Caught in the act

Dear Mr. Magno:

Re your column today (Philippine STAR, 11-18-2014, page 12) about the alleged misconduct/ abuse of authority complaint filed against me as Southern Leyte governor, please be informed of the following:

The arrest of the sand-and-gravel company crews was a straightforward caught in the act (or en flagrante delicto) situation calling for and requiring a warrantless arrest authorized both by the text and spirit of existing law (Sec. 5, (a) & (b), Rule 113, Rules of Criminal Procedure) .

The arrestees were caught in the act of committing a crime, namely, theft of mineral resources, defined and punished under Sec. 103 of the Mining Law (Rep. Act No. 7942); they could not even show the police and environment officers permits for the transport of the sand and gravel found in their barge that was about to depart Southern Leyte. Your column’s rather casual statement that” they were not at work” at the time in question, perhaps, may be correct in the sense that the plain fact is that they were busy committing a crime.

The fact that the express legal authorization for warrantless arrest is given not just to a duly sworn officer of the law but, indeed, even to a private person or plain citizen so he can lawfully make a citizen’s arrest, doubtless underscores not just its legal justification but also — and more importantly perhaps — the urgent need in the real world for warrantless arrests if our ordered society must meet the vital necessity of upholding the law at all times. Indeed, in this particular case, it bears stressing that the concerned government officers, both national and local, were all duly engaged in a relentless effort to enforce laws and ordinances mean to protect the environment and natural resources especially in the aftermath of the massive devastation wrought by “Ginsaugon landslide” where 1,500 persons died and the latest Super Typhoon Yolanda in the region.

There is, of course, an important difference between the private person or citizen and the sworn officer of the law as regards the observance of the said warrantless arrest provisions of the law. The private person or citizen may choose not to make such an arrest without incurring for his non-action any liability or prejudice to himself other than perhaps a purely moral one, such as some hurt to his civic sense or pride; whereas, in the case of the public officer, he can not choose non-action without making himself amenable to a charge of dereliction of duty and punishment therefor.

As regards its revenue code, the same was duly enacted under the province’s power under existing law, particularly the Local Government Code (Rep. Act No. 7160) and is not contrary to any national law including the Mining Law which in particular does not expressly amend, much less repeal, any part of the Local Government Code. In fact, no part of the said revenue code has been duly assailed in accordance with the prescribed procedure in the Local Government Code, including the filing of the prescribed protest, if any, with the Department of Justice, among other administrative remedies.

As for the governor’s authority to issue permits for sand-and-gravel extraction or mining activities, irrespective of area in hectares, the same is clearly provided for both in the province’s ordinance and the Local Government Code, and sustained by the Supreme Court in the landmark case of Province of Cagayan, etc., et al vs. Lara, G.R No. 188500, July 24, 2013.

In fact, as the alleged charge or charges against me and national and provincial officers, particularly police and environment officers for kidnapping and serious illegal detention, are nothing more than a pure fabrication meant to harass, cow, and stop us from our relentless enforcement of the laws and ordinances to protect the environment and natural resources, I am asking the Office of the President as well as the Provincial Prosecutor’s Office to dismiss outright the said alleged charge or charges as it is in violation of Section I, Rule 6 on Strategic Law Suit Against Public Participation (SLAPP) under Supreme Court Circular A.M. No. 09-6-8 (Rules of Procedure for Environmental Cases).

I am also asking the Supreme Court thru the Integrated Bar of the Philippines (IBP) to consider disbarment or disciplinary proceedings against Atty. Winsor Calamba for serious violation of the lawyer’s oath and code of ethic for promoting among other things a malicious prosecution of national and provincial officers who are simply doing their best to protect the environment and natural resources.

Our lawyers also have brought suit against Regional Trial Court (RTC) Judge Rolando L. Gonzalez with the Court of Appeals for grave abuse of authority in the case filed against the province by businessmen who were found to be conducting illegal sand-and-gravel extraction and mining operations in violation of laws and ordinances meant to protect the environment and natural resources.

Among other things, the suit assails Judge Gonzalez’ violation of the Supreme Court kalikasan rules prohibiting RTC judges from issuing injunction writs against government actions to protect the environment.

In the interest of good governance no less than journalistic integrity and fairness, I remain. — Roger G. Mercado, Provincial Governor, Southern Leyte