Wednesday, March 13, 2013

Our position in complicating issue in amparo case for boy 'witness' for murders


Our position in complicating issue 
in amparo case for boy 'witness' for murders

By BERTENI "TOTO" CATALUÑA CAUSING
Author of the book entitled "Simplified Libel Law in the Philippines"

During our hearing on March 8, 2013 for the Writ of Amparo case that we filed on behalf of newsman Jaime G. Aquino, his wife Ester Imus Aquino, and his minor son Jesting I. Aquino who Jaime insists to be being used to be a tool of political demolition job, an issue develop as to what to do with the Amparo Case considering that a Petition for Involuntary Termination of Parental Authority was already filed by one of the respondents, Akap Bata - Caritas.

The said petition of Akap Bata-Caritas sought to get authority from the RTC of Manila, Branch 29, for it to take custody over minor Jestin.

In the petition for the writ of amparo, Jaime seeks the liberty of his son from the hands of Akap Bata - Caritas.

HERE IS OUR POSITION.

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Republic of the Philippines
Court of Appeals
Ma. Orosa St., Manila


JAIME G. AQUINO and
ESTER I. AQUINO for
their minor son JESTIN
IMUS AQUINO,
                             Petitioners,

          - versus -                                                           No. ______________

NATIONAL BUREAU OF
INVESTIGATION (NBI),
DEPARTMENT OF JUSTICE (DOJ)
and AKAP-BATA CARITAS,
Respondents.
x-------------------------------------x                   


Position Paper


            The petitioners, by the undersigned counsel, respectfully file this Position Paper addressing the issue on what to do after it turned out that there was that Peitition for Involuntary Termination of Custody that was filed by respondent AKAP BATA – CARITAS.


The Established Points


            The following points are established.

First, this issue begins from the fact that the Rule on the Writ of Amparo is silent on what to do with the amparo case if it turned out that there is a separate civil action that is pending or that was filed.

Second, what the Rule of the Writ of Amparo provides is in case there is a separate criminal case that was filed in relation to the subject matter of the amparo case.

Third, Section 25 of the Rule on the Writ of Amparo that says: “The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule.”

Fourth, in the case Boac, et al vs Cadapan, et al[1], the Supreme Court said that the suppletory application of the Rules of Court is limited only to the condition that if the application strengthens the Rule of Amparo.

The Supreme Court said in Rubrico, to wit:

The Solicitor General’s argument that the Rules of Court supplement the Rule on the Writ of Amparo is misplaced.  The Rules of Court only find suppletory application in an amparo proceeding if the Rules strengthen, rather than weaken, the procedural efficacy of the writ.   As it is, the Rule dispenses with dilatory motions in view of the urgency in securing the life, liberty or security of the aggrieved party.  Suffice it to state that a motion for execution is inconsistent with the extraordinary and expeditious remedy being offered by an amparo proceeding. 

Fifth, the Rule on the Writ of Amparo is expressive that consolidation may be had only in case a parallel case that has been filed is a criminal case.

This is clear in Section 23 thereof, to wit:

SEC. 23. Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

Sixth, Justice Marvic Mario Victor Leonen wrote in his ponencia in the case De Lima vs Gatdula,[2] which was an en banc case concurred in by all 14 other members of the Supreme Court, that the amparo case can be consolidated in either a criminal or civil case.

Justice Leonen, citing Section 23 of the amparo rule, wrote as follows:

Parenthetically, the case may also be terminated through consolidation should a subsequent case be filed – either criminal or civil.

Although the Leonen decision was concurred in by all 14 other members of the Supreme Court, it collides with Section 23 that he cited as footnote no. 31 of his ponencia.  The collision is clear because if we read Section 23 it expressly speaks only of a criminal case.  If the Rule of Amparo intended to include civil case where an amparo case may be consolidated, it could have easily included the word “civil.”

Moreover, this statement in the ponencia of Justice Leonen is a mere obiter dictum as it is not directly connected with the issues of the same Gatdula case.

Seventh, the instant amparo case presents two sets of issues: (1) the issues on the existence of threats to life, liberty and security of the petitioners and their minor son; and (2) the issues on whether or not the respondents, particularly respondent Akap Bata-Caritas, shall free the child to the petitioners as parents.

Eighth, the Court of Appeals can always exercise its power of supervision over the Regional Trial Court, including the power to direct the lower court to conduct without delay the summary hearing required for the amparo proceedings alongside the pending Petition for Involuntary Termination of Custody and submit its recommendations to this CA division constituted as the Amparo Court.

The issues in the Petition for Involuntary Termination of Parental Custody are intertwined with the prayer of amparo libertad that the petitioners pray in the amparo case for their child to be freed from the custody of the respondents.  A reading of the petition for involuntary termination of custody shows that respondent Akap Bata-Caritas is alleging that petitioner Jaime G. Aquino maltreated minor Jestin Imus Aquino.  In the amparo petition, petitioner Jaime G. Aquino is insisting that the allegations of maltreatment are false.  Thus, on this particular set of issues, the contentions are diametrically opposing each other.

Moreover, it is established and admitted by respondent Akap Bata-Caritas, the petitioner in the said Petition, that the child is in its possession and custody.

Ninth, what has been delegated can no longer be delegated.  If the Supreme Court has already delegated the Court of Appeals, 17th Division, as the Amparo Court, the same division of the CA can no longer delegate further to the Regional Trial Court of Manila (Branch 29) this power to hear the instant amparo case.

Tenth, the amparo case must be resolved right away or in the most immediate possible means.

Eleventh, both the petition for the writ of amparo and the petiiton for involuntary termination of custody of the parents are special proceedings that there is no prohibition for the two petitions to be consolidated.

Twelfth, the RTC of Manila, Branch 29, has acquired exclusive jurisdiction over the Petition for Involuntary Termination of Custody.

This exclusive jurisdiction cannot be ousted from the RTC by the Court of Appeals even if it invokes its powers granted unto it by this amparo case.


The Position of the Petitioners


Taking cue from the above established points of facts and laws or rules, the petitioners recommend the hereunder position.

The Court of Appeals proceeds with the instant amparo proceedings dealing only on the aspect of determining the existence of threats to life, liberty and security of the petitioners and their minor son Jestin Aquino and make a partial judgment on the existence or not of the threats to life, liberty and security of the petitioners.

Let the RTC of Manila, Branch 29, proceed with the Petition for Involuntary Termination of Parental Authority subject to appeal by any proper party.

To give propriety to this arrangement, the petitioners undertake that they consent to the consolidation into the RTC case of their prayer for the amparo libertad. 

The petitioners also take the position that this consolidation with the consent of the petitioners is consistent with the general rule of consolidation of cases whose issues are intertwined with each other.

Further, the petitioners posit that this suppletory application of the general rule on consolidation of cases results in the strengthening of the instant amparo case and authorized by the obiter dictum in the ponencia of Justice Leonon stated in the Gatdula case above. 

The petitioners are also taking the position that the two sets of issues and prayers in their amparo petition are separable from each other in the sense that one can be resolved independent of each other.

The amparo court can verily resolve these issues on threats to life, liberty and security of the petitioners and their minor son independently of the issue of whether or not respondent Akap Bata-Caritas, a private entity, shall free the kid to the custody of the petitioners.

            To give more legal effect to this position of the petitioners, they undertake that they will enter appearance and join as parties in the same petition pending now at the Manila RTC, Branch 29, where the initial hearing, as manifested by respondent Akap Bata-Caritas during the March 8, 2013 hearing before this Court, was set for March 21, 2013.

Hence, this position is being submitted.


The Prayer


            WHEREFORE, it is respectfully prayed of the Honorable Court of Appeals that instant Position Paper be admitted and considered in the resolution of the issue stated above.

            Other reliefs just and equitable under the premises are also prayed for.  Manila, February 18, 2013.


ALAB NG MAMAMAHAYAG (ALAM)
Ground Floor, National Press Club Bldg.,
No. 1 Magallanes Drive, Intramuros, Manila


RENTA PE CAUSING SABARRE CASTRO & ASSOCIATES
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Telephone No.: +632-3105521


By:

BERTENI CATALUÑA CAUSING
IBP No. 876498 / Manila IV / 10-01-2013
PTR No. 1435314 / Manila / 10-01-2013
Roll No. 60944 / MCLE No. IV -0007338 / 08-10-2012

Cc:

NATIONAL BUREAU OF INVESTIGATION
Taft Avenue, Manila

DEPARTMENT OF JUSTICE
Padre Faura St., Manila

AKAP BATA-CARITAS
Caritas Manila Compound,
2002 Jesus St., Pandacan, Manila


[1] GR No. 184461-62, May 31, 2011
[2] GR No. 204528, February 19, 2013
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