REPUBLIC OF THE PHILIPPINES
SUPREME COURT
MANILA
MARILOU S. LAUDE AND
MICHELLE S. LAUDE ,
Petitioners,
-versus-
G.R. No. _____________
For: Certiorari, Prohibition,
and Mandamus, with Prayer
for
a
Preliminary
Prohibitory Injunction and/
or Temporary Restraining
Order and with Prayer for
Preliminary
Mandatory
Injunction
SEC. VOLTAIRE T. GAZMIN OF
THE
DEPARTMENT
OF
NATIONAL
DEFENSE,
SEC. ALFREDO BENJAMIN S.
CAGUIOA
OF
THE
DEPARTMENT OF JUSTICE,
B. GEN. VICENTE M. YORDAN
OF
THE
GENERAL
HEADQUARTERS AND OF
THE
HEADQUARTERS
SERVICE COMMAND BOTH
OF THE ARMED FORCES OF
THE PHILIPPINES, DIR. GEN.
RICARDO RAINIER CRUZ III
OF
THE
BUREAU
OF
CORRECTIONS, AND L/CPL.
JOSEPH SCOTT PEMBERTON,
Respondents,
x----------------------------------------------x
PETITION FOR CERTIORARI, PROHIBITION, AND MANDAMUS
WITH PRAYER FOR A PRELIMINARY PROHIBITORY
INJUNCTION AND/OR A TEMPORARY RESTRAINING ORDER
AND
WITH PRAYER FOR PRELIMINARY MANDATORY INJUNCTION
1
NATURE OF THE ACTION
This is a Petition for Certiorari, Prohibition, and Mandamus
with Prayer for a Preliminary Prohibitory Injunction and/or a
Temporary Restraining Order and with Prayer for Preliminary
Mandatory Injunction, praying that the Honorable Court, inter alia,
declare that the 01 December 2015 Memorandum of Agreement
(MOA) between the Bureau of Corrections, and the General
Headquarters and the Headquarters Service Command both of the
Armed Forces of the Philippines, with respect to the confinement
and/or detention of the convicted Respondent Lance Corporal
Joseph Scott Pemberton, is unconstitutional for being a violation of
the equal protection clause and for being an executive encroachment
on the power and authority of the Judicial Department.
Petitioners also pray that the Honorable Court, pending a final
resolution on this Petition, issue a preliminary prohibitory injunction
and/or a Temporary Restraining Order, prohibiting the Public
Respondents, and anyone acting under their authority, stead, or
behalf, from implementing the 01 December 2015 Memorandum of
Agreement (MOA) between the Bureau of Corrections, and the
General Headquarters and the Headquarters Service Command both
of the Armed Forces of the Philippines, with respect to the convicted
Respondent L/Cpl. Joseph Scott Pemberton.
Further, Petitioners pray that the Honorable Court, pending a
final resolution on this Petition, issue a preliminary mandatory
injunction ordering the Public Respondents, and anyone acting under
their authority, stead, or behalf, to remit or transfer Private
Respondent L/Cpl. Joseph Scott Pemberton to the New Bilibid Prison
in Muntinlupa City.
TIMELINESS OF THE PETITION
1)
On 01 December 2015, the Bureau of Corrections, and the
General Headquarters and the Headquarters Service Command both
of the Armed Forces of the Philippines, entered into a Memorandum
of Agreement (also herein referred to as “01 December 2015 MOA”)
with respect to the confinement and/or detention of the convicted
Respondent L/Cpl. Joseph Scott Pemberton.
2
2)
A certified true copy of the 01 December 2015 MOA is
herein attached as ANNEX “A”.
3)
Under Rule 65, Petitioners have sixty (60) days from
01 December 2015, within which to file this Petition. Hence,
Petitioners are filing the instant action on time.
4)
The corresponding docket and other lawful fees and
deposit for costs are paid simultaneously with the filing of this
Petition.
NECESSARY DOCUMENTS ATTACHED
5)
Petitioner respectfully attaches as ANNEX “A” the
certified true copy of the 01 December 2015 MOA between the
Bureau of Corrections, and the General Headquarters and the
Headquarters Service Command both of the Armed Forces of the
Philippines, in compliance with Rule 65 of the 1997 Rules of Civil
Procedure.
PARTIES
The Petitioners are:
6) PETITIONER MARILOU S. LAUDE is of legal age, and a
Filipino citizen. She may be served with notices, pleadings and other
processes of this Honorable Court through her counsel, the Roque &
Butuyan Law Offices, with address at 1904 Antel Corporate Center, 121
Valero Street, Salcedo Village, Makati City.
7) Petitioner Marilou S. Laude is the Private Complainant in
the case entitled People of the Philippines vs. L/Cpl Joseph Scott
Pemberton docketed as Criminal Case No. 865-14 (For: Murder) before
the Regional Trial Court Branch 74 of Olongapo City.
8) She is the elder sister of the brutally killed victim, Jeffrey
“Jennifer” Laude, a 26-year old Filipino transgender whom
Petitioners believe to have been murdered on 11 October 2014 at a
motel room in Olongapo City, wherein the accused is Respondent
L/Cpl. Joseph Scott Pemberton. The Regional Trial Court Branch 74
of Olongapo City convicted Respondent L/Cpl. Joseph Scott
Pemberton of the crime of homicide.
3
9) PETITIONER MICHELLE S. LAUDE is of legal age, and a
Filipino citizen. She may be served with notices, pleadings and other
processes of this Honorable Court through her counsel, the Roque &
Butuyan Law Offices, with address at 1904 Antel Corporate Center, 121
Valero Street, Salcedo Village, Makati City.
10) Petitioner Michelle S. Laude is also a sister of the brutally
killed victim, Jeffrey “Jennifer” Laude.
11) All Petitioners are suing in their capacity as heirs of the
brutally killed victim, Jeffrey “Jennifer” Laude, and as taxpayers,
hereby assailing the constitutionality of the 01 December 2015 MOA
entered into by the Bureau of Corrections, and by the General
Headquarters and the Headquarters Service Command both of the
Armed Forces of the Philippines, with respect to the confinement
and/or detention of the now convicted Respondent L/Cpl. Joseph
Scott Pemberton.
12) Petitioners are filing this action as the heirs of the brutally
killed victim, Jeffrey “Jennifer” Laude. Petitioners stand to be
directly, materially, and personally injured by the unconstitutional
nature of the 01 December 2015 MOA entered into by the Bureau of
Corrections, and the General Headquarters and the Headquarters
Service Command both of the Armed Forces of the Philippines, with
respect to the confinement and/or detention of the convicted
Respondent L/Cpl. Pemberton.
13) All of the Petitioners may be served with pertinent papers
and processes through their undersigned counsel, Roque and
Butuyan Law Offices, at Unit 1904 Antel 2000 Corporate Centre, 121
Valero Street, Salcedo Village, Makati City.
The Public Respondents are the following public officials:
14) SEC. VOLTAIRE T. GAZMIN is being sued in his official
capacity as the Secretary of the DEPARTMENT OF NATIONAL DEFENSE
(hereinafter DND), the department which has supervision and
control over the Armed Forces of the Philippines (AFP), and
consequently, over the General Headquarters and the Headquarters
Service Command both of the AFP. He is also the representative of
the DND who approved the 01 December 2015 MOA. He may be
served with summons and notices of this Honorable Court, as well as
all other papers and processes, at the Department of National
4
Defense, DND Building, Segundo Ave. Camp General Emilio
Aguinaldo, Quezon City.
15) SEC. ALFREDO BENJAMIN S. CAGUIOA is being sued
in his official capacity as Secretary of the DEPARTMENT OF JUSTICE
(hereinafter DOJ), the department which has administrative
supervision over the Bureau of Corrections. He is also the
representative of the DOJ who approved the 01 December 2015
MOA. He may be served with summons and notices of this
Honorable Court, as well as all other papers and processes at the
Department of Justice, Padre Faura, City of Manila.
16) B. GEN. VICENTE M. YORDAN is being sued in his
official capacity as the Commander of the GENERAL HEADQUARTERS
and of the HEADQUARTERS SERVICE COMMAND both of the ARMED
FORCES OF THE PHILIPPINES. He is also the representative of the
General Headquarters and the Headquarters Service Command, both
of the AFP, who signed the 01 December 2015 MOA. He may be
served with summons and notices of this Honorable Court, as well as
all other papers and processes at the General Headquarters and/or
Headquarters Service Command, Camp Emilio Aguinaldo, Quezon
City.
17) DIR. GEN. RICARDO RAINIER CRUZ III is being sued
in his official capacity as the Director General of the BUREAU OF
CORRECTIONS. He is also the representative of the Bureau of
Corrections who signed the 01 December 2015 MOA. He may be
served with summons and notices of this Honorable Court, as well as
all other papers and processes at the Bureau of Corrections, New
Bilibid Prison, Muntinlupa City.
The Private Respondent is:
18) L/CPL. JOSEPH SCOTT PEMBERTON is of legal age, and
an American citizen. He is the accused in the criminal case People of
the Philippines vs. L/Cpl Joseph Scott Pemberton docketed as Criminal
Case No. 865-14 (For: Murder) before the Regional Trial Court Branch
74 of Olongapo City. In a Decision, dated 18 November 2015, the
Regional Trial Court Branch 74 of Olongapo City found the accused
Respondent L/Cpl. Pemberton guilty of the crime of homicide. The
confinement and/or detention of Respondent Pemberton is the
subject of the 01 December 2015 MOA entered into by the Bureau of
Corrections, and by the General Headquarters and the Headquarters
Service Command both of the Armed Forces of the Philippines.
5
19) Respondent Pemberton may be served with summons and
notices of this Honorable Court, as well as all other papers and
processes at the Expeditionary Holding Facility, Mutual Defense
Board-Security Engagement Board Compound, Camp Emilio
Aguinaldo, Quezon City.
STATEMENT OF FACTS
20) In Nicolas v. Romulo, the Hon. Supreme Court held that the
Romulo-Kenney Agreements of December 19 and 22, 2006, which
stated that US Marine L/Cpl. Daniel Smith, who was convicted of
rape, “will be detained at the first floor of, Rowe (JUSMAG) Building, U.S.
Embassy Compound xxx [and] guarded round the clock by U.S. military
personnel. The Philippine police and jail authorities, under the direct
supervision of the Philippine Department of Interior and Local Government
(DILG) will have access to the place of detention to ensure the United States
is in compliance with the terms of the VFA” was not in accord with the
Visiting Forces Agreement (VFA).1
21) The Hon. Supreme Court further held that—
[T]here is a different treatment when it comes to detention as
against custody. The moment the accused has to be detained,
e.g. after conviction, the rule that governs is [Section 10, Article
V of the VFA]:
Sec 10. The confinement or detention by
Philippine authorities of United States
personnel shall be carried out in facilities
agreed on by appropriate Philippines and
United States authorities. United States
personnel serving authorities in the
Philippines shall have the right to visits and
material assistance.
It is clear that the parties to the VFA recognized the difference
between custody during the trial and detention after conviction,
because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only
that the detention shall be carried out in facilities agreed on by
authorities of both parties, but also that the detention shall be
by Philippine authorities. Therefore, the Romulo-Kenney
1
Nicolas vs. Romulo, G.R. No. 175888, February 11, 2009
6
Agreements of December 19 and 22, 2006, which are
agreements on the detention of the accused in the United States
Embassy, are not in accord with the VFA itself because such
detention is not by Philippine authorities. [Emphasis supplied.]2
22) On 11 October 2014, Jeffrey “Jennifer” Laude, was found
dead in the toilet of a motel room in Olongapo City, near the former
US Naval facility in Subic Bay. Shortly after, a friend of his tagged a
foreigner – later on identified as Respondent Joseph Scott Pemberton
– as the one responsible for the killing.
23) However, Philippine authorities, invoking the Visiting
Forces Agreement, did not take custody of PFC Pemberton; instead
they allowed US naval authorities to hold him aboard the US warship
Peleliu docked on Subic Bay.
24) On 22 October 2014, United States authorities purportedly
transferred US Marine PFC Pemberton to the Mutual Defense BoardSecurity Engagement Board (MDB-SEB) facility inside Camp
Aguinaldo.
25) In an Information for Murder, Respondent Pemberton was
charged as the accused in the criminal case People of the Philippines vs.
L/Cpl Joseph Scott Pemberton docketed as Criminal Case No. 865-14
(For: Murder) before the Regional Trial Court Branch 74 of Olongapo
City.
26) In a Decision, dated 18 November 2015, the Regional Trial
Court Branch 74 of Olongapo City found the accused Respondent
L/Cpl. Pemberton guilty of the crime of homicide. A copy of the
18 November 2015 Decision by the RTC Olongapo City is herein
attached as ANNEX “B”.
27) The relevant dispositive portion of the 18 November 2015
Decision by the RTC Olongapo City states that:
WHEREFORE, judgment is rendered finding
accused L/CPL JOSEPH SCOTT PEMBERTON GUILTY
beyond reasonable doubt of the crime of homicide and
sentencing him to suffer the indeterminate sentence of six
(6) years of prision correcional as minimum and twelve
(12) years of prision mayor as maximum with full credit
2
Id.
7
for the period of his preventive imprisonment pursuant to
Article 29, Revised Penal Code; xxx xxx
28) The 18 November 2015 Decision of the RTC Olongapo City
further discussed Respondent L/Cpl. Pemberton’s classification as a
“national prisoner” and the legal bases for choosing the facility where
he should be committed to:
It is provided under P.D. No. 29 that “prisoners sentenced
to more than three (3) years and one (1) day and above
are classified as national prisoners”. Since accused L/Cpl
Pemberton is sentenced to suffer the indeterminate
sentence of six (6) years of prision correctional as minimum
and twelve (12) years of prision mayor as maximum, he is
considered as a national prisoner. Pursuant to OCA
Circular No. 40-2013:
“All trial judges concerned are hereby
directed to strictly comply with OCA Circular
No. 4-92-A and issue the corresponding
mittimus or commitment order of national
prisoners immediately after their conviction,
xxx xxx, so that they may be remitted or
transferred to the New Bilibid Prison of the
BuCor.”
It is also provided under OCA Circular No. 63-97
dated October 6, 1997, national prisoners may also be
committed to national penal institutions other than the
New Bilibid Prison in Muntinlupa City, such as:
1. National Prisoners in Regions X and XI to be
committed to the Davao Prison and Penal Farm
at Panabo, Davao del Norte;
2. National Prisoners in Regions IX and XII to be
committed to the San Ramon Prison and Penal
Farm at Zamboanga City, Zamboanga Del Sur;
3. National Prisoners in Region VIII to be
committed to the Leyte Regional Prison at
Abuyog, Leyte;
4. National Prisoners in Palawan and Puerto
Princesa City to be committed to the Iwahig
Prison and Penal Farm at Puerto Princesa City,
Palawan; and
8
5. National Prisoners in Mindoro Oriental and
Mindoro Occidental to be committed to the
Sablayan Prison and Penal Farm at Sablayan,
Mindoro occidental.3
29) In the 18 November 2015 Decision, the RTC Olongapo City
further ordered that Respondent Pemberton be temporarily
committed to the New Bilibid Prison, Bureau of Corrections,
Muntinlupa City. The pertinent portion of the 18 November 2015
Decision reads, to wit:
Pending clarification of the agreement [under the
Philippines-US Visiting Forces Agreement on the
detention facility for convicted US personnel], accused
L/CPL JOSEPH SCOTT PEMBERTON is hereby
temporarily committed to the New Bilibid Prison, Bureau
of Corrections, Muntinlupa City.4
30) On 01 December 2015, the RTC Olongapo City
promulgated its 18 November 2015 Decision, which was attended by
Respondent Pemberton and his counsels, as well as by Petitioners
and their counsel.
31) Also, on 01 December 2015, counsel for Respondent
Pemberton filed an Urgent Motion for Clarification praying for his
confinement at the Armed Forces of the Philippines Custodial Center
(AFP Custodial Center) at Camp Aguinaldo, Quezon City.
32) The RTC Olongapo City ruled on the said Motion and
issued an Order, dated 01 December 2015, ordering the following:
Executive Director Eduardo Oban, Jr. of the Philippine
Commission on Visiting Forces (PCVF) manifested in
open court that Philippine government authorities
composed of the Bureau of the Bureau of Corrections,
Department of Justice, and the Philippine National Police,
among others agreed that the accused, when necessary,
shall be confined at the AFP Custodial Center, Camp
Aguinaldo, Quezon City and under the supervision of the
Bureau of Corrections. The prosecution, thru City
Page 59-60, Decision dated November 18, 2015, People of the Philippines vs. L/Cpl Joseph Scott
Pemberton, Crim. Case No. 865-14, Citations omitted.
4 Page 60, Decision dated November 18, 2015, People of the Philippines vs. L/Cpl Joseph Scott
Pemberton, Crim. Case No. 865-14
3
9
Prosecutor, Emilie Delos Santos, manifested that the
custody issue of accused Pemberton after conviction is
beyond their authority to comment.
In view thereof, the Executive Director of PCVF is hereby
ordered to submit to this Court within five (5) days from
the order the Memorandum of Agreement (MOA)
entered into by the and the written Agreement between
the duly authorized representatives of the United States
of America and the Republic of the Philippines on the
confinement or detention of the accused Pemberton after
conviction.
Pending the submission of the MOA and the written
Agreement between the duly authorized representatives
of the United States of America and the Republic of the
Philippines, accused L/Cpl. Joseph Scott Pemberton is
temporarily confined or detained to AFP Custodial
Center at Camp Aguinaldo, Quezon City under the
supervision of the Bureau of Corrections. Otherwise, the
Commitment Order dated December 1, 2015 shall be
enforced. [Emphasis ours.] 5
A copy of the RTC Olongapo City Order, dated 01 December 2015, is
herein attached as ANNEX “C”.
33) In direct contravention of and patent disobedience with the
unequivocal Decision of the RTC Olongapo City, eleven (11)
unnamed US Security Personnel guarding Respondent Pemberton on
the day of the promulgation of the Court’s decision (hereinafter
known as “John Does”) refused “to hand him over to the [Philippine
National Police] to be brought to Bilibid while his lawyers quickly filed a
motion asking the court to clarify where he should be detained under the
Visiting Forces Agreement (VFA).”6
34) Even with the Order of the RTC Olongapo City directing
that Respondent L/Cpl. Joseph Scott Pemberton be brought to the
AFP Custodial Center, several media outfits aired reports that
Pemberton was not brought to the AFP Custodial Center by the
unnamed United States servicemen or by Undersecretary Oban and
Order dated December 1, 2015, People of the Philippines vs. L/Cpl Joseph Scott Pemberton,
Crim. Case No. 865-14
6 Jaymee T. Gamil, Laude lawyer mulls raps vs Pemberton guards, INQUIRER.NET, December 3, 2015,
available at http://globalnation.inquirer.net/133270/laude-lawyer-mulls-raps-vs-pembertonguards (last accessed December 9, 2015)
5
10
his representatives. Instead, Pemberton was brought to the detention
facility of the Joint US Military Assistance Group (JUSMAG), Camp
Aguinaldo, Quezon City.78
35) On 01 December 2015, the Bureau of Corrections (BuCor),
and the General Headquarters (GHQ) and the Headquarters Service
Command (HSC) both of the Armed Forces of the Philippines (AFP),
entered into a Memorandum of Agreement (MOA).
36) The confinement and/or detention of Respondent
Pemberton is the subject of the 01 December 2015 MOA entered into
by the Bureau of Corrections, and by the General Headquarters and
the Headquarters Service Command both of the Armed Forces of the
Philippines.
37) The 01 December 2015 MOA was signed by Respondent
Dir. Gen. Cruz III as representative for the BuCor, while Respondent
B. Gen. Yordan signed as representative for the GHQ and the HSC,
both of the AFP.
38) The 01 December 2015 MOA was approved by Respondent
Sec. Gazmin as the representative of the Department of National
Defense, and by Respondent Sec. Caguioa as representative of the
Department of Justice.
39) The salient provisions of the 01 December 2015 provide,
inter alia, that:
WHEREAS, the Inmate is currently detained within an
Expeditionary Holding Facility located in the Mutual
Defense Board—Security Engagement Board (MDB-SEB)
Ground, Camp Emilio Aguinaldo, and it is understood
that he will remain therein at the AFP Custodial
Detention Center is ready to be used for the service of
the Inmate’s sentence;
WHEREAS, under Republic Act No. 10575, or the
Bureau of Corrections Act of 2013 the BUCOR shall be in
charge of safekeeping and instituting reformation
Jaime Laude, Jail being built for Pemberton at Camp Aguinaldo?, THE PHILIPPINE STAR, December 3,
2015, available at http://www.philstar.com/headlines/2015/12/03/1528406/jail-being-builtpemberton-camp-aguinaldo (last accessed December 9, 2015)
8
Gerg Cahiles, Pemberton Detention, CNN PHILIPPINES, (2015). [video] Available at:
http://cnnphilippines.com/videos/2015/12/02/Pemberton-Detention.html
[Last
accessed
December 9, 2015].
7
11
programs to national inmates sentenced to more than
three (3) years;
WHEREAS, it is understood that the Inmate, during the
service of his sentence, shall be subject to all relevant
laws, regulations, and agreements of the Philippines,
providing the Bureau of Corrections Operating Manual,
the International Covenant on Civil and Political Rights,
and the Visiting Forces Agreement;
xxx
Article I
General Provisions
1.1. The BUCOR shall utilize a portion of the facilities of
the GHQ and Headquarters Service Command, AFP as
identified in this Agreement, which shall serve as a
National Bilibid Prison (NBP) Extension Facility for the
service of sentence of the Inmate in case of his
conviction.
1.2. The NBP Extension Facility shall include portions of
the AFP Custodial Detention Center identified in
accordance with Section 2.1 of this Agreement when it is
ready to be used for the service of the Inmate’s sentence,
in accordance with all pertinent laws, regulations, and
agreements of the Philippines.
1.3. Until the AFP Custodial Detention Center is ready
to be used for the service of sentence of the Inmate, the
Expeditionary Holding Facility within the MDB-SEB
Compound shall be and serve as an Interim Extension
Sub-Facility of the AFP Custodial Detention Center, and
all provisions of this Agreement shall apply to the same
in accordance with all relevant laws, regulations, and
agreements of the Philippines
xxx
12
GROUNDS FOR THE PETITION
40) This Petition is for Certiorari, Prohibition, and Mandamus.
Petitioners respectfully contend that the 01 December 2015 MOA
between the Bureau of Corrections, and the General Headquarters
and the Headquarters Service Command both of the Armed Forces of
the Philippines, with respect to the confinement and/or detention of
convicted Respondent L/Cpl. Joseph Scott Pemberton, is
unconstitutional for violating the equal protection clause and for
being an executive encroachment on the power and authority of the
Judicial Department.
41) Also, Petitioners do not have at their disposal any appeal,
nor any plain, speedy, and adequate remedy in the ordinary course
of law, except the instant Petition for Certiorari, Prohibition, and
Mandamus, with Prayer for the Issuance of a Writ of Preliminary
Prohibitory Injunction and/or Temporary Restraining Order, and
with Prayer for the Issuance of a Preliminary Mandatory Injunction.
42) The acts of Respondents, if not immediately restrained or
enjoined, will cause grave, irreparable, and material injury to
Petitioners as the heirs of the brutally killed victim, Jeffrey “Jennifer”
Laude. Petitioners will stand to be directly, materially, and
personally injured by the unconstitutionality of the 01 December 2015
MOA entered into by the BuCor, and by the GHQ and the HSC both
of the AFP, with respect to the confinement and/or detention of the
convicted Respondent L/Cpl. Joseph Scott Pemberton.
43) For the same reasons, the commission and continuance of
the acts complained of during the pendency of this petition will work
injustice to Petitioners. Petitioners pray for the exemption from the
posting of a bond in view of the nature of the instant petition which
is anchored on the following grounds:
13
PROCEDURAL MATTERS
I.
PETITIONERS HAVE LEGAL STANDING TO FILE THE
INSTANT PETITION FOR CERTIORARI, PROHIBITION, AND
MANDAMUS.
II.
THE CONTROVERSY IS SUFFICIENTLY RIPE FOR THE
HIGH COURT’S ADJUDICATION
III.
THE FILING OF THE INSTANT PETITION DOES NOT
VIOLATE THE HIERARCHY OF COURTS, GIVEN THE
URGENCY AND THE NATURE OF THE ISSUES INVOLVED
IV.
THE PETITION INVOLVES MATTERS OF PUBLIC
INTEREST AND TRANSCENDENTAL IMPORTANCE SUCH AS
WOULD JUSTIFY A RELAXATION OF PROCEDURAL
REQUIREMENTS FOR CONSTITUTIONAL ADJUDICATION
SUBSTANTIVE MATTERS
(GROUNDS FOR THE PETITION)
PUBLIC RESPONDENTS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
DISCRETION FOR PROVIDING IN THE 01 DECEMBER 2015
MOA
THAT
RESPONDENT
L/CPL.
JOSEPH
SCOTT
PEMBERTON BE COMMITTED TO THE AFP CUSTODIAL
DETENTON CENTER AND, PENDING ITS REPAIRS, AT THE
MDB-SEB WITHIN THE JUSMAG COMPOUND SINCE:
V.
THE 01 DECEMBER 2015 MOA IS UNCONSTITUTIONAL
FOR VIOLATING THE EQUAL PROTECTION CLAUSE OF THE
1987 CONSTITUTION.
VI.
THE 01 DECEMBER 2015 MOA IS UNCONSTITUTIONAL
FOR BEING AN EXECUTIVE ENCROACHMENT ON THE
POWER AND AUTHORITY OF THE JUDICIAL DEPARTMENT
UNDER THE 1987 CONSTITUTION.
14
VII.
THE 01 DECEMBER 2015 MOA IS ULTRA VIRES AND
CONSEQUENTLY, UNCONSTITUTIONAL, AS THE BUREAU OF
CORRECTION HAS NO STATUTORY AUTHORITY TO
DESIGNATE ANOTHER PLACE OF DETENTION FOR
“NATIONAL PRISONERS,” APART FROM THE NEW BILIBID
PRISON AND OTHER NATIONAL PENAL INSTITUTIONS
PROVIDED UNDER OCA CIRCULAR NO. 63-97 AND UNDER
RELEVANT LAWS.
DISCUSSION
A. PROCEDURAL MATTERS
I.
PETITIONERS HAVE LEGAL
STANDING TO FILE THE INSTANT
PETITION
FOR
CERTIORARI,
PROHIBITION, AND MANDAMUS.
--------------------------------------------------44) Petitioners as heirs of the brutally killed victim, Jeffrey
“Jennifer” Laude--- have legal standing to file the instant suit. In a
host of jurisprudence locus standi means a personal and substantial
interest in the case such that the party has sustained or will sustain
direct injury as a result of the act being challenged.9 Otherwise stated,
a proper party is one who has sustained or is in immediate danger of
sustaining an injury as a result of the act complained of.10 Thus, for a
party to have personal standing, he need only prove, first, injury to
his right or interest11, and second, a "fairly traceable" causal
connection between the claimed injury and the challenged conduct.12
45) With regard to the first requisite, which requires injury in
fact,13 there is no rigid rule as to what may constitute such injury. It
may refer to aesthetic or environmental injury14 or pertain to a
Tankiko v. Cezar, G.R. No. 131277, February 2, 1999.
ISAGANI CRUZ, CONSTITUTIONAL LAW 25 (2000), citing Ex Parte Levitt, 303 US 633.
11 Tankiko v. Cezar, G.R. No. 131277, February 2, 1999; CRUZ, Id.,at 25; Duke Power Co. v.
Carolina Environmental Study Group, 438 US 59 (1978).
12Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978).
13 Association of Data Processing Service Organizations v. Comp., 397 US 150 (1970) in RONALD
ROTUNDA, MODERN CONSTITUTIONAL LAW: CASES AND NOTES 1054 (3rd ed., 1989) [Hereinafter,
ROTUNDA].
14 JOHN E. NOWAK AND RONALD ROTUNDA, CONSTITUTIONAL LAW 78 (4th ed., 1991), citing Sierra
Club v. Morton, 405 U.S. 727 (1972).[Hereinafter, NOWAK & ROTUNDA].
9
10
15
"spiritual stake" in the values of the Constitution,15 and may be held
to exist when the assailed administrative ruling entail future loss of
profits.16 Indeed, even the mere fact that many people suffer the
same injury claimed does not preclude a finding that the requisite
standing exists.17 As for the second requisite, it is complied with
when the Petitioners show that there is a substantial likelihood that
the relief requested will redress the claimed injury.18 Even if the line
of causation between the injury and the conduct is attenuated, the
existence of "an identifiable trifle" is sufficient for meeting this
requisite.19
46) Petitioners are filing this action as the heirs of the brutally
killed victim, Jeffrey “Jennifer” Laude. Petitioners will stand to be
directly, materially, and personally injured by the unconstitutional
nature of the 01 December 2015 MOA entered into by the BuCor, and
by the GHQ and the HSC both of the AFP, with respect to the
confinement and/or detention of the convicted Respondent L/Cpl.
Pemberton.
47) Further, in the instant petition, Petitioners assert their
public rights as citizens concerned that the Constitution be upheld.
Thus, their standing as citizens is founded on this unassailable
constitutional entitlement. As this Honorable Court held in the
landmark case of Francisco, Jr. et al v. House of Representatives:
….In fine, when the proceeding involves the
assertion of a public right, the mere fact that he is a
citizen satisfies the requirement of personal
interest.20
Id., at 77
Association of Data Processing Service Organizations v. Comp., 397 US 150 (1970), cited in
ROTUNDA, supra note 13, at 1054
17 Sierra Club v. Morton, 405 U.S. 727 (1972) , cited in NOWAK AND ROTUNDA, supra note 14,
at 78.
18 Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978).
19 ROTUNDA, supra note 6, at 1055, citing U.S. v. SCRAP, 412 U.S. 669 (1973).
20 Ernesto V. Francisco Jr., et al, v. House of Representatives, GR. No. 160261, Nov. 10, 2003.
15
16
16
II.
THE
CONTROVERSY
IS
SUFFICIENTLY RIPE FOR THE
HIGH COURT’S ADJUDICATION
--------------------------------------------------48) The principle of ripeness is premised on the doctrine that,
for the courts to act, there must be an actual case or controversy
involving a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial adjudication.21 Under this principle, a
suit is not ripe where it was brought too early.22 The principle is
underlined by the fact that, until the controversy becomes concrete
and focused, the court would find it difficult to evaluate the practical
merits of each party.23 However, the requirement of ripeness is not
bound to any hard and fast rules,24 and the degree of ripeness
required may vary depending on the nature of the constitutional
problem involved.25
49) The controversy that compelled the Petitioners to file the
instant petition before the Honorable Court is sufficiently ripe for
adjudication. It has been held that where a party will sustain
immediate injury and such injury would be redressed by the relief
requested, then the case involved would already satisfy the
requirement of ripeness.26
50) The instant case involves Petitioners who question the way
the Public Respondents entered into and approved the 01 December
2015 MOA on the confinement and/or detention of Respondent
L/Cpl. Pemberton, in violation of the Constitution.
51) The acts of Public Respondents have both been
accomplished and are being threatened to be accomplished, to the
detriment of Petitioners and the nation. Such already constitutes a
justiciable controversy according to jurisprudential requirements, as
it involves “a definite and concrete dispute touching on the legal
relations of parties having adverse legal interests.”27
CRUZ, supra note 10, at 23. See also International Longshoremen's and Warehousemen's
Union, Local 37 v. Boyd, 347 US 222 (1954), quoted in ROTUNDA, supra note 13, at 1026-1027.
22 NOWAK & ROTUNDA, supra note 7, at 68
23Id.
24 Id.
25 Barrett 125, citing United Public Workers v. Mitchell, 330 US 75 (1947) and Adler v. Board of
Education, 342 US 485 (1952).
26 Duke Power Co. v. Carolina Environmental Study Group, 438 US 59 (1978), quoted in
ROTUNDA, supra note 6, at 1053
27 Guingona Jr. v. Court of Appeals, 354 Phil. 415, 426, July 10, 1998
21
17
III. THE
FILING
OF
THE
INSTANT PETITION DOES NOT
VIOLATE THE HIERARCHY OF
COURTS, GIVEN THE URGENCY
AND THE NATURE OF THE ISSUES
INVOLVED.
---------------------------------------------------52) It may be argued that the instant Petition should be
dismissed for being in violation of the principle of the hierarchy of
courts. However, in Article VIII, Section 5, paragraph 2 (a) of the
Constitution, it is explicit that the Hon. Supreme Court has
jurisdiction in all cases in which the constitutionality or validity of
any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is in
question.
53) Thus, it has been held that where a case raises
constitutional issues of transcendental importance to the public and
involves a petition for certiorari and prohibition within the court's
original jurisdiction within the Constitution, the Court may exercise
primary jurisdiction over said case though it apparently failed to
observe the rule of hierarchy of courts.28 That a case involving
constitutional issues regarding treatment of cooperatives and the
need for speedy disposition of cases would, for instance, justify the
Court's taking cognizance over a case invoking its primary
jurisdiction.29
54) Petitioners respectfully submit that the instant petition
involves constitutional issues of transcendental importance as well as
of compelling circumstances that would merit a latitudinarian view
of the principle of hierarchy of courts.
28
29
Chavez v. Public Estates Authority, G.R. No.133250, July 9, 2002.
Philippine Rural Electric Cooperatives Association v. Secretary, G.R. No.143076, June 10, 2003.
18
IV. THE PETITION INVOLVES
MATTERS OF PUBLIC INTEREST
AND
TRANSCENDENTAL
IMPORTANCE SUCH AS WOULD
JUSTIFY A RELAXATION OF ANY
PROCEDURAL
REQUIREMENT
FOR
CONSTITUTIONAL
ADJUDICATION.
---------------------------------------------------55) The Honorable Court has repeatedly and consistently
affirmed that the Court may brush aside technicalities of procedure
where a rigid adherence to the rules would prejudice substantial
justice,30 where the issues are of first impression and entail
interpretation of key provisions of the Constitution and law,31 or
where the case involves matters of transcendental importance.32
56) Unquestionably, the Court has the power to suspend
procedural rules in the exercise of its inherent power, as expressly
recognized in the Constitution, to promulgate rules concerning
'pleading, practice and procedure in all courts. In proper cases,
procedural rules may be relaxed or suspended in the interest of
substantial justice, which otherwise may be miscarried because of a
rigid and formalistic adherence to such rules.33
57) As was held by this Honorable Court in the above-cited
cases, the Court, in the exercise of its sound discretion, may brush
aside procedural barriers and take cognizance of a case in view of the
paramount importance and the constitutional significance of the
issues raised. Thus, as the issues raised by the Petitioners in the
instant case are of paramount public interest, the Petitioners humbly
pray that the Honorable Court brush aside procedural barriers, if
any, in taking cognizance of this case.
Solicitor-General v. Metropolitan Manila Authority, G.R. No.102782, December 11, 1991.
Philippine International Air Terminals Co., G.R. No.155001, May 5, 2003.
32 Defensor-Santiago v. Comelec, G.R. No.127325, March 19, 1997. See KMU v. Garcia, G.R.
No.115381, December 23, 1994 (standing); Kilosbayan v. Guingona, G.R. No.113375, May 5, 1994
(standing); Kilosbayan v. Morato, G.R. No.118910, November 16, 1995 (standing); SolicitorGeneral v. Metropolitan Manila Authority, G.R. No.102782, December 11, 1991. (standing,
propriety of prohibition); Osmena v. Comelec, G.R. No.100318, July 30, 1991 (standing, etc.); Daza
v. Singson, G.R. No.86344, December 21, 1989 (propriety of remedy); Association of Small
Landowners in the Philippines v. Secretary, G.R. No.79310, July 14, 1989; Philippine International
Air Terminals Co., G.R. No.155001, May 5, 2003 (standing), particularly J. Panganiban, sep.op.
33 Solicitor-General v. Metropolitan Manila Authority, G.R. No.102782, December 11, 1991.
30
31
19
B. SUBSTANTIVE MATTERS
(GROUNDS FOR THE PETITION)
PUBLIC RESPONDENTS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
DISCRETION FOR PROVIDING IN THE 01 DECEMBER 2015
MOA
THAT
RESPONDENT
L/CPL.
JOSEPH
SCOTT
PEMBERTON BE COMMITTED TO THE AFP CUSTODIAL
DETENTON CENTER AND, PENDING ITS REPAIRS, AT THE
MDB-SEB WITHIN THE JUSMAG COMPOUND:
58) Jurisprudence defines grave abuse of discretion as a
“capricious and whimsical exercise of judgment on the part of the
public officer concerned which is equivalent to an excess or lack of
jurisdiction. The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of
law as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.”34
59) In Infotech Foundation vs. Comelec, the Hon. Supreme Court
also held that “there is grave abuse of discretion (1) when an act is
done contrary to the Constitution, the law or jurisprudence; or (2)
when it is executed whimsically, capriciously or arbitrarily out of
malice, ill will or personal bias.”35
60) In executing and approving the 01 December 2015 MOA,
the Public Respondents clearly committed grave abuse of discretion
amounting to lack or excess of discretion when they provided in the
said MOA that herein convicted Respondent L/Cpl. Joseph Scott
Pemberton be committed to the AFP Custodial Center and, pending
its repairs, at the Mutual Defense Board-Security Engagement Board
(MDB-SEB) Compound.
61) The legal grounds for Public Respondents’ grave abuse of
discretion in entering and in approving the 01 December 2015 MOA
are further discussed below.
34Candelaria
v. Regional Trial Court, Branch 42, City of San Fernando, G.R. No. 173861, July 14, 2014
Technology Foundation vs. Comelec, G.R. No. 159139, January 13, 2004
35Information
20
V.
THE 01 DECEMBER 2015
MOA IS UNCONSTITUTIONAL
FOR VIOLATING THE EQUAL
PROTECTION CLAUSE OF THE
1987 CONSTITUTION.
---------------------------------------------------62) The 01 December 2015 MOA entered into by the BuCor,
and by the GHQ and the HSC both of the AFP, with respect to the
confinement and/or detention of the convicted Respondent L/Cpl.
Pemberton, violates the equal protection clause enshrined in Article
III, Section 1 of the 1987 Constitution.
63) Equal protection is a “specific constitutional guarantee of
the equality of the person. The equality it guarantees is ‘legal equality
or, as it is usually put, the equality of all persons before the law.
Under it, each individual is dealt with as an equal person in the law,
which does not treat the person differently because of who he is or
what he is or what he possesses. The goddess of justice is portrayed
with a blindfold, not because she must be hindered in seeing where
the right lies, but that she may not discriminate against suitors before
her, dispensing instead an even handed justice to all.’36
64) For classification to be reasonable, it must (a) rest on
substantial distinctions; (b) be germane to the purpose of the law; (c)
not be limited to existing conditions only; and (d) apply equally to all
members of the same class.37
65) Nevertheless, the 01 December MOA creates a special
treatment for Respondent Pemberton—without any valid legal basis
for this, despite Respondent Pemberton being a “national prisoner”
who should be confined or detained in the New Bilibid Prison.
66) Here, Respondent L/Cpl. Joseph Scott Pemberton, who
was found guilty beyond reasonable doubt by the Olongapo Regional
Trial Court Branch 74, was sentenced to suffer “an indeterminate
sentence of six (6) years of prision correcional as minimum and twelve
(12) years of prision mayor as maximum with full credit of his
preventive imprisonment pursuant to Article 29, Revised Penal Code
xxx.”38
Bernas, J. THE 1987 PHILIPPINE CONSTITUTION: A COMPREHENSIVE REVIEWER, 35, Rex Bookstore:
Manila, 2011
37 People v Cayat, 68 Phil. 12, 18 (1939)
38Page 59, Decision dated November 18, 2015, People of the Philippines vs. L/Cpl Joseph Scott
Pemberton, Crim. Case No. 865-14
36
21
67) As Respondent Pemberton was sentenced to the
indeterminate sentence of six (6) years of prision correcional as
minimum and twelve (12) years of prision mayor as maximum,
hence, Respondent Pemberton is classified as a “national prisoner”
under Presidential Decree No. 29.
68) Further, according to OCA Circular No. 4-92-A,
Respondent L/Cpl. Pemberton’s sentence qualifies him as a national
prisoner39 and in light of OCA Circular No. 40-2013, must
“immediately after their conviction xxx be remitted or transferred to
the New Bilibid Prison of the BuCor.”40
69) Pursuant to OCA Circular No. 40-2013, issued on 13 March
2013, Respondent Pemberton should be remitted or transferred to the
New Bilibid Prison. As provided, inter alia, in OCA Circular
No. 40-2013:
In view thereof, and in order for the BJMP to adhere
to the BuCor’s policy of not accepting convicts for service
of sentence without the aforesaid complete documents,
and ultimately to decongest the provincial, city and
municipal jails nationwide, all trial judges concerned are
hereby DIRECTED to STRICTLY COMPLY with OCA
Circular No. 4-92-A and ISSUE the corresponding
mittimus or commitment order of national prisoners
immediately after their conviction, and SUBMIT the
same, together with the necessary documents in support
thereof, such as the decision, certificate of non-appeal or
notice of appeal, certificate of non-pending case,
39Supreme
Court Circular No. 4-92-A [Amending Circular No. 4-92], April 20, 1992, to wit—
It has come to the attention of the Supreme Court that some judges refuse
to issue mittimuses for the transfer of prisoners sentenced to imprisonment for
more than three [3] years to the Bureau of Corrections in Muntinlupa, Metro
Manila, for the reason that their cases are on appeal.
For this purpose, prisoners detained at provincial and municipal jails and
sentenced by lower courts to prison terms exceeding three [3] years, whether or
not they have appealed, are considered national prisoners. (P.D. 29). (NOTE:
Under Presidential Decree No. 29, prisoners sentenced to not more than one (1)
year are classified as municipal prisoners; those sentenced to one (1) year and one
(1) day to not more than three (3) years are classified as city/provincial
prosecutors; those sentenced for three (3) years and one (1) day and above are
classified as national prisoners.)
In order to decongest provincial, city and municipal jails and to effect
better control and supervision over national prisoners, all trial judges concerned
are hereby directed to issue the corresponding mittimuses or commitment orders
of national prisoners immediately after their conviction so that they may be
remitted or transferred to the Bureau of Corrections in Muntinlupa, Metro
Manila.[Emphasis supplied.]
40Court decision – there was some inaccuracy in the citation
22
certificate of detention and detainee’s manifestation, as
cited above, to the nearest BJMP within their respective
adjudicative territorial jurisdiction, so that they may be
remitted or transferred to the New Bilibid Prison of the
BuCor.
Strict compliance is hereby enjoined.
70) Further, in Section 4 of Republic Act No. 10575, or the
“The Bureau of Corrections Act of 2013,” the Bureau of Corrections
“shall be in charge of safekeeping and instituting reformation programs to
national inmates sentenced to more than three (3) years.”
71) Hence, in accordance with PD No. 29, RA 10575, OCA
Circular No. 4-92-A, and OCA Circular No. 40-2013, Respondent
Pemberton should be remitted or transferred to the New Bilibid
Prison.
72) Consequently, the RTC Olongapo City stated in its
18 November 2015 Decision that:
It is provided under P.D. No. 29 that “prisoners
sentenced to more than three (3) years and one(1) day and
above are classified as national prisoners”. Since accused
L/Cpl Pemberton is sentenced to suffer the indeterminate
sentence of six (6) years of prision correcional as minimum
and twelve (12) years of prision mayor as maximum, he is
considered as a national prisoner. Pursuant to OCA
Circular No. 40-2013:
xxx
xxx
xxx
xxx
xxx
xxx
It is also provided under OCA Circular No. 63-97
dated October 6, 1997, national prisoners may also be
committed to national penal institutions other than the
New Bilibid Prison in Muntinlupa City, such as:
xxx
xxx
xxx
xxx
xxx
xxx
73) Nevertheless, the assailed 01 December 2015 MOA creates
a special treatment for Respondent Pemberton as said MOA
designates the AFP Custodial Center and/or the Mutual Defense
23
Board-Security Engagement Board Compound, both at the Camp
Aguinaldo, as the place of detention of convicted Respondent
Pemberton, in violation of PD No. 29, RA 10575, OCA Circular No. 492-A, and OCA Circular No. 40-2013.
74) Moreover, Public Respondents have no statutory authority
to designate the AFP Custodial Center and/or the Mutual Defense
Board-Security Engagement Board Compound as the place of
confinement and/or detention of convicted Respondent Pemberton.
75) And PD No. 29, RA 10575, OCA Circular No. 4-92-A, and
OCA Circular No. 40-2013, clearly show that convicted Respondent
Pemberton should be remitted or transferred to the New Bilibid
Prison.
76) Hence, the 01 December 2015 MOA is discriminatory as it
places convicted Respondent Pemberton beyond the legal regime for
“national prisoners” provided under PD No. 29, RA 10575,
OCA Circular No. 4-92-A, and OCA Circular No. 40-2013.
77) It must be pointed out that there lies no substantial
distinction between Respondent L/Cpl. Pemberton and Filipinos
who have been similarly convicted of homicide and other grave
offenses, and made to serve their sentences at the New Bilibid Prison.
Substantial distinctions are those classifications which make for real
differences.41 There is no real difference, however, between
Respondent L/Cpl. Pemberton and any other Filipino found guilty of
violating a Philippine penal law.
78) Petitioners hereby reserve the right to file an amended
and/or supplemental petition to show that factually, there lies no
substantial distinction between Respondent L/Cpl. Pemberton and
Filipinos who have been similarly convicted of homicide and other
grave offenses, and made to serve their sentences at the New Bilibid
Prison.
79) Further, under the Classical Theory—from which the
Revised Penal Code is mostly based42—“a man has the capacity to
choose between right and wrong, good and evil xxx In view of the
voluntariness of the act or omission of the offender, he should be
41Garcia
v. Drilon, G.R. No. 179267, June 25, 2013
Boado, L., Notes and Cases of the Revised Penal Code (Books 1 and 2) and Special Penal Laws,
10, Rex Bookstore: Manila, 2012.
42
24
given the penalty that he deserved xxx Emphasis of the law [is] on
the offense and not on the offender.”43
80) In Feria vs. Court of Appeals, petitioner therein was
convicted for robbery with homicide and sentenced to suffer life
imprisonment to the Bureau of Corrections in Muntinlupa City.44
81) In People vs. Toriaga, the Hon. Supreme Court cited the
Regional Trial Court’s Decision which noted that therein accused was
already serving sentence for Frustrated Homicide at the New Bilibid
Prisons.45
82) Consequently, the 01 December 2015 MOA clearly violates
the equal protection clause of the Constitution, and should therefore
be declared unconstitutional.
VI.
THE 01 DECEMBER 2015
MOA IS UNCONSTITUTIONAL
FOR BEING AN EXECUTIVE
ENCROACHMENT
ON
THE
POWER AND AUTHORITY OF THE
JUDICIAL DEPARTMENT UNDER
THE 1987 CONSTITUTION.
---------------------------------------------------83) The 01 December 2015 MOA entered into by the BuCor,
and by the GHQ and the HSC both of the AFP, with respect to the
confinement and/or detention of the convicted Respondent L/Cpl.
Pemberton, is unconstitutional for being an executive encroachment
on the power and authority of the Judicial Department under the
1987 Constitution.
84) Article VIII, Section 6 of the 1987 Constitution provides
that:
Section 6. The Supreme Court shall have administrative
supervision over all courts and the personnel thereof.
43Boado,
L., Notes and Cases of the Revised Penal Code (Books 1 and 2) and Special Penal Laws,
9, Rex Bookstore: Manila, 2012.
44Feria v. Court of Appeals, G.R. No. 122954, February 15, 2000
45People v. Toriaga, G.R. No. 177145, February 9, 2011
25
85) In light of the Hon. Supreme Court’s power of
administrative supervision over all courts, the Office of the Court
Administrator was created.
86) And pursuant to the Hon. Supreme Court’s power of
administrative supervision over all courts, the Office of the Court
Administrator issued OCA Circular No. 40-2013 on 13 March 2013.
As provided, inter alia, in OCA Circular No. 40-2013:
In view thereof, and in order for the BJMP to adhere
to the BuCor’s policy of not accepting convicts for service
of sentence without the aforesaid complete documents,
and ultimately to decongest the provincial, city and
municipal jails nationwide, all trial judges concerned are
hereby DIRECTED to STRICTLY COMPLY with OCA
Circular No. 4-92-A and ISSUE the corresponding
mittimus or commitment order of national prisoners
immediately after their conviction, and SUBMIT the
same, together with the necessary documents in support
thereof, such as the decision, certificate of non-appeal or
notice of appeal, certificate of non-pending case,
certificate of detention and detainee’s manifestation, as
cited above, to the nearest BJMP within their respective
adjudicative territorial jurisdiction, so that they may be
remitted or transferred to the New Bilibid Prison of the
BuCor.
Strict compliance is hereby enjoined.
87) Hence, in accordance with OCA Circular No. 40-2013,
Respondent Pemberton should be remitted or transferred to the New
Bilibid Prison.
88) However, the 01 December 2015 MOA violates OCA
Circular No. 40-2013 since said MOA designates the AFP Custodial
Center and/or the Mutual Defense Board-Security Engagement
Board Compound, both at the Camp Emilio Aguinaldo, as the place
of detention of convicted Respondent Pemberton.
89) Further, the Executive Department, through herein Public
Respondents, encroached on the power and authority of the Judicial
Department by derogating upon itself—without even seeking proper
recourse to the Regional Trial Court Olongapo City and despite its
18 November 2015 Decision and its 01 December 2015 Order —the
26
power to modify the service of sentence of Pemberton at the AFP
Custodial Detention Center.
90) Article VIII, Section 1 of the 1987 Philippine Constitution
clearly provides that:
The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the Courts of Justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the party
of any branch or instrumentality of the Government.
91) In this case however, the Public Respondents executed and
approved the assailed 01 December 2015 MOA and agreed to commit
Respondent Pemberton to the MDB-SEB within the JUSMAG
Compound at Camp Aguinaldo in clear contravention of the
Olongapo Regional Trial Court’s 01 December 2015 Order to
temporarily confine Pemberton at the AFP Custodial Center pending
submission of the MOA and written agreement of the duly
authorized authorities of the United States of America and the
Republic of the Philippines.46
92) The Public Respondents effectively preempted and
prevented the Regional Trial Court Olongapo City from exercising its
judicial power.
93) Hence, the 01 December 2015 MOA entered into by the
BuCor, and by the GHQ and the HSC both of the AFP, with respect to
the confinement and/or detention of the convicted Respondent
L/Cpl. Pemberton, is unconstitutional for being an executive
encroachment on the power and authority of the Judicial Department
under the 1987 Constitution.
Page 59-60, Decision dated November 18, 2015, People of the Philippines vs. L/Cpl Joseph Scott
Pemberton, Crim. Case No. 865-14
46
27
VII. THE 01 DECEMBER 2015 MOA IS
ULTRA VIRES AND CONSEQUENTLY,
UNCONSTITUTIONAL,
AS
THE
BUREAU OF CORRECTION HAS NO
STATUTORY
AUTHORITY
TO
DESIGNATE ANOTHER PLACE OF
DETENTION
FOR
“NATIONAL
PRISONERS,” APART FROM THE NEW
BILIBID
PRISON
AND
OTHER
NATIONAL PENAL INSTITUTIONS
PROVIDED UNDER OCA CIRCULAR
NO. 63-97 AND UNDER RELEVANT
LAWS.
--------------------------------------------------------94) The 01 December 2015 MOA entered into by the BuCor,
and by the GHQ and HSC both of the AFP, with respect to the
confinement and/or detention of the convicted Respondent L/Cpl.
Pemberton, is ultra vires and, therefore, unconstitutional as the
Bureau of Correction has no statutory power to designate another
place of detention for national prisoners, apart from the New Bilibid
Prison and other national penal institutions as provided under OCA
Circular No. 63-97 and under relevant laws
95) In fact, a perusal of RA 10575, or the “The Bureau of
Corrections Act of 2013,”reveals that the BuCor has not been given
any statutory authority to designate another place of detention for
national prisoners, apart from the New Bilibid Prison and other
national penal institutions as provided under OCA Circular
No. 63-97 and under relevant laws.
96) Further, a perusal of RA 10575, or the “The Bureau of
Corrections Act of 2013,”reveals that the BuCor has not been given
any statutory authority to designate or to classify another place as an
extension of a detention center for national prisoners.
97) Hence, since the BuCor entered into the 01 December 2015
MOA with the GHQ and HSC both of the AFP, with no statutory
authority whatsoever, the said 01 December 2015 MOA was ultra
vires.
98) Consequently, as the essence of constitutional government
is limited government, meaning that any governmental department
or agencies are limited in their authority by law, hence, the
28
01 December 2015 MOA is unconstitutional for being entered into
outside of the legally mandated authority of the BuCor.
99) Therefore, due to the above legal grounds, Petitioners
respectfully pray that the Honorable Court declare the 01 December
2015 MOA as unconstitutional, and also grant the injunctive and
consequential reliefs prayed for below.
PRAYER
WHEREFORE, premises considered, Petitioners respectfully
pray that:
1.
Pending the resolution of this Petition, a Temporary
Restraining Order and/or Writ of Preliminary Prohibitory Injunction
be IMMEDIATELY ISSUED, prohibiting Public Respondents from
implementing the 01 December 2015 Memorandum of Agreement
(MOA) between the Bureau of Corrections, and the General
Headquarters and the Headquarters Service Command both of the
Armed Forces of the Philippines, with respect to the confinement
and/or detention of convicted Respondent L/Cpl. Joseph Scott
Pemberton.
2.
Further, pending the resolution of this Petition, a
Preliminary Mandatory Injunction be IMMEDIATELY ISSUED
ordering the Public Respondents, and anyone acting under their
authority, stead, or behalf, to remit or transfer Respondent L/Cpl.
Joseph Scott Pemberton to the New Bilibid Prison.
3.
Upon due hearing, the instant Petition be GRANTED:
(a)
DECLARING AS UNCONSTITUTIONAL the
01 December 2015 Memorandum of Agreement
(MOA) between the Bureau of Corrections, and the
General Headquarters and the Headquarters
Service Command both of the Armed Forces of the
Philippines, with respect to the confinement
and/or detention of convicted Respondent L/Cpl.
Joseph Scott Pemberton;
29
(b)
PERMANENTLY PROHIBITING all the Public
Respondents from implementing the 01 December
2015 Memorandum of Agreement (MOA) between
the Bureau of Corrections, and the General
Headquarters and the Headquarters Service
Command both of the Armed Forces of the
Philippines, with respect to the confinement
and/or detention of convicted Respondent L/Cpl.
Joseph Scott Pemberton; and
(c)
Consequently, ORDERING THE IMMEDIATE
DETENTION of Respondent L/Cpl. Joseph Scott
Pemberton at the New Bilibid Prison in
Muntinlupa City.
Other just and equitable reliefs under the premises are likewise
prayed for.
Makati City for the City of Manila, 16 December 2015.
ROQUE & BUTUYAN LAW OFFICES
Counsel for Petitioners
1904 Antel Corporate Center
121 Valero Street, Salcedo Village
Makati City
Email: mail@roquebutuyan.com
Tel. Nos. 887-4445/887-3894;
Fax No: 887-3893
30
By:
H. HARRY L. ROQUE, JR.
Roll No. 36976
PTR No. 4781976|Jan 30, 2015|Makati
IBP No. 01749|Lifetime
MCLE Exemption No. IV-000513
(issued on Feb 15, 2013)
ROMEL R. BAGARES
Roll No. 49518
PTR No. 4781972 / 1-30-2015 / Makati
IBP No. 993980 /1-30-2015 / So. Cotabato
MCLE Compliance No.IV-0011822
(issued on Jan. 25, 2013)
GILBERT T. ANDRES
Roll No. 56911
PTR No.4781973/Jan. 30, 2015/ Makati
IBP No. 993979/Jan. 30, 2015/Negros Occ.
MCLE Compliance No. IV-0011824
(issued on Jan. 25, 2013)
Copy furnished:
THE OFFICE OF THE SOLICITOR GENERAL
Counsel for Public Respondents
134 Amorsolo Street, Legaspi Village,
Makati City
SEC. VOLTAIRE T. GAZMIN
DEPARTMENT OF NATIONAL DEFENSE
DND Building, Segundo Ave.
Camp General Emilio Aguinaldo Quezon City.
SEC. ALFREDO BENJAMIN S. CAGUIOA
DEPARTMENT OF JUSTICE
Padre Faura, City of Manila
B. GEN. VICENTE M. YORDAN
GENERAL HEADQUARTERS and/or
HEADQUARTERS SERVICE COMMAND
ARMED FORCES OF THE PHILIPPINES
Camp Emilio Aguinaldo, Quezon City
31
DIR. GEN. RICARDO RAINIER CRUZ III
BUREAU OF CORRECTIONS
Bureau of Corrections, New Bilibid Prison, Muntinlupa City
L/CPL. JOSEPH SCOTT PEMBERTON
Expeditionary Holding Facility
Mutual Defense Board-Security Engagement Board Compound
Camp Emilio Aguinaldo, Quezon City
EXPLANATION
For lack of messengerial services and due to the distance
between the parties, this Petition is being served on all the parties by
registered mail in accordance with the Rules of Court.
GILBERT T. ANDRES
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