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ON
HOUSE BILL NO. 5216

(In Substitution of House Bill Nos. 56, 171, 458 Title II-B of
House Bill No. 552 and House Bill No. 3829)

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Introduced by Honorable Golez, Gonzalez (R.), Leviste, Alvarez (H.), Liban, Dequiña, Briones, Suplico, Monfort, Loreto-Go, Abaya, Vergara, Villareal, and all the members of the Committee on Public Order and Security

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"An Act Curtailing the Illegal Activities of Racketeers and Powerful Syndicates in the Philippines "

Section 2 of the proposed House Bill provides that "It is the policy of the State to promote and maintain a sound economy anchored on legitimate business enterprises and transactions and fueled by honest capital derived from legitimate and lawful sources and activities. It is likewise the policy of the State to curb organized and sophisticated crimes and the laundering of the proceeds of these crimes into legitimate business and activities by depriving the criminals the opportunity to enjoy the proceeds of their wrongdoings."

          The Commission fully supports the passage of this bill consistent with the above-stated policy of the State. However, in the forfeiture proceedings, conviction of the accused in the racketeering cases must be coupled with clear and sufficient evidence that the properties about to be forfeited were, indeed, ill-gotten wealth. Section 1 Art. III of the Constitution provides, "No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied equal protection of the laws." (underline supplied)

          Absence of clear and sufficient evidence that a property of the accused was illegally obtained, the presumption is that he had acquired the same legally. Hence, the property is not subject to forfeiture, otherwise, there will be an unjust and arbitrary taking of the property which is a violation of economic rights under the 1995 Manila Declaration on Economic, Social and Cultural Rights, consistent with the International Covenant on Economic, Social and Cultural Rights to which the Philippines is a signatory.

          While the proposed bill is explicit as to the protection of the constitutional rights of the person accused under Section 3 of this Act, a clear warning and guidelines must be properly observed to safeguard these rights. In many previous cases as observed by the Commission, law enforcers tends to violate the constitutional rights of the accused in their extreme eagerness to implement the law, apprehend the violators or to solve the case.

          Section 3 of this Act must, therefore, specify the extent of protection of the Constitutional rights of the accused.

          Aside from the constitutional rights of the accused which the proposed bill intends to protect, we are likewise taking note of the rights to privacy of communication under Section 3, Article III of the Constitution which states,

"1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

2. Any evidence obtained in violation of this xxx shall be inadmissible for any purpose in any proceeding."

          In obtaining sufficient evidence that will warrant the sequestration of illegally sourced wealth or property, law enforcers are tempted to intercept communication. Republic Act No. 4200 or "An Act To Prohibit And Penalize Wire Tapping And Other Related Violations Of The Privacy Of Communications, And For Other Purposes" is in issue.

          The definition of "sequestration" under Section 4(g) of this Act must provide enough safeguard to implement R.A. 4200.

          Consistent with our previous position in opposing the passage of the so-called "Anti-Terrorism Act of 1995" which sought to amend Section 3 of RA 4200, in order to allow law enforcers more freedom to tap telephone or radio conversations of suspected terrorists, we said:

"It runs counter to the democratic principles embodied in the Constitution, particularly, in the context of freedom of privacy of the people. Considering the unsatisfactory performance of our law enforcers today, this additional power will do a lot of injury to our people's civil liberties."

          Another point in issue is the possible violation of Section 2 of RA 1405 which provides that bank deposits are "absolutely confidential xxx, and therefore, may not be examined, inquired or looked into 'except in those cases enumerated therein'."

          It must be stressed that all the cases enumerated as exceptions to the general rule against the disclosure of bank deposits as provided under Sec. 3 of RA 1405 are cases pendente lite , except the two exceptions as added under P.D. 1972, to wit: (1) a general examination of a bank authorized by the Monetary Board xxx to establish such fraud or irregularity; and (2) when re-examination is made by an independent auditor hired by the bank to conduct its regular audit.

          There must be no examination of bank deposits to obtain information prior to the filing of the case in court for purposes of sequestration and only the court can order examination of any bank deposits.

          Hence, the process of sequestration, particularly, in obtaining information into bank deposits, Section 4(g) must specify the safeguards pursuant to the provisions of RA 1405.

          As to the imposition of the death penalty, we pose this question: does the State have the right to take away the life of a human being through the death penalty? We have consistently argued that it does not.

          "Retribution can be more rationally satisfied by life imprisonment. It is worth mentioning that all scientific studies demonstrated that the crime rate was impervious to the presence or absence of the death penalty. What really mattered in discouraging crime was the certainly of apprehension and conviction. Everyone, including the most abominable of human beings, has a right to life." Besides, death penalty is too harsh a punishment for the crime of racketeering. Life imprisonment could be more appropriate.

          Section 9 of the bill authorizes the sequestration of the properties of the defendant by the Department of Justice. This power given to the Department of Justice may be abused as the

          DOJ is an executive body under control of the executive administration for political or other reasons. Moreover, there is no limit of duration of the sequestration as what happened with the Philippine Commission on Good Government which sequestered properties indefinitely. An order for the attachment or lis pendens of the properties acquiring the defendant regarding activities to be issued by the Court may be substituted for Section 9 of the Bill.

          Another objectionable provision is Section 12 which provides that the testimony of one participant or conspirator is sufficient for conviction. This said provision might run counter to the basic principle of criminal law that conviction of crime must be based on evidence established beyond reasonable doubt to be determined by the court. Section 12 of the proposed bill also destroys the principle of presumption of innocence.

          Wherefore, subject to the foregoing comments, the Commission supports the passage of this bill.

          Quezon City , 14 March 2000

ON
HOUSE BILL NO. 7091

"An Act Allowing Battered and unloved Children to Divorce their Parents/Guardians, Amending for the Purpose Republic Act Numbered Seventy Six Hundred and Ten, Otherwise Known as the "The Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act"

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           The Bill intends to amend the provisions of Section 28 of RA 7610, also known as "the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," regarding the protective custody of a child. Particularly, the proposed amendment seeks to provide an alternative custodian of a child abuse victim: either a relative of the offended child or the Department of Social Welfare and Development (DSWD). Also introduced as amendment is the provision on the prior approval of the court as to the return of custody of the child victim to the offending parent(s) or guardian.

          By proposing that a relative of the child victim be made as an alternative custodian, the proponent of the House Bill No. 7091 recognizes the basic right of a child contained in The Declaration of Rights of the Child which was proclaimed by the UN General Assembly Resolution No. 1386 (XIV) of November 20, 1959 . Principle Two (2) thereof states:

"The child shall enjoy special protection and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration."

           With this proposal the court is given a choice as to whom it will award the custody of a child victim. To our mind, the alternative custodian (relative) is necessary if our only concern is the best interest of the child. This is because the existing law on the matter that provides a mandatory custody of the child to the DSWD may not serve the purpose of the law. Instead, it may be detrimental to the physical and mental well being of the child who is forced to join a social institution. He will be exposed to a different kind of environment to which he may have difficulty coping with.

          On the other hand, if the child is under the care of nearest and concerned relative, he need not adjust or if there is, he needs less adjustment to his environment. The child will live a normal life as if he is with his family considering that the people around are not new for him.

          Considering the foregoing, and mandate of this Commission of upholding the International Instruments affecting the rights of the child, we suggest that the sentence stated below be inserted as a guide for the court in awarding the custody of the child, to wit:

"The best interests of the child shall be the paramount consideration."

          As to the other proposal on prior approval of the court on the return of custody to the offending parent(s) or guardian, such provision may be omitted because any act contrary to the decision or order of the court constitutes an indirect contempt of court, which is punishable after trial.

          Foregoing considered, this Commission recommends the immediate passage of the proposed House Bill No. 7091 with the suggestion stated above.

          Quezon City , 2 March 2000