Laude: No deal!


I was shocked when Noli De Castro woke me up last Monday to inquire if there was truth to a newspaper report that the Laude family had asked for P36 million and six US visas as settlement for the murder case against Joseph Scott Pemberton. Pemberton had rested his case last Tuesday with the presentation of his third and last witness, Dr. Raquel Fortun. The defense asked and was granted time to file their written offer of evidence and the prosecution was give an even time to comment thereto. Thereafter, the court granted what really is an optional oral summation on  September 14  and set the promulgation of the case on December 14.

I was shocked because with the defense resting their case, it is now a legal impossibility for the family to accept a settlement, even if it wants to. Unlike the previous case of “Nicole” for rape, which could legally be settled, the case versus Pemberton is for murder and can no longer be settled after plea-bargaining because murder is a felony committed against the state.

I do concede that the practice in reality is different from the theory. Criminal cases are settled all the time with private complainants executing affidavits of desistance claiming that the filing of the case was due to a “misunderstanding”. Such was the case with “Nicole” who even belied the fact that she was raped. Naturally, the prosecutors would be compelled to move for dismissal, but not because of the settlement. The ground would be in the absence of a complainant; there would be an impossibility to prosecute. The exceptions to the prohibition on settlement in criminal cases are private crimes such as rape, which can even be settled if the accused should marry the offended party; and “quasi-crimes”, because they are felonies committed not because of criminal intent but because of recklessness or negligence.

Murder, I reiterate, cannot be settled beyond the plea bargain stage.

Even the Rules of Court provision on plea bargain is new. It was not in existence 25 years ago when I was in law school. The rule against compromising criminal cases was absolute when I took up my criminal procedure under the late Justice Serafin Cuevas. I supposed it was introduced as a means of facilitating settlements but subject to the concurrence of two conditions: one, the private complainant must consent, and two, there must be a plea to a lesser offense. The latter condition means that the accused must be convicted of a crime despite the extinguishment of the civil liability.

I am not unmindful that as a private prosecutor, I could suffer the same fate as my law school classmate Evalyn Ursua, private prosecutor for “Nicole”. One fine day, Evalyn found herself fired by Nicole and substituted by another lawyer who signed the affidavit of desistance together with “Nicole”. The possibility is even more pronounced since we have the same City Prosecutor as in the Nicole case; and worse, the counsel of Smith is now Undersecretary of Justice designated as in-charge of the Laude prosecution. The difference though is Jennifer is dead and cannot sign an affidavit of desistance. Moreover, unlike Evalyn who, as our class valedictorian, is far more reserved and academic in her actuations than me; I will be very clear: I will move for the disbarment for any lawyer, private or public, who will talk directly to my clients for any compromise of the Laude case. If Evalyn was more reserved in the manner by which she dealt with the counsels of Smith, expect no such reservations for me. I will scream and kick and will give any such unethical lawyer what they truly deserve: to be purged from the roll of attorneys.

***

On another issue, I was not surprised that the Iglesia ni Cristo ended their five days of mass protest after “they have come to terms with government”. I was vocal against what I saw was a violation of their freedom of religion precisely because I was sure that a terribly unpopular administration would have to strong-arm the Iglesia into supporting its slate in the upcoming 2016 elections. I am sure that Mar Roxas and Leila De Lima got what they wanted.

I do not take this decision against the INC. I completely understand their predicament. The guarantee against state interference in church affairs exists precisely because governments will always attempt to infringe on it. I am only hoping that after 2016, the INC can call it quits with PNoy and his cohorts and can join the nation in henceforth demanding accountability and good governance from the future government.

Had PNoy’s cohorts allowed the legal system to work, the issue that should have been resolved by the Court is whether the internal disciplinary procedures of the INC was consented to by one of its high-ranking ministers and hence, covered by the principle of benevolent neutrality. As it stands, PNoy’s machinations deprived us of what could have been another important INC contribution to our jurisprudence on freedom of religion.

This post first appeared in http://manilastandardtoday.com/2015/09/03/laude-no-deal-/

CANCELLATION NOTICE: Filing of Motion for Preventive Suspension of BOC Lina at Ombudsman


References: Atty H. Harry L. Roque Jr 09175398096 and Atty Joel R. Butuyan 09175229613

Due to unforeseen circumstances, the scheduled filing of the “Motion for Preventive Suspension against BOC Lina” by Omniprime ​at the Ombudsman today, Tuesday, 1 September 2015, at 1:30 pm will not proceed.

Apologies to everyone for the inconvenience this has caused.

Omniprime to file Motion for Preventive Suspension against BOC Lina at the Ombudsman on 1 Sep 2015 at 1:30 pm


Press Release
References:  Atty. H. Harry L. Roque Jr. 09175398096 and Atty. Joel R. Butuyan 09175229613

 

Omniprime Marketing Inc, the winning bidder of a PhP 650-million contract to establish an integrated and modern customs system,  will file a Motion for Preventive Suspension against Bureau of Customs Commissioner Alberto D. Lina at the Office of the Ombudsman on 1 September 2015, Tuesday, 1:30 pm.

 

Omniprime officials will be accompanied by their lead counsels,  Atty. Harry L. Roque Jr and Atty Joel R. Butuyan.

 

Date:  Tuesday, 1 September 2015

Time: 1:30 pm

Venue: Office of the Ombudsman

Centerlaw warns DOJ against overreaching in INC case


Centerlaw release
Reference: Prof. Harry L. Roque, Jr. 09175398096

 

The Center for International Law (Centerlaw) cautioned the Department of Justice yesterday against overreaching in its investigation on the allegations of an expelled minister of the Iglesia Ni Cristo against the influential indigenous Filipino church.

 

“The freedom of expression and of religion occupy the highest rungs of our constitutional values,” said Prof. Harry L. Roque, Jr., chair of the free expression advocacy group. “In fact, the people’s right to freedom of religion is stymied if they are denied their right to express such freedom.”

 

Prof. Roque stated, “In a modern society, the state and the church must recognize the principle of differentiated responsibility. In this case, the state recognizes that it has no competence to rule on theological or doctrinal disputes. But at the same time, the church must also see that it is the legitimate interest of the state to investigate where a crime has been committed.”

 

The idea of differentiated responsibility – or the recognition of the sovereignty of each sphere of society within its own orbit – is crucial to the survival of a pluralistic and just society.

 

Prof. Roque said the DOJ cannot prevent members of the church from practicing their faith, unless it is shown that “there is a clear and present danger” that what they are doing is already injurious to the life, liberty and property of others.”

 

“Freedom of expression is central to our communal quest for the truths that animate who and what we are as a society,” he said. “We deny such freedom, we tell ourselves we are afraid of these central truths and find no relevance for them in our daily lives, and to the meaning of our existence.”

Enrile and the laws of humanity


I have never been a supporter of Juan Ponce Enrile. He was the strong arm of martial law and he got away with it. While Marcos and his cronies had to flee the country after 1986, he stayed as a hero and managed to keep his loot intact. Even at the height of his popularity as Senate President and Presiding Officer during the impeachment trial of former Chief Justice Renato Corona, I was disappointed to find out that his seemingly erudite handling of the proceedings was because he was getting dictations from his junior associates through an ear piece. Simply put: I am not and have never been a fan of JPE.

But when media asked me a year ago about my opinion on the plunder charges filed against him, I opined that the evidence against him was very weak. Consider: neither Janet Lim Napoles nor any of her associates, ever testified that they had directly talked or dealt with JPE. Furthermore, JPE did not sign any document that would prove any illegal transaction that could qualify for plunder. At most, the evidence pointed to the culpability of his former Chief of Staff, lawyer Gigi Gonzales. Even then,   I find it hard to believe that Gigi would profit from the public coffers or would leave evidence that would incriminate her. So my guess is that even the evidence against Gigi will not hold water.

I was therefore not surprised when the Supreme Court granted JPE bail. As a human rights advocate, I believe the right to liberty is such a cherished right that it can only be denied in capital offenses where the evidence of guilt is strong. Ergo, the presumption is that all accused are entitled to bail except when the evidence of guilt is strong.

While I have not followed closely this latest trial of JPE, I surmised that JPE’s position is that since the information filed against him is unclear as to how he allegedly broke the law, the Ombudsman should be compelled to specify the basis for his culpability. This is why he filed a “bill of particulars”, or a motion to compel the Ombudsman to be more specific in her allegations.

Apparently, the Supreme Court agreed with JPE with the additional reasoning that being 91 years old, he is not a flight risk and should be released on humanitarian grounds.

Critics of this decision, Associate Justice Marvic Leonen included, criticized the decision as deviating from the law and jurisprudence and amounted to special treatment for JPE.

Being the anti-Enrile person that I am, I submit the dissenting Justices are wrong.

The dissent substantially is that the grant of bail is because JPE is rich and powerful. Wrong. The majority decision, assuming that it is even solely on the ground of humanitarian reason, does not violate the equal protection clause. Simply put, this clause is a constitutional guarantee that persons similarly situated should be treated alike. Leonen et al say that the basis of distinction is because Enrile is a Senator and is rich. I submit that the correct basis of distinction is that he is 91 years old. To violate the equal protection clause, Justice Leonen et al should show that there are other 91-year-old individuals being prosecuted for a capital offense and denied bail. I am sure that no one as old as Enrile is detained for a non-bailable offense, or is in jail by reason of a final and executory conviction. Why? Because our penal system recognizes that senior citizens, and those who are sick, should be the first to be released from detention on humanitarian grounds. Every year, the DOJ’s Board of Pardon and Parole prepares a list of convicted felons for release on humanitarian grounds. Again, I am so sure that there is no 91-year-old felon that continues to be behind bars. So if convicted felons could be released because of their senior years as a humanitarian gesture, why should not a mere accused —enjoying the presumption of innocence—who is also a senior citizen, not be released from custody on humanitarian grounds?

Secondly, the minority is wrong when they opined that his release on humanitarian grounds is bereft of legal basis. Under our Revised Penal Code, a trial judge may recommend that a person 70 years of age or older should no longer serve the sentence of imprisonment on humanitarian grounds. Again, this has to do with convicted felons. So why can’t the Supreme Court, by analogy, the collegiate boss of individual lower court judges, release a senior citizen also on humanitarian grounds?

Perhaps, the minority’s error is in failing to recognize that all civilized societies recognize the laws of humanity as binding on all states. This finds articulation in the so-called “Martens clause.” This provides that in default of a specific legal basis, humanity shall continue to be protected by public international law, the dictates of conscience, and the laws of humanity.

I rest my case.

“HOLLOW BLOCK FACED” LINA: SUFFERS SECOND REBUFF BY MANILA COURT


Please click here for a copy of the omnibus order

Lawyer Harry Roque, Jr. called on Bureau of Customs Commissioner Alberto Lina to resign from his post, calling him hollow block faced. “Commissioner Lina should resign immediately. He has been rebuff by both the Executive and Judicial Departments, unless he is hollow block faced in his lack of self respect.”

A day after President Ninoy Aquino reversed   his order to open and tax balikbayan boxes, Customs Commissioner Alberto Lina suffered a   second rebuff when the Regional Trial Court of Manila reversed his decision to cancel a P650 million bidding contract aimed at curbing corruption and smuggling activities at the Bureau of Customs.

The contract cancelled by Lina   is   alleged to be the long sought-after solution to rampant smuggling in the Philippines. It aims to implement a fully electronic, paperless and human contact-free system of recording and monitoring   of   Bureau of Customs transactions. At the same time, the project will link the Philippines with   the other ASEAN countries customs systems in time for the implementation of the ASEAN   free trade in December 2015

In its Order dated August 24, 2015,   the Regional Trial Court ordered Lina to stop the cancellation of the project and   was directed to continue with the signing of the contract and to issue the winning bidder a notice to proceed with the implementation of the project.

In its August 24, 2015 Omnibus Order, the Court enjoined Commissioner Lina and his co-respondents from implementing both the 6 May 2015 Letter of Lina aborting the competitive bidding of the PNSW 2 Project and the 7 May 2015 Cancellation Notice of Jose Tomas Syquia in the meantime that the case is heard upon its merit.