Friday, 3 August 2007

Legal Advocacy and Political Advocacy: Discerning the Difference

Deliberate failure to discern between the two has been, for a long time, an exclusive enclave of lawyers who would rather have their cases tried in the "court of public opinion" rather than by the judge. Hoping that a strong public clamor would influence to a certain extent the judge's ruling, it takes a judge with unwavering moral courage and nerves of steel in disregarding public opinion in making his decision.

This has been the seeming approach of the defense counsel in the Sonny Trillanes case who, as the ruling of Judge Pimentel said, exerted "undue pressure" upon the court by citing the wrong precedents. By citing and insisting that Trillanes deserves the same treatment that the other courts have given to Nur Misuari and Erap, they pushed the wrong button and instead were awarded a mild rebuke from the judge.

I don't know where the counsel of Trillanes got the idea that orders of other courts bind another because such order sets a "precedent". Under the principle of stare decisis, only final judgments of the Supreme Court and appellate courts become precedents and bind lower courts to follow the settled rule. Thus, the order of the other courts regarding the case of Nur Misuari and Erap are, at most, persuasive only in character.

By taking a rather "combative" stance, the defense counsel - probably taking the cue from his client - has been playing to the gallery on the issue of Trillanes' temporary liberty to be able to take his position in the Senate. They have been playing to the hilt the "bad boy with the heart of gold" (Robin Padilla) formula in the court that has given them success in the last elections. But that is still par for the course. Ultimately the court still has the power to cite in contempt a lawyer who would continue to cross the line.

What is disconcerting however is the growing penchant of the media, particularly of political commentators who, wittingly or unwittingly, blur the line between legal advocacy and political advocacy. Take for instance the columns of Manuel L. Quezon III and Conrado de Quiros on the decision of Judge Pimentel.

MLQIII wrote:

Pimentel justified his decision by citing the case of Romeo Jalosjos, who'd been convicted of statutory rape and reelected congressman, but was refused permission to attend sessions of the House of Representatives because the Supreme Court said he had to serve his sentence. In a word, Pimentel decided that an individual facing trial is on par with someone who has already been convicted of a crime.

Had he asked his lawyer friends, they would probably tell him that Trillanes and Jalosjos, at the time the said SC ruling was handed down, are basically on the same boat as far as the presumption of innocence is concerned. Jalosjos, while convicted by the trial court, was still presumed to be innocent because his conviction was on appeal. At that point, he remains an accused and not a convict by final judgment. You don't grade the presumption of innocence by the stage of the proceeding. Until such conviction is by final judgment, i.e., there is no more appeal or the right to appeal has been lost by inaction, the right of the accused to be presumed innocent remains.

On the other hand, De Quiros wrote:

Frankly, I don’t know how Pimentel became a judge. His wife certainly may not trust him to go to the market to buy apples and oranges, or indeed bananas -- he can’t judge the difference. Trillanes’ and Jalosjos’ cases are the same banana? Pimentel probably had in mind the banana National Security Adviser Norberto Gonzales shoved into his mouth while being grilled by senators about his attempt to sell Philippine security to the US Congress and being reduced to speechlessness in the process. The banana failed to revive his voice and Gonzales excused himself from further torture by citing high blood pressure. That’s the same banana Pimentel is eating.
I don't know if he is trying to be cute. He does not know Judge Pimentel and clearly he lacks the qualification to question the judge's competency and ability. Well, he could be an expert on fruits, that people can give him.

He further wrote:
Pimentel may not know it (which is probably why he is a judge in Gloria Macapagal-Arroyo’s courts), but there is something in law called “precedent.” Lawyers quote it to show that there has been a ruling by other courts on the same case, and a judge would be well advised to heed it. As far as I know, neither in the United States nor in Timbuktu, neither here nor there, has citing precedent ever been called applying undue pressure. It is all very well to be independent -- though one must wonder at the independence of a court that swallows hook, line and sinker a prosecution’s argument -- but it is not all very well to be independent of thought.
Again, if only De Quiros researched or asked his lawyer friends, he would come to know that not all rulings or orders of the courts are precedent-setting. While you may use those orders and rulings to persuade the courts to rule in your favor, it is not duty-bound to follow it.

It is one thing to argue before the courts the merit of one's case and another to take your issues to the bar of public opinion through a very supportive and biased media. I am reminded of the actuations of some media personalities (Ricky Carandang easily comes to mind) who readily express legal opinions and then immediately issue a blanket disclaimer that he/she is not a lawyer. If it wasn't an informed opinion, why even say it?

Rene Saguisag in his column clearly disagreed with the decision of Judge Pimentel but he clearly does not believe that Judge Pimentel is a nincompoop (as de Quiros did) and stopped short of insinuating that there were political considerations in the decision (as what MLQIII did).


cvj said...

I think it is a defect of legal principle if it cannot distinguish between one who is convicted by a trial court and one who is still undergoing trial. Besides, the effect of conviction in the lower courts on the presumption of innocence upon seems to differ from country to country.

In a young democracy, the legal system must know its limits and not get in the way of what is essentially a political question. Laws come and go, but the will of the people should not be trifled with.

Jaxius said...


It would be highly unfair for the accused to lose his presumption of innocence on appeal. This is grounded on the principle that it is better to let twenty guilty persons free than convict an innocent. Imagine the loss of rights that a person suffers once he's convicted by a trial court only to be overturned by an appellate court later. Sadly, there is an unfortunate number of such cases in our country.

You have the problem standing on its head, cvj. The limits of the judicial system are spelled out in the constitution and the laws. They cannot overstep these bounds.

The will of the people is much more fleeting than our laws. In the final analysis, the people, through the proper channels, can always change the law. That's why a democratic republic is called a "government of laws, and not of men."

cvj said...

Jaxius, the countries (like Canada) where i've read the presumption of innocence being lost upon conviction in lower court also subscribe to the principle of 'better to let twenty guilty persons free than convict an innocent'. We are not talking about removing the right of appeal or shifting the burden of proof, just acknowledging that the accused has undergone the first (signficant) stage of the process. I would have expected legal concepts, after a few hundred years of evolution, to be more evolved than the simplistic dichotomy between presumed innocent and guilty.

In any society, actual practice, and not pieces of paper like the Constitution serve to limit the judicial system. That's why the UK does very well even without a written Constitution.

'Government of laws and not of men' is supposed to connote a government based on justice. From what i've seen, I don't think law as practiced here in the Philippines automatically means the pursuit of justice. In our context, that statement is reduced to mere decoration.

If we disregard the will of the people in favor of the letter of the law, then you give the advantage to those who would seek power by force and deception undermining the very stability that the law is supposed to ensure. As it is, we are seeing too much impunity from those in power. If we keep at this, i believe that those who will replace them will be even more brazen.

Jaxius said...


the phrase "government of laws, and not of men", or what has been termed as the supremacy of the rule of law, is a principle that was formulated to be a safeguard against arbitrary governance. It is a principle in governance grounded on experience rather than on the philosophical and theoretical concept of justice.

Philosophers and political scientists have, for centuries, grappled and are still grappling with the concept of justice. We do not live in a just world, someone said. Ultimately, order, rather than justice, became the benchmark of the governance of men. As such, "the law may be harsh, but it is the law." A harsh law cannot be just, but why should we follow it?

The governance of men cannot be made with one's head in the clouds thinking of philosophical concepts. This becomes all the more true as the relationships between men amongst themselves and with the government becomes complicated. Thus, in stark reality the concept of justice is constantly being reduced to a guiding post that becomes more and more distant from that which it guides. It applies not only in the Philippines but everywhere.

With Judge Pimentel's denial of the motion to demurrer of the Magdalo, we get closer to the possibility that they might indeed be held guilty by the trial court of the crime charged. And if that happens, would you still be hanging on to your position that the presumption of innocence is lost once Trillanes and the rest is convicted by the trial court? Take note that the punishment for the crime of coup d'etat includes perpetual absolute disqualification. He will lose his seat in the Senate.

Lawyers and the courts have been pounded and pilloried endlessly for making exceptions to the law and rules. Yet, when they stick to keeping the law simple so that everyone can understand it, they still get the same treatment?

The laws of the land are as much as the will of the people as the election of Sonny Trillanes. There is something to be said and should be said however how the present government (particularly the executive branch) is not of the will of the people. That much i am willing to admit.

But then again, should we launch another "people power" revolution? I am of the belief that People Power 2, in the long run, set as back rather than propelled us forward. People Power 1, I am still not sure how to treat. The kindest cut I can give it is that it was the closest opportunity we had to right many of the ills of the country and the people who were in command then fumbled the ball.

cvj said...

Jaxius, I take it that you believe that when faced with a choice between justice and order, the legal profession believes that it is better to settle for order. Prior to your explanation, i had the impression that it was just unscrupulous lawyers (and judges) that facilitated unjust outcomes. Now i discover that the ease by which those in power use the legal system to their advantage is because of the legal system's built in bias for order, no matter its source.

As a layman, i thought the harshness of the law derived from its equal application of justice. Now i realize that this harshness comes from the possibility that the outcome will be unjust and that this possibility has been accepted by lawyers. I thought Bencard was just being cynical, now he appears to be more of the prototypical lawyer.

If Trillanes gets convicted by Judge Pimentel and loses the presumption of innocence that is acceptable (and just) from a process standpoint as long as he still retains his right to appeal and the burden of proof is still with the prosecution throughout the process.

I don't think lawyers are pounded and pilloried because they either make exceptions or make the laws too simple, but rather because they bring about outcomes that are not Just under a given context.

I really wonder why people blame the EDSA's and not the apathy that followed. In a society where power and resources are concentrated on a few people, many of whom are corrupt, i ask you to think through the implications of condoning an executive that got there through coercion and deception and then gets away with it.

Jaxius said...


Make no mistake about it, the law is an attempt to attain justice at the level humanly possible. The thing is, can justice be attained without order? What we will have is justice defined by the victor, justice dictated by those who are mighty.

That is why order takes precedence. Call it the legal profession’s default setting. When Dick the Butcher said “let’s kill all the lawyers”, he was precisely aiming at the heart of the establishment. That lawyer joke reverberates deep in the legal profession. Whether such government be a tyranny or democracy, you will find lawyers by its side.

However, between a definition that says justice is arrived at by equal outcomes and one that says it is arrived at by consistent processes, which would you choose? I think what I am arguing for is more aptly put by a dialogue between Roper and St. Thomas More in a play titled A Man For All Seasons:

More There is no law against that.

Roper There is! God's law!

More Then God can arrest him.

Roper Sophistication upon sophistication.

More No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.

Roper Then you set man's law above God's!

More No, far below; but let me draw your attention to a fact - I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forrester. I doubt if there's a man alive who could follow me there, thank God....

Alice While you talk, he's gone!

More And go he should, if he was the Devil himself, until he broke the law!

Roper So now you'd give the Devil benefit of law!

More Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper I'd cut down every law in England to do that!

More Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

Roper I have long suspected this, this is the golden calf; the law's your god!

More Oh, Roper, you're a fool, God's my god....But I find him rather too subtle....I don't know where He is or what He wants.

Roper My God wants service, to the end and unremitting; nothing else!

More Are you sure that's God? He sounds like Moloch. But indeed it may be God - And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly!

cvj said...

Jaxius, I can understand why Thomas More would say that because during his time, the legal system was his only shield against a much less evolved political and social system and the savage world outside.

Modern society, by contrast, has achieved a greater level of functional decomposition and today, the legal system is only one among a number of systems that sustain order within a society. In fact, i believe that more than the law (which is often dead letter) , it is social capital that guarantees order in Philippine Society. That's what Gloria Arroyo (with the aid of her lawyers) is currently undermining.

With this understanding, i think legal practitioners can afford to focus more on achieving justice and not fear that they are the only ones who stand between order and chaos. With that change in 'default settings', you'll find that the 'kill all the lawyers' will eventually lose its resonance and that the legal system will get more respect outside.

Yes, our present political system is sick and dysfunctional but it still less arbitrary than during More's time where the will of the King was law. The people voting for Trillanes is a way by which the political system is trying to heal itself. That is why it is important for the legal system not to interfere with this process that is taking place within the political system. That is what the Marcos Supreme Court, in its wisdom, realized when it allowed the Snap Elections of February 1986.

baycas2 said...

(my lawyer friends are unavailable…)

When the SC finally affirms the conviction of the lower courts, the length of imprisonment of the convicted (while on appeal) is taken from the total sentence. This means that conviction by the lower court has operated and that the convicted has already undergone sentence. When conviction operates does presumption of innocence prevail?

Shaman of Malilipot said...


Frankly, I cannot imagine how justice can cause disorder. To choose justice is to choose order. But choosing order does not necessarily mean choosing justice.

We have seen in our own country how a dictatorship was able to keep order at great injustice to the people. And you know what happened. The law (mostly decrees and letters of instructions that kept the "order") was tossed into the dustbin and People Power (people's will) triumphed.

Jaxius said...


What is your definition of justice? Can we all really agree on what it is and how to get there?

The definition of justice or the idea of what constitutes it differs from person to person, largely depending on his social class, religious belief or political inclination.

Without order, how do you rise above the din of conflicting views? Without the consistent processes as ensured by the supremacy of the rule of law, justice becomes dependent on the arbitrary whim of who is in power, be it a tyrant, an oligarchy, or of the mob.

That is the context when I said order has taken precedence over justice.

Manila Bay Watch said...

Even I the layman, could see through the wisdom of what Jaxius says:

"Without the consistent processes as ensured by the supremacy of the rule of law, justice becomes dependent on the arbitrary whim of who is in power, be it a tyrant, an oligarchy, or of the mob."

One of favourite philosopher JJRousseau sums up that the rule of law is best served when the law is applied with reason.