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).

*      *      *

E-mail: attyjosesison@gmail.com.

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

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

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

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 Fr. Ranhilio Aquino

Cybercrime Law: SC upholds online libel law

THE SUPREME COURT (SC) yesterday tamed contentious provisions of the controversial cybercrime law, qualifying the rules pertaining to online libel and participation in an Internet crime.

“The Court partially granted the reliefs sought in the 15 consolidated petitions challenging the constitutionality of Republic Act (RA) 10175,” SC Spokesperson Theodore O. Te said in a press briefing.

Mr. Te said the SC struck down three provisions of the Cybercrime Prevention Act of 2012, and imposed conditions on the constitutionality of three other sections.

The provisions that were declared as unconstitutional include:

• Penalizing the posting of unsolicited commercial communications (Sec. 4c4);

• Authorizing the collection or recording of traffic data in real time (Sec. 12); and

• Allowing the Department of Justice (DoJ) to restrict or block access to suspected computer data (Sec. 19).

The high court upheld the constitutionality of the law’s online libel provisions penalizing the original author of an Internet post, but struck down as unconstitutional a portion which punishes “those who simply receive the post or react to it.”

A section punishing the act of aiding and abetting cybercrimes was sustained as constitutional with respect to: illegal access; illegal interception; data interference; system interference; misuse of devices; cybersquatting; computer-related fraud; identify theft; and cybersex.

However, the high court ruled as unconstitutional the aiding and abetting in offenses punished by child pornography, “unsolicited commercial communications,” and online libel.

DOUBLE JEOPARDY
Section 7, which authorizes the prosecution of an offender in both the cybercrime law and the Revised Penal Code, was struck down with respect to online libel, and child pornography.

The SC rejected the said provision for violating the right against double jeopardy, which protects an accused of being charged with the same offense twice.

A total of 15 petitions have been filed since September 2012 questioning at least 19 provisions of the cybercrime law. Petitioners include journalists, lawyers, activist groups, Internet advocates and lawmakers.

Other provisions that were questioned include a rule imposing a higher degree of penalties for cybercrime, which would be punished by a notch higher than those in the Revised Penal Code.

Petitioners also questioned the power of law enforcement authorities to preserve data, and to order the disclosure of traffic data upon securing a search warrant.

The implementation of the law has been shelved since Oct. 9, 2012, following a 120-day restraining order, which the high court made indefinite on Feb. 5, 2013.

Stakeholders had mixed reactions with the Supreme Court ruling.

In a statement, the DoJ welcomed the high court’s decision, saying it was necessary to balance the power of the state and the rights of citizens.

“A clear legal framework is necessary to protect citizens and balance state duties. We will continue to recommend best practices to improve the law,” the statement quoted Justice Secretary Leila M. de Lima as saying.

DoJ’s cybercrime head, Assistant Secretary Geronimo L. Sy, said: “The hard work begins. We were ready to engage stakeholders to issue the implementing rules and regulations (IRR) as required by law and the procedures that will aid law enforcers to investigate core cybercrime cases.”

Petitioner Party-list Rep. Neri J. Colmenares (Bayan Muna) said they are disappointed with the Supreme Court’s ruling. “You are no longer allowed to tweet or post your anger or disgust with government. This is the meaning of the SC ruling, but we will file for a motion for reconsideration,” he said.

“The government should not be the prosecutor of stained reputations,” Mr. Colmenares said, branding it a “draconian law.”

“No one should go to prison just for expressing oneself, specially on the Internet, where people express their frustration with government,” he added.

RA 10175 was enacted on Sept. 12, 2012 by President Benigno S. C. Aquino III, but opponents quickly said the law gave the government wide powers to curb Internet freedom due to the provisions that impose heavy prison terms for online libel.

The original law also gave the state power to shut down Web sites and monitor online activities, in a country where major protests have been organized through Facebook and Twitter.

Party-list Rep. Terry L. Ridon (Kabataan) vowed to challenge the law. While the high court entertains appeals, it rarely reverses decisions.

“The fight against e-Martial Law is far from over. We call on everyone to up the ante and once again show our collective dissent against this repressive law,” Mr. Ridon said. -- with AFP

source:  Businessworld

Ruby Tuason and the Witness Protection Program

The recent admission of pork barrel scam co-conspirator Ruby Tuason highlights anew the political nature  of the Witness Protection Program. Contrary to popular thinking, the WPP and the discharge of a witness as a state witness are two different things. The first is an executive act which, for all intents and purposes, is under the control and supervision of the Secretary of Justice, The latter is a judicial act and will require that the person sought to be discharged as a state witness first be charged in court.
The Witness Protection Program was created by an act of Congress, RA 6981. Under this statute, a person may either apply to the program if:

a) the offense in which his testimony will be used is a GRAVE FELONY as defined under the Revised Penal Code, or its equivalent under special laws;

b) his testimony can be substantially CORROBORATED in its material points;

c) he or any member of his family within the second civil degree of consanguinity or affinity is subjected to THREATS TO HIS LIFE OR BODILY INJURY or there is a likelihood that he will be KILLED, FORCED, INTIMIDATED, HARASSED OR CORRUPTED to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony.

As a consequence of being admitted into the program, a protected witness may be granted immunity for the crime for which he is testifying, be granted protection and a safe house, and may even keep his loot. This is because according to the web page of the DOJ, a person admitted into the program “may not be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents or writings produced.”

A discharge as state witness, on the other hand, is pursuant to Section 7, Rule 119 of the Revised Rules of Court. Unlike the WPP, the Rules of Court require that a state witness should have already been charged for a crime in court. A person then can be discharged as a State witness if the court is satisfied that:

(a)   There is ABSOLUTE NECESSITY for the testimony of the accused whose discharge is requested;

(b)   There is NO OTHER DIRECT EVIDENCE AVAILABLE for the proper prosecution of the offense committed, except the testimony of said accused;

(c)   The   testimony   of said   accused   can   be   substantially CORROBORATED  in its material points;
 
(d)   Said accused does NOT appear to be the MOST GUILTY; and

 (e)   Said accused has NOT at any time been CONVICTED of any offense involving moral turpitude.”

While both provide for testimonial immunity for the accused who will testify for the state, it is clear that the WPP provides for more benefits. This  includes protection,  a safe house,  and even the right to keep his loot. Moreover, unlike the discharge of a state witness, a person may be admitted into the WPP and be accorded all benefits of the program, including immunity form prosecution, on a very low threshold, that the testimony may be corroborated on its material points. It does not matter hence if the testimony is redundant nor that the testimony will not involve new matters that only the witness can testify on.

Simply put, admission into the WPP -which is tantamount to impunity for one’s criminal acts - is a highly political act. Unlike discharge of a state witness in court, all that is required is that there must be an alleged threat on the life of the witness and that the testimony is subject to corroboration. This is why many are aghast at the possibility that Ruby Tuason, who should be equally be prosecuted as Enrile, Estrada et al, appears to be off the hook. Just because the Secretary of Justice now admits that the cases she filed in connection with the PDAF scam does not have her “slam dunk” testimony, she now wants an equally corrupt character to be off the hook.

I have always believed in good governance and that all corrupt people in government should be thrown behind bars. In this regard, we must ensure that all those who stole from the public coffers should all spend the rest of their lives behind bars, Certainly, the admission to the WPP of Ruby Tuason, including her right now  to keep part of her loot, as I think she has said that she will only return a measly P 40 million, is more reason for decent citizens to be aghast at the manner by which the WPP is being implemented.

The WPP, including the Rules of Court provision on state witnesses, exists to ensure that those who breach the law should be punished for their acts. It certainly should not be implemented in a manner to make some criminals appear luckier than others.

source:  Manila Standard Column of Atty Harry Roque

A lawman or even a civilian can arrest a person attempting, committing or has just committed a crime

Dear PAO,
May the police officers validly arrest anyone without a warrant of arrest?
Norlaine

Dear Norlaine,

Arrest is defined as the taking of a person into custody so that he may be made to answer for the commission of an offense (Section 1, Rule 113, Rules of Court). Since it involves deprivation of liberty, arrests, as a rule, shall be made with a warrant validly issued by a judge. There are instances, however, when a person may be validly arrested without a warrant. These are enumerated in Section 5, Rule 113 of the Rules of Court, to wit:

Section 5. Arrest without warrant; when lawful. —A peace officer or a private person may, without a warrant, arrest a person:

a. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

b. When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

c. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112. (5a)

On the other hand, if none of the foregoing is present, a person who is being accused of committing a crime may only be arrested if there is a warrant of arrest issued against him. To be valid, a warrant of arrest shall comply with the following requisites: 1) It must be based upon probable cause; 2) The probable cause must be determined personally by the judge; 3) The determination must be made after examination under oath or affirmation of the complainant and the witnesses he may produce; and 4) It must particularly describe the person to be arrested (Constitutional Law by Isagani Cruz (2000 Edition), page 142).

We hope that we were able to answer your queries. 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