Legal Outreach

Last September 15, 2012, I together with the 4^th year Continuing Legal Education Program Class went to the Libona Legislative Hall to conduct what we call a “legal outreach”.  With 5 lawyers and a team of senior law students, the team were able to cater to the basic legal needs of the people. As I observed, the most basic concerns they have are clerical corrections on important documents, notarization, and land issues.
(photo by Jessica Tulang-Tomolin)

The Difference between Motion to Quash and Provisional Dismissal

The Supreme Court, in a recent case, had the occasion to differentiate motion to quash and provisional dismissal, two seemingly confusing processes in the 2000 Revised Rules of Criminal Procedure in the case of Los Banos vs Pedro (G.R. No. 173588 April 22, 2009)

The Court said through Associate Justice Brion: 

          a. Motion to Quash

A motion to quash is the mode by which an accused assails, before entering his plea, the validity of the criminal complaint or the criminal information filed against him for insufficiency on its face in point of law, or for defect apparent on the face of the Information.The motion, as a rule, hypothetically admits the truth of the facts spelled out in the complaint or information.  The rules governing a motion to quash are found under Rule 117 of the Revised Rules of Court.  Section 3 of this Rule enumerates the 
grounds for the quashal of a complaint or information, as follows:

(a)  That the facts charged do not constitute an offense;

(b)  That the court trying the case has no jurisdiction over the offense charged;

(c)  That the court trying the case has no jurisdiction over the person of the accused;

(d)  That the officer who filed the information had no authority to do so;

(e)  That it does not conform substantially to the prescribed form;

(f)  That more than one offense is charged except when a single punishment for various offenses is prescribed by law;

(g)  That the criminal action or liability has been extinguished;

(h)  That it contains averments which, if true, would constitute a legal excuse or justification; and

(i)  That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

b. Provisional Dismissal

On the other hand, Section 8, Rule 117 that is at the center of the dispute states that:

SEC.8. Provisional dismissal. — A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprison­ment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived.  With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived.

A case is provisionally dismissed if the following requirements concur:

1) the prosecution with the express conformity of the accused, or the accused, moves for a provisional dismissal (sin perjuicio) of  his case; or both the prosecution and the accused move for its provisional dismissal;

2) the offended party is notified of the motion for a provisional dismissal of the case;

3) the court issues an order granting the motion and dismissing the case provisionally; and

4) the public prosecutor is served with a copy of the order of provisional dismissal of the case.

In People v. Lacson, we ruled that there are sine quanon requirements in the application of the time-bar rule stated in the second paragraph of Section 8 of Rule 117. We also ruled that the time-bar under the foregoing provision is a special procedural limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to prosecute the accused.

An examination of the whole Rule tells us that a dismissal based on a motion to quash and a provisional dismissal are far different from one another as concepts, in their features, and legal consequences. While the provision on provisional dismissal is found within Rule 117 (entitled Motion to Quash), it does not follow that a motion to quash results in a provisional dismissal to which Section 8, Rule 117 applies.

A first notable feature of Section 8, Rule 117 is that it does not exactly state what a provisional dismissal is. The modifier “provisional” directly suggests that the dismissals which Section 8 essentially refers to are those that are temporary in character (i.e., to dismissals that are without prejudice to the re-filing of the case), and not the dismissals that are permanent (i.e., those that bar the re-filing of the case).  Based on the law, rules, and jurisprudence, permanent dismissals are those barred by the principle of  
double jeopardy, by the previous extinction of criminal liability, by  the rule on speedy trial, and the dismissals after plea without the express consent of the accused. Section 8, by its own terms, cannot cover these dismissals because they are not provisional.  

A second feature is that Section 8 does not state the grounds that lead to a provisional dismissal. This is in marked contrast with a motion to quash whose grounds are specified under Section 3.  The delimitation of the grounds available in a motion to quash suggests that a motion to quash is a class in itself, with specific and closely-defined characteristics under the Rules of Court. A necessary consequence is that where the grounds cited are those listed under Section 3, then the appropriate remedy is to file a motion to quash, not any other remedy.  Conversely, where a ground does not appear under Section 3, then a motion to quash is not a proper remedy.  A motion for provisional dismissal may then apply if the conditions required by Section 8 obtain.

A third feature, closely related to the second, focuses on the consequences of a meritorious motion to quash.  This feature also answers the question of whether the quashal of an information can be treated as a provisional dismissal.  Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide for the consequences of a meritorious motion to quash. Section 4 speaks of an amendment of the complaint or information, if the motion to quash relates to a defect curable by amendment.  Section 5 dwells on the effect of sustaining the motion to quash - the complaint or information may be re-filed, except for the instances mentioned under Section 6.  The latter section, on the other hand, specifies the limit of the re-filing that Section 5 allows – it cannot be done where the dismissal is based on extinction of criminal liability or double jeopardy.  Section 7 defines double jeopardy and complements the ground provided under Section 3(i) and the exception stated in Section 6.

Rather than going into specifics, Section 8 simply states when a provisional dismissal can be made, i.e., when the accused expressly consents and the offended party is given notice. The consent of the accused to a dismissal relates directly to what Section 3(i) and Section 7 provide, i.e., the conditions for dismissals that lead to double jeopardy.  This immediately suggests that a dismissal under Section 8 – i.e., one with the express consent of the accused – is not intended to lead to double jeopardy as provided under Section 7, but nevertheless creates a bar to further prosecution under the special terms of Section 8. 

This feature must be read with Section 6 which provides for the effects of sustaining a motion to quash – the dismissal is not a bar to another prosecution for the same offense – unless the basis for the dismissal is the extinction of criminal liability and double jeopardy. These unique terms, read in relation with Sections 3(i) and 7 and compared with the consequences of Section 8, carry unavoidable implications that cannot but lead to distinctions between a quashal and a provisional dismissal under Section 8. They stress in no uncertain terms that, save only for what has been provided under Sections 4 and 5, the governing rule when a motion to quash is meritorious are the terms of Section 6.  The failure of the Rules to state under Section 6 that a Section 8 provisional dismissal is a bar to further prosecution shows that the framers did not intend a dismissal based on a motion to quash and a provisional dismissal to be confused with one another; Section 8 operates in a world of its own separate from motion to quash, and merely provides a time-bar that uniquely applies to dismissals other than those grounded on Section 3.  Conversely, when a dismissal is pursuant to a motion to quash under Section 3, Section 8 and its time-bar does not apply. 

Other than the above, we note also the following differences stressing that a motion to quash and its resulting dismissal is a unique class that should not be confused with other dismissals:

First, a motion to quash is invariably filed by the accused to question the efficacy of the complaint or information filed against him or her (Sections 1 and 2, Rule 117); in contrast, a case may be provisionally dismissed at the instance of either the prosecution or the accused, or both, subject to the conditions enumerated under Section 8, Rule 117.

Second, the form and content of a motion to quash are as stated under Section 2 of Rule 117; these requirements do not apply to a provisional dismissal.

Third, a motion to quash assails the validity of the criminal complaint or the criminal information for defects or defenses apparent on face of the information; a provisional dismissal may be grounded on reasons other than the defects found in the information.

Fourth, a motion to quash is allowed before the arraignment (Section 1, Rule 117); there may be a provisional dismissal of the case even when the trial proper of the case is already underway provided that the required consents are present.

Fifth, a provisional dismissal is, by its own terms, impermanent until the time-bar applies, at which time it becomes a permanent dismissal.  In contrast, an information that is quashed stays quashed until revived; the grant of a motion to quash does not per se carry any connotation of impermanence, and becomes so only as provided by law or by the Rules.  In re-filing the case, what is important is the question of whether the action can still be brought, i.e., whether the prescription of action or of the offense has set in.  In a provisional dismissal, there can be no re-filing after the time-bar, and prescription is not an immediate consideration.

To recapitulate, quashal and provisional dismissal are different concepts whose respective rules refer to different situations that should not be confused with one another.  If the problem relates to an intrinsic or extrinsic deficiency of the complaint or information, as shown on its face, the remedy is a motion to quash under the terms of Section 3, Rule 117.  All other reasons for seeking the dismissal of the complaint or information, before arraignment and under the circumstances outlined in Section 8, fall under provisional dismissal.

In a State of Anaesthesia

This coming September 21^st, our nation will commemorate the 40^th anniversary of a peculiar yet defining moment in our nation’s history – the declaration of martial law[1] by the late strong man, President Ferdinand Marcos.

I only know this period from documentaries, history books and some personal accounts by my parents.  Now that we are studying the law, it would be fitting to see this part of history in its legal dimensions. Bernas, S.J. in his 2009 Edition of the 1987 Constitution of the Republic of the Philippines: A commentary lucidly summarized the jurisprudential legacy of martial law:

1. Aquino, Jr. v. Enrile[2]. The court essentially validated the proclamation of martial law on the basis of continued rebellion and the said proclamation 1081 had merely placed the fundamental law “in a state of anaesthesia, to the end that the much needed surgery to save the nation’s life might be undertaken.  

2.Aquino, Jr. v. COMELEC[3]. This case involved a petition for prohibition seeking the nullification of presidential decrees calling for a referendum on February 1975. The court held that the President does have legislative powers by virtue of him being the administrator of martial law and since he alone can convene the interim National Assembly which he has not yet convened; he alone has the active legislative authority.

3. Aquino, Jr. v Military Commission No. 2.[4] The court held that under the exceptional demands of martial law, the conferment of military tribunals with jurisdiction to try civilians is necessary for the attainment of the objects of martial law.

4. Salidad v COMELEC.[5] The court held that the President may, under the extraordinary conditions of martial law and of the government under the transitory provisions, may propose amendments to the constitution in the absence of a grant of such constituent power.  

With the decision in Sanidad vs Comelec, the main lineaments of pre-1987 Philippine marital law jurisprudence were drawn: (1) the martial law proclamation of 1972 was validly made on the basis of an existing rebellion; (2) the imposition of martial law carried with it the suspension of the writ of habeas corpus; (3) the martial law administrator could legislate on any matter related to the welfare of the nation; (4) he could create military tribunals and confer on them jurisdiction to try civilians for crimes related to the purpose of marital rule; (5) in the absence of any other operative constituent body, the President could even propose amendments to the constitution. All of the above, moreover, are confirmed by the broad grant of power found in Article XVII, Section 3(2), of the 1973 Constitution[6] which, as will be seen below, was itself ratified in a most unique manner. The Supreme Court was to add later that under martial law, claims of denial of a speedy trial were unavailing, and that the suspension of the privilege of the writ of habeas corpus also suspends the right to bail.  

Having this very basic understanding of the tone of jurisprudence which rose out of the marital law era would lead us to appreciate why vast changes on the martial law powers were instituted in the 1987 Constitution. The basis for declaring marital law has been severely restricted and opened for checks on both the legislature and the judiciary. In the long run, the 1987 constitution hopes that the exercise of an essentially police power called the martial law be used only on the most urgent and dire situation and not to serve as means to perpetuate absolute power at the expense of individual liberties.

---

[1] Proclamation No. 1081

[2] 59 SCRA 183

[3] 62 SCRA 275

[4] 63 SCRA 546

[5] 62 SCRA 275

[6] All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after the lifting of the Martial Law or the ratification of this Constitution unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or unless expressly or implicitly modified or repealed by the regular National Assembly.

The Case of Barack Obama

I can still recall years ago when I tuned in to CNN and came across a riveting speech of a young senator from Chicago declaring his intention to run for President of the United States. After that, I followed him ever since. This African-American lanky dude with a Harvard Law degree is now the 44^th President of the United States.

This morning, I managed to wake up early to watch Bill Clinton’s big speech before the Democratic National Convention. It is all over the news. Nevertheless, I asked myself, a Filipino, why I am so glued to the politics of the left in the United States?

I admit that Obama’s early life and his road to the Presidency is sort of a living source of motivation (so not his presidency itself. haha! ). Beneath this I guess is my fascination of the evolution of his person. A child with a multi-cultural/racial background –an idealist community organizer turned civil rights Harvard lawyer – junior senator who happens to be African American to the leader of the free world – making history in the process.

I guess I sometimes wallow in envy over their processes in choosing leaders and ideological discourses as compared to ours and getting glued to it sort-of-like creates an alternative political reality for me. I understand that their democracy is much more mature than ours but I am hopeful we have the makings of developing real parties Filipino-style.  Put aside the personality-based traditional parties that we have grown familiar with and let us focus on some and I mean some promising party lists that seriously strive to live as a political party – not personality-based but platform-based. These groups might lead the way to a more mature political discourse in the years ahead. For now, studying those older democracies is one way of understanding our own.

Now going back to Barack, his choice of career I believe is enlightening for all those students of law out there who still try to fathom the social relevance of their studies. He entered Harvard Law, as his interviews suggest, because he understands the power that comes from the knowledge of the law in challenging and reforming unjust structures as nurtured by his experience in the streets as a community organizer. Winning the presidency I guess is just a consequence of such immersed life for public service. 

This story line is a gold mine for me. This is the kind of dream that I strive to live – the dream that at the end of a long day, I can still see myself making sense of what I do because of my belief that this will bear fruits which is something greater than my own self and my own future.    

Playing Lawyer and the Supreme Student Court

Playing lawyer has never been this fun especially when you actually get to apply what you’ve learned to an actual "political" controversy. I am not talking about some court room drama here; this is just my expression of thrill and satisfaction that I get to help argue a side before a court – well, a student court. It is not every day that a sophomore law student can at least have his day in court – again a student court.

I must say that I am amazed at how the Supreme Student Court takes its job so seriously. I mean with real actual pleadings, oral arguments, contempt of court, and so on. It is like the real thing. And they get to argue on constitutionality and those kinds of stuff. Awesome!

Being legal consultant for a branch of student government arguing for the validity of a law it passed is fun!  I am tapped to defend the constitutionality of a law we passed during our administration two years ago which created a quota system for the student elections. What it basically does is to provide a voters’ turn out ceiling and if it is not met, a failure of election shall be declared and new elections shall be conducted. The other side alleges that it violates the students’ right to vote. So of course, I must argue that it does not and I personally believe it does not violate such right at all. I do not wish to lay the arguments in this entry.We already submitted our answers to their allegations and let us see how the proceedings will unfold. 

The value I get from this exciting little internship is the formative value this exercise possesses not just for students of law but for the undergraduate community as well. This kind of zealousness in part of the Supreme Student  Court serves a powerful incubator for future legal thinkers. I strongly recommend that this should be explored and developed even further. Through the workings of the Student Supreme Court, the students can appropriate their own localized understanding of what due process is and what the rule of law is and most importantly, the importance of committed engagement for the attainment of justice – the stuff of change leaders.

Ants and Us

Lately, I’ve noticed a colony of black ants amassing at the bottom of the door frame in our basement CR (Well, that is what I usually notice when I take my time at the toilet). What is peculiar about it is the presence of the colony’s mass of larvae in different stages of development. They practically made that part of the door frame their nursery chamber. I’m no ant expert but this scene has a great amount of insight I could extract and yes, it is surprising that even in moments of sitting on the throne, the boringness would lead me to explore the minute details of my immediate vicinity and behold the story of the black ants.

You might have noticed this before where ants carry white stuff and clump together in an exposed humid area.

Common to our childhood memories might be our insistent desire to play in the yard, get bitten by red ants and our retaliation – their Armageddon. Far from the hated red ants, the black ants I observed in this particular corner have a very interesting order. One ant carries one larva. It is as if each one, by natural instinct, is responsible for the safety and care of their assigned larva. 

Out of curiosity, I gently blew a breath over them and alas, they frantically ran off in chaos much like us during and after the recent quake. However their chaos was an ordered one. It was a frantic orderly exit. What is amazing is the priority they fashioned - they all prioritized their larvae. All those who bear a baby ant were the first to leave. I even noticed that even the heavier almost fully developed larva had to be carried off by a group of ants. They all came out in ordered fashion. And 2 minutes later, all the white stuff where gone just because of that sudden change of air pressure I caused. What remained are those frightened ants that carried nothing. All the larvae are now safe inside the colony.

In the silence of the CR, it dawned on me how this simple observation is so reflective of our own. Though we all know that they are all sisters equal before one mother queen, these blind social insects know their individual and specialized role. Once given the responsibility to nurture a larva, they make sure that it is first to be secured for they know that what they bare is the future of their colony and of their kind.

So us Filipinos, social as we are, the recognition of our innate responsibilities to the nation is paramount to our rise and survival. It is not that we take shelter with our responsibilities when disturbances come but we know the manner in which we execute our role not just during times of crisis but even in moments of still waters. Much more, just like the ants that move in mass with a clear direction, let us also do the same. These invertebrates know that. We have so much to learn from these blind ants, and I hope that in this critical moment of our nation’s history – political and economic, we embrace the responsibility, the larvae so to speak, bestowed on us by ourselves or someone higher with resolve and dedication. And when a blow of chaos and uncertainty descends on us, let us move and carry the hope of the future to safety.