Tag: Law

Criminal law, Rules of Court

Manila Penn armed assembly and the media

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 Vasily Vereshchagin. Two Hawks (Bashibazouks). 1878-1879. Oil on canvas. The Museum of Russian Art, Kiev, Ukraine. Right-clicked from www.abcgallery.com  

     Comment from val:

       Razon said in an interview that they were following the sop when they arrested the journalists who were with trillanes in the manila pen at the makati stand off. Is this sop on the books, our laws, codes? Was the action by the police lawful?Nov 30, 9:57 AM — 

         

          My comment:                 

          Hi! Thank you for writing. The CIDG who forcibly took the media people into custody said that they were going to be processed, not arrested. But the circumstances of forcing the media people to raise their hands, frisking them, putting tight nylon cuffs and hauling them off to Bicutan, are all acts that evidence an arrest.  Under the Rules of Court provision on arrests, which implement the constitutional right against unreasonable searches and seizures:Warrantless arrests can be validly made when a crime has just been committed in the presence of the arresting officer and the  officer has personal knowledge that the person to be arrested committed the crime. Here, certain crimes were probably committed and the reporters were in the vicinity. There was also reportedly an intelligence report that the Magdalo soldiers had disguised themselves into mediamen and were going to escape.              

              Does an intelligence report qualify as personal knowledge? In the leading case of Posadas, Torres-Yu and Lambino vs. Ombudsman and NBI agent Orlando Dizon, the Supreme Court speaking through then Justice Vicente V. Mendoza,  held that: No, mere intelligence reports do not qualify as personal knowledge as to meet the requirement that the Rules of Court had set; and  the warrantless arrests cannot be validly made on the basis thereof.      

          Therefore, the warrantless arrests made here of the media persons were not valid, were in fact illegal; illegal arrests being also defined in the cited case.             

           So, how does one enforce valid warrantless arrests when there is much confusion and the suspects might have mixed with ordinary persons and the reporters and photographers; and  that there is a need to ferret them out. Lay down the basis of your probable cause:  such as the following: 1) existence of a crime: check: 2) there are suspects in the vicinity: check. 3) approximate height,  build,  the gender,  and physical appearance of the suspects that you are looking for. On the basis of all that, pick out from among the persons in the vicinity those against whom you might have probable cause  (see my checklist) and bring them in for questioning (invite for questioning or arrest):  but you have to charge them within 12/18/36 hours depending on the crime, or else you have to release them. Those against whom you do not have probable cause: verify their I.D.’s,  right there and take down their names and addresses, for future summoning as witnesses. 

               The problem here is, i’m not even sure CIDG Chief Asher Dolina and his deputy (the bespectacled intel officer running alongside him with a checklist and a ballpen, he was ticking off his list and looking at the hapless arrested media persons for a semblance of being systematic) knew what they were looking for, so they just handcuffed everyone. Not legal.     

                    Arresting officers who rough up, handcuff, and haul off anyone at the crime scene without probable cause,  are liable for a host of crimes, which I will write about in the next post.         

                Thanks!       

          XXXXX  

         End notes:   

          Revised Penal Code. Art. 146. Illegal assemblies. — The penalty of prision correccional in its maximum period to prision mayor in its medium period shall be imposed upon the organizers or leaders of any meeting attended by armed persons for the purpose of committing any of the crimes punishable under this Code, or of any meeting in which the audience is incited to the commission of the crime of treason, rebellion or insurrection, sedition or assault upon a person in authority or his agents. Persons merely present at such meeting shall suffer the penalty of arresto mayor, unless they are armed, in which case the penalty shall be prision correccional.chan robles virtual law library             If any person present at the meeting carries an unlicensed firearm, it shall be presumed that the purpose of said meeting, insofar as he is concerned, is to commit acts punishable under this Code, and he shall be considered a leader or organizer of the meeting within the purview of the preceding paragraph. As used in this article, the word “meeting” shall be understood to include a gathering or group, whether in a fixed place or moving. (Reinstated by E.O. No. 187).      

Rules of Court, The President

the impeachment complaint

holbein31.jpg Hans Holbein. The Triumph of Riches (copy by Lucas Vorsterman the Elder after Hans Holbein the Younger). Pen and brown ink with brown, grey and green washes, black and red chalks and blue and white bodycolor. Ashmolean Museum, Oxford, UK. Right-clicked from http://www.abcgallery.com

(Update as of 2:26 pm: According to inquirer.net, Uno through Atty. Tamano filed a 38-page supplemental complaint to the impeachment complaint against the President while Atty. Roque filed an 11-page supplemental complaint to the impeachment complaint against Abalos, impleading the President; the complaint against Abalos was reportedly never archived but remained pending.)

* * *

The “opposition” through representatives said they would either (1) file asupplemental pleading or (2) file a supplement; or (3) file an amended one; or, a fourth option, implead the President in the archived impeachment complaint against Benjamin Abalos.

The Rules of Court govern in a suppletory manner. That means when the rules of procedure of the House do not provide for a specific situation, the Rules of Court can be used to fill the gap.

A supplemental pleading and filing “supplements” are different from each other.

On supplemental pleading: A party may, upon motion, be allowed to file a supplemental pleading to an initiatory pleading (here, the original impeachment complaint) for occurrences that took place after the initiatory pleading was filed.

According to former Justice Regalado, the difference between an amended pleading and a supplemental pleading are as follows:

Quote “ (a)Amended pleadings refer to facts existing at the time of the commencement of the action; supplemental pleadings refer to facts arising after the filing of the original pleading.

Quote “ (b) An amended pleading results in the withdrawal of the original pleading; a supplemental pleading is merely in addition to but does not result in the withdrawal of the original pleading.

Quote “(c) An amended pleading can be made as of right, as when no responsive pleading has been filed; supplemental pleadings are always with leave of court.” Closed-quote. (Regalado, Remedial Law Compendium).

A “supplement” consisting of affidavits on the other hand is different; it’s like, the party simply wants to submit additional annexes; it does not touch the initiatory pleading itself, and, in my practice, can be filed ex parte without leave of court and without even a hearing on it; it’s “non-adversarial” for lack of a better term on my part, ex parte means the party is allowed to file it even without notice and participation of the other party. So, all that would be required is something like a motion to admit Annex “A-1” to “A-27” and Annexes “Z” , “T” “E”, for example.

For a supplemental pleading (the first i discussed), here’s the provision:

“Rules of Court. Rule 10. Sec. 6. Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.”

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Salvador Dalí. The Invisible Man. 1929-33. Oil on canvas. 140 x 81 cm. Museo Nacional Centro de Arte Reina Sofia, Madrid, Spain. Right-clicked from http://www.abcgallery.com

For a “supplement” or “supplements”, that would just be a Motion to Admit Annexes etc. , that’s a motion, and not a pleading so the party filing it does not have to jump the hoops on initiatory pleadings, and amended and supplemental, etc.; the general rules on motions apply; it shouldn’t be much bother because in fact it can be filed ex parte.

For impleading the President in the archived impeachment complaint against Ben Abalos, I blogged about it last October 1, 2007, minutes after Abalos resigned. Here’s the link. following the evidence At that time, nobody thought of impleading the President (as i blogged about) before the impeachment complaint was archived.

There’s also another one. Practically unwritten or implied. You can actually introduce and present evidence on matters newly discovered and not raised in the initiatory pleading. That’s what we did when the House impeached Estrada, and during the trial in the Senate; it’s allowed by the rules of procedure, except in the end, the eleven Senator-judges voted not to allow us anymore to present evidence even if the rules allow it. The rules allow it as follows:

“Rules of Court. Rule 10. Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made.”

But that day in 2001, it wasn’t the Rules of Court that changed the world.

Rules of Court, The President

Take or leave several ten million (the music video is below this post)

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Nicolas Poussin. “Baby Moses Trampling on the Pharaoh’s Crown”. 1645. Oil on canvas. Duke of Bedford collection, Woburn Abbey. Right-clicked from www.abcgallery.com

It’s very ordinary. The enforcement of the writ of execution in People vs. Estrada; the civil indemnity. It’s so boring it was never subject of much discussion. Anyway, if you want to fall asleep, I quoted the rules here.

The civil indemnity based on the Sandiganbayan decision is as follows:

quote “the Court hereby declares the forfeiture in favor of the government of the following:

quote “(1) The total amount of Five Hundred Forty Two Million Seven Hundred Ninety One Thousand Pesos (P545,291,000.00), with interest and income earned, inclusive of the amount of Two Hundred Million Pesos (P200,000,000.00), deposited in the name and account of the Erap Muslim Youth Foundation.

quote “(2) The amount of One Hundred Eighty Nine Million Pesos (P189,000,000.00), inclusive of interests and income earned, deposited in the Jose Velarde account.

quote (3) The real property consisting of a house and lot dubbed as “Boracay Mansion” located at #100 11th Street, New Manila, Quezon City.” closed-quote.

That means that the cash-form of the civil indemnity is: P545,291,000.oo plus P189,000,000.oo (although as i recall this is P189.7 million. Anyway). The total cash civil indemnity is P734,291,000.oo. Subtract the P200 million that is readily attachable in the Erap-Muslim Youth Foundation; and the judgment- obligor here has to put together P534,291,000.oo to complete the satisfaction of the judgment.

Here are the pertinent provisions of the Rules of Court on execution of judgment (here I go again, invoking the rules of court, what else is there to invoke, on something ordinary. Last night on ANC I said something of-the-moment like: the rules of court cannot change the world. Here, we’re not trying to change the world, we’re just executing a writ. Okay, you’re gonna say, don’t delude yourselves thinking this had been an ordinary case. Ok. The prosecution lawyers went into this with eyes wide open. We’re just finishing what we started. We’re using the available rules.)

The rules of court state that any judgment for money shall be enforced by the officer (the sheriff) demanding from the judgment obligor; it shall be paid in cash or check; if it cannot be paid, the officer (sheriff) shall levy upon “properties of the judgment obligor of every kind and nature” giving the judgment obligor the option to choose which properties may be levied upon.

Here are the provisions verbatim. They’re really boring and very ordinary. (Now, if the argument is: when those moneys are put in the National Treasury they will just be pocketed by public officials, that’s another case.)

RULE 39. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

Section 1. Execution upon judgments or final orders.
Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party. The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution. XXX

Sec. 9. Execution of judgments for money, how enforced.
(a) Immediate payment on demand. – The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possesssion within the same day to the clerk of court of the court that issued the writ, or if

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Edouard Manet. “The Road-Menders, Rue de Berne”. 1878. Oil on canvas. Private collection. Right-clicked from www.abcgallery.com

 

the same is not practicable, deposit said amount to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. The clerk of court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfactionn of the judgmen. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him. (b) Satisfaction by levy. – If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, an then on the real properties if the personal properties are insufficient to answer for the judgment. The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. Real property, stocks, shares, debts, credits, and other personal property, or any interest in either real or personal property, may be levied upon in like manner and with like effect as under a writ of attachment. XXX

Sec. 14. Return of writ of execution.
The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished the parties.