Category: Criminal law

Criminal law, Rules of Court

cold-blooded

gloria.jpg All photos from http://www.ops.gov.ph       

        She had every perfect excuse to defer the signing of the supply contract of the ZTE deal  and to move the trip to Boao, China last April 21, 2007 – her husband lay at the ICU on the brink between life and death, given a 50-50 chance of living thru  the heart bypass.   It’s called  fortuitous  event or force majeure or what civil law jurists call “an act of God”; it was a perfect excuse to defer the signing, yet she went on and boarded the plane knowing that the contract was tainted with irregularity.       

          When the whole world knew that her husband might die and even her own “enemies” and critics were so concerned that they called for a ceasefire on the “accusations” of money-laundering, smuggling, and plunder against FG, the President without hesitation donned her shoes and led her entourage that night to China.      

         Intent, the Supreme Court has held in many criminal cases, is determined not from the pronouncement  or words of a party but from their overt acts; because, as the Supreme Court had stated time and again, we cannot read the minds of an accused, we resolve the presence or absence of criminal intent based on contemporaneous acts of the accused.       

     [Parenthetically, to illustrate (you don’t have to read this part, it’s parenthetical) The classic example  is the case of the husband who killed his wife; subsequently on a charge of  parricide/murder, the husband’s defense was that he caught his wife in bed with her paramour and in a “fit of blind rage” shot her, so the penalty should only be destierro and not  the capital penalty for parricide/murder; the evidence however showed that after he caught his wife in the act, he went home and then for a few hours saw a friend and played chess with him, for several hours, and it was after this that he got his gun and went back and shot his wife. The Supreme Court held that the acts of the accused in taking his time and even playing chess, a “game of stratagem”, for a couple of hours, showed that he had deliberated upon his moves and decision to kill his wife and only after he had thought about it did he proceed to go back and kill  her.] Okay, i know that example is  parricide/murder but it’s one of the classic cases used to illustrate how the Supreme Court determines intent; and i’m writing this off-the-cuff-after-work-without-books.         

         Here, the intent of the President would have to be determined based on her overt acts, or those that could be seen and perceived, and not on what she says; and here she gave the explanation  ten months after the fact! After witnesses and their families have been put at risk and are now in danger, after multitudes day after day clamour for her to resign, now she tells us: “Nung una may isinumbong sa akin kaya naghahanap na ako ng paraan para makansela, tapos sinumbong sa akin  the night before signing of the supply contract, that was one of many signings. (Pero) paano mo i-cancel the night before, may ibang bansa kang kausap.”  (“In one instance i was told about it so i had started to think of ways of how to cancel it, then I was told the night before  signing of the supply contract, that was one of many signings. (But) how do you cancel the night before, you’ve already agreed with a foreign country?”).

       This is the video version of the DZRH interview where the first “sumbong” clause (“i  was  told…”) of  her sentence was not edited out. In other words, in that sentence, she talked of  two “sumbong”  (“i was told..”) instances; in other words, it wasn’t just on the eve of the signing – she was told once even earlier than the eve of the signing. (Look at the uncut video again.)     

        Some PR adviser of hers probably wanted to pre-empt or anticipate whatever other “explosive”  testimonies would be revealed in the  week, and thought that making her say “I was told…. but couldn’t cancel” portrayed her as a passive signatory and not the central player in the payment of commissions and kickbacks. She was just told; and to further make her look innocent, added that for diplomatic reasons she couldn’t cancel it on the eve of  the signing.     

           I’ll leave the politicians to tell you what they’re gonna do with this pronouncement of the President.  This blog already broke  this story as early as Saturday morning when i read the news  in www.gmanews.tv       

        Lemme see the score. That’s the fourth corroborating evidence of the testimony of Jun Lozada that the ZTE contract negotiations were tainted with big-time, dizzying commissions.     

          In the legal arena, as lawyers go, the field that lawyers have to move in is  really narrow and the outcome in that arena is determined by the reliability of government insitutions; the best and most urgent  that could be done  is to file an “Urgent Motion to Lift TRO based on the President’s Extrajudicial Televised Admission of Irregularity”  in the Supreme Court (in the petition that Romy Neri filed) or an urgent Supplement  to the MR if one had been filed earlier.      

          As for intent, the overt acts of the President in gearing up that day, with full knowledge of the irregularity of the contract, twice informed of the anomaly, getting dressed, going over the contracts, her wardrobe, her speech, going on the plane trip while her husband lay almost dying showed not hesitation but persistence, insistence, single-mindedness, determination, deliberation, and even cold-bloodedness.

       (it’s a good thing FG was able to surmount the difficulties of the surgery; it is unimaginable that  FG, then unable to speak reminded her with hand signals to go to China. The final decision to approve and sign a contract tainted with $130 million in commissions wasn’t his, it was hers; the entire scheme, conjugal. )   

Criminal law, Rules of Court

the confusely theorized search

edwardhopper.jpg

Edward Hopper. A Room in New York. National Gallery of Art. Right-clicked from www.nga.gov/exhibitions/2007 searched thru www.artcyclopedia.com

    [Update: As  of 4:11 pm or after i wrote the following post, NBI denied it conducted a search and said only one NBI agent was sent to the former office of ZTE deal witness Rodolfo “Jun” Lozada to deliver a letter asking for his papers such as his 201 file (– from ABS-CBN News Channel.) In any case, no independent determination has been made regarding the news report that a raid was conducted.]          

       The  only way that the warrantless search (“raid”) of the former office of ZTE deal witness Rodolfo “Jun” Lozada  conducted by the operatives of the National Bureau of Investigation could be legally justified is: if it were consensual, i.e., the lawful owners/ possessors/ occupants consented to the warrantless search. Of course, since he is no longer the president and CEO of Philippine Forest Corporation, someone else (an OIC or the corporate vice president or the building administrator or whoever is authorized by the articles of incorporation to succeed if no one has yet been appointed) has the authority to give that consent. If that consent was not given on the spot when the warrantless search was conducted, it would be fairly easy to “convince” that person in charge to say that the search was consensual (or to ratify it; or to not file any complaints against the NBI).   

        The rules require a warrant in case of a search by law-enforcement authorities; exceptions are: consensual searches, checkpoints (Valmonte vs. De Villa with three dissents), border searches (ports of entry, etc.); “stop-and-frisk” on probable cause; and search incident to a lawful arrest.      

       The DOJ Secretary said in an interview (www.abs-cbnnews.com) that he did not order the NBI to conduct such a warrantless search, but, he said, in any case , no warrant was necessary in that search because, he said, “a crime was being committed” (presumably in the office seached?) and therefore the law-enforcement authorities can  conduct a warrantless search; and that it was a public office and therefore no warrant was required.       

          What crime was being committed inside when the NBI broke into the premises and entered and searched the papers and effects? What crime?     

      If indeed a crime was being committed inside (what crime) who are the  malefactors?  Or those who are committing the crime. Who were committing the crime inside?  The employees? The officer-in-charge? Or, is it a crime that has no human malefactors? The crime was happening by itself without any malefactors? Geez, help me out here, maybe there’s such a thing: It was a crime that was happening by itself without any malefactors. The objects were moving by themselves and causing a crime to happen, don’t you get it?      

         Or maybe,  since what was searched was Mr. Lozada’s papers and effects (the DOJ secretary presumed so),  the DOJ secretary theorized that a crime was happening inside  because,  he thinks that Mr. Lozada was in the process of committing a crime when his papers and effects continue to be inside the building. What crime was that? The table drawers’s illegal possession of the papers and effects of Mr. Lozada. Yes, that’s the crime. Except that i don’t know whether the table  and drawers  were mirandized  before they/ these were arrested then searched.     

       Even the search for contrabands  (or drugs or illegally possessed guns) require a search warrant  UNLESS the contraband or drugs or gun are in plain view, under the “plain-view doctrine” , or they are on the surface and readily seen without a search.    

           Presumably, the papers and effects are not contraband; maybe the DOJ thinks they are evidence of something; but evidence of something, especially papers and effects, does not  a contraband  make (unless maybe if they were counterfeit money, but you still need a warrant for that unless as i said they were in plain view.)     

        (To summarize: I think the DOJ secretary is confusing “search incident to a lawful arrest”; and  breaking enclosures to effect a valid arrest (you have to make the lawful arrest before  the  search); and  the “plain-view doctrine.” I could just have said that in the beginning, you know,  instead of following through his convoluted logic and confused procedure by writing hyperboles  but i thought it was funny.)     

         What is probably hilarious is the DOJ secretary shooting his mouth off, again, for the nth time, without checking how in fact  the raid was conducted, and presuming the NBI agents went over his head, and accepting it was alright, because it involved Jun Lozada, it was  fine to bypass him; just like (if the testimony of Jun Lozada were true), when Lito Atienza last month assured Jun Lozada that he had talked to the Immigration Commissioner to just let him in without alert; the Immigration Commissioner being under the supervision and control of the DOJ secretary. But who cares  anyway if a powerful person  bypassed the DOJ secretary here and there and always went over his head?