Newspeg: “Malacañang is providing security for whistle-blower Rodolfo Lozada Jr. but it cannot assure him of immunity from legal processes, a Palace spokesperson said yesterday.” (Inquirer)
xxx
If you feel betrayed and you feel used and tossed aside, by all means, you should air your grievances. In the meantime however, someone should be taking care of your legal entanglements because these will not go away unless faced. Where an arrest warrant has been issued, and unless it is quashed, it would be served sooner or later unless and until the accused posts bail – in which case, the accused would be saved the anxiety of being accosted or harassed with it. Under the revised/ “new” rules of criminal procedure, the posting of bail does not constitute a waiver of the right to question the legality (or to raise the illegality) of the issuance of the arrest warrant, question the regularity or legality of the proceedings itself, the jurisdiction of the court itself, the lack of or irregularity of the preliminary investigation (see provisions below), as long as these questions are raised before arraignment; in other words, under the new rules of criminal procedure, the posting of bail IS NOT AN ADMISSION OR ACCEPTANCE OF THE LEGALITY OF THE PROCEEDINGS,
And this is expressly stated in the new rules.
You may call for a press con if you want.
(the accused if he has ground can also seek immunity but unless and until this is granted, the arrest warrant would be served.)
(you can also bring your own photos; bring your lawyer; you can choose to go on an ordinary day with no fanfare).
Here they are:
Rule 114. Bail. “Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation.—An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case, (new)
While Section 14 provides:
“Sec. 14. Deposit of cash as bail.—The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit. (14a)”
News peg: “(B)ank officials revealed details of a massive “card-skimming” operation that they said was first observed in 2011 and had gradually peaked toward the end of 2012.”
“The problem became so widespread that the three main ATM networks operating in the country—Expressnet, Megalink and Bancnet—joined forces late last year and agreed to jointly implement measures to combat the scam.
xxx
“Nestor Tan, president of BDO Unibank, the country’s largest bank, described the modus operandi of the syndicate or syndicates.
“ ‘The syndicate surreptitiously installs card readers on ATM machines, just on top of the slot where you (insert) your card. To the untrained eye, you will think this is just part of the machine,’ Tan said.
“ ‘At the same time, they install minute cameras on top which records the client’s keystrokes when he enters his PIN,” he added.
“ ‘Within a few hours, they can have a duplicate card and withdraw money from your account,’ he said.” (Inquirer)
xxx
The following are the criminal provisions of the Access Devices Regulation Act (R.A. 8484) under which the perpetrators could be prosecuted, without prejudice to prosecution under the Revised Penal Code (but it’s a lot better to be safe by being careful):
“Sec. 3. Definition of terms. — For purposes of this Act, the terms:
“(a) Access Device — means any card, plate, code, account number, electronic serial number, personal identification number, or other telecommunications service, equipment, or instrumental identifier, or other means of account access that can be used to obtain money, good, services, or any other thing of value or to initiate a transfer of funds (other than a transfer originated solely by paper instrument);
“(b) Counterfeit Access Device — means any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or counterfeit access device;
xxx
“Sec. 9. Prohibited Acts. — The following acts shall constitute access device fraud and are hereby declared to be unlawful:cralaw
“(a) producing, using, trafficking in one or more counterfeit access devices;
“(b) trafficking in one or more unauthorized access devices or access devices fraudulently applied for;
“(c) using, with intent to defraud, an unauthorized access device;
“(d) using an access device fraudulently applied for;
“(e) possessing one or more counterfeit access devices or access devices fraudulently applied for;
“(f) producing, trafficking in, having control or custody of, or possessing device-making or altering equipment without being in the business or employment, which lawfully deals with the manufacture, issuance, or distribution of such equipment;
“(g) inducing, enticing, permitting or in any manner allowing another, for consideration or otherwise to produce, use, traffic in counterfeit access devices, unauthorized access devices or access devices fraudulently applied for;
“ (h) multiple imprinting on more than one transaction record, sales slip or similar document, thereby making it appear that the device holder has entered into a transaction other than those which said device holder had lawfully contracted xxx
xxx
“(j) obtaining money or anything of value through the use of an access device, with intent to defraud or with intent to gain and fleeing thereafter;
“(k) having in one’s possession, without authority from the owner of the access device or the access device company, an access device, or any material, such as slips, carbon paper, or any other medium, on which the access device is written, printed, embossed, or otherwise indicated;
xxx
“(n) effecting transaction, with one or more access devices issued to another person or persons, to receive payment or any other thing of value;
xxx
“Sec. 10. Penalties. — Any person committing any of the acts constituting access device fraud enumerated in the immediately preceding Sec. shall be punished with:
“(a) a fine of Ten thousand pesos (P10,000.00) or twice the value obtained by the offense, whichever is greater and imprisonment for not less than six (6) years and not more than ten (10) years, in the case of an offense under Sec. 9 (b)-(e), and (g)-(p) which does not occur after a conviction for another offense under Sec. 9;
“(b) a fine of Ten thousand pesos (P10,000.00) or twice the value obtained by the offense, and imprisonment for not less than ten (10) years and for not more than twelve (12) years, in the case of an offense under Sec. 9 (a), and (f) of the foregoing Sec., which does not occur after a conviction for another offense under Sec. 9; and
“(c) a fine of Ten thousand pesos (P10,000.00) or twice the value obtained by the offense, or imprisonment for not less than twelve (12) years and not more than twenty (20) years, or both, in the case of any offense under Sec. 9, which occurs after a conviction for another offense under said subSec., or an attempt to commit the same.
“Sec. 11. Conspiracy to commit access device fraud. — If two (2) or more persons conspire to commit any of the offenses listed in Sec. 9 and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as in the case of the doing of the act, the accomplishment of which is the object of such conspiracy. xxx “
Some legal obligations of mall owners to patrons (mall-goers) for crimes occurring inside the mall
Despite malling being a national past-time, existing law and jurisprudence specifically on mall proprietors provide little comfort: as long as mall owners observe what is called “minimal precaution based on foreseeable harm”, patrons who are injured or who suffer damages arising from crimes committed inside the mall would have to show failure on the part of the mall-owner to prevent “foreseeable harm” based on reasonably predictable criminal activity inside the mall.
In the Philippines, we would have to rely on the general provisions of the Civil Code (Art. 2176). Despite increasing criminality inside shopping malls, there are no steps taken to require legal obligations on the part of mall owners for the safety of patrons from crimes (apart from, as I said, 2176, general; on the other hand, 2191 deals with obligations of proprietors for explosions from machinery, excessive smoke, emanations from sewers).
Mall owners would be a big lobby against any such steps, i imagine.
One principle in crime-prevention is visibility and effective presence of competent security personnel per hundred thousand square feet for example; in the case excerpted below however, the presence of one security guard for 765,000 square feet of building premises was deemed minimal precaution that met the minimum standard. Not good if you ask me, but I’m always rushing when i’m in a crowded mall anyway (aversion to large, mindless crowds) ; if you’re a mall rat and can’t help it, you could study the pattern of organized crime inside malls — do they occur on weekends? On the ground floor? – then try not to be there…I’m being facetious. Here’s the case:
Inger v PCK Dev. Co., LLC, 2012 NY Slip Op 05376 [97 AD3d 895], July 5, 2012
Appellate Division, Third Department, Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected August 22, 2012.
“Tragically, just after midnight on June 4, 2006, decedent was stabbed to death by one of her coworkers while finishing her shift as night manager at a Ground Round Restaurant located in leased space in defendant’s mall. Plaintiff—decedent’s daughter…—commenced this action against defendant alleging that its negligence in failing to safely maintain the mall premises and assure the absence of dangerous conditions thereon was the proximate cause of decedent’s injuries. xxx
“ Initially, we agree with defendant that it had no duty to police or supervise activity within the restaurant itself. “It is well settled that an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions is not liable xxx Hence, unless a landlord retains control over leased premises, it owes no duty to third-party occupants for injuries they sustain as victims of criminal activity occurring on the premises xxxHere, it is undisputed that defendant did not have any control over the interior of the restaurant. Indeed, defendant’s security personnel did not have keys to access the restaurant after hours and plaintiff does not affirmatively argue that defendant had a duty to inspect or patrol the restaurant interior. Accordingly, defendant owed no duty to protect decedent from third parties, such as the coworker who attacked decedent, once present within the restaurant behind locked doors after hours xxx
“Defendant did retain a duty under its lease with the restaurant to maintain the mall and its exterior for the safety of defendant’s patrons, employees and tenants, and defendant’s security personnel were charged with securing all areas surrounding tenant spaces, including exterior walkways and parking lots. Plaintiff argues that defendant breached this duty by not providing cameras at the restaurant’s entrances. xxx Defendant’s duty in this regard, however, was only to take reasonable steps to prevent foreseeable harm, which requires evidence that the attack on decedent was reasonably predictable based on prior occurrences of the same or similar criminal activity at the mall xxx
“Here, defendant met its threshold burden of establishing that it took at least ” ‘minimal precautions to protect tenants from foreseeable harm,’ including a third party’s foreseeable criminal conduct” xxx A mall security officer patrolled the premises after hours and saw nothing to alarm her on the night of decedent’s attack. The affidavit of defendant’s then-security director established that decedent’s tragic death was not predictable or expected given that no similar assault had occurred in any of the tenant spaces leased at the mall, and that, apart from one shooting a year earlier in 2005, the criminal activity on the mall premises consisted of much less serious offenses, such as shoplifting, disorderly conduct and fist fights. Plaintiff relies heavily on the 2005 shooting, where an assailant carrying a semi-automatic assault rifle entered the mall through another leased tenant space in broad daylight on a Saturday afternoon and indiscriminately opened fire on people within the store and then in the common area of the mall. We find it unreasonable to suggest that this event was sufficient to put defendant on notice of a risk of an attack such as the one perpetrated against decedent. We hold, instead, that defendant did not owe a duty to decedent, as a matter of law, to protect her from her assailant under the circumstances presented by this case. xxx”
