Tuesday, November 22, 2016

SC defers petition to exhume Marcos

BY JOMAR CANLAS, TMT ON NOVEMBER 23, 2016

The Supreme Court (SC) has deferred action on the petition seeking the exhumation of the remains of former President Ferdinand Marcos at the Libingan ng mga Bayani.

During the deliberations of the SC en banc, the justices decided to postpone action on the case because the ponente, Justice Diosdado Peralta, was on leave.

The tribunal will tackle the petition next week.

On Monday, separate petitions were filed before the SC en banc by martial law activists who asked the high court to cite in contempt the Marcos family and some military officials for the unannounced interment of Marcos.

Many people were caught by surprise on Friday when the remains of Marcos was flown from Ilocos Norte to the heroes’ cemetery.

The petitioners asked the court to order the detention of Marcos’ heirs and military officials involved “until they have satisfactorily cleansed themselves of the contemptuous act or until such further orders of the Court.”

Albay Rep. Edcel Lagman said Marcos’ remains should be exhumed because the decision of the high court allowing the burial of the former leader at the heroes’ cemetery is not yet final and executory.

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Lagman: Nothing unchristian in move to exhume Marcos remains

There is nothing unchristian in exhuming the remains of the late dictator Ferdinand Marcos at the Libingan ng mga Bayani because jurisprudence allows it in cases of litigation, Albay Rep. Edcel Lagman said on Tuesday.

In the press briefing of the “Magnificent Seven” minority bloc at the House of Representatives, Lagman, a petitioner against Marcos’ burial at the Libingan ng mga Bayani, said the Supreme Court has made decisions allowing the exhumation of one’s remains.

Lagman said the Supreme Court earlier allowed the wife of a deceased lawyer to exhume the remains of her the husband after the common-law wife managed the burial.

“They are most likely unaware of Supreme Court decisions which have ruled that exhumation in proper places is allowed. There was one case where the legal wife was separated from the deceased husband a long time, and the common-law wife managed the burial,” Lagman said of those criticizing their move to exhume the Marcos body as “unchristian.”

“The legal wife filed the petition, it was initially denied by the trial court but consequently the Supreme Court ruled that the legal wife has the right to … determine where the deceased husband should be buried. So the Supreme Court ordered the exhumation,” he added.

READ: Lagman: Ask SC to exhume Marcos’ body to check if wax or not

Lagman said there are several more Supreme Court decisions allowing the exhumation of a body in cases of litigation which do not describe the exhumation as unchristian.

“The Supreme Court did not consider that unchristian, because such a Supreme Court decision to order the exhumation of the deceased in proper cases. And this case is a proper case, because the implementation of the decision of the Supreme Court is not valid and executory,” Lagman said.

Lagman filed a motion to exhume the body before the Supreme Court in order to determine if the interred remains were the bones or the wax figure of the dictator.

WATCH: Marcos buried at Libingan ng mga Bayani

Lagman also said the hasty secret burial was “premature, void and irregular” because the Supreme Court decision was “indubitably not final and executory, and the lifting of the status quo ante order, an accessory directive, was also not yet final.”

Lagman also sought the Supreme Court’s agreement to have the Marcos family cited in contempt for conspiring with the military and police in preparing the “premature and clandestine Marcos burial.” RAM/rga

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SC asked to order exhumation of Marcos' remains

Ina Reformina, ABS-CBN News

Posted at Nov 21 2016 05:35 PM

MANILA - Opposition lawmaker and Albay Representative Edcel Lagman urged the Supreme Court (SC) to order the exhumation of the remains of former President Ferdinand Marcos, three days after Marcos was interred at the Libingan ng mga Bayani (LNMB).

In an 8-page pleading filed with the high court before lunchtime on Monday, Lagman said the exhumation of Marcos' remains was necessary since his burial was "premature, precipitate and irregular" on the basis that the decision allowing the burial "has not attained finality and was not executory."

On November 8, the high court, voting 9-5, with one abstention, junked seven petitions assailing the move of President Duterte to allow Marcos' interment at the LNMB. The ruling also ordered the lifting of a status quo ante order (SQAO) earlier issued that halted the burial for some two months.

"Since the object of the premature burial is the so-called interred 'mortal remains' of Marcos, perforce the same must be exhumed as a rectification of the void execution.

"The exhumation is imperative in order not to render moot and academic the petitioners' forthcoming and seasonable motion/s for reconsideration, the resolution of which had been preempted by the precipitate burial in the wake of nationwide protests and cogent commentaries against the subject Decision of the [SC]," Lagman's motion read.

The exhumation is also intended to "effectively censure and discipline" the Marcos family and top defense and military officials for their "disrespect" against the SC, the motion stressed.

The motion further pointed out that "with the inordinate haste and stealthy circumstances which shrouded the interment, there is no certainty as to what was actually buried in the LNMB."

As such, Lagman asked that a forensic examination of the buried remains be conducted to determine whether what was actually interred were Marcos' remains, and "not any other artifact or a wax replica of the late dictator, since his remains could have been buried decades ago in Batac, Ilocos Norte as he reportedly wished to be buried near his mother, the late Doña Josefa Edralin Marcos in Batac."

READ: 'Is it real?' Lagman wants buried Marcos body examined

Lagman also informed the high court that he will also be filing a pleading to cite respondents in contempt of court.

Another group of petitioners, led by former Bayan Muna Representative Saturnino Ocampo, filed a separate petition with the SC, also on Monday, to cite respondents in indirect contempt.

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Ruling in Nalundasan case may yet bar Marcos burial at Libingan

By Miguel Paolo Reyes and Joel Ariate Jr. (Vera Files) | Updated November 16, 2016 - 1:18pm

MANILA, Philippines – In the rules of the Armed Forces of the Philippines, AFP Regulations G 161-375 to be exact, only two conditions disqualify deceased personnel from being buried at the Libingan ng mga Bayani. The first is dishonorable discharge from the service; the second is conviction by final judgment “for an offense involving moral turpitude.”

The second may yet apply to former President Ferdinand Marcos whose burial at the Libingan, 27 years after his death, was upheld by the Supreme Court in a decision on Nov. 8, to the anger of people who say he doesn’t deserve a hero’s burial.

Seventy-six years ago on October 22, 1940, the Supreme Court itself convicted Marcos for an offense that may be judged as involving moral turpitude.

He and three of his relatives were found guilty of contempt of court for filing eight separate complaints against the principal witness of the prosecution in the murder of Julio Nalundasan, even before the conclusion of the trial.

Nalundasan was the rival of Ferdinand’s father, congressman Mariano Marcos. The story goes that Nalundasan was killed by a sniper’s bullet on the night of September 20, 1935, while he was brushing his teeth by the window of his home in Batac, Ilocos Norte.

This was just a few days after he defeated Mariano in the congressional elections, and was declared the duly elected representative of Ilocos Norte’s second district.

Charged with murder were Mariano, his brother Pio, their brother-in-law Quirino Lizardo, and Ferdinand, then an 18-year-old University of the Philippines student and, by various accounts, a sharpshooter.

The case went all the way to the Supreme Court, which recounts in G.R. No. L-47388, People of the Philippines v. Mariano Marcos et al., that the four filed eight separate complaints against Calixto Aguinaldo, the prosecution’s principal witness. They accused him of making false testimony against them during the preliminary investigation on Dec. 7, 1938, and during their trial.

But it turns out that they filed those eight complaints when only Lizardo’s trial had commenced. The trial of the three Marcoses had then not even begun. The rules of court require a judgment to be rendered before a charge of false testimony can be filed against a witness.

Ilocos Norte’s Court of First Instance found Quirino Lizardo, Mariano Marcos, Pio Marcos and Ferdinand Marcos guilty of contempt of court.

The Supreme Court said, “It is evident that the charges for false testimony filed by the four accused above mentioned could not be decided until the main case for murder was disposed of, since no penalty could be meted out to Calixto Aguinaldo for his alleged false testimony without first knowing the extent of the sentence to be imposed against Lizardo and the Marcoses (Revised Penal Code, art. 180).”

“The latter should therefore have waited for the termination of the principal case in the lower court before filing the charges for false testimony against Calixto Aguinaldo. Facts considered, we are of the opinion that the action of the Marcoses and Lizardo was calculated, or at least tended, directly or indirectly to obstruct the administration of justice and that, therefore, the trial court properly found them guilty of contempt,” the High Court said.

The Court of First Instance of Ilocos Norte had convicted Ferdinand Marcos and Lizardo of murder and contempt. Ferdinand, then a law student, brought the case to the Supreme Court and asked that it overturn his and Lizardo’s conviction.

Mariano and Pio, meanwhile, appealed their conviction for contempt.

Justice Jose Laurel penned the decision acquitting Marcos and Lizardo of the murder charge. But it sustained the Ilocos Norte Court of First Instance’s decision that all three Marcoses and Lizardo were guilty of desacato (contempt). The Court of First Instance ordered them to pay a fine of P200 or, in case of insolvency or non-payment, the corresponding jail time. Laurel’s decision for the Supreme Court lowered the fine to P50. But the conviction stayed.

Hence, the first element in the AFP provision for disqualification is met. For the contempt of court offense, after Marcos was afforded due process by the Court of First Instance and heard on appeal by the Supreme Court, a final judgment was reached. He was guilty.

Moral turptitude?

But does a guilty for contempt of court verdict necessarily mean having committed an act involving moral turpitude? What is moral turpitude in the first place?

Until 1940, the Supreme Court made only two rulings involving moral turpitude.In the first case, a lawyer was convicted of abduction with consent, and the petitioner asked that he be suspended or disbarred. The Supreme Court issued a one-year suspension to be served after he was released from prison.

In his decision on that case, In Re: Basa (December 7, 1920), in what is considered the first decision involving the issue, Justice George Malcolm used Bouvier’s Law Dictionary to define it.

“Moral turpitude, it has been said, includes everything which is done contrary to justice, honesty, modesty, or good morals,” Malcolm said.

“The inherent nature of the act is such that it is against good morals and the accepted rule of right conduct,” Malcolm continued.

Another pre-1940 case In Re: Isada (November 16, 1934), also penned by Malcolm, maintained that the crime of concubinage involves moral turpitude. The respondent, also a lawyer, after serving his conviction for the main crime, was also suspended for a year.

Succeeding Supreme Court rulings have either adhered to the law dictionary definition of moral turpitude as established in In Re: Basa (though they have moved on from Bouvier’s to Black’s) or have done particular refinements on how to determine if moral turpitude is concomitant with certain offenses.

The court now holds that “not every criminal act, however, involves moral turpitude” (dela Torre v. Comelec, G.R. 121592, July 5, 1996). What evolved in practice is “the way for a case-to-case approach in determining whether a crime involves moral turpitude” (Brion concurring in Teves v. Comelec, G.R. No. 180363, April 28, 2009), and “as to what crime involves moral turpitude is for the Supreme Court to determine” (A.M. 1162, A.C. 1163, A.M. 1164, August 29, 1975).

In recent cases involving moral turpitude, the Supreme Court employs three approaches in making its determination (Brion concurring in Teves v. Comelec, G.R. No. 180363, April 28, 2009).

First, to determine whether “the act itself must be inherently immoral”; second, “to look at the act committed through its elements as a crime”; and the third, “essentially takes the offender and his acts into account in light of the attendant circumstances of the crime: was he motivated by ill will indicating depravity?”

In deciding Garcia v. De Vera (A.C. No. 6052. December 11, 2003), the Supreme Court had occasion to rule on whether or not indirect contempt of court can be an offense involving moral turpitude.

But following the Supreme Court’s own prescription for determining involvement of moral turpitude in a case, that decision does not automatically preclude all contempt of court cases—both direct and indirect—as free of moral turpitude.

In that case, the respondent had been previously found guilty of indirect contempt by the Supreme Court itself for having made a statement in public that in the court’s appreciation, was “clearly made to mobilize public opinion and bring pressure on the Court.”

For that very specific act alone, the Court said, “the act for which he was found guilty of indirect contempt” does not involve moral turpitude because “it cannot be said that the act of expressing one’s opinion on a public interest issue can be considered as an act of baseness, vileness or depravity.”

In the Philippines, contempt can be considered criminal or civil. According to the Supreme Court in People vs. Godoy (G.R. Nos. 115908-09, March 29, 1995), “the real character of the proceedings is to be determined by the relief sought, or the dominant purpose, and the proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when the purpose is primarily compensatory or remedial.”

In Lorenzo Shipping Corporation, et al. v. Distribution Management Association of the Philippines, et al. (G.R. No. 155849, August 31, 2011), the Supreme Court stated that “proceedings for contempt are sui generis, in nature criminal.”

The Court said that a criminal contempt “consists in conduct that is directed against the authority and dignity of a court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority and dignity of the court or judge, or in doing a duly forbidden act.”

Meanwhile, it stated that a civil contempt “consists in the failure to do something ordered to be done by a court or judge in a civil case for the benefit of the opposing party therein.”

The Court continued: “Where the dominant purpose is to enforce compliance with an order of a court for the benefit of a party in whose favor the order runs, the contempt is civil; where the dominant purpose is to vindicate the dignity and authority of the court, and to protect the interests of the general public, the contempt is criminal.”

In the final decision on the Nalundasan case, Laurel said, “The inherent power to punish for contempt should be exercised on the preservative and not on the vindictive principle (Villavicencio vs. Lukban 39 Phil., 778), and on the corrective and not on the retaliatory idea of punishment.”

Based only on this statement, it would appear that the contempt committed by the Marcoses was construed by the High Court as being indirect and civil in nature.

However, in the same decision, the Supreme Court described the action of the Marcoses and Lizardo as “directly or indirectly [obstructing] the administration of justice,” which could mean they committed “a duly forbidden act.”

While there is currently no jurisprudence in the Philippines that states that obstruction of justice involves moral turpitude, what Marcos and his relatives did was to harass the main witness in their murder trial with legal action.

They filed eight separate complaints alleging that the principal witness for the prosecution, Calixto Aguinaldo, committed false testimony while the Nalundasan murder trial was still ongoing.

At the very least, this demonstrates a lack of faith in the judge trying the case, insinuating he is incapable of discerning the veracity of the testimony of witnesses before his court.

In American jurisprudence (see Padilla v. Gonzales, 397 F.3d 1016), obstruction of justice is considered a crime involving moral turpitude.

Since the possible sentence for Marcos and his kin for the murder of Nalundasan ranged from 12 to 20 years imprisonment to death, the Revised Penal Code provides that had they been convicted and Aguinaldo proven to have committed false testimony, then Aguinaldo would be in jail from six to 20 years. The cost of defending himself against eight lawsuits would have also been prohibitive.

Marcos and his relatives may not have committed an act that is evil in itself, but there is no doubt malice, the ill will that was inherent in their action to corrupt legal avenues for redress for their own self-serving ends.

(Miguel Paolo P. Reyes and Joel F. Ariate Jr. are researchers at the Third World Studies Center, College of Social Sciences and Philosophy, University of the Philippines Diliman. Christian Victor Masangkay provided research assistance in writing this article.)

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Monday, November 21, 2016

Tsunami Warning Issued as Quake Strikes Off Fukushima in Japan

BY Edward Johnson edwardrjohnson

November 21, 2016 — 1:46 PM PST

A magnitude 7.3 earthquake struck Japan off the coast of Fukushima, home to the nuclear power plant badly damaged in a March 2011 quake, triggering a tsunami alert. The local currency rose.

The temblor struck at 5:59 a.m. local time at a depth of 10 kilometers, according to the Japan Meteorological Agency. Tokyo Electric Power Co. said it was checking the plant and would issue updates as soon as information became available.

State-run broadcaster NHK said a tsunami was expected imminently at Iwaki City.

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