Monday, May 27, 2013

TUBBATAHA GRIEF (The decision to impose a mere USD1.4M or PhP60M fine for the US Navy ship’s grounding on the Tubbataha Reefs Natural Park adds insult to injury)

By Siesta-friendly

As far as we can determine (especially based on the documents available at the Tubbataha Reefs Natural Park website, the provisions re the applicable fines for damages to the Tubbataha Reef are as follows:

“Section 20. Damages to the Reef. - Damages to the reef shall subject the responsible person or entity to the payment of administrative fines set by the TPAMB based on current valuation standards and to the payment of the cost of restoration.”, and

“Rule 21. Damage to the Reef. Damage to the reef shall subject the responsible person or entity to the payment of administrative fines set by the TPAMB based on the current valuation standards, which shall not be less than Twelve Thousand Pesos (PhP12,000.00) per square meter. The violators shall be also liable for the payment of the cost of restoration which shall not be less than 12,000.00 per square meter, or as may be determined by the TPAMB.” [Underline Supplied]

Knowing these provisions and not knowing any other legal provisions contrary or amendatory to AO No. 01 Series of 2012 above, we are perplexed by the TPAMB’s final assessment in the amount of - 

“… PhP58.4 million, USD1.5 million, in fines [payable] by the US Government. This amount is the total of the penalties for violating Tubbataha Act (Republic Act 10067) Section 19 (Unauthorized entry), Section 20 (Damages to the reef), Section 21 (Non- payment of conservation fees), Section 26g (Destroying, disturbing resources) and Section 30 (Obstruction of Law Enforcement Officers).”

“[The fine of] $1.4 million is but a slap on the wrist … However, we respect the rule of law and this is the fine stipulated. The Tubbataha Management Office will not ask for anything more,” she said.”

We wonder why the TPAMB has apparently set P12,000 as the maximum fine per square meter when Rule 21 of AO 1 Series of 2012 does not put a maximum limit on the fines for damages. 

The area damaged has been determined to be 2,345.67 square meters. The reported administrative fine is PhP28,1148,040 (or 12,000 x 2,345.67).  And because it has been reported that no more than PhP60M in fines will be imposed, we assume that the fine for the cost of restoration has been determined to be also PhP28,1148,040 (again, 12,000 x 2,345.67) because PhP28,1148,040 x 2 = PhP56,296,080 which is within the total fine of USD1.5M or PhP58.4M.

The balance (PhP58.4M less PhP56,296,080) should comprise the fines for minor violations namely, Unauthorized entry, Non-payment of conservation fees, Destroying, disturbing resources and Obstruction of Law Enforcement Officers. But what is the fine for arrogance? -

“Park rangers radioed the USS Guardian to advise it was nearing the Tubbataha Reef on Thursday, but the ship captain radioed back telling park rangers to bring their complaint to the US embassy, [TPAMB Superintendent Angelique] Songco told reporters on Monday.

Songco blamed he USS Guardian for turning away park rangers who were about to follow protocol by boarding the ship to check if it had the proper permits, but saw the minesweeper's crewmembers were in "battle position."

Shortly after the warning, the US ship rammed into the Tubbataha Reef, a UNESCO World Heritage Site on the Sulu Sea about 130 kilometers south east of the western island of Palawan.”

So, anyway, why can’t the fines be increased pursuant to Rule 21?  Why has Rule 21 been ignored?  What rule have we missed that supersedes Rule 21?

We have thrice emailed the TPAMB for clarification (we have no budget for a long distance call to Palawan).  At least 1 month has already passed and we haven’t received even a notice that they received our email.

We shall update this post once we find the answers.

Now that another ship (Chinese this time) has crashed into the reef (and damaged a bigger area), we await the imposable fines and hope for a more detailed computation.


Tuesday, May 21, 2013

P5 COIN TRUMPS P1.8B PCOS MACHINE (San Teodoro elects its mayor via a coin toss)

By Siesta-friendly

We were unaware with how tied votes in any local or national elections are settled but when we learned that a tie in the election for the Mayor of San Teodoro in Mindoro was settled with a coin toss, we just had to check the rules. We note that it seems purely a coincidence that a coin was used and not because politicians are two-faced.

“Sec. 240. Election resulting in tie. - Whenever it shall appear from the canvass that two or more candidates have received an equal and highest number of votes, or in cases where two or more candidates are to be elected for the same position and two or more candidates received the same number of votes for the last place in the number to be elected, the board of canvassers, after recording this fact in its minutes, shall by resolution, upon five days notice to all the tied candidates, hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots of the candidates who have tied and shall proclaim as elected the candidates who may be favored by luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if he had been elected by plurality of vote. The board of canvassers shall forthwith make a certificate stating the name of the candidate who had been favored by luck and his proclamation on the basis thereof.

Nothing in this section shall be construed as depriving a candidate of his right to contest the election.” [Underline supplied.]

COMELEC Resolution No. 9648, under Section 28. i. 6. b, likewise states:

“In case there are candidates receiving the same number of votes for the same position, the Board immediately notify the said candidates to appear before them for the drawing of lots to break the tie. The drawing of lots should be conducted within one (1) hour after issuance of notice by the Board to the candidates concerned.” [Underline supplied.]

So why the coin toss? Apparently, it was the local election officer Mr. Reny Pagilagan’s suggestion -

“When the two candidates for mayor of San Teodoro were called to the election office Tuesday morning, Mr. Pagilagan said the two already knew what would happen but still deferred to the election officer to determine the manner of how to break the tie.
“I suggested a coin toss, with whoever flipping the most number of heads after five tries to be declared the winner. They agreed and when I searched my pocket for loose change, I found a five peso coin,” he said. As ground rule, the coin must be tossed by the candidates above their heads and the coin must bounce at least once on the tiled floor, he added.

As if the gods were also having problems making a choice, Mr. Py and Feraren were again tied after the first round, each flipping two heads after five chances.

The second round saw 49-year-old Mr. Feraren, brother of the outgoing town mayor Apollo Feraren, emerging as victor, flipping two heads to Mr. Py’s one.

“It was a suspense thriller,” said Mayor-elect Feraren, relieved the experience was already over.

Mr. Pagilagan said the two rivals embraced after the winner was declared.”

Was all that coin tossing legit? Are the candidates allowed to agree to a different form of settling ties even as the rules specify that there should be “drawing of lots”? Is coin tossing equivalent to drawing of lots?  We have yet to hear any objections to the San Teodoro result but considering how “precious” elective positions are treated in this country, we are waiting ….

It is ironic that despite the advances in technology and the fact that we now have automated elections reportedly costing P1.8B, the result of one contest was decided by a decidedly old method, the luck of the draw, or in this case, the toss of a P5 coin.


Monday, May 13, 2013

THE DEVIL IN THE DETAILS OF THE RECOGNIZANCE ACT OF 2012 (Why The Requirements In Granting Release on Recognizance To An Indigent Accused May Actually Hinder His Release)

By Obiter07

For far too long, we have read about accused individuals - usually high government officials and therefore with means - being granted hospital arrest or, in the case of a former President, being placed under vacation house arrest.  This time, Congress has passed a law that will benefit an accused who is an indigent as defined under Republic Act No. 10389 entitled “AN ACT INSTITUTIONALIZING RECOGNIZANCE AS A MODE OF GRANTING THE RELEASE OF AN INDIGENT PERSON IN CUSTODY AS AN ACCUSED IN A CRIMINAL CASE AND FOR OTHER PURPOSES” or  the "Recognizance Act of 2012″. 

The Act adverts to the policy of the state to promote social justice, citing as well the principle on the presumption of innocence and the Constitution’s recognition of the “right to bail or to be released on recognizance as may be provided by law.”  The law recognizes “the right of persons, except those charged with crimes punishable by death, reclusion perpetua, or life imprisonment, to be released on recognizance before conviction by the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it, upon compliance with the requirements of this Act.” (Section 2).

What does being released on recognizance mean? Under the Act, recognizance is “a mode of securing the release of any person in custody or detention for the commission of an offense who is unable to post bail due to abject poverty. The court where the case of such person has been filed shall allow the release of the accused on recognizance as provided herein, to the custody of a qualified member of the barangay, city or municipality where the accused resides (Section 3).” Hence, an indigent accused will be allowed temporary liberty, albeit to a custodian.

Typically, an accused has to post bail in order to be given provisional liberty. Under Section 1, Rule 114 of the Rules of Court, bail “is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.”  An indigent would normally have no ready access to a surety, to a bond or to a cash deposit.

Under Section 15 of Rule 114, “whenever allowed by law or these Rules, the court may release a person in custody oh nis own recognizance or that of responsible person.”  Prior to the Recognizance Act, release on recognizance was allowed for violation of ordinances and offenses where the penalty is not higher than arresto mayor (i.e., from one month and one day to six months) and/or a fine of P2,000 or both, for youthful offenders under P.D. No. 603 (The Child and Youth Welfare Code) and under P.D. No 968, where the defendant is unable to post bail pending resolution of a petition for probation.[1]

The court has discretion to determine whether an accused is indigent even if the salary and property requirements are not met.  It can consider the “capacity of the accused to support not just himself/herself but also his/her family or other people who are dependent on him/her for support and subsistence (Section 4).”  

However, getting released on recognizance is not that easy since it first requires a favorable resolution from the Sanggunian as approved by the Mayor.  See the requirements below:

“(a) A sworn declaration by the person in custody of his/her indigency or incapacity either to post a cash bail or proffer any personal or real property acceptable as sufficient sureties for a bail bond;

(b) A certification issued by the head of the social welfare and development office of the municipality or city where the accused actually resides, that the accused is indigent;

(c) The person in custody has been arraigned;

(d) The court has notified the city or municipal sanggunian where the accused resides of the application for recognizance. The sanggunian shall include in its agenda the notice from the court upon receipt and act on the request for comments or opposition to the application within ten (10) days from receipt of the notice. The action of the sanggunian shall be in the form of a resolution, and shall be duly approved by the mayor, and subject to the following conditions:

(1)   Any motion for the adoption of a resolution for the purpose of this Act duly made before the sanggunian shall he considered as an urgent matter and shall take precedence over any other business thereof: Provided, That a special session shall be called to consider such proposed resolution if necessary;

The resolution of the sanggunian shall include in its resolution a list of recommended organizations from whose members the court may appoint a custodian.

(2) The presiding officer of the sanggunian shall ensure that its secretary shall submit any resolution adopted under this Act within twenty-four (24) hours from its passage to the mayor who shall act on it within the same period of time from receipt thereof;

(3) If the mayor or any person acting as such, pursuant to law, fails to act on the said resolution within twenty-four (24) hours from receipt thereof, the same shall be deemed to have been acted upon favorably by the mayor;

(4) If the mayor or any person acting as such, pursuant to law, disapproves the resolution, the resolution shall be returned within twenty-four (24) hours from disapproval thereof to the sanggunian presiding officer or secretary who shall be responsible in informing every member thereof that the sanggunian shall meet in special session within twenty-four (24) hours from receipt of the veto for the sole purpose of considering to override the veto made by the mayor.

For the purpose of this Act, the resolution of the sanggunian of the municipality or city shall be considered final and not subject to the review of the Sangguniang Panlalawigan, a copy of which shall be forwarded to the trial court within three (3) days from date of resolution.

(e) The accused shall be properly documented, through such processes as, but not limited to, photographic image reproduction of all sides of the face and fingerprinting: Provided, That the costs involved for the purpose of this subsection shall be shouldered by the municipality or city that sought the release of the accused as provided herein, chargeable to the mandatory five percent (5%) calamity fund in its budget or to any other available fund in its treasury; and

(f) The court shall notify the public prosecutor of the date of hearing therefor within twenty-four (24) hours from the filing of the application for release on recognizance in favor of the accused: Provided, That such hearing shall be held not earlier than twenty-four (24) hours nor later than forty-eight (48) hours from the receipt of notice by the prosecutor: Provided, further, That during said hearing, the prosecutor shall be ready to submit the recommendations regarding the application made under this Act, wherein no motion for postponement shall be entertained. (Section 6)”

As for the good soul willing to be the custodian of the accused, he must have the following qualifications:

“(a) A person of good repute and probity;

(b) A resident of the barangay where the applicant resides;

(c) Must not be a relative of the applicant within the fourth degree of consanguinity or affinity; and

(d) Must belong to any of the following sectors and institutions: church, academe, social welfare, health sector, cause-oriented groups, charitable organizations or organizations engaged in the rehabilitation of offenders duly accredited by the local social welfare and development officer.

If no person in the barangay where the applicant resides belongs to any of the sectors and institutions listed under paragraph (d) above, the custodian of the person released on recognizance may be from the qualified residents of the city or municipality where the applicant resides. (Section 8)”

A custodian guarantees “the appearance of the accused whenever required by the court. The custodian shall be required to execute an undertaking before the court to produce the accused whenever required. The said undertaking shall be part of the application for recognizance. The court shall duly notify, within a reasonable period of time, the custodian whenever the presence of the accused is required. A penalty of six (6) months to two (2) years imprisonment shall be imposed upon the custodian who failed to deliver or produce the accused before the court, upon due notice, without justifiable reason. (Section 9)” 

RA 10389 starts out well by acknowledging the need of the State to protect the accused, qualified to be released on recognizance, from problems related to “protracted trials, prolonged resolution of cases, lack of legal representation, lack of judges, inability to post bail bond, congestion in jails, and lack of opportunity to reform and rehabilitate offenders.” (Sec. 2)  The Act, while laudable presents serious challenges for the indigent accused seeking to avail of its benefits.  Precisely because of his station in life, he may not have the resources to seek and be given attention by the Sanggunian or the Mayor, whose positive action is required for him to be released from behind bars.  In addition, it may be difficult to find anyone who would be willing to act as custodian who could very well end up in prison should the accused fail to appear before the court without justifiable reason.  God may be in the Act’s rationale but the devil is in its details.

[1] Herrera, Remedial Law, Vol. IV, 2001, pp. 414-417.