Tuesday, August 10, 2010

Domestic violence. . .

Ano nga ba ang domestic violence? palagi na siguro nating naririnig ito sa mga talakayan at telebisyon pero hanggang ngayon ay patuloy pa rin pagbubulagbulagan, pagiging pepe at pagbibibingihan ng ating mga mamamayan. Ngayon, ano nga ba itong domestic violence? Ito ay kahit na anong uri ng karahasan kung saan ang biktima ay may kaugnayan sa isa't-isa, magkamag-anak man o hindi ngunit nakatira sa isang bahay o tinutuluyan. Ito ay naisasabatas sa pamamagitan ng RA 9262 o Anti-Violence Against Women and Their Children Act of 2004. Ito ay tumutugon sa pang-aabuso sa mga kababaihan at ng kanilang dati o kasalukuyang asawa o live-in partner basta ka-relasyon kahit dati o kasaluyang boyfriend o "date".

Ito ang mga pang-aabuso o ipinagbabawal na maaaring parusahan sa ilalim ng RA 9262 o Anti-VAWC Act, ito man ay aktwal na ginawa o banta lang:

  • Physical violence: pananampal, panununtok, panggugulpi, paninipa
  • Sexual violence: rape, pambababastos, panghahalay, pamimilit na manood ng x-rated na pelikula, pambubugaw ng asawa o anak
  • Psychological violence: pananakot, pinapahiya, madalas na pagmumura, paninigaw at iba pang mapang-abusong pananalita, paninira ng gamit, pangangaliwa, panunutok ng baril, pagkukulong sa bahay, pagbabanta o aktwal na pagkakait sa babae ng kanyang anak o pagbabanta na sasaktan ang anak o magulang.
  • Financial abuse: hindi pagbibigay ng suporta o sinsadyang kulang ang binibigay na suporta, pagpigil sa paghahanap-buhay ng babae o pagkontrol ng kita ng babae, paninira ng gamit o mga ariarian. 
 Dapat din nating malaman na ang VAWC ay isang "public crime" kaya hindi lng ang biktima ang pwede na magsampa ng kaso--pwede ang social worker, pulis, barangay kagawad, abogado, kamag-anak, kaibigan, kapit-bahay o sino mang may kaalaman sa krimen (concerned citizen). to be continued.  . . .

Our Deepest Fear



"Our deepest fear is not that we are inadequate.
Our deepest fear is that we are powerful beyond measure.
It is our light, not our darkness, that most frightens us.
We ask ourselves, who am I to be brilliant, gorgeous, talented, fabulous?
Actually, who are you not to be?
You are a child of God. Your playing small does not serve the world.
There is nothing enlightened about shrinking
so that other people won't feel insecure around you.
We are all meant to shine, as children do.
We were born to make manifest the glory of God that is within us.
It's not just in some of us; it is in everyone.
And as we let our own light shine,
we unconsciously give other people permission to do the same.
As we are liberated from our own fear,
our presence automatically liberates others."

~ Marianne Williamson - from "A Return To Love" ~

I so love this poem. . . 

Monday, August 9, 2010

LIANG VS PEOPLE OF THE PHILIPPINES GR no. 125865 January 28, 2000



Petitioner: Jeffrey Liang
Respondent: People of the Philippines

FACTS:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the MeTC of Mandaluyong City with two counts of oral defamation. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioner’s bail, the MeTC released him to the custody of the Security Officer of ADB. The next day, the MeTC judge received an “office of protocol” from the DFA stating that petitioner is covered by immunity from legal process under section 45 of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB in the country. Based on the said protocol communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution dismissed the criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with the RTC of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied, the petitioner elevated the case to the SC via a petition for review arguing that he is covered by immunity under the Agreement and that no preliminary investigation was held before the criminal case.

ISSUES:
(1)   Whether or not the petitioner’s case is covered with immunity from legal process with regard to Section 45 of the Agreement between the ADB and the Philippine Gov’t.
(2)   Whether or not the conduct of preliminary investigation was imperative.

HELD:
(1)   NO. The petitioner’s case is not covered by the immunity. Courts cannot blindly adhere to the communication from the DFA that the petitioner is covered by any immunity. It has no binding effect in courts. The court needs to protect the right to due process not only of the accused but also of the prosecution. Secondly, the immunity under Section 45 of the Agreement is not absolute, but subject to the exception that the acts must be done in “official capacity”. Hence, slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such as defamation, in the name of official duty.
(2)   NO. Preliminary Investigation is not a matter of right in cases cognizable by the MeTC such as this case. Being purely a statutory right, preliminary investigation may be invoked only when specifically granted by law. The rule on criminal procedure is clear that no preliminary investigation is required in cases falling within the jurisdiction of the MeTC.

Hence, SC denied the petition.

VALEROSO vs PEOPLE OF THE PHILIPPINES GR 164815 February 22, 2008

VALEROSO vs PEOPLE OF THE PHILIPPINES   GR 164815   February 22, 2008
(focusing on PROSPECTIVITY)
Petitioner: PSINSP JERRY C VALEROSO
Respondent: The People of the Philippines

FACTS:
On July 10, 1996, SPO2 Antonio Disuanco of the Criminal Investigation Section Division, Central Police District Command received a dispatch order which directed him and three (3) other personnel to serve a warrant of arrest against petitioner in a case for kidnapping with ransom. After  briefing, team conducted necessary surveillance on petitioner, checking his hideouts in Cavite, Caloocan and Bulacan. Then, the team proceeded to the Integrated National Police Central Station in Culiat, Quezon City, where they saw petitioner as he was about to board a tricycle. SPO2 Disuanco and his team approached petitioner. They put him under arrest, informed him of his constitutional rights, and bodily searched him. Found tucked in his waist was a Charter Arms, bearing Serial Number 52315 with five (5) live ammunition.

Petitioner was brought to the police station for questioning. A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame revealed that it was not issued to the petitioner but to another person. Petitioner was then charged with illegal possession of firearm and ammunition under PD No. 1866 as amended.

On May 6, 1998 trial court found petitionerguilty as charged and sentenced him to suffer the penalty of prision correccional in its maximum plus fine. Petitioner moved to reconsider but his motion was denied. He appealed to the CA. On May 4, 2004, the appellate court affirmed the RTC disposition.

SC affirmed CAs decision.

ISSUE:
(1)   Whether or not retroactive application of the law is valid taken into account that the commission of the offense was on July 10, 1996 wherein the governing law was PD 1866 which provides the penalty of reclusion temporal in its maximum period to reclusion perpetua.

HELD:
(1)   YES. RA 8294 amended PD 1866 on July 6, 1997, during the pendency of the case with the trial court. The law looks forward, never backward (prospectivity).Lex prospicit, non respicit. A new law has a prospective, not retroactive, effect. However, penal laws that favor a guilty person, who is not a habitual criminal, shall be given retroactive effect.(Exception and exception to the exception on effectivity of laws).



FAJARDO VS COURT OF APPEAL GR no. 128508 February 01, 1999



Petitioner: Daniel G. Fajardo
Respondent (s): Court of Appeals, Hon. Florentino P. Pedronio (in his capacity as presi-
            ding Judge, RTC Br 31, Iloilo City, PEOPLE OF THE PHILIPPINES and Station Com-
            mander of Iloilo City

FACTS:

On May 26, 1988, the RTC Br 31 of Iloilo City convicted petitioner of violation of BP Blg 22 and sentenced him to suffer the penalty of 8 months imprisonment and pay the costs. The petitioner appealed to the Court of Appeals. By decision promulgated on February 27, 1990, the CA affirmed the conviction. Petitioner filed a petition for review on certiorari of the conviction before the SC but latter also denied said petition.

On June 2, 1995, petitioner filed a motion for probation before the trial court contending that he was eligible for probation because at the time he committed the offense in 1981, an accused who had appealed his conviction was still qualified to apply for probation and that the law that barred an application for probation of an accused who had interposed an appeal was ex post facto in its application and hence, not applicable to him. Trial court denied petitioner’s motion for probation and so did CA.

ISSUES:
(1)   Whether or not petitioner could qualify to apply for probation under PD No. 986 since he had appealed from his conviction in 1988, after PD 1990 amending PD 986 become effective in 1986.
(2)   Whether or not PD 1990 is an ex post facto law hence, invalid.

HELD:
(1)   NO. PD 1990 provides, “no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction”. At the time of the commission of the offense in 1981, petitioner could have appealed if convicted and still availed himself of probation but he was convicted on May 26, 1988, and he appealed. At that time, PD 1990 was then in full effect. He could no longer apply for probation since he had appealed.
(2)   NO. PD 1990 is valid. It is not an ex post facto law in its application and neither is it considered as such. The law applies only to accused convicted after its effectivity. An ex post facto law is one that punishes an act as a crime which was innocent at the time of its commission. PD 1990 is not penal in character just like the Probation Law that it amends.




YU OH vs COURT OF APPEALS GR No. 12597 June 06, 2003

my first digest: on retroactive effect(criminal law I)

Petitioner: Elvira Yu Oh
Respondent(s): Court of Appeals and People of the Philippines

FACTS:

Petitioner purchased pieces of jewelry from Solid Gold International Traders, Inc. Due to her failure to pay the purchase price, the company filed civil cases against her for specific performance before the RTC of Pasig. On September 17, 1990, petitioner and Solid Gold through it general manager, Joaquin Novales III entered into a compromise agreement to settle said civil cases. It was approved by the trial court provided that petitioner shall issue a total of ninety-nine post-dated checks in the amount of PHP 50,000.00 each, dated every 15th and 30th of the month starting October 1, 1990 and the balance of over PHP 1million to be paid in lump sum on November 16, 1994 (the due date of the 99th post dated check). Petitioner then issued ten checks at Php 50,000.00 each for a total of Php 500,000.00 drawn against her account at the Equitable Banking Corporation (EBC). Novales then deposited each of the ten checks on their respective due dates to the company bank account. However, said checks were dishonored by the EBC for the reason “Account Closed”. Dishonor slips were issued for each check that was returned to Novales. On October 5, 1992, Novales filed 10 separate informations before the RTC of Quezon City charging the petitioner with violation of Batas Pambansa Blg. 22. Upon arraignment, petitioner pleaded not guilty.

Nonetheless, RTC convicted her of ten counts of violation of BP 22. CA affirmed the decision.

ISSUES:
(1)   Whether or not appellate court was mistaken in not granting retroactive effect to RA 7691 in view of Art 22 of the RPC.
(2)   Whether or not “notice of dishonor” is indispensable in this case.

HELD:
(1)   No. RA 7691 is not a penal law and therefore, Art 22 of the RPC does not apply in the present case. A penal law is an act of the legislature that prohibits certain acts and establishes penalties for its violations. It also defines crime, treats of their nature and provides for its punishment. RA 7691 is a law that vests additional jurisdiction on courts, thus, it is substantive. The court further held that it cannot be given retroactive effect.

(2)   Yes. It is necessary that a “notice of dishonor” be received by the issuer and the prosecution has the burden of proving the fact of service. It thus stated in section 2 of BP 22. It is essential for the drawer to be notified of the dishonor of her checks so she could make arrangements for its payment within the period prescribed by law (5 days).

Hence, SC reversed the decision of the CA and acquits the petioner.

fast forward

. . . after a six-month slumber, i have stumbled upon this blog. . .

I have forgotten all about it. My plan of documenting every detail of my trials and triumph was set aside. But as i read through my first blog, i can't help but smile and contemplate as to why I have decided to write on it in the first place. . . i am no longer entertaining the thought of becoming a freelance writer, I will still be writing though no longer for profit since I can no longer afford it with my work and all, maybe someday with a big IF.

I am a really busy girl, juggling my work, family and school (yup, I actually enrolled in law school just this sem) and a little bit of social life (just a teeny, weeny bit). It would be great to write about the things i am seeing, feeling and experiencing right the very minute it is occurring in my life.

and so. . .

. . . .i have decided to revive this blog .. .