Sunday, February 27, 2005

The plodding administration of justice

The plodding administration of justice

Posted 00:02am (Mla time) Feb 27, 2005
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A12 of the February 27, 2005 issue of the Philippine Daily Inquirer

THERE is another disturbing report, again from Justice Artemio V. Panganiban of the Supreme Court, this time about delay in the administration of justice in this country. He says that there are some 800,000 cases now pending in the lower courts, for which he gives a number of reasons, some of them excuses. He adds that the problem applies as well to the high tribunal, which is itself no paragon of speedy justice. (The comments are mine.)

The Constitution of 1987 prescribes obligatory periods for decision of cases by the various levels of our judiciary, 24 months for the Supreme Court and, unless reduced by it, 12 months for all lower collegiate courts like the Court of Appeals and 3 months for all other lower courts like the regional trial courts and the city and municipal courts (plus the Sandiganbayan anti-graft court).

The Constitution of 1973 also laid down non-extendible periods for the decision of cases by the different courts then, but the Supreme Court practically rendered them useless by holding that they were merely directory, being only procedural in nature. That ruling has been nullified by the present charter, which describes such new periods as "mandatory."

Additionally, Sec. 16 of the Bill of Rights provides that "all persons shall have the right to the speedy disposition of their cases before judicial, quasi-judicial or administrative bodies." And Sec. 14 guarantees to all persons facing criminal prosecution the right to a speedy trial, which is defined as "one free from vexatious, capricious and oppressive delays."

Panganiban says that one-third of the trial courts are vacant, owing mostly to the lack of incentives to practicing lawyers to join the judiciary. The most effective deterrent is the small pay of the judges of such courts compared to the average earnings of most practitioners. One consequence is that some of these low-paid judges increase their income through corruption. Another is incompetence or, as they say in basketball, those who cannot play go to the bench.

It is noteworthy, though, that there still is a considerable number of applicants before the Judicial and Bar Council but not for the courts in the less peaceful areas. In some places, particularly in Mindanao, people prefer to settle their disputes by themselves rather than in the trial courts, which remain idle or vacant. Appointment to these courts is considered hazardous and even life-threatening.

In the Supreme Court itself, according to Panganiban, there are no less than 6,000 pending cases to be eventually decided by its 15 members. Eventually may be forever. There are many ways of delaying a case, as Joseph Estrada's lawyers are demonstrating and Lucio Tan too. The cases against the Marcoses are still slumbering comfortably in dreamland despite public agitation to awaken them.

Only recently, I received a plaintive appeal for my help from the International School Alliance of Educators, which was sustained by the Supreme Court in its petition for equal pay for equal work as the foreign-hire faculty. That landmark decision was rendered on June 1, 2000, and became final and executory on Dec. 12, 2000. To date, it has yet to be implemented because of various efforts of the respondent International School Manila to invalidate it.

ISAE president Raquel David-Ching complains not without reason:

"It has been 10 long years (1995-2005) since Filipino teachers at IS Manila took their case to the courts to achieve equal treatment of Filipinos in their own land. The Supreme Court made a landmark decision on June 2000 and this doctrinal ruling has long since been looked to by countless law students as 'the authoritative principle of law that exemplifies the Supreme Court's adherence to the ideals of social justice.' However, it remains merely an empty bag of words bereft of real meaning when we, the petitioners-teachers-victims continue to be denied real-life justice in accordance with the ruling."

The International School case is only one of the many other cases waiting to be definitely resolved by the Supreme Court. Perhaps it might adopt more effective ways of dealing with them, including a less permissive attitude toward the dilatory tactics of some lawyers, not excluding the big law firms.

As members of the reorganized Supreme Court after Edsa I, we were confronted by as many as 8,000 cases left undecided by our predecessors. We met en banc twice a week and worked overtime even on week-ends at home to reduce that number, which even increased with the restored faith of the people in the new judiciary. As his retirement approached, Chief Justice Claudio Teehankee suggested that the best birthday gift we could offer him was to increase our productivity. We delivered.

I hope the present Supreme Court will do likewise, and without waiting for Chief Justice Davide's retirement in December. It now meets en banc only once a week, presumably because its caseload is lighter than ours. With its improved emoluments and comparatively reduced work, it can redouble its output and make the speedy administration of justice in this country a more approachable goal.

Saturday, February 26, 2005

The tragedy of Edsa I

The tragedy of Edsa I

Posted 11:28pm (Mla time) Feb 25, 2005
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the Febrauary 26, 2005 issue of the Philippine Daily Inquirer

YESTERDAY marked the 19th anniversary of one of the most remarkable events in the history of our country. This was the people power revolution that thrilled the whole world and earned its unbelieving admiration. On Feb. 25, 1986, the Filipino nation redeemed its lost freedom, not through the force of arms and violence. They did this in a massive demonstration of their faith in peaceful reform and the justice of their cause.

Edsa I, as it is proudly remembered, ended more than 13 years of tribulation for the desperately captive nation. Ferdinand Marcos had become the new despot of Asia. Many of his foes were arbitrarily arrested and imprisoned. Congress was abolished and later replaced by a rubber-stamp Batasang Pambansa [National assembly]. The Supreme Court was intimidated into "legitimizing" the dictatorship. Human rights were disdained and violated. Public funds were cold-bloodedly plundered. The ordinary citizens found themselves defenseless under what was called "constitutional authoritarianism."

The Philippines has been subjected to regimented domination before, first by Spain for more than three centuries, by the British in 1762-64, by the United States for close to five decades, and during the Pacific War by the Japanese belligerent troops. Each of these occupations of our country had its particular cruelty that left indelible livid scars on the national psyche. But all these regimes were foreign and so could be easily albeit painfully rationalized.

But the regime of Ferdinand Marcos and his criminal gang was imposed not by foreigners but by fellow Filipinos. They dictated their will upon their own countrymen, not with the ruthless objectiveness of alien tyrants but with full awareness of the maledictions they were visiting on their own people. Marcos knew this as all those who connived with him also did. They knew they were debasing their own race but this did not deter them from their transgressions. This was what made the martial law enforced by Marcos the most heinous rule of all.

The Philippines suffered as the rulers fattened on their iniquities. Erstwhile paupers became instant millionaires because of their ties to MalacaƱang. Political parties were abolished to give way to the all-powerful KBL party that could do no wrong. Enemies of the New Society were eliminated, many of them murdered without accountability. The Armed Forces of the Philippines became the Armed Forces of the President and his murderous and arrogant defender.

The Filipinos are like the carabao, it is said, patient but only up to a point. When that limit is reached, the placid animal becomes a raging beast. We reached that point after that graceless period of unbearable travail, but our quiet tribulation did not erupt in violence. We did not lose our cool or explode in uncontrolled rage. What we did instead was gather at the Edsa highway, not to raise our arms in anger, but to protest our grievances in peace.

There were a handful of heroes at first, and then they grew to a hundred and then to thousands until it swelled to millions of indignant Filipinos. It was a mixed and unusual crowd that represented a cross-section of the aggrieved nation. Political leaders, simple citizens, jeepney drivers and moneyed businessmen, slum dwellers and the elite, students and their teachers, teenagers with their parents, nuns fingering rosaries with watchful ladies bearing flowers, and, yes, even innocent children playing as in a carnival-all of them met at Edsa to dare the hated oppressor and face his mighty tanks with real but muted apprehension of the dictator's weaponed wrath.

The tanks did come but they did not attack. The soldiers were there but did not fire a single shot. One grandmother in a wheelchair confronted them alone and stopped them on their tracks. The defining moment of the victory of Edsa was when the military capitulated and joined the ranks of the jubilant people. Events swiftly followed with the induction of Cory Aquino and Doy Laurel as the duly elected leaders of the new government. Marcos took his own oath before a fidgety crowd in MalacaƱang even as a vengeful crowd was rushing at its gates. Soon the despot had escaped to Hawaii, and there was dancing in the streets.

That was what happened during those heady days that climaxed on Feb. 25, 1986. Everyone savored the hope of a new day as the dark night finally ended. The Freedom Constitution would later mandate that all the vestiges of the previous regime would be erased and the rule of law would again reign throughout the land. The economy would be improved for poor and rich alike, criminality would be reduced, social justice would be realized, and real democracy would be restored at last. This was what Edsa I promised.Have all these noble purposes been pursued and realized? Nineteen years since Edsa I, they are still empty reveries to taunt us of that magnificent people power revolt that made us the model of all oppressed nations still dreaming of freedom. The worst mockery of all is that the scoundrels of martial law are still with us, many of them still lording over us as before, like canonized demons enjoying an unholy immunity. That is the ultimate tragedy of Edsa I.

Sunday, February 20, 2005

Cleansing our courts

Cleansing our courts

Posted 11:56pm (Mla time) Feb 19, 2005
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the February 20, 2005 issue of the Philippine Daily Inquirer

LIKE a welcome gust of fresh wind was the report from Justice Artemio V. Panganiban that the Supreme Court disciplined last year 56 "hoodlums in robes," in Erap's colorful phrase, for various offenses. He added that as many as 582 judges have been penalized for unethical conduct by the high tribunal since the reorganization of the judiciary in 1986 following Edna 1.

The erring judges, most of them from the lower courts, have been disciplined for violation of the Canons of Judicial Ethics and the New Code of Judicial Conduct for the Philippine Judiciary. The charges against them ranged from dishonesty, bias, ignorance of the law, neglect of duty, grave abuse of discretion, immorality, unbecoming behavior, and other improprieties.

The disciplinary power of the Supreme Court has not been exercised only over the inferior courts, as erroneously believed. Even the superior collegiate courts have not been spared. I recall that a justice of the Court of Appeals was dismissed a year or so ago for "lawyering" for a litigant, and another from the Sandiganbayan was practically required to retire because of his inexcusable delay in deciding many of the cases assigned to him.

Regrettably, both of them were professionally and academically competent, in fact superiorly so, and were otherwise a credit to the judiciary. Without their proven shortcomings, they could even have been in time elevated to the Supreme Court.

During my tenure on the Court, we dismissed two RTC judges who were among the first 10 topnotchers in their respective bar examinations. One rendered a premature decision in favor of an influential defendant; the other, reinstated after having been earlier disbarred, tempted fate once more by tearing from the rollo of a case important documentary evidence in the presence of the clerk of court.

The Supreme Court has itself not been immunized from its drive for reform. In 2002, one of its members was castigated by his colleagues for his negligence in supervising the bar examinations and was denied a portion of his fee as chairman of the examining committee. Many people thought the punishment inadequate, though, including the Association of Retired Justices of the Supreme Court which did not invite him to be a member.

When in 1997 I wrote a brief history of the Supreme Court upon invitation of the Philippine Judiciary Academy, I discussed in my Res Gestae, as I called the work, some serious criticisms of the high tribunal, including the sitting one. Upon reading my draft, it sent me a paper entitled "Suggestions of Individual Members of the Court" who, however, did not choose to identify themselves. They "suggested" that I moderate my language, but I rejected their censorship. I was not going to understate a problem that was known to the whole country.

The book was published by a commercial printer and has long been sold out. But the problem the unnamed "individual justices" wanted to suppress is still with us. Justice Panganiban's report is encouraging, but it is so only because it assures us that the Supreme Court is not slumbering on the complaints against the judiciary. The problem cannot be deemed solved with the discipline of 582 judges since 1986, which may be a notable achievement but is certainly not enough.

The number alone is not even impressive because it translates to only some 30 erring judges a year who have been uncovered and penalized, some only mildly with nominal fines and censure. In light of the common dissatisfaction of lawyers, litigants, and the people in general with our courts of justice, that number is only the tip of the iceberg.

This is truly sad because the majority of our judges, from the lowest to the highest tribunal, are honest and able disciples of the law dedicated to uphold it in the temple of justice. If their decisions have not always been wise or even correct, it is because of their human failings or lack of discernment in discovering the truth. These are imperfections many of us share. It should not justify the blanket condemnation of the judiciary as a shadowy hideaway of robed robbers.

If we want to truly cleanse the judiciary, we should cooperate with the Supreme Court in its efforts to erase the suspicion of its supposed incompetence and questionable integrity. It is a problem we all share. If you have complaints against any judge or justice, or any judicial officer, send them to the high tribunal, which will investigate them, with the assistance of the NBI if warranted. We can lick this problem if we all work together.

Let me repeat, however, what I said when I retired from the Court in 1994:

"Smug conclusions not backed by proven facts or at least an attempt in good faith to verify them militate against the principle that one must be given a chance to air his side before the verdict is pronounced. That is the essence of fair play. It should not be difficult to imagine that unfounded accusations will undermine the faith of the people in the judiciary as the ultimate protector of their rights and liberties. If that faith is lost, the only remaining alternative to judicial action will be private retribution under the lex talionis or the arbitrary adjudication of the mob."

Saturday, February 19, 2005

Fake medicines

Fake medicines

Posted 05:31am (Mla time) Feb 19, 2005
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the February 19, 2005 issue of the Philippine Daily Inquirer.

MEDICINES are essential to the maintenance of health and the survival of life in any society, from the earliest tribal units to the present-day sophisticated communities. Drugs have especially become necessary in the modern world with the intrusion of new and fatal afflictions for which, like the common cold, advances in science have yet to find a cure.

People who consider themselves healthy agree that medicines are a necessity but fortunately not for them. It is a fact of life that does not directly affect them and so does not cause them needless worry. It is only when their muscles begin to ache or their bones start to creak, or their hearts miss a beat or two, or they feel dizzy after a heavy meal, that they accept the mortality of their existence. That is when they decide to think of doctors and, of course, medicines.

Television and radio commercials have dinned on their audience the importance and superior qualities of the cures they are advertising. These come-ons have at least made us health-conscious, which is a virtue that should be encouraged and developed. Many people have abandoned the superstitious practices and ineffectual nostrums they used to depend on when they got sick. They now rely instead on modern well-researched remedies for the alleviation of their ailments.

The problem, however, is that some of these government-approved medicines are, because of their efficacy, being faked by unscrupulous businesses to the prejudice of credulous patients. The lower price of these counterfeit drugs makes them attractive to unsuspecting buyers who are always looking for a bargain, particularly during these cash-strapped times. Little do they realize that this false economy may have an adverse and sometimes even fatal impact upon their health.

Counterfeit medicines are defined as those stealthily manufactured by unscrupulous persons to imitate and compete with genuine medicines duly tested and approved by the government. According to Pfizer, one of the leading drug companies in the country, such fakes may include products labeled to look like the genuine medicines but do not contain the correct kind and amount of ingredients, or may have expired, or may have been illicitly relabeled, each of which offenses may cause the risk of allergy or dangerous interaction with other medicines.

Pfizer deplores the difficulty of telling "the difference between real and fake medicines because counterfeit medicines are copied to make them look like the original. Thinking that these medicines can be trusted, patients, doctors and other medical practitioners often do not even suspect that there is anything wrong with the pills and tablets they use" that may expose themselves to possible harmful effects.

An unregistered imported medicine is also considered counterfeit if there is a counterpart registered branded or generic medicine approved by the Bureau of Food and Drugs. Consumers should carefully examine the packaging and labeling of the medicines they buy and be suspicious if this is done with cheap materials or if the medicine does not have a generic name.

"Nearly all medicines are being counterfeited," the drug company adds. "These include familiar everyday medicines like vitamins as well as life-saving ones like antibiotics and anti-hypersensitives." The World Health Organization estimates that the circulation of fake drugs constitutes 6 percent of the world market. Our Department of Health says that 10 percent of medicines in the Philippines are counterfeit.

Realizing the need to combat this serious threat to the health of our people, the Coalition Against Fake Medicines was launched recently under the leadership of the Department of Health as the primary regulatory agency in charge of medicines. It will be supported by the Department of Trade and Industry, which will receive consumer complaints and cancel the licenses of businesses found to be producing or selling the prohibited products. The Department of Justice, also a principal partner, will undertake the prosecution of all persons or companies suspected of the offense.

The private members of the Coalition are the Philippine Medical Association, the Philippine Daily Inquirer, the GMA-7 Broadcast Network, Mercury Drug Corporation, the Drugstores Association of the Philippines, Zuellig Pharma Corporation, and Pfizer, which supplied the information for this article through its official publication, HealthLink. Each of these entities is assigned particular functions to make the campaign against pirated drugs a successful over-all effort to achieve its principal objective of protecting the nation's health.

The intended beneficiaries of the Coalition have a stake in its success and so should give it their wholehearted assistance. The willing involvement of the above-named private entities in the movement should give a praiseworthy example for the rest of the country to follow. Fake medicines can stunt the growth of our race and enfeeble the physical well-being of our people, especially the children. Let us not forfeit our future health with our indifference to the problem we should face today.

Sunday, February 13, 2005

Imelda's exultation

Imelda's exultation

Posted 00:58am (Mla time) Feb 13, 2005
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the February 13, 2005 issue of the Philippine Daily Inquirer

I WAS outraged to read in this paper's issue of Feb. 7 about how Imelda Marcos "exulted" over the holding of the US district court of appeals that it had no jurisdiction over the decision of our Supreme Court recognizing the $684 million transferred by the Swiss government to an escrow account with the PNB as forfeited to the Philippine Republic for failure of the Marcos family to prove its lawful acquisition.

Imelda was elated over the failure of the 9,500 human rights victims whose claims for damages against the villains of the martial law regime headed by Ferdinand Marcos were dismissed by the American court. Against the factual findings in the Honolulu district court that originally heard their complaint, and the massive evidence of their maltreatment in this country, the other half of the conjugal dictatorship again protested their immaculate innocence and expressed satisfaction over the claimants' frustration.

Saying that she was "almost speechless" when she read of the appeals court decision over the radio, she was nevertheless able to say that "we did not even pinch (kinurot) a human rights claimant." "Pinch" is right as an understatement; there is an over-abundance of the tortures and murders and other heinous crimes committed during that blighted period that only Imelda and her ilk will refuse to remember. (Even Chief Justice Pedro L. Yap and Justice Abraham F. Sarmiento of the reorganized Supreme Court had sons who simply disappeared never to be seen again.)

A sincere showing of remorse and an honest effort to repair the wrong done is the decent way for reparation and forgiveness, but some people never pray the Act of Contrition. Some tyrants would rather commit suicide without confession as Hitler did or be executed by the people they have oppressed like Mussolini and Romania's Ceausescu. Imelda has no similar sentiments of penitence or apology because she believes she has nothing to regret. This is obvious from the way she has been behaving notwithstanding the unlamented death of her husband and the downfall of their disgraceful reign.

There is a Supreme Court decision holding her and her family liable for a tax deficiency of more than P23.5 billion that has yet to be fully enforced. The BIR reportedly cannot find enough property belonging to the Marcoses to satisfy the judgment. The extravagant Imelda, who acquired 3,000 pairs of shoes during her heyday with she says her own private funds, cannot afford to pay her just debts now. The merry widow can continue to attend glittering affairs with her affluent friends, but she herself, with her scintillating jewelry and lavish gowns, is a pauper.

President Macapagal-Arroyo has reserved part of the forfeited fund for the payment of the human rights claimants and Congress is preparing to enact a special appropriation for the purpose. The amount shall be taken from the fund originally intended for the implementation of the Comprehensive Agrarian Reform Law. The size of the fund has yet to be determined, but the more important question, in my opinion is, Who should pay the human rights claimants?

Their suit, as I understand it, was filed against Ferdinand Marcos and not the Republic of the Philippines. He was sued in his private capacity and could not be held liable in his official capacity as he had acted without lawful authority. He was a usurper, an intruder. His liability to the claimants was personal and could not be transferred to the legitimate government of the Republic of the Philippines. As the successor to the failed de facto government, the Republic cannot be responsible for the purely political and unlawful acts of its lawless predecessor.

The theory, I suppose, is that the forfeited fund was stolen by Marcos and so should be used to compensate the victims he had oppressed. This means that it will be the Republic which is assuming the liability that should be satisfied by the Marcos heirs. In effect, it is we the people who are being called upon to pay damages to the claimants Marcos and his gang have injured although we had no hand in their abuses. We are the innocent people who contributed and are expected to pay billions of pesos in damages for the iniquities of the past regime.

The other alternative appears as ineffectual as the enforcement of the Marcos P23.5 billion tax deficiency; this has substantially failed so far because of the inability of the government to locate garnishable properties of the debtors who are pleading penury. The Arroyo administration and Congress have probably accepted that feeble excuse and have agreed to pick up the tab in behalf of the human rights claimants who have nowhere else to go for the alleviation of their plight.

There are other questions to be resolved, among them the proof of the individual claimants' particular injury and its monetary value, the agency that should examine such claims, the apportionment of the fund to be appropriated among the more than 9,500 victims recognized by the Honolulu court, and-not the least significant-the existence of other properties illegally acquired by the Marcoses that can be held to answer for their sins. The search for this immense and unlawful wealth should continue unabated as one of the major but so far thwarted mandates of Edsa 1.

Saturday, February 12, 2005

Lincoln and Bush

Lincoln and Bush

Posted 00:19am (Mla time) Feb 12, 2005
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the February 12, 2005 issue of the Philippine Daily Inquirer

I REMEMBER Feb. 12 because our teachers during the American regime in this country would not let us forget it. That was when President Abraham Lincoln was born in 1809. Every year when I was in grade school, we celebrated this red-letter day with programs honoring the great man.

We were frequently reminded of the virtues of Honest Abe, who freed the slaves and saved the Union. We were thrilled when as a young lawyer he defended an innocent man whom a witness swore to have seen committing a murder by the light of the moon. Lincoln proved that there was no moon on the night in question.

Later in high school, we learned another of his remarkable talents. He was an excellent writer. He was the author of the Gettysburg Address, which was a favorite subject in our oratorical contests that were more popular then than basketball. We were moved by his letter to Mrs. Bixby, a widow who had lost her five sons in the Civil War, where he wrote:

"I feel how weak and fruitless must be any word of mine which should attempt to beguile you from the grief of a loss so overwhelming. But I cannot refrain from tendering you the consolation that may be found in the thanks of the Republic they died to save. I pray that our Heavenly Father may assuage the anguish of your bereavement, and leave you only the cherished memory of the loved and lost, and the solemn pride that must be yours to have laid so costly a sacrifice upon the altar of freedom."

I have an old volume that says Lincoln's brief remarks at the dedication of the Soldiers National Cemetery at Gettysburg were not well received. Possibly, the audience was still preparing to hear him and was perplexed when it realized that the president had finished and returned to his seat. There was only a smattering of applause.

Lincoln himself must have thought that his speech was a failure, but he was soon disabused. Some reporters who had taken notes (no tapes or copies for the press then) had written favorable accounts of the program. The renowned orator, Edward Everett Horton, who was the principal speaker at the ceremonies, said that what he had tried to say in two hours, Lincoln had said in two minutes. Interest in the speech grew and soon the Gettysburg Address had become a classic.

An unexpected tribute came when the Gettysburg Address and the Bixby letter were prescribed for study at Oxford "as perfect specimens of English composition." They might also have included the concluding paragraph of Lincoln's First Inaugural Address, where he said to the Confederacy:

"I am loath to close. We are not enemies but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield; and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angel of our nature."

It is said that when a well-known English jurist was asked to name the greatest British orator of the 19th century, he replied: "Lincoln, the American."

Coming now to the present time, let us talk of George W. Bush, who recently began his second term as President of the United States.

The Inquirer reported that when he delivered his State of the Union Address before the US Congress last week, he was applauded 61 times during his 53-minute speech. The Republican Party solons were President Dubya's claque while the Democratic legislators sat silent.

I was listening to him on TV but turned to another channel because I could not stand the way the majority partisans in the audience were reacting to their Lord and Master. They were hanging on his every word as if it came from heaven above. Almost every sentence he uttered received a standing and prolonged ovation from his loyal supporters. They stood up and clapped, then sat down, then had to stand up again for applause, and so on. This went on repeatedly ad nauseam.

His admirers must have suffered sore muscles and creaking joints by the way they exhibited their almost slavish support for everything Dubya said. Even Hitler did not receive such abject adulation although he was definitely a much more forceful (and coercive) speaker. It was unbelievable to witness such an unseemly spectacle in the supposed land of the free.

The speech itself as written (and as delivered with the aid of a teleprompter) was acceptable except to the outnumbered Democrats and the more discerning independent critics. Kerry might have done better, and without the over-use of the word "freedom." In any event, there is no question that Bush's State of the Union Address was a far cry from the Gettysburg Address.

Incidentally, Bush is a graduate of Yale while Lincoln had no more than six months of formal schooling in the backwoods of Kentucky. Ghostwriters drafted Dubya's speech but the Gettysburg Address as preserved in the Library of Congress is in Lincoln's own handwriting. Comparison is odious, of course, but it is obvious in this case.

Sunday, February 06, 2005

Justice with mercy

Justice with mercy

Posted 00:18am (Mla time) Feb 06, 2005
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the February 6, 2005 issue of the Philippine Daily Inquirer

DESPITE my repeated reminders that I am no longer in the active practice of my profession, I continue to receive requests from some of my readers to handle their cases. Many even send me thick documents for me to read, hoping to persuade me to represent them or at least to advise them on what to do with their legal problems.

Unfortunately, I cannot find the time or the energy to study their individual complaints, which are mostly already being handled by their respective counsel. In effect, many of them are asking me to interfere with my brother lawyers, who would have reason to resent my meddling and their clients' lack of confidence in them. I presume, of course, that their attorneys are doing their work well and all these readers are asking from me is a second opinion. I regret I cannot oblige.

I became a lawyer 53 years ago last Friday and my number in the Attorney's Roll is a low 3575. It has been a thrilling career for me and I am grateful to God and all those who have helped me along the way. The years have slowed me down as they must all of us, but I am thankfully not yet totally inactive. I still occasionally feel that burst of enthusiasm that fires the spirit and whips the blood of the convert enamored by the mystique of the Law.

Only recently, I wrote in this column about that decision in favor of a city that provoked two motions for reconsideration both denied by the Supreme Court. Entry of judgment was duly made, and the decision was partially enforced by the winning party. The losing party filed a third motion for reconsideration which was granted by the Court; it also allowed the final and executor decision to be appealed to the banc in violation of its own rules. Worst of all, the Supreme Court reversed the Second Division, which had acted on behalf of the entire Court, and ruled in favor of the respondent.

It is cases like this that make me speak out, not as a retained and active lawyer but as an ordinary observer of the administration of justice in this country. Courts are presumptively competent and honest but there are times when the rules prescribed for their proper conduct are ignored if not wantonly violated, sometimes by the High Tribunal itself. That is when I find it necessary to speak out but not as an intentional fault-finder of the judges. I do this as a member of the Bar anxious to correct or prevent, if I can, excesses or errors of the Bench.

In that curious case, the Court allowed a third motion for reconsideration and granted it after denying the two previous motions with finality. It accepted referral of the decision of the Second Division to the banc despite the prohibition in its own SC Circular No. 2-89. Even after the decision had already been recorded in the Book of Entry of Judgment and already partially executed, it was reversed by the Supreme Court which remanded the case back to the trial court. The city was not even allowed to comment on the third motion for reconsideration, if only to stress that it was prohibited by the Rules of Court.

Only recently, I called attention to a case where the Supreme Court described the Court of Tax Appeals as a quasi-judicial body despite its earlier pronouncement that it was a court of justice. Prof. Bartolome C. Fernandez was quick to add that Sec. 16 of the Administrative Code of 1987 includes the Court of Tax Appeals among the lower courts in which judicial power is vested. That undeniable error of the Supreme Court may cause a credible law student to flunk the bar examinations for believing in the infallibility of the justices composing the High Tribunal.

Speaking of the bar examinations, I remember the time I interceded for a student who had received a rating of 74.9980 percent and was considered flunked. She moved for reconsideration, respectfully showing that her computation of her grade gave her the passing average of 75 percent. Her motion was denied, the Court preferring the computation made by the Bar Confidant. I discussed the matter with Chief Justice Hilario Davide, who gave me the impression that he agreed with the petitioner. In the end, however, he said that the Court had refused to change its original denial.

More serious is the case of another flunker in the same 2003 bar examinations who received a grade of 74.9990 percent and was considered Failed. His motion for reconsideration was originally denied but was later referred to the Bar Confidant who as of Nov. 8, 2004, date of his letter to me, had not yet submitted her required report and recommendation to the Court. Like my student, the petitioner demonstrated that his own computation would give him the passing grade of 75 percent.

Regardless of the merits of the conflicting computations, I suggest that the computations made by the Bar Confidant should be made with less rigidity in determining the student's fate in the bar examinations. The plea of the two students who missed the passing grade by only .001 percent and .002 percent deserves more compassion from the Supreme Court, which has itself committed its own more substantial mistakes. As Milton said in "Paradise Lost," justice should be tempered with mercy.

Saturday, February 05, 2005

In aid of grandstanding

In aid of grandstanding

Posted 00:37am (Mla time) Feb 05, 2005
By Isagani Cruz
Inquirer News Service

Editor's Note: Published on page A14 of the February 5, 2005 issue of the Philippine Daily Inquirer

I'M among the many people who have no sympathy for Lt. Gen. Jacinto Ligot who is facing charges of unexplained wealth and other related serious crimes allegedly committed during his term as comptroller of the Armed Forces of the Philippines. I know he is entitled to the presumption of innocence guaranteed by the Bill of Rights to every person accused of a crime, no matter how dark his past or repellent his record. But in the particular case of Ligot, the consensus even now is that there is enough heavy evidence against him as reported by the media. This should overturn that constitutional presumption of his innocence to one of obvious guilt.

Ligot and his family reportedly own valuable real estate here, including farms in Mindanao, a condominium unit in Taguig, and as well two buildings in California worth millions of dollars. He has expensive cars he could not have acquired with his modest income in the AFP. Government records show that his wife has traveled abroad as many as 28 times since 1998. There is also some doubt regarding the financial provenance of his young children who are registered as independent owners of properties suspected as actually belonging to Ligot. He is said to have admitted that he had no substantial assets when he entered the military service compared to his vast alleged landholdings and investments as now revealed.

On one matter, however, I am in full agreement with the general. That is the stand he took last week against his investigation for unexplained wealth by the committee on national defense of the House of Representatives. When subjected to questioning by its members, he is said to have invoked as many as 21 times his right against self-incrimination safeguarded by Sec. 17 of Art. III of the Constitution. His basic position was that the committee had no authority to investigate him because the probe was not supposed to be "in aid of legislation," as required by Art. VI, Sec. 21, of the Constitution. He claimed that he was being investigated instead "in aid of prosecution."

I agree; the beleaguered general has a point. But I would amend that valid argument and say that the investigation was (or is, if it is being continued by the honorable congressmen) "in aid of another grandstanding."

I do not see how it can be excused as in aid of legislation because there are enough laws that already cover the alleged offenses of Ligot unless the committee believes that they are still inadequate to prevent their repetition in the future. The accusation against him is authorized under the Anti-Graft and Corrupt Practices Act. There are special laws prohibiting the gifting of public functionaries for past or expected official favors, granting immunity to bribers of public officials, increasing the penalty for swindling, establishing a code of conduct for government personnel, defining and penalizing the crime of plunder, and reimposing the death penalty for certain heinous crimes, together with the provisions in the Revised Penal Code against Crimes Committed by Public Officers and other related offenses.

Any addition to these laws cannot apply to Ligot because it would be ex post facto if also unnecessary. Perhaps the House committee members want again to engage in another useless exhibition of their importance to excite their easily impressed constituents.

Ligot's charge that his investigation is being conducted in aid of prosecution exposes the real purpose of the congressmen, which is to cast themselves as cowboys out to get the villain in the person of the unpopular Ligot. They are publicity hounds exploiting the predicament of their quarry by further scandalizing him for the benefit of the public eager for blood in the cause celebre. Where they should be attending to their main function, which is to legislate against the major problems of the country like the deteriorating economy, the increasing criminality and, yes, the insistent and irremovable pork barrel, they would fritter away their valuable time by assuming a task that does not belong to them and for which they are ill-prepared.

The investigation of Ligot is already being handled by the Office of the Ombudsman, which is the agency charged by the Constitution and the laws to prosecute cases against public functionaries for offenses connected with their official duties. The personnel of this independent constitutional body are trained and experienced investigators and prosecutors, unlike the members of the House of Representatives, many of whom are not even trained legislators. The chair of the committee on national defense, Rep. Roilo Golez, is not even a lawyer, much less an experienced investigator. Yet he and his fellow probers are having a field day in flaunting their supposed expertise as pretentious cross-examiners. Their recalcitrant witness has effectively silenced them, however, with a constitutional liberty they could not ignore.

Leave the investigators to their task, gentlemen, and attend to your real work in Congress without shameless fanfare. If what you want is undeserved public acclaim, be a movie star like the three misfits in the Senate.