Category: Rules of Court

Criminal law, Rules of Court, The President

The weight of a hundred years

        When Mike Arroyo filed a complaint in the ethics committee against Alan Cayetano, i had thought it would follow a basic procedure where he doesn’t just submit a piece of paper but he appears and swears to the truthfulness of the contents of his complaint then inform the committee and the respondent, the nature and cause of the complaint, etc. then the respondent would be allowed  to confront and cross-examine the witnesses against him, in this case, the complainant. Maybe the rules of procedure in congress do not require it, but I’ve attended congressional committee hearings and the witnesses are required to state what they saw or to present the  evidence they have, and then, they can be asked questions by the congressmen. I thought that was a basic procedure. Not so in this case. It’s Mike Arroyo, and he cannot be subjected to clarificatory questions. He threw his weight around, and no one was allowed to ask him anything.        

         Mike Arroyo’s lawyers keep saying that when you look at the provision in the Revised Penal Code, the provision itself does not say much about privileged communication (as a defense in libel), and therefore they assert a strict application of the provision, which presumes malice. Here’s the provision, I copied and pasted from http://www.chanrobles.com so I won’t have to type:        

                Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.              

        

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

         Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted. Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.          In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.                        If you look closely at these provisions of the Revised Penal Code, you would say to yourself “all of those categories of privileged communication: public officials ( there are five categories) and public figures, and all of those categories of public figures (there are nine categories), they’re not there as defenses in the provisions of the Revised Penal Code, the public figure doctrine and the public interest doctrine, true and absence of malice, true and with malice, false and absence of malice, etc. and false and with reckless disregard; those aren’t there in the Revised Penal Code. Therefore….they’re all liable!!!! All those who reported about the cheating in the elections and pointed to FG, they’re all liable!!!”                          Wrong. And it’s not me, it’s the Supreme Court who said it. Quoting the Supreme Court in the leading case of Borjal vs. Court of Appeals, summarizing one hundred years of jurisprudence starting in U.S. vs. Canete and U.S. vs. Bustos (1918):            

   Quote: “Indisputably, the ….questioned writings are not within the exceptions of Art. 354 of the Revised Penal Code, for as correctly observed by the appellate court, they are not private communications nor fair and true reports without any comments or remarks. However, this does not necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest  are likewise privileged. The rule on privileged communication had its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in
United States vs. Canete, this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guarantee of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels. Xxx                           “ This closely adheres to the democratic theory of free speech as essential to collective self-determination and eschews the strictly libertarian view that it is protective solely of self-expression xxx It is therefore clear that the restrictive interpretation vested by the Court of Appeals on the penal provision exempting from liability only private communications and fair and true report of without comments or remarks defeats rather than promotes the objective rule on privileged communication, sadly contriving as it does to suppress the healthy efflorescence of public debate and opinion xxx”  Unquote. (Underscoring supplied.)                         

           And that’s what the Supreme Court said, and had been saying. For a hundred years.   

Rules of Court

Promulgation of Subic rape case deferred to Dec. 4

Some government lawyers go through a productive life of 60 years pushing paper,  handling their share of cases of theft, shoplifting, estafa, kidnap for ransom, cellphone snatching, and it’s an idyll life,  you  have a good routine. Many lawyers go through a fruitful, easy  life,  up to 70 or 80 and not be summoned by the Supreme Court on oral arguments and that’s a charmed life, as far as I’m concerned being called by the Supreme Court is just stressful, the cathedral-like dome where you have to face 15 magistrates in robes makes you feel small, like you have to justify your insect-like existence to gods. (well, some lawyers like it, they dream of it; anyway.) For most, we just want to go about our business, not doing anybody any harm and just earning our keep. But one day, you’re sitting in your office. Shuffling folders. Or you’re walking in the corridor. You get a call. Or your assistant is waving frantically at you. And then, a case that determines how the world turns, lands on your lap.      

        Law of probabilities. The roulette turned and it landed on your number; you didn’t do anything bad or good, it just fell on your post. (the more interesting people to watch are those lawyers who are  just going about their peaceful lives, and then something happens, and cameramen are at their doorstep in the morning;  more interesting than those lawyers who seek out the media and issue media advisories of their activities and call up reporters so they could get  their 15 seconds).        

        Judge Pozon was just going about his ordinary business,  disposing the usual murder, robbery, theft, kidnapping cases. Then they raffled off a case. It landed on his number: it was a case that would determine how the world turns.       

        In your darkest, most difficult moments, when the case overwhelms you, you look at the sky and ask: “What do you want from me?! Why me? What did I do? What the hell do you want from me?!”             

             The government prosecutors however, missed it; they failed to get it; they chose to do the bidding of their boss, the DOJ secretary, over a place in history; and more important, over doing their darndest to get justice. Millions of fiscals and government prosecutors dream of prosecuting a case like this, many more lawyers probably hanker for a shot at immortality.  The door opened to them. This was the one. And they missed it. They names will not be remembered but a hundred years from now people will say, those were the lawyers who called their own, most important, star witness, a liar.                            

               If justice is done here, it is to the credit of those private lawyers and witnesses who braved the odds. (on either side; I’m suspending judgment on guilt or innocence, i didn’t attend the hearings, and it’s a criminal case, you can’t make judgments in criminal cases based on  ideology);  and to credit of the judge, if justice is done.                         

            The legal and factual issues the judge might be  going over are (maybe; I’m guessing, I didn’t go over the pleadings): 1.The difference between the Information (the rap sheet, the formal charges) and what was proved or attempted to be proven. The Information or formal charge alleges “force or intimidation, etc.” while the evidence showed “deprived of reason or otherwise unconscious”; now, that’s technical, but the accused raised it, and I heard the prosecution answer it by saying:   “when a perpetrator has sexual intercourse with someone deprived of reason or otherwise unconscious, that’s force”.                                            2. Second, whether the evidence shows that the amount of alcohol ingested, given the kind of liquor, physical build of the person and the amount of time it was ingested, showed with a degree of moral certainty, that indeed she blacked out less than an hour later.                                      3. whether the testimony of the alleged victim and its corroboration by the witnesses who saw her before and after, establishes the crime beyond all reasonable doubt.                    4.or whether the explanation of the accused cast a reasonable doubt.                              To me, the factual issues (numbers 2, 3, 4) are more important, because the “legal” issue or technical issue is resolvable either way. But that’s just me.                     

           I’m not giving an opinion on the factual issues, it’s a criminal case, you have to have personally seen the evidence to make a call. But Judge Pozon will have to give  an opinion, and it’s called the Decision.                     

             I don’t have any right to give advice to anyone. So…this is just one small piece of consolation or encouragement or sympathy: When you realize that the case you’re handling would determine how the world turns: Shut off the world that’s breathing down your neck. Then do your job.                         

                Then, take a vacation afterwards!!  That’s my real advice.