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).