Friday, July 21, 2017

Questioned document examination - G.R. No. 192274

"x x x.

At any rate, the Court does not perceive any injustice in the denial of Lees motion. In fact, the RTC wrote that the accused has the option to utilize the concerned NBI intended witness during the presentation of defense evidence.[14] When his time comes to present evidence, Lee can utilize the NBI by availing of the coercive power of the court.

The Court had the occasion to rule on an almost similar issue in Joey P. Marquez v. Sandiganbayan,[15] where the Court ordered the Sandiganbayan to act favorably on the motion of the accused therein to cause the NBI to examine the documents already submitted to the court. In said case, the Court wrote:

In this case, the defense interposed by the accused Marquez was that his signatures in the disbursement vouchers, purchase requests and authorizations were forged. It is hornbook rule that as a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery.

Thus, Marquez bears the burden of submitting evidence to prove the fact that his signatures were indeed forged. In order to be able to discharge his burden, he must be afforded reasonable opportunity to present evidence to support his allegation. This opportunity is the actual examination of the signatures he is questioning by no less than the countrys premier investigative force the NBI. If he is denied such opportunity, his only evidence on this matter is negative testimonial evidence which is generally considered as weak. And, he cannot submit any other examination result because the signatures are on the original documents which are in the control of either the prosecution or the graft court.

At any rate, any finding of the NBI will not be binding on the graft court. It will still be subject to its scrutiny and evaluation in line with Section 22 of Rule 132. Nevertheless, Marquez should not be deprived of his right to present his own defense. How the prosecution, or even the court, perceives his defense to be is irrelevant. To them, his defense may seem feeble and his strategy frivolous, but he should be allowed to adduce evidence of his own choice. The court should not control how he will defend himself as long as the steps to be taken will not be in violation of the rules.

The Marquez ruling, however, cannot be applied in this case. In Marquez, the accused had requested for the examination of the disbursement vouchers, purchase requests and authorization requests by the NBI from the beginning. Records of the case showed that right upon his alleged discovery of the forged signatures, while the case was still with the Office of the Special Prosecutor (OSP), the accused already sought referral of the disbursement vouchers, purchase requests and authorization requests to the NBI for examination. At that stage, OSP denied his plea. In the case at bench, the trial had already started and, worse, the accuseds motion for reconsideration was filed beyond the reglementary period.

At any rate, as earlier pointed out, the denial of his motion was without prejudice as the RTC stated that he could utilize the concerned NBI intended witness during the presentation of defense evidence.

x x x."

Five things Duterte should do in the West Philippine Sea | Opinion | GMA News Online

"x x x.

1. Negotiate, but from a position of strength. We should, without any reservation, welcome the resuscitation of frayed diplomatic channels between the two parties. In geopolitics, you can choose your friends, but not your neighbors. I am glad that no less than an old friend and a highly capable person like Ambassador Chito Sta. Romana is now in charge of facilitating this process. Throughout the years, we have supported resuscitation of diplomatic ties with China and criticized Aquino’s lack of engagement strategy.

After years of frozen relations, and almost zero institutionalized interaction among our top leaders, finally the Philippines and China can sort out the blueprint of a long-lasting ‘golden age’ in bilateral relations. This can be achieved through conflict-management mechanisms, which will prevent unwanted conflict in the area so that we can focus on areas of common concern.

At the same time, however, the Philippine government and top leaders should refrain from any language or action, which may communicate defeatism or downplay our bargaining chips, particularly our arbitration award, which can be used as a platform to mobilize multilateral diplomatic pressure on China (See my Brookings Institution article here), a country that desperately wants to be seen as a responsible power and regional leader. The last thing we need at this point is for officials to openly downplay the relevance or deny the binding and final nature of the award. This simply feeds into the Chinese propaganda line.

2. Raise the costs of defection. Despite our improving bilateral relations with China, the reality is that Beijing continues to expand its artificial islands in the Spratlys, is already fixing its gaze on the Benham Rise, and may proceed with building military structures in the Scarborough Shoal. Deployment of giant oil rigs into Philippines’ Exclusive Economic Zone is always a possibility, as the Vietnamese can attest to, not to mention the harassment of Filipino fishermen, military personnel, and energy exploration activities. Thus, it is extremely crucial for the Duterte administration to constantly remind Beijing that it is not setting aside the arbitration award, nor is it turning its back on old allies such as the United States and key strategic partners such as Japan, which are constantly evaluating their own counter-strategies to check Chinese ambitions in the area.

3. Buy time on the ground. One of the biggest mistakes of the Aquino administration’s strategy, in my opinion, was the postponement of earlier plans to refurbish and upgrade our facilities in Pag-asa (Thitu) Island and across the Kalayaan chain (Spratlys). Thankfully, there are indications that we will be correcting this mistake. Negotiations with China and other Southeast Asian claimant states can perfectly go hand-in-hand with our rightful duty to fortify our position on the ground. After all, all other claimant states have been doing this in the past two decades.

4. Separate economics from territorial issues. We should definitely welcome economic assistance and investments from as many countries as possible, including China, which is aiming to revamp the global infrastructure landscape under its ambitious transcontinental Belt and Road Initiative (BRI). At the same time, however, we have to make sure that this won’t lead to any debt-trap, nor will it come with implicit strings attached, namely our territorial sovereignty and rights in the West Philippine Sea and Benham Rise.

5. Develop self-reliance and minimum deterrence. For years, I have constantly criticized Washington for wavering on the precise extent of its commitment to the Philippines. Unlike its predecessor, the Trump administration, however, seems to be willing to take a tougher stance in the West Philippine Sea. The Pentagon, based on my conversations with relevant individuals, is considering the option of explicitly placing the Scarborough Shoal under the Philippine-US Mutual Defense Treaty (MDT). Washington may not care at all for the Philippines’ territorial claims, but it cares about its access to Subic and Clark and other major Filipino bases facing the South China Sea and, more broadly, China’s expanding military footprint across the world’s most important seascape. This is about American hegemony. Yet, as in the case of Vietnam, which has a smaller economy than the Philippines, we have to learn to be self-reliant and not anchor our national interest on the whims of allies. In the end, the Philippines will have to allocate a larger share of its booming economy to developing a minimum defense capability against external threats. This is the true essence of an ‘independent’ foreign policy. Let’s start doing our assignment.

Prof. Richard Heydarian is GMA Network resident analyst, author of “Asia’s New Battlefield: US, China and the Struggle for Western Pacific” (Zed, London), and widely considered as a leading expert on South China Sea disputes.

x x x."

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