An Apology to MLQIII

I guess I owe an apology to MLQIII because of an earlier blog piece where I wrote:

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.

I basically generalized that a trained eye would spot the error in MLQ's article. He 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.

MLQIII asked Atty. Lacierda to weigh in on the matter and the lawyer affirmed MLQIII's position. He wrote:

If you read the Jalosjos decision, the background scenario is that he has already been convicted and is sitting in prison. The equal protection of the laws says that all persons similarly situated should be similarly treated. Jalosjos and Trillanes are not in the same situation. Trillanes has not been convicted so far. His detention is due to the fact that the crime he committed is non-bailable, not because he has been convicted. Thus, he continues to enjoy the presumption of innocence. That is the big difference. By all accounts, your analysis is clear and correct.

What followed was an exhaustive argument on MLQIII's blog on the right to be presumed innocent and the effects of a finding of conviction by the trial court on such right. In hindsight, I think we need to revisit what MLQIII wrote and parse it line by line so that we can see what was erroneous in it which should have been seen by a trained eye.

So here it is again:

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. (Emphasis mine)

There was nothing of that sort in the SC ruling. Jalosjos was not serving his sentence. He is detained because the accusation against him is a capital offense. Even prior to conviction, he is denied bail. His conviction actually plays little part on the issue of his detention. What is operative here is the offense charged. Section 78 of the Revised Penal Code states "No penalty shall be executed except by virtue of a final judgment."

A judgment of conviction becomes final (a) when no appeal is seasonably filed, (b) when the accused commences to serve the sentence, (c) when the right to appeal is expressly waived in writing, except where the death penalty was imposed by the trial court, and (d) when the accused applies for probation, thereby waiving his right to appeal.

An appeal of the conviction of Jalosjos pending with the Supreme Court leads us to the only conclusion, Jalosjos was not yet serving his sentence.

Which leads to the question, what is the effect of an appeal? Atty. Lacierda wrote:

The constitutional presumption of innocence really means that accusation is not synonymous with guilt. But if one is convicted, then it showed that the presumption has been overturned and it is now the turn of the accused to prove that the judgment of conviction is wrong. Moreover, to be very technical about it, an appeal is a statutory right, not a constitutional right.

He seems to mistake an appeal of a criminal case with that of an appeal in a civil case. He seems to be placing a burden on the accused to prove that the conviction was wrong, which was agreed to by some of the commenters.

However, jurisprudence holds that an appeal of a criminal conviction "throws open the entire case wide open for review, and the appellate court can correct errors, though unassigned, that may be found in the appealed judgment" (People vs Feliciano, GR 127759, Sept. 24, 2001). The appeals court may even reverse the trial court's decision on the basis of grounds other than those that the parties raised as errors. The burden of proof never shifts and the quantum of proof that the conviction be beyond reasonable doubt remains, even on appeal. As the SC said in People vs Lagmay (1999), "the presumption of innocence is not a mere procedural tool of the law. It is not overcome by the presumption of regularity; indeed, it can be rebutted only by proof beyond reasonable doubt."

It shows how painstaking the standards the law and the rules have set for the judiciary before it finally convicts an accused. To hold otherwise is to cheapen the Constitution's guarantee to a person's right to life and liberty.

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).

Preventing Urban Landlessness: Putting A Cap on the Interest of Loan Agreements with Mortgage of Family Homes as Security

The past few years, Cavite bore witness to the rise of several lending and financing companies and personalities. With an eye to make a quick and effortless buck, they provide credit and financing at iniquitous, unconscionable and exorbitant rates. The prevailing rates stand at 5% monthly interest. Computed at annual rates, it would sum up to a neat 60% interest on loans ranging from P 100,000.00 to P 500,000.00.

What makes it doubly wrong is that these lending and financing companies have taken a liking to requiring residential house and lots as collateral with verbal assurances that they will not foreclose as long as the debtors pay interest monthly. As verbal assurances go, they fly in the face of what these lending and financing companies do when our provincemates fail to pay their obligation.

Of course, our provincemates can run to the courts to have the mortgage instruments reformed and the interest rates lowered to a more equitable and reasonable rate as enunciated in the decisions of the Supreme Court in Spouses Solangon vs Salazar (GR 125944, June 21, 2001) and Medel vs CA (GR 131622, November 7, 1998). However, the nature of judicial proceedings being passive and such remedy largely unknown to our provincemates, rare are instances that victims resort to courts. Sad to say, there remains a prevailing apprehension among our poor provincemates with regards our courts of justice, seeing them as exclusive for those who have money. It also does not help that these lending and financing companies are fronted by supposed lawyers. Thus, they are forced by circumstances to sell their land instead of being judicially or extrajudicially foreclosed by these lending and financing companies.

Letting these credit and financing companies go unfettered in their business would run to the ground the spirit and intent of various social justice legislations, especially those that involve redistributing residential lands to the landless. As it stands, a good number of my oldtime neighbors face the danger of being mere transients.

I gathered that there are pending bills before both Houses of Congress intending to regulate these lending companies and the way they do business. I am referring to House Bill 120 authored by former Representative now Budget Secretary Joey Salceda and its counterpart Senate Bill 1180 introduced by Sen. Ramon B. Magsaysay both titled “AN ACT REGULATING THE ESTABLISHMENT AND OPERATION OF LENDING COMPANIES IN THE PHILIPPINES AND FOR OTHER PURPOSES.”

However, Section 9 of the proposed legislation weakly states:

“Amount and Charges on Loans -An LC shall grant loans in such amounts and reasonable interest rates and charges as may be agreed upon between the LC and the borrower or debtor. Provided, however, that the agreement shall be in compliance with the provisions of Republic Act No. 3765, otherwise known as the Truth in Lending Act and Republic Act No. 7394, otherwise known as the Consumer Act of the Philippines; And provided however, that, the Monetary Board, in consultation with DTI and the industry, may prescribe such interest rate as may be warranted by prevailing economic and social conditions.”

It would be unwise to put a cap on the interest rates on all loan agreements because it might unduly restrict the free flow of capital and trade. What the situation entails, in my opinion, is a legislation that would put a cap on interest rates of loan agreements secured by a mortgage of the residential house and lots of the mortgagor. The Rules of Court under Rule 39, Section 13 exempts the family home from attachment. However, as an exception, the family home can be foreclosed if subject of a mortgage.

Thus, the said legislation should have the following salient features:

a. The cap for the interest rate of loan agreements covered by a mortgage of the mortgagor’s residential house and lot should be pegged at the legal interest rate, 12% per annum.

The Supreme Court’s decisions on matters involving the rate of interest (as stated above in the cases of Solangon vs Salazar GR 125944, June 21, 2001) and Medel vs CA GR 131622, November 7, 1998) have been uniform in this respect.

b. Should be applicable only to residential house and lots with a value of 2 million pesos or below

This proviso is just one of the limitations to make it applicable only to those who belong in the lower brackets of our society. However, to make it applicable nationwide, we may use the zonal valuation of the BIR to determine the proper threshold in the respective provinces or administrative regions.

c. The said house and lot is the family home

The intent of this legislation is the prevention of the uprooting of families and making them mere transients though landlessness. Congress has crafted various legislations to solve landlessness. This proposed legislation intends to make sure that such laws do not go to waste.

d. It is the only house and lot owned by the mortgagor

To prevent abuse, it must be stressed that the subject family home is the only house and lot owned by the mortgagor.

Alternative Party-List Law

I don’t think it needs further discussion that RA 7941 is a poor implementation of the constitutional directive for Congress to enact a law on party-list representation. Basically, the criticisms zero down on the following:

• The 3 seat limitation – some groups want more because they argue that voters are being disenfranchised because some votes do not translate into seats , e.g. if 10% should get 5 seats, the votes beyond 6% are disregarded

• The 2 % threshold – the difference between 2% of 100,000 and 10,000,000 is about 198,000 votes. How representation referred to in Constitution be based on a number which relies on the number of votes cast on the party-list elections?

• The Panganiban Formula – the criticism on the so-called Panganiban Formula is that it awards party-list seats so niggardly. The thing is, it is RA 7941 that does so. The SC cannot go around and interpret RA 7941 as independent of legislative intent. That would be judicial legislation. Contrary to the criticism, the Panganiban Formula actually sets the bar lower for additional seats. Under it, if the first party is entitled 2 additional seats, a party must get at least 50% of the votes of the first party. But if it is to be really proportional, 50% should only get 1.5 seat. To my mind, a party should get at least 66% of the votes of the first party to be entitled to an additional seat.

Given this, an alternative to RA 7941 needs to be figured out. Am not talking of refashioning RA 7941 out of its flaws. What is needed is something that reorients the qualifications and parameters for selection of party-list representatives.

The only thing that will remain is the 20% threshold because that is stated in the Constitution.

First, I would do away with the 3-seat limit. Not that it means a party-list would be entitled to a number of seats relative to its share of votes, what I mean is that each party-list can only be entitled to one seat. How many voices do you need to be heard in Congress, by the way?

To my mind, a party-list group should be distinguished from district representation because its constituency should be based on its grassroots organization and should not grovel for votes like their counterparts. Their advocacy should not be based on popularity but organization. Consequently, their qualification to file a certificate of candidacy, aside from the fact that they should represent a marginal sector of our society, is the claim that they have a substantial membership base.

Thus, to those in the party-list, the election is merely a confirmation of what they claim in their certificate of candidacy.

The next repercussion to this is the avoidance of groups who merely represent an advocacy and not a marginalized sector. Thus, we find in the present dispensation the election of groups who are mere shells of an organization. They get elected by prostituting themselves for votes to the general public or by paying the “smooth operators” in Comelec.

Thus, we also avoid a very annoying sight where party-list groups competing and campaigning for votes during election time. Should it not follow that when they claim that they represent a constituency when they filed with the COMELEC, such constituency is already existing and not to be squeezed out of the general public come election time? Party-list representation should not fall under popular representation. That should be left strictly to district representation.

For qualification, the 2% threshold should be discarded. Taking into consideration the deliberations of Congress for RA 7941, the solons chose 2% because they assumed that such percentage would show that a party-list group that obtained such percentage would show that they indeed have a solid constituency. However, as several critics pointed out, basing it on the total votes cast would result in absurdity. Thus, if only 100,000 people voted for the party-list election, a measly vote of 2,000 would entitle a party-list to a congressional seat.

I suggest basing it on a real number. If Congress wants a benchmark of constituency, why not use the numbers we use for district representation. What is good for the goose is good for the gander. Under this, we might use two figures:

• a number based on the average number of voters per congressional district (total number of voters nationwide divided by the number of congressional districts)
• a majority based on the mean number alluded to above

Thus, if we have 40 million voters and 200 congressional districts, the number required for qualification in the first case would be 200,000. In the second case, it would be 100,001.

In the current set-up, if 40 million participated in the party-list elections, a party-list groups needs 800,000 votes to qualify. If only 20 million voted, 400,000. If only 100,000 voted, a measly 2,000 would entitle a party-list group to a seat. It is absurd that as the number dwindles, it becomes easier to obtain a seat in Congress.

Theoretically, the number of party-list groups that can qualify equals that of district representation. How do we trim that so that the 20% threshold is met?

That is why the initial qualification should be further subjected to another threshold. A party-list who obtains this initial qualifying criteria should rank in the list of top vote-getters within the number of seats allocated for the party-list. Thus, if 50 seats have been allotted for them, a party-list group should rank within 1-50 of the top vote-getters to be finally entitled to a seat in Congress.

Got Tagged, I'm It?

I've been tagged by cvj of Placeholder and Manila Bay Watch. The rules, as copied from cvj, are as follows:

• In the 8 facts about [name], you share 8 things that your readers don’t know about you. At the end, you tag 8 other bloggers to keep the fun going. Each blogger must post these rules first.
• Each blogger starts with eight random facts/habits about themselves.
• At the end of the post, a blogger needs to choose eight people to get tagged and list their names.
• Don’t forget to leave them a comment telling them they’re tagged, and to read your blog.

Here goes:

1. I am left-handed but I write with my right hand. This is because my aunt tied up my left hand behind my back when she was teaching me how to write. Karma struck when 2 out of her 3 kids turned out to be lefties and she wasn't successful in turning them to righties.
2. I was rated a sharpshooter (a notch below expert) on the caliber .45 pistol and M16/M14 rifles. I always tell my friends I deliberately missed the higher qualification because "sharpshooter" sounds very much cooler than "expert". Hehehe. Yet, I have an aversion to guns.
3. I once had mlq3 as a classmate in Kas 150 under Prof. Guerrero. But I'd trade that in an instant to switch places with a friend who was a classmate of then "dyosa ng CSSP" Reema Padilla.
   
4. I believe I was drunk half the time I was in UP.
   
5. Most people I know eat "tortang talong" with ketchup. Rare do I see people eat it with soy sauce which is the way I like it.
6. I started getting a bit of a paunch when I stopped drinking. Safe to say then that it is no mini-beer belly.
   
7. My smoking habit is so bad I still smoke even when I have a cough. Well, at least I've weaned myself away from two-pack a day (topak days?) habit. Syado magastos.
   
8. I have a bad case of sleep paralysis, particularly hypnogogia (paralysis before falling asleep accompanied by hallucinations).
   

The part about tagging bloggers, I'll pass. Most of the bloggers I read have already been tagged and suffice it to say I have started blogging only recently and I have yet to increase my blog-reading above 10 blogs. Those who have not been tagged I do not personally know or have expressed aversion to tagging. So, am I perpetually IT? :D

The MILF: A Head Without A Body

The recent ambush that resulted in the killing of 14 marines and the mutilation of some of the dead soldiers should put into question the capability of the MILF to rein in its supposed "fighters."

The MILF, it seems, more like an association of warlords organized merely to inveigle political concessions out of the government but has no real operational command over its armed components. Nothing shows this better than the prevalence of the so-called "MILF Lost Commands".

Thus, Sec. Puno's fear of "balkanization" of Mindanao becomes more and more believable. Once the so-called "Bangsamoro Juridical Entity" is established, it will just be plagued with hungry and greedy warlords like a carcass attracts vultures.

Maybe, we need to tell the MILF to rein in its forces just like the government's precondition for the CPP/NPA for the resumption of the peace talks. Until then, all bets are off.

The AFP in the City...

In the matter of the presence of the military in the cities, some pundits and legal eagles have opined that this will delve into the matter of factual determination of the basis to call out the armed forces.

Such a question has been answered by the SC in the case of IBP vs Zamora. The SC held that the calling-out power of the President is necessarily discretionary and the judiciary cannot be called upon to overrule the President's wisdom unless, of course, if such power was made in such a way constituting grave abuse of discretion.

I humbly disagree however that the controversy will fall under the calling-out power of the President. It seems clear - based on the oscillating position of Malacanang regarding the military deployment in urban areas - that such is not under the calling-out power of the President. There has been no order from Malacanang for the AFP to conduct what it has been doing. Indeed, CSAFP Esperon has been consistent in claiming that the deployment is a unilateral initiative of the AFP in pursuance of its mandate to curb insurgency.

In relation to this, RA 8551 has given back the primary role of conducting counter-insurgency operations intended for the PNP under RA 6975. To properly mount a challenge to these deployments, to my mind, requires revisiting the case of IBP vs. Zamora, RA 6975 and RA 8551.

As can be gleaned from Section 12 of RA 6975, and therefore also in RA 8551, the counter-insurgency operations mentioned therein pertain to "where insurgents have gained considerable foothold in the community thereby necessitating the employment of bigger tactical forces and the utilization of higher caliber armaments and better armored vehicles".

On the other hand, the "counter-insurgency operations" being conducted by the AFP in urban areas do not involve these but involve more of the so-called "winning the hearts and minds" strategy which are in the nature of delivering basic services (civil-military operations in military parlance) and law enforcement, activities that should properly pertain to the PNP and other civilian government agencies.

We do not have an equivalent of the Posse Comitatus Act, a law in the United States that forbid the use of the armed forces in the execution of the laws except upon cases and under circumstances expressly authorized by the US Constitution or Act of Congress. What we have is a provision in the 1987 Constitution (Section 5(4), Article XVI) that says:

No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries.

Therefore, under the premises declared in IBP vs Zamora, there is an insidious incursion of the military in the task of law enforcement and other govermental duties which properly pertain to civilian government agencies, in violation of Section 5(4), Article XVI of the Constitution.