DOUBLE JEOPARDY PROHIBITION DISRESPECTED BY RTC MANILA

DOUBLE JEOPARDY PROHIBITION
DISRESPECTED BY RTC MANILA


Interesting, the present acting judge of RTC Manila, Branch 45, defied the Constitutional prohibition against double jeopardy that he granted the motion for reconsideration from the dismissal of a criminal libel case against broadcaster Percy Lapid, that was dismissed without any consent from the accused.

I vehemently objected to this ruling of the judge so that we filed a motion for reconsideration.

If the judge will not agree, we will be compelled to go to the Court of Appeals and, if necessary, to the Supreme Court.

If you wish to read the motion, here it is:


Republic of the Philippines
National Capital Judicial Region
Regional Trial Court
Branch 45, Manila



PEOPLE OF THE PHILIPPINES
Plaintiff,
            
- versus -                                                       Crim. Case No. 09-268685-86
                                                                        For:    Libel


JOHNSON L. ELEAZAR, PERCY LAPID,
GLORIA GALUNO and ERNIE BALUYOT,
Accused .
x-------------------------------------------------x


  

Motion for Reconsideration



The accused, by the undersigned counsel, respectfully file this Motion for Reconsideration to the Resolution of the Honorable Court dated 23 November 2015 that granted the Motion for Reconsideration filed by the counsel of the private complainant against the Order dated 13 April 2015 that absolutely dismissed the case against the accused.


The said Resolution was received by accused through a representative who went to the Court on 14 January 2016.

Counting fifteen (15) days from thereon within which to file this Motion for Reconsideration is 29 January 2016.


Hence, the filing of this motion today, 29 January 2016, is timely.


The Grounds


The grounds upon which this motion is filed are the following:


1.     The Constitutional right of the accused against double jeopardy was violated, hence the said Order granting the motion for reconsideration is NULL and VOID and can never be a source of right;


2.     The Order dismissing the case was absolute dismissal that it can no longer be undone without violation the Constitutional Command Against Double Jeopardy;


3.     The private complainant-witnesses are conclusively not interested in the instant cases and the instant criminal case cannot be prosecuted de officio; and


4.     The motion did not have any conformity from the Office of the City Prosecutor.


Double Jeopardy


A case that had been dismissed by the Court cannot be revived if revival is violating the Constitutional right of the accused against double jeopardy.


To determine the presence of double jeopardy in the instant case, it is imperative to adopt the wisdom of the Supreme Court in the case of Pablo Condrada vs. People of the Philippines and Hon. Arnulfo C. Bugtas, Presiding Judge, Regional Trial Court of Borongan, Eastern Samar, Branch 2, G.R. No. 141646, February 28, 2003.


In the case of Condrada, the Supreme Court ruled that the proscription against double jeopardy presupposes that an accused has been previously charged with an offense, and the case against him is terminated either by his acquittal or conviction, or dismissed in any other manner without his consent.  As a general rule, the following requisites must be present for double jeopardy to attach:  (1) a valid indictment, (2) before a court of competent jurisdiction, (3) the arraignment of the accused, (4) a valid plea entered by him, and (5) the acquittal or conviction of the accused, or the dismissal or termination of the case against him without his express consent.   However, there are two exceptions to the foregoing rule, and double jeopardy may attach even if the dismissal of the case was with the consent of the accused:  first, when there is insufficiency of evidence to support the charge against him; and second, where there has been an unreasonable delay in the proceedings, in violation of the accused’s right to speedy trial.


Let it be underlined, that the Supreme Court stated that even if the dismissal has the consent of the accused, jeopardy can still attach if there is insufficient evidence to support the charge against him and when there has been an unreasonable delay in the proceedings that violated the right to speedy trial.


In this case, the previous acting judge ABSOLUTELY DISMISSED the case and even went to the extent of releasing the cash bond posted for the temporary liberty of the accused.


Therefore, the instant case cannot be resuscitated without the judge incurring administrative sanction even if the MOTION FOR RECONSIDERATION is grounded on the alleged and unsubstantiated claim that the counsel of the private complainants met an accident.


The Honorable Judge must be reminded that FROM THE TIME THIS CASE WAS FILED IN COURT, THE PRIVATE COMPLAINANTS HAVE NEVER BEEN ATTENDING.


They have hired two lawyers already.  The first withdrew after representing the private complainants for several years without even attending one setting.   The second lawyer, who is the present counsel, has not been attending diligently in the hearings set in this court.  His clients HAVE NEVER ATTENDED IN THIS CASE.


So that when the former acting judge dismissed the case without condition, it was absolute dismissal.


Actually, even before the dismissal order on 13 April 2015, the accused through counsel repeatedly filed in open court such motions to dismiss grounded on three reasons: (a) consistent absence of the private complainant; and (b) absence of the counsel; and (c) VIOLATION OF SPEEDY TRIAL RIGHT OF THE ACCSUED.


So that it is a matter of truth that the previous judge dismissed the case and ordered the release of the cash bond at the same time, and that truth is that the right of the accused to speedy trial was violated and the private complainants SHOWED UNBEARABLE DISINTEREST IN THE CASE BY NOT ATTENDING EVEN ONE HEARING FOR AT LEAST SIX (6) YEARS.


It must be stressed that the private complainants have the obligation to see to it that the case is going smoothly until its termination.  The court has no obligation to remind the prosecution.  In this case, the private complainants did not cause the case moving for several years.


In addition, it is undisputed that the Assistant City Prosecutor was present when the previous acting judge dismissed the instant case.  And the same public prosecutor did not sign to give consent to the motion for reconsideration.   The private complainants are NOT PARTIES IN ANY CRIMINAL CASE because it is the State or the People of the Philippines who arr.    And if the public prosecutor did not give consent to the motion of the private complainant, that means that the Office of the City Prosecutor is presumed to have exercised the executive discretion not to sustain the instant libel case.


With due respect to the presiding judge, his act of granting the motion for reconsideration is an act of gross ignorance of the law.


Absolute dismissal


An examination of the records of the case shows that the dismissal order dated 13 April 2015 was absolute dismissal.


Another proof that it is an absolute dismissal is the fact that the former acting judge even ordered the release of the cash bond for the provisional liberty of the accused.


To the contrary, there is no indication that the same order may have been provisional dismissal.


Now, it is settled that a provisional dismissal can only exist if THERE IS EXPRESS CONSENT FROM THE ACCUSED.


In this case, it is on record that the accused through counsel repeatedly moved for the dismissal of the case on the ground of violation of the Constitutional speedy trial right and the clear lack of interest on the part of the private complainants and those motions were moved in open court not only three times but many times.


All these motions were filed more because of the ABSOLUTE ABSENCE OF THE PRIVATE COMPLAINANTS.


            So that it can now be said.  The absence of the accused and the actual violation of the speedy trial right constituted absolute dismissal upon the merits.


            As set forth in Cerezo vs. People et. al. G.R. No. 185230 along with many other cases, it says: 


Double jeopardy exists when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first.  A first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused has been acquitted or convicted, or the case dismissed or otherwise terminated without his express consent.


            While the first jeopardy attaches only when the case is dismissed without the express consent of the accused as in letter (e) above, it is submitted that in the case at bar there is no “express consent” to speak of.  


The dismissal was had after the counsel of the accused filed a motion in open court upon a valid apparent ground and the filing of the motion to dismiss does not mean an act of giving consent.


            The reason is because the “dismissal upon express consent” referred to in letter (e) above is actually the “provisional dismissal” referred to in the Rules of Court.    And since what the court ordered on April 13, 2015 is not provisional but a permanent one, then it can safely be said that the same dismissal order was without the express consent of the accused.


            Secondly, the movant should know this ruling in G.R. No. L-49375, February 28, 1979, LEOPOLDO SALCEDO v. HONORABLE JUDGE FILEMON H. MENDOZA and THE PEOPLE OF THE PHILIPPINES, where the Supreme Court held that respondent judge committed grave abuse of discretion in setting aside the order of dismissal and in reinstating the criminal case, since the dismissal of the criminal case predicated on the accused’s right to speedy trial amounts to an acquittal on the merits which bars a subsequent prosecution of the accused for the same offense.

Moreover, we wish to cite the first case on provisional dismissal in G.R. No. 149453, April 1, 2003, entitled PEOPLE OF THE PHILIPPINES, ET AL, vs. PANFILO M. LACSON, respondent.”


            In this case, the mere inaction or silence of the accused to a motion for a provisional dismissal of the case or his failure to object to a provisional dismissal does not amount to express consent.


Private witnesses
absolutely not interested
to prosecute the case


            Because the private complainants have not attended a single hearing for more than six (6) years as born by the records, it is an absolute proof that the private witnesses who are the private complainants here ARE ABSOLUTELY NOT INTERESTED IN THE PROSECUTION OF THE CASE.


            It will be blatantly unfair, discriminatory and oppressive to still give favor to those private complainants to give their wish that they have not made good their promise.


            Additionally, libel is one case that cannot be prosecuted de officio because without the complaining witnesses, no one can say there was libel upon the complaining witnesses. 


            Besides, it is only the complaining witness who can say whether he or she was damaged by the imputation or not.


            So that if there are no complaining witnesses as in this case because they have been absent in all hearing since the beginning, then there is no libel.


No conformity of the
public prosecutor


            The sole authority to prosecute belongs to the public prosecutor and the private prosecutor does not have authority to file a motion for reconsideration from the dismissal of a criminal case.


            In the instant case, it was only the private prosecutor who signed the motion for reconsideration.


            If there is no consent from the public prosecutor, the motion is a piece of scrap paper.

            It is so simple as this.


            The Honorable Acting Presiding Judge must have not entertained the same motion in the first place.


            Else, it is a violation of the substantive right of the accused.



Comments on Factual Claims



            The undersigned counsel respectfully makes comments on some factual claims of the counsel of the private complainants, to wit:


1.         In paragraph 1 of the motion, the private prosecutor pointed out that the accused manifested the non-appearance of the private complainant or any of his representatives but to the memory of this counsel it was the Honorable Judge while dictating its order who discerningly noted such non-appearance;


2.         Such observation made by the previous Acting Judge was more than sufficient as basis to satisfy both the law and equity under the present set of circumstances.  Legally, such omission on the part of the private complainant is indicative of lack of interest.  Not showing up for the last six (6) years is nothing less than that.   And not showing while at least two lawyers have previously withdrawn from their cause is much more indicative of the same lack of interest.


3.         And yet the present counsel of the private complainant would still invoke the interest of substantial justice in paragraph 2 of his motion.   What substantial justice could be had when the accused are continuously suffering under the pressure and inconvenience of a criminal trial where the accusers have never attended for six years?;


4.         While we sympathize with the private prosecutor for the accident he allegedly sustained as set forth in paragraphs 3 to 10 of his motion, please allow us to interpose the fact that he was also absent without any explanation nor representative during the Preliminary Conference.  He should have sent somebody to inform the Court of the accident so that the accused would agree to reschedule the setting.  Neither was the private complainant present at that time while the accused were present together with the counsel and were all disappointed because no hearings could be done due to the absence of the private complainants-witnesses;


5.         In paragraph 11 of the motion, the counsel of the private complainants mentioned a certain MS. BONILLA, president, general manager and former human resources department manager of the private complainants’ company.   The same person will never attend in their behalf because she already turned her sympathies to the accused.  It is the concern of the private complainants and it is a piece of evidence favorable to the accused because it is a  proof that the accusation was not true;


6.         It is not correct to say in paragraph 12 of the motion that the manifestation of the defense misled the Honorable Court into noticing the non-attendance of private complainant because of two reasons:


First, it was the Court which noticed the same;


Second, it was an apparent indication of disinterest that the private complainants or their representatives have never been present during the last six years;


7.         Finally, in paragraph 15 of the motion, the private prosecutor admitted the presence of a COMPROMISE AGREEMENT.   The record of this case would bear the fact that while the accused performed their part of the bargain, the private complainants did not prove true to their undertaking to withdraw their complaint.


            Hence, even if all the rules of fairness are summoned to be consulted, the result is still the same: THE INSTANT CASE CANNOT BE REVIVED ANYMORE.

The Prayer


WHEREFORE, it is prayed of the Honorable Court that the instant motion for reconsideration be GRANTED.


Other reliefs just and equitable are also prayed for. 29 January 2016, Manila.  

Causing Sabarre Castro Pelagio
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Telephone No.: +632-3105521



By:

BERTENI CATALUÑA CAUSING, CE
IBP No. 972694/ 04-12-2015 / Manila IV
PTR No. 4889732 / 04-12-2015 / Manila
Roll No. 60944
MCLE No. IV – 0007338 issued 10 August 2012
(Valid from 15 April 2013 until 14 April 2016)
MCLE No. V – 0013036 issued 13 January 2016
(Valid from 15 April 2016 until 14 April 2019)

Cc:

ATTY. JOSE ABRAHAM O. CALNEA
The Law Firm of JA Calnea
Counsel for the Private Complainants
Suite 22-C, Tower One and Exchange Plaza
6767 Ayala Triangle, Ayala Avenue, Makati City

Explanation


Far distance and lack of manpower compelled the service of this Opposition to the private complainant by registered mail.


BERTENI CATALUÑA CAUSING
Cc:


Notice of Hearing

THE CLERK OF COURT
RTC of Manila, Branch 45
City Hall Manila

ATTY. JOSE ABRAHAM O. CALNEA
The Law Firm of JA Calnea
Counsel for the Private Complainants
Suite 22-C, Tower One and Exchange Plaza
6767 Ayala Triangle, Ayala Avenue, Makati City


            Please be notified the undersigned is submitting this Motion for Reconsideration for the consideration of the Honorable Court on 5 February 2016 at 8:30 a.m.



BERTENI CATALUÑA CAUSING, CE
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