Constitutional right to bear arms; limitations.

In the recent case of DISTRICT OF COLUMBIA et al. v. HELLER, No. 07-290, June 26, 2008, http://laws.findlaw.com/us/000/07-290.html, the US Supreme Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home; that the Second Amendment right is not unlimited because it is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose; and that the District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense.

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device.

Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home.

The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22-28.

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28-30.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32-47.

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264-265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition--in the place where the importance of the lawful defense of self, family, and property is most acute--would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56-64.

478 F. 3d 370, affirmed.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

By:

Atty. Manuel J. Laserna Jr.

Death not proportional penalty in child rape cases?

In the recent case of KENNEDY v. LOUISIANA, No. 07-343, June 25, 2008, http://laws.findlaw.com/us/000/07-343.html, the US Supreme Court held that “the Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death”.

Louisiana charged petitioner with the aggravated rape of his then-8-year-old stepdaughter. He was convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12. The State Supreme Court affirmed, rejecting petitioner's reliance on Coker v. Georgia, 433 U. S. 584, which barred the use of the death penalty as punishment for the rape of an adult woman but left open the question which, if any, other nonhomicide crimes can be punished by death consistent with the Eighth Amendment. Reasoning that children are a class in need of special protection, the state court held child rape to be unique in terms of the harm it inflicts upon the victim and society and concluded that, short of first-degree murder, there is no crime more deserving of death. The court acknowledged that petitioner would be the first person executed since the state law was amended to authorize the death penalty for child rape in 1995, and that Louisiana is in the minority of jurisdictions authorizing death for that crime. However, emphasizing that four more States had capitalized child rape since 1995 and at least eight others had authorized death for other nonhomicide crimes, as well as that, under Roper v. Simmons, 543 U. S. 551, and Atkins v. Virginia, 536 U. S. 304, it is the direction of change rather than the numerical count that is significant, the court held petitioner's death sentence to be constitutional.

Held: The Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim's death. Pp. 8-36.

1. The Amendment's Cruel and Unusual Punishment Clause "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101. The standard for extreme cruelty "itself remains the same, but its applicability must change as the basic mores of society change." Furman v. Georgia, 408 U. S. 238, 382. Under the precept of justice that punishment is to be graduated and proportioned to the crime, informed by evolving standards, capital punishment must "be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.' " Roper, supra, at 568. Applying this principle, the Court held in Roper and Atkins that the execution of juveniles and mentally retarded persons violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime. The Court also has found the death penalty disproportionate to the crime itself where the crime did not result, or was not intended to result, in the victim's death. See, e.g., Coker, supra; Enmund v. Florida, 458 U. S. 782. In making its determination, the Court is guided by "objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions." Roper, supra, at 563. Consensus is not dispositive, however. Whether the death penalty is disproportionate to the crime also depends on the standards elaborated by controlling precedents and on the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose. Pp. 8-10.

2. A review of the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, demonstrates a national consensus against capital punishment for the crime of child rape. Pp. 11-23.

(a) The Court follows the approach of cases in which objective indicia of consensus demonstrated an opinion against the death penalty for juveniles, see Roper, supra, mentally retarded offenders, see Atkins, supra, and vicarious felony murderers, see Enmund, supra. Thirty-seven jurisdictions--36 States plus the Federal Government--currently impose capital punishment, but only six States authorize it for child rape. In 45 jurisdictions, by contrast, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 in Enmund that prohibited the death penalty under the circumstances those cases considered. Pp. 11-15.

(b) Respondent's argument that Coker's general discussion contrasting murder and rape, 433 U. S., at 598, has been interpreted too expansively, leading some States to conclude that Coker applies to child rape when in fact it does not, is unsound. Coker's holding was narrower than some of its language read in isolation indicates. The Coker plurality framed the question as whether, "with respect to rape of an adult woman," the death penalty is disproportionate punishment, id., at 592, and it repeated the phrase "adult woman" or "adult female" eight times in discussing the crime or the victim. The distinction between adult and child rape was not merely rhetorical; it was central to Coker's reasoning, including its analysis of legislative consensus. See, e.g., id., at 595-596. There is little evidence to support respondent's contention that state legislatures have understood Coker to state a broad rule that covers minor victims, and state courts have uniformly concluded that Coker did not address that crime. Accordingly, the small number of States that have enacted the death penalty for child rape is relevant to determining whether there is a consensus against capital punishment for the rape of a child. Pp. 15-20.

(c) A consistent direction of change in support of the death penalty for child rape might counterbalance an otherwise weak demonstration of consensus, see, e.g., Atkins, 536 U. S., at 315, but no showing of consistent change has been made here. That five States may have had pending legislation authorizing death for child rape is not dispositive because it is not this Court's practice, nor is it sound, to find contemporary norms based on legislation proposed but not yet enacted. Indeed, since the parties submitted their briefs, the legislation in at least two of the five States has failed. Further, evidence that, in the last 13 years, six new death penalty statutes have been enacted, three in the last two years, is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation prohibiting the execution of mentally retarded persons. See id., at 314-315. Respondent argues that this case is like Roper because, there, only five States had shifted their positions between 1989 and 2005, one less State than here. See 543 U. S., at 565. But the Roper Court emphasized that the slow pace of abolition was counterbalanced by the total number of States that had recognized the impropriety of executing juvenile offenders. See id., at 566-567. Here, the fact that only six States have made child rape a capital offense is not an indication of a trend or change in direction comparable to the one in Roper. The evidence bears a closer resemblance to that in Enmund, where the Court found a national consensus against death for vicarious felony murder despite eight jurisdictions having authorized it. See 458 U. S., at 789, 792. Pp. 20-22.

(d) Execution statistics also confirm that there is a social consensus against the death penalty for child rape. Nine States have permitted capital punishment for adult or child rape for some length of time between the Court's 1972 Furman decision and today; yet no individual has been executed for the rape of an adult or child since 1964, and no execution for any other nonhomicide offense has been conducted since 1963. Louisiana is the only State since 1964 that has sentenced an individual to death for child rape, and petitioner and another man so sentenced are the only individuals now on death row in the United States for nonhomicide offenses. Pp. 22-23.

3. Informed by its own precedents and its understanding of the Constitution and the rights it secures, the Court concludes, in its independent judgment, that the death penalty is not a proportional punishment for the crime of child rape. Pp. 23-35.

(a) The Court's own judgment should be brought to bear on the death penalty's acceptability under the Eighth Amendment. See, e.g., Coker, supra, at 597. Rape's permanent and devastating impact on a child suggests moral grounds for questioning a rule barring capital punishment simply because the crime did not result in the victim's death, but it does not follow that death is a proportionate penalty for child rape. The constitutional prohibition against excessive or cruel and unusual punishments mandates that punishment "be exercised within the limits of civilized standards." Trop, 356 U. S., at 99-100. Evolving standards of decency counsel the Court to be most hesitant before allowing extension of the death penalty, especially where no life was taken in the commission of the crime. See, e.g., Coker, 433 U. S., at 597-598; Enmund, 458 U. S., at 797. Consistent with those evolving standards and the teachings of its precedents, the Court concludes that there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but "in terms of moral depravity and of the injury to the person and to the public," they cannot compare to murder in their "severity and irrevocability," id, at 598. The Court finds significant the substantial number of executions that would be allowed for child rape under respondent's approach. Although narrowing aggravators might be used to ensure the death penalty's restrained application in this context, as they are in the context of capital murder, all such standards have the potential to result in some inconsistency of application. The Court, for example, has acknowledged that the requirement of general rules to ensure consistency of treatment, see, e.g., Godfrey v. Georgia, 446 U. S. 420, and the insistence that capital sentencing be individualized, see, e.g., Woodson v. North Carolina, 428 U. S. 280, have resulted in tension and imprecision. This approach might be sound with respect to capital murder but it should not be introduced into the justice system where death has not occurred. The Court has spent more than 32 years developing a foundational jurisprudence for capital murder to guide the States and juries in imposing the death penalty. Beginning the same process for crimes for which no one has been executed in more than 40 years would require experimentation in an area where a failed experiment would result in the execution of individuals undeserving of death. Pp. 24-30.

(b) The Court's decision is consistent with the justifications offered for the death penalty, retribution and deterrence, see, e.g., Gregg v. Georgia, 428 U. S. 153, 183. Among the factors for determining whether retribution is served, the Court must look to whether the death penalty balances the wrong to the victim in nonhomicide cases. Cf. Roper, supra, at 571. It is not at all evident that the child rape victim's hurt is lessened when the law permits the perpetrator's death, given that capital cases require a long-term commitment by those testifying for the prosecution. Society's desire to inflict death for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. There are also relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a "special risk of wrongful execution" in some cases. Cf. Atkins, supra, at 321. As to deterrence, the evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of nonreporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member. And, by in effect making the punishment for child rape and murder equivalent, a State may remove a strong incentive for the rapist not to kill his victim. Pp. 30-35.

4. The concern that the Court's holding will effectively block further development of a consensus favoring the death penalty for child rape overlooks the principle that the Eighth Amendment is defined by "the evolving standards of decency that mark the progress of a maturing society," Trop, 356 U. S., at 101. Confirmed by the Court's repeated, consistent rulings, this principle requires that resort to capital punishment be restrained, limited in its instances of application, and reserved for the worst of crimes, those that, in the case of crimes against individuals, take the victim's life. P. 36.

957 So. 2d 757, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.

Atty. Manuel J. Laserna Jr.

Right to counsel: at what point is it operative?

In the recent case of ROTHGERY v. GILLESPIE COUNTY, TEXAS, No. 07-440, June 23, 2008, the US Supreme Court again upheld the constitutional right to counsel and defines the point in time that it starts to operate.

Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm. The officers brought Rothgery before a magistrate judge, as required by state law for hearing at which the Fourth Amendment probable-cause determination was made, bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail, and he was released after posting a surety bond. Rothgery had no money for a lawyer and made several unheeded oral and written requests for appointed counsel. He was subsequently indicted and rearrested, his bail was increased, and he was jailed when he could not post the bail. Subsequently, Rothgery was assigned a lawyer, who assembled the paperwork that prompted the indictment's dismissal.

Rothgery then brought an action against respondent County claiming that if it had provided him a lawyer within a reasonable time after the hearing he would not have been indicted, rearrested, or jailed. He asserts that the County's unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered violates his Sixth Amendment right to counsel. The District Court granted the County summary judgment, and the Fifth Circuit affirmed, considering itself bound by Circuit precedent to the effect that the right to counsel did not attach at the hearing because the relevant prosecutors were not aware of, or involved in, Rothgery's arrest or appearance at the hearing, and there was no indication that the officer at Rothgery's appearance had any power to commit the State to prosecute without a prosecutor's knowledge or involvement.

Held: A criminal defendant's initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. Pp. 5-20.

(a) Texas's article 15.17 hearing marks the point of attachment, with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made. This Court has twice held that the right to counsel attaches at the initial appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty. See Michigan v. Jackson, 475 U. S. 625, 629, n. 3; Brewer v. Williams, 430 U. S. 387, 398-399. Rothgery's hearing was an initial appearance: he was taken before a magistrate judge, informed of the formal accusation against him, and sent to jail until he posted bail. Thus, Brewer and Jackson control. Pp. 5-10.

(b) In McNeil v. Wisconsin, 501 U. S. 171, 180-181, the Court reaffirmed that "[t]he Sixth Amendment right to counsel attaches at the first formal proceeding against an accused," and observed that "in most States ... free counsel is made available at that time." That observation remains true today. The overwhelming consensus practice conforms to the rule that the first formal proceeding is the point of attachment. The Court is advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority. Pp. 10-12.

(c) Neither the Fifth Circuit nor the County offers an acceptable justification for the minority practice. Pp. 12-19.

(1) The Fifth Circuit found the determining factor to be that no prosecutor was aware of Rothgery's article 15.17 hearing or involved in it. This prosecutorial awareness standard is wrong. Neither Brewer nor Jackson said a word about the prosecutor's involvement as a relevant fact, much less a controlling one. Those cases left no room for the factual enquiry the Circuit would require, and with good reason: an attachment rule that turned on determining the moment of a prosecutor's first involvement would be "wholly unworkable and impossible to administer," Escobedo v. Illinois, 378 U. S. 478, 496. The Fifth Circuit derived its rule from the statement, in Kirby v. Illinois, 406 U. S. 682, 689, that the right to counsel attaches when the government has "committed itself to prosecute." But what counts as such a commitment is an issue of federal law unaffected by allocations of power among state officials under state law, cf. Moran v. Burbine, 475 U. S. 412, 429, n. 3, and under the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government's commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused's liberty, see, e.g., Kirby, supra, at 689. Pp. 12-15.

(2) The County relies on United States v. Gouveia, 467 U. S. 180, in arguing that in considering the initial appearance's significance, this Court must ignore prejudice to a defendant's pretrial liberty, it being the concern, not of the right to counsel, but of the speedy-trial right and the Fourth Amendment. But the County's suggestion that Fifth Amendment protections at the early stage obviate attachment of the Sixth Amendment right at initial appearance was refuted by Jackson, 475 U. S., at 629, n. 3. And since the Court is not asked to extend the right to counsel to a point earlier than formal judicial proceedings (as in Gouveia), but to defer it to those proceedings in which a prosecutor is involved, Gouveia does not speak to the question at issue. Pp. 15-17.

(3) The County's third tack gets it no further. Stipulating that the properly formulated test is whether the State has objectively committed itself to prosecute, the County says that prosecutorial involvement is but one form of evidence of such commitment and that others include (1) the filing of formal charges or the holding of an adversarial preliminary hearing to determine probable cause to file such charges, and (2) a court appearance following arrest on an indictment. Either version runs up against Brewer and Jackson: an initial appearance following a charge signifies a sufficient commitment to prosecute regardless of a prosecutor's participation, indictment, information, or what the County calls a "formal" complaint. The County's assertions that Brewer and Jackson are "vague" and thus of limited, if any, precedential value are wrong. Although the Court in those cases saw no need for lengthy disquisitions on the initial appearance's significance, that was because it found the attachment issue an easy one. See, e.g., Brewer, supra, at 399. Pp. 17-19.

491 F. 3d 293, vacated and remanded.

Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Roberts, C. J., filed a concurring opinion, in which Scalia, J., joined. Alito, J., filed a concurring opinion, in which Roberts, C. J., and Scalia, J., joined. Thomas, J., filed a dissenting opinion.

See: http://laws.findlaw.com/us/000/07-440.html

By:

Atty. Manuel J. Laserna Jr.

"Indeterminacy thesis" and other issues: Quisumbing speech

In an address delivered by Senior Justice Leonardo A. Quisumbing at theCommencement Exercises of the UP College of Law on April 28, 2008, he made the following points:

1. Law cannot be divorced from the principles that undergird our concepts of economics. For instance, success in law practice owes much to the understanding of the fundamental principle of supply and demand.

2. The has come when the shortage of practicing lawyers are actually felt in some areas of our country. In my home province, there was a time when lawyers were the ones waiting for the judge to arrive so trial of cases could start. I understand the situation is now reversed: the judges in some municipal courts have to patiently wait for the counsels of parties because lawyers are so few and they come from distant places. If trial could not be held in the morning, because the lawyers are engaged elsewhere, the concerned court will set the hearing in the afternoon and wait for lawyers to come, even if already late.

3. Even more noteworthy, the judiciary has lots of vacant salas. Why? One reason is that in certain towns or districts, there are no available applicants seriously interested to be considered by the Judicial and Bar Council. Sometimes, the JBC will publish names of applicants for one sala and repeat them as available for other salas, just so the JBC can comply with the 3-applicants per sala rule when JBC submits nominees to the President for her actual appointment. So there you are—there are not enough lawyers to go around, so how can we solve the 29% vacancy problem in lower courts?

4. If there is any progressive development in the bar, it is the increase in the number of lady barristers (which is also to say female law students). In the Supreme Court, when I started there ten years ago, there was only 1 lady Justice. Now there are 5 ladies out of 15 members. The number actually reached 6, until Madam Justice Angelina Sandoval-Gutierrez retired a few months ago. When ladies will reach 7 in Court, then we will have a true numerical and gender balance of Associate Justices, leaving only the Chief’s post for contention.

5. Indeterminacy thesis. - It has been said that many American law students, even in their first year, already get a sinking feeling when they ask themselves: “Does the law actually make any difference to the way cases are decided?” In later years, they encounter the abovecited thesis, as if in reply to their doubts: “The laws have nothing to do with how cases come out. They are just window dressing that skillful lawyers and judges can manipulate to justify any decision they please.” Stated another way, the strong indeterminacy thesis claims that in every possible case, any possible outcome is legally correct. Or, in a more extended way, the strong indeterminate thesis says: “In any set of facts about actions and events that could be processed as a legal case, any possible outcome—consisting of a decision, order, and opinion—will be legally correct.” That’s why some practitioners say, knowing what the judge had for breakfast is more important than knowing precedents.

6. There are critics who say the Supreme Court is right even if in several given cases our decision is wrong. The Court’s decision, some say, is not final because it is infallible but it is infallible because it is final. Of course, nobody yet has opined here that “the law does not constrain judicial decision.” Or that, “any result in any legal dispute can be justified as the legally correct outcome.”

Atty. Manuel J. Laserna Jr.

Courts and economic growth: Reyes speech

In a speech delivered by Justice Ruben T. Reyes during the 36th National Management Congress on February 21, 2008 at the Renaissance Makati City Hotel, entitled “The Role of the Judiciary in Economic Development “, he made the following points:

1. It must be acknowledged that when it comes to developing and managing the economy, the state should regularly steer clear of private citizens and their business initiatives. As initially espoused, it is not the government’s business to intervene in business. Thomas Jefferson expressed this in the extreme when he said that the best government is that which governs the least. On the other hand, the classical economist Adam Smith posits that government has no role in an economy, except to protect private property. The basic idea was that less government interference in private economic decisions such as pricing, production, consumption, and distribution of goods and services makes for a better, or more efficient, economy.

2. But unabated economic liberalism, while ushering in development, had led to certain evils and abuses that the legislative department began noticing and correcting: long hours of work, low wages, untrammelled price increases, lack of social safety nets, unregulated sales of stocks, monopolies and other problems besetting developing capitalist economies. Thus, began the age of economic regulation and intervention by the State. One prime example of economic regulation is the Sherman Act, an anti-trust law passed by the US Congress.

3. The task of regulating the economy falls upon Congress since it is empowered to exercise the police power of the state through legislation. The implementation, on the other hand, is for the account of the Executive department. Actual regulation of various facets of our economy is realized through the President and subordinate departments, agencies and local government units. If we consider this, it seems that, at first glance, the judiciary lacks a particular role in any area of the economy.

4. The judiciary does not have the vast powers granted to the other two branches of government. It does not have control over the other governmental units, it cannot make laws. Neither can it control appropriations in the national budget to suit its own needs. But to the judiciary is granted the power of judicial review. By this power, the courts are authorized to review the acts and decisions of the executive and legislative departments, and overturn them should they be found unconstitutional or with badges of grave discretionary abuse. Empowered as such, the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. Such is the crucial tool wielded by the judicary to achieve check and balances in our system.

5. The limitation of judicial review insofar as economic matters are concerned is best expressed in the constitutional challenges mounted against the laws imposing the value added tax. In all three VAT cases, the laws were upheld for failure to show grave discretionary abuse on the part of Congress or constitutional infirmities in any of their provisions. As we can see from the Oil Deregulation and VAT Cases, courts are not active policy makers. When it comes to economic matters, we leave those to the other branches of government. How, then, can the judiciary possibly contribute to economic development, at the grassroots level, when, traditionally, all it does is to review the acts of coordinate departments?

6. The answer lies in the strengthening of democracy through an effective and competent judiciary. Experts agree that the judiciary is a vital factor in the rule of law and in economic development. “Business firms and investors are more likely to invest, or increase their investment, in those countries where they can have some confidence in the court system and the ability of judges to enforce contracts and protect property rights.”

7. To help achieve our goal of economic development, therefore, we need a strong judiciary, not a weak one. But the pursuit of this vision is in danger of being sidelined. This year, the judiciary again received a pathetic insufficient budget – less than 1% of the entire national budget. Is this fair? Is this proportionate to the role the people expect us to perform for our economic progress? It needs no unusual stretch of imagination to realize that this meager budget impairs overall judicial independence as envisioned in our Constitution. We find this continuing poor provisions for the Judiciary distressing. While this may not cause alarm, the measly budget should concern everyone as it will consequently affect the administration of justice.

Atty. Manuel J. Laserna Jr.

Crimes of impunity in the Philippines: Ynares-Santiago paper

In a paper presented by Justice Consuelo Ynares-Santiago at the Conference on Political Killings and the Rule of Law – the Philippine Example, held on May 8- 9, 2008 at the Katholische Academie “Hotel Aquino” in Berlin, Germany, entitled “Impunity and the Constitution: POWER AND POLITICAL WILL”, she made the following points:

1. The Judiciary has always been looked upon as the last bulwark of constitutional rights and liberties. However, traditionally, it has also been the most passive of the three branches of government, acting only on cases and controversies brought before it for adjudication. It therefore came as a surprise to many observers, both national and international, that the Philippine Supreme Court has taken an active (or, as some would say, activist) role in addressing the alarming rise of extralegal killings and enforced disappearances of political activists, journalists, and judges in the Philippines.

2. In the wake of a disturbing wave of unexplained killings of civilian activists and media personnel, and to put an end to these, which have been stalking our legal landscape, our Supreme Court issued on 1 March 2007 Administrative Order No. 25-2007, designating 99 regional trial courts across the country to “specially and preferentially” hear, try, and decide cases involving extralegal killings and enforced disappearances. 23 RTCs have been designated in the National Capital Judicial Region or in the metropolis, and 76 in the remaining 12 Judicial Regions or the suburbs. These special courts were ordered to conduct mandatory continuous trial for at most 60 days, after which judgment should be rendered within 30 days.

3. Philippine Chief Justice Reynato S. Puno first broached of the idea of re-examining Philippine legal procedures and strengthening the role of the Judiciary in solving the worsening problem of killings during a talk with journalists in Hong Kong on 7 June 2007, on the sidelines of the 12th Conference of Chief Justices of Asia and the Pacific. Thus, a month later, the Supreme Court hosted the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances – Searching for Solutions. Around 400 delegates representing the three branches of government, including nearly every high-ranking government bureaucrat and official, human rights organizations, the military and the police, civil society, the media, the academe, the religious sector, and the international community, attended the two-day event.

4. One of the proposals gathered in the Summit was the adoption by the High Court of the writ of amparo. Equipped with the power to promulgate rules to protect and enforce rights guaranteed by the fundamental law, which power lay in deep hibernation for two decades, the Supreme Court En Banc, in just two months, promulgated and approved on 25 September 2007 the Rule on the Writ of Amparo which took effect on 24 October 2007.

5. Just recently, on 22 January 2008, the Supreme Court promulgated the Rule on the Writ of Habeas Data. It is the latest legal mechanism implemented both as an independent remedy to enforce the right to informational privacy and the complementary “right to truth” as well as an additional remedy to protect the right to life, liberty, or security of a person.

6. We have identified some of the problems: lack of competent investigators, deficient evidence-gathering techniques and equipment, insufficient prosecutors and lawyers of the Public Attorney’s Office, reluctance of families of the victims and witnesses to report the commission of a crime and testify in court, failure of some courts to conduct continuous trial, limitations of the Rules of Court, difficult balance between due process and expeditious justice, lack of funding and incomplete implementation of the Witness Protection Program, if not the deficiencies of the Program itself, and the sheer poverty of the victims in some cases.

7. The justices and judges who have decided cases involving the Writ of Amparo have also encountered a number of challenges. Since cases involving the Writ of Amparo should be decided in the course of 10 days, justices are hard-pressed for time. And since it is a new remedy in our jurisdiction, there is no precedent or jurisprudence which may be cited in deciding the cases speedily. Moreover, some petitioners file a case for the writ even if it is not the proper remedy which adds to the workload of the judges. But while the institutional and systemic problems remain, the results are still quite encouraging, to say the least. As of 15 April 2008, a total of 31 petitions for the writ of amparo have been filed. Out of the 31 petitions, 14 have been decided: 5 were granted, while 9 were either dismissed or withdrawn. On the other hand, the nine dismissed cases appear to have been terminated for justifiable reasons. With regard to petitions for the writ of habeas data, three petitions have so far been recorded and are still pending before our courts.

8. These numbers show us two things: first is the people’s increased awareness and understanding of the remedies that have been made available to them; second is their restored faith in our judicial institution and the justice system as a whole. Less quantifiable but an equally important sequel is the heightened consciousness of our people on the sanctity of human rights, particularly on the part of our law enforcers and state agents. I understand that there have been marked changes in the way our field commanders conduct their operations, now with extra keenness on the observance of human rights.

Atty. Manuel J. Laserna Jr.

Cross-border law practice: Tinga speech

In a speech delivered by Justice Dante O. Tinga at the Commencement Exercises of the Ateneo de Manila School of Law on April 27, 2008 entilted “From General Practice to Cross-Border Practice: The Changing Trends and Paradigms”, he made the following points:

1. The rise of the globalized economy has led to the growing acceptance by many states of cross-border practice of law by foreign lawyers. Cross-border practice has been allowed within the European Union since the late 1970s as a consequence of the adoption of a common market. It has been regulated through Directives, which established guidelines governing the provision of services, the mutual recognition of diplomas, and the establishment of permanent professional law practices in foreign states. The allowance of the cross-border practice of law in the European Union has not led to any major problems or scandals, despite initial fears that there would be an unacceptable increase in unregulated or uncontrollable behavior, fears which have proved unfounded.

2. The accession by the Philippines to the General Agreement on Trade in Services (GATS) as part of the Uruguay Round Agreement might very well be the gateway to the allowance of cross-border practice of law in the Philippines. The GATS, which was intended towards “the early achievement of progressively higher levels of liberalization of trade in services”, defines “services” as any service in any sector except services supplied in the exercise of governmental authority”, the latter exception being defined as “any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.”

3. This definition of “services” clearly includes the provision of professional legal services. The GATS mandates that “each Member shall accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other country.” However, it is also recognized that such treatment may not be possible for every service activity, thus the parties are authorized to specify exemptions, which are included as an annex to the GATS, and subject to review after five years and a normal limitation of 10 years in their duration. The GATS also provides guidelines for allowing the automatic and mutual recognition of education and experience obtained, requirements met, or licences or certifications granted, in a particular country.

4. There are, as should be expected, potential problem areas with respect to cross-border practice. An especially sensitive topic is the applicable code of conduct that applies to a lawyer engaged in cross-border practice. Since most nations have adopted their own legal codes of conduct, the question arises whether such codes bind the foreign lawyer practicing in that country, or whether the foreign lawyer remains bound to her or his own national code. The European Union has mandated that such lawyer be subject to both home and host rules, a situation which has come to be known as ‘double deontology’. Perhaps, as cross-border practice becomes more prevalent worldwide, the need will arise for the adoption of international agreements governing the code of conduct of lawyers in cross-border practice.

5. Section 14, Article XII of our Constitution states that “[t]he practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.” Nonetheless, since the GATS is part of the WTO Agreement, a treaty which the Philippines ratified in 1994, it has the force of law in this jurisdiction. In any event, any legislation allowing foreigners to practice their profession in the Philippines, following Section 14, Article XII, will pass constitutional muster, except the professions which the Constitution specifically confines to Filipino citizens, such as the management of mass media or the advertising industry.

6. There are understandable qualms within the Philippine legal community, especially among the old-guard, to the allowance of cross-border practice in the Philippines. Some of these concerns may arise out of self-interest, such as the potential diminution in profits of Filipino lawyers, but others do arise out of selfless, nationalistic motives. It is not an accessible assumption that foreign lawyers will act in the best interests of their Filipino clients, or adhere to the interests of Filipino sovereignty as they develop their particular advocacies. Neither could we intelligently assume that foreign lawyers will be well-versed in the Philippine legal system, or the Philippine social animus, to be able to render the most competent legal services to Filipino or Philippine-based clients.

7. Nonetheless, if we refuse to allow cross-border practice of law in the Philippines even as the rest of our Asian neighbors accede to the practice, the Philippines will be in danger of isolation from the global community. And truth be told, there are benefits to allowing cross-border practice here which extend beyond signification that we are members in good standing of the international trade community. Just as the Supreme Court has extremely benefited with its interactions with foreign high courts and foreign legal systems, the Philippine legal community can only be intellectually enriched with greater exposure to the legal practices of foreign lawyers. These interactions may even spur necessary law reforms in the Philippines. Added competition could likewise provide the impetus for the improvement or further competence of Filipino lawyers, who may have settled into professional complacency.

8. A legal curriculum that is designed solely to gain the law student’s eventual admission to the Philippine bar through rote memorization of Philippine legal provisions will be woefully insufficient to train such student in this fast evolving legal environment. A more viable curriculum is one designed to help the law student absorb the fundamentals that permeate all the legal systems of the world. A student who is grounded in these basics, as well as in legal methodology, will be better equipped in interacting with the international legal community and the transnational business circles, as well as in grasping the inevitable changes in Philippine law.

Atty. Manuel J. Laserna Jr.

Detained legislator may not attend sessions: Trillanes doctrine

In the very recent Philippine Supreme Court decison in the case of Philippine Senator ANTONIO F. TRILLANES IV vs. HON. OSCAR PIMENTEL, SR., et. al., En Banc, G.R. No. 179817, June 27, 2008, the Court dismissed the prayer of the petitioner Sen. Trillanes, who was under detention for a pending coup d’etat case, to be permitted to attended Senate sessions and to work outside of his prison cell.

The factual background is as follows:

1. At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior officers of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premier Apartments in Makati City and publicly demanded the resignation of the President and key national officials.

2. Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General Order No. 4 declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion. A series of negotiations quelled the teeming tension and eventually resolved the impasse with the surrender of the militant soldiers that evening.

3. In the aftermath of this eventful episode dubbed as the “Oakwood Incident,” petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup d’etat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. The case was docketed as Criminal Case No. 03-2784, “People v. Capt. Milo D. Maestrecampo, et al.”

4. Close to four years later, petitioner, who has remained in detention, threw his hat in the political arena and won a seat in the Senate with a six-year term commencing at noon on June 30, 2007.

5. Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati City, Branch 148, an “Omnibus Motion for Leave of Court to be Allowed to Attend Senate Sessions and Related Requests” (Omnibus Motion).

6. By Order of July 25, 2007, the trial court denied all the requests in the Omnibus Motion. Petitioner moved for reconsideration in which he waived his requests in paragraphs (b), (c) and (f) to thus trim them down to three. The trial court just the same denied the motion by Order of September 18, 2007.

7. Petitioner later manifested, in his Reply of February 26, 2008, that he has, since November 30, 2007, been in the custody of the Philippine National Police (PNP) Custodial Center following the foiled take-over of the Manila Peninsula Hotel the day before or on November 29, 2007.

Hence, the present petition for certiorari to set aside the two Orders of the trial court, and for prohibition and mandamus to (i) enjoin respondents from banning the Senate staff, resource persons and guests from meeting with him or transacting business with him in his capacity as Senator; and (ii) direct respondents to allow him access to the Senate staff, resource persons and guests and permit him to attend all sessions and official functions of the Senate. Petitioner preliminarily prayed for the maintenance of the status quo ante of having been able hitherto to convene his staff, resource persons and guests at the Marine Brig.


In dismissing the petition, the Court made the following statements:

1. In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending appeal, when he filed a motion similar to petitioner’s Omnibus Motion, whereas he (petitioner) is a mere detention prisoner. He asserts that he continues to enjoy civil and political rights since the presumption of innocence is still in his favor.


2. Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two counts of statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup d’etat which is regarded as a “political offense.”

3. Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate grievances against the rampant and institutionalized practice of graft and corruption in the AFP.

4. The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that election to Congress is not a reasonable classification in criminal law enforcement as the functions and duties of the office are not substantial distinctions which lift one from the class of prisoners interrupted in their freedom and restricted in liberty of movement.

5. It cannot be gainsaid that a person charged with a crime is taken into custody for purposes of the administration of justice. No less than the Constitution provides:

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. (Underscoring supplied)


6. The Rules also state that no person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal action.

7. That the cited provisions apply equally to rape and coup d’etat cases, both being punishable by reclusion perpetua, is beyond cavil. Within the class of offenses covered by the stated range of imposable penalties, there is clearly no distinction as to the political complexion of or moral turpitude involved in the crime charged.

8. In the present case, it is uncontroverted that petitioner’s application for bail and for release on recognizance was denied. The determination that the evidence of guilt is strong, whether ascertained in a hearing of an application for bail or imported from a trial court’s judgment of conviction, justifies the detention of an accused as a valid curtailment of his right to provisional liberty. This accentuates the proviso that the denial of the right to bail in such cases is “regardless of the stage of the criminal action.” Such justification for confinement with its underlying rationale of public self-defense applies equally to detention prisoners like petitioner or convicted prisoners-appellants like Jalosjos.

9. As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him, unless he is authorized by the court to be released on bail or on recognizance. Let it be stressed that all prisoners whether under preventive detention or serving final sentence can not practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention.

10. The trial court thus correctly concluded that the presumption of innocence does not carry with it the full enjoyment of civil and political rights. Petitioner is similarly situated with Jalosjos with respect to the application of the presumption of innocence during the period material to the resolution of their respective motions. The Court in Jalosjos did not mention that the presumption of innocence no longer operates in favor of the accused pending the review on appeal of the judgment of conviction. The rule stands that until a promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails.

11. On November 29, 2007 petitioner went past security detail for some reason and proceeded from the courtroom to a posh hotel to issue certain statements. The account, dubbed this time as the “Manila Pen Incident,” proves that petitioner’s argument bites the dust. The risk that he would escape ceased to be neither remote nor nil as, in fact, the cause for foreboding became real.

12. Moreover, circumstances indicating probability of flight find relevance as a factor in ascertaining the reasonable amount of bail and in canceling a discretionary grant of bail. In cases involving non-bailable offenses, what is controlling is the determination of whether the evidence of guilt is strong. Once it is established that it is so, bail shall be denied as it is neither a matter of right nor of discretion.

13. The effective management of the detention facility has been recognized as a valid objective that may justify the imposition of conditions and restrictions of pre-trial detention. The officer with custodial responsibility over a detainee may undertake such reasonable measures as may be necessary to secure the safety and prevent the escape of the detainee. Nevertheless, while the comments of the detention officers provide guidance on security concerns, they are not binding on the trial court in the same manner that pleadings are not impositions upon a court.

14. Petitioner posits that his election provides the legal justification to allow him to serve his mandate, after the people, in their sovereign capacity, elected him as Senator. He argues that denying his Omnibus Motion is tantamount to removing him from office, depriving the people of proper representation, denying the people’s will, repudiating the people’s choice, and overruling the mandate of the people. Petitioner’s contention hinges on the doctrine in administrative law that “a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor.” The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no “prior term” to speak of. In a plethora of cases, the Court categorically held that the doctrine of condonation does not apply to criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge. Petitioner’s electoral victory only signifies pertinently that when the voters elected him to the Senate, “they did so with full awareness of the limitations on his freedom of action [and] x x x with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison.”

15. In once more debunking the disenfranchisement argument, it is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law.

16. The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the “mandate of the people” are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. x x x Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law.

17. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders. That this discretion was gravely abused, petitioner failed to establish. In fact, the trial court previously allowed petitioner to register as a voter in December 2006, file his certificate of candidacy in February 2007, cast his vote on May 14, 2007, be proclaimed as senator-elect, and take his oath of office on June 29, 2007. In a seeming attempt to bind or twist the hands of the trial court lest it be accused of taking a complete turn-around, petitioner largely banks on these prior grants to him and insists on unending concessions and blanket authorizations.

18. Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellant’s status to that of a special class, it also would be a mockery of the purposes of the correction system.



By:


Atty. Manuel J. Laserna Jr.