poor families, they stayed longer in prison for lack of proper representation in the courts and thereby results to suffering of different kinds of abuse during arrest and detention and came out of jail worse off than before.

The Lady DSWD chief further stressed that what these children need were help and assistance because their families cannot provide for them in which RA 9344 was enacted for.

She cited also that was is highly needed is full implementation of RA 9344 as amended by RA 10630.

She said that RA 10630 follows the principle of restorative justice and provides for a comprehensive and child-sensitive juvenile justice and welfare system.

Under the said law children are not tried as adults but are provided alternative measures for their accountability through diversion and provided with intervention for their rehabilitation and reintegration to the community.

She then called for joining hands in rehabilitating the children and leading away from the life of crime as restorative way that can benefit both the children and the nation as well. PNA

source:  Manila Times

Bail depends on crime and evidence of guilt

Dear PAO,
My neighbor is being accused of committing a drug-related crime. The information says that his case is “non-bailable” Does this mean he can’t post bail? Thank you.
Suzy

Dear Suzy,
Our answer on whether your friend can post bail will depend on the crime he is being accused of and whether the evidence of guilt against him is strong.

Bail is defined as the “security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions herein specified” (Sec. 1, Rule 114, Rules of Criminal Procedure).

Bail emanates from a person’s constitutional right to be presumed innocent until proven otherwise. The right to bail is guaranteed by our Constitution.

Section 13 of Article III of the 1987 Constitution states that, “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. Xxx” Sec. 3, Rule 114 of the Rules on Criminal Procedure states that:

“All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment.”

The Constitution and the Rules are clear that a person has a right to bail unless that person is being charged of an offense punishable by reclusion perpetua, death, or life imprisonment, and the evidence of the person’s guilt is strong.

You did not state what crime your friend was being accused of.

Most probably he is being accused of a drug-related crime being pu–nished with life imprisonment.

Therefore, he is not entitled to bail only when the evidence of guilt is strong against him.

In order to determine this, he must file a petition for bail, so that the court can decide whether or not to grant him bail. If the court, after hearing the Petition, finds that the evidence of guilt is not strong against him, then he will be allowed to post bail.

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

Please be reminded that this advice is based solely on the facts you have narrated and our appreci–ation 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

source:  Manila Times

Cash deposit just one form of bail

Dear PAO,
My cousin has a pending criminal case and he wants to apply for bail. Is this possible? My relatives are considering raising money so that my cousin can do so. But first they would like to know the possibility of bail being granted. Are there other forms of bail aside from cash bail?
Janina

Dear Janina,
Bail is a security given for the release of a person who is lawfully detained in order to guarantee his appearance in court. Cash deposit is the most common kind of bail. But bail does not only take the form of a cash deposit. It may also be in the form of a corporate surety, property bond and recognizance (Section 1, Rule 114, Rules of Court).

In your letter, you made no mention as to what particular criminal case your cousin is facing. You also did not mention at which court his case is pending. Nevertheless, as a rule, bail is granted as a matter of right in the following instances: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in cities and Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment (Section 4, Rule 114, Rules of Court).

If your cousin is already convicted before the Regional Trial Court for an offense not punishable by death, reclusion perpetua or life imprisonment, the grant of bail is discretionary upon the court (Section 5, Rules of Court). Also, the grant of bail is left to the discretion of the court if the offense for which your cousin is being charged is punishable by death, reclusion perpetua or life imprisonment and the evidence of guilt against him is not strong.

The grant of bail, however, is not possible if the offense for which your cousin is being charged is punishable by death, reclusion perpetua or life imprisonment and the prosecution has established that the evidence of guilt against him is strong (Section 7, Rules of Court). Further, your cousin will be denied bail, even if the penalty for the offense he committed is not death, reclusion perpetua or life imprisonment, if: (a) he is a recidivist, quasi-recidivist, habitual delinquent or has committed the crime aggravated by the cir–cumstance of reiteration; (b) he has previously escaped from a penal confinement, evaded sentence or has violated the conditions of his bail without valid justification; (c) he committed the offense while under probation, parole or conditional pardon; (d) the circumstances of his case indicate the probability of flight if released on bail; or (e) there is undue risk that he may commit another crime during pendency of the appeal (3rd paragraph, Section 5, Rules of Court).

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 appre–ciation 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

The inflated truth about our laws

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

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

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