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LEGAL NOTE 0057: ONLY THE PUBLIC PROSECUTOR HAS CONTROL OVER PROSECUTION OF CRIMES. STATE MUST BE REPRESENTED BY OSG IN LITIGATION.

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April 30, 2011

LEGAL NOTE 0057: ONLY THE PUBLIC PROSECUTOR HAS CONTROL OVER PROSECUTION OF CRIMES. STATE MUST BE REPRESENTED BY OSG IN LITIGATION.

 

SOURCE: BUREAU OF CUSTOMS VS. PETER SHERMAN, MICHAEL WHELAN, TEODORO B. LINGAN, ATTY. OFELIA B. CAJIGAL and the COURT OF TAX APPEALS (G.R. NO. 190487, 13 APRIL 2011, CARPIO MORALES, J.) SUBJECT: CRIMES MUST BE PROSECUTED BY PUBLIC PROSECUTOR. (BRIEF TITLE: BUREAU OF CUSTOMS VS. SHERMAN ET AL.)

 

DIGEST: 

MARK SENSING CAUSED IMPORTATION OF BET SLIPS AND THERMAL PAPERS FOR PCSO BUT DID NOT PAY TAXES. BUREAU OF CUSTOMS FILED A CRIMINAL CASE AGAINST OFFICERS OF MARK SENSING. THE FISCAL FILED INFORMATION AT CTA. DOJ REVERSED FISCAL’S RESOLUTION. CTA WITHDREW INFORMATION UPON MOTION OF THE FISCAL. CUSTOMS LAWYER FILED A MOTION FOR RECON. CTA NOTED SUCH MOTION WITHOUT ACTION. CUSTOMS LAWYER FILED PETITION FOR CERTIORARI BEFORE THE SC.

 ISSUE: DID CTA COMMIT GRAVE ABUSE OF DISCRETION?

 RULING. NO. PETITION MUST BE DISMISSED BECAUSE THE MOTION OF CUSTOMS DOES NOT BEAR THE IMPRIMATUR OF THE PUBLIC PROSECUTOR. ALSO, CUSTOMS IS NOT REPRESENTED BY THE OSG.

 SAID THE COURT:

 Parenthetically, petitioner is not represented by the Office of the Solicitor General (OSG) in instituting the present petition, which contravenes established doctrine[1][20] that “the OSG shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation, or matter requiring the services of lawyers.”[2][21]

 IN FINE, as petitioner’s motion for reconsideration of the challenged CTA Resolution did not bear the imprimatur of the public prosecutor to which the control of the prosecution of the case belongs, the present petition fails. 

 

TO WHOM DOES PROSECUTION OF CRIMES PERTAIN?

It is well-settled that prosecution of crimes pertains to the executive department of the government whose principal power and responsibility is to insure that laws are faithfully executed. Corollary to this power is the right to prosecute violators.[3][18]

 

CAN LAWYERS IN GOVERNMENT AGENCIES PROSECUTE CRIMES?

 YES, BUT THEY MUST BE DESIGNATED AS SPECIAL PROSECUTORS. THEIR ROLE IS MERELY TO ASSIST. THE PUBLIC PROSECUTOR MUST STILL HAVE CONTROL OVER THE CASE.

 All criminal actions commenced by complaint or information are prosecuted under the direction and control of public prosecutors.[4][19]  In the prosecution of special laws, the exigencies of public service sometimes require the designation of special prosecutors from different government agencies to assist the public prosecutor.  The designation does not, however, detract from the public prosecutor having control and supervision over the case.

[1][20]          Ong v. Genio,  G.R. No. 182336,December 23, 2009, 609 SCRA 188, 194.

[2][21]          Citing Section 35 (1), Chapter 12, Title III, Book IV of the Administrative Code of 1987.

[3][18]          Webb v. De Leon, G.R. No. 121234, August 23, 1995, 247 SCRA 652, 685.

[4][19]          Rules of Court, Rule 110, Sec. 5.

Comment

CASE 2011-0102: BUREAU OF CUSTOMS VS. PETER SHERMAN, MICHAEL WHELAN, TEODORO B. LINGAN, ATTY. OFELIA B. CAJIGAL and the COURT OF TAX APPEALS (G.R. NO. 190487, 13 APRIL 2011, CARPIO MORALES, J.) SUBJECT: CRIMES MUST BE PROSECUTED BY PUBLIC PROSECUTOR. (BRIEF TITLE: BUREAU OF CUSTOMS VS. SHERMAN ET AL.)

Filed under: LATEST SUPREME COURT CASES — 1 Comment

CASE NO. 2011-0102: BUREAU OF CUSTOMS VS. PETER SHERMAN, MICHAEL WHELAN, TEODORO B. LINGAN, ATTY. OFELIA B. CAJIGAL and the COURT OF TAX APPEALS (G.R. NO. 190487, 13 APRIL 2011, CARPIO MORALES, J.) SUBJECT: CRIMES MUST BE PROSECUTED BY PUBLIC PROSECUTOR. (BRIEF TITLE: BUREAU OF CUSTOMS VS. SHERMAN ET AL.)

 

Republic of thePhilippines

Supreme Court

BaguioCity

 

THIRD DIVISION

  

BUREAU     OF    CUSTOMS,

Petitioner,

  G.R. No. 190487
  

– versus –

 

  Present:

 

CARPIO MORALES,

           Chairperson, J.,
 PETER SHERMAN, MICHAEL WHELAN, TEODORO B. LINGAN, ATTY. OFELIA B. CAJIGAL and the COURT OF TAX APPEALS, BRION,BERSAMIN,

VILLARAMA, JR.,

SERENO, JJ.

Respondents.

 Promulgated:
   April 13, 2011

x—————————————————————————————–x

D E C I S  I O N

 

 

 

CARPIO MORALES, J.

 

 

          Mark Sensing Philippines, Inc. (MSPI) caused the importation of 255, 870,000 pieces of finished bet slips and 205, 200 rolls of finished thermal papers from June 2005 to January 2007.   MSPI facilitated the release of the shipment from the Clark Special Economic Zone (CSEZ), where it was brought, to the Philippine Charity Sweepstakes Office (PCSO) for its lotto operations in Luzon.  MSPI did not pay duties or taxes, however, prompting the Bureau of Customs (petitioner) to file, under its Run After The Smugglers (RATS) Program, a criminal complaint before the Department of Justice against herein respondents MSPI Chairman Peter Sherman, Managing Director Michael Whelan, Country Manager Atty. Ofelia B. Cajigal and Finance Manager and Corporate Secretary Teodoro B. Lingan, along with Erick B. Ariarte and Ricardo J. Ebuna and Eugenio Pasco, licensed customs broker who acted as agents of MSPI, for violation of Section 3601[1][1] vis-à-vis Sections 2530 (f) and (l) 5[2][2] and 101 (f)[3][3] of the Tariff and Customs Code of the Philippines, as amended and Republic Act No. 7916.[4][4]

          State Prosecutor Rohaira Lao-Tamano, by Resolution of March       25, 2008,[5][5] found probable cause against respondents and accordingly recommended the filing of Information against them.

          Respondents filed a petition for review[6][6] before the Secretary of Justice  during the pendency of which  the Information was filed on April 11, 2009 before the Court of Tax Appeals (CTA),[7][7] the accusatory portion of which reads:

            That on or about June 2005 to December 2007, in Manila City, and within the jurisdiction of this Honorable Court, the above named accused, in conspiracy with one another, made forty (40) unlawful importations of 255, 870 pieces of finished printed bet slips and 205, 200 rolls of finished thermal papers from Australia valued at approximately One Million Two Hundred Forty Thousand Eight Hundred Eighty US Dollars & Fourteen Cents (US$1,240,880.14), and caused the removal of said imported articles from the Clark Special Economic Zone and delivery thereof to the Philippine Charity Sweepstakes Offices without payment of its corresponding duties and taxes estimated at around Fifteen Million Nine Hundred Seventeen Thousand Six Hundred Eleven Pesos and Eighty Three Cents (Php15,917,611.83) in violation of Section 3601 in relation to Sections 2530 and 101 paragraph (f) of the Tariff and Customs Code of the Philippines to the damage and prejudice of herein complainant.

            CONTRARY TO LAW.[8][8]

          Only respondents Cajigal and Lingan were served warrants of arrest following which they posted cash bail bonds.

          By Resolution of March 20, 2009,[9][9] the Secretary of Justice reversed the State Prosecutor’s Resolution and accordingly directed the withdrawal of the Information.

          Petitioner’s motion for reconsideration having been denied by Resolution of April 29, 2009,[10][10] it elevated the case by certiorari before the Court of Appeals, docketed as CA GR SP No. 10-9431.[11][11]

          In the meantime, Prosecutor Lao-Tamano filed before the CTA a Motion to Withdraw Information with Leave of Court[12][12] to which petitioner filed an Opposition.[13][13]  Respondents, on their part, moved for the dismissal of the Information.

          The CTA, by the herein assailed Resolution of September 3, 2009,[14][14] granted the withdrawal of, and accordingly dismissed the Information.

          Petitioner’s motion for reconsideration filed on September 22, 2009[15][15] was Noted Without Action by the CTA by Resolution of October 14, 2009, viz:

            Considering that an Entry of Judgment was already issued in this case on September 23, 2009, no Motion for Reconsideration of the Resolution dated September 3, 2009 having been filed by State Prosecutor Rohairah Lao-Tamano of the Department of Justice; the “Motion for Reconsideration of the Resolution dated 3 September 2009” filed on September 22, 2009 by Atty. Christopher F.C. Bolastig of the Bureau of Customs is NOTED, without action.

            SO ORDERED.[16][16]  (emphasis partly in the original and partly supplied)

          Hence, petitioner’s present petition for certiorari.[17][17]

          The petition is bereft of merit.

          It is well-settled that prosecution of crimes pertains to the executive department of the government whose principal power and responsibility is to insure that laws are faithfully executed. Corollary to this power is the right to prosecute violators.[18][18]

All criminal actions commenced by complaint or information are prosecuted under the direction and control of public prosecutors.[19][19]  In the prosecution of special laws, the exigencies of public service sometimes require the designation of special prosecutors from different government agencies to assist the public prosecutor.  The designation does not, however, detract from the public prosecutor having control and supervision over the case.

          As stated in the above-quoted ratio of the October 14, 2009 Resolution of the CTA, it noted without action petitioner’s motion for reconsideration, entry of judgment having been made as no Motion for Execution was filed by the State Prosecutor.

          By merely noting without action petitioner’s motion for reconsideration, the CTA did not gravely abuse its discretion.  For, as stated earlier, a public prosecutor has control and supervision over the cases.   The participation in the case of a private complainant, like petitioner, is limited to that of a witness, both in the criminal and civil aspect of the case. 

          Parenthetically, petitioner is not represented by the Office of the Solicitor General (OSG) in instituting the present petition, which contravenes established doctrine[20][20] that “the OSG shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation, or matter requiring the services of lawyers.”[21][21]

IN FINE, as petitioner’s motion for reconsideration of the challenged CTA Resolution did not bear the imprimatur of the public prosecutor to which the control of the prosecution of the case belongs, the present petition fails. 

WHEREFORE, the petition is DISMISSED.

 

SO ORDERED.

CONCHITA CARPIO MORALES

          Associate Justice

          WE CONCUR:

 

 

 

 

 

 

ARTURO D. BRION

Associate Justice

 

LUCAS P. BERSAMIN

Associate Justice

 

 

 

 

 

MARTIN S. VILLARAMA, JR.

Associate Justice

 

 

 

 

MARIA LOURDES P. A. SERENO

Associate Justice

 

 

 

 

 

 

 

 

ATTESTATION

 

 

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

                                  CONCHITA CARPIO MORALES

                                      Associate Justice

                                   Chairperson

 

 

 

 

 

 

CERTIFICATION

 

 

          Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                     RENATO C. CORONA

                                                                Chief Justice

 

[1][1]           Section 3601. Unlawful Importation. – Any person who shall fraudulently import or bring into the Philippines, or assist in so doing, any article, contrary to law, or shall receive, conceal, buy, sell or in any manner facilitate the transportation, concealment, or sale of such article after importation, knowing the same to be have been imported contrary to law shall be guilty of smuggling and shall be punished with:

x x x x

 

                In applying the above scale of penalties, if the offender is an alien and the prescribed penalty is not death, he shall be deported after serving the sentence without further proceedings for deportation. If the offender is a government official or employee, the penalty shall be the maximum as hereinabove prescribed and the offender shall suffer an additional penalty of perpetual disqualification from public office, to vote and to participate in any public election.

                When upon trial for violation of this section, the defendant is shown to have had possession of the article in question, possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the court: Provided, however, That the payment of the tax due after apprehension shall not constitute a valid defense in any prosecution under this section.

[2][2]           Section 2530. Property Subject to Forfeiture under Tariff and Customs Laws – Any vehicle, vessel or aircraft, cargo, article and other objects shall, under the following conditions be subject to forfeiture:

x x x x

(f) Any article the importation or exportation of which is effected or attempted contrary to law, or any article of prohibited importation or exportation, and all other articles which, in the opinion of the Collector, have been used, are or were entered to be used as instruments in the importation of exportation of the former:

(l) Any article sought to be imported or exported:

x x x x

 

                5. Through any other practice or device contrary to law by means of which such article was entered through a customhouse to the prejudice of the government.

[3][3]           Section 101. Prohibited Importations. – The importation into thePhilippines of the following articles is prohibited:

x x x x

(f) Lottery and sweepstakes tickets except those authorized by the Philippine Government, advertisements thereof and list of drawings therein.

[4][4]           Otherwise known as the Special Economic Zone Act of 1995.

[5][5]           Rollo, pp. 375-386.

[6][6]          Id. at 394-413.

[7][7]           The Court of Tax Appeals Second Division is composed of Associate Justices Juanito C. Castañeda (Chairperson), Erlinda P. Uy and Olga Palanca-Enriquez.

[8][8]           Rollo, pp. 387-388.

[9][9]          Id. at 414-418.

[10][10]        Id. at 424-425.

[11][11]        Id. at 426-462.

[12][12]        Id. at 463-469.

[13][13]        Id. at 470-473.

[14][14]        Id. at 27-38.

[15][15]         Ibid.

[16][16]        Id. at 40.

[17][17]        Id. at 2-24.

[18][18]         Webb v. De Leon, G.R. No. 121234, August 23, 1995, 247 SCRA 652, 685.

[19][19]         Rules of Court, Rule 110, Sec. 5.

[20][20]         Ong v. Genio,  G.R. No. 182336,December 23, 2009, 609 SCRA 188, 194.

[21][21]         Citing Section 35 (1), Chapter 12, Title III, Book IV of the Administrative Code of 1987.

Comment

LEGAL NOTE 0056: AN ALTERNATIVE VIEW OF THE COJUANGCO COCO-LEVY FUND SMC CASE.

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April 28, 2011

LEGAL NOTE 0056: AN ALTERNATIVE VIEW  OF THE COJUANGCO COCO-LEVY FUND SMC CASE.

 

Outlook
‘Biggest what of the century’?

By Rigoberto D. Tiglao
Philippine Daily Inquirer
First Posted 00:43:00 04/28/2011

“BIGGEST JOKE of the century,” according to a recent banner headline in this newspaper for an article on the Supreme Court’s decision that Marcos’ ally Eduardo Cojuangco’s purchase of 20 percent of San Miguel Corp. shares in 1983 was legal and therefore wasn’t ill-gotten wealth.

The phrase was really an uncalled-for hyperbole made by senior associate justice Conchita Carpio-Morales in her dissenting opinion: “The argument that Cojuangco was not a subordinate or close associate of the Marcoses is the biggest joke to hit the century.”

Justice Carpio-Morales may have thought she was being clever in using that phrase. However, she in effect portrayed her nine Supreme Court colleagues, who voted for Cojuangco’s position, as gullible fools. Quite unfairly, as none of her colleagues in the Court argued that Cojuangco was not Marcos’ close associate. Not even the tycoon in fact, as he publicly had said that he was proud that he was at Marcos’ side to the dictator’s very end. What he had been denying is that his purchase of San Miguel shares violated Philippine laws.

Read the Supreme Court’s 25,000-word decision (available at its website), and rather than the biggest joke, it points out the biggest government boo-boo of the century.

Rewind to the 1980s. Other than Marcos wealth, one of the biggest cases the late President Corazon Aquino’s Presidential Commission on Good Government vowed to pursue was the alleged ill-gotten wealth of her cousin Eduardo Cojuangco, the overlord of the coconut industry during Marcos’ time.

Cojuangco owes the Ayalas big-time for acquiring the country’s biggest industrial firm. A squabble at that time broke out between cousins Jaime Zobel de Ayala and Enrique Zobel, who jointly led Ayala Corp., which had the controlling shares in San Miguel. Jaime backed Andres Soriano’s management of the firm, even if his shares were miniscule compared to Ayala Corp.’s. For some reason, Enrique hated Soriano’s guts, and wanted to take over, even publicly accusing him of mismanaging the company.

The clan’s matriarch Mercedes Zobel McMicking got mad over her nephews’ bickering and ordered them to get Ayala Corp. out of San Miguel altogether. Ever the clever businessmen looking for the best deal though, they offered the shares to Cojuangco, sold them as a controlling block, and therefore at a high premium over its market value, thus generating a windfall for the clan.

And this was the clever Cojuangco. To raise the money to purchase the shares, he was “widely believed” to have contracted loans from the United Coconut Planters Bank (UCPB), the capital of which were generated from a Marcos-imposed coconut levy. Cojuangco was then president of UCPB, now Senate President Juan Ponce Enrile, its chairman.

However, the PCGG’s lawyers in the nearly two decades that the case ran failed to submit to the Sandiganbayan and to the Supreme Court bank documents to show that Cojuangco indeed took out loans from UCPB to fund his San Miguel purchase. It was an inexplicable omission, as the PCGG had taken full control of the bank during Aquino’s revolutionary government.

“The Republic adduced no evidence on the significant particulars of the supposed loan, like the amount, the actual borrower, the approving official, etc.,” the Court decision said. The Court even noted that the PCGG counsels were reminded several times in the pre-trial stages by the Sandiganbayan to produce the documents and the witnesses to show that Cojuangco borrowed the funds from UCPB. They never did. It was as if you were accused of defaulting on a loan, but the bank can’t even produce the documents that you borrowed from it.

In his dissenting opinion, Associate Justice Arturo Brion was in fact so mad at the PCGG lawyers’ incompetence that he recommended a full-blown investigation and their prosecution: “The government lost because of the acts of its counsel that amounted to no less than giving the claim away through omission, inaction or precipitate and ill-considered action that, at the very least, should be considered gross negligence of counsel in handling the government’s case.”

The shares Cojuangco bought from the Ayala Corp. was worth $49 million in 1983. They are now worth more than $2 billion, or P90 billion.

It’s the biggest case of a government’s incompetence. The Republic lost P90 billion because the Aquino-era PCGG and its lawyers were so stupid or so incompetent. Or did they, as a conspiracy-theorist friend tells me, deliberately lose the case for the presidential cousin, who reciprocated by running for president in 1992, dividing the Marcos loyalist forces and effectively foiling Imelda Marcos’ bid for the presidency at that time?

The case was primarily prepared and pursued by the PCGG during President Cory’s term, and it was headed by elders of unquestioned integrity, consecutively: Jovito Salonga, Ramon Diaz, Mateo Amando Caparas and David Castro.

That P90 billion certainly dwarfs the P900 million involved in the plunder charge against former President Estrada (for which he was convicted), the P300 million in the case against Maj. Gen. Carlos Garcia, and even the P530 million in that ridiculous case—obviously in aid of senatorial ambitions—recently filed by a Cory-era official against former President Gloria Arroyo involving funds for OFWs’ health insurance.

With Congress’ penchant for investigating alleged plunder cases, shouldn’t they investigate this biggest government blunder of the century?

It’s also a cautionary tale. Integrity and a crusading attitude can take things only up to a point. Competence and intelligence are as important. Or are the integrity and crusading spirit mere put-ons? Somehow, this reminds me of a more contemporary situation.

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