Republic of the Philippines
DEPARTMENT OF JUSTICE
CITY PROSECUTION OFFICE
Old City Hall
xxx City, Province
xxx CITY POLICE STATION, II-03-INV-020G-xxx
Complainant,
FOR
- versus -
VIOLATION OF RA
R xxxx, 11332
Jxxxx
Respondents.
MOTION FOR RECONSIDERATON
THE RESPONDENTS with the assistance of the Undersigned Counsel, respectfully state that:
1. The subject matter of this Motion for Reconsideration is the Resolution dated 15 September 2020 (Annex “A”), issued by the Investigating Assistant City Prosecutor xxx and approved by Deputy City Prosecutor xxx;
2. The aforesaid Resolution was received by the Respondents on 25 September 2020 much to their surprise because they were not able to receive the Subpoena dated July 25, 2020 (Annex “B”) and that the Resolution itself mentioned that the Subpoena was returned to sender;
3. Remarkable is the irregularity in the service of the documents since the Resolution was successfully delivered to the addresses of the respondents while the Subpoena was marked as “Return to Sender;”
4. In light of the national pandemic, the courier should have given more consideration in the successful delivery of the Subpoena given the significance of the document to respect the constitutionally protected right of the Respondents to due process;
5. The Respondents had to personally visit the Office of the City Prosecutor to obtain their personal copies of the Subpoena;
6. In this instance, it is apparent that the Respondents’ were not accorded due process since the Resolution was issued notwithstanding the absence of Respondents’ Counter-Affidavits and no justifiable reason as to why the courier was unable to deliver the Subpoena;
7. Under Section 18 of the National Prosecution Service Manual, the Respondents have ten (10) days from receipt of the Subpoena and Complaint to submit their Counter-Affidavits with supporting documents;
8. However, after reading the Subpoena and the accompanying documents, the Respondents find that they cannot appropriately formulate a proper Counter-Affidavit since there was no corresponding Complaint and only included the following: (a) Joint Affidavit of Arrest dated 30 June 2020 (Annex “C”); and (b) Police Blotter dated 27 June 2020 (Annex “D”);
9. Section 6 and 7 of the National Prosecution Service Manual provides:
Sec. 6. Sufficiency of complaint or information. – A complaint or information shall be considered sufficient if it states:
a) the name of the accused;
b) the designation of the offense committed;
c) the act or omission complained of;
d) the name of the offended party;
e) the approximate time of the commission of the offense; and
f) the place where the offense was committed.
Sec. 7. Other essential matters to be alleged in complaint or information. – The following shall also be alleged in a complaint or information:
a) every essential element of the offense;
b) the criminal intent of the accused and its relation to the act or omission complained of;
10. To afford the Respondents their opportunity to answer the allegations against them, the Complaint must sufficiently point out the elements of the crime alleged to have been committed;
11. Since there was no proper Complaint attached to the Resolution, an appropriate answer is an impossibility as the respondents have no sufficient information from the absent Complaint to counter the allegations made against them;
12.Gathering from the resolution and the captions of the Resolution and the attached documents, the Respondents are deemed to be charged with Violation of RA 11332, also known as the Mandatory Reporting of Notifiable Diseases and Health Events of Public Concerns Act, particularly Section 9 (e) thereof, which states:
Section 9. Prohibited Acts. – The following shall be prohibited under this Act: …
(e) Non-cooperation of the person or entities identified as having the notifiable disease, or affected by the health event of public concern.
13.However, RA 11332 itself does not define what acts constitute non-cooperation nor is it specified who are the persons or entities that are liable to commit the prohibitions neither does the affidavit of arrest specify the acts constituting the elements of a non-cooperative act in the above cited provision.
14.The Joint Affidavit of Arrest submitted by the police officers stated that:
“… we saw a persons (sic) boarded with in a motorcycle Honda Beat without a plate number along Brgy xxx, xxx City and from there we approached and talked to him (sic)”
15.The Joint Affidavit did not state that the Respondents were driving in convoy and riding solo, each driving their own respective motorcycles, when they were apprehended;
16.The riding of a motorcycle at night cannot be said to be within the purview of the non-cooperative acts intended under RA 11332, since the title of the law, and therefore also its subject, is the “Mandatory Reporting of Notifiable Diseases and Health Events of Public Concerns;”
17.Aside from the alleged violation of Section 9 (e) of RA 11332, the questioned Resolution also cites Executive Order No. 29 which banned backriding on motorcycles;
18.Attached heretofore are the Affidavits of Undertaking executed by respondent J (Annex “E”) and Ricardo Asido y Articulo (Annex “F”), brother of respondent R dated 27 June 2020;
19.These Affidavits were executed to enable Respondent J (Honda Beat scooter) and Respondent R (Honda XRM motorcycle) to claim the motorcycles they were riding on, om the night of their arrest, from the impounding lot of the Tuguegarao City Police Station;
20.At the time of apprehension, Respondent J was on board a Honda Beat scooter, while Respondent R was aboard a Honda XRM; and that both have their respective plate numbers and conduction plates attached to their motorcycles;
21. Going back to the Joint Affidavit of Arrest, the police officers also claimed that they approached and talked to Respondent J, however, this interview seemed only perfunctory as the arresting officers wrote in the affidavit that they made the assumption that “they went out without valid reason that prompted us to apprehend them (sic) rather hastily;”
22.Had the officers properly inquired as to the purpose of the Respondents, they would have found out that the Respondents went out of their residences sometime after 8:00 in the evening to look for a drugstore that might still be open in order to purchase the maintenance medicine for the father of respondent xxx who was out of medicine and suffering from hypertension - an acceptable exemption expressly provided in Executive Order No. 55, Series of 2020 as a medical emergency.
23.Further, the two arresting officers might have also found out that the Respondents were at that time in a hurry on their way back home, being aware of the curfew hours and that their main route going back to their houses was Caritan Highway, as Respondent xxx was a resident of Sxxx and Respondent xxx was a resident of xxx;
24.Since the respondents were both on their way home they were not wandering aimlessly and were perfectly aware of the curfew hours, wanting to get home before the onset of curfew;
25.In the Affidavit of Undertaking executed by Respondent, it can be gleaned that the police officers only started to talk to them around 10:15 in the evening of 26 June 2020, only a few minutes after the onset of curfew hours;
26.Before they were asked by the police officers to park their motorcycles on the side of the road, Respondents noticed that the police officers were already talking to other persons whom they have also seemingly apprehended, making the time indicated in the report that it was already 11:20 pm when they were arrested, not entirely reliable;
27.The joint affidavit of arrest also contain a fatal flaw as the same has not been certified by the subscribing officer that “he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits” as required by Section 9 of the National Prosecution Service Manual and likewise with Section 3, Rule 112 of the Revised Rules for Criminal Procedure;
28.In the case of Oporto v. Monserate (AM No. MTJ-96-1109; 16 April 2001), it was held that:
“… the requirement set forth under Section 3, Rule 112 of the Revised Rules of Criminal Procedure is mandatory. This is so because the rules on preliminary investigation does not require a confrontation between the parties. Preliminary investigation is ordinarily conducted through submission of affidavits and supporting documents, through the exchange of pleadings. Thus it can be inferred that the rationale for requiring the affidavits of witnesses to be sworn to before a competent officer so as to ensure that the affidavits supporting the factual allegations in the Complaint have been sworn before a competent officer and that the affiant has signed the same in the former’s presence declaring on oath the truth of the statement made considering that this becomes part of the bases in finding probable guilt against the respondent.”
In the attached Joint Affidavit of Arrest, the required certification cannot be found.
29. Under Section 56 of the National Prosecution Service Manual, the respondents are given a period of ten (10) days within which they may file a Motion for reconsideration. Notable is the 2nd paragraph of Section 56, which states:
“A motion for reconsideration is still part of the due process in the preliminary investigation. The denial thereof is a reversible error as it constitutes a deprivation of the respondent’s right to a full preliminary investigation preparatory to the filing of the information against him. The court therefore may not proceed with the arraignment and trial pending resolution of the motion for reconsideration.”
Since Section 18 of the National Prosecution Service Manual states that only a Counter-Affidavit by the Respondent can dispute or put at issue the allegations in the Complaint, then its submission should also be indispensable in order to confer to the respondents’ their right to a full preliminary investigation;
30. WHEREFORE, premises considered and in the interest of justice, the Respondents respectfully pray that the questioned Resolution dated 15 September 2020, be reconsidered and set aside; or at the very least, that this Honorable Office afford the Respondents’ right to due process by allowing them to submit their Counter-Affidavits.
31. The Respondents also respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.
Signed this 1st day of October, 2020 in Tuguegarao City, Cagayan.
By:
ATTY. xxx
IBP xxx
PTR ccc
SC Roll of Attorneys No. xxx
MCLE Certificate to follow.
Attended xxx, UP Law Center
Cc:
Tuguegarao City Police Station
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