This document is a motion for inhibition filed in a criminal case of kidnapping for ransom against multiple accused persons. The motion argues that the presiding judge should inhibit herself from the case for several reasons: (1) the judge allowed one of the accused to post bail without a hearing despite the crime being non-bailable; (2) the judge's decision contained factual inconsistencies and dismissed key testimony; and (3) the judge appeared to be prejudiced towards the defense and would likely acquit the accused. The motion cites legal precedent where a judge was found to have grossly ignored the law and requests the presiding judge be inhibited to restore faith in the courts.
This document is a motion for inhibition filed in a criminal case of kidnapping for ransom against multiple accused persons. The motion argues that the presiding judge should inhibit herself from the case for several reasons: (1) the judge allowed one of the accused to post bail without a hearing despite the crime being non-bailable; (2) the judge's decision contained factual inconsistencies and dismissed key testimony; and (3) the judge appeared to be prejudiced towards the defense and would likely acquit the accused. The motion cites legal precedent where a judge was found to have grossly ignored the law and requests the presiding judge be inhibited to restore faith in the courts.
This document is a motion for inhibition filed in a criminal case of kidnapping for ransom against multiple accused persons. The motion argues that the presiding judge should inhibit herself from the case for several reasons: (1) the judge allowed one of the accused to post bail without a hearing despite the crime being non-bailable; (2) the judge's decision contained factual inconsistencies and dismissed key testimony; and (3) the judge appeared to be prejudiced towards the defense and would likely acquit the accused. The motion cites legal precedent where a judge was found to have grossly ignored the law and requests the presiding judge be inhibited to restore faith in the courts.
Complainant, - versus - Criminal Case No. C–79537 For:Kidnapping for Ransom (Violation of Art. 267 of RPC as amended by RA 7659) PO1 MICHAEL CHRISTOFFERSON PACLEB y PAGADUAN,ET.AL., Accused. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
MOTION FOR INHIBITION
COMES NOW, the private COMPLAINANT, by and through
the undersigned private prosecutor, respectfully states:
1. That, at the outset, for the interest of Justice and fairplay,
complainant herein humbly begs for the inhibition of the Honorable Presiding Judge ROSALIA I. HIPOLITO-BUNAGAN, because he loses his confidence in the competence and impartiality of the Honorable Presiding Judge.
a. The Hon. Presiding judge allowed accused Pacleb to post
bail without any hearing despite the fact the crime imputed against him is non bailable;
b. In the decision dated June 30, 2017, the Hon. Presiding
judge says in her decision that three was no testimony from a competent that Johnny Sy “was actually and unlawfully taken”. No one saw how he was kidnapped. However, on the same decision, the Honorable Presiding judge that PO3 Archibald Tejero testified in open court that he saw the subject – named Johnny Sy- riding a motorcycle. He introduced himself as a police officer and immediately handcuffed him. He brought Johnny Sy inside the police vehicle.
c. The Hon. Presiding Judge also concluded in her decision
that the police officers who testified for the prosecution do not have personal knowledge of the commission of the offense. They merely testified on the fact of arrest. Apparently, the Hon. Presiding Judge only relied on the facts laid down by the defense, wherein it was clear in the factual findings of the prosecution that the Jun-jun Amar – recited the names of his cohorts, including their whereabouts. With this lead, the police conducted a follow-up operation in Pasong Tamo, Quezon City. On their way to this place, four armed male individuals were signted on board two motor vehicles. They were Armando Mariano, PO1 Samuel Derije, Jr., PO1 Freddie Dumaguing and Augusto Tabuno, Jr. All of them were frisked and apprehended.
d. Moreover, the Hon. Judge stated that there were no proof
that the Accused were actually restraining Johnny Sy’s liberty, but she well taken the fact that Johnny Sy was arbitrarily detained for five hours and he was only released to settle the demand of huge amount by the Accused, because he was the only one who knows the account. Complainant kept his silence, because of the fear of the lives of his family, since Accused threatened him that they will take the life of his children if he would not heed what the Accused was compelling him to do. He kept his silence for the moment and chose not to report the crime until he found the right chance for him to do. That this conveys that the crime committed was continuous and the complainant even if he was no longer in the custody of the Accused they were still restraining his liberty to act normally and extorting money from him.
e. With regards to the findings that there was no conspiracy on
the part of the Accused. It was crystal clear that the Accused had planned the offense committed as can be discerned by the circumstances, and apparently, all the Accused were common to each other and they admitted in open court that they needed money for themselves, which they led them to orchestrate the kidnapping of the complainant to divide among themselves whatever money they could get from the complainant. The guilt beyond reasonable doubt was established by the Prosecution through the candid admission of the Accused of the conspiracy.
2. Based on the foregoing observation, there was already a
prejudgment in the instant case and most likely than not, the Presiding Judge will eventually acquit the accused .
3. That, as a member of the legal profession, the
Undersigned Counsel is also aware of the mindless deliberation in the disposition of the case by the Honorable Judge, that in this instance, the Honorable Judge is not upholding the interests of justice.
4. That, the overly protracted proceedings that have
attended this case have fostered great disillusionment and cynism with regards to Complainant’s pursuit of justice.
5. That, it has been a BIG question to the Complainant on
what are the reasons why the Honorable Judge acquitted the Accused, where in fact, the Accused themselves had admitted before the Open Court and in their Judicial Affidavits their guilt of kidnapping the complainant for ransom, and all the circumstances surrounding said fact was proven by the Prosecution on an independent evidence.
6. That, not only the Accused but even the Accused’s
counsel were perplexed to know that his clients were acquitted, as they were expecting for conviction.
7. That, to scrutinize the evidence presented before the
Honorable Court, there is indeed a great anticipation of conviction, because even an ordinary person could discerned that the Judge is not impartial in issuing her Decision of the case.
8. In the case of Judge Martonino R. Marcos (Retired) vs.
Hon. Perla V. Cabrera-Faller, A.M. No. RTJ-16-2472, the Supreme Court held that there was gross ignorance of the law and in competence on the part of the Presiding Judge in displaying her careless disposition of the case, to wit:
“Although judges are generally not accountable for
erroneous judgments rendered in good faith, such defense in situations of infallible discretion adheres only within the parameters of tolerable judgment and does not apply where the basic issues are so simple and the applicable legal principle evident and basic as to be beyond permissible margins of error.
Time and again, the Court has earnestly reminded
judges to be extra prudent and circumspect in the performance of their duties. This exalted position entails a lot of responsibilities, foremost of which is proficiency in the law. They are expected to exhibit more than just a cursory acquaintance with statutes and procedural rules and to apply them properly in all good faith. When the law is sufficiently basic, a judge owes it to his office to simply apply it; anything less than that would be constitutive of gross ignorance of the law.
Moreover, judges are duty bound to render just,
correct and impartial decisions at all times in a manner free of any suspicion as to his fairness, impartiality or integrity. The records must be free from the slightest suspicion that the trial court seized upon an opportunity to either free itself from the usual burdens of presiding over a full-blown court battle or worse, to give undue advantage or favors to one of the litigants. Public confidence in the Judiciary is eroded by irresponsible or improper conduct of judges. The appearance of bias or prejudice can be as damaging to public confidence and the administration of justice as actual bias or prejudice.
Thus, Rule 1.01 of the Code of Judicial Conduct
requires a judge to be the embodimentofcompetence, integrity and independence. They are likewise mandated to be faithful to the law and to maintain professional competence at all times. A judge owes the public and the court the duty to be proficient in the law. He is expected to keep abreast of the laws and prevailing jurisprudence. Basic rules must be at the palmsoftheir hands54 for ignorance of the law by a judge can easily be the mainspring of injustice.
Unfortunately, Judge Cabrera-Faller fell short of this
basic canon. Her utter disregard of the laws and rules of procedure, to wit: the immediate archiving of Criminal Case No. 11862-13, the recall of the warrant of arrest which she claimed were issued inadvertently and the hasty dismissal of the case displayed her lack of competence and probity, and can only be considered as grave abuse of authority. All these constitute gross ignorance of the law and incompetence.”
9. For the foregoing reasons and to restore the private
complainants’ faith and confidence in the courts, may the Honorable Presiding Judge be inhibited from further trying this case based on the second paragraph of Section 1, Rule 137 of the Rules of Court, which provides:
“Section 1. Disqualification of judges.—
No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has been presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion,
disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.”
10. This move is also predicated on Article III, Section 16 of
the 1987 Constitution which entitles not only the Accused, but also herein Complainant, to a “speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.”
PRAYER
WHEREFORE, premises considered, the Private Prosecutor
respectfully prays that an Order be issued granting this motion for the Honorable Presiding Judge, ROSALIA I. HIPOLITO-BUNAGAN, to voluntarily inhibit herself from further trying the above cited case, and causing the re-raffling of the said case to another branch of the Honorable Court.
RESPECTFULLY SUBMITTED.
City of Manila for City of Caloocan, __ November 2017.
ATTY. ROMEO N. BARTOLOME
Counsel for the Private Complainant Unit 2-C, 2nd Floor, Dahlia Tower Suntrust Parkview Condominium No.181 N. Lopez St., Ermita, Manila IBP No.1006009/1-05-17/Mla. PTR No. 6003227/1-05-17/Mla. Roll No. 37717 MCLE Compliance No. V-0003125 July 25, 2014
EXPLANATION
This is to certify as an officer of the court that a copy of the
MOTION was served, not by personal service, but through registered mail due to time constraint, distance, lack of manpower and/or urgency.
ATTY. ROMEO N. BARTOLOME
NOTICE
To: PROSECUTOR RHODORA SALAZAR RUBA
Department of Justice, Padre Faura, Manila
OFFICE OF THE CITY PROSECUTOR
Hall of Justice, Caloocan City
ATTY. NESTOR IFURUNG
No.4149 Olivares Street Palanan, Makati City
ATTY. BRIAN B. PELLAZAR
Block 3 Lot 45 Pili Street Phase 1, Camella West, Molino III Bacoor, Cavite
ATTY. JOJO SORIANO VIJIGA
IBP Office, Caloocan City
Greetings.
Please take notice that Undersigned will submit the foregoing
Motion for the kind consideration and approval of the Honorable Court immediately upon receipt hereof without further arguments. ATTY. ROMEO N. BARTOLOME
Copy Furnished:
PROSECUTOR RHODORA SALAZAR RUBA
Department of Justice, Padre Faura, Manila
OFFICE OF THE CITY PROSECUTOR
Hall of Justice, Caloocan City
ATTY. NESTOR IFURUNG
No.4149 Olivares Street Palanan, Makati City
ATTY. BRIAN B. PELLAZAR
Block 3 Lot 45 Pili Street Phase 1, Camella West, Molino III Bacoor, Cavite