NOT SO FAST … (Hold Departure and Watch List Orders)

by Obiter07

How do you make someone stay if he or she wants to go?   In all other instances, it may be hard to do, but in a criminal case for example, you can actually get an order to make someone stay, not with you, but in order to face justice.  The Department of Justice in Department Circular No. 41 dated 7 June 2010 has spelled out in detail how this is made operational.

Please note that the right to travel is actually enshrined in the Constitution.[1]  And any effort to restrict or limit this right must have strong basis. As stated by the Supreme Court in one guideline “the indiscriminate issuance of Hold-Departure Orders” can result in “inconvenience to the parties affected the same being tantamount to an infringement on the right and liberty of an individual to travel.”[2]

An individual can be prevented from traveling under two types of orders, the Hold Departure Order and the Watch List Order which can be issued by the Secretary of Justice.

Hold Departure Order

As stated in the Circular, a Hold Departure Order can be issued against (a) an accused in criminal cases under the jurisdiction of the Regional Trial Courts and even (b) against aliens whose presence is required either as respondents or as witnesses.

The Secretary of Justice may issue an HDO, under any of the following instances:

1.      Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs):

a)      If the case against the accused is pending trial, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; and (b) a Certification from the Clerk of Court concerned that criminal case is still pending.

b)      If the accused has jumped bail or has become a fugitive from justice, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; (b) a certified true copy of the warrant/order of arrest; and (c) a Certification from the Clerk of Court concerned that the warrant/order of arrest was returned unserved by the peace officer to whom the same was delivered for service.

2.      Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before a quasi-judicial or an administrative agency of the government.

The application under oath of an interested party must be supported by (a) a certified true copy of the subpoena or summons issued against the alien; and (b) a certified true copy complaint in civil, labor or administrative case where the presence of the alien is required.”

3.      The Secretary may likewise issue an HDO against any person, either on his own, or upon the request by the Head of a Department of the Government, the head or a constitutional body or commission, the Chief Justice of the Supreme Court for the Judiciary, the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.” (Section 1.)

Watchlist Order

Apart from the HDO, the Circular also covers the Watch List Order which is available for (a) criminal cases pending before lower courts, or even for (b) cases still under preliminary investigation.   Again, it can be issued by the Secretary on his own or upon request.

The Secretary of Justice may issue a WLO, under any of the following instances:

1.      Against the accused, irrespective of nationality, in criminal cases pending trial before the Regional Trial Court or before courts below the Regional Trial Courts.

The application under oath of an interested party must be supported by (a) certified true copy of the Information filed with the court; (b) a certified true copy of the Prosecutor's Resolution; and (c) a Certification from the Clerk of Court concerned that criminal case is still pending.

2.      Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, petition for review, or motion for reconsideration before the Department of Justice any of its provincial or city prosecution offices.

The application under oath of an interested party must be supported by (a) certified true copy of the complaint filed; and (b) a Certification from the appropriate prosecution office concerned that the case is pending preliminary investigation, petition for review, or motion for reconsideration, as the case may be.

3.      The Secretary of Justice may likewise issue a WLO against any person, either on his own, or upon the request of any government agency, including commissions, task forces or similar entities created by the Office of the President, pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A. No. 9208) and/or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health.. (Section 2)

Periods of Validity; Lifting and Cancellation

The HDO is valid for five (5) years from issuance while the WLO is good for sixty (60) days (Section 4).

The HDO and WLO can be lifted or cancelled as follows:

1.      When the validity period of the HDO has already expired;

2.      When the accused subject of the HDO has been allowed  to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled;

3.      When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country.

The WLO may be lifted or cancelled under any of the following grounds:

1.      When the validity period of the WLO has already expired;

2.      When the accused subject of the WLO has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge;

3.      When the preliminary investigation is terminated, or when the petition for review, or motion for reconsideration has been denied and/or dismissed.

All applications for lifting/cancellation of HDOs/WLOs must be under oath and accompanied by certified true copies of the documentary evidence in support of the ground relied upon.

Any HDO/WLO issued by the Secretary of Justice either on his own or upon request of government functionaries/offices mentioned in Sections 1 and 2 of the Circular, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health, may be lifted or recalled anytime if the application is favorably indorsed by the government functionaries/offices who requested the issuance of the aforesaid HDO/WLO. (Section 5)

Allow Departure Order

If you wish to leave and the subject orders cannot be lifted or cancelled, you can apply for an Allow Departure Order.

Any person subject of HOO/WLO issued pursuant to this Circular who intends, for some exceptional reasons, to leave the country may, upon application under oath with the Secretary of Justice, be issued an ADO.

The ADO may be issued upon submission of the following requirements:

1.      Affidavit stating clearly the purpose, inclusive period of the  intended travel, and containing an undertaking to immediately report to the DOJ upon return; and

2.      Authority to travel or travel clearance from the court or appropriate government office where the case upon which the issued HDO/WLO was based is pending, or from the investigating prosecutor in charge of the subject case. (Section 7)

Mistaken Identity

In cases of mistaken identity, you have recourse to a certification that you are not the same person whose name appears in the HDO/WLO:

Any person who is prevented from leaving the country because his/her name appears to be the same as the one that appears in the HDO/WLO issued pursuant to this Circular may, upon application under oath, be issued a Certification to the effect that said person is not the same person whose name appears in the issued HDO/WLO.

The Certification may be issued upon submission of the following requirements:

1.      Affidavit of Denial;

2.      Photocopy of the page of the passport bearing the personal details;

3.      Latest clearance from the National Bureau of Investigation (NBI); and

4.      Clearance from the court or appropriate government agency, whenever applicable. [Section 8]

It remains to be seen whether the Circular will withstand constitutional challenge as it can be abused specially when invoked using such grounds as “national security.”   But it is a way to make those who seek to escape accountability by going to foreign lands face the music here. Now if only we can enforce it against fleeing senators and department secretaries for their crimes and scams.

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[1] SECTION 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.(ARTICLE III, Constitution)

[2] OCA CIRCULAR NO. 39-97

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FORGIVE AND FORGET? (Marriage as means to erase a crime)

By Obiter07

Rape is one of the most reprehensible crimes, possibly just lesser in degree than murder.  However, a sometimes overlooked provision of the law does provide that marriage between the accused and his victim extinguishes the crime.  The Revised Penal Codes states thus:

“ARTICLE 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be.

In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the abovementioned crimes.” [Emphasis supplied]

It would appear to be an archaic provision of law, but this has been reiterated in Republic Act No. 8353 or the Anti-Rape Law of 1997 which states:

“Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed.

 
In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.”

Worthy of note is RA 8353’s definition of rape which indicates that it can also be committed by a husband against his wife.[1] 

One would think that this provision of law has rarely, or never, been invoked.   But in a decision just last March 3, 2010, the Supreme Court granted the motion of the accused for extinguishment of the criminal action based on his marriage to the private complainant subsequent to the rape [PEOPLE vs. DE GUZMAN, G.R. No. 185843, March 3, 2010] .   The accused had been convicted for two counts of rape and was already sentenced to reclusion perpetua for each count.  This conviction was even upheld by the Supreme Court in March 2008. 

However, the very same court absolved the accused on account of said after-the-rape marriage to the private complainant, a marriage which was celebrated at the Bureau of Corrections in 2009.  As held by the Court:

“On several occasions, we applied these provisions to marriages contracted between the offender and the offended party in the crime of rape, as well as in the crime of abuse of chastity, to totally extinguish the criminal liability of and the corresponding penalty that may have been imposed upon those found guilty of the felony.  Parenthetically, we would like to mention here that prior to the case at bar, the last case bearing similar circumstances was decided by this Court in 1974, or around 36 years ago.

Based on the documents, including copies of pictures taken after the ceremony and attached to the motion, we find the marriage between appellant and private complainant to have been contracted validly, legally, and in good faith, as an expression of their mutual love for each other and their desire to establish a family of their own.  Given public policy considerations of respect for the sanctity of marriage and the highest regard for the solidarity of the family, we must accord appellant the full benefits of Article 89, in relation to Article 344 and Article 266-C of the RPC.”

The benefit of such a marriage can even extend to co-principals, accomplices and accessories provided there is only one single crime of rape. It does not apply to two or more crimes of rape which are treated independently. [2]

It is difficult to see how a union can even be created from such an act of violence.  But the law provides for such a situation, possibly with a view that this can serve to restore the victim’s reputation or even from belief that love can indeed triumph over all.  When this happens, who serves the sentence, the man who uses marriage as a way out or the woman who must endure his presence? We can only hope that neither has to as only a marriage contracted in good faith qualifies to extinguish criminal liability.[3]

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^[1]Article 266-A. Rape: When And How Committed. - Rape is committed:  
      "1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of  age or is demented, even though none of the circumstances mentioned above be present.  xxx”

^[2] Reyes, The Revised Penal Codec, Book II (1981), p. 894.

^[3] Ibid citing People vs. Santiago, 51 Phil. 68.

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PIRACY OR SELF-DEFENSE? (Israel’s attacks on ships in international waters)

By Siesta- friendly

Israel once occupied Gaza (among other territories).  They have since left Gaza BUT they have continued to control its borders: land, sea and air. Israel’s oppression and domination of Gaza has left the Palestinians miserable, desperate and in dire need of even basic necessities such as food and medicine.   Even the International Red Cross has reported on the situation in “Gaza: 1.5 million people trapped in despair”.

While most world leaders have conveniently ignored the Palestinians’ plight, citizens all over the world have been quite active: from internet blogging to street demonstrations and to occasional attempts to break Israel’s blockade.  The latest was the Freedom flotilla which was hijacked by Israel commandos.  The hijacking caused the deaths of at least 10 activists of the 600 hundred on board the flotilla.  The passengers of the different ships included a former UN Assistant Secretary-General, 3 German Members of Parliament, an Irish Senator, professors, authors, filmmakers, journalists and other peace advocates.

Israel (of course) claims self-defense.  They claim military arms may come in the guise of humanitarian aid and so they have to block ingress and egress to Gaza and occasionally board ships bearing humanitarian aid.  (Of course, no one will have ill intentions toward any group of people if the latter were not land-grabbers.)

There is no contention about where the boarding and killings occurred.  The flotilla was still in international waters and miles away from Israel territory. 

Israel claims another act of self-defense in their shooting of peace activists.  But reports are slowly coming out (as witnesses have started to be released) and it seems it is the people on board the Mavi Marmara (the crime scene) who were trying to defend themselves from the Israeli commandos who forcibly boarded their ship. Videos (though edited) clearly show commando operations.

How can you block ingress and egress to and from an entire community (especially one beyond your jurisdiction) and claim self-defense if this community and its neighbors try to break through your barriers?

And how can you board a ship with military commandos and fully expect submission, then claim self-defense when you are attacked?  How different is it from a thief who is attacked by a property owner, kills the property owner and claims self-defense?  (The activists who have been released have said that Israel forcibly opened their personal belongings, took possession of their belongings and that they were sent them home only with their clothes on their backs.)

Here’s what international law says - 

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (March 10, 1988)[1]

1.      Any person commits an offence if that person unlawfully and intentionally:

(a)    seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

(b)    performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or

(c)    destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or

(d)   places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

(e)    destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

(f)     communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

(g)    injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).  (Article [emphasis supplied]

2.      Any person also commits an offence if that person:

(a)    attempts to commit any of the offences set forth in paragraph 1; or

(b)   abets the commission of any of the offences set forth in paragraph 1 perpetrated by any person or is otherwise an accomplice of a person who commits such an offence; or

(c)    threatens, with or without a condition, as is provided for under national law, aimed at compelling a physical or juridical person to do or refrain from doing any act, to commit any of the offences set forth in paragraph 1, subparagraphs (b), (c) and (e), if that threat is likely to endanger the safe navigation of the ship in question. (Article 3)

Israel is a signatory to this treaty.

The events on the Mavi Marmara are just the latest of Israel’s illegal acts.  In June 2009, Nobel Peace laureate Mairead Maguire and former US Congresswoman Cynthia McKinney together with 20 others were taken into custody while on board the Freegaza boat bearing humanitarian aid to Gaza.  The Israel navy hijacked the boat in international waters. The activists were imprisoned for a week before being deported.

No wonder Israel forces are being called Pirates of the Mediterranean (here's one and another article)

A news report just released states that the youngest victim on the Mavi Marmara was 19-year-old Turkish-American high school student Furkan Dogawho. He was shot 5 times - 4 times in the head and once in the chest. Is that self-defense? 

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[1]  Convention for the suppression of unlawful acts against the safety of maritime navigation. Concluded at 10 march 1988. (n.d.). Retrieved from http://treaties.un.org/doc/db/Terrorism/Conv8-english.pdf

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THE BUTT STOPS HERE (Why our President should not be smoking)

By Siesta-friendly

The incoming (unless he dies of lung cancer in a few weeks) president Benigno ”Noynoy” Aquino III dreams of cleaning his government (meaning the entire country) of corruption.  Yet he can’t even help in cleaning our lungs and the environment of his cigarette smoke.  This despite laws against smoking and pollution and despite his being a lawmaker.

There is no excuse.  There are enough enabling laws and implementing rules banning smoking in public places.

Philippine Clean Air Act Of 1999

Under Section 24 of Republic Act No. 8749 smoking is prohibited inside (a) a public building or (b) an enclosed public place including public vehicles and other means of transport or in (c) any enclosed area outside of one’s private residence, private place of work or any duly designated smoking area.  This provision is implemented by local government units.

Penalty

The Implementing Rules And Regulations of R.A. 8749 provide the punishment of 6 months and 1 day to 1 year imprisonment or a fine of P10,000.00 on any person who smokes inside a public building or an enclosed public place, including public utility vehicles or other means of public transport or in any enclosed area outside of his private residence, private place of work or any duly designated smoking area. (Rule LVI, Section 5)

Tobacco Regulation Act of 2003 (which we’ve discussed in a previous post)

Regardless of the lack of any sign, smoking is absolutely prohibited in the following public places:

1. Centers of youth activity such as playschools, preparatory schools, elementary schools, high schools, colleges and universities, youth hostels, and recreational facilities for persons under 18 years old;
2. Elevator and stairwells;
3. Location in which fire hazards are present, including gas stations and storage areas for flammable liquids, gas, explosives or combustible materials;
4. Within the buildings and premises of public and private hospitals. Medical, dental, and optical clinics, health centers, nursing homes, dispensaries and laboratories;
5. Public conveyance and public facilities including airport and ship terminals and train and bus stations, restaurant and conference halls, except for separate smoking areas; and
6. Food preparation areas.    Under the Implementing Rules of RA 9211, food preparation areas include areas where food or beverage is actually being manufactured or prepared.   (Section 5, Republic Act No. 9211)

In all enclosed places that are open to the general public, private workplaces, and other places not covered under Section 5, where smoking may expose a person other than the smoker to tobacco smoke, the owner, proprietor, possessor, manager or administrator of such places shall establish smoking areas. (Section 6)

All designated smoking areas shall at least have 1 legible and visible sign posted, namely "SMOKING AREA" for the information and guidance of all concerned.  In addition, the sign or not posted shall include a warning about the health effects of direct or secondhand exposure to tobacco smoke.  Non-smoking areas shall likewise have at least 1 legible and visible sign, namely: "NO SMOKING AREA" or "NO SMOKING". (Section 6)

Penalty

Under the Rules and Regulations Implementing Republic Act No. 9211, violations of Sections 5 and 6 are punished as follows:  

(a)    On the first offense, a fine of not less than P500.00 - P1,000.00 shall be imposed.

(b)   On the second offense, a fine of not less than P1,000.00 - P5,000.00 shall be imposed.

(c)    On the third offense, in addition to a fine of not less than P5,000.00 – P10,000.00, the business permits and licenses to operate shall be cancelled or revoked.  (Title VI, Rule I, Section 2.3)

A president’s work areas would likely be mostly public areas so there’s not much room to escape unless the president opts to flaunt the law. Anyone wanting to lead the country should begin by following its laws first. And when it comes to smoking, he should definitely show where the butt stops.

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WHAT IF THERE WAS A TIE? (Breaking ties in local and national elections)

By Siesta-friendly

Just to ventilate: we don’t understand why in the age of electronic transmission, election results transmission in the Philippines suddenly seem to be anachronistic.  Electronic mail can be received in a matter of seconds all around the world.  Yet, the remaining electronic data from ballot machines taken 8 days ago seem to be taking their sweet time or maybe being redirected around the universe to get where they should be.

Plus, continued reports of irregularities give more and more light to COMELEC’s incompetence:  from 60 PCOS (Precinct Count Optical Scan) machines being taken home by a PCOS technician to discrepancies between election data print-outs and the election data stored in the memory cards Not to mention the numerous PCOS machines breaking down since election day.

Time for a revamp of the entire COMELEC membership to have a more credible outcome next time.

So there.

The slow counting of votes for certain positions has also given us time to think about certain scenarios under the Omnibus Election Code like what happens when there is a tie for local and national posts (especially where the race seems close).

When the candidates for President or Vice President are tied

Upon the completion of the canvass of the votes by Congress, the candidates with the highest number of votes for President and for Vice-President shall be declared elected; but in case 2 or more shall have an equal and the highest number of votes, one of them shall be chosen President or Vice-President, as the case may be, by a majority vote of all the Members of Congress in session assembled. (Article II, Section 20, Omnibus Election Code)[1]

If the Certificates of Canvass are not complete

In case there are certificates of canvass which have not been submitted to the Speaker of the House of Representatives on account of missing election returns, a proclamation may be made if the missing certificates will not affect the results of the election.

But if the certificates of canvass which were not submitted on account of missing election returns will affect the results of the election, no proclamation shall be made. The Speaker shall immediately instruct the boards of canvassers concerned to obtain the missing election returns from the boards of election inspectors or, if the returns have been lost or destroyed upon prior authority from the COMELEC, to use any authentic copy of said election returns for the purpose of conducting the canvass, and thereafter issue the certificates of canvass.  The certificates of canvass shall be immediately transmitted to the House Speaker.

Proclamation shall be made only upon submission of all certificates of canvass or when the missing certificates of canvass will not affect the results of the election. (Article II, Section 20)

When other candidates are tied

In other instances where there are 2 or more candidates receiving an equal and highest number of votes, or in cases where 2 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 5 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.  (Article XIX, Section 240)

If there are pre-proclamation controversies

It must first be noted that as to the elections, returns, and qualifications of all members of Congress, elective regional, provincial and city officials, the COMELEC is the sole judge. (Article XXI, Section 249)

As regards pre-proclamation controversies, the COMELEC has exclusive jurisdiction. It may motu proprio (or on its own) or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made, as the evidence shall warrant. (Article XX, Section 242)

We won’t go into the details of election protests. They can be messy and very political.

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[1]  Batas Pambansa Blg. 881, December 3, 1985.  http://www.comelec.gov.ph/laws/omnibus_election_code/oec_art2.html

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