OUT OF THE CLOSET INTO THE COURTS: The Gay Party List

By Obiter07

While this is a serious matter involving rights and representation, one cannot help but be amused to see the list of supporters for Ang Ladlad, which is composed of “lesbians, gays, bisexuals, or trans-gendered individuals.”  They sport names like, the   Aklan Butterfly Brigade (ABB), which should put to shame the violent ABB assassination group, the Boys Legion, Cagayan de Oro People Like Us or “CDO PLUS”,  Can’t Live in the Closet, Inc. or “CLIC”  and  Society of Transexual Women of the Philippines or “STRAP.” 

Ang Ladlad had filed a petition for registration as a party-list organization under Republic Act No. 7941.  The Petition was dismissed by the COMELEC on moral grounds, citing both the Bible and the Kuran:

“x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity.

         

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender.”

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women “ye are indeed a people transgressing beyond bounds.” (7.81) “And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!” (7:84) “He said: “O my Lord! Help Thou me against people who do mischief” (29:30).”

The COMELEC likewise cited provisions of the New Civil and Revised Penal Codes on decency or morality and  good customs (Article 1306 and 1409, New Civil Code and Article 201, RPC).

Ang Ladlad filed a petition for certiorari with the Supreme Court which overturned the COMELEC’s rulings.  The High Court held that it is not a requirement that only the sectors enumerated in the party list law (RA 7941) are to be registered under the party list system.  Moreover, there was a violation of the prohibition against the establishment of a religion as provided for in Article III, Section 5 that “[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.” There must be “government neutrality in religious matters.”  The COMELEC’s reliance on the Bible and the Koran to justify the exclusion of Ang Ladlad violated this prohibition.

There was likewise a violation of the equal protection clause by the COMELEC’S targeting of homosexuals “as a class, not because of any particular morally reprehensible act.”  And that the COMELEC made “an unwarranted and impermissible classification not justified by the circumstances of the case.”  The right to freedom of expression was likewise violated to the extent that the COMELEC’s action had precluded Ang Ladlad “from publicly expressing its views as a political party and participating on an equal basis in the political process with other equally-qualified party-list candidates xxx.”

Allowing Ang Ladlad’s registration is in consonance with the country’s international obligations to “protect and promote human rights” particularly the “principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.”

What the COMELEC sought to bar on moral grounds was allowed by the High Court on Constitutional grounds. It does not appear that Ang Ladlad won a seat during the recently concluded elections.  There is a joke that goes that the LGBT community is already well-represented anyway in Congress, except that no one wants to acknowledge his or her membership in this group. 

The right to participate in the elections was a hard-earned victory for the LGBT community.  And they might soon find themselves not only out of the closet and before the courts but in Congress as well.  Then we might just see one big coming out party, maybe even a parade to boot.

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TRENCHCOAT TO TURNCOAT (On Espionage)

By Obiter07

Codes, women spies, a disappearing act, this is the stuff movies are made of.   Assuming that the recent alleged Russian spying in the US occurred in the country, it may be interesting to find out if we have any laws in the statute books against such an activity. It turns out that we do, as provided for in the Revised Penal Code:

ARTICLE 117. Espionage. — The penalty of prision correccional shall be inflicted upon any person who:

1. Without authority therefor, enters a warship, fort, or naval or military establishment or reservation to obtain any information, plans, photographs, or other data of a confidential nature relative to the defense of the Philippine Archipelago; or

2. Being in possession, by reason of the public office he holds, of the articles, data, or information referred to in the preceding paragraph, discloses their contents to a representative of a foreign nation.

The penalty next higher in degree shall be imposed if the offender be a public officer or employee.

The law appears to be of limited application as it only pertains to data relative to the defenses of the country.  Fortunately, Commonwealth Act No. 616 (AN ACT TO PUNISH ESPIONAGE AND OTHER OFFENSES AGAINST THE NATIONAL SECURITY)  expands espionage to include certain other acts.  And to show how long it has been since we’ve had espionage as a crime, the Revised Penal Code and C.A. No. 616 (the “Act”) were passed in 1930 and 1941, respectively.  And the Act even makes mention of the United States!

C.A. NO. 616 adds the following as distinct acts of espionage and as offenses against national security:

SECTION 1.   Unlawfully obtaining or permitting to be obtained information affecting national defense. — (a) Whoever, for the purposes of obtaining information respecting the national defense with intent or reason to believe that the information to be obtained is to be used to the injury of the Philippines [or of the United States],[1] or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defense, owned or constructed, or in progress of construction by the Philippines or under the control of the Philippines, or any of its officers or agents, or within the exclusive jurisdiction of the Philippines, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for the use in time of war are being made, prepared, repaired, or stored, under any contract or agreement with the Philippines, or with any person on behalf of the Philippines, or otherwise on behalf of the Philippines, or any prohibited place within the meaning of section six hereof;[2] or  

(b)        Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts, or induces or aids another to copy, take, make, or obtain, any sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or

(c)        Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts or induces or aids another to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts or induces or aids another to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this Act; or

(d)       Whoever, lawfully or unlawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note relating to the national defense, willfully communicates or transmits or attempts to communicate or transmit the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the Philippines  entitled to receive it; or

e)        Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note or information, relating to the national defense, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of this trust or to be lost, stolen, abstracted, or destroyed, shall be punished by imprisonment for not more than ten years and may, in addition thereto, be fined not more than ten thousand pesos. 

SECTION 2.   Unlawful disclosing information affecting national defense. — (a) Whoever, with the intent or reason to believe that it is to be used to the injury of the Philippines or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to, or aids or induces another to, communicate, deliver, or transmit to any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the Philippines or by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or information relating to the national defense, shall be punished by imprisonment for not more than twenty years, if the offense is committed in time of peace, or by death or imprisonment for not more than thirty years, if it is in time of war.

b)        Whoever, in time of war with intent that the same shall be communicated to the enemy, shall collect, record, publish, or communicate, or attempt to elicit any information with respect to the movement, number, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the Philippines , or with respect to the plans or conduct, or supposed plans or conduct of any military, naval, or air operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense which might be useful to the enemy, shall be punished by death or by imprisonment for not more than thirty years.

Disloyal acts in times of war or peace are likewise penalized:

SECTION 3.   Disloyal acts or works in time of peace. — It shall be unlawful for any person, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military, naval, or air forces of the Philippines: (a) to advise, counsel, urge, or in any manner cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military, naval, or air forces of the Philippines; or (b) to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military, naval, or air forces of the Philippines . The violation of this section shall be punished by imprisonment for not more than ten years, or by fine not more than ten thousand pesos, or both.  

SECTION 4.   Disloyal acts or words in time of war. — Whoever, when the Philippines is at war, shall willfully make or convey false reports or false statements with the intent to interfere with the operation or success of the military, naval, or air forces of the Philippines or to promote the success of its enemies shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military, naval, or air forces of the Philippines, or shall willfully obstruct the recruiting or enlistment service of the Philippines, to the injury of the service of the Philippines, shall be punished by imprisonment for not more than twenty years, or by a fine of not more than twenty thousand pesos, or both.

There can be a conspiracy to violate all the preceding sections if one or more persons do any act to effect the foregoing offenses in Section 1 to 4 (Section 5).  Those who harbor or conceal violators of the Act are likewise covered (Section 6).  When at a military camp, put away that camera as taking pictures of defensive installations is unlawful without the permission of the commanding officer (Section 8).  Taking such pictures from the air is also prohibited (Section 9). But what about satellite pictures? 

Assuming you did not take the pictures yourself, reproducing, selling or distribution such photographs is punishable (Section 10).  Destroying war material during wartime, making war material in a defective manner or injuring national defense material are all offenses (Sections 11- 13).

There appears to be a dearth of actual decided cases on espionage.  

 However, there is one case which mentions a Russian, Mr. Borovsky, who was made subject to deportation for espionage activities, among other things.  The Court held that pending deportation, the Government can hold an undesirable alien for a reasonable length of time.  The courts will step in only if the deportation being awaited  is a pretense for imprisonment or if he has been held for too long (BOROVSKY vs. THE COMMISSIONER OF IMMIGRATION, et al., G.R. No. L-2852, June 30, 1949).  The charge of espionage has been used before to justify detention during martial law (DUQUE vs. VINARAO, et al., G.R. No. L-40060.  March 21, 1975).  And the threat of espionage has been employed as basis to evacuate persons of Japanese ancestry and their internment until their loyalty was established (IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., et al. vs. HON. JUAN PONCE ENRILE, et al., G.R. No. L-35538.  September 17, 1974 and companion cases citing Korematsu v. United States (323 U.S. 214 [244]). 

We have had our share of double agents.  In PEOPLE vs. DIMZON, [G.R. No. L-1565.  January 9, 1951], the accused was found guilty with the Court opining that if “deeds speak louder than words, there is good ground to believe that the accused was a collaborator first and foremost and a guerrilla last. Whereas his alleged contribution to the guerrilla cause was practically nil, his aid to the enemy was long-continued, effective, valuable and actually harmful to hid people. With this contrast in mind, the People's Court was not far wrong, if it was not wholly right, in finding that the accused merely followed the familiar of collaboration' stratagem of burning candles for both sides; and such scheme was perhaps deemed all the more alluring at the time the defendant made the motions of catering to the good will of some guerrillas, because then the American forces were winging their way back to the Philippines and the approach of the day of reckoning was not hard to visualize.”

B.P. Blg. 39 provides for the registration of foreign agents or “any person who acts or agrees to act as political consultant, public relations counsel, publicity agent, information representative, or as agent, servant, representative, or attorney for a foreign principal or for any domestic organization subsidized directly or indirectly in whole or in part by a foreign principal. xxx.”   It is not a license for agents to spy but it helps delineate the purpose of their business here.   And those not registered are then made suspect.

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[1] As cited in Padilla, Criminal Law, Revised Penal Code Annotated, Book II (1976), p. 70, all references to the United States may be deemed repealed upon the inauguration of the Republic of the Philippines. This phrase was retained in this Section only for academic purposes. It has been deleted in the rest of the citation.

[2] This appears to be a typographical error.  Under Section 7, the President can, by proclamation, designated certain places as prohibited.

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Missing Ronaldinho and other necessary features of the World Cup

By Siesta-friendly

Dunga maybe to blame for the absence of Ronaldinho (and perhaps much of the fun and flair) at World Cup 2010 in South Africa.  But there are more serious aspects of football that should have been present at the 3^rd World Cup of the 21^st century.

Video and electronics technology

It’s used in the Olympics, grand slam tennis, streets, banks, convenience stores … why not in football?

In the words of FIFA (aka Sepp Blatter, the overlord of football) as of March 2010, here are the 5 main reasons why FIFA doesn’t want technology in football: [1]

1. “The universality of the game: one of the main objectives of FIFA is to protect the universality of the game of association football. This means that the game must be played in the same way no matter where you are in the world. If you are coaching a group of teenagers in any small town around the world, they will be playing with the same rules as the professional players they see on TV.”

In other words, if players can dive left and right all over the world unseen by referees then the same should be allowed to happen as well at the World Cup.  How universally fair.

And so we have to suffer antics like Spain’s Fernando Torres’ below who, after being apparently clipped by his own foot stays, down long enough for the ref to see him and figure that the fall was due to a foul.  Since it was a “foul” in front of the penalty box, the ref deemed it worthy of a red card against Chile’s Marco Estrada.

Denying that there is a world of difference between football at World Cup level and football-on-the-streets level makes no sense. The quality of play at the World Cup is not the same as on any other level (even the famed Spanish Primera Liga, Italy’s Serie A or the English Premier League); the size of the pitch is not the same for all levels of football; even FIFA acknowledges that the World Cup is a big deal by having countries from all over the world compete against each other, by opening bids for countries to host the event, soliciting multinationals to bid for multi-billion dollar franchise rights, allowing it to happen only once every four years and requiring a newly created world cup ball each time.  Do any of these happen at the local level? Is there a trophy locked inside a customized Louis Vuitton case for each tournament played around the world?

2. “The human aspect: no matter which technology is applied, at the end of the day a decision will have to be taken by a human being.”

If there is a way to have accurate and clear officiating, who cares if the referee becomes redundant?

3. “The financial aspect: the application of modern technologies can be very costly, and therefore not applicable on a global level.”

FIFA’s concern about money for the game seems hypocritical after inaugurating this year its $196M new headquarters in Zurich.  FIFA can find funds for a new headquarters with “five underground levels, a fitness centre, meditation room, geographically themed parks and a full-size international football pitch” but shoots down proposals to raise the quality of the officiating (and consequently, the game) for lack of funds.

FIFA can give any organization (or country) a complete course on how to earn billions from media and product franchising.  It is hard to believe it cannot overcome any funding problems especially if it is for the development of the game.

Credit: http://www.africancrisis.co.za/images/Cartoon_Zapiro_2010_FIFA_World_Cup_South_Africa.gif

4. “The extended use of technology: the question has already been raised: if the IFAB had approved goal-line technology, what would prevent the approval of technology for other aspects of the game? Every decision in every area of the pitch would soon be questioned.” 

Fair play should be achieved not just at the goal line but everywhere on the pitch the game is played. Technology to spot dives, handballs and other infractions helps complete the essence of fair play.

Like the officials during the Argentina-Mexico match, goal-line technology would also not have detected Argentinian Carlos Tevez’s offside position just before his goal against Mexico.

Credit: Worldcupblog.org http://www.worldcupblog.org/world-cup-2010/carlos-tevez-offside-goal-vs-mexico.html

5. The nature of the game: association football is a dynamic game that cannot be stopped in order to review a decision. If play were to be stopped to take a decision, it would break up the rhythm of the game and possibly deny a team the opportunity to score a goal. It would also not make sense to stop play every two minutes to review a decision, as this would go against the natural dynamism of the game."

On the contrary, a lot of players’ acting that delays the game will be avoided if they knew their faking or sneaky actions could merit them a yellow or red card once found out via instant replay.

Had appeal for video replay been allowed Brazil for the red card given to Kaka, the officials would have seen that Kaka’s warding off Ivory Coast’s Kader Keita  on the latter’s chest was not the vicious facial attack that Keita faked it was.

There’s too much at stake at the World Cup that much care and attention should be given to count every legal goal and every infraction made.  One can’t help imagining FIFA focusing more on refining media and merchandising franchises for the good of FIFA than on refining the game’s rules for the good of the sport.

Additional referees

The 3 officials looking after the play on the pitch have to see everything occurring between 22 players in an area between 90-120 meters long and 45-90 meters wide.  3 officials have long been insufficient except only to FIFA.  At the very least, there should be additional officials posted near each goal post where most of the action occurs and remain unseen by the 3 officials. 

Much of that pushing and tugging would be prevented by the additional goal post referee.  There have been many handballs, dives and goals that were not seen by the 3 officials in this 2010 world cup alone.

There’s the now famous double handball by Brazil’s Luis Fabiano just before he kicked the ball into Ivory Coast’s net, totally unseen by any official.

Credit: guardian.co.uk /http://www.guardian.co.uk/football/2010/jun/21/luis-fabiano-brazil-world-cup

Credit: Diasporadical.wordpress.com  http://diasporadical.wordpress.com/2010/06/21/kakas-red-card-vs-fabianos-handball/

It seems impossible that the officials missed seeing Frank Lampard’s goal against Germany (as the ball hit the top bar then the ground then the top bar again then back out into the pitch) but that’s exactly what happened.  A goal post official would likely have seen and counted the possible game-changing goal.  Goal-line technology could have also helped.

Credit: The Huffington Post http://www.huffingtonpost.com/2010/07/12/the-best-and-worst-world_n_642489.html#s112556

Goaltending

The rule in basketball of counting the point as if the ball went in when the ball is interfered with on its obvious way into the basket should be allowed to apply in football. Take the case of Uruguayan Luis Suarez during the match between Ghana and Uruguay when he knowingly and illegally used his hands to block the clear shot-on-goal by Dominic Adiyiah during the dying seconds of the match.  Sending off Suarez and allowing a penalty kick instead of conceding the goal point was unfair.  To top if off, Mr Suarez was proud to have done what he did as the denied goal allowed Uruguay to advance to the next round (while eliminating Ghana).  The lack of a goaltending rule condones cheating as well as pride in cheating.

Credit: Telegraph.co.uk http://www.telegraph.co.uk/sport/football/world-cup-2010/teams/uruguay/7870383/World-Cup-2010-Uruguays-Luis-Suarez-recieves-one-match-ban-for-handball.html

Traditional ball

  

Another example of FIFA’s hypocritical attitude is having a newly-designed ball for each world cup while continuing to cite universality in football (“that the game must be played in the same way no matter where you are in the world.”)  Who plays with the Jabulani at the local level? 

And why introduce a new ball a mere 6 months prior to the tournament?  Use of the ball during the almost 3-year qualification process would have at least helped the players truly get used to it especially since criticisms about the ball have been heard from strikers and keepers and even NASA. 

The knuckle ball effect produced by the lightweight, uniquely round and speedy Jabulani may have caused the low goal tally of 145 goals in 64 matches or an average of 2.27 per game, the second worst ever after 2.21 in Italy in 1990.

At the end of the world cup, it wasn’t who played or didn’t play which got most people talking. Next to Spain’s win and a certain mollusk’s accuracy, the poor officiating marked the event like never before. Insuring fairness is, pardon the pun, a goal worth working for in the World Cup.

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[1]  "FIFA’s position on technology in football". (2010, March 11). Retrieved from http://www.fifa.com/aboutfifa/federation/president/presidentialcolumn/news/newsid=1179851.html#fifas+position+technology+football

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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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