Prison reform; prison litigation; rights of prisoners.

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BROWN, GOVERNOR OF CALIFORNIA, et al. v. PLATA et al.

appeal from the united states district courts for the eastern and northern districts of california

No. 09-1233. Argued November 30, 2010--Decided May 23, 2011

California's prisons are designed to house a population just under 80,000, but at the time of the decision under review the population was almost double that. The resulting conditions are the subject of two federal class actions. In Coleman v. Brown, filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to oversee remedial efforts reported 12 years later that the state of mental health care in California's prisons was deteriorating due to increased overcrowding. In Plata v. Brown, filed in 2001, the State conceded that deficiencies in prison medical care violated prisoners' Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by overcrowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. After hearing testimony and making extensive findings of fact, the court ordered California to reduce its prison population to 137.5% of design capacity within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval.

Held:

1. The court-mandated population limit is necessary to remedy the violation of prisoners' constitutional rights and is authorized by the PLRA. Pp. 12-41.

(a) If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U. S. 678, 687, n. 9. They must consider a range of options, including the appointment of special masters or receivers, the possibility of consent decrees, and orders limiting a prison's population. Under the PLRA, only a three-judge court may limit a prison population. 18 U. S. C. §3626(a)(3). Before convening such a court, a district court must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. §3626(a)(3)(A). Once convened, the three-judge court must find by clear and convincing evidence that "crowding is the primary cause of the violation" and "no other relief will remedy [the] violation," §3626(a)(3)(E); and that the relief is "narrowly drawn, extends no further than necessary... , and is the least intrusive means necessary to correct the violation," §3626(a)(1)(A). The court must give "substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." Ibid. Its legal determinations are reviewed de novo, but its factual findings are reviewed for clear error. Pp. 12-15.

(b) The Coleman and Plata courts acted reasonably in convening a three-judge court. Pp. 15-19.

(1) The merits of the decision to convene are properly before this Court, which has exercised its 28 U. S. C. §1253 jurisdiction to determine the authority of a court below, including whether a three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 95, n. 12. Pp. 15-16.

(2) Section 3626(a)(3)(A)(i)'s previous order requirement was satisfied in Coleman by the Special Master's 1995 appointment and in Plata by the 2002 approval of a consent decree and stipulated injunction. Both orders were intended to remedy constitutional violations and were given ample time to succeed--12 years in Coleman, and 5 years in Plata. Contrary to the State's claim, §3626(a)(3)(A)(ii)'s reasonable time requirement did not require the District Courts to give more time for subsequent remedial efforts to succeed. Such a reading would in effect require courts to impose a moratorium on new remedial orders before issuing a population limit, which would delay an eventual remedy, prolong the courts' involvement, and serve neither the State nor the prisoners. The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy, given the ongoing deficiencies recently reported by both the Special Master and the Receiver. Pp. 16-19.

(c) The three-judge court did not err in finding that "crowding [was] the primary cause of the violation," §3626(a)(3)(E)(i). Pp. 19-29.

(1) The trial record documents the severe impact of burgeoning demand on the provision of care. The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care. Crowding creates unsafe and unsanitary conditions that hamper effective delivery of medical and mental health care. It also promotes unrest and violence and can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. Overcrowding's effects are particularly acute in prison reception centers, which process 140,000 new or returning prisoners annually, and which house some prisoners for their entire incarceration period. Numerous experts testified that crowding is the primary cause of the constitutional violations. Pp. 19-24.

(2) Contrary to the State's claim, the three-judge court properly admitted, cited, and considered evidence of current prison conditions as relevant to the issues before it. Expert witnesses based their conclusions on recent observations of prison conditions; the court admitted recent reports on prison conditions by the Receiver and Special Master; and both parties presented testimony related to current conditions. The court's orders cutting off discovery a few months before trial and excluding evidence not pertinent to the issue whether a population limit is appropriate under the PLRA were within the court's sound discretion. Orderly trial management may require discovery deadlines and a clean distinction between litigation of the merits and the remedy. The State points to no significant evidence that it was unable to present and that would have changed the outcome here. Pp. 24-26.

(3) It was permissible for the three-judge court to conclude that overcrowding was the "primary," but not the only, cause of the violations, and that reducing crowding would not entirely cure the violations. This understanding of the primary cause requirement is consistent with the PLRA. Had Congress intended to require that crowding be the only cause, the PLRA would have said so. Pp. 26-29.

(d) The evidence supports the three-judge court's finding that "no other relief [would] remedy the violation," §3626(a)(3)(E)(ii). The State's claim that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring transfers is a population limit under the PLRA. Even if they could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The court also found no realistic possibility that California could build itself out of this crisis, particularly given the State's ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained. The court also did not err when it concluded that, absent a population reduction, the Receiver's and Special Master's continued efforts would not achieve a remedy. Their reports are persuasive evidence that, with no reduction, any remedy might prove unattainable and would at the very least require vast expenditures by the State. The State asserts that these measures would succeed if combined, but a long history of failed remedial orders, together with substantial evidence of overcrowding's deleterious effects on the provision of care, compels a different conclusion here. Pp. 29-33.

(e) The prospective relief ordered here was narrowly drawn, extended no further than necessary to correct the violation, and was the least intrusive means necessary to correct the violation. Pp. 33-41.

(1) The population limit does not fail narrow tailoring simply because prisoners beyond the plaintiff class will have to be released through parole or sentencing reform in order to meet the required reduction. While narrow tailoring requires a " ' "fit" between the [remedy's] ends and the means chosen to accomplish those ends,' " Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480, a narrow and otherwise proper remedy for a constitutional violation is not invalid simply because it will have collateral effects. Nor does the PLRA require that result. The order gives the State flexibility to determine who should be released, and the State could move the three-judge court to modify its terms. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing each institution's need for a population limit. The Coleman court found a systemwide violation, and the State stipulated to systemwide relief in Plata. Assuming no constitutional violation results, some facilities may retain populations in excess of the 137.5% limit provided others fall sufficiently below it so the system as a whole remains in compliance with the order. This will afford the State flexibility to accommodate differences between institutions. The order may shape or control the State's authority in the realm of prison administration, but it leaves much to the State's discretion. The order's limited scope is necessary to remedy a constitutional violation. The State may move the three-judge court to modify its order, but it has proposed no realistic alternative remedy at this time. Pp. 33-36.

(2) The three-judge court gave "substantial weight" to any potential adverse impact on public safety from its order. The PLRA's "substantial weight" requirement does not require the court to certify that its order has no possible adverse impact on the public. Here, statistical evidence showed that prison populations had been lowered without adversely affecting public safety in some California counties, several States, and Canada. The court found that various available methods of reducing overcrowding--good time credits and diverting low-risk offenders to community programs--would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State's population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety. Pp. 37-41.

2. The three-judge court's order, subject to the State's right to seek its modification in appropriate circumstances, must be affirmed. Pp. 41-48.

(a) To comply with the PLRA, a court must set a population limit at the highest level consistent with an efficacious remedy, and it must order the population reduction to be achieved in the shortest period of time reasonably consistent with public safety. Pp. 41-42.

(b) The three-judge court's conclusion that the prison population should be capped at 137.5% of design capacity was not clearly erroneous. The court concluded that the evidence supported a limit between the 130% limit supported by expert testimony and the Federal Bureau of Prisons and the 145% limit recommended by the State Corrections Independent Review Panel. The PLRA's narrow tailoring requirement is satisfied so long as such equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. Pp. 42-44.

(c) The three-judge court did not err in providing a 2-year deadline for relief, especially in light of the State's failure to contest the issue at trial. The State has not asked this Court to extend the deadline, but the three-judge court has the authority, and responsibility, to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes require that court to exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans that will promptly and effectively correct the violations consistent with public safety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observations reflect the fact that the existing order, like all ongoing equitable relief, must remain open to appropriate modification, and are not intended to cast doubt on the validity of the order's basic premise. Pp. 44-48.

Affirmed.

Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., joined.

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Wrong and wrong-headed on RH: a law dean's view.

Wrong and wrong-headed on RH | Inquirer Opinion

Passion For Reason

Wrong and wrong-headed on RH

By: Raul C. Pangalangan
Philippine Daily Inquirer

10:33 pm | Thursday, May 19th, 2011

WATCHING THE congressional debates on reproductive health, I am baffled by the anti-RH arguments.

One, the argument that contraceptives are abortifacients. Anti-RH advocates argue passionately that life begins at the moment of fertilization (and not much later, as their opponents say, at the moment of implantation of the fertilized egg in the uterus). And then Rep. Amado Bagatsing now says that anything that prevents fertilization is abortion! “Ang contraceptives ay humaharang para huwag magbuntis, huwag magkita ang egg at ang ovum [sic] … Pagka hinadlangan mo, sa Ingles, ina-abort mo.”

Now tell me: How can a condom be an abortifacient when, simply stated, there is no fertilized egg to abort? How can one say with a straight face that life begins at fertilization but you can end life even before it begins? To quote Representative Bagatsing himself, “Mahirap ba maintindihan ’yon?”

Even more perplexing, if Bagatsing sincerely wishes to stop the almost half a million abortions annually in the Philippines, stopping unwanted pregnancies is the best antidote. Why would a woman choose the physical and emotional pain of abortion when a simple condom could have saved her from it all?

Two, the argument that RH goes against the beliefs of the Catholic majority and thus violates the constitutional separation of church and state. Rep. Pablo Garcia says that the RH bill discriminates against the Catholic Church because it goes against the grain of Catholic teaching and the law must respect the religion of majority of Filipinos.

He is confused. On one hand, he states that the state must be neutral to religion. In the next breath, he reminds us that our Constitution’s preamble begins with the clause where we “implor[e] the aid of Almighty God” and that refers only to “the Catholic God.” The good congressman must make up his mind. Either we are a secular state or we are a theocracy.

Representative Garcia has taken a new, and very clever, tack. You see, when the Catholic Bishops’ Conference of the Philippines blocks any legal recognition for RH, it is actually imposing its conservative interpretation of Catholic doctrine upon non-believers. In effect, Catholics object to RH, so the law must not promote RH.

Ironically that is precisely what the non-Establishment doctrine seeks to prevent, that is, God muscling his way using Caesar’s sword. The Philippine Congress is not an arm of the CBCP; the congressmen are not accountable to the Vatican. If the religion clause means anything in the Philippines, it means that the Catholic majority cannot veto congressional action on the basis of their religious beliefs.

Yet if you listen to Representative Garcia, it is we—I obviously count myself as an RH advocate—who violate neutrality when we try to stop the mighty CBCP. He is terribly mistaken. The RH bill does not impinge on the religious beliefs of traditional Catholics. Under the RH bill, all couples are free to choose how many children they want and, if they so choose, what family planning method to use. It guarantees free and informed choice. It is neutral on what method a couple chooses for themselves.

It doesn’t impose any choice on anybody. Traditional Catholics are absolutely and completely free to follow their faith, have unprotected sex and beget all the children they want. What the RH bill secures is equal freedom to parents who believe differently—who would plan the spacing and number of children so that they shelter, feed and nurture them well.

Third, that is why, if there was one congressman who made sense this week, it was Manny Pacquiao. The RH bill is superfluous, he says, because people are already using condoms or birth control pills. (But what did Nanay Dionisia mean on TV when she said on Jinkee’s using the pill in the past: “Gumamit siya nung bago pa sila kasal”?)

Manny is absolutely correct. That is the state of the law. Condoms can be bought over-the-counter, except in Alabang, which metaphorically situates itself in Islamabad. What is at the heart of the RH law—and this is what the anti-RH groups strangely underplay—is using government money to subsidize reproductive choices.

If all we want is to let couples choose whether and how to plan their families, they already have that choice—except that poor Filipinos can’t afford it on their own. They have no access to contraceptive information and rely on superstitious mumbo-jumbo. They would rather spend their little cash on food rather than condoms.

Manny is right: Filipino couples already have reproductive freedom. What the RH bill does is to help poor couples who can’t afford to enjoy that freedom. Ramon Magsaysay said: They who have less in life should have more in law. We have since codified this “social justice” principle into the Constitution, recognized the “right to health” and the duty of the state to make essential “health and other social services available to all the people at affordable cost.”

I surmise that anti-RH groups have fudged the social justice argument for two reasons. One, on reproductive liberty, they can invoke the Bible (“Go forth and multiply…), but on social justice, we can invoke the Bible against them (“Whatsoever you do to the least of my brethren…”). Two, religion-based arguments are constitutionally privileged and politically potent. In terms of debating strategy, Manny was well-advised to argue that to enjoy reproductive liberty, we do not need any new law. But the poor can’t afford it without government help. Surely the poor kid from GenSan hasn’t forgotten from whence he came.

(Email: passionforreason@gmail.com)

Legal easement; unfounded claim for damages

In a legal easement case (re: subjacent and lateral support) that our office won in the Supreme Court, the adverse party filed a motion for partial reconsideration seeking an award of damages, notwithstanding the fact that her petition was denied by the Court, our client’s right to the easement affirmed by the Court,  and the Decision of the Court did not contain any finding of bad faith, malice, or negligence on the part of our client. In our comment to the motion, which we wish to share for legal research purposes, we moved to deny the same on the following grounds:

1.      X x x.

2.    The petitioner’s PARTIAL motion for reconsideration does not question the RATION DECIDENDI of the Decision, dated February 2, 2011, of this Honorable Court.

2.1.          The Decision AFFIRMED WITH MODIFICATION the appealed Decision, dated May 25, 2007, of the Court of the Court of Appeals.

2.2.        The modification made by this Honorable Court to the decision of the Court of Appeals was the removal of “x x x the annotation at the back of Transfer Certificate of Title No. T- x x x , recognizing the existence of the legal easement of subjacent and lateral support constituted on the lengthwise or horizontal  land support/embankment area of sixty-five (65) square meters, more or less, of the property of petitioner x x x”.  (Dispositive Portion, Decision, February 2, 2011).  

2.3.        The “annotation” referred to the AFFIDAVIT OF ADVERSE CLAIM which the respondent had caused to be annotated on the title of the property of the petitioner to assert his statutory right to the legal easement of adjacent and lateral support.

2.4.        Such an annotation was deemed unnecessary by the Honorable Court because “a judicial declaration” of the easement claimed by the respondent “already binds” the property of the petitioner and the owner of the same, including her successors-in-interest.  (Id., Page 9, Par. 2).

3.    Although the Honorable Court declared that the respondent had no “adverse claim” against the property of the petitioner, as technically defined under Section 70 of P.D. No. 1529, it clarified and so held that “in reality what respondent was claiming was a judicial recognition of the existence of the easement of subjacent and lateral support over the 65 sq. m. portion of the petitioner’s property covering the land support/embankment area”. (Id., Pages 7-8).

3.1.          The Honorable Court recognized that the reason/purpose of the respondent for such annotation was  “only to prevent petitioner from removing the embankment or from digging on the property for fear of soil erosion that might weaken the foundation of the rear portion of his property which is adjacent to the property of the petitioner”.  (Id.. Page 8).

4.    The Honorable Court expressly declared that “in the instant case an easement of subjacent and lateral support exists in favor of respondent”. (Id., Page 9, Par. 1).

5.     The Honorable Court expressly affirmed the following uncontroverted findings of facts:

5.1.          The residential house and lot of respondent was “located on an elevated plateau of fifteen (15) feet above the level of petitioner’s property”. (Id.).

5.2.         The “embankment and the riprapped stones have been in existence even before the petitioner became the owner of the property”. (Id.).

5.3.         The “petitioner had been making excavation and diggings on the subject embankment”. (Id.).

5.4.         Unless restrained, “the continued excavation of the embankment could cause the foundation of the rear portion of the house of respondent to collapse, resulting in the destruction of a huge part of the family dwelling”. (Id.).

6.    The Honorable Court SUSTAINED the Court of Appeals in declaring that a PERMANENT INJUNCTION on the part of the petition from making INJURIOUS EXCAVATIONS was necessary in order to protect the interest of respondent. (Id., Page 9, Par. 2).

7.     As stated earlier, the Honorable Court emphasized that “an annotation of the existence of the subjacent and lateral support is no longer necessary” because “it exists whether or not it is annotated or registered in the registry of property”. (Id.).

7.1.          The Honorable Court further held that “a judicial recognition of the same already binds  the property and the owner of the same, including her successors-in-interest”. (Id.).

8.    The foregoing dissertation would show that the Honorable Court had rejected the theory of the petitioner that the respondent should be held liable for damages for causing the annotation of an affidavit of adverse claim, which the respondent, in good faith, had perceived at that time to be the proper and valid manner of asserting his recognized statutory right to the legal e3asement of subjacent and lateral support.

8.1.       The ratio decidendi of the Decision, dated February 2, 2011, of the Honorable Court does not make any declaration showing any legal or factual basis to punish the respondent in the form of an award of damages in favor of the petitioner.

8.2.        Rightly so.

8.3.        To award the petitioner with damages would not only be most unfair to the respondent. It would UNJUSTLY ENRICH the petitioner without any legal and factual basis or justification in relation to the ratio decidendi of the body of the Decision of the Honorable Court.

9.    It must be noted that GOOD FAITH is a defense against any allegation of entitlement to damages based on a theory of malum en se or mala prohibita or abuse of rights (the latter being the theory upon which the petitioner bases her claims for damages).  

9.1.          PEOPLE OF THE PHILIPPINES vs. CORA ABELLA OJEDA, G.R. Nos. 104238-58, June 2004:  

X x x.

It must be noted that our Revised Penal Code was enacted to penalize unlawful acts accompanied by evil intent denominated as crimes mala in se. The principal consideration is the existence of malicious intent. There is a concurrence of freedom, intelligence and intent which together make up the “criminal mind” behind the “criminal act.” Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person performing the act complained of is innocent. As we held in Tabuena  vs. Sandiganbayan, 268 SCRA 332 [1997]:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime.  Actus non facit reum, nisi mens sit rea.  There can be no crime when the criminal mind is wanting.

X x x.

9.2.      FRANCISCO M. LECAROZ and LENLIE LECAROZ, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, G.R. No. 130872, March 25, 1999, re: PRSUMPTION OF GOOD FAITH.

X x x.

The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith. In Cabungcal v. Cordova, No.  L-16934, 31 July, 1964, 11 SCRA 584, we affirmed the doctrine that an erroneous interpretation of the meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that would entitle an aggrieved party to damages against that official.  We reiterated this principle in Mabutol v. Pascual which held that public officials may not be liable for damages in the discharge of their official functions absent any bad faith. Sanders v. Veridiano II expanded the concept by declaring that under the law on public officers, acts done in the performance of official duty are protected by the presumption of good faith.

X x x.

10.                        Rejecting petitioner’s claim for damages, the respondent hereby cites the following jurisprudence:

10.1.   LUCIANO BRIONES and NELLY BRIONES vs.  JOSE MACABAGDAL,  et. al.,  GR No. 150666,  August 3, 2010:

One (1) last note on the award of damages.  Considering that petitioners acted in good faith in building their house on the subject property of the respondent-spouses, there is no basis for the award of moral

damages to respondent-spouses.  Likewise, the Court deletes the award to Vergon of compensatory damages and attorney’s fees for the litigation expenses Vergon had incurred as such amounts were not specifically prayed for in its Answer to petitioners’ third-party complaint.  Under Article 2208 of the Civil Code, attorney’s fees and expenses of litigation are recoverable only in the concept of actual damages, not as moral damages nor judicial costs. Hence, such must be specifically prayed for—as was not done in this case—and may not be deemed incorporated within a general prayer for “such other relief and remedy as this court may deem just and equitable.”  It must also be noted that aside from the following, the body of the trial court’s decision was devoid of any statement regarding attorney’s fees.  In Scott Consultants & Resource Development Corporation, Inc. v. Court of Appeals, we reiterated that attorney’s fees are not to be awarded every time a party wins a suit. The power of the court to award attorney’s fees under Article 2208 of the Civil Code demands factual, legal, and equitable justification; its basis cannot be left to speculation or conjecture. Where granted, the court must explicitly state in the body of the decision, and not only in the dispositive portion thereof, the legal reason for the award of attorney’s fees. 

10.2. Rodolfo N. Regala v. Federico P. Carin, G.R. No. 188715, April 6, 2011:

Moral damages; pre-requisites for an award. In prayers for moral damages, recovery is more an exception rather than the rule.  Moral damages are not meant to be punitive but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person.  To be entitled to such an award, the claimant must satisfactorily prove that he has suffered damages and that the injury causing it has sprung from any of the cases listed in Articles 2219 and 2220 of the Civil Code. Moreover, the damages must be shown to be the proximate result of a wrongful act or omission.  The claimant must thus establish the factual basis of the damages and its causal tie with the acts of the defendant.

In fine, an award of moral damages calls for the presentation of 1) evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; 2) a culpable act or omission factually established; 3) proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and 4) the proof that the act is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code.

In the present case, respondent failed to establish by clear and convincing evidence that the injuries he sustained were the proximate effect of petitioner’s act or omission. It thus becomes necessary to instead look into the manner by which petitioner carried out his renovations to determine whether this was directly responsible for any distress respondent may have suffered since the law requires that a wrongful or illegal act or omission must have preceded the damages sustained by the claimant.

It bears noting that petitioner was engaged in the lawful exercise of his property rights to introduce renovations to his abode.  While he initially did not have a building permit and may have misrepresented his real intent when he initially sought respondent’s consent, the lack of the permit was inconsequential since it only rendered petitioner liable to administrative sanctions or penalties.

X x x.

Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will. While the Court harbors no doubt that the

incidents which gave rise to this dispute have brought anxiety and anguish to respondent, it is unconvinced that the damage inflicted upon respondent’s property was malicious or willful, an element crucial to merit an award of moral damages under Article 2220 of the Civil Code.

11.  IN FINE, the respondent believes that there is no legal and factual basis to unjustly enrich the petitioner by granting her prayer for damages, which does not have any legal ad factual basis in the ratio decidendi of the body of the Decision of the Honorable Court.

WHEREFORE, premises considered, it is respectfully prayed that the partial motion for reconsideration of the petitioner be DENIED for lack of merit.

Further, the respondent prays for such and other reliefs as may be deemed just and equitable in the premises.

Las Pinas City, May 20, 2011.

Valid warrantless search and seizure; latest US SC decision, May 2011

09-1272.pdf (application/pdf Object)

SUPREME COURT OF THE UNITED STATES
Syllabus
KENTUCKY v. KING
CERTIORARI TO THE SUPREME COURT OF KENTUCKY
No. 09–1272. Argued January 12, 2011—Decided May 16, 2011

Police officers in Lexington, Kentucky, followed a suspected drug dealerto an apartment complex. They smelled marijuana outside anapartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent andothers. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequentsearch. The Circuit Court denied respondent’s motion to suppress the evidence, holding that exigent circumstances—the need to pre-vent destruction of evidence—justified the warrantless entry. Re-spondent entered a conditional guilty plea, reserving his right to ap-peal the suppression ruling, and the Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky reversed. The court as-sumed that exigent circumstances existed, but it nonetheless invali-dated the search. The exigent circumstances rule did not apply, thecourt held, because the police should have foreseen that their conductwould prompt the occupants to attempt to destroy evidence.

Held:

1. The exigent circumstances rule applies when the police do notcreate the exigency by engaging or threatening to engage in conductthat violates the Fourth Amendment. Pp. 5–16.

(a)

The Fourth Amendment expressly imposes two requirements:All searches and seizures must be reasonable; and a warrant may notbe issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. Although“ ‘searches and seizures inside a home without a warrant are pre-sumptively unreasonable,’ ” Brigham City v. Stuart, 547 U. S. 398,
2 KENTUCKY v. KING 403, this presumption may be overcome when “ ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a]warrantless search is objectively reasonable under the Fourth Amendment,” Mincey v. Arizona, 437 U. S. 385, 394. One such exi-gency is the need “to prevent the imminent destruction of evidence.” Brigham City, supra, at 403. Pp. 5–6.

(b)

Under the “police-created exigency” doctrine, which lower courts have developed as an exception to the exigent circumstancesrule, exigent circumstances do not justify a warrantless search whenthe exigency was “created” or “manufactured” by the conduct of the police. The lower courts have not agreed, however, on the test for de-termining when police impermissibly create an exigency. Pp. 7–8.

(c)

The proper test follows from the principle that permits war-rantless searches: warrantless searches are allowed when the cir-cumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Thus, a warrantless entry based on exigent circumstances is reasonable whenthe police did not create the exigency by engaging or threatening toengage in conduct violating the Fourth Amendment. A similar ap-proach has been taken in other cases involving warrantless searches. For example, officers may seize evidence in plain view if they havenot violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made, see Horton v. Califor-nia, 496 U. S. 128, 136–140; and they may seek consent-based en-counters if they are lawfully present in the place where the consen-sual encounter occurs, see INS v. Delgado, 466 U. S. 210, 217, n. 5. Pp. 8–10.

(d)

Some courts, including the Kentucky Supreme Court, have imposed additional requirements—asking whether officers “ ‘deliber-ately created the exigent circumstances with the bad faith intent toavoid the warrant requirement,’ ” 302 S. W. 3d 649, 656 (case below);reasoning that police may not rely on an exigency if “ ‘it was reasona-bly foreseeable that [their] investigative tactics . . . would create theexigent circumstances,’ ”ibid.; faulting officers for knocking on a door when they had sufficient evidence to seek a warrant but did not doso; and finding that officers created or manufactured an exigency when their investigation was contrary to standard or good law en-forcement practices. Such requirements are unsound and are thus rejected. Pp. 10–14.

(e)

Respondent contends that an exigency is impermissibly cre-ated when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable, but thatapproach is also flawed. The ability of officers to respond to an exi-gency cannot turn on such subtleties as the officers’ tone of voice in
Cite as: 563 U. S. ____ (2011) 3.

A forceful knock may be necessary to alert the occupants that someoneis at the door, and unless officers identify themselves loudly enough, occupants may not know who is at their doorstep. Respondent’s test would make it extremely difficult for officers to know how loudly they may announce their presence or how forcefully they may knock with-out running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that threshold had been passed. Pp. 14–15.

2. Assuming that an exigency existed here, there is no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Pp. 16–

(a)

Any question about whether an exigency existed here is bet-ter addressed by the Kentucky Supreme Court on remand. P. 17.

(b)

Assuming an exigency did exist, the officers’ conduct—banging on the door and announcing their presence—was entirelyconsistent with the Fourth Amendment. Respondent has pointed tono evidence supporting his argument that the officers made any sortof “demand” to enter the apartment, much less a demand thatamounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to this Court’s at-tention, the state court may elect to address that matter on remand.Finally, the record makes clear that the officers’ announcement thatthey were going to enter the apartment was made after the exigency arose. Pp. 17–19.
302 S. W. 3d 649, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR, and KAGAN, JJ.,
joined. GINSBURG, J., filed a dissenting opinion.

Cite as: 563 U. S. ____ (2011)

April 2011 Philippine Supreme Court Decisions on Criminal Law and Procedure « LEXOTERICA: A PHILIPPINE BLAWG

April 2011 Philippine Supreme Court Decisions on Criminal Law and Procedure « LEXOTERICA: A PHILIPPINE BLAWG

April 2011 Philippine Supreme Court Decisions on Criminal Law and Procedure

May 14, 2011
Dominador Maphilindo O. Carrillo

Here are selected April 2011 rulings of the Supreme Court of the Philippines on criminal law and procedure:

1. Revised Penal Code

Conspiracy; liability of conspirators. When conspiracy is established, the responsibility of the conspirators is collective, not individual. This renders all of them equally liable regardless of the extent of their respective participations, the act of one being deemed to be the act of the other or the others, in the commission of the felony. . People of the Philippines v. Dima Montanir, Ronald Norva and Eduardo Chua, G.R. No. 187534, April 4, 2011.

Conspiracy; liability of conspirators. Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of a common design as one of its probable and natural consequences even though it was not intended as part of the original design. Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose intended. Conspirators are held to have intended the consequences of their acts and by purposely engaging in conspiracy which necessarily and directly produces a prohibited result, they are, in contemplation of law, chargeable with intending that result. Conspirators are necessarily liable for the acts of another conspirator unless such act differs radically and substantively from that which they intended to commit. People of the Philippines v. Dima Montanir, Ronald Norva and Eduardo Chua, G.R. No. 187534, April 4, 2011.

Damages; indemnity for death. Consistent with prevailing jurisprudence, the heirs of Haide is granted P75,000.00 as death indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. Damages in such amounts are to be granted whenever the accused are adjudged guilty of a crime covered by R.A. 7659, like the murder charged and proved herein. Indeed, the principal consideration for the award of damages is the penalty provided by law or imposable for the offense because of its heinousness, not the public penalty actually imposed on the offender. In other words, the litmus test in the determination of the civil indemnity is the heinous character of the crime committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua. People of the Philippines v. Gilberto Villarico Sr. aka “Berting”, Gilberto Villarico Jr., Jerry Ramentos, and Ricky Villarico, G.R. No. 158362, April 4, 2011.

Kidnapping and failure to return a minor; elements. Article 270 of the Revised Penal Code considers it a crime when a person who has been entrusted with the custody of a minor later on deliberately fails to return said minor to his parent or guardian. The two essential elements of this crime are: 1) The offender is entrusted with the custody of a minor person; and 2) The offender deliberately fails to restore the said minor to his parents or guardians. People of the Philippines v. Aida Marquez, G.R. No. 181440, April 13, 2011.

Kidnapping and failure to return a minor; elements. While one of the essential elements of this crime is that the offender was entrusted with the custody of the minor, what is actually being punished is not the kidnapping but the deliberate failure of that person to restore the minor to his parents or guardians. It has been held that “deliberate” must imply something more than mere negligence – it must be premeditated, headstrong, foolishly daring or intentionally and maliciously wrong. In this case, it does not matter, for the first element to be present, how long said custody lasted as it cannot be denied that Marquez was the one entrusted with the custody of the minor Justine. Thus, the first element of the crime is satisfied. Furthermore, Marquez’s deliberate failure to return Justine, when demanded to do so by the latter’s mother, shows that the second element is likewise undoubtedly present in this case. People of the Philippines v. Aida Marquez, G.R. No. 181440, April 13, 2011.

Malversation; presumption of malversation. Article 217 of the Revised Penal Code provides that the failure of a public officer to have duly forthcoming any public fund or property with which he is chargeable upon demand by any duly authorized officer shall be prima facie evidence that he has put such missing funds or property to personal uses. Petitioner failed to rebut the legal presumption that he had misappropriated the fees to his personal use, his disclaimer being self-serving. Why Valeria, whom petitioner had pointed to as having full responsibility for the collections, including their deposit to the bank, covered by the audit period, was never presented to corroborate his claim dents his defense, as does his failure to present the Regional Director or a certification from him for the same purpose. Jose Tubola Jr. v. Sandiganbayan and People of the Philippines, G.R. No. 154042, April 11, 2011.

Rape; delay in making accusation. AAA’s delay in disclosing her sexual defilement to CCC is understandable. As AAA testified, after every rape, she was threatened by accused-appellant not to report the same to anyone; otherwise, accused-appellant would kill AAA and her mother. It has been repeatedly held that a delay or vacillation in making a criminal accusation does not necessarily impair the credibility of witnesses if such delay is satisfactorily explained. Fear of reprisal, social humiliation, familial considerations, and economic reasons have been considered as sufficient explanations. People of the Philippines v. Ronaldo Saludo, G.R. No. 178406, April 6, 2011.

Rape; sweetheart defense. The “sweetheart theory” or “sweetheart defense” is an oft-abused justification. Before such a defense can even be considered as having credence, it must be proven by compelling evidence. The defense cannot just present testimonial evidence in support of the theory. Independent proof is required — such as tokens, mementos, and photographs. In any event, the claim is inconsequential since it is well-settled that being sweethearts does not negate the commission of rape because such fact does not give appellant license to have sexual intercourse against her will and will not exonerate him from the criminal charge of rape. Being sweethearts does not prove consent to the sexual act. Thus, having failed to satisfactorily establish that “AAA” voluntarily consented to engage in sexual intercourse with him, the said act constitutes rape on the part of the appellant. People of the Philippines v. Reynaldo Olesco y Ondayang, G.R. No. 174861, April 11, 2011.

2. Special Laws

Dangerous Drugs; coordination with PDEA. PO3 Casas received information through a telephone call regarding the illegal drug activities of a certain “Jojo” Roble in Looc, Danao City. Coordination was then made with the Special Operations Group (“SOG”) and a buy-bust team was formed composed of PO3 Casas, PO2 Laurel, the SOG and the mayor of Danao City, Mayor Durano. A briefing was conducted where several pieces of marked 100-peso bills were handed to the poseur-buyer by PO3 Casas. No coordination with the Philippine Drug Enforcement Agency was made. This is in violation of Sec. 86(a) of the Implementing Rules and Regulations (IRR) of R.A. 9165. Said Sec. 86(a) provides that “the PDEA shall be the lead agency in the enforcement of the Act while the PNP, the NBI and other law enforcement agencies shall continue to conduct anti-drug operations in support of PDEA: provided, that the said agencies shall, as far as practicable, coordinate with the PDEA prior to anti-drug operations; provided, further, that, in any case, said agencies shall inform the PDEA of their anti-drug operations within twenty-four (24) hours from the time of actual custody of the suspects or seizure of said drugs and substances, and shall regularly update the PDEA on the status of the cases involving the said anti-drug operations”. For such a violation and for failure to follow the requisites found in Sec. 21 of the IRR of R.A. 9165, which outlines the post-procedure in taking custody of seized drugs, without any acceptable justification, the prosecution failed to meet the required quantum of evidence sufficient to support a conviction; in which case, the constitutional presumption of innocence prevails. People of the Philippines v. Andrew Roble, G.R. No. 192188, April 11, 2011.

E.O. 1; Ill-gotten wealth. The distinction laid down by E.O. 1 and its related issuances, expounded by relevant judicial pronouncements, unavoidably required competent evidentiary substantiation made in appropriate judicial proceedings to determine: (a) whether the assets or properties involved had come from the vast resources of government; and (b) whether the individuals owning or holding such assets or properties were close associates of President Marcos. The requirement of competent evidentiary substantiation made in appropriate judicial proceedings was imposed because the factual premises for the reconveyance of the assets or properties in favor of the government due to their being ill-gotten wealth could not be simply assumed. Accordingly, the Republic should furnish to the Sandiganbayan in proper judicial proceedings the competent evidence proving who were the close associates of President Marcos who had amassed assets and properties that would be rightly considered as ill-gotten wealth. Republic of the Philippines v. Sandiganbayan, Eduardo M. Cojuangco, et al, G.R. No. 166859, G.R. No. 169203, G.R. No. 180702, April 12, 2011.

Prescription; R.A. 3019 offenses. Section 15, Article XI of the 1987 Constitution, which states that the right of the State to recover properties unlawfully acquired by public officials or employees from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppels, applies only to civil actions for recovery of ill-gotten wealth, and not to criminal cases, including those involving offenses under R.A. 3019. Presidential Ad-Hoc Fact Finding Committee on Behest Loans, etc. v.Honorable Aniano A. Desierto as Ombudsman, et al, G.R. No. 135715, April 13, 2011.

Prescription; R.A. 3019 offenses. The period of prescription for the offenses committed under R.A. 3019, committed in 1976 and prior to the amendment of R.A. 3019, is ten (10) years. Generally, the prescriptive period shall commence to run on the day the crime is committed. That an aggrieved person entitled to an action has no knowledge of his right to sue or of the facts out of which his right arises, does not prevent the running of the prescriptive period. Presidential Ad-Hoc Fact Finding Committee on Behest Loans, etc. v.Honorable Aniano A. Desierto as Ombudsman, et al, G.R. No. 135715, April 13, 2011.

Prescription; R.A. 3019 offenses. An exception to the rule that the prescriptive period for offenses under R.A. 3019 commences to run on the day the crime is committed regardless of the lack of knowledge of the aggrieved person of his right to sue or of the facts out of which his right arises is the “blameless ignorance” doctrine, incorporated in Section 2 of Act No. 3326. Under this doctrine, the statute of limitations runs only upon discovery of the fact of the invasion of a right that will support a cause of action. The courts would decline to apply the statute of limitations where the plaintiff does not know or has no reasonable means of knowing the existence of a cause of action. Thus, it was held in a catena of cases, that if the violation of the special law was not known at the time of its commission, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. Presidential Ad-Hoc Fact Finding Committee on Behest Loans, etc. v.Honorable Aniano A. Desierto as Ombudsman, et al, G.R. No. 135715, April 13, 2011.

3. Criminal Procedure

Evidence; chain of custody rule. To remove any doubt or uncertainty about the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the accused-appellant; otherwise, the prosecution for possession under R.A. 9165 fails. The chain of custody rule requires that the marking of the seized items should be done in the presence of the apprehended violator and immediately upon confiscation to ensure that they are the same items that enter the chain and are eventually the ones offered in evidence. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received, and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. Indeed, it is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused. People of the Philippines v. Alberto Bacus Alcuizar, G.R. No. 189980, April 6, 2011.

Evidence; chain of custody rule. Verily, the failure of the police officers to mark the dangerous drugs immediately after their seizure and the vague recollection of SPO1 Agadier concerning the custody of the drugs from the residence of appellant up to the time it was submitted to the crime laboratory constitute a huge and significant gap in the chain of custody which substantially affects the identity of the corpus delicti. People of the Philippines v. Alberto Bacus Alcuizar, G.R. No. 189980, April 6, 2011.

Evidence; denial and alibi; positive identification by victim. Appellant’s defense of denial and alibi should be dismissed outright in light of his positive identification by the victim “AAA.” It is an established jurisprudential rule that denial and alibi, being negative self-serving defenses, cannot prevail over the affirmative allegations of the victim and her categorical and positive identification of the accused as her assailant. Denial and alibi must be proved by the accused with clear and convincing evidence; otherwise, they cannot prevail over the positive testimony of credible witnesses who testify on affirmative matters. The assertion of appellant that he was in Manila on January 9, 2003, does not inspire belief since it remained uncorroborated by clear and convincing evidence that he was really in Manila when the last rape was committed. People of the Philippines v. Florante Relanes alias “Dante”, G.R. No. 175831, April 12, 2011.

Public prosecutor; power of direction and control over prosecution of criminal cases. It is well-settled that prosecution of crimes pertains to the executive department of the government whose principal power and responsibility is to insure that laws are faithfully executed. Corollary to this power is the right to prosecute violators. Thus, all criminal actions commenced by complaint or information are prosecuted under the direction and control of public prosecutors. In the prosecution of special laws, however, the exigencies of public service sometimes require the designation of special prosecutors from different government agencies to assist the public prosecutor; but this designation does not detract from the public prosecutor having control and supervision over the case. Bureau of Customs v. Peter Sherman, et al, G.R. No. 190487, April 13, 2011.

Public prosecutor; power of direction and control over prosecution of criminal cases. The participation in the case of a private complainant, like petitioner, is limited to that of a witness, both in the criminal and civil aspect of the case. As petitioner’s motion for reconsideration of the challenged CTA Resolution did not bear the imprimatur of the public prosecutor to which the control of the prosecution of the case belongs, the present petition fails. Bureau of Customs v. Peter Sherman, et al, G.R. No. 190487, April 13, 2011.

Void plea bargain: "Only the President can" - INQUIRER.net

Only the President can - INQUIRER.net, Philippine News for Filipinos

With Due Respect
Only the President can
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 00:15:00 05/15/2011

I READ the three recent resolutions of the Second Division of the Sandiganbayan (SBN), composed of Presiding Justice Edilberto G. Sandoval (chairman), Justices Teresita V. Diaz-Baldos and Samuel R. Martires (members), regarding the plea bargain agreement (PBA) between the Office of the Ombudsman (OMB) and Maj. Gen. Carlos F. Garcia.

Insufficient evidence? Both dated May 9, 2011, the 157-page resolution penned by Martires denied the intervention of the Office of the Solicitor General (OSG) “for utter paucity of merit,” while the 22-page resolution written by Baldos approved the PBA. The 3-page resolution, dated May 6, 2011, written by Sandoval, denied the motion for his inhibition.

Martires excoriated the prosecution for filing a defectively worded information and for miserably failing “to prove the guilt of the accused beyond reasonable doubt.” He stressed that instead of acquitting Garcia and getting nothing from his allegedly plundered wealth, the SBN acted prudently in approving the PBA, thereby enabling it to convict the accused for direct bribery and facilitating money laundering, and to recover P135 million.

To be fair, Martires devoted more than a hundred pages examining, scrutinizing and reviewing the information filed by the OMB and the prosecution evidence—both testimonial and documentary—before concluding, “All told, the prosecution has failed to prove that the accused is guilty beyond reasonable doubt of the crime of plunder.”

Doctrinally, the factual findings of SBN justices have great persuasive value because they have seen the demeanor of the witnesses on the stand and had a first-hand look at the documents. To succeed in overturning these findings, the OSG (should its intervention be allowed later) must wade through this maze of evidence and show that the SBN gravely erred in its factual evaluation.

Why no demurrer? Having no access to the records, I am not in a position to evaluate the SBN’s factual findings. Nonetheless, Garcia’s defense counsel (Constantino de Jesus) had direct access to the evidence. He must have studied it and concluded that it was sufficient to convict the accused of plunder. He must have thought that it was in Garcia’s best interest to conform to the PBA instead of risking a conviction for plunder and losing the whole amount of P303 million.

If he thought the evidence was weak, he would have filed a demurrer to the evidence. As the SBN plainly admitted, this motion would have been granted and the accused acquitted without having to surrender anything. But he did not. This merely shows that he believed the evidence of guilt was enough to convict his client of plunder. Because of this, it indeed behooves the OSG to review the records meticulously and show that the evidence proves Garcia guilty of plunder beyond reasonable doubt.

From the acidic reactions of President Benigno Aquino III and Justice Secretary Leila de Lima, the government wants the PBA scuttled, and Garcia prosecuted and convicted of plunder. How?

Under the Rules of Court, a plea bargain may be allowed only “with the consent of the prosecutor and the offended party.” Clearly, the OMB prosecutors consented via their signatures on the PBA. But the PBA does not mention at all the offended party, who/which therefore could not have consented to the PBA.

Who is the offended party? Solicitor General Jose Anselmo Cadiz claimed that the offended party is the Armed Forces of the Philippines (AFP) of which he is the counsel. The SBN rebuffed him, ruling that since plunder “is a crime against the nation or the State, then the offended party… is the State and not the AFP… the special prosecutor (of the OMB) is the one representing the State in this case.”

I agree with the SBN that the offended party is the State, not the AFP. But I disagree that the OMB represents the State, as the offended party. The name of the State is the Republic of the Philippines. The representative of the Republic is the President of the Philippines, not the OMB.

To repeat, the Rules of Court requires the consent of two entities: the prosecutor and the offended party. The prosecutor’s consent is necessary to safeguard the criminal aspect of the case, and the offended party’s consent is needed to look after the civil aspect. The information itself, which was prepared and filed by the OMB in the SBN, states that the crime charged caused damage to “the Filipino People and the Republic of the Philippines.”

The damage to the People is the violation of their criminal laws; the damage to the Republic is the plunder of P303 million. Since the PBA reduced the civil liability to only P135 million, which is less than half of the original claim, the Republic’s consent is essential.

The OMB is an independent constitutional body charged with the investigation and prosecution of crimes committed by public servants. It has no authority to raise funds, or keep them in its custody, much less to appropriate them. It is the Executive Department that is charged with the duty of raising funds, safeguarding them, and proposing to Congress their expenditure. Thus, only the President, or his duly authorized representative, can give consent to the reduction or waiver of funds due the Republic.

Since the consent of the offended party—the State whose name is the Republic of the Philippines—was not obtained, then the plea bargain agreement is void. Neither the OMB nor the SBN can give that consent for the Republic. Only the President (or his representative) can.

(Comments are welcome at chiefjusticepanganiban@hotmail.com)

Res judicata; act of state; exhaustion of administrative remedies; sufficiency of cause of action.

G.R. No. 124772

PRESIDENTIAL COMMISSION              G.R. No. 124772

ON GOOD GOVERNMENT and

MAGTANGGOL C. GUNIGUNDO,

in his capacity as CHAIRMAN thereof,

Petitioners,

- versus -

 

SANDIGANBAYAN and 

OFFICECO HOLDINGS, N.V.,

Respondents.

 

Promulgated: 

August 14, 2007

x--------------------------------------------------------------------------------------x

D E C I S I O N

Tinga, J.:

Before this Court is a Petition for Certiorari and Prohibition with Prayer for Issuance of a Temporary Restraining Order filed by the Presidential Commission on Good Government (PCGG) to restrain and enjoin respondent Sandiganbayan from further proceeding with Civil Case No. 0164, and to declare null and void the Resolutions of the Sandiganbayan (Second Division) dated 11 January 1996 and 29 March 1996, which denied PCGG’s motion to dismiss and motion for reconsideration, respectively, in Civil Case No. 0164.

The antecedent facts follow.

On 7 April 1986, in connection with criminal proceedings initiated in the Philippines to locate, sequester and seek restitution of alleged ill-gotten wealth amassed by the Marcoses and other accused from the Philippine Government,[1] the Office of the Solicitor General (OSG) wrote the Federal Office for Police Matters in Berne, Switzerland, requesting assistance for the latter office to: (a) ascertain and provide the OSG with information as to where and in which cantons the ill-gotten fortune of the Marcoses and other accused are located, the names of the depositors and the banks and the amounts involved; and (b) take necessary precautionary measures, such as sequestration, to freeze the assets in order to preserve their existing value and prevent any further transfer thereof (herein referred to as the IMAC request).[2]

On 29 May 1986, the Office of the District Attorney in Zurich, pursuant to the OSG’s request, issued an Order directing the Swiss Banks in Zurich to freeze the accounts of the accused in PCGG I.S. No. 1 and in the “List of Companies and Foundations.”[3] In compliance with said Order, Bankers Trust A.G. (BTAG) of Zurich froze the accounts of Officeco Holdings, N.V. (Officeco).[4]

Officeco appealed the Order of the District Attorney to the Attorney General of the Canton of Zurich. The Attorney General affirmed the Order of the District Attorney.[5] Officeco further appealed to the Swiss Federal Court which likewise dismissed the appeal on 31 May 1989.[6]

Thereafter, in late 1992, Officeco made representations with the OSG and the PCGG for them to officially advise the Swiss Federal Office for Police Matters to unfreeze Officeco’s assets.[7] The PCGG required Officeco to present countervailing evidence to support its request.

Instead of complying with the PCGG requirement for it to submit countervailing evidence, on 12 September 1994, Officeco filed
the complaint[8] which was docketed as Civil Case No. 0164 of the Sandiganbayan. The complaint prayed for the PCGG and the OSG to officially advise the Swiss government to exclude from the freeze or sequestration order the account of Officeco with BTAG and to unconditionally release the said account to Officeco.

The OSG filed a joint answer[9] on 24 November 1994 in behalf of all the defendants in Civil Case No. 0164.[10] On 12 May 1995, the PCGG itself filed a motion to dismiss[11] which was denied by the Sandiganbayan (Third Division) in its Resolution promulgated on 11 January 1996.[12] PCGG’s motion for reconsideration was likewise denied in another Resolution dated 29 March 1996.[13] Hence, this petition.

On 20 May 1996, the Sandiganbayan issued an order in Civil Case No. 0164 canceling the pre-trial scheduled on said date in deference to whatever action the Court may take on this petition.[14]

The issues raised by the PCGG in its Memorandum[15] may be summarized as follows: whether the Sandiganbayan erred in not dismissing Civil Case No. 0164 on the grounds of (1) res judicata; (2) lack of jurisdiction on account of the “act of state doctrine”; (3) lack of cause of action for being premature for failure to exhaust administrative remedies; and (4) lack of cause of action for the reason that mandamus does not lie to compel performance of a discretionary act, there being no showing of grave abuse of discretion on the part of petitioners.

According to petitioners, the 31 May 1989 Decision of the Swiss Federal Court denying Officeco’s appeal from the 29 May 1986 and 16 August 1988 freeze orders of the Zurich District Attorney and the Attorney General of the Canton of Zurich, respectively, is conclusive upon Officeco’s claims or demands for the release of the subject deposit accounts with BTAG. Thus, a relitigation of the same claims or demands cannot be done without violating the doctrine of res judicata or conclusiveness of judgment.[16]

Next, petitioners claim that Civil Case No. 0164 in effect seeks a judicial review of the legality or illegality of the acts of the Swiss government since the Sandiganbayan would inevitably examine and review the freeze orders of Swiss officials in resolving the case. This would be in violation of the “act of state” doctrine which states that courts of one country will not sit in judgment on the acts of the government of another in due deference to the independence of sovereignty of every sovereign state.[17]

Furthermore, if the Sandiganbayan allowed the complaint in Civil Case No. 0164 to prosper, this would place the Philippine government in an uncompromising position as it would be constrained to take a position contrary to that contained in the IMAC request.

Petitioners allege that Officeco failed to exhaust the administrative remedies available under Secs. 5 and 6 of the PCGG Rules and Regulations Implementing Executive Orders No. 1 and No. 2. This failure, according to petitioners, stripped Officeco of a cause of action thereby warranting the dismissal of the complaint before the Sandiganbayan.

Petitioners further contend that the complaint before the Sandiganbayan is actually one for mandamus but the act sought by Officeco is discretionary in nature. Petitioners add that they did not commit grave abuse of discretion in denying Officeco’s request to unfreeze its account with BTAG since the denial was based on Officeco’s failure to present countervailing evidence to support its claim. The action for mandamus does not lie, petitioners conclude.

In its comment,[18] Officeco questions the competence of the PCGG lawyers to appear in the case since they are not properly authorized by the OSG to represent the Philippine government and/or the PCGG in ill-gotten wealth cases such as the one in the case at bar. However, this issue has been rendered moot by an agreement by and among the PCGG Chairman, the Solicitor General, the Chief Presidential Legal Counsel, and the Secretary of Justice that the PCGG lawyers would enter their appearance as counsel of PCGG or the Republic and shall directly attend to the various cases of the PCGG, by virtue of their deputization as active counsel.[19] Furthermore, the Memorandum in this case which was prepared by the OSG reiterated the arguments in support of the petition which was initially filed by PCGG.

Nevertheless, the petition is bereft of merit. We find that the Sandiganbayan did not act with grave abuse of discretion in denying petitioners’ motion to dismiss.

Res judicata

Res judicata means a matter adjudged, a thing judicially acted upon or decided; a thing or matter settled by judgment.[20] The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies and constitutes an absolute bar to subsequent actions involving the same claim, demand, or cause of action.[21]

For the preclusive effect of res judicata to be enforced, the following requisites must obtain: (1) The former judgment or order must be final; (2) It must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case; (3) It must have been rendered by a court having jurisdiction over the subject matter and the parties; and (4) There must be, between the first and second actions, identity of parties, of subject matter and of cause of action. This requisite is satisfied if the two actions are substantially between the same parties.[22]

While the first three elements above are present in this case, we rule that the fourth element is absent. Hence, res judicata does not apply to prevent the Sandiganbayan from proceeding with Civil Case No. 0164.

Absolute identity of parties is not a condition sine qua non for res judicata to apply, a shared identity of interest being sufficient to invoke the coverage of the principle.[23] In this regard, petitioners claim that while “the Philippine government was not an impleaded party respondent in Switzerland,” it is undisputed that “the interest of the Philippine government is identical to the interest of the Swiss officials,” harping on the fact that the Swiss officials issued the freeze order on the basis of the IMAC request.[24] However, we fail to see how petitioners can even claim an interest identical to that of the courts of Switzerland. Petitioners’ interest, as reflected in their legal mandate, is to recover ill-gotten wealth, wherever the same may be located.[25] The interest of the Swiss court, on the other hand, is only to settle the issues raised before it, which include the propriety of the legal assistance extended by the Swiss authorities to the Philippine government.

Secondly, a subject matter is the item with respect to which the controversy has arisen, or concerning which the wrong has been done, and it is ordinarily the right, the thing, or the contract under dispute.[26] In the case at bar, the subject matter in the Swiss Federal Court was described in the 31 May 1989 decision itself as “ruling on temporary measures (freezing of accounts) and of taking of evidence (gathering bank information).”[27] It was thus concerned with determining (1) whether “there is a reason of exclusion as defined in Art. 2 lit. b and [Art. ] 3 par. 1 IRSG[28] or an applicable case of Art. 10 Par. 2 IRSG;” [29] (2) whether legal assistance should be refused on the basis of Art. 2 lit. a IRSG;[30] (3) whether Officeco should be regarded as a disinterested party owing to the fact that its name was not included in the list accompanying the IMAC request as well as in the order of the District Attorney of Zurich; and (4) whether the grant of legal assistance is proper considering the actions of Gapud.[31] In short, the subject matter before the Swiss courts was the propriety of the legal assistance extended to the Philippine government. On the other hand, the issue in Civil Case No. 0164 is whether the PCGG may be compelled to officially advise the Swiss government to exclude or drop from the freeze or sequestration order the account of Officeco with BTAG and to release the said account to Officeco. In short, the subject matter in Civil Case No. 0164 is the propriety of PCGG’s stance regarding Officeco’s account with BTAG.

In arguing that there is identity of causes of action, petitioners claim that “the proofs required to sustain a judgment for [Officeco] in Switzerland is no different from the proofs that it would offer in the Philippines.” We disagree.

A cause of action is an act or omission of one party in violation of the legal right of the other.[32] Causes of action are identical when there is an identity in the facts essential to the maintenance of the two actions, or where the same evidence will sustain both actions.[33] The test often used in determining whether causes of action are identical is to ascertain whether the same facts or evidence would support and establish the former and present causes of action.[34] More significantly, there is identity of causes of action when the judgment sought will be inconsistent with the prior judgment.[35] In the case at bar, allowing Civil Case No. 0164 to proceed to its logical conclusion will not result in any inconsistency with the 31 May 1989 decision of the Swiss Federal Court. Even if the Sandiganbayan finds for Officeco, the same will not automatically result in the lifting of the questioned freeze orders. It will merely serve as a basis for requiring the PCGG (through the OSG) to make the appropriate representations with the Swiss government agencies concerned.

Act of State Doctrine

The classic American statement of the act of state doctrine, which appears to have taken root in England as early as 1674,[36] and began to emerge in American jurisprudence in the late eighteenth and early nineteenth centuries, is found in Underhill v. Hernandez,[37] where Chief Justice Fuller said for a unanimous Court:

Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.[38]

The act of state doctrine is one of the methods by which States prevent their national courts from deciding disputes which relate to the internal affairs of another State, the other two being immunity and non-justiciability.[39] It is an avoidance technique that is directly related to a State’s obligation to respect the independence and equality of other States by not requiring them to submit to adjudication in a national court or to settlement of their disputes without their consent.[40] It requires the forum court to exercise restraint in the adjudication of disputes relating to legislative or other governmental acts which a foreign State has performed within its territorial limits.[41]

It is petitioners’ contention that the Sandiganbayan “could not grant or deny the prayers in [Officeco’s] complaint without first examining and scrutinizing the freeze order of the Swiss officials in the light of the evidence, which however is in the possession of said officials” and that it would therefore “sit in judgment on the acts of the government of another country.”[42] We disagree.

The parameters of the use of the act of state doctrine were clarified in Banco Nacional de Cuba v. Sabbatino.[43] There, the U.S. Supreme Court held that international law does not require the application of this doctrine nor does it forbid the application of the rule even if it is claimed that the act of state in question violated international law. Moreover, due to the doctrine’s peculiar nation-to-nation character, in practice the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal.[44]

Even assuming that international law requires the application of the act of state doctrine, it bears stressing that the Sandiganbayan will not examine and review the freeze orders of the concerned Swiss officials in Civil Case No. 0164. The Sandiganbayan will not require the Swiss officials to submit to its adjudication nor will it settle a dispute involving said officials. In fact, as prayed for in the complaint, the Sandiganbayan will only review and examine the propriety of maintaining PCGG’s position with respect to Officeco’s accounts with BTAG for the purpose of further determining the propriety of issuing a writ against the PCGG and the OSG. Everything considered, the act of state doctrine finds no application in this case and petitioners’ resort to it is utterly mislaid.

Exhaustion of Administrative Remedies

Petitioners advert to Officeco’s failure to exhaust the administrative remedies provided in Secs. 5 and 6 of the PCGG Rules and Regulations Implementing Executive Orders No. 1 and No. 2.[45] However, a reading of said provisions shows that they refer only to sequestration orders, freeze orders and hold orders issued by the PCGG in the Philippines. They cannot be made to apply to the freeze orders involved in this case which were issued by the government of another country.

It was thus error for petitioners to treat Officeco’s request for the lifting of the freeze orders as a request under Secs. 5 and 6 of its rules. First, the PCGG cannot even grant the remedy embodied in the said rules, i.e., lifting of the freeze orders. Second, any argument towards a conclusion that PCGG can grant the remedy of lifting the freeze order is totally inconsistent with its earlier argument using the act of state doctrine. PCGG’s cognizance of such a request and treating it as a request under Secs. 5 and 6 of its rules would require a re-examination or review of the decision of the Swiss court, a procedure that is prohibited by the act of state doctrine.

Complaint States a Cause of Action

While the stated issue is whether mandamus lies, the real crux of the matter is whether Officeco’s complaint before the Sandiganbayan states a cause of action. We uphold the sufficiency of the complaint.

It may be recalled that Officeco had alleged that it had sent several letters to the PCGG and the OSG for these bodies to advise the Swiss authorities to drop or exclude Officeco’s account with BTAG from the freeze or sequestration, but no formal response was received by petitioners on these letters. Copies of at least four (4) of these letters were in fact attached as annexes to the complaint.[46]

Section 5(a) of Republic Act No. 6713, or the Code of Conduct and Ethical Standards for Public Officials and Employees, states:

Section 5. Duties of Public Officials and Employees. ― In the performance of their duties, all public officials and employees are under obligation to:

(a) Act promptly on letters and requests. ― All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request. [Emphasis supplied.]

Since neither the PCGG nor the OSG replied to the requests of Officeco within fifteen (15) days as required by law, such inaction is equivalent to a denial of these requests. As such, no other recourse was left except for judicial relief. The appreciation of the allegations in the complaint from this standpoint allows us to see how the cause of action precisely materialized. Even if these allegations were not cast in the framework of a mandamus action, they still would give rise to a viable cause of action, subject to the proof of the allegations during trial.

A motion to dismiss on the ground of failure to state a cause of action in the complaint hypothetically admits the truth of the facts alleged therein. The hypothetical admission extends to the relevant and material facts well pleaded in the complaint and inferences fairly deducible therefrom. Hence, if the allegations in the complaint furnish sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defense that may be assessed by the defendants.[47]

The following allegations culled from Officeco’s complaint in the Sandiganbayan would, if proven, entitle Officeco to the main reliefs sought in its complaint in view of petitioners’ refusal to exclude Officeco’s account with BTAG in the list of ill-gotten wealth, to wit: (1) The freeze order has been in effect for eleven (11) years, since 1986, without any judicial action instituted by the PCGG and the OSG against Officeco; (2) The PCGG and the OSG have no document or proof that the account of Officeco with BTAG belongs to the Marcoses nor their cronies. Information on this matter was even requested by the OSG from the PCGG and the latter from Swiss authorities who, up to the present, have not responded positively on the request;[48] and (3) Requests[49] by Officeco to the PCGG and OSG to make representations with the Swiss authorities for the latter to release Officeco’s account with the BTAG from the freeze order remain unacted upon despite the mandate in Section 5(a) of Republic Act No. 6713.

The truth of the above allegations, which must be deemed hypothetically admitted for the purpose of considering the motion to dismiss, may properly be determined only if Civil Case No. 0164 is allowed to proceed, such that if they are found to be supported by preponderance of evidence, adverse findings may properly be made against PCGG and the corresponding reliefs granted in favor of Officeco.

Furthermore, Officeco claims that on two separate occasions, upon request of counsel for Security Bank and Trust Company (SBTC), the PCGG and the OSG formally advised the Swiss authorities to release from the freeze orders two other securities accounts with BTAG. Because of these representations, the release of the two accounts from the freeze order was effected. Gapud also assisted in the establishment and administration of these accounts with BTAG.[50] According to Officeco, the continuous refusal of the PCGG and the OSG to act favorably on its request while acting favorably on the above two requests of SBTC is a clear violation of its right to equal protection under the 1987 Constitution.[51]

The guarantee of equal protection, according to Tolentino v. Board of Accountancy, et al.,[52] simply means “that no person or class of persons shall be deprived of the said protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstances.”[53] Indeed, if it were true that the PCGG and the OSG facilitated the release of two deposit accounts upon the request of SBTC and these accounts are similarly situated to Officeco’s frozen account with BTAG, the operation of the equal protection clause of the Constitution dictates that Officeco’s account should likewise be ordered released. Again, this matter can properly be resolved if Civil Case No. 0164 is allowed to proceed.

WHEREFORE, premises considered, the instant petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

---

[1]The names of the accused as listed in the caption of PCGG I.S. No. 1 are as follows: Ferdinand E. Marcos, Imelda R. Marcos, Imelda Marcos Manotoc (Imee), Tomas Manotoc, Irene Marcos Araneta, Gregorio Araneta III, Ferdinand R. Marcos, Jr., Baltazar Aquino, Roberto S. Benedicto, Edna Camcam, Jose Y. Campos, Eduardo Cojuangco, Roman Cruz, Jr., Rodolfo Cuenca, Herminio Disini, Antonio Floirendo, Andres Genito, Jr., Rolando Gapud, Fe Roa Gimenez, Peter Sabido, Ricardo Silverio, Lucio Tan, Bienvenido Tantoco, Gliceria Tantoco, Geronimo Velasco, Fabian Ver, John Doe, Jane Doe, and others. Records, Vol. I, p. 22.

[2]Rollo, pp. 62-64.

[3]No such list can be found in the records of the case.

[4]It appearing that Rolando Gapud, one of the accused in PCGG I.S. No. 1, as President of Security Bank and Trust Company, assisted Officeco in the opening and administration of which Officeco’s account with BTAG.

[5]Based on its finding, the two limited companies, Curacao Corporation Company NV and Netherlands Antilles Corporation Company NV, who were the incorporators of Officeco, were also the incorporators of Unique Investment NV and Goodland Investment NV, companies organized by Jose Yao Campos on instructions of former President Ferdinand E. Marcos as a conduit of ill-gotten funds. Campos allegedly turned over the management of the latter two companies to Gapud.

[6]Rollo, pp. 77-86.

[7]These requests were contained in various letters written by Officeco’s counsel.

[8]Rollo, pp. 103-117.

[9]Records, Vol. I, pp. 97-104.

[10]The defendants were the following: Raul I. Goco, in his capacity as Solicitor General, the Presidential Commission on Good Government (PCGG), and Magtanggol C. Gunigundo, in his capacity as PCGG Chairman.

[11]Rollo, pp. 127-152.

[12]Id. at 43-52. It does not escape our attention that the fact that the PCGG filed a Motion to Dismiss even after the OSG had already filed an answer in its behalf is highly irregular. Motions to dismiss are to be filed within the time for but before filing the answer to the pleading asserting a claim (see Rules oF Court, Rule 16, Sec. 1) and the Sandiganbayan could have certainly denied the Motion to Dismiss on that ground. This point bears less relevance to this case only because that ground was not cited by the Sandiganbayan when it denied the Motion to Dismiss.

Still, the record also indicates a disconcerting lack of harmony between the OSG and the PCGG in the litigation of this petition. It was the PCGG itself, through its own counsels, which had filed the petition before this Court without any manifest conformity on the part of the OSG. In fact, there was an extended dispute on this point among the parties. While the OSG later manifested that it had deputized the PCGG lawyers to appear in this case, the Memorandum for petitioners was filed by the OSG itself.

[13]Id. at 53-61; Penned by then Court of Appeals Associate Justice (now retired Supreme Court Justice) Sabino R. De Leon, Jr. and concurred in by Associate Justices Cipriano A. Del Rosario (Chairperson) and Roberto M. Lagman.

[14]Records, Vol. IV, p. 1025.

[15]Rollo, pp. 1114-1153.

[16]Citing General Corporation of the Philippines v. Union Insurance Society of Canton, Ltd., 87 Phil. 313 (1950).

[17]Citing Underhill v. Hernandez, 168 U.S. 250.

[18]Rollo, pp. 164-219.

[19]Id. at 680-681, 700-702.

[20]Lanuza v. Court of Appeals, G.R. No. 131394, 28 March 2005, 454 SCRA 54, 61, citing Manila Electric Company v. Philippine Consumers Foundation, Inc., 425 Phil. 65, 78 (2002), citing 46 Am Jur. §514.

[21]Id., citing Republic v. Court of Appeals, 381 Phil. 558, 564 (2000).

[22]Escareal v. Philippine Airlines, Inc., G.R. No. 151922, 7 April 2007, citing Feria & Noche, Civil Procedure Annotated , Vol. II (2001 ed.), p. 134.

[23]Lanuza v. Court of Appeals, supra note 20, at 62, citing Cruz v. Court of Appeals, 388 Phil. 550, 556 (2000).

[24]Rollo, p. 20.

[25]Executive Order No. 2 (signed by former President Corazon C. Aquino on 12 March 1987) authorized the PCGG “to request and appeal to foreign governments wherein any such assets or properties may be found to freeze them and otherwise present their transfer, conveyance, encumbrance, concealment or liquidation by former President Ferdinand E. Marcos and Mrs. Imelda Romualdez Marcos, their relatives, subordinates, business associates, dummies, agents or nominees, pending the outcome of appropriate proceedings in the Philippines to determine whether such assets or properties were acquired by such persons through improper or illegal use of funds belonging to the Government of the Philippines or any of its branches, instrumentalities, enterprises, banks, or financial institutions or by taking undue advantage of their office, authority, influence, connections or relationship.”

[26]Escareal v. Philippine Airlines, Inc., supra note 22, citing Yusingco v. Ong Hing Lian, 149 Phil. 688, 705.

[27]Rollo, p. 82.

[28]Under this provision, a request for legal assistance is not to be complied with if the object of the proceedings is an act which, according to Swiss interpretation, has a predominantly political character.

[29]Under this provision, the divulgence of facts is inadmissible if it means considerable disadvantage to Swiss economy and this would not be expected in consideration of the significance of the deed.

[30]Under this provision, the procedure is refused when there are grounds for the assumption that the proceedings abroad do not correspond to the principles established in the European Human Rights Convention.

[31]Rollo, pp. 82-84. A legal requirement for legal assistance is that the actions of the individual accused must be punishable either under Philippine law or Swiss law.

[32]Escareal v. Philippine Airlines, Inc., supra note 22, citing Section 2, Rule 2, 1997 Rules of Civil Procedure.

[33]Id., citing Stilanopolus v. City of Legaspi, G.R. No. 113913, 12 October 1999, 316 SCRA 523, 541.

[34]Lanuza v. Court of Appeals, supra note 20, at 62, citing Cagayan de Oro Coliseum Inc. v. Court of Appeals, 378 Phil. 498, 520 (1999).

[35]Id., citing Cruz v. Court of Appeals, 388 Phil. 550, 556 (2000).

[36]Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923 (1964), citing Blad v. Bamfield, 3 Swans. 604, 36 Eng.Rep. 992.

[37]168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897).

[38]Banco Nacional de Cuba v. Sabbatino, supra note 36, citing Underhill v. Hernandes, 168 U.S. 250, 252; 18 S.Ct. 83, 84 (1897).

[39]Evans, M.d. (Ed.), International Law (First Edition), Oxford University Press, p. 357.

[40]Id. at 358.

[41]Id.

[42]Rollo, p. 25.

[43]376 U.S. 398; 84 S. Ct. 923 (1964).

[44]Id.

[45]Secs. 5 and 6 of the Rules read:

Section 5. Who may contest. – The person against whom a writ of sequestration or freeze or hold order is directed may request the lifting thereof in writing, either personally or through counsel within five (5) days from receipt of the writ of order, or in the case of a hold order, from date of knowledge thereof.

Section 6. Procedure for review of writ of order. – After due hearing or motu proprio for good cause shown, the Commission may lift the writ or order unconditionally or subject to such conditions as it may deem necessary, taking into consideration the evidence and the circumstances of the case. The resolution of the Commission may be appealed by the party concerned to the Office of the President of the Philippines within fifteen (15) days from receipt thereof.

[46]See rollo, p. 112.

[47]See., e.g., Ceroferr Realty v. Court of Appeals, 426 Phil. 522, 529 (2002).

[48]Officeco points to the following communications as evidence of this fact: (1) Letter dated 19 April 1989 of Ceasar Parlade of the PCGG addressed to Dr. Sergio Salvoni (Records, Vol. I, p. 27); (2) Letter dated 3 November 1992 of Atty. Simeon M. Mesina, Jr. addressed to the PCGG Chairman (Id. at p. 28); (3) Letter dated 27 July 1993 of ASG Cesario L. Del Rosario addressed to Officeco’s counsel (Id. at 29-30); (4) Letter dated 7 September 1992 of PCGG Chairman addressed to Officeco’s counsel (Id. at 31); (5) Letter of PCGG Chairman addressed to Mr. Peter Cosandey dated 12 March 1993 (Id. at 2); (6) Letter of ASG Del Rosario to Mr. Peter Cosandey dated 15 July 1992; and (7) Letter dated 24 July 1992 of ASG Del Rosario to the OSG (Id. at 34-36).

[49]The requests were made by Officeco’s counsel through letters dated 1 September 1992 (Id. at 50-52), 10 December 1992 (Id. at 53-55), 3 February 1993 (Id. at 56-62), 24 July 1992 (Id. at 63-64), 25 June 1993 (Id. at 65-70), and 23 July 1993 (Id. at 71-72).

[50]These are the deposit accounts of Bunratty Enterprises Ltd. worth US$15,000,000.00 and a CB Note worth US$2,598,586.00

[51]Sec. 1, Article II of the 1987 Constitution provides: “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”

.

[52]90 Phil. 83, 90 (1951).

[53]Cited in J.G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2003 Ed.), p. 137.