“x x x.
MOTION FOR RECONSIDERATION
(In Re: Hold-Departure Order/s Issued xxx)
THE ACCUSED, by counsel, respectfully state:
1. X x x.
The accused humbly seek the reconsiderationof the issuance of the HDO.
2. The motion for HDO assumed that the accused were FLIGHT RISKS.
Yet the private prosecutor offered no clear, positive and convincing evidence to prove said allegation.
An allegation or a conclusion is not evidence.
The only reasons cited in the motion are the following:
a. The accused have the means and financial capacity to leave the country at anytime;
b. The accused have business contacts and networks abroad;
c. The accused are being charged with three (3) crimes;
d. The Court should observe “all precautions to insure the proper dispensation of justice”.
The abovecited grounds will be rebutted hereinbelow.
3. Is it logical, fair and just to jump from the unproven theory/premise that “the accused have the means and the financial capacity to leave the country at anytime” to the unproven and harsh conclusion that the accused are therefore flight risks by reason thereof, and thus an HDO must be issued against them?
Where is the proof of the alleged huge and extraordinary financial capacity of the accused?
None.
The truth of the matter is that because of the unjust raid and prosecution commenced by the private complainant against the accused, the latter have been deprived of regular legitimate income as businesspersons to survive and to support their family.
They now rely on loans and merciful acts of charity from their parents and/or close relatives and friends.
Their SEC-registered business corporation (JuanCent Inc.) has been rendered paralytic, if not dead, by the raid and prosecution commenced by the private complainant, thus, leaving the accused financially unstable and helpless now.
4. Is it just and fair to jump from the neutral premise that the accused have business networks/contacts abroad to the baseless and generic conclusionthat they are thus flight risks simply by reason thereof?
Is it a legal sin and a legal infirmity for an accused in any pending case in any court to be presumed flight risks just because they have existing foreign networks/contacts as businesspersons?
It is normal and proper for businesspersons to develop and maintain local and foreign networks so that their business would survive.
Is the neutral existence of business networks/contacts, whether domestic or foreign, valid and reasonable ground per se to conclude that, by reason thereof, an accused will surely jump bail and fly abroad?
5. Is the pendency of three (3) criminal complaints, arising from one set of facts, per se and on its face a valid and fair ground to conclude that an accused shall surely escape, jump bail and fly abroad?
What happens now to the basic, universal, inherent, indivisible, human, and constitutional rights of the accused to be presumed innocentuntil proven guilty, to travel, and to equal protection of the law?
Is a mere speculative conclusion sufficient to overcome express constitutional and universal rights to be presumed innocent, to travel, and to equal protection of the law?
6. The two accused in this pending case have no notorious criminal records.
The private prosecution, in its motion, has not shown any proof that the accused are notorious ex-convicts or persons with notorious criminal records or businesspersons with pending cases elsewhere.
This is the first case ever of the accused in their whole lives as Filipino citizens.
They are law-abiding citizens, respected professionals, and model Christian parents and homeowners of their village.
7. Is the issuance of an HDO an automatic and fair precautionary measure to protect the dispensation of justice by the Court?
The private prosecutor claims that an HDO is a fair precaution. It implies that it is also a mandatory precaution.
We humbly disagree.
In fact, we believe that Courts, in general, should be fair and judicious in balancing:
(a) the human and constitutional rights of the accused to travel, to be presumed innocent, and to equal protection of the law, on one hand, and
(b) the discretionary power of the Court to limit an accused’s right to travel pendente lite.
Between (a) an express universal constitutional right and (b) a limited judicial discretion, the scale of justice should tilt in favor of the former.
This is substantive justice and natural equity.
This is the spirit of true justice.
8. For the record, the accused hereby undertake that if ever they shall travel abroad, pendente lite, for business, medical, or other urgent, emergency and legal reasons, they shall inform the Court thereon and they shall file with the Court the necessary MOTION FOR PERMIT TO TRAVELin advance of the date/s such foreign trip/s, if any, as humble and proper acts of respect and submission to the Court.
WHEREFORE, in the interest of justice, it is respectfully prayed that the Hold Departure Order (HDO) recently issued by the Court be RECALLED AND SET ASIDE.
FURTHER, that the abovementioned Undertaking of the accused (Par. 8, supra) be NOTED and given due weight.
FURTHERMORE, the accused pray for such and other reliefs as may be deemed just and equitable in the premises.
FINALLY, it is humbly prayed that the accused and the undersigned defense counsel be provided separate duplicate original copies or certified copies of the HDO, for their separate records and for purposes of a possible Rule 65 petition for the special civil action of certiorari, if warranted.
X x x.
LASERNA CUEVA-MERCADER
LAW OFFICES
X x x.”