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.