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.

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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

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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