Monday, September 28, 2015

Above the Law



My recent article about the incident in MPD and Atty Claire Castro of ABS-CBN drew a slew of hate responses especially from the lawyers of the Facebook group “Police Matters in Law-An Open Group.”  I supposed that I am already kicked out and banned from that group because I cannot find it anymore in my list of groups!  Hahahaha!  The article must have really touched a raw nerve!

In that article, I expressed my vehement objections to the actuations of Atty Castro specifically her outburst in the police station, wherein she was questioning, among others, the legality of the arrest of her client Chua.  I maintained then as I am maintaining now, that Atty Castro may be right in questioning the legality of the arrest but the police station is not the right venue for it.  Making it worse is her attempt to drag her client out of the station.

For this stand, I got various comments from several commenters who presented themselves as lawyers.  They have numerous arguments but basically, they centered on a common premise best illustrated by one of them who said,

“i guess only lawyers would understand that what the police did was wrong.” 

Moreover, the exchange of comments actually reached rock-bottom in terms of civility when one of them said,

My point is that please, do not assume to act like a lawyer and cite various legal precepts when you do not really understand them. Don't be a lawyer wanna be. I do not know how to instill further to you that YOU ARE NOT A LAWYER so please, do not misquote and misapply the law because it is really offensive for those who studied to be one.”

Simply put, their bottomline is that because I am a mere mortal policeman and not a lawyer, I am not in their league in the discussion of law—never mind the fact that I am not questioning the law but the behavior of one of their colleagues!  A hahaha moment really!

To spice things up, pinatulan ko ang nag comment na,

And sir, do you know that the presumption of regularity does not overcome the presumption of innocence? If you dont agree, argue with supreme court justices. [People v. Capuno, G.R. No. 185715, January 19,2011].

I answered,

aling supreme court, yung nag decide ng G.R. No. 176951, G.R. No. 177499, at G.R. No. 178056? hahaha, thanks but no thanks!”

And to my amazement, this lawyer was not able to get the sarcasm!  Should he have read the cases, he should have realized that my point is that the suggestion to argue with the supreme court justices is a pointless exercise because they themselves had reversed themselves several times in that celebrated case involving the League of Municipalities of the Philippines!

At nung mainis na ako, I made this post (which I am having second thoughts of making really but I made it anyway because totoo naman talaga ito e!)

The difference between you and me is that you passed all those eight subjects covered in the bar. I however, mastered only half, but those are the main things that i need in my being a policeman anyway. And believe me when I tell you that I may have mastered those better than you did. Kaya kwidaw ka sa pagyayabang nyang pagka abogado mo kasi pag nalingat ka sa akin sa criminal law, baka masingitan kita. And by the way, dalawa singko ang abogado sa PNP and i will tell you this: wala pang tumalo sa aking abogado sa order of merit ng lahat ng naging schooling ko. So get the hint attorney...


And ano ang sagot ni lawyer?

But are you a lawyer? No? That settles it. :) you're JUST a policeman. And dont brag about that because there's nothing to be proud of, in case you are not aware.

Yet another hahaha moment really!

There are other twists and turns in the arguments but there is one thing that I realized amidst all these:  I am arguing with PNP lawyers.  This is the description of their Facebook Group:

POLICE MATTERS IN LAW-AN OPEN GROUP

DESCRIPTION
HI WELCOME TO THE GROUP GUYS!

Police Matters in Law,strives for the highest standard of professionalism and discipline among its members; it promotes and practice transparency and accountability;It trains member to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and foster and promote relationship with broader society.

Fans, friends and members of National Police Service are most welcome in this page, we welcome your opinions and criticism, we will use them in offering the best services to you and correct where we have gone wrong, keep off abusive language and hate speech, comments that attack individuals are not encouraged,This is NOT the official National Police Service page but we are a group of police officers ready to interact with the public and help where we can in crime . It is a sound off board for comments/observations for PNP POLICE OFFICERS and ADMINISTRATION of POLICE OFFICERS. I wish you all the best as you interact, you are home in this page, thanks in advance.

--admin Cathy Torres

Being PNP lawyers, I expected that these people would treat the PNP as their client.  But to my amazement, they immediately sided with one of their colleagues outside of the PNP notwithstanding the fact that an argument can be made that the PNP personnel are right and their colleague is wrong!  In the aftermath, they even have the gall to warn the PNP personnel for the backlash that is obviously an encouragement to the other side!  If the Ampatuan lawyers can attempt to exonerate their clients despite the backhoe-full of evidence (all the pun intended), I cannot see why these PNP lawyers cannot render the same service to the PNP personnel involved in this incident!

Now, taking this case and the most recent Jaworski case together, can we blame PNP personnel who avoid responding to incidents altogether?  Have they not heard that one of the most common derogatory description against the PNP is “TAMAD?”   But with PNP lawyers like these, who will take these criminals head on?  Let me go to the specifics of this case:

Based on the narration of Atty Villania, the approximate statement of the complainant is this:

Complainant:  Aleng pulis tulungan nyo naman ako.  Yung dati kong kalive in, ayaw isoli ang anak ko na 6 years old.  Gusto nya, bago nya ibigay sa akin ang anak ko ay mag sex muna kami.

With this information, the police can have two options:  file a case and wait for the warrant before effecting the arrest or set up the suspect so that a warrantless arrest can be effected.  The lawyers wanted the first option while the WCPD-MPD opted for the second.  I will not ask you who do you think is right because it will again lead us to the endless discussion of the application of law.  I will  however ask you, “ Which will you prefer if you are the complainant?” and before you answer, consider these approximation of the likely scenario in the station:

Option 1:  Wait for the warrant (The procedure insisted by Atty Castro and concurred with by the PNP lawyers of Police Matters in Law Facebook Group)

Let us start at 8:00AM: 
PNP INVESTIGATOR:  Sige po maam, sumama po kayo sa akin at kukunin ko po ang statement nyo.

After an hour (assuming mabilis ang pulis), the statement and the other paper works are finished and ready for filing with the prosecutors offce.

9:00AM
PNP INVESTIGATOR:  Sige po maam, sumama po kayo sa akin sa piskalya at ipasubscribe natin itong statement nyo tapos ifile na natin.

At the Prosecutors Office:

10:00AM
PROSECUTOR:  Ms Taylor, pakitaas ang inyong kanang kamay para sa panunumpa.  (And the fiscal proceeds with the jurat.)  Ok na po maam, ifile nyo na po sa receiving doon sa records office para mairaffle na po yan sa kung sinong piskal ang mag hahandle nyan.

And so it goes at 11:00AM.  Everything is finished and Ms. Taylor will be advised that the raffle is done once a week and the case lands in the hands of a fiscal.  According to procedures, the fiscal will notify the respondent and set a preliminary investigation.  Another 2 or 3 hearings are set before the fiscal resolves it and if he is convinced that there is probable cause, he prepares the information and files it in court.  When a court takes cognizance of the case, the judge then issues a warrant of arrest.  If the fiscal and the judge are fast, the warrant takes at least 45 days but experience says that 3 to 6 months waiting time is realistic.


Now let us examine Option 2, which was what the MPD opted for:

Let us start at 8:00AM: 
PNP INVESTIGATOR:  Sige po maam, sumama po kayo sa akin at kukunin ko po ang statement nyo.

After an hour (assuming mabilis ang pulis), the statement and the other paper works are finished and ready for filing with the prosecutors offce.

9:00AM
PNP INVESTIGATOR:  Maam, meron po tayong dalawang option dito:  I file natin ito sa piskalya at maghintay ng 6 months sa paglabas ng warrant of arrest bago natin arestuhin ang dati mong kalive in or gagawan natin ng paraan para maaresto natin sya ng legal ngayon ding araw na ito kahit walang warrant.

COMPLAINANT:  Ay Maam gusto ko yan.  Pero paano po natin gagawin na maaresto natin sya ng legal ngayon din kahit walang warrant?

PNP INVESTIGATOR:  May basehan po sa batas yan pero ang bottomline ay dapat may ginagawa syang krimen or katatapos lamang ng krimen para maaresto natin sya.  Pag ka aresto natin, iharap natin sya sa inquest.  Isahog na natin ang ibang kaso sa RA 9262 anyway, kung ipa RFI ng piskal yan, matic namang magseset sya ng PI so ayos na agad ang papel natin.  Pero ito lang ang hihilingin naming sa iyo:  panindigan mo ang gagawin natin ha?

COMPLAINANT:  Ok po.  Ano gagawin ko?

PNP INVESTIGATOR:  Di po ba gusto nya makipag sex sa iyo pero ayaw mo at ginagamit nya ang anak nyo bilang leverage against sa iyo?  Ang pamimilit na yan ay papasok sa mga bagay na pinarurusahan ng RA9262 at napakarami pong provisions ang pwede nating icite.  Pero sa ngayon, mag concentrate muna tayo sa Section 5e.  Ang sabi ng batas ay ganito:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts:

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct:

Kaya yang pagpilit nya sa iyo ay consummated na yan.  Ipagdasal na lang natin na ganito rin ang pananaw ng piskal na hahawak ng inquest mamaya.  Kailan ba sya huling tumawag at binablackmail ka para makipag sex ka sa kanya?

COMPLAINANT:  Kanina po.  Gusto nga nya magkita kami mamayang hapon sa SM San Lazaro.

PNP INVESTIGATOR:  Sige.  Itext mo sya na payag ka pero ipadala mo na sa kanya ang anak nyo para pagkatapos nyo mag sex ay uuwi na kayo ng anak mo kunwari.

COMPLAINANT:  Po?  Papayag po ako na makipag sex sa kanya?

PNP INVESTIGATOR:  Mas maganda sana pero kung ayaw mo talaga, sige, arestuhin na namin sya agad paglutang nya at iexplain na lang natin ng mganda sa piskal ang nangyayari.  Anyway, kung hindi kami aaksyon, talaga namang may mangyayaring masama sa iyo.

And so it goes.  After lunch, the trap is set and upon arrival of Chua, he is immediately arrested.

So in these circumstances, will the arrest be lawful?  Let us examine Section 5 a and b of Rule 113.  It states:

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a)  When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b)  When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

From my perspective, as stated above in RA 9262, the attempt to compel the woman is punishable by itself thus the offense is already consummated.  Thus for me, I will go on with the sting operation!  If the fiscal agrees with me, then good for me and the complainant.  If not, then the case automatically goes to preliminary investigation, unless in rare instances that the fiscal dismisses the case outright.  Pero naman pag dinismiss ni piskal ang kaso ng oraorada, well…

Do I open myself to criminal, civil, and administrative cases sa diskarteng ito?  You can bet I do.  But this is a job that has to be done and I plunge into this with both eyes wide open.  Because if we leave the complainants alone to fend for themselves, to whom and to where will they turn to?  Will Ms Taylor understand us or the law or the procedures if we tell her " Maam kailangan po muna nating ifile ang kaso bago namin maaresto yang dati mong kalive in" when in her anguish she can only think of "Please tulungan nyo naman ako.  Binablackmail na ako ng dati kong kalive in at pinipilit makipagsex para lang makita ko ang anak ko!"

If we always go for the "safe" way, then the NCRPO motto "We care, We dare" is only for soundbites?


Most importantly, how do we contribute to the enhancement of the image of the PNP as an organization full of TAMAD cops?


Cartoon credit:  http://www.dipolognon.com/dipolognonHeadline08302007.htm


This is my perspective and this is how I do things in real life because at the end of the day, lawyers--and their CRIMINAL CLIENTS--can call me all they want but tamad and not trying hard enough will never be among those...


They will never be above the law!

4 comments:

tell me what you think!