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
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
Comments