30 June 2011

Way out of line

She was a burst of fresh air in the otherwise dank environment of the Gloria government. From practically out of nowhere, Leila De Lima became Chair of the Commission on Human Rights as the Gloria Arroyo administration wound up its affairs. And De Lima proved many doubters, myself included, wrong when she led by example and inspiration, worked long hours, talked a great game (which she then showed by taking on all comers, including Roddy Duterte in Davao City on the Davao death squads), displayed her independence from the appointing authority and, in the process, and raised the profile of the CHR to much greater heights.

Her appointment as Justice Secretary of the then new-Aquino administration was the one that was almost unanimously and loudly applauded as the one thing that the President had gotten right. And she did not disappoint. She took on the burden of leading the investigation of why things went south during the bus-hostage crisis and showed her mettle by submitting a report which she knew would rankle the President as it recommended sanctions for a close friend and a close political ally of the President. When publicly rebuffed by her boss, she thought about quitting but chose to stay, again a move that was welcomed and applauded.

I count myself as among those who hold her in high regard, which is why this is not easy to write.

The Secretary of Justice recently held a press conference and, flanked by the NBI Director and the Head of the CIDG, announced the results of a six-month reinvestigation ordered by the President after the Supreme Court acquitted Hubert Webb et al. of the horrific crimes committed against Lauro Vizconde’s family members. In that press conference, the Secretary of Justice announced that the NBI and the police had unearthed new witnesses, whose identities were withheld, who could “shatter” the alibi of Hubert Webb (that he was in the United States at the time of the crime). Included in the “new evidence” was the magnetic reel tape that showed that there was no Hubert Webb who left the country, even as the NBI admits that a Hubert Webb (presumably the same one) had re-entered the country in 1992.

As the press conference unfolded, the question in my mind was “why?”

Why was the Secretary of Justice going all out to “shatter” the alibi of a man who had been acquitted by the Supreme Court in a press conference?

Why had the six-month reinvestigation apparently centered only on the same person again, despite his acquittal?

Why had the Secretary of Justice not advised, or even instructed, the NBI to no longer look into Webb et al. because they were no longer legitimate targets of any criminal investigation for the same offense as they were now protected by the guarantee against double jeopardy?

Why was the Secretary of Justice announcing publicly what appeared to be inconclusive details and circumstances from witnesses who were, just now, being presented?

When the Secretary of Justice allows a reinvestigation of a group of persons who are, for all intents and purposes, innocent for having been acquitted, with the full knowledge that such a reinvestigation would not lead to the filing of cases anyway, the benefit of the doubt may perhaps be allowed due to misguided zeal or even misplaced sympathy. But when the Secretary publicly announces inconclusive results with full knowledge of the injury and prejudice it will cause to the acquitted Webb (and the false hopes it will raise on the part of the bereaved Vizconde), such an act can only be described as irresponsible and perhaps even malicious.

The Secretary was expected to know fully well that the matter of Webb’s alibi was no longer an open issue as the Supreme Court had already decided on it; that she persisted on publicly “shattering” the alibi is incomprehensible. She was expected to know that double jeopardy meant also that Webb et al. could no longer be legitimate targets of any criminal investigation.

Ironically and regrettably, the Secretary, as former Chair of the CHR, was expected to be fully aware that publicly announcing the inconclusive results in a press con without Webb being able to confront the witnesses was a gross violation of his fundamental right to due process as well as his right to be informed that he was still a suspect.

That the Secretary focused on “shattering” the alibi of Webb clearly betrayed the nature of the reinvestigation. It was, for all intents and purposes, a unilateral preliminary investigation where Webb was, once again, a suspect. That is the only way to understand the pronouncement of the Secretary of Justice; any other interpretation, no matter how charitable, makes no sense.

A unilateral preliminary investigation of Webb is unprecedented as it is not allowed under the Constitution and the Rules of Court. Webb, having been acquitted, is no longer susceptible to criminal charges for the same offense under the guarantee against double jeopardy, and that immunizes him even from a “re-investigation” where he would again be considered the primary suspect. Further, the unilateral preliminary investigation used witnesses, never presented during the trial of this case, testifying on a 20-year old event without benefit of cross examination or even confrontation. What is worse is that the Secretary obviously believed the witnesses, as may be seen from her declaration that the alibi has been “shattered” even as she herself admits that the testimonies are “inconclusive” because they do not place Webb at the scene of the crime.

Expectedly, the Webb family is up in arms even as Mr. Vizconde is understandably hopeful. This, to me, is the real reason why the Secretary’s pronouncements were just so wrong.

The young Webb is entitled to pick up his life and try to regain some sense of normalcy after his acquittal. No matter what one may think of the Supreme Court decision acquitting him, he does not deserve to be “tarred and feathered” by innuendoes coming from no less than the Secretary of Justice on nationwide television and radio. The acquittal restores him to full civil rights, including the right to dignity and to be left alone. The Secretary’s pronouncement breached those rights most grievously.

The elderly Mang Lauro is entitled to hope that one day justice will be done. That those who hurt, abused and killed his wife and two daughters will one day face trial with the spectre of conviction founded on competent, admissible, credible and strong evidence. He does not deserve false hopes and unfounded promises of closure which is what the “inconclusive” results of the six-month investigation unduly disclosed during the press conference created.

The least that the young Webb and the elderly Mang Lauro deserve is a clear answer from the Secretary to the question that I was asking myself on Tuesday and perhaps they themselves were asking also- why?

08 March 2011

Eating Lunch Alone

Reflections on what qualities, not just qualifications, a good and effective Ombudsman should have; in Newsbreak, here.

Speaking Pro Hac Vice

Reflections on stare decisis and authoritativeness of decisions in the Newsbreak page, here.

05 January 2011


I have been a criminal defense lawyer for practically my entire career--by choice as well as by circumstance. When I started practising in 1991, I chose to lawyer for many of those whose rights were violated and who found themselves without lawyers--many of these were political offenders charged with rebellion, coup d'etat, illegal possession of firearms or explosives as well as those charged with vcrimes which would later be termed "heinous" such as murder, kidnapping, parricide, rape. In 1994, when the death penalty was reinstated in the country through RA 7659, I found myself unable to prosecute crimes which were punished by the death penalty for the simple reason that, by belief and by principle, I did not believe in the death penalty and had committed myself to opposing it with everything I had. This decision led to a 12-year abstinence (1994 to 2006, when the death penalty was prohibited by law from being imposed) from prosecuting crimes where the death penalty was imposed and a de facto criminal defense practice.

In the course of my practice, I had many occasions to encounter lawyers from the Public Attorney's Office (PAO) and even the Chief Public Attorney herself. It is a matter of record, both in writing and in the occasional public talks, that I have spoken out for many public attorneys and vouched for their diligence, their competence, their industry, their passion and their commitment--having observed many of them up close. I would tell many of the inmates at the New Bilibid Prisons, back when there was a death row, that the image of the PAO as incompetent, lazy and ill-prepared was unfair because this was an office that labored mightily under a tremendous handicap--it was defending accused whom no one else wanted to defend and it was doing so under the perception that it could not win. I have, many times, praised PAO lawyers as heroic simply because many of them do their jobs well under circumstances that would be challenging to many lawyers.

That being said, I have not always seen eye to eye with the current Chief Public Attorney on many occasions but these differences have never been personal on my part. These differences, I would like to believe, were brought about by differing perceptions of strategy or tactics but never on the end goal: to render justice to the accused in a criminal case in the best way possible.

I now find myself differing again with the Chief Public Attorney in the matter of resurrecting the case against the six accused who were acquitted by the Supreme Court in the Vizconde case. I have spoken out publicly to say that the Majority Decision in the so-called Vizconde Case did not declare them innocent but simply acquitted them for failure of the prosecution to prove their guilt beyond a reasonable doubt. I have also spoken publicly to say that the six could no longer be prosecuted because of the prohibition against double jeopardy.

Article III, section 21 of the 1987 Constitution provides explicitly that "(n)o person shall be twice put in jeopardy of punishment for the same offense." Rule 117, section 7 of the Rules on Criminal Procedure states the ban in this manner: "(w)hen an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or a frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information." Simply put, double jeopardy exists when : (a) the accused has been validly charged, (b) before a court which has jurisdiction to try the case, (c) the accused has entered a plea to the charge, and (d) has been acquitted of the charge.

In possibly the only case where the Supreme Court allowed an acquittal to be reviewed, the Court nonetheless clearly showed in that case (Galman v. Sandiganbayan) that the accused therein were never in jeopardy of conviction because of the collusion that the Sandiganbayan Justices had with Mr. Marcos and thus, there was no first jeopardy. The trial at the Sandiganbayan which resulted in the acquittal of the accused was a sham, according to the Court, and thus the trial court was ousted of its jurisdiction, the accused were never in first jeopardy of conviction, thus there could be no second or double jeopardy.

In the Vizconde case, things are markedly different. The convictions were handed down by the trial court and later affirmed by the Court of Appeals. It was the Supreme Court which reversed the convictions. The jurisdiction of the Supreme Court in this case is not seriously doubted, even by the PAO Chief. This is shown very clearly by the very act of invoking that jurisdiction through a Motion for Reconsideration as well as the Motions for Intervention. This alone shows that Galman would not apply.

It is also curious that PAO, through its Chief, has entered the picture for the private complainant, Lauro Vizconde, against the accused, two of whom are still at large and may still be arrested and tried. No matter that Lauro Vizconde is, as the Chief Public Attorney claims, indigent--his counsel is no less than the National Prosecution Service represented no less than by the Solicitor General. I do not begrudge the Chief Public Attorney her feelings of sympathy for Lauro, which feelings I share, but there is more to her being PAO Chief than feelings.

The Public Attorney's Office is mandated to extend free legal services to indigent litigants in civil, criminal and administrative cases. It is, by law, an autonomous unit attached operationally to the Department of Justice. It is also de facto the legal defense unit of the government in relation to the National Prosecution Service of the DOJ which is the prosecution arm of the government.

As the Chief Defense Counsel for indigent litigants, the Chief Public Attorney must be aware that the prohibition against double jeopardy is one of the strongest and most stable defenses available to an accused in a criminal case. She must be aware that the clients of her Office may need to rely precisely on the very same defense that she now wishes to dilute on behalf of a person whom she is not, by mandate, entitled to represent. That is a danger that is far, far greater than the supposed possible miscarriage of justice that she claims will happen should Hubert Webb et al. be allowed to remain acquitted. Thus, it is inexplicable that the PAO Chief would herself dilute that protection by arguing against it in a case where she lawyers for the private complainant. I have no problem with her doing this as a private lawyer but when she argues against double jeopardy as the Chief Defense Counsel mandated by law to defend indigent accused, I have a problem with that.

The passion that the PAO Chief brings on behalf of Lauro Vizconde is admirable, however this same passion that she brings as PAO Chief is misplaced and dangerous. It sends the wrong signals to all her other clients--all those accused who may simply be relying on double jeopardy to prevent them from being re-prosecuted, wrongfully or, in the rare cases, rightfully.

When the PAO Chief, in her capacity as such, argues as forcefully as she does on behalf of a prosecution witness like Jessica Alfaro, whom the Court has already discredited, and says that the Webb alibi should not be believed, she is doing her clients a great disservice. Alibi is often the first defense available to an accused and while it is not the strongest defense available, it does get stronger when the prosecution evidence is weak. For the PAO Chief to argue against a Supreme Court Decision that now renders alibi a viable defense again is curious, if not downright dangerous, simply because it waters down a defense available to an accused--perhaps many of those which PAO represents and who are not as high profile as the Hubert Webbs of this world.

Taking up the cudgels for the private complainant in a criminal case against six accused and arguing against the very defenses her own public attorneys may have to rely on in their trials or even their appeals to the very same Supreme Court she now challenges represents a strange "conflict of interest" in that the very person tasked to push for these defenses so that they are available for her indigent clients is now the same one arguing against these defenses on behalf of one litigant.

Again, I am not opposed to the PAO Chief taking up the cudgels for Lauro Vizconde but she should do so not as PAO Chief. If she really wants to lawyer for Vizconde in this case, she should resign first and not use the resources of PAO to lawyer to dilute the defenses and for the "other side" at that.