In the news item entitled “Duterte warns drug lords’
lawyers” written by Marlon Ramos of the Philippine Daily Inquirer (December
09, 2016), Duterte attacked the lawyers who defend individuals accused of violations
of R.A. 9165 (Comprehensive Dangerous Drugs
Act of 2002, as amended) before the trial courts.
May I state my legal comments in reaction to Duterte's threatening statements that insult and undermine the integrity of the entire
legal profession, the sanctity of the rule of law, the fair and effective administration
of justice, the independence of the Judiciary, and the primacy of the Bill of
Rights of the 1987 Constitution.
***
Duterte - “That’s their style. They were
able to post bail because they have lawyers. They are good, high-profile
lawyers. Then [their clients] will play again.”
A – Admittedly, criminal cases filed drug lords are
capital offenses. They are punishable by reclusion perpetua (which others
mistake as life imprisonment). The cases are non-bailable under RA 9165.
However, the accused, assisted by counsel, may apply
for bail before the trial court, which may grant the motion when the
prosecution fails to prove “that the evidence of guilt is strong”.
The prosecution has the “burden
of proof” in all criminal cases.
Bail is a constitutional right. The
right to bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required.
Section 13, Article III (Bill of Rights) of the 1987
Constitution of the Bill of Rights provides:
“Section 13. All persons,
except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable
by sufficient sureties, or be released on recognizance as may be provided by
law. The
right to bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required.”
The right to counsel forms part of the right to due process
of law and the right to equal protection of the law of an accused.
Section 1 of the Bill of Rights provides:
Section 1. - No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection
of the laws.
Stressing the importance of the right to counsel, the
first paragraph of Section 12 of the Bill of Rights provides “any person under
investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one.” It further provides that “these
rights cannot be waived except in writing and in the presence of counsel.”
***
Duterte - “Even their lawyers, I will
include them.”
A – This statement of Duterte constitutes grave threat
and grave coercion against the legal profession. It is a criminal offense. His
intent is to communicate the message to the legal profession that he shall harm,
injure, or kill lawyers who perform their oath to defend the constitutional
rights of their clients, whether or not they are alleged drug lords, undergoing
criminal trial before the courts.
It is a ground for impeachment.
Section 1, Article XI (Accountability of Public
Officers) of the 1987 Constitution
provides that “public office is a public trust”; and that “public
officers and employees must, at all times, be accountable to the people, serve them
with utmost responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives”.
“Betrayal of the public trust” is a
ground for impeachment under Section 2 of Article XII.
It provides that
“the President, the Vice-President, the Members of the Supreme Court,
the Members of the Constitutional Commissions, and the Ombudsman may be removed
from office on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust”.
Duterte’s threat and coercion violate R.A. 6713 (Code of Ethical Standards for
Public Officers and Employees).
Section 2 (Declaration of Policies) of RA 6713
declares that “it is the policy of the State to promote a high standard of
ethics in public service”; and that “public officials and employees shall at
all times be accountable to the people and shall discharge their duties with
utmost
responsibility, integrity, competence, and loyalty, act with patriotism
and justice,
lead modest lives, and uphold public interest over personal interest”.
It is appropriate to reproduce in full Section 4
(Norms of Conduct of Public Officials and Employees) of RA 6713 to prove the
exacting demands that the code of ethical standards impose on public officials
and employees, especially on Duterte as head of state and father of the nation:
“Section 4. Norms of Conduct of
Public Officials and Employees. - (A) Every public official and
employee shall observe the following as standards of personal conduct in the
discharge and execution of official duties:
(a) Commitment to public
interest. - Public officials and employees shall always uphold the public
interest over and above personal interest. All government resources and powers
of their respective offices must be employed and used efficiently, effectively,
honestly and economically, particularly to avoid wastage in public funds and
revenues.
(b) Professionalism. -
Public officials and employees shall perform and discharge their duties with
the highest degree of excellence, professionalism, intelligence and skill. They
shall enter public service with utmost devotion and dedication to duty. They
shall endeavor to discourage wrong perceptions of their roles as dispensers or
peddlers of undue patronage.
(c) Justness and sincerity.
- Public officials and employees shall remain true to the people at all times. They
must act with justness and sincerity and shall not discriminate against anyone,
especially the poor and the underprivileged. They shall at all times
respect the rights of others, and shall refrain from doing acts contrary to
law, good morals, good customs, public policy, public order, public safety and
public interest. They shall not dispense or extend undue favors on
account of their office to their relatives whether by consanguinity or affinity
except with respect to appointments of such relatives to positions considered
strictly confidential or as members of their personal staff whose terms are
coterminous with theirs.
(d) Political neutrality. -
Public officials and employees shall provide service to everyone without unfair
discrimination and regardless of party affiliation or preference.
(e) Responsiveness to the
public. - Public officials and employees shall extend prompt, courteous, and
adequate service to the public. Unless otherwise provided by law or when
required by the public interest, public officials and employees shall provide
information of their policies and procedures in clear and understandable
language, ensure openness of information, public consultations and hearings
whenever appropriate, encourage suggestions, simplify and systematize policy,
rules and procedures, avoid red tape and develop an understanding and
appreciation of the socio-economic conditions prevailing in the country,
especially in the depressed rural and urban areas.
(f) Nationalism and
patriotism. - Public officials and employees shall at all times be loyal to the
Republic and to the Filipino people, promote the use of locally produced goods,
resources and technology and encourage appreciation and pride of country and
people. They shall endeavor to maintain and defend Philippine sovereignty
against foreign intrusion.
(g) Commitment to democracy.
- Public officials and employees shall commit themselves to the
democratic way of life and values, maintain the principle of public
accountability, and manifest by deeds the supremacy of civilian
authority over the military. They shall at all times uphold the
Constitution and put loyalty to country above loyalty to persons or
party.
(h) Simple living. - Public
officials and employees and their families shall lead modest lives appropriate
to their positions and income. They shall not indulge in extravagant or
ostentatious display of wealth in any form.
Duterte’s statement, more so when translated into action,
causes “undue injury” to lawyers. It violates Sec. 3 of R.A. 1319 (Anti-Graft
and Corrupt Practices Act) which provides:
(e) Causing any undue injury to
any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision shall apply
to officers and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions.
***
Duterte - The people should understand
the “role of law” instead of focusing only on the “rule of law.”
A – I do not
know how Duterte exactly contradistinguishes “role of law” from “rule of law”.
He did not explain his theory.
It appears that to Duterte the “role of law” is to
arrest, try, convict, and punish an accused. Nothing else.
He is wrong.
The “role of law” and the “rule of law" is to insure that “justice is done” and “not to persecute” (which
is the prostitution of the prosecution).
The prosecution must prove its case. It has the burden
of proof to convict an accused. The accused is presumed innocent until proven
otherwise.
Section 14 of the Bill of Rights provides that “no
person shall be held to answer for a criminal offense without due
process of law”.
It provides that in all criminal prosecutions the
accused “shall be presumed innocent until the contrary is proved’. He shall
enjoy the following rights:
(a)
The right “to be heard by himself and counsel”,
(b)
The right “to be informed of the nature and
cause of the accusation against him”;
(c)
The right “to have a speedy, impartial, and
public trial”;
(d)
The right to “to meet the witnesses face to face”;
(e)
The right “to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf”.
Section 12 and Section 19 of the Bill of Rights is
very specific on the following rights of the accused:
1. “No
torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him”.
2. “Secret
detention places, solitary, incommunicado, or other similar forms of detention
are prohibited”.
3. “Any
confession or admission obtained in violation of this or Section 17 hereof
shall be inadmissible in evidence against him”.
4. “The
law shall provide for penal and civil sanctions for violations of this Section
as well as compensation to the rehabilitation of victims of torture or similar
practices, and their families”.
5. “Excessive
fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted”.
6. “Neither
shall death penalty be imposed, unless, for compelling reasons involving
heinous crimes, the Congress hereafter provides for it”.
7. “Any
death penalty already imposed shall be reduced to reclusion perpetua”.
8. “The
employment of physical, psychological, or degrading punishment against any
prisoner or detainee or the use of substandard or inadequate penal facilities
under subhuman conditions shall be dealt with by law”.
***
Duterte - “That’s the reason why I’m
angry because it is not a simple police matter. It is an assault on my country.
If you put us in a bad situation, we will come up with a failed state.”
A – The cause of the institutional failure of the
Philippines as a state under the Duterte regime would not be the legal
profession or the criminal justice system but Duterte himself, his creeping
totalitarianism, autocracy, and Nazi-type repression and cruelty, his notorious
inconsistency, dishonesty, and narcissism,
and his violations of the 1987 Constitution and existing laws and
jurisprudence.
More importantly, he is prone to ignore Article III of
the 1987 Constitutional which provides for the “independence of the Judiciary”
and its “expanded power of judicial review”.
Duterte
- “What is the role of the law knowing
fully well how fast we can produce a conviction? Up to the Supreme Court, how
many years? While they are playing, they can give you [bail] bond, then they
will [return to selling illegal drugs].”
A – Delay is a major problem in all three co-equal
branches of the government, not only in the Judiciary.
The preliminary investigations of criminal cases by
the National Prosecution Service under the Department of Justice, the adjudication
of cases by quasi-judicial agencies, the investigations of crimes and the
arrest of the accused by the law enforcement agencies, and the processing of
the grant of executive clemency to convicted inmates, which are all under the
Executive, suffer from delay.
The legislative process in Congress, from the investigations
in aid of legislation phase to the final adoption of the enrolled bills phase,
by the two Houses thereof, suffer from delay.
The Judiciary, whose trial courts are burdened by
pending cases ranging from 500 to 1,500 cases (or even more) per sala, is not
an exception to delay. There are approximately 500,000 pending cases
nationwide. There around 800 trial courts that are vacant for lack of qualified
judicial applicants.
There are missions in public service that are
physically impossible to achieve because of human limitations and constraints
in fiscal resources.
It must be noted that since the 1986 Edsa People Power
Revolution, the Judiciary has taken serious and long-term programs to reform
the Justice System, the Rules of Court, the Case Management Systems and
Procedures in all trial courts, the Mandatory Continuing Legal Education of the
Bench and the Bar, the Free Legal Aid Fund, the construction of well-equipped
Halls of Justice nationwide, and many others.
To read the past and present improvements in the
foregoing issues, visit the Supreme Court website (www.sc.judiciary.gov.ph) and its
relevant links.
We thank the USAID, the European Union, Canada,
Australia, Germany and other Western countries for their grants, aids, and
loans in this regard.
***
Duterte - “Of course, I cannot prove my
case beyond reasonable doubt. I know that. I’ve been a prosecutor for years.
But to build a case, just select one. We have to assign about four or five
operatives.”
“We do not have the money and we
do not have the manpower. That’s why I had to declare a state of lawlessness to
justify the entry of the military to do police work and to be of assistance to
the police. I really lack manpower.”
A – I exhort Duterte: Obey the Bill of Rights of the
Constitution and the Rules of Court. If you cannot prove beyond reasonable
doubt your suspicions and accusations, that means you do not have well-developed
cases that are enough to convict the accused beyond reasonable doubt.
You need to improve the professional competence and
resources of your law enforcement and security agencies.
You must achieve your goal of establishing a ‘peace
and order paradise” in the Philippines “within six months from your assumption
to office” (June 30, 2016) without throwing the dead bodies of 100,000 suspects
in the Manila Bay.
Do you still remember your campaign promise to the
Filipinos that they can “kill you” if you fail to attain your goal within six
months?
If you lack the manpower and the resources to achieve
your (impossible) goals, the people ask: Why did you increase your intelligence
funds (which are not subject to audit), your discretionary funds, and travel
and representation funds for 2017 while decreasing the funds of many agencies under
you that ultimately impact on law enforcement, security, and social justice?
I see your speeches as excuses for your incompetence. A
narcissistic hypocrite, you promised too much during the campaign. You fooled
the gullible and ignorant sixteen million Filipinos who voted for you.
Atty. Manuel J.
Laserna Jr.
Partner, Laserna Cueva-Mercader Law Offices
Professor of Law, FEU (1985-2006)
Founder, Las Pinas City Bar Association (2001)
Vice President, IBP Pasay Paranaque Las Pinas
Muntinlupa (PPLM) Chapter (2004-2007)
Third Place, 1984 Bar Examinations (90.95%)
Las Pinas City, Philippines
December 10, 2016
