Wednesday, November 30, 2011

EXECUTION AS A MATTER OF RIGHT AND DISCRETION

Normally, execution will issue as a matter of right only (a) when the judgment has become final and executory; (b) when the judgment debtor has renounced or waived his right of appeal; (c) when the period for appeal has lapsed without an appeal having been filed; or (d) when, having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin.

RELATIVE THERETO, Execution pending appeal is the exception to the general rule.  

As such exception, the court’s discretion in allowing it must be strictly construed and firmly grounded on the existence of good reasons. "Good reasons," it has been held, consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. The circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity” (ROSARIO T. FLORENDO vs. PARAMOUNT INSURANCE CORP., G.R. No. 167976, January 20, 2010, ABAD, J.).

Tuesday, November 29, 2011

ONLY THE STATE, THROUGH ITS APPELLATE COUNSEL, THE OFFICE OF THE SOLICITOR GENERAL (OSG),WHO HAS THE SOLE RIGHT AND AUTHORITY TO INSTITUTE PROCEEDINGS BEFORE THE COURT OF APPEALS OR THE SUPREME COURT.

The purpose of a criminal action, in its purest sense, is to determine the penal liability of the accused for having outraged the state with his crime and, if he be found guilty, to punish him for it. In this sense, the parties to the action are the People of the Philippines and the accused. (Hun Hyung Park v. Eung Won Choi, supra note 16, at 514).  The offended party is regarded merely as a witness for the state.

Also in this wise, only the state, through its appellate counsel, the OSG, (ADMINISTRATIVE CODE OF 1987, Book IV, Title III, Chapter 12, Section 35 (1); Macasaet v. People, 492 Phil. 355, 375 (2005); Cariño v. De Castro, G.R. No. 176084, April 30, 2008, 553 SCRA 688, 696; People v. Puig, G.R. Nos. 173654-765, August 28, 2008, 563 SCRA 564, 575) who has the sole right and authority to institute proceedings before the CA or the Supreme Court. (Cariño v. De Castro, supra note 24).

As a general rule, the mandate or authority to represent the state lies only in the OSG. Thus:

It is patent that the intent of the lawmaker was to give the designated official, the Solicitor General, in this case, the unequivocal mandate to appear for the government in legal proceedings. Spread out in the laws creating the office is the discernible intent which may be gathered from the term "shall" x x x  

The Court is firmly convinced that considering the spirit and the letter of the law, there can be no other logical interpretation of Sec. 35 of the Administrative Code than that it is, indeed, mandatory upon the OSG to "represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. (Gonzales v. Chavez, G.R. No. 97351, February 4, 1992, 205 SCRA 816, 832; Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc., supra note 12, at 307).

For the above reason, actions essentially involving the interest of the state, if not initiated by the Solicitor General, are, as a rule, (Perez v. Hagonoy Rural Bank, Inc., supra note 20, at 334) summarily dismissed (Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc., supra note 12, at 306). (BURGOS vs. CA, G.R. No. 169711, February 08, 2010, ABAD, J.).






Monday, November 28, 2011

WHEN THE TRIAL COURT ACQUITS THE ACCUSED OR DISMISSES THE CASE ON THE GROUND OF LACK OF EVIDENCE TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT, THE CIVIL ACTION IS NOT AUTOMATICALLY EXTINGUISHED.

Generally, a criminal case has two aspects, the civil and the criminal. The civil aspect is borne of the principle that every person criminally liable is also civilly liable (REVISED PENAL CODE, Article 100).  The civil action, in which the offended party is the plaintiff and the accused is the defendant, (Hun Hyung Park v. Eung Won Choi, G.R. No. 165496, February 12, 2007, 515 SCRA 502, 512-513) is deemed instituted with the criminal action unless the offended party waives the civil action or reserves the right to institute it separately or institutes the civil action prior to the criminal action. (RULES OF COURT, Rule 111, Sec. 1(a)).

The law allows the merger of the criminal and the civil actions to avoid multiplicity of suits. (Salazar v. People, 458 Phil. 504, 514 (2003); Hun Hyung Park v. Eung Won Choi, supra note 16, at 511). Thus, when the state succeeds in prosecuting the offense, the offended party benefits from such result and is able to collect the damages awarded to him.

however, when the trial court acquits the accused or dismisses the case on the ground of lack of evidence to prove the guilt of the accused beyond reasonable doubt, the civil action is not automatically extinguished.

In other words, when the trial court acquits the accused (People v. Santiago, G.R. No. 80778, June 20, 1989, 174 SCRA 143, 151; Metropolitan Bank and Trust Company v. Veridiano II, 412 Phil. 795 (2001) or dismisses the case (Perez v. Hagonoy Rural Bank, Inc., 384 Phil. 322 (2000) on the ground of lack of evidence to prove the guilt of the accused beyond reasonable doubt, the civil action is not automatically extinguished since liability under such an action can be determined based on mere preponderance of evidence. The offended party may peel off from the terminated criminal action and appeal from the implied dismissal of his claim for civil liability. (Metropolitan Bank and Trust Company v. Veridiano II). (BURGOS vs. CA, G.R. No. 169711, February 08, 2010, ABAD, J.).


Friday, November 25, 2011

RELEVANT DOCTRINES ON THE VIZCONDE MASSACRE CASE: ANTONIO LEJANO, HUBERT WEBB, ET. AL., VS. PEOPLE


1.         there is no right for acquittal Due to Loss of DNA Evidence

Webb claims, citing Brady v. Maryland, 373 U.S. 83 (1963) that he is entitled to outright acquittal on the ground of violation of his right to due process given the State’s failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela. The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmela’s rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins. (People v. Yatar, G.R. No. 150224, May 19, 2004, 425 SCRA 504, 514).  If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did.

The Supreme Court ruled that Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland, that he cites has long be overtaken by the decision in Arizona v. Youngblood, 488 U.S. 41 (1988) where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test.  For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime.

Parenthetically, after the trial court denied Webb’s application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused (Webb v. De Leon, G.R. No. 121234, August 23, 1995, 247 SCRA 652; Webb v. People, G.R. No. 127262, July 24, 1997, 276 SCRA 243). They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accused’s lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time

2.         Alibi vs. Positive Identification

Alibi cannot stand against positive identification. But not all denials and alibis should be regarded as fabricated. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet? There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!" without blinking an eye.

Rather, to be acceptable, the positive identification must meet at least two criteria:

First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold.
And second, the witness’ story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. 

Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria. She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecution’s worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI. And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietly—just so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the car’s hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front door—just so to explain the darkened light and foot prints on the car hood.

Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaro’s story that she agreed to serve as Webb’s messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity. To provide basis for Webb’s outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable. Ultimately, Alfaro’s quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi. 


 3.        A documented alibi 

To establish alibi, the accused must prove by positive, clear, and satisfactory evidence (People v. Hillado, 367 Phil. 29 (1999) that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime (People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46).

The courts below held that, despite his evidence, Webb was actually in Parañaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm. If one is cynical about the Philippine system, he could probably claim that Webb, with his father’s connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines’ passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigration’s record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions.

The Court of Appeals rejected the evidence of Webb’s passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent, the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court. The U.S. Immigration certification and the computer print-out of Webb’s arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webb’s passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true. (Section 44, Rule 130, Rules of Court).

The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webb’s passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record (Antilon v. Barcelona, 37 Phil. 148 (1917).

The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus:

While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding "no evidence of lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request.

The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was "not exhaustive and did not reflect all available information." Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S. The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours.

If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webb’s passport and the certifications of the Philippine and U.S.’ immigration services regarding his travel to the U.S. and back. The prosecution’s rebuttal evidence is the fear of the unknown that it planted in the lower court’s minds. 

4.         Effect of Webb’s alibi to others 


 Webb’s documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaro’s testimony will not hold together. Webb’s participation is the anchor of Alfaro’s story. Without it, the evidence against the others must necessarily fall.  


CONCLUSION

In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to one’s inner being, like a piece of meat lodged immovable between teeth. Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce? WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause. (ANTONIO LEJANO vs. PEOPLE OF THE PHILIPPINES, G.R. No. 176389, December 14, 2010, ABAD, J.).



Wednesday, November 23, 2011

A MOTION FOR RECONSIDERATION OF A CHALLENGED ORDER IS A PREREQUISITE TO THE FILING OF A SPECIAL CIVIL ACTION FOR CERTIORARI. ONE OF THE EXCEPTIONS TO SUCH REQUIREMENT IS WHERE THE MATTER INVOLVED IS URGENT.

The general rule is of course that a motion for reconsideration of the challenged order is a prerequisite to the filing of a special civil action of certiorari in a higher court to annul such order. This gives the lower court a chance to correct the errors imputed to it.

But one of the exceptions to such requirement is where the matter involved is urgent.

In Rosario Florendo vs. Paramount Insurance Corporation, the Supreme Court sustained the act of the Court of Appeals in correctly dispensing with the above-mentioned requirement since the RTC had already issued a writ of execution and so its enforcement was imminent.

Moreover, the High Court observed that the issue of the validity of the execution pending appeal was a pure question of law conformably to its ruling in Geologistics, Inc. v. Gateway Electronic Corp., G.R. Nos. 174256-57, March 25, 2009.  Necessarily therefore, a motion for reconsideration is not anymore a condition sine qua non for the filing of a Petition for Certiorari. (ROSARIO FLORENDO vs. PARAMOUNT INSURANCE CORPoration, G.R. No. 167976, January 20, 2010, ABAD, J.). 

Sunday, November 20, 2011

Priceless messages received relative to the 2011 Remedial Law BAR Examination



- THANK YOU SO MUCH SIR KIT. U BUILT MY CONFIDENCE! REMEDIAL LAW WILL MAKE ME A LAWYER! MAY HEAVENLY FATHER bless you more. Thank you for being a Great mentor. 

- BANTOLO-CASTILLON Fanny, Sir. Pinanghahawakan ko tong subject mo. - 

- LEX Cagayan De Oro. Im Sorry but U exceeded my expectation. Not all Reviewers are Teachers, but U are!



- happy birthday po!!! And thank po sa lecture sa NEU last week sobrang nakatulong po sa bar...


atty maraming salamat sa notes nyo :-) salamat godbless u - Marcian Francisco Banares Donato III


-  Mlqu law sir maraming salamat sir


-  Atty., sir, maraming maraming salamat po sa inyo...may God bless you more!- Lex Cotabato City 


-  Better than a thousand days of diligent study is one day with a great teacher. Much Obliged!! - mox layugmox@yahoo.com 


-  Thank you sir for all your notes during the review on remedial. It was very useful. - Ms. Cyril Barrameda 

Friday, November 4, 2011

Tuesday, November 1, 2011

UNIVERSITY OF MANILA PRE-WEEK BAR REVIEW SCHEDULE

JUSTICE ROBERTO ABAD: THE COURT’S DISCRETION IN ALLOWING EXECUTION PENDING APPEAL MUST BE STRICTLY CONSTRUED AND FIRMLY GROUNDED ON THE EXISTENCE OF GOOD REASONS.

Normally, execution will issue as a matter of right only (a) when the judgment has become final and executory; (b) when the judgment debtor has renounced or waived his right of appeal; (c) when the period for appeal has lapsed without an appeal having been filed; or (d) when, having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin. x x x

Execution pending appeal is the exception to the general rule.  As such exception, the court’s discretion in allowing it must be strictly construed and firmly grounded on the existence of good reasons. "Good reasons," it has been held, consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. The circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity (ROSARIO T. FLORENDO vs. PARAMOUNT INSURANCE CORP., G.R. No. 167976, January 20, 2010, ABAD, J.).