JELAC: may justices do nonjudicial tasks in government?

May 16, 2008

Letter to the Editor

Re: Open Letter to Chief Justice Reynato Puno in re:

JUDICIARY EXECUTIVE LEGISLATIVE ADVISORY AND

CONSULTATIVE COUNCIL (JELAC)

Mabuhay:

As a local Bar leader and as a concerned Filipino citizen, may I respectfully manifest some of my thoughts, if not misgivings, about the JELAC, for your kind consideration and for the good of the Philippine Justice System:

1. The practical goal of the JELAC seems to be plausible, i.e., to study ways and means of funding and supporting the physical and other needs of the Judiciary;

2. The composition of the JELAC seems to be effective because the highest officials of the land are sitting therein to make the necessary policy and funding decisions for the Judiciary;

3. The danger of the JELAC being manipulated by the Executive and/or the Legislative (especially by the Executive) to influence the independent mind of the Supreme Court En Banc is real and alarming, because the Chief Justice, as a member of the JELAC (under the Executive as the Chair thereof), will be jointly deciding on non-judicial matters (funding and tax issues to raise funds for the Judiciary, policy and administrative decisions, etc.) which may be raised in some future time before the Supreme Court En Banc by some public interest groups and concerned citizens and lawyers on constitutional and other equitable or jurisdictional grounds, in which case, an unethical conflict of interest situation would surely arise;

4. It is therefore not politically and ethically advisable for the Chief Justice or any Associate Justice of the Supreme Court, for that matter, to sit in the JELAC. Perhaps, the fears of the Bar may be alleviated if the Court Administrator (CA) and the Chair of the Philippine Judicial Academy (PHILJA) would sit in the JELAC, and not the Chief Justice or any Associate Justice ;

5. It is doubtful whether the Constitution and jurisprudence allow the Chief Justice or any Associate Justice of the Supreme Court to perform tasks other than those that may be characterized as judicial in nature and those outside the express mandate of Article VIII of the 1987 Constitution;

6. I do not wish to think that the JELAC is a political and financial trap laid by the Executive to influence the Supreme Court in the face of pending cases that personally affect the political survival of the sitting Executive and her political allies in Congress, because I wish to give the JELAC concept the benefit of the doubt; however, my mind is not at ease with the idea of the Chief Justice of he Supreme Court (the final and ultimate arbiter of constitutional issues and special civil actions questioning the abusive, oppressive, confiscatory, and unconstitutional acts and issuances of the Executive and the Legislative) sitting as a fellow planning and administrative officer of the Executive, the Speaker of the House of Representatives, and the Senate President (all of whom are partisan politicians) in a so-called consultative body.

7. I accept that the constitutional doctrine of separation of powers must not be misinterpreted as absolute isolationism by and among the three great branches of Government; however, I feel that delicadeza and caution must be exercised by them, especially by the Supreme Court, to insure that they avoid jeopardizing the integrity, neutrality, and independence of the Supreme Court.

8. If the Executive and Legislative wish to consult with the Judiciary on practical matters to improve the Philippine Justice System, their technical officers may simply sit down and discuss with the Office of the Court Administrator of the Supreme Court, without putting at risk the independent image of the Supreme Court in such mundane endeavors.

In conclusion, I humbly submit that the participation of the Chief Justice or any Associate Justice of the Supreme Court in the JELAC must be reconsidered.

Thank you.

Sincerely,

Atty. Manuel Laserna Jr.

Founder and Consultant –

Las Pinas City Bar Association;

Professor of Law, FEU (retired)

Past Vice President, IBP PPLM Chapter

---

[1] LPBA motto: “INJUSTICE ANYWHERE IS A THREAT TO JUSTICE EVERYWHERE.”, based on a speech of the great human rights advocate and Nobel Peace Prize winner Martin Luther King Jr.

Lawyers and due process

In the case of PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONCIO SANTOCILDES, JR. y SIGA-AN, accused-appellant, GR No. 109149, December 21, 1999, the Philippine Supreme Court stressed the crucial role that trial lawyers play in the justice system.

In the said case, the Court held that “where an accused was not duly represented by a member of the Philippine Bar during trial, the judgment should be set aside and the case remanded to the trial court for a new trial”.

In the said case, the accused was represented by a person who misrepresented himself to be a lawyer. The Court held that “a person who misrepresents himself as a lawyer shall be held liable for indirect contempt of court”.

The accused-appellant contended that he was represented during trial by a person named Gualberto C. Ompong, who for all intents and purposes acted as his counsel and even conducted the direct examination and cross-examinations of the witnesses.

On appeal, however, appellant secured the services of a new lawyer, Atty. Igmedio S. Prado, Jr., who discovered that Gualberto C. Ompong was actually not a member of the bar. Further verification with the Office of the Bar Confidant confirmed this fact.

The Office of the Solicitor General argued that notwithstanding the fact that appellant’s counsel during trial was not a member of the bar, appellant was afforded due process since he has been given an opportunity to be heard and that the said person “presented the evidence for the defense with the ability of a seasoned lawyer and in general handled the case of appellant in a professional and skillful manner.”

The Court, however, held “the right of the accused to be heard by himself and his counsel was much deeper than the question of ability or skill”. It was “the heart of our adversarial system of justice”. It held that “where the interplay of basic rights of the individual may collide with the awesome forces of the state, we need a professional learned in the law as well as ethically committed to defend the accused by all means fair and reasonable”.

Citing an earlier case, where petitioner and two others were convicted by the trial court of the crime of estafa, and where after entry of judgment, petitioner discovered that her lawyer was not a member of the bar and moved to set aside the entry of judgment, the Court “remanded the case to the trial court for a new trial”, explaining that “an accused person is entitled to be represented by a member of the bar in a criminal case filed against her before the Regional Trial Court (because) unless she is represented by a lawyer, there is great danger that any defense presented in her behalf will be inadequate considering the legal perquisites and skills needed in the court proceedings”, in which case, it “would certainly be a denial of due process.”

The Court also held, citing an earlier case, that “the right to counsel is of such primordial importance that even if an accused was represented by three successive counsels from the Public Attorney’s Office, the Court has ordered the remand of a rape case when it found that accused was given mere perfunctory representation by aforesaid counsels such that appellant was not properly and effectively accorded the right to counsel”. (People v. Bermas, G.R. No. 120420, April 21, 1999).

In the instant case, the Court held that “verily, we can do no less where the accused was not even duly represented by a certified member of the Philippine Bar, no matter how zealous his representation might have been”. It added:

The presence and participation of counsel in criminal proceedings should never be taken lightly. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. The right of an accused to counsel is guaranteed to minimize the imbalance in the adversarial system where the accused is pitted against the awesome prosecutory machinery of the State. Such a right proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is a part of a person’s basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.

The right to counsel of an accused is enshrined in no less than Article III, Sections 12 and 14 (2) of the 1987 Constitution. This constitutional mandate is reflected in Section 1 of Rule 115 of the 1985 Rules of Criminal Procedure which declares the right of the accused at the trial to be present in person and by counsel at every stage of the proceedings from the arraignment to the promulgation of judgment. In turn, Section 5 of Article VIII of the 1987 Constitution vests the power to promulgate rules concerning the admission to the practice of law to the Supreme Court. Section 1 of Rule 138 of the Rules of Court explicitly states who are entitled to practice law in the Philippines, and Section 2 thereof clearly provides for the requirements for all applicants for admission to the bar. Jurisprudence has also held that “the right to practice law is not a natural or constitutional right but is in the nature of a privilege or franchise. It is limited to persons of good moral character with special qualifications duly ascertained and certified. The right does not only presuppose in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust.” Indeed, so strict is the regulation of the practice of law that in Beltran, Jr. v. Abad, a Bar candidate who has already successfully hurdled the Bar examinations but has not yet taken his oath and signed the roll of attorneys, and who was caught in the unauthorized practice of law was held in contempt of court. Under Section 3 (e) of Rule 71 of the Rules of Court, a person who undertakes the unauthorized practice of law is liable for indirect contempt of court for assuming to be an attorney and acting as such without authority.

By:

Atty. Manuel J. Laserna Jr.

Jail decongestion

REPUBLIC ACT No. 6036 is one law that helps decongest the Philippine jails.

Sec. 1 thereof provides that “bail shall not be required of a person charged with violation of a municipal or city ordinance, a light felony and/or a criminal offense the prescribed penalty for which is not higher than six months imprisonment and/or a fine of two thousand pesos, or both, where said person has established to the satisfaction of the court or any other appropriate authority hearing his case that he is unable to post the required cash or bail bond”. The exceptions are:

(a) When he is caught committing the offense in flagranti;

(b) When he confesses to the commission of the offense unless the confession is later repudiated by him in a sworn statement or in open court as having been extracted through force or intimidation;

(c) When he is found to have previously escaped from legal confinement, evaded sentence, or jumped bail;

(d) When he is found to have previously violated the provisions of Section 2 hereof;

(e) When he is found to be a recidivist or a habitual delinquent or has been previously convicted for an offense to which the law or ordinance attaches an equal or greater penalty or for two or more offenses to which it attaches a lighter penalty;

(f) When he commits the offense while on parole or under conditional pardon; and

(g) When the accused has previously been pardoned by the municipal or city mayor for violation of municipal or city ordinance for at least two times.

Section 2 of the said law provides that “instead of bail, the person charged … shall be required to sign in the presence of two witnesses of good standing in the community a sworn statement binding himself, pending final decision of his case, to report to the Clerk of the Court hearing his case periodically every two weeks”.

The Court may, in its discretion and with the consent of the person charged, require further “that he be placed under the custody and subject to the authority of a responsible citizen in the community who may be willing to accept the responsibility”.

In such a case, the affidavit of the accused shall “include a statement of the person charged that he binds himself to accept the authority of the citizen so appointed by the Court”.

REPUBLIC ACT No. 6127 is another law that helps decongest the Philippine jails.

Section 1 thereof amends Article 29 of the Revised Penal Code to read as follows:

"Art. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases:

1. When they are recidivists, or have been convicted previously twice or more times of any crime; and

2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily;

"If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment."

Probation is, of course, a very important legal instrument that contributes to the decongestion of Philippine jails.

PRESIDENTIAL DECREE No. 968 July 24, 1976 is the Philippine Probation Law of 1976.

Subject to the provisions of the Decree, the trial court may, after it shall have convicted and sentenced a defendant and upon application at any time of said defendant, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.

An application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction.

The filing of the application shall be deemed a waver of the right to appeal, or the automatic withdrawal of a pending appeal.

An order granting or denying probation shall not be appealable.

No person shall be placed on probation except upon prior investigation by the probation officer and a determination by the court that the ends of justice and the best interest of the public as well as that of the defendant will be served thereby.

Pending submission of the investigation report and the resolution of the petition, the defendant may be allowed on temporary liberty under his bail filed in the criminal case; provided, that, in case where no bail was filed or that the defendant is incapable of filing one, the court may allow the release of the defendant on recognizance under the custody of a responsible member of the community who shall guarantee his appearance whenever required by the court.

In determining whether an offender may be placed on probation, the court shall consider all information relative, to the character, antecedents, environment, mental and physical condition of the offender, and available institutional and community resources. Probation shall be denied if the court finds that:

(a) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

(b) there is undue risk that during the period of probation the offender will commit another crime; or

(c) probation will depreciate the seriousness of the offense committed.

The benefits of the Probation Law shall not be extended to those:

(a) sentenced to serve a maximum term of imprisonment of more than six years and one day;

(b) convicted of any offense against the security of the State;

(c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos;

(d) who have been once on probation under the provisions of this Decree; and

(e) who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof.

Every probation order issued by the court shall contain conditions requiring that the probationer shall:

(a) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order;

(b) report to the probation officer at least once a month at such time and place as specified by said officer.

The court may also require the probationer to:

(a) cooperate with a program of supervision;

(b) meet his family responsibilities;

(c) devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer;

(d) undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose;

(e) pursue a prescribed secular study or vocational training;

(f) attend or reside in a facility established for instruction, recreation or residence of persons on probation;

(g) refrain from visiting houses of ill-repute;

(h) abstain from drinking intoxicating beverages to excess;

(i) permit to probation officer or an authorized social worker to visit his home and place or work;

(j) reside at premises approved by it and not to change his residence without its prior written approval; or

(k) satisfy any other condition related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed two years, and in all other cases, said period shall not exceed six years. When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment in case of insolvency, the period of probation shall not be less than nor to be more than twice the total number of days of subsidiary imprisonment as computed at the rate established, in Article thirty-nine of the Revised Penal Code, as amended.

At any time during probation, the court may issue a warrant for the arrest of a probationer for violation of any of the conditions of probation. The probationer, once arrested and detained, shall immediately be brought before the court for a hearing, which may be informal and summary, of the violation charged. The defendant may be admitted to bail pending such hearing. If the violation is established, the court may revoke or continue his probation and modify the conditions thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed. An order revoking the grant of probation or modifying the terms and conditions thereof shall not be appealable.

After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated.

The final discharge of the probationer shall operate to restore to him all civil rights lost or suspend as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted.

The investigation report and the supervision history of a probationer obtained under this Decree shall be privileged and shall not be disclosed directly or indirectly to anyone other than the Probation Administration or the court concerned, except that the court, in its discretion, may permit the probationer of his attorney to inspect the aforementioned documents or parts thereof whenever the best interest of the probationer make such disclosure desirable or helpful: Provided, Further, That, any government office or agency engaged in the correction or rehabilitation of offenders may, if necessary, obtain copies of said documents for its official use from the proper court or the Administration.

By:

Atty. Manuel J. Laserna Jr.

Executive secrecy

I wish to briefly summarize below the salient parts of the dissenting opinion of Chief Justice Reynato Puno in the case of “ROMULO L. NERI vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS & INVESTIGATIONS (BLUE RIBBON), et. al.”, docketed as G.R. No. 180643 and promulgated on March 25, 2008 on 9-6 voting by a divided Philippine Supreme Court. The Senate has filed a motion for reconsideration of the Supreme Court's ruling. It is still pending.

The case involved “the scope and use of executive privilege” which had cast a long shadow on the ongoing Senate inquiry regarding the “attempted bribery of high government officials in the consummation of the National Broadband Network (NBN) Contract of the Philippine government”.

On April 21, 2007, the Department of Transportation and Communications (DOTC), through Secretary Leandro Mendoza, and Zhing Xing Telecommunications Equipment (ZTE), through its Vice President Yu Yong, executed in Boao, China, a “Contract for the Supply of Equipment and Services for the National Broadband Network Project” (“NBN-ZTE Contract”) worth US$ 329,481,290.00 or approximately PhP 16 billion. ZTE is a corporation owned by the Government of the People’s Republic of China. The NBN-ZTE Contract was “to be financed through a loan that would be extended by the People’s Republic of China”. President Gloria Macapagal-Arroyo “witnessed the signing of the contract”.

The NBN-ZTE Contract became the subject of investigations by the Joint Committees of the Senate, consisting of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon), Committee on Trade and Commerce and Committee on National Defense and Security after the filing of resolutions and delivery of privilege speeches by Sen. Aquilino Pimentel Jr., Sen. Panfilo Lacson, Sen. Miriam Santiago, and Sen. Manuel Roxas III.

The hearings in aid of legislation started in September 2007 and have yet to be concluded.

On September 26, 2007, petitioner Romulo L. Neri, upon invitation by the respondent Senate Committees, attended the hearing and testified. Petitioner was the Director General of the National Economic and Development Authority (NEDA) during the negotiation and signing of the NBN-ZTE Contract. He testified “that President Macapagal-Arroyo had initially given instructions that there would be no loan and no guarantee for the NBN Project, and that it was to be undertaken on an unsolicited Build-Operate-Transfer (BOT) arrangement, so that the government would not expend funds for the project”. Eventually, however, “the NBN Project was awarded to ZTE with a government-to-government loan”.

Petitioner Neri declared “that then Commission on Elections Chairperson Benjamin Abalos, the alleged broker of the NBN-ZTE Contract, offered him PhP 200 million in relation to the NBN-ZTE Contract”. He stated that he informed President Macapagal-Arroyo of the bribe attempt by Chairperson Abalos, and “that the President told him not to accept the bribe”. When Senator Francis N. Pangilinan asked petitioner whether the President had followed up on the NBN Contract, he refused to answer. He invoked “executive privilege which covers conversations between the President and a public official”. Senator Loren B. Legarda asked petitioner if there was any government official higher than he who had dictated that the ZTE be prioritized over Amsterdam Holdings, Inc. (AHI), another company applying to undertake the NBN Project on a BOT arrangement. Petitioner again invoked executive privilege, as he claimed that the question may involve a conversation between him and the President. Senator Pia S. Cayetano also asked petitioner whether the President told him what to do with the project - after he had told her of the PhP 200 million attempted bribe and she told him not to accept it – but petitioner again invoked executive privilege. At this juncture, Senator Rodolfo G. Biazon, Chairperson of the Committee on National Defense and Security, sought clarification from petitioner on his source of authority for invoking executive privilege. Petitioner replied that “he had been instructed by Executive Secretary Eduardo R. Ermita to invoke executive privilege on behalf of the President, and that a written order to that effect would be submitted to the respondent Senate Committees”.

Several Senators urged petitioner to inform the respondent Senate Committees of “the basis for his invocation of executive privilege as well as the nature and circumstances of his communications with the President -- whether there were military secrets or diplomatic and national security matters involved”. Petitioner did not accede and instead cited the coverage of executive privilege under “Section 2(a) of Executive Order 464”, which includes “all confidential or classified information between the President and public officers covered by the Executive Order, such as conversations, correspondence between the President and public official.” As respondent Senate Committees needed to know the basis for petitioner’s invocation of executive privilege in order to decide whether to accept it or not, the petitioner was invited to an “executive session” to discuss the matter. During the executive session, however, petitioner felt ill and was allowed to go home with the undertaking that he would return.

On November 13, 2007, a subpoena ad testificandum was issued to petitioner, requiring him to appear before the Committee on Accountability of Public Officers and Investigations (Blue Ribbon). The subpoena was signed by Senator Alan Peter S. Cayetano, Chairperson of the Senate Blue Ribbon Committee; Senator Manual A. Roxas III, Chairperson of the Committee on Trade and Commerce; and Senator Rodolfo G. Biazon, Chairperson of the Committee on National Defense and Security; and it was approved and signed by Senate President Manuel B. Villar.

On November 15, 2007, Executive Secretary Eduardo Ermita wrote to respondent Senate Blue Ribbon Committee Chairperson Alan Peter Cayetano. He communicated the request of the Office of the President to dispense with the petitioner’s testimony on November 20, 2007. The three (3) questions for which executive privilege was invoked “by Order of the President” were the following:

“a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?

c) Whether the President said to go ahead and approve the project after

being told about the alleged bribe?”

The letter of Executive Secretary Ermita stated that the foregoing questions fell “under conversations and correspondence between the President and public officials which are considered executive privilege”, citing Almonte v. Vasquez, G.R. 95367, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002. He added that “disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations”. He stated that the context in which executive privilege is being invoked is that the information sought to be disclosed “might impair our diplomatic as well as economic relations with the People’s Republic of China” and that given the confidential nature in which these information were conveyed to the President, “he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect”.

Petitioner did not appear before the respondent Senate Committees on November 20, 2007. Consequently, on November 22, 2007, the committees wrote to petitioner requiring him “to show cause why he should not be cited for contempt for failing to attend the hearing on November 20, 2007, pursuant to Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon)”. The letter was signed by the Chairpersons of the Senate Blue Ribbon Committee, the Committee on Trade and Commerce and the Committee on National Defense and Security and was approved by the Senate President.

On December 6, 2007, petitioner filed the Petition at bar contending that he had properly invoked executive privilege to justify his non-appearance at the November 20, 2007 hearing and praying that the Show Cause Order dated November 22, 2007 be declared null and void.

On January 30, 2008, an Order citing petitioner for contempt was issued by respondent Senate Committees, “ordering his arrest and detention in the Office of the Senate Sergeant-At-Arms until such time that he will appear and give his testimony”.

On January 30, 2008, petitioner wrote to Senate President Manuel Villar, Senator Alan Peter S. Cayetano, Chairperson of the Committee on Accountability of Public Officers & Investigations (Blue Ribbon); Senator Manuel Roxas, Chairperson of the Committee on Trade & Commerce; and Senator Rodolfo G. Biazon, Chairperson of the Committee on National Defense and Security, seeking reconsideration of the Order of arrest.

On February 5, 2008, petitioner filed a Supplemental Petition for Certiorari, praying that the Court issue a Temporary Restraining Order or Writ of Preliminary Injunction enjoining respondent Senate Committees from enforcing the Order for his arrest, and that the Order of arrest be annulled.

Respondent Senate Committees filed their comment, arguing that: (1) there is no valid justification for petitioner to claim executive privilege; (2) his testimony is material and pertinent to the Senate inquiry in aid of legislation; (3) the respondent Senate Committees did not abuse their authority in issuing the Order of arrest of petitioner; and (4) petitioner did not come to Court with clean hands.

On March 4, 2008, the Oral Argument was held. Thereafter, the Court ordered the parties to submit their memoranda. Both parties submitted their Memoranda on March 17, 2008. On the same day, the Office of the Solicitor General filed a Motion for Leave to Intervene and to Admit Attached Memorandum.

In the Oral Argument held on March 4, 2008, the Court delineated the following issues to be resolved:

1. What communications between the President and petitioner Neri are covered by the principle of executive privilege?

2. What is the proper procedure to be followed in invoking executive privilege?

3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for noncompliance with the subpoena?

Chief Justice Puno opened his dissenting opinion by defining executive privilege as the “tension between disclosure and secrecy in a democracy”. He stated that “the provisions of the U.S. Constitution say little about government secrecy or public access” while “in contrast, the 1987 Philippine Constitution is replete with provisions on government transparency, accountability and disclosure of information”.

The express provisions of the 1987 Philippine Constitution are as follows:

1. Article III, Sec. 7, of the 1987 Constitution provides that “the right of the people to information on matters of public concern shall be recognized”; and that “access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law”.
2. Article II, Sec. 24, of the 1987 Constitution provides that “the State recognizes the vital role of communication and information in nation-building”. Sec. 28 of the said Article II provides that “subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest”.
3. Article XI, Sec. 1, of the 1987 Constitution, on the Accountability of Public Officers, states 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”.
4. Article XI, Sec. 21, of the 1987 Constitution, on National Economy and Patrimony, states, that “foreign loans may be incurred in accordance with law and the regulation of the monetary authority”; and that “information on foreign loans obtained or guaranteed by the Government shall be made available to the public”.
5. Article XVI, Sec. 10, of the 1987 Constitution, on General Provisions, states that “the State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press”.

Puno reminded the Court that “the separation of powers between the three branches of government is not absolute”; and that the Constitution “enjoins upon its branches separateness but interdependence, and autonomy but reciprocity …according to common sense and the necessities of governmental co-ordination”, a constitutional design that “requires an internal balancing mechanism”.

Citing the fact that the standard justification for a congressional investigation in aid of legislation is the presumed need for new or remedial legislation, Puno stated that Article VI, Section 21 of the 1987 Constitution provides that “the Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure” and that “the rights of persons appearing in or affected by such inquiries shall be respected”. He stated that “included in the legislative power of investigation is the power of contempt or process to enforce”, which is incidental, implied, essential and appropriate auxiliary to the legislative function.

According to Puno, there are two requirements for the valid exercise of the legislative power of investigation and contempt of witness for contumacy: “first, the existence of a legislative purpose, i.e., the inquiry must be in aid of legislation, and second, the pertinency of the question propounded”.

According to Puno, there is legislative purpose when the subject matter of the inquiry is one over which the legislature can legislate, such as the appropriation of public funds; and the creation, regulation and abolition of government agencies and positions. It is presumed that the facts are sought by inquiry, because the “legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”

As to the pertinency of the question propounded, Puno argued that the test of pertinency is whether a question itself is in the ultimate area of investigation; and that in determining pertinency, the court looks to the history of the inquiry as disclosed by the record. The inquiry, to be within the jurisdiction of the legislative body to make, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate, or to expel a Member; and every question which the investigator is empowered to coerce a witness to answer must be material or pertinent to the subject matter of the inquiry or investigation.

Neri invoked “executive privilege” as a defense in his refusal to answer the questions of the Senate.

The U.S. Constitution (and the Philippine Constitution) does not directly mention “executive privilege,” but commentators theorized that the privilege of confidentiality is constitutionally based, as it relates to the President’s effective discharge of executive powers. Puno stated that the history of executive privilege showed that the privilege was strongest when used not out of a personal desire to avoid culpability, but based on a legitimate need to protect the President’s constitutional mandate to execute the law, to uphold prudential separation of powers, and above all, to promote the public interest.

In the U.S., at least four kinds of executive privilege can be identified in criminal and civil litigation and the legislative inquiry context: (1) military and state secrets, (2) presidential communications, (3) deliberative process, and (4) law enforcement privileges.

However, there is a need to balance the constitutional functions between the contending branches of government, i.e., the President and the Senate. The court should determine whether disclosure of the disputed information impairs the President’s ability to perform her constitutional duties more than disclosure would impair Congress’s ability to perform its constitutional functions. The balancing should result in the promotion of the public interest.

The courts have the power to assess whether nondisclosure of the information sought will seriously impair the performance of the constitutional function of the Senate to legislate. A general claim of a chilling effect on the President’s performance of her functions if the controversial questions were answered is not enough. Although the courts may accord presidential communications a presumptive privilege, the strength of this privilege is weakened by the fact that the subject of the communication involves a contract with a foreign loan. The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank).

By:

Atty. Manuel J. Laserna Jr.

Surveys: Philippine justice system

For legal research purposes, especially of analysts and advocates of law and justice reforms, I wish to summarize below the results of the 2004 to 2006 surveys of the Philippine justice system and legal profession conducted by the prestigious Social Weather Station (SWS).

In a 2004-2005 survey of the Philippine justice system conducted by SWS, involving 400 Filipino lawyers and 889 Filipino judges, the following salient findings were stated:

1. That 69% of Filipino lawyers were satisfied, and only 27% dissatisfied, with the general performance of trial judges in the Philippines;

2. That the proportion of Filipino judges asserting that poor people could get justice under the Philippine judicial system was 75%, compared to 61% in the previous SWS referendum of judges conducted in 1995/96;

3. That, however, only 53% of Filipino lawyers agreed that the poor could get justice, compared to 50% of those surveyed by SWS in 1994/95;

4. That half of lawyers and more than two-thirds of judges said that the judiciary's intervention in economic decision-making was just appropriate, neither excessive nor insufficient;

5. That lawyers had very mixed feelings on judicial procedure in the Philippines, with 49% satisfied and 48% dissatisfied, which is essentially the same as in 1995, when 48% were satisfied and 51% were dissatisfied;

6. That 82% of judges in 2005, compared to 80% in 1996, were satisfied with judicial procedure;

7. That 63% of lawyers and 53% of judges were dissatisfied with the process of selecting appointees to the judiciary;

8. That large majorities of lawyers complained that courts operate too slowly, but larger majorities of judges said that courts proceeded at a reasonable if not speedy pace, and blamed lawyers for prolonging cases in order to get more income from appearance fees;

9. That two of every three lawyers, and one of every two (46%) judges say that court decisions were unpredictable (these perceptions were unchanged from 8-9 years ago);

10. That corruption remained a major problem of the Philippine justice system.

11. That As in 1995, one-fourth of lawyers surveyed in 2005 said Many/Very Many judges were corrupt;

12. That although half (49%) of the lawyers said they knew a case in their own city or province where a judge took a bribe, only 8% of such lawyers said they reported the bribery, the main excuse of those keeping silent being that they could not prove it;

13. That only 7% of the judges believed that Many/Very Many judges were corrupt;

14. That judges' perception of the extent of corruption among court personnel was the same as in 1996 and that what had increased was the proportion of judges seeing many lawyers as corrupt;

15. That among seven institutions whose performance was rated by both lawyers and judges, the Supreme Court scored the highest, while the Philippine National Police scored the lowest, and very unfavorably;

16. That the Philippine Judicial Academy (PHILJA) got a very high rating, even higher than the Supreme Court, from judges, but was not included in the survey of lawyers;

17. That the Philippine Judges Association (PJA) satisfied most judges (net +30), but not most lawyers (net -2);

18. That satisfaction had risen with the Integrated Bar of the Philippines (IBP) and the Public Attorneys' Office (PAO), but had dropped with the Court of Appeals (CA);

19. That the National Prosecution Service (NPS) of the Department of Justice (DOJ) and the PNP continued to be rated negatively, as before;

20. That it was widely agreed that court professionals and personnel were poorly paid - even worse than before, in the eyes of lawyers, but perhaps only as poorly as before, according to judges;

21. That judges who felt adequately compensated had risen slightly, from 17% in 1996 to 22% in 2004;

22. That it was also widely agreed that court facilities were poor;

23. That on the bright side, judges who called their court facilities adequate had doubled, from only 11% in 1996 to 23% in 2004;

24. That the access of judges to basic office equipment and legal reference materials paled in comparison with the access of lawyers to the same facilities in their offices;

25. That, asked about language to use in court proceedings, over three-fourths of both lawyers and judges disagreed with the idea of introducing the use of Filipino and local languages;

26. That job satisfaction continued to be high among both judges (42% Very Satisfied and 51% Satisfied) and lawyers (34% Very Satisfied and 59% Satisfied);

In a 2006 survey of the Philippine justice system, the SWS reported the following:

1. That the proportion of Philippine judges feeling poorly paid had fallen steadily over the past ten years;
2. That their physical security was an important concern, with the great majority saying they needed adequate life insurance and a personal firearm;
3. That for the first time, judges said that the Continuous Trial System was working;
4. That four out of five believed that court decisions were consistent, meaning they followed precedents;
5. That judges cited increasing problems with the Rules of Court compared to two years ago;
6. That fewer disagreed that the rules are too cumbersome, and that the rules encouraged corruption;
7. That with many judges' positions having been vacated and re-filled, the new study showed quite a few as relatively new on the job: 22% have at most two years, and 43% have at most five years, of experience as judges;
8. That male judges had a median eight years, and female judges have a median five years, of experience;
9. That one-third of judges were responsible for two or more courts;
10. That the median caseload was 300 cases per judge: 382 for RTC judges and 236 for the rest;
11. That judges continued to stress the importance of proper training for their work, with 61% saying the Philippine Judicial Academy's pre-judicature program should be mandatory for appointment to the bench;
12. That those wanting promotion to be based, to some extent, on attendance in training seminars was 64%, from 53% two years ago;
13. That the proportion of judges who regarded their compensation as adequate rose significantly from 17% in 1995/96 to 22% in 2003/04, and then to 36% in 2005/06;
14. That only 61% called their compensation inadequate, versus 81% a decade ago;
15. That the fringe benefits that judges would most appreciate were health and hospitalization insurance and improved retirement benefits, which nine out of 10 called "very important";
16. That they were particularly adamant that the policy of adjusting benefits for retired justices, whenever salaries of incumbent justices were increased, should also be applied to ordinary judges;
17. That, on the new topic of physical security, the study found that 85% of judges needed but only 11% have adequate life/disability insurance;
18. That 64% needed but only 16% had a personal firearm with license to carry;
19. That 28% needed but only 4% have an armed bodyguard;
20. That the percentage of judges disagreeing that the Rules of Court were too cumbersome decreased from 58% in 2003/2004 to 37% in 2005/06, due to an increase in the undecided from 3% in 2003/04 to 21% in 2005/06;
21. That the most common reasons given for the Rules being cumbersome were:

21.1. They made unreasonable demands on the time and resources of judges;

21.2. They allowed dilatory tactics of lawyers; and

21.3. They became complex because of numerous circulars.

22. That equally worrisome was the decline in the proportion who disagreed that the Rules of Court encouraged corruption, from 80-81% in 1995/96 and 2003/04 to 64% in 2005/06;
23. That the Rules perceived as most conducive to corruption are on execution of judgment and provisional remedies;
24. That among the judges that had a Court-Annexed Mediation (CAM) program in their area, two out of three were satisfied with the program and with the performance of the accredited mediators;
25. That a clear tendency for satisfaction with CAM was greater among judges with heavier personal caseloads;
26. That satisfaction among judges with the Barangay Justice System has risen significantly to 38% in 2005/06, compared to only 22% nine years ago;
27. That the proportion of judges saying that the Continuous Trial System (CTS) worked had risen to a plurality of 43% from a minority 31% two years ago, and the proportion saying it does not work has fallen to a minority 35% now from a majority 60% before;
28. That the problems most cited by judges about the CTS, whether they thought the system worked or not, was the unavailability of prosecutors (58%), lawyers and litigants (52%), and lawyers from the Public Attorney's Office (50%);
29. That the problem of overclogging of court dockets (48%) directly related to judges' dissatisfaction with the system;
30. That judges were asked if court decisions tend to follow precedents; SWS obtained ratings for consistency of 81% for the Supreme Court, 81% for the Regional Courts, 81% for the lower trial courts, and 72% for the Court of Appeals;
31. That the proportions who said there were many/very many corrupt judges or justices were: 17% in reference to RTC judges, 14% in reference to MTC judges, 12% in reference to Court of Appeals justices, 4% in reference to Shari'a Court judges, 4% in reference to Sandiganbayan justices and 2% in reference to Supreme Court justices;
32. That there was a relation between judges' appraisal of consistency in the decisions of various courts and their perceptions of corruption in those courts:
33. That the higher their rating of consistency in decisions of a particular court level, the smaller was their estimate of the number of corrupt judges in that court level;

The new SWS study recommended that the Supreme Court institutionalize regular feedback mechanisms for not only trial judges but also for other judiciary personnel, so that all may be consulted on the situations, issues and challenges that they face.

In a 2005 survey on judicial appointments, the SWS reported:

1. That a strong Knowledge of the Law was by far the public's top expectation of a Chief Justice of the Supreme Court, having been cited by 63% of those asked in the survey;
2. That the other most-cited criteria for a new Chief Justice were: second, Respect for Human Rights (37%), third, Sensitivity to the Needs of the Poor (32%), and fourth, Moral Character (30%);
3. That Experience as a Supreme Court Justice, or the principle of seniority, was cited by 28%, making it only the fifth most important criterion according to the values of the general public;
4. That Seniority was closely followed by the cluster of Sworn to Democracy (23%), Ability to Resist Pressure from Politicians (22%), and Sincerity in Fighting Corruption (22%);
5. That much less important, from a list of ten criteria drawn up by SWS, were Sincerity in Fighting Crime (13%), and Ability to Cooperate with Other Branches of Government (7%);

On the matter of alternative law groups, which are nongovernmental organizations engaged in what is called “developmental” legal practice, the SWS cited as an outstanding example the organization BALAOD-Mindanaw (Balay Alternative Legal Advocates for Development in Mindanaw, Inc.), which assisted the Sumilao farmers—who walked more than 1,600 kilometers, all the way from Bukidnon to Manila, late last year (2007) —in obtaining their legal rights under agrarian reform.

Their lawyers from BALAOD (which is Visayan for “law”), who received little or no pay for their work, were no pushovers for the high-priced lawyers of their powerful adversary, San Miguel Farms, the SWS said.

The alternative law groups are concerned with human rights in general.

Legal education and research, legal policy reform advocacy, direct legal services, and test case litigation are major parts of their work.

Some, like BALAOD, focus on peasants, while others deal with migrant workers, indigenous peoples, people living with HIV/AIDS, the environment, and so forth.

Alternative Law Groups Inc. is a formal coalition of 18 alternative law groups.

In a 2008 survey of alternative law practitioners conducted by SWS, it found that 86 percent felt that substantive legal rights had improved, 73 percent said that services to avail of their legal rights had improved, and 67 percent said that procedures to access justice had improved, compared to five years ago. Some felt that these conditions were unchanged, but very few said they had worsened.

They attributed the improvement over time to new laws (e.g. the Juvenile Justice Act) and procedures, and to better support services, particularly from the Department of Social Welfare and Development and some local governments.

The ALG Inc. may be contracted at Room 215, Institute of Social Order, Ateneo de Manila University, Loyola Heights, Quezon City, secretariat@alternativelawgroups.org. Inquiries may be directed to the ALG coordinator, Atty. Marlon J. Manuel, mjmanuel19@yahoo.com.

For more info about SWS, visit www.sws.org.ph or email mahar.mangahas@sws.org.ph.

Prepared by:

Atty. Manuel J. Laserna Jr.

LCM LAW, Las Pinas City

Las Pinas City Bar Association Inc.

To the new Filipino lawyers

For legal ethics-related research purposes of the readers, may I share the full text of Mr. Tony Meloto’s advice to the law graduates of San Beda College of Law (2008), which my US-based friend Mr. Manuel Caballero has emailed to me, to wit:

1. Take the high road. Go for integrity and honor above money and power. Your vision for success must be anchored on principles and values, not on greed and ambition. Money and power will come… and will last… and will be a source of happiness… if they are earned without shame and if they are used to promote the good of others.

2. Serve the greater good. Commit yourself to the bigger collective benefit, not just pursue your limited self-interest. Your families’ welfare will best be served not by confining them in the walls of your exclusive villages, but by joining us work for social justice until there are no more Filipinos who are squatters in their own land and no more troubled slums that will raise criminals who will harm our children.

3. Seek the highest interest of the lowest and the weakest. Serve the poor and you will gain a rich country. Help us liberate the urban poor from the control of squatter syndicates who rent out or sell the rights to private and public land that they do not own. Provide us legal support in securing land to relocate victims of calamities and conflict to safer areas where we can build productive Gawad Kalinga communities for them. If we do that effectively and expeditiously, we will stop many of them from squatting in Metro Manila and other cities; and hopefully, even do reverse migration back to the countryside in the future to those presently living miserable lives in our urban slums. We will recover our lost treasure and regain our social capital by bringing out the gold in our people who have been covered with dirt for generations because of neglect and exploitation.

4. Raise the bar of excellence in public service. Erase the public perception that all politicians in our country are corrupt. This is not an insult only to politicians, but to you and me as well as citizens of this country. In fact, it would be great if you would consider running for office and help bring new politics to our country and restore public trust in our political system. If you want to serve, go back to the provinces where you come from with the right motivation to be a good leader and not simply to become another traditional politician who has mastered the art of winning elections by any means. In our engagements with over 360 LGUs, I have always challenged the top local executive to become “the best mayor” his town ever had. Most of them have responded enthusiastically and we are seeing more and more of them becoming agents of change and builders of hope in their municipality. If we fuel the momentum and continue to raise the bar of excellence, the ugly shanties that constantly remind us that we are a third-world country will soon disappear, the fields will be green with abundance, and those who have taken arms will go back to the comfort of their families and start to live in peace.

5. Finally, love this country with all your heart and value the privilege of being Filipino. Before you are a lawyer, a judge or a mayor, you are first a Filipino. For you to live in honor, you have to treasure your birthright and to raise the dignity of our people most of whom live without honor because of poverty and corruption.

Note:

Mr. Meloto is the founder of the Couples for Christ’s (CFC) Gawad Kalinga, a housing NGO. He was the Philippine Daily Inquirer’s Man of the Year in 2006 for his said accomplishment.

Mr. Caballero is a columnist of the New Jersey-based The Filipino Reporter, a widely read Philippine-oriented newspaper in the East Coast. He is a CFC leader in New Jersey.