Grave
abuse of discretion??? almost 700k views!!!
I
originally planned to simply let this Junjun Binay gate incident pass
without writing anything about it. I thought that much has already
been said on the issue. Much discussion on the issue, most focusing
Politicians and their sense of entitlement—and that politicians
should set an example to the rest of the Filipinos.
On
December 20, 2013, Blogger benign0 wrote that gated communities
should not even be preventing people from coming in and out of their
premises.
On
December 27, 2013, Nicole Curato wrote on Rappler wrote that gated
communities tend to increase the social divide and inequality in
cities which should ideally be “Democratic Spaces”.
Thus,
this incident has stuck. It remains provocative. Thus, I would like
to contribute another angle, one that I feel has been left out: The
property rights angle, public versus private.
Who
exercises the rights of ownership in Dasmariñas
Village?
Dasmariñas
Village is a posh subdivision, it is privately owned. It is run by
the DasmariñasVillage Association (DVA) a corporation whose membership is composed
of real estate owners within the subdivision. I
presume that while the individual lots are owned by individual
owners, the roads, walls and common spaces within the Village are
owned by the DVA. Essentially, the Village is just one big piece of
land owned by a corporation.
Under
the law, a corporation has juridical personality much like that of an
actual/natural person. The corporation acts through its board which
promulgated certain rules and regulations. The rule that one may not
exit a certain gate at a certain time is one such rule.
The
letter of commendation says it all: “Dasmariñas
village is a private subdivision”
In
this incident, it appears that the association has ratified the
action of its Security Guards as its own. There can be no doubt and
one can say that Dasmariñas
Village had every intention to exclude any and all persons from using
the passageway beginning 10PM. The acts of the Guards were the act of
the Village.
Did the Mayor have the
right to pass through the gate contrary to the village rules?
The Mayor has two aspects.
The public and the private aspect. When he dons the visage of a
public officer, he carries with him all the rights appurtenant to his
office which include certain immunities and rights and privileges.
For example, a public person [such as the Mayor in this case] if he
takes advantage of his position in the commission of a crime, the
courts will take such circumstance against him and makie his
punishment stronger [Art. 14 (1) , Revised Penal Code]. The other
side of the coin is that if a person using force or intimidation
tries to prevent a public officer from doing his duty, he may be
guilty of a crime called Direct Assault which carries a penalty of up
to 6 years in prison (max) whereas if you tried the same stunt with a
private person or a public officer who is acting in a private
capacity, you may only be punished with up to 6 months in prison
(max) [Art 148, 286, Revised Penal Code].
That night of the incident
however, I want to claim that the Mayor was acting in a private
capacity. This makes him an ordinary citizen. Why do I say this?
He was attending what I presume to be a private party for the
purpose of merriment, he did not appear to be doing anything
official or important. He did not appear to be on his way to an
important engagement or official business. There was no grave
necessity for him to insist on that particular route. He has no
right appurtenant to his duties.
For the purposes of this
article, which is also my honest opinion, I believe that Junjun Binay
was having a power trip. His exercise of authority was unwarranted,
expecially since he was obviously acting in a private capacity. His
reaction was clearly antagonistic as seen in the CCTV footage and his
remedy was extraordinary and unreasonable—to summarily order theguard's arrest.
Did the village
association have a right to enforce its rules within its property?
Yes. Since the
property where the incident took place was private property,
therefore pursuant to his right to possess (jus posidendi)
and his right to exclude (jus vindicandi)
as codified in Art. 429 of the New Civil Code which states:
The owner or lawful
possessor of a thing has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose, he may use such
force as may be reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his property.
The Village association
clearly made its intention to exercise its jus posidendi and
jus vindicandi in
implementing the rule that no one may use the gate past a certain
hour. The reason for its exercise is reasonable—for the security
of Village homeowners; its means were reasonable—a simple metal
gate pole and the posting of security personnel.
Courtesy owed to a public
officer or public figure does not trump jus posidendi and
jus vindicandi. There
is no courtesy involved in Art. 429 of the New Civil Code. Only
necessity and right to life will trump these property rights.
Nowhere in the circumstances of the occurrence does it show that it
was necessary for the good Mayor to pick that particular route.
Thus
Binay could not just waltz around the village like he owns the
place.
Conclusion
Conclusion
What
I am saying is that our Constitution allows us to own property. It
allows us to form corporations and other associations, such entities
has the power to own property and to exercise the rights of
ownership. The Dasmariñas
Village Association clearly ratified its act of exercising its rights
of ownership when it gave its letters of commendation to the Security
Guards. Thus, the Village and its Agents (the guards) were clearly
within their rights during the altercation.
Binay
was in the wrong. He was clearly showing blurred judgement,
misapprehension of facts and law. His was very shameless behavior.
Post
Script
The blogger benign0 and Nicole Curato are correct in pointing out
that there is a socio-political aspect in having gated communities in
the Philippines. I don't see anything particularly wrong or illegal
with their existence.
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