Applications for probation not automatically granted

Dear PAO,
Are applications for probation of an accused who was sentenced to an imprisonment automatically granted by the court? If granted, how long will the offender be placed on probation?
Nadia

Dear Nadia,
Probation is defined as a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer (Section 3(A), Presidential Decree (PD) 968). By probation, a qualified offender will not serve his sentence in jail, but will only be subjected to a community-based rehabilitation or reformation program.

Not all applications for probation, however, are automatically granted by the court. In determining whether an applicant may be granted probation, the court takes into consideration all the information relative to the character, antecedents, environment, mental and physical condition of the offender and available institutional and community resources. It shall deny the application for probation of a convicted offender if it finds that: 1) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; 2) there is an undue risk that during the period of probation the offender will commit another crime; or 3) probation will depreciate the seriousness of the offense committed (Section 8, PD 968).

In addition, the benefit of probation shall also not be granted to the following disqualified offenders: 1) those who have been sentenced to serve a maximum term of imprisonment of more than six (6) years; 2) those who are convicted of subversion or any crime against the national security or the public order; 3) those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than two hundred pesos; 4) those who have been once on probation under the provisions of this decree; and 5) those who are already serving sentence at the time the substantive provisions of this decree became applicable pursuant to Section 33 hereof (Section 9, Ibid.)

Regarding your second question, the period within which a person may be placed on probation shall depend on the term of imprisonment handed by the court. The period of probation for those who are sentenced to imprisonment of not more than one (1) year shall not exceed two (2) years and, in all other cases, the period shall not exceed six (6) years (Section 14, Id.)

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

Protesters who attack policemen face assault raps

Dear PAO, 
I am a police officer detailed somewhere in Metro Manila. One day, together with five other police officers, I was assigned to secure a certain private parking area that has been a frequent venue for rallies and protests without the necessary permits. We were ordered to maintain peace and order in the area, and in the event of a rally, maintain maximum tolerance.

In one instance, a group of around 10 people gathered at the entrance of the parking lot and insisted to enter. My fellow police officers and I calmly asked if they had a permit to use the parking lot for a protest rally, but they could not show any permit. They began being agitated and started to shout foul words at us, and began throwing materials at us such as their banners, rocks, even monobloc chairs.

Bystanders merely walked past us, but some offered help and were trying to pacify the unruly group. The scuffle ended with four of us police officers hurt. I would just like to know if we, police officers, can file any criminal case against them. If so, what particular case? 
PO2 Ramon

Dear PO2 Ramon,
Although the 1987 Constitution guarantees freedom of speech and freedom of expression to all persons, it is not an absolute right. Protest rallies may be done in designated freedom parks; otherwise, there is a need for a permit from the local government unit having jurisdiction over the place where the intended rally is to be held. In your case, the protesters did not have a permit and they were attempting to hold a protest rally in a private parking area. Therefore, you and your police officer companions had the duty to ensure and maintain peace and order. You were correct in standing your ground and exercising maximum tolerance.

As for the scuffle that ensued, the persons who threw things at you and the other police officers while engaged in the lawful performance of your duties could be charged with Direct Assault under Art 148 of the Revised Penal Code (RPC). The pertinent portions of which read:

“Any person or persons who, without a public uprising xxx xxx shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance xxx”

Under this provision of the RPC, those persons are liable for attacking you and the other police officers who were in the lawful performance of your official duties. As law enforcers, you and your companions are considered persons in authority. Hence, throwing things such as banners, rocks, monobloc chairs at police officers is clearly an attack on a person in authority.

On the other hand, it could be argued that the incident happened during a public apprising; and thus, exempting the persons from the crime of Direct Assault. It would then be up to the courts and the evidence presented whether or not there was a public apprising at that time that would exempt those involved from the crime of Direct Assault.

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

After granting bail to Enrile, will Supreme Court do the same for Arroyo?

The Supreme Court has final authority on questions of law, including the Constitution. In the legal community, the Supreme Court’s pronouncement is law. And the gods of Padre Faura have spoken.

Associate Justice Lucas P. Bersamin declared that “Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial.” The Supreme Court ruled, therefore, that the fragile state of Sen. Juan Ponce Enrile’s health presented a compelling justification for his admission to bail.

Supreme Court Associate Justice Marvic Mario Victor F. Leonen vented in his dissenting opinion that the granting of bail to Sen. Enrile for humanitarian reason set a dangerous precedent.

The decision “will usher in an era of truly selective justice not based on clear legal provisions, but one that is unpredictable, partial and grounded on the presence or absence of human compassion,” wrote the most junior member of the Court.

Every court, including the Supreme Court itself, is now bound by that precedent. Bail will be granted if the poor health of the petitioner justifies it, even if not presented by the accused as the basis of his plea for provisional liberty. Sen. Enrile did not present his feeble health as argument for his release from detention.

However, those who expect human rights lawyers to swamp the courts with petition for bail for the hundreds of enfeebled septuagenarian and octogenarian languishing in penal colonies and city jails on the basis of the new law would be terribly disappointed. Justice Leonen said that the decision was ‘especially tailored’ for Enrile. I say it was “coutouriered” exclusively for former President Gloria Macapagal-Arroyo.

Take note of what Associate Justice Bersamin, who penned the decision, said of Sen. Enrile, “With his solid reputation in his public and his private lives, his long years of public service, and history’s judgment of him being at stake, he should be granted bail.” Only former president Gloria Arroyo among the many ailing lolos andlolas in prisons can be described similarly.

Sen. Enrile was confined for a year in a general hospital because his fragile health required continuous medical attention and care.

With the death of Andal S. Ampatuan, Sr. only Mrs. Arroyo, who has remained in custody in the Veterans Memorial Medical Center since December 2013, among the many aged and ill prisoners, is situated similarly.

Sometime in October 2010, retired Supreme Court Chief Justice Artemio V. Panganiban wrote in his Philippine Daily Inquirer column: “The sociological school of legal philosophy holds that to predict how case would be decided (by the Supreme Court), one must consider the personality of the magistrate and the various stimuli attendant to a case per this formula: personality times stimuli equals decision (P x S = D). The personality of a magistrate includes intrinsic qualities like upbringing, education, relationships, etc. Stimuli refer to how he/she responds to externals like public opinion, peer pressure, religious leaders, medical condition, appointing authority, appointment sponsor, close friends, etc.”

That observation strongly suggested that justices of the Supreme Court sometimes decide not only on the basis of an objective interpretation of the law and the established facts but on personal considerations as well. The suggestion led me to believe that some of the landmark decisions of the Supreme Court under former chief justice Renato C. Corona were prompted by personal considerations.

Renato Corona would not have been chosen Chief Justice of the Supreme Court if a provision of the Constitution had been observed. Section 15, Article VII of the 1987 Constitution prohibits the President from making any appointment two months before the presidential election up to the end of his/her term. The presidential election was held on May 10, 2010 and Pres. Arroyo’s term was to end on June 30, 2010.

President-elect Benigno S. C. Aquino III had made known he was not going to replace retired Chief Justice Reynato Puno with Mr. Corona. So, Pres. Arroyo appointed Mr. Corona, her former chief of staff, Chief Justice on May 12, 2010, in violation of the Constitution as the appointment was made within the prohibition period.

The same associate justices set aside the Constitution so that Diosdado Ignacio “Dado” M. Arroyo, son of Mrs. Arroyo, can have a district to represent. The representative of the old 2nd District of Camarines Sur before Mr. Arroyo wanted to be back in Congress as the district’s representative. The Arroyo-subservient Congress broke up the district into two, one for Mr. Arroyo and the other for the former representative, Rolando G. Andaya, Jr.

That act of Congress was questioned before the Supreme Court as there would be disproportionate representation of Camarines Sur in Congress in contravention of the provision of the Constitution on equal representation. However, the Court upheld Congress. So, the district formerly represented in Congress by one congressman is now represented by two whereas the two larger districts are represented by only one each.

The older brother of Dado, Juan Miguel “Mikey” M. Arroyo, also had to have a seat in Congress, his old seat having been taken by his mother. The sycophants of Mrs. Arroyo in the Commission on Elections allowed him to represent Ang Galing Pinoy, the party-list of tricycle drivers and security guards, in Congress. Some groups questioned before the Court the eligibility of millionaire Mr. Mikey Arroyo to represent tricycle drivers and security guards. The Court quickly dismissed the disqualification complaint, saying that the case was outside its jurisdiction.

But the same Corona Court moved swiftly to stop impeachment proceedings against Ombudsman Merceditas Gutierrez following her petition for certiorari and prohibition, when impeachment is well within the province of the House of Representatives.

In 2011, Mrs. Arroyo, who had been charged with electoral fraud, was under a hold departure order (HDO).

On Nov. 15 of the same year, the Corona Court issued a temporary restraining order (TRO) against the HDO. Those who voted in favor of the issuance of the TRO were Chief Justice Corona, Associate Justices Bersamin, Arturo D. Brion, Diosdado M. Peralta, Presbitero J. Velasco Jr., Jose P. Perez, Martin S. Villarama Jr., and. Roberto A. Abad, all appointees of Mrs. Arroyo to the Supreme Court. Mr. Abad retired last year.

According to some nonpartisan lawyers, Chief Justice Corona should have called an en banc session to hear the oral arguments against the TRO before issuing it and making it immediately executory. The undue and unusual haste with which the TRO was issued raised the suspicion that the appointees of Mrs. Arroyo to the Supreme Court were really giving her the chance to flee.

Those who voted in favor of the precedent-setting ruling to grant provisional liberty to the accused for humanitarian reason were Associate Justices Bersamin, Brion, Peralta, Velasco, Perez, and Teresita Leonardo-de Castro (also an appointee of Mrs. Arroyo). Associate Justice Villarama was on leave.

In our democratic system of government the enactment of laws rests with the duly elected representatives of the people, the members of Congress. But eight lawyers unelected by the people have in effect enacted a new law seemingly to benefit a person, Mrs. Arroyo, to whom they are all beholden.

Oscar P. Lagman, Jr. is a member of Manindigan!, a cause-oriented group that takes stands on national issues.

oplagman@yahoo.com

source:  Businessworld

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