PENAL THEORY OF RELATIVITY: Accessories Exempt From Criminal Liability

By Obiter 07

Jason Ivler, popular fugitive, was caught after a shootout with the authorities. It has been reported that his mother may yet be charged for being an accessory by harboring the murder suspect.  While we may sympathize with the victim’s family, such charges may not prosper.  No surprise that the authorities have now changed their charge to obstruction of justice (by harboring him).  We’ll just have to wait as to what the mother will allege in her defense at trial.

But allow us to discuss a little-known section of the Revised Penal Code which may exonerate a person who is an accessory to a crime. 

First of all, an accessory is one who –

                                                                                            

 “having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners:

1.      By profiting themselves or assisting the offender to profit by the effects of the crime.

2.      By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.

3.      By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.” [Article 19]

Under a succeeding article, there are accessories who may be exempt from criminal liability as follows:

“ARTICLE 20. Accessories who are exempt from criminal liability. — The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article.”

While a relative cannot profit from a crime, he may be free from liability for trying to hide the same or assisting in an escape.  And this is based on the recognition of the law on “ties of blood and the preservation of the cleanliness of one’s name, which compels one to conceal crimes committed by relatives”.  Even the law acknowledges that blood is thicker than water.  (Reyes, The Revised Penal Code, Book I (1981), p. 553).

Decided Cases

The Supreme Court has ruled on this Article in a fairly recent case involving the gruesome murder of a maid by her superior Ruth, using violence and boiling water.  The accused Ruth, together with her sister, Ruby, were caught by the police with the body of the victim. The body had been stuffed in a box and was in the trunk of Ruby’s car when they were caught by the Pasig police after a brief chase.  Ruby was driving the car.

While Ruth was found guilty of murder, Ruby was, despite her act of driving the car, her resistance in stopping the car and to immediately opening the luggage compartment when requested by police and her act of claiming that the box only contained dirty clothes, with the Court ruling that:

“Accused-appellant Ruby Mariano is the sister of accused-appellant Ruth Mariano. As such, their relationship exempts appellant Ruby Mariano from criminal liability under Art. 20 of The Revised Penal Code —

xxx PEOPLE vs. LARA, et al.. [G.R. No. 134847.  December 6, 2000.]

The Court relied on the same Article in acquitting an accused where the crime involved the concerted acts of “lifting, carrying and dumping the victim xxx who was still alive and breathing inside the deep well filled with water, head first and threw big stone/rocks inside the well to cover the victim is a clear indication of the community of design to finish/kill victim xxx.”  The Court held that although “the prosecution was able to prove that Appellant Garcia assisted in concealing . . . the body of the crime, . . . in order to prevent its discovery," he can neither be convicted as an accessory after the fact defined under Article 19, par. 2, of the Revised Penal Code. The records show that Appellant Garcia is a brother-in-law of Appellant Ortega [one of those convicted], the latter's sister, Maritess, being his wife. Such relationship exempts Appellant Garcia from criminal liability as provided by Article 20 of the Revised Penal Code.”

It does not matter what the crime is, no matter how heinous it can be, an accused’s relative who falls under the enumeration, can be exempt from liability for any cover-up or for any escape. Of course, being related to a criminal should be punishment enough.

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SHOW ME THE GUILTY: Court TV

By Obiter07

Weekly, we have to be content with just a sketch of the court proceedings relating to the arraignment of a multiple murder suspect.  While we may have wanted to watch it live, just a like a reality show, the Supreme Court has seen fit to ban the live coverage of trial in a resolution that it passed as early as October 22, 1991.[1]

In connection with the libel case filed by then President Aquino against certain journalists, the trial judge had initially allowed a live coverage of the case. One of the accused protested and the Supreme Court issued a resolution banning the same. 

The Court recognized that “granting or denying permission to the media to broadcast, record, or photograph court proceedings involves weighing the constitutional guarantees of freedom of the press,  the right of the public to information and the right to public trial,  and on the other hand, the due process rights of the defendant  and the inherent and constitutional power of the courts to control their proceedings in order to permit the fair and impartial administration of justice.  Collaterally, it also raises issues in the nature of media, particularly television and its role in society, and of the impact of new technologies on law.”  It found that there was no discussion by the Constitutional Commission on the same and Philippine courts have not squarely ruled on the question.

It adverted to the current rule of the Federal Courts of the U.S. banning televisions cameras in criminal trials. And it cited the case of Estes vs. Texas where the United States Supreme Court “held that television coverage of judicial proceedings involves an inherent denial of the due process rights of a criminal defendant.” 

"Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences which might affect their testimony. Also, telecasting not only increases the trial judge’s responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation f his defense. 

"The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public."

In its resolution the Supreme Court held that - “Considering the prejudice it poses to the defendant’s right to due process as well as to the fair and orderly administration of justice and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper.”

In 2001 in another case involving another President, the Supreme Court re-examined this resolution and affirmed the ban. [A.M. No. 01-4-03-SC.  June 29, 2001.] RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE  SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA.

The Court declared that the issue involved “the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. When these rights race against one another, jurisprudence tells us that the right of the accused must be preferred to win.”

The Court seemed afraid of the power of medium as generating both histrionics and in terms of possible public opinion tainting the judicial process.

“With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence, and decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions.”

“Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume firmness of mind and resolute endurance, but it must also be conceded that "television can work profound changes in the behavior of the people it focuses on." Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on them directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it. It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion.”

The right of the accused to a public trial is not the same as “publicized trial.”

“An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.”

There is some irony that the accused who may have subjected his victims to such indignities gets to preserve his own dignity as he is called to account for his crimes.

---

[1] COURT EN BANC RESOLUTION,  OCTOBER 22, 1991, Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case.

  

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Leaving on a Jet Plane: Extradition

By Obiter07

The spectacle last year in the papers referred to an agreement on the transfer of sentenced persons where a Philippine convict was allowed to go to Spain to serve the rest of his sentence under less strenuous surroundings presumably.  This will discuss another specie of flight, not from the authorities, but one that can bring a fugitive straight into their arms.  This is called extradition.  Even now, a famous director is awaiting the results of such a proceeding in Switzerland for an alleged rape he committed so many years ago.

Extradition in the Philippine is still governed by Presidential Decree, P.D. No. 1609 which was issued in 1977.  As defined, extradition is the “removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. (Section 2)”  Conviction is not required as the conduct of an investigation may be sufficient to merit extradition. 

            The aims of extradition are as follows:

“SECTION 3.             Aims of Extradition. — Extradition may be granted only pursuant to a treaty or convention, and with a view to:

(a)        A criminal investigation instituted by authorities of the requesting state or government charging the accused with an offense punishable under the laws both of the requesting state or government and the Republic of the Philippines by imprisonment or other form of deprivation of liberty for a period stipulated in the relevant extradition treaty or convention; or 

(b)        The execution of a prison sentence imposed by a court of the requesting state or government, with such duration as that stipulated in the relevant extradition treaty or convention, to be served in the jurisdiction of and as a punishment for an offense committed by the accused within the territorial jurisdiction of the requesting state or government.”

Procedure

But not all states can request extradition.  It may be requested by another state only if it has an extradition treaty with the Philippines through the following steps:

“SECTION 4. Request; By whom made; Requirements. —

(1)        Any foreign state or government with which the Republic of the Philippines has entered into extradition treaty or convention, and only when the relevant treaty or convention remains in force, may request for the extradition of any accused who is or suspected of being in the territorial jurisdiction of the Philippines.

(2)        The request shall be made by the Foreign Diplomat of the requesting state or government, addressed to the Secretary of Foreign Affairs, and shall be accompanied by:

(a)        The original or an authentic copy of either —

(1)        the decision or sentence imposed upon the accused by the court of the requesting state or government; or

(2)        the criminal charge and the warrant of arrest issued by the authority of the requesting state or government having jurisdiction of the matter or some other instruments having the equivalent legal force.

(b)        A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts;  casia

(c)        The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and

(d)       Such other documents or information in support of the request.”

After the filing of the request, this is forwarded through the Department of Justice which will file a petition with the Regional Trial Court (Section 5). Upon receipt of the petition, the courts will summon the accused to appear and answer same on the day and hour fixed in the order.  A warrant of arrest can already be issued if it appears that his immediate arrest and detention will best serve the interests of justice (Section 6).

In urgent cases, the   requesting state may request for the provisional arrest of the accused pending receipt of the request for extradition (Section 20). Counsel de oficio may be appointed for the accused if he does not have legal counsel (Section 7). The hearing is public unless the accused requests for a hearing in chambers (Section 8).

The proceedings will be governed by the Rules of Court insofar as this will be consistent with the summary nature of the proceedings (Section 9).After hearing, the court can either grant the extradition or dismiss the petition (Section 10). The accused can appeal within ten (10) days from receipt of the decision to the Court of Appeals. The appeal stays the execution of the decision. However, the decision of the Court of Appeals is final and executory (Section 12).

Once the decision is final, the accused will be placed in the custody of the authorities of the requesting state or government, at a time and place to be determined by the Secretary of Foreign Affairs, after consultation with the foreign diplomat of the requesting state or government (Section 16).  Any articles found in the possession of the accused who has been arrested may be seized upon order of the court at the instance of the requesting state or government, and such articles shall be delivered to the foreign diplomat of the requesting state or government who shall issue the corresponding receipt therefore (Section 17).

Decided Cases

The Supreme Court has had occasion to rule on extradition cases.  In Government of United States of America vs. Purganan, et al. [G.R. No. 148571,  September 24, 2002], it held that the right to bail is available only in criminal and not extradition proceedings.

But this ruling was re-examined in GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE REGION vs. HON. FELIXBERTO T. OLALIA, JR., et al. [G.R. No. 153675.  April 19, 2007.] In light of current developments and the increased emphasis on the right of the individual, the Court ruled that:

“At first glance, the above ruling applies squarely to private respondent's case. However, this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other.”  

In its re-examination, the Court ruled that bail is available in extradition proceedings since it is akin to criminal proceedings.  However, t it is the burden of the extraditee to establish by “clear and convincing evidence” that he is not a flight risk.

“But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently."  

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process of extradition, but the length of time of the detention should be reasonable.

xxx

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.  

The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganan correctly points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is a fugitive from justice. Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail.   

xxx

We should not, therefore, deprive an extraditee of his right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases.  While administrative in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction.  In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court.  xxx”

One can no longer be assured that a border-crossing may free you from punishment. Even if bail is available, this relief may be fleeting once the court decides to put you on the next flight to answer for your crimes.

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B.Y.O.V. (Bring Your Own Vest)

By Siesta-friendly

In invites to get-togethers, people at times are told to BYOB or “Bring Your Own Beer” / “Bring Your Own Bottle” (for other alcoholic drinks they may prefer).

In the regular seaside get-togethers we call ferry rides, it might be a good idea to encourage people to “Bring Your Own Vest”, as in Life Vest.  Our local ships and ferries seem to either have life vests in grossly insufficient number (vis-a-vis the passenger count) or if there may be enough, they are alleged to be securely fastened to the boat and eventually useless to those who need them.

If the national statistics on maritime accidents weren’t so high on fatalities, our maritime accidents would be ridiculous. 

As regular inter-island commuters, we should have excellent safety records borne out of experience.  Yet, we have some of the worst.

It might be time we take government negligence and shipping negligence for granted and find ways to protect ourselves.  Why wait for the Coast Guard to get their act together?  Why expect shipping lines to think about passenger safety ahead of business profit?  These things haven’t happened despite our world-record-breaking maritime disasters.

So next you time plan to ride a local ship, ferry or banca, remember to BYOV.  Wear it already if you can.  We don’t see any related legal issues if you do.  You can choose from the inflatables or non-inflatables, it all just depends on how you’ll take the expected side comments).  There have been much too many unnecessary deaths from other people’s negligence or greed.

BYOV can also mean Buy Your Own Vest in anticipation of future devastating typhoons and floods.  You never know.

You could take one paranoiac step further and get a bulletproof vest too.  Remember, Jason Ivler is still on the loose … Claudio Teehankee Jr. is out … the Ampatuans can be exonerated …

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Good and Brave Deeds to Inspire you in the New Year

"Two thieves on a motor-scooter flew by and snatched a womans purse on a street in Wenzhou, China. Surveillance video shows a man riding a bicycle. As he was passing by the front of a hotel near where the thievery happened, he stopped, calmly got off his bicycle, picked it up, and then threw it at the thieves. The bicycle hit them, they lost control, and crashed to the ground."

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