CLOSING ARGUMENT FOR A CLIENT CHARGED BY EX-IMMIGRATION CHIEF
CLOSING ARGUMENT FOR A CLIENT
CHARGED BY EX-IMMIGRATION CHIEF
To share knowledge in the hope that one who may be in need could get help, I am posting this Memorandum, the closing argument I wrote for a client charged by former Commissioner Ricardo David despite the fact that there is almost no basis in filing the administrative accusation.
What happened was that the client was charged as a sort of abuse, in a manner usually done by officials when appointed to power.
While I endorse the habit of filing charges, I do not do so when there is no clear evidence to push the charges.
In this Memorandum, I displayed clearly why there was no evidence to pin my client.
For those who are minded to read the long Memorandum, below is it.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Republic of the Philippines
Department of Justice
Bureau
of Immigration
Magallanes Drive,
Intramuros, Manila
Re: In a matter of
Administrative
Case BOD Case No.
2013-011
For:
Gross Neglect of Duty
ANNETTE TAN,
Administrative Assistance
II,
Respondent.
x------------------------------------------------------x
Memorandum
with
Leave
The respondent,
by the undersigned counsel, respectfully submits this Memorandum.
The
Motion for Leave to Consider Memorandum
The respondent begs the Honorable Hearing Officer to
consider this Memorandum whose purpose is only for making it as additional
information tool for the ultimate purpose of enlightening the Hearing Officer
and the decision-maker.
Additionally, submission of Memorandum is not jurisdictional
because the case can be decided anyway without this pleading.
In relation to this, the undersigned respectfully informs
the Office that he has been consumed by the voluminous writing works that he
had to give priority because these were jurisdictional in nature, including
petitions and motions for reconsideration.
In addition, the undersigned has been pre-occupied with
daily hearings.
So that the undersigned begs the understanding of the
Office and the prosecution.
The
Case
The instant case is an administrative case denominated as
GROSS NEGLECT OF DUTY.
The formal charge is as follows:
FORMAL CHARGE
After
preliminary investigation, this office finds a prima facie case against you,
Annette A.Tan. Administrative Assistant
II, for the administrative charge of Gross Neglect of Duty pursuant to Section
46 A 2 Rule 10, of the Revised Rules on Administrative Cases in the Civil
Service committed as follows:
On 03
March 2012, you failed to observe the
formalities required for clearing passengers, you cleared for departure passengers Minnie Herrera Mactal and Maribel
Labis Sesno, who were possible victims of human trafficking, despite the fact
that they were improperly documented and were previously offloaded.
They
were intercepted by Travel Control Enforcement Unit (TCEU) Member Airene J.
Ubalde at the immigration area.
As per verification by the
TCEU, passengers Sesno and Mactal had no return tickets. They admitted during
the Secondary inspection that the purpose of their travel was to work overseas.
In
view whereof, you are hereby given a period of five (5) days within which to
submit your answer to charge. You are to indicate therein whether or not you
elect a formal investigation. You are also advised of your right to be assisted
of a counsel of your own choice.
Manila,
28 January 2013
Dissecting the formal charge to make it easier to
comprehend, the specific accusations are as follows:
1.
That the respondent failed to observe the
formalities required for clearing passengers;
2.
That she cleared for departure passengers Minnie
Herrera Mactal and Maribel Labis Sesno, who were possible victims of human
trafficking, despite the fact that they (Mactal and Sesno) were improperly
documented and were previously offloaded; the two were intercepted by Traffic
Control Enforcement Unit (TCEU) member Airene J. Ubalde at the immigration area;
and
3.
That according to the verification made by TCEU,
passengers Sesno and Mactal had no return tickets and that the two admitted
during the secondary inspection that their purpose of travel was to work
overseas.
The
Evidence Presented by the Prosecution
To support its accusations, the prosecution presented
four witnesses and several documents as its exhibits. The four witnesses were Duty Supervisor
Edbien C. Yap, TCEU supervisor Ma. Bernadette Catipay and TCEU members Airene
J. Ubalde and Maritess O. Cabansag.
Of these witnesses, Catipay and
Ubalde were seated and cross-examined.
The respondent’s counsel stipulated
on witnesses Yap and Cabansag because it turned out that the two had no
participation on matters that are material to the accusations.
The purpose of presenting Yap was to
prove that he was the one who confirmed that Stamp No. 496 belonged to the
respondent. After learning this from the
prosecution counsel, the respondent’s counsel stipulated that Yap was only to
prove that he was the one who confirmed that Stamp No. 496 belonged to
respondent Annette Tan, the respondent’s counsel waive the cross-examination on
him.
The purpose in presenting Cabansag
was to corroborate the testimonies of Ubalde and of Catipay. Witnesses Ubalde
and Catipay confirmed that Cabansag had no participation in the interception of
Maribel Labis Sesno and Minnie H. Mactal except for just signing the Sworn
Statement and Affidavit of Interception and Offloading. After confirming with these two witnesses
that Cabansag did not have any participation except for just signing as a
matter of course, the respondent’s counsel dispensed with the cross-examination
of Cabansag.
The testimonies of Catipay are what
follow.
Discussions on how the markings be
done preceded the cross-examination of Catipay.
Catipay said she was the one who
apprehended Minnie Herrera Mactal. But
with respect to passenger Maribel Labis Sesno, she thought it was Miss Tupaz
who made the apprehension. She added she
did not have personal knowledge of who filled up the Border Control Questionnaire
form for Sesno. She also admitted having
no knowledge on who photocopied the supposed pages of the alleged passport of
Sesno, and the handwritten note supposedly done by Sesno reasoning that she was
not present in the room where she claimed Sesno was when told to fill up the
BCQ form.
There were two BCQ forms that
appeared to have been filled up by Mactal, one dated May 2, 2012 and the other
dated May 3, 2012. But Catipay admitted
she had no knowledge how the two forms were filled up in the TCEU room and it
was only Miss (Airene) Ubalde who was in the room with Mactal and Sesno. Catipay also admitted she did not have any
knowledge who photocopied the alleged passport of Mactal. In view of the answers, the counsel for the
respondent requested that the photocopies of BCQ forms and passports allegedly
of Mactal be marked only provisionally.
Catipay maintained she was the one
who apprehended Mactal by means of holding Mactal after seeing Mactal holding a
cellular phone on her ear. She said the
interception of Mactal happened about 4:30 a.m. of May 3, 2012 but she did not
know what time did respondent Tan stamp her mark (Stamp 496) on the passport
of Mactal because she did not see when Tan stamped her mark. Catipay also said
that before she apprehended Mactal, she saw Ubalde and Sesno in commotion. In
the process, she said that she heard Ms. Ubalde shouting, “may kasama!” And to her, this shout meant that she would
look for the companion or companions of Sesno.
Catipay said while she was looking for who could be the companion or
companions from among the passengers who already passed through the primary
inspection, she saw Mactal talking over a cellular phone on the ear and Catipay
immediately concluded that this Mactal must be the companion. Then Catipay asked for the passport of Mactal
who she did not know by that time yet.
Catipay said that Mactal refused to hand over her passport to
Catipay. Catipay said that she insisted
and Mactal gave in. When asked why of
all passengers she chose to apprehend Mactal, she reasoned out it was through
“instinct.”
Catipay said that after apprehending
Mactal, she brought the latter to the Duty Supervisor of the TCEU and she
turned over the passport of Mactal to Ubalde.
She said Mactal filled up the BCQ
form given by Ubalde to Mactal. But when pressed if she saw that it was indeed
Mactal who filled up the BCQ, Catipay admitted she did not have personal
knowledge of whether it was Mactal who filled up the BCQ that day.
Catipay also did not have any
knowledge who photocopied the passport of Mactal, cannot remember the time when
Mactal was turned over to the Intelligence Division of the Immigration, and
cannot remember how long Mactal was held by the Immigration. She could not also know who turned over
Mactal to the Intelligence Division.
Catipay also said it was Ubalde who
typed the communications for the turnover of Mactal and Sesno to the
Intelligence Division. Catipay also
could not remember what time did she sign the turnover document.
Catipay said that the participation
of Mr. Yap as a duty supervisor was that it was only to him that they would ask
as to whose Immigration Officer stamp 496 was assigned.
Catipay did not give a categorical
answer as to what was the participation of Marites Cabansag, saying only that
Cabansag was there.
Catipay said that she relied on an
SOP (standard operating procedure) to say that it was Ubalde who asked Mactal
to fill up the BCQ.
Catipay also admitted that details
of every passenger intercepted were not relayed to the IOs but only to their
chief IO. She also said that there was
no way by which an IO would know that a certain passenger was offloaded a
previous day.
Catipay also said that there is no
standard as to how would every IO would ask question to discover whether a
passenger was offloaded previously, saying it this way: “Kanya-kanya silang technique kung papano magtanong so di ko alam kung
papano sila, kung sa amin, kung sa akin, makikitan naming mayroon pong
itinatanong na o para bang nakaalis ka na ba? May mga pasaherong sumasagot ng
yes o kelan. O ayun, naano ko sila, nalalaman na.”
Catipay further admitted that there
is no procedure wherein the immigration rules that implemented to ensure that
all IOs would know who were the passengers who were offloaded before.
Catipay also admitted that
respondent Tan wrote a letter to Mr. Ben Sy complaining against her brazen
attitude of shouting at the respondent.
But Catipay said they denied the allegations of Tan in the same letter.
Most notable in the answers of
Catipay to many relevant questions were she did not know already because it was
long time ago.
AS
A SUMMARY, it is noteworthy to point out that:
1.
Catipay did not see respondent Tan dealing with
Mactal or Sesno in the queue for immigration primary inspection;
2.
Catipay confirmed that respondent Annette A. Tan was
the Officer of the Day (OD);
3.
Catipay confirmed that there is a specific procedure
requiring Immigration Officers (IOs) as to what questions must be thrown to
passengers queuing up for the primary inspection procedure and this is spelled
out in a DOJ memorandum dated 3 January 2012;
4.
Catipay admitted there is NO PROCEDURE requiring Immigration
Officers to ask questions or look for a passenger details such as whenever a
passenger was offloaded before or what was the reason for the previous
offloading; and
5.
Catipay admitted that there are no standard questions prescribed by
the Bureau or the Department of Justice (DOJ) to discover whether a passenger
had bad record before or was offloaded before; and
6.
Catipay contradicted with witness Ubalde as to how
the former apprehended or intercepted Minnie H. Mactal.
The testimonies of Ubalde are
what follow.
The narration here limits only to
testimonies that the respondent believes are material.
Airene Ubalde was asked many times
to tell the hearing body how she decided whether to inspect a passenger or to
let go of a passenger.
Ubalde also failed to give a
categorical answer as to what made her decide to apprehend passenger Maribel
Labis Sesno.
Ubalde also claimed she was not the
one who arrested Sesno but that it was “Ma’am Chiqui” or Catipay who
intercepted Sesno. NOTE that this is contrary to Catipay’s testimony saying that it was
Ubalde who apprehended Sesno and that Catipay reacted to search for a companion
of Sesno when told by Ubalde, “May kasama!”
Ubalde also testified that after Sesno
refused to hand over to her the Sesno’s travel documents it was now Sesno and
Catipay who talked to each other. Ubalde
even said that she asked the help of Catipay to apprehend Sesno. NOTE that this is again contrary to the
testimony of Catipay that it was Ubalde who brought Sesno to the room where
Sesno was told to fill up a Border Control Questionnaire (BCQ).
Ubalde said she left after she
turned over Sesno to Catipay, reasoning “may passenger na po ako.”
Ubalde also said that after Catipay
talked to Sesno, Catipay came to her and told her: “Interview-hin mo ganun.” Ubalde said she then gave a border control
questionnaire to Sesno.
Ubalde said that Sesno then filled
up the BCQ on a chair. But Ubalde then expressed she could not remember whether
she kept her eyes on Sesno or she attended to other passengers as there were
only two of them, who she identified as her and Maritess Cabansag. Subsequently, however, she said she and
Cabansag took turns on Sesno. Somewhere
later, Ubalde admitted she did not see Sesno filling up the BCQ form. Ubalde said that after Sesno filled up the
BCQ form, Sesno then was to wait for her name to be called for interview. Ubalde said she was the one who conducted the
interview.
Ubalde also said that she was the
one who wrote the Peso Sign before the figure 500 written in numeral form found
in the BCQ form.
Ubalde also admitted it was her who
wrote the statements purporting to be the purpose of travel of Sesno found on
the bottom portion of the BCQ.
Ubalde said “they” then checked on
Sesno and they found that Sesno was offloaded before, admitting she was also
performing travel record check. But
Ubalde said she did not look at every page of the passport of Sesno. She also
said that Sesno was previously offloaded on February 16, 2012 based on a page
of the passport of Sesno what that stamp no. 496 is found. Ubalde claimed that Sesno wrote the entries
in the BCQ, (Exhibit “B-1”). Ubalde also
claimed that the handwriting in the handwritten piece of paper was written by
Sesno.
Ubalde said that when she saw a
February 16, 2012 stamped on a page of the passport she then requested for a
copy of the BCQ supposedly filled out by Sesno on February 16, 2012. She said Sesno must have been offloaded on
February 16, 2012 because there was no record of arrival for Sesno. Then, she said she requested for a copy of
the BCQ for February 16, 2012 and then checked whether Sesno was compliant to
the requirements written on the February 16, 2012 BCQ.
Ubalde said it was Catipay who
apprehended Mactal. But Ubalde cannot
remember if it were her who gave a BCQ form to Mactal. Ubalde said she could not also remember if she
saw Mactal writing on BCQ. As to the
amount written on the BCQ of Mactal, Ubalde said she could not remember who
wrote the amount thereon but she said she was sure she was the one who
encircled the amount.
Ubalde said she also knew that
Mactal was offloaded on March 2, 2012 prior to Ubalde’s apprehension of Mactal
on March 3, 2012.
Ubalde also talked about the “seven
hundred” figure on the BCQ of Mactal. When asked if the figure was in dollars,
Ubalde cannot say so. When asked how
much a passenger should bring with him or her in order to be allowed to travel,
Ubalde said there was no specific amount.
Ubalde admitted she did not know the
truth or falsity in the March 2, 2012 BCQ supposedly of Mactal because she was
not the one who attended to Mactal for that day. Ubalde said that Mactal was
not offloaded, actually, but was only referred to TCEU immediately by the
Immigration Officer who attended to Mactal on March 2, 2012.
Ubalde cannot remember as to the
time Mactal and Sesno were turned over. She, however, said that if she came in
to her work at 3 a.m., she went out at noon time. She also said she did not know what happened
to the passengers a few days after that.
She did not know what the Intelligence Division did.
Ubalde further said that she was not
called in by any authority to testify on Mactal and Sesno. She could not also
remember how many passengers she checked that day or how many passengers were
offloaded that day. Ubalde said she
could remember Mactal and Sesno because they turned the two over to the
Intelligence Division of the Bureau of Immigration. She also did not know how many passengers
were offloaded by Cabansag. Ubalde further said that Cabansag did not
participate in so far as Sesno and Mactal were concerned and that Cabansag
merely signed the affidavit they prepared regarding Sesno and Mactal.
During the re-direct examination,
Ubalde confirmed she did not have personal knowledge as to the filling up of
BCQ of Mactal and as to the alleged referral and alleged interview of Mactal by
Montalbo on March 2, 2012.
During the re-cross, Ubalde admitted
that in primary inspection a passenger is not asked how much money a passenger
was bringing at that time.
During the questions of the hearing
officer, Ubalde said that Mactal and Sesno did not have return tickets. Ubalde also told the hearing officer there
was no way to immediately know if a passenger presenting for primary inspection
was offloaded previously. But Ubalde
said that if there was a departure stamp on the passport she would be
confronted to think and ask the passenger to explain. But if there was no previous departure stamp,
she could not know. Ubalde said that it
can also be known whether a passenger was previously offloaded if checked on
the computer database in the airport.
Ubalde said that they had no passport reader. She repeated that it is
only know if there was a previous stamp mark.
During the followup questions of the
respondent’s counsel, Ubalde said primary inspectors were only allowed 45
minutes to deal with each passenger.
IN
SUM, the gist of material testimonies of Ubalde are as follows:
1.
She said it was Catipay who apprehended Sesno and
that Sesno was only turned over to her by Catipay for interview that included
Border Control Questionnaire; while Catipay said she did not participate in the
apprehension of Sesno;
2.
Ubalde contradicted Catipay on the apprehension of
Mactal as to the claim of Catipay that Ubalde shouted, “May Kasama!” when
Ubalde did not say of any participation as to the apprehension of Mactal;
3.
Ubalde said her participation in so far as Mactal
was concerned was that she was the one who handed over a BCQ form to Mactal;
4.
Ubalde also said there was no way for an Immigration
Officer to be able to know that a passenger presenting for primary inspection
was previously offloaded, except when there is a departure stamp;
5.
Ubalde said there are 45 seconds allotted for every
passenger for a primary inspection procedure;
6.
Ubalde never said she saw respondent dealing with
Mactal or Sesno for the primary inspection;
7.
Ubalde said she decided to check on Sesno just
because she saw the latter talking on a cellular phone; and
8.
Ubalde deliberately lied in saying that Sesno and
Mactal had no return tickets from Singapore to Philippines, as proven when
respondent presented copies of the return tickets during the defense
testimonies.
It is noted that not one of the
witnesses testified having seen or heard respondent conducting primary
inspections on Sesno and Mactal.
In short, the prosecution has no
direct testimonies or direct evidence to prove that respondent Annette Tan
committed negligence of any sort.
It is also noted that the
prosecution failed to submit Sesno and Mactal to the witness stand.
It is noted that the prosecution
failed to submit any proof of authenticity of the handwritings on the BCQ forms
supposedly filled up by Sesno and Mactal and the supposed handwritten
statements by the two passengers on separate sheets of paper.
It is also noted that the
prosecution did not submit any proof or policy that respondent Tan had the
obligation in law or rule to offload a passenger who was previously offloaded
on February 16, 2012.
It is also noted that the
prosecution did not present proof that passengers offloaded before or
previously must not be allowed to depart the Philippines.
It is also noted that the
prosecution did not submit any proof that a fixed amount of money is required
of any tourist passenger. It did not
submit any proof that a passenger who had no money in the pocket must be
offloaded either.
It is also noted that the
prosecution did not submit any proof that respondent Annette A. Tan was
physically competent 100% in order not to notice the February 16, 2012 stamp on
the passport of Sesno.
Perhaps the most relevant, the
prosecution did not submit any evidence that respondent Annette A. Tan had
improper or ill motives to allow the departure of Sesno and Mactal. In other words, there was no evidence
submitted to rebut the presumption of regularity of the performance of the
official functions performed by the respondent.
The
Evidence Presented by the Respondent
On the part of respondent, she presented only one witness
and it was her who took the witness stand.
She also offered pieces of documentary evidence, the most
important of which are:
(a)
Copies of the return tickets of Sesno and Mactal
from Singapore to Philippines as having been photocopied from Sesno and Mactal
themselves during the time they were being held by TCEU officer; and
(b)
Copy of the incident report written and signed by
respondent Annette A. Tan which she submitted to her supervisor Mr. Benito Se,
detailing how she was bullied by Catipay and Ubalde during the incident when
Catipay and Ubalde claimed they had intercepted Sesno and Mactal, and attaching
thereto copies of the passports, boarding passes and return tickets of Sesno
and Mactal.
In her judicial
affidavit, respondent stated that she performed her regular functions as acting
Immigration Officer in accordance with the latest guidelines of the Department
of Justice.
The respondent
insisted that she was the one who knew best as to what happened in the primary
inspections performed on Sesno and Mactal because it was her who conducted the
same.
The respondent
testified that while she was normally assigned in a regular lane at the
departure area, she was on that March 3, 2012 designated by Duty Supervisor
Jaime De Guzman to man the Officer of the Day lane. The employee who should serve as Officer of
the Day was absent during that shift.
The respondent’s tour of duty began at 9:00 in the evening of March 2,
2012 and ended at 5:00 in the morning of March 3, 2012.
The respondent
testified that as issued by the Bureau, the procedure she used in dealing with
passengers at that time, who included Sesno and Mactal, was that she had to
ascertain whether the passengers had return tickets to the Philippines to
assure they were coming back, had valid passports, had hotel vouchers to prove
they have a decent place to stay in Singapore, and sufficient amounts of money
to sustain stay in Singapore.
The respondent
said that after primary inspections, the passengers who passed by her will be
subjected to secondary inspection by Travel Control and Enforcement Unit
(TCEU).
The respondent
also testified that she was shouted at by Ubalde and Catipay and these shouts
caused alarm to the passengers queuing at the immigration counters. She said that Ubalde and Catipay accused her
of clearing two passengers (Sesno and Mactal) who were earlier offloaded. The respondent said she was shocked by the
shouts of Ubalde and Catipay.
The respondent
said that when she conducted primary inspections on Sesno and Mactal she was
not aware of any information that the two were previously offloaded. She said that immigration officers were not
provided with any information about who were previously offloaded.
The respondent
also testified that the immigration officers have that standing policy that
“EVERY ENTRY IS A NEW ENTRY.”
The respondent
explained that “Every New Entry is a New Entry” policy means that when a
passenger comes to present to the immigration counter he or she is treated as
new regardless of his or her past records and must be evaluated on the basis of
completeness of documents and authenticity of travel documents at the time of
the examination. As such, she said that
immigration officers are not obligated to know the history of the passengers
presenting before them for clearance to depart Philippines. She also opined that the practice of the TCEU
officers is highly discriminatory and oppressive to the immigration officers to
fault them if it happened that a passenger was allowed for boarding even having
been offloaded before.
The respondent
narrated that she reported to Mr. Benito Se, Jr., Acting Chief of the Airport
Operations Division the incident whereby she was shouted at by Ubalde and
Catipay.
She said that
what she reported were as follows:
a.
On March 3, 2012, at 4:30 in the morning, she was
assigned by Duty Supervisor Jaime De Guzman to man the Officer of the Day lane
because IO Camia was absent;
b.
After having been substituted by the Officer of the
Day for the first shift, she transferred to seat 2 and inspected and cleared
the passengers who have satisfied the requirements for their travel;
c.
Two of the passengers were Maribel Sesno, Filipino,
Passport No. EB 3640327 bound for Singapore, and Winnie Mactal, Filipino,
Passport No. EB 3450739, also for Singapore; and
d.
While she was at the departure area, she was shouted
at by Irene Ubalde and TCEU Head Chiqui Catipay that one of the two passengers she
cleared were previously offloaded and which shouts caused alarm to the
passengers and co-officers.
The respondent stated that in reaction to the incident report she filed
to the office of Mr. Se about six o’clock in the morning of March 3, 2012,
Ubalde and Catipay executed an Affidavit of Interception along with Edbien Yap
and Maritess Cabansag and submitted the same in the afternoon.
The respondent
further said that the contents of the Affidavit of Interception should be
treated as hearsay because the affidavit was not notarized and these are false
after all.
During the cross-examination
and in answers to the questions of the prosecution counsel, respondent Tan
stated the following:
1.
She was no longer an immigration officer but already
assigned at the Cash Section of the Bureau of Immigration;
2.
She had also attended seminars to aid her job then
as an acting immigration officer, including recognition training;
3.
She said she knows the duties and responsibilities
of an immigration officer, including the task of conducting primary inspection
on passengers and the duty to detect if a passenger is a victim of human
trafficking;
4.
She knows the DOJ guidelines on primary inspection;
5.
She demonstrated how to conduct primary inspection,
such as checking the passport and ticket if the passenger were a tourist and
the address where the passenger will stay outside the Philippines;
6.
She said she rigidly checked the passport by
ensuring that the picture in the passport match with the person presenting
before her, check the data on the departure card whether they are consistent
with the information indicated in the passport;
7.
She said she also checked the passport pages, each
and every page therein;
8.
She said she checked the return ticket, asked how
many days a passenger will stay abroad and asked whether the pocket money a
passenger had would be enough to fund the tour;
9.
She said she did all these checking procedures in 40
seconds;
10.
She admitted having checked on Sesno and Mactal;
11.
She did not see the stamp on a page of the passport
of Sesno that the passenger was previously offloaded on February 16, 2012 and
that she admitted it was her stamp, 496, that was found on that page;
12.
She insisted she checked on Sesno and Mactal and the
two presented hotel vouchers and return tickets;
13.
She said she photocopied the return tickets of the
passengers during the time the passengers were being investigated;
14.
She said she submitted copies of those hotel
vouchers and return tickets to Mr. Ben Se;
15.
She maintained there were 20 to 25 passengers
presenting before her;
16.
She also said that she was affected by the number of
passengers queuing before her;
17.
She said that
what drained her body was that instead of taking a nap that she usually did
before going back to her duty, she was forced to be awake all the time because
she was designated to be the Officer of the Day because the person who should
serve as the Officer of the Day was absent;
18.
About the
designation as the officer of the day, this was what the respondent answered to
the prosecution:
“Yung gabi nay
an, hindi talaga ako OD pero pinakiusapan ako ni Mr. De Guzman, Supervisor
naming, na ako na lang daw yung (officer of the day) tulungan ko daw siya kasi
biglaan walang notice, nag-absent yung OD (officer of the day) talaga. Ibig
sabihin pag OD kasi kapag gabi, hindi ka makatulog kasi ma’am from 12:00 to 3:00
pwede ka matulog kasi walang flight kung hindi ka OD. Yung mga kasama ko
siyempre nagpapahinga sila kasi 3:00 or 2:30 kailangan nasa counter na rin
sila. Pero ako in my case dahil nga
biglaan, that night in-aasign ako emergency ana dun ako umupo sa nagtake akong
a minute to sleep so magdamagan talaga gising ako and yung karelyebo ko po na
supposedly pag OD kasi he must come at 4 or even before 4 pag OD ka e medyo
nalate sya around 4:15 or 4:10 basta hinde sakto 4 siya dumating. So medyo na
late sya 4 sya supposedly. Tapos hindi
ko alam kung dumating na sya maaga, nag-in na sya or nag restroom muna
siya.
“Pero nung umupo
sya, pasensya nasabi niya tapos lumipat na ako at ang dami na talagang tao 5 pa
yung time ko dahil nga hindi ko pwede i-claim na OD ako. Pero pag OD ka kasi, pwede ka na umalis basta
dumating na yung OD.”
19.
She also said that it was different when she was in
regular lane that she can take a nap and it was different when she had a nap to
refresh her body;
20.
To tiredness,
the respondent answered Atty. Gloria as follows:
Atty. Gloria:
So pa yun,
i-nantok po kayo, ano po ang nangyari sa inyo?
Annette Tan:
Talagang pagod, sanay naman po ako
sa antok or sa puyat pero iba na rin kasi yung naka-nap ka, At the same time,
wala talagang pahinga. Naka upo ka talaga dun sa OD, hindi ka pwede umalis dun.
Atty. Gloria:
Sa maraming tao, pagod na kayo, pano
po naapektuhan yung pagcheck nyo?
Annette Tan:
Siguro yung pag-ano ng passport,
nagmamadali or what medyo naano na rin yung mata, medyo malabo na rin kasi yung
mata ko hindi napansin.
Atty. Gloria;
So meron po kayong mga hindi
napansin?
Annette Tan:
Hindi ko ma-sure pero hindi ko
talaga napansin with all honesty na may tatak yung passport.
21.
She also
stated that as acting Immigration Officer for four years she had good knowledge
or idea of the procedure at the airport;
22.
MOST
IMPORTANTLY, she presented copies of the hotel vouchers and return tickets of
Sesno and Mactal, copies which she photocopied from the originals held by Sesno
and Mactal while they were being investigated by TCEU officers. She said she borrowed those originals;
23.
She said that
she attached copies of those hotel vouchers and return tickets, as well as the
passports and the boarding passes of Sesno and Mactal, to the incident report
that she submitted to Mr. Benito Se Jr.;
24.
Another
important thing is that respondent Annette Tan got ahead of Ubalde, Catipay,
Yap and Cabansag in making of the report and the time that Tan made the report
was at a time when she was still gripped by that startling occurrence, making
her incident report as a proper subject of RES GESTAE to be admissible;
The exhibits
offered by the respondent are as follows:
EXHIBIT “1” up to EXHIBIT “1-G” – Judicial
Affidavit of the respondent, to prove the defense of the respondent that
she did not deliberately and did not grossly neglected her duties unlike the
accusations written in the Formal Charge.
EXHIBIT “2” – Memorandum dated 03
January 2012 issued by DOJ Secretary Leila M. De Lima, addressed to Gen. Ricardo
A. David, Jr., Commissioner of the Bureau of Immigration, directing compliance
with the “Guidelines on Departure Formalities for International-Bound
Passengers in all Airports, Seaports in the Country,” to prove that the DOJ
instructed the BI to implement guidelines on departure formalities for
international-bound passengers.
EXHIBIT “2-A” – First page of “Guidelines
on Departure Formalities for International-Bound Passengers in All Airports and
Seaports in the Country,” being offered to prove that ONLY THREE DOCUMENTS
SHALL BE REQUIRED OF TOURIST TRAVELERS, which are: (a) passport; (b) visa when
required; and (c) roundtrip ticket.
EXHIBITs “2-B” to “2-G” – All other pages of the
same guidelines, for the same purpose as above.
EXHIBIT “3”– Memorandum of respondent
Annette A. Tan addressed to Benito G. Se, Jr., Acting Chief, Airport Operations
Division dated 3 March 2012, offered to prove that she wrote a report about an
incident where she was shouted at by TCEU member Irene Ubalde and TCEU Head Chiqui
Catipay in the presence of fellow officers and passenger on queue and that she
cleared international-bound passengers Maribel Sesno and Minnie Mactal for
departure with clear conscience that her assessment to allow them was on the
basis of the documents presented to me.
EXHIBIT “3-A”– Signature of Annette Tan
on the said Memorandum addressed to Benito Se, for the same purpose.
EXHIBIT “3-B”– Time of 6:30 am as the
time of submission to Benito Se of the same Memorandum to Benito Se, to prove
that right after the incident Annette A. Tan submitted an incident report that
she was shouted at by Ubalde and Mactal, indicating that this is more
believable in term of truth issue because it was submitted right away when the
respondent did not have any idea yet whether she would be charged
administratively.
EXHIBITs “4” to “4-B”– Two-page affidavit
executed by Annette A. Tan that she submitted to the NBI-AHTRAD as her answer
required by the same office regarding the offloading of passengers Sesno and
Mactal.
EXHIBIT “4-H”– One-page Subpoena issued
by the NBI-AHTRAD issued to respondent Annette A. Tan requiring her to appear
at 10:00 a.m. on 30 April 2013 at the NBI office, to prove that the submission
of the affidavit to the NBI-AHTRAD was required by the NBI.
EXHIBITs “5”, “5-A”, “5-B” and “5-C” – Copies of the
round-trip tickets and hotel vouchers of passengers Sesno and Mactal, to prove
that these passengers complied with the departure formalities.
The
Issue
Whether or not
the respondent is guilty:
a.
That the respondent failed to observe the
formalities required for clearing passengers;
b.
That she cleared for departure passengers Minnie
Herrera Mactal and Maribel Labis Sesno, who were possible victims of human
trafficking, despite the fact that they (Mactal and Sesno) were improperly
documented and were previously offloaded; the two were intercepted by Traffic
Control Enforcement Unit (TCEU) member Airene J. Ubalde at the immigration
area; and
c.
That according to the verification made by TCEU,
passengers Sesno and Mactal had no return tickets and that the two admitted
during the secondary inspection that their purpose of travel was to work
overseas.
The
Discussions
The return tickets
and hotel vouchers
Going to the
easiest, what can immediately be concluded here is that the respondent
disproved the accusation that Sesno and Mactal had no return tickets.
This is because the respondent presented the return
tickets and the hotel vouchers.
Res Gestae
Additionally, the respondent submitted a copy of her
incident report to the Immigration’s chief of the airport operation, Mr. Benito
Se, Jr., which incident report was filed at 6:00 am that was the earliest
possible time to do so if a person similarly-situated as the respondent were
telling the truth.
When she submitted the same incident report that early,
there was yet no reason for her to lie as she did not know yet what stories
would Ubalde, Catipay, Yap and Cabansag would say. The fact also that she was still gripped by
that startling occurrence, she had no motive to lie. Clearly then, the fact of res gestae having
been established, exempting this incident report from the hearsay rule.
Among the matters she stated in the same incident report
are that she submitted copies of hotel vouchers and return tickets of Sesno and
Mactal.
The briefly discussed facts and reasons discussed above,
the return tickets and hotel vouchers as
well as res gestae, are sufficient to acquit the respondent from the accusation
that she committed gross neglect of duty.
Performance of official functions
and lack of proof of
improper or
ill motives keep intact the
presumption of regularity
The biggest circumstance that works well to crush the
accusations of the prosecution is the fact that it did not submit any proof to
show that the respondent had motives that are improper or ill.
It is a hornbook rule that once the accusers failed to
prove improper motives, the presumption of regularity in the performance of
official functions remains intact.
The alleged witnesses even admitted they did not see how
the respondent conducted the primary inspections on Sesno and Mactal. So that they did not have any testimonial
evidence to show that the respondent just stamped the approval on the passports
without asking anything. They failed to
testify that they saw the respondent did not ask and did not examine the
passport. They failed to testify that
they saw the respondent did not look for a return ticket. They failed to testify that they saw the
respondent did not inquire whether Sesno and Mactal had sufficient pocket money
for their stay in Singapore. They
failed to testify that they saw the respondent accept bribe to stamp her
approval on the passports of Sesno and Mactal. They failed to testify that they
have any personal knowledge about improper motives on the part of the
respondent.
As the accusers, the witnesses must overcome the
presumption of innocence.
So that if they accused the respondent of being negligent,
they must know that this is relative to the availing circumstances. There is no hard and fast rule to say that
one act that easily suggests negligence is always negligence in all other
circumstances.
In the instant case, the witnesses themselves furnished
the supporting evidence to show that the respondent was sleepy and tired. This is because they even stated several
times that the respondent was designated as the Officer of the Day, a
designation that they know requires the designate to be awake if rendering duties
during the wee hours when all other human beings are supposed to be asleep. It is taken of judicial notice that human
beings are not used to be awake the whole night up to when the sun has
completed its rise to the east. Under
this experience of mankind doctrine, those who claim unusual human behavior
have the duty to explain why or indeed such unusual conduct occurred.
So that under the
circumstances when the accusation was an act of negligence, the accusers had
the yoke to prove that the respondent was in perfect state of health when a passenger
was approved for departure despite the stamp 496 on one page of the passport,
if indeed it were a violation not to notice such stamp.
But the accusers
did not submit evidence that the respondent was in a good state of health as to
her body, mind and eyes for her to be able to notice that stamp on one page of
Sesno’s passport in a quick scan as she was obligated to complete the
inspection in 40 seconds.
No rule or law that
disqualified
previous offloading from
departure
In all the testimonies and evidence presented by the
prosecution, they did not present evidence to show that there is a law or rule
or policy that disqualified previously-offloaded tourist passengers from being
allowed to depart as tourist the next time these passengers present themselves
for travel abroad.
A reading of the purpose and policy of the DOJ memorandum
and the guidelines readily shows that apart from the objective of possibly
preventing human trafficking there are objectives for the Immigration service
to be courteous to the passengers and to respect their Constitutional right to
travel at the same time.
This is the reason that the primary inspection procedure
is limited only to checking of passport, visa if the destination country
requires visa, return tickets if tourists.
There is even
nothing that requires pocket money.
There is also nothing that requires the immigration officers to inquire
about previous offloading.
No logic to say that
offloading
is a presumption of
trafficking
The witnesses of the prosecution have the premise that
the fact that the passenger was offloaded by TCEU it is already a presumption
that the passenger concerned was a possible victim of trafficking and the IO
who allowed her was guilty.
This is a clear fallacy.
Simply, it is a sine
qua non. It does not necessarily follow that once a passenger was offloaded
once he or she must be a presumed victim of trafficking.
To the contrary, the highly discriminatory work of TCEU
officers as described by them oppresses the lowly citizens wanting to tour
abroad. Mostly, TCEU officers pull out
from queues people from the provinces who are usually awkward in wearing their
attires.
There is also no presumption of trafficking when an
offloaded tourist passenger was offloaded before because she admitted to be
actually looking for work or was being waited by somebody abroad to work.
This is because she might have been having no genuine
purpose of touring when offloaded at first but it is also true that it is
always possible that she will be a genuine tourist the next time she presented
herself for departure out of the Philippines.
Even if BCQ reveals a
passenger
is a possible trafficking
victim
it does not make IO liable
The procedure to be followed is not enough to discover
trafficking.
This is
undisputed. Only a superman can read the
mind of passengers after these passengers passed the required tests on
passport, visa, hotel vouchers and return tickets.
The fact that a
passenger is seen calling over a cellular phone does not prove that she was
talking to a trafficker.
Of course, it is
always possible that passengers who passed primary inspections are victims of
trafficking. This fact of life explains
the reason that the TCEU meant to conduct secondary inspections is installed as
a second line of filter and the clear objective was only to minimize, and not
to completely catch all possible victims of traffickers.
So that it is a
wrong premise for the accusers to say that all they offloaded must be offloaded
or turned back by all Immigration Officers as a matter of hard and fast rule.
So that even if
all the BCQs show that the real purpose of tourists was to work without proper
permit, it is not a justification to automatically punish the immigration
officers who failed to catch these passengers just because these passengers
presented all the required documents and the IOs relied on these documents to
allow them to travel.
If IOs are not furnished
details
on offloaded passengers, no
way
can IOs know who are to
watch out
The witnesses themselves who were experienced secondary
inspectors admitted that information about offloaded passengers that are NOT
furnished the immigration officers.
If that is so, it was extremely difficult for IOs to know
the facts of offloading history of every passenger.
Even if a stamp is seen on a page of the passport,
particularly when a few days have elapsed from the last offloading, there is no
way for any IO to say that the offloaded passenger before him or her will be a
victim of trafficking.
The respondent did not have any information on Mactal
that the latter was offloaded a day before.
So that if Mactal
was still daring the second day, which was too possible to happen, she was
already armed with knowledge and experience a day before on how to go around
the primary inspection.
It is simply totally illogical for the accusers to
conclude that just because one previously-offloaded passenger passed through an
IO that IO is already guilty.
If IOs should be perfect in
detecting
possible victims of
trafficking there
is no need for secondary
inspection
The fact that the DOJ and the Bureau of Immigration
instituted the existence of secondary inspectors is a proof that the agencies
already expect that IOs are not perfect animals to sift out all unwanted
passengers.
So that there is no logic to say that an IO is already
guilty of not detecting a possible victim of trafficking if one passenger she
or he allowed for departure was subsequently offloaded by the secondary
inspectors.
Otherwise, the TCEU must be abolished.
Every New Entry
is a New Entry
The discussions above give truism to the adage that says,
“Every New Entry is a New Entry.”
A suspected trafficking victim offloaded the first time
can be said he or she will not attempt again to place self as a trafficking
victim, having learned from offloading.
So that if previously-offloaded passenger comes back, the
presumption must be greater that she is not a possible victim again. So that history of offloading must have
worked more in favor of the concerned passenger instead of diminishing
reputation.
This supports the theory that “Every New Entry is a New
Entry.”
To give life to
this further, those offloaded cannot be classed separately from all other
passengers without offending the rule against discrimination and oppression.
There is no
justification that the fact of having the history of having been offloaded
should be classed out of the first-time or second-time travellers.
So that if those
previously-offloaded cannot be classed separately, the IOs who allowed them to
travel cannot be punished.
The
Conclusion
Ergo, it is very clear that the respondent is NOT GUILTY
of gross neglect of duty in failing to observe departure formalities.
The
Prayer
WHEREFORE, it prayed
that the Respondent be adjudged not guilty and the case against her be
dismissed. 22 July 2013, Manila.
RENTA PE CAUSING SABARRE CASTRO & ASSOCIATES
Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St.,
Malate, Manila
Emails: totocausing@yahoo.com,
berteni.causing@gmail.com; Tel.
+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: Atty. Laila May A. Gloria, Prosecutor, Bureau of Immigration
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