Culpa is Imputable to Defect of Intellect while Dolus is to Defect of Heart

August 11, 2015 at 10:27 am (Legal Articles) (, )

Enrile: What does ‘culpa’ mean?
By Michael Lim Ubac
Philippine Daily Inquirer
12:48 am | Tuesday, May 29th, 2012

His questions seem to augur ill for Chief Justice Renato Corona when the Senate impeachment court hands down its verdict Tuesday.

Senate President Juan Ponce Enrile had the last word in the closing arguments Monday, but he left the question hanging on whether Chief Justice Renato Corona willfully and intentionally fudged his statement of assets, liabilities and net worth (SALN) and should be convicted.

Before adjourning Monday, Enrile bombarded the defense lawyers with a series of questions over their contention the alleged nondeclaration and misdeclaration of certain assets and bank deposits in the Chief Justice’s SALNs did not amount to an impeachable offense.

What injury or prejudice may arise if a depositor, who is a public officer or employee, of a foreign currency deposit would include that deposit or the amount represented by that deposit in his statement of assets, liabilities and net worth?” Enrile asked.

The lead defense counsel, Serafin Cuevas, replied that he was “not very sure … insofar as damage is concerned.

Upon a clarification by Enrile, Cuevas said: “The probability of kidnapping, extortion and so on may come into the picture because, especially with the present trend of criminality in the country today, there is no assurance that one is immune from any of these offenses. That may be one.

Enrile then asked whether this scenario had been contemplated by the framers of Republic Act No. 6426 (Foreign Currency Deposit Act of the Philippines), as well as the presidential decrees preceding it.

The declaration of policy is entirely different from the disastrous consequences or unwarranted circumstances that may occur thereafter,” Cuevas insisted.

Enrile then asked, “Will a public officer or a public employee who maintains a foreign currency deposit incur the punitive penalty of RA 6426 if he would reflect that deposit in his SALN?

Cuevas said, “I don’t see that probability, but it could amount to a (forced) consent, as distinguished from a voluntary provision on the part of the depositor.

No Secrecy Law
Enrile explained: “We are forgetting that the law allows the exposure of a foreign currency deposit by expressed provision of RA 6426 if the depositor himself would give (the consent). There’s no monetary secrecy law in this country that prohibits or inhibits or proscribes the depositor from revealing his own deposits. What is prohibited is for a third party to reveal it, and that’s why they are penalized, but the depositor is not.

Enrile also pointed Cuevas to Section 17, Article 11 of the Constitution, which says: “A public officer or employee shall upon assumption of office, and as often thereafter as may be provided by law, submit a declaration under oath of his assets, liabilities and net worth.”

Do you consider that sentence as mandatory that requires to be obeyed by a public officer or public employee?” asked Enrile. “Do you consider that a command of the people, or is it something that can be disregarded?

Cuevas said the Constitution could not be disregarded by public officials.

But, he added: “When there are gripes that arise from a different law, I don’t see any reason as to why it cannot be availed of, in this particular instant, the depositor. Why the law has granted that is beyond my comprehension. It’s a legislative function … I’m not privileged neither can define or fathom the reason behind it.

Cuevas, a former Supreme Court associate justice, was citing the confidentiality invoked by the Chief Justice in refusing to declare in his SALNs the $2.4 million in dollar deposits.

Sovereign Command
Enrile then asked if disobedience of “a sovereign command” in the Constitution would constitute a culpable violation of the Constitution, which is an impeachable offense.

I would not be in a position to make a statement to that unless the actual facts surrounding the circumstances are known to me,” said Cuevas, who said that this “would be a matter of conjecture or surmise on my part.

Enrile then asked Cuevas about the difference in the Roman Law doctrine of “culpa” and “dolos” from where the constitutional intent of “culpable” was derived.

According to Cuevas, “dolos is intentional,” while “culpa is negligence.” Enrile disagreed, saying that “culpa is deserving of blame.

When Cuevas claimed that “intention” was needed to ascertain whether disobedience to the provision of Section 17 of the Constitution deserved blame, Enrile pointed out that the provision did not call for any intent.

Where in that provision will you find intent?” Enrile asked.

Willful, Intentional
Representative Rodolfo Fariñas, speaking for the prosecution, said that according to the records of the 1987 Constitutional Commission, “culpable violation of Constitution is understood to mean willful and intentional violation of the Constitution and not violation committed unintentionally, or involuntarily, or in good faith, or through an honest mistake of judgment.”

And it implies deliberate intent, perhaps even a degree of perversity for it is not easy to imagine that individuals in the category of these officials would go so far as to defy knowingly what the Constitution commands.

Defense lawyer Eduardo de los Angeles earlier insisted that Corona’s failure to disclose his $2.4 million in bank accounts did not amount to an “impeachable breach of trust.”

He said that at best, this omission would only amount to “a fine not exceeding P5,000, or imprisonment not exceeding five years, or both.”

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Plea Bargaining 101

August 11, 2015 at 9:59 am (Legal Articles) (, , , )

Plea Bargain
MY FOUR CENTAVOS By Dean Andy Bautista
The Philippine Star January 22, 2011

Given the continuing interest on the General Garcia plunder case, it may be worthwhile to discuss the concept of a plea bargain. This is essentially an agreement in a criminal case where the prosecution and the defense agree that the accused will plead guilty to a lesser charge than what is contained in the information. The equivalent of a plea bargain in a civil case is a compromise settlement.

Parties enter into a plea bargain for several reasons. Aside from escaping the rigors of a full blown trial, the accused may wish to avoid the risk of conviction to the original, more serious charge. As far as the prosecution is concerned, a plea bargain should mean reduced costs and the ability to focus more on other cases.

In the United States, a plea bargain can be one of several types. Charge bargaining occurs when an accused pleads guilty to a less serious crime (as in the Garcia case). In count bargaining, the accused pleads guilty to a subset of multiple original charges. In sentence bargaining, an accused knows in advance what sentence will be given. In fact bargaining, the prosecution and defense agree to a certain stipulation of facts which will affect what the penalty will be in accordance with the sentencing guidelines. Interestingly, in the US, plea bargaining has become the rule rather than the exception in criminal cases.

In the Philippines, the pertinent rule on plea bargaining is found in Rule 116, Section 2 of the Rules of Court which provides:

Plea of guilty to a lesser offense — At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.”

In the Garcia case, the original charge was that of plunder which is a capital crime punished under Republic Act 7080. The lesser offense that he subsequently pleaded guilty to was direct bribery which is punished under Article 210 of the Revised Penal Code and facilitating money laundering covered under Republic Act 9160. Query as to whether the crime of direct bribery and money laundering are “necessarily included” in the offense of plunder? Note that both crimes are punished by different laws.

Note as well the requirement of obtaining the consent of the offended party before the trial court will allow the downgrading of the original offense charged. In this instance, who is the offended party? Is it the Armed Forces of the Philippines since the money seems to have been taken from its coffers or the Republic since public money is involved. In any event, if we follow the news reports, it would seem that neither of their consents was secured.

* * * *

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Terrorism Defined

October 11, 2010 at 2:12 pm (Legal Definitions) (, )

How is “Terrorism” defined under Philippine laws?

Republic Act (RA) No. 9372, otherwise known as The Anti-Terror Law or The Human Security Act of 2007, which took effect last July 15, 2007, provides for its definition as follows:

SEC. 3. Terrorism. Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup de tat), including acts committed by private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,

or under
1. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

This post is made in the light of the Supreme Court’s recent ruling of the constitutionality of RA 9372.

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CD: Far East Realty Investment Inc. v. CA

September 22, 2010 at 3:45 pm (1988, Case Digests, Legal Definitions) (, , , )

FAR EAST REALTY INVESTMENT INC. v. CA
G.R. No. L-36549 October 5, 1988
Paras, J.

Doctrine:
Where the instrument is not payable on demand, presentment must be made on the day it falls due. Where it is payable on demand, presentment must be made within a reasonable time after issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof.

• Reasonable Time has been defined as so much time as is necessary under the circumstances for a reasonable prudent and diligent man to do, conveniently, what the contract or duty requires should be done, having a regard for the rights, and possibility of loss, if any, to the other party.

• No hard and fast demarcation line can be drawn between what may be considered as a reasonable or an unreasonable time, because “reasonable time” depends upon the peculiar facts and circumstances in each case.

Facts:
Private respondents asked the petitioner to extend an accommodation loan in the sum of P4,500.00. Respondents delivered to the petitioner a check for P4,500.00, drawn by Dy Hian Tat, and signed by them at the back of said check, with the assurance that after one month from September 13, 1960, the said check would be redeemed by them by paying cash in the sum of P4,500.00, or the said check can be presented for payment on or immediately after one month. Petitioner agreed and extended an accommodation loan

The aforesaid check was presented for payment to the China Banking Corporation, but said check bounced and was not cashed by said bank, for the reason that the current account of the drawer thereof had already been closed. Petitioner demanded payment from the private but the latter failed and refused to pay notwithstanding repeated demands.

Both private respondents raised the defense that both have been wholly discharged by delay in presentment of the check for payment.
The Lower Court ruled in favor of the petitioner. However, this was reversed by the CA upon appeal by the respondents, ruling that the check was not given as collateral to guarantee a loan secured since the check passed through other hands before reaching the petitioner and the said check was not presented within a reasonable time. Hence this petition.

Petitioner argues that presentment for payment and notice of dishonor are not necessary as when funds are insufficient to meet a check, thus the drawer is liable, whether such presentment and notice be totally omitted or merely delayed.

Issues:
1. Whether or not presentment for payment can be dispensed with
2. Whether or not presentment for payment and notice of dishonor of the questioned check were made within reasonable time

Held:
1. No. Where the instrument is not payable on demand, presentment must be made on the day it falls due. Where it is payable on demand, presentment must be made within a reasonable time after issue, except that in the case of a bill of exchange, presentment for payment will be sufficient if made within a reasonable time after the last negotiation thereof (Section 71, Negotiable Instruments Law).

2. No. It is obvious in this case that presentment and notice of dishonor were not made within a reasonable time.

Reasonable time” has been defined as so much time as is necessary under the circumstances for a reasonable prudent and diligent man to do, conveniently, what the contract or duty requires should be done, having a regard for the rights, and possibility of loss, if any, to the other party (Citizens’ Bank Bldg. v. L & E. Wertheirmer 189 S.W. 361, 362, 126 Ark, 38, Ann. Cas. 1917 E, 520).

Notice may be given as soon as the instrument is dishonored; and unless delay is excused must be given within the time fixed by the law (Section 102, Negotiable Instruments Law).

In the instant case, the check in question was issued on September 13, 1960, but was presented to the drawee bank only on March 5, 1964, and dishonored on the same date. After dishonor by the drawee bank, a formal notice of dishonor was made by the petitioner through a letter dated April 27, 1968. Under these circumstances, the petitioner undoubtedly failed to exercise prudence and diligence on what he ought to do al. required by law. The petitioner likewise failed to show any justification for the unreasonable delay.

No hard and fast demarcation line can be drawn between what may be considered as a reasonable or an unreasonable time, because “reasonable time” depends upon the peculiar facts and circumstances in each case (Tolentino, Commentaries and Jurisprudence on Commercial Laws of the Philippines, Vol. I, Eighth Edition, p. 327).

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Accommodation Party

September 7, 2010 at 9:39 am (Legal Definitions) (, , )

Today, the Philippine Daily Inquirer (PDI) reported actor Deither “Diet” Ocampo, together with his partner and a publishing company, being sued for alleged non-payment of debts amounting to over Php. 3.6 million.

In the article, the PDI defined an accommodation party using the internet as a source. The website from which the definition was gathered was not identified.

Now, what is an accommodation party under Philippine jurisprudence?

Section 29 of the Negotiable Instruments Law provides for the definition of an accommodation party:

Sec. 29. Liability of accommodation party. – An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder, at the time of taking the instrument, knew him to be only an accommodation party.

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Doctrine of Innocent Purchaser

August 18, 2010 at 9:25 am (Legal Definitions) (, )

Today, the Supreme Court is set to hear the oral arguments of the petition involving the Hacienda Luisita dispute. Petitioners, who are also President Benigno Aquino III’s cousins, are seeking to overturn a 2005 decision by the Presidential Agrarian Reform Council (PARC) scratching the stock distribution option (SDO) under CARP reached in 1989.

One of the issues to be discussed is whether the Luisita Industrial Park Corp. and Rizal Commercial Banking Corp., as transferees of a portion of the 6,500-hectare estate, may invoke the “doctrine of innocent purchaser.”

Now, what is exactly the doctrine of innocent purchaser?

The subject is summarily discussed in the case of Tan v. Dela Vega, G.R. No. 168809, 10 July 2006.

Accordingly, the doctrine of innocent purchaser rules that a void title may be the source of a valid title in the hands of an innocent purchaser for value. An innocent purchaser for value is one who buys the property of another, without notice that some other person has a right to, or interest in, such property and pays a full and fair price for the same at the time of such purchase, or before he has notice of the claims or interest of some other person in the property.

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