Cyber Libel and Constitutional Precedents

The cyber crime law’s section on libel brings to focus once again, the landmark case of New York Times v. Sullivan [1], and its progeny. We focus on the case because it has been declared by the Supreme Court as applicable in the Philippines.

New York Times was a civil libel case filed in the State of Alabama by Montgomery City Commissioner L.B. Sullivan against the New York Times. The suit, involved the following statement, among others:

In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama

State College Campus.

             As police commissioner, Sullivan felt alluded to.

 New York Times held that a civil action for libel filed by a public official is constitutional if there is a showing of actual malice on the part of the publisher. For civil libel to prosper, the statement must have been made with “knowledge that it was false or with reckless disregard of whether it was false or not." Applying New York Times, in a later case, the US Supreme Court further fashioned "a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages."[2]

 

The  doctrine laid down in New York Times was later applied by the US Supreme Court in the criminal case of Garrison v. Louisiana. This case is of particular importance, because the defamation statute of Louisiana very closely resembles the Philippine libel law, the essential elements of which are: (1) a defamatory statement, and (2) publication. Like the Philippine libel law, Louisiana presumes malice in a defamatory statement. In fact, it employs essentially the same phraseology.

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: (Revised Penal Code, Article 354).

"Where a nonprivileged defamatory publication or expression is false it is presumed to be malicious unless a justifiable motive for making it is shown."  (La.Rev.Stat.1950, Tit. 14: "§ 48. Presumption of malice" , Footnote 1 of Garrison v. Louisiana)

A legal presumption, however, dispenses with the prosecution’s presentation of evidence. The presumption shifts the burden on the defense -  to prove the absence of malice.

Malice is an essential element of the offense of libel (defamation in the US). But the presumption of malice unburdens the prosecution from proving that element, in violation of the constitutional requirement that the prosecution prove each and every element of the offense. The US Supreme Court held that the Louisiana prosecution was unconstitutional. It  did not, however, categorically declare the defamation statute unconstitutional.

 Seventeen years after New York Times, in the case of Ivey v. Alabama, the Supreme Court of Alabama declared Alabama’s defamation statute unconstitutional. The law was struck down because it did not require the showing of actual malice as declared in New York Times. The statute used the term “maliciously”, instead of requiring actual malice.  

 “The State argues that, even if § 13A-11-163 does not expressly require “actual malice,” it can be made constitutional by this Court's interpreting the statutory term “maliciously” to mean “with actual malice.”   The State further points out that the trial judge instructed the jury that in order to convict Ivey for criminal defamation it had to find that Ivey had acted with “actual malice” and that the judge then instructed the jury that to find “actual malice” it had to find that Ivey had acted with “either actual knowledge that the accusation was false or [with] a reckless disregard of whether or not the accusation was false or not”; the State then argues that, given these instructions, the charge was within the constitutional bounds of the First Amendment.” 

Ivey v. State of Alabama 100141 July 6, 2001 [3]

 As quoted above, the State government tried to save the statute by arguing that the trial judge did require the showing of actual malice, in his instructions to the jury. The Supreme Court of Alabama, however, was unmoved. It held that the constitutional application of an unconstitutional statute does not cure the statute. Finding persuasion from decisions of the Supreme Courts of Alaska, and Pennsylvania, the Supreme Court of Alabama held that reading “actual malice” into the term “maliciously” would  amount to legislation, not interpretation. [4]

This is of particular importance, in light of the declaration of the Philippine Department of Justice that it would hew closely to Constitutional standards in the drafting of the Implementing Rules and Regulations of the cyber crime law. Applying the logic of Ivey v. Alabama, any attempt at constitutional rectitude in the drafting of the IRR is irrelevant to the consideration of whether or not the cyber crime law is unconstitutional.  Constitutionally correct implementing rules cannot cure the unconstitutionality of the mother law. The vine supports the branch; the branch cannot nourish the vine. If the vine is dead, the branch is rendered lifeless as well.

 

The doctrine of New York Times has been applied in the Philippines in a fashion similar to the application by the lower courts of Alabama. Acquittals have been declared in cases where actual malice was not proven. So it is the conduct of the prosecution that has been weighed, not the text of the law, in determining constitutionality. This runs counter to the superior logic of Ivey v. Alabama, that constitutional applications do not save an unconstitutional law.

Opinion-makers have advanced the argument that the case is not ripe for adjudication, because there is no real, and direct injury to any of the petitioners. This is the prevailing view in the United States – that a criminal statute may only be challenged by one indicted under said statute. Any other petitioner is deemed to have no standing before the court. This is where Philippine precedent parts company with American jurisprudence. In the recent case of LAMP v. The Secretary of the Budget (G.R. No. 164987) [5]the Supreme Court, en banc, held that:  "xxx   taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.

It bears noting that there is an appropriation of 50 million pesos per year for the implementation of this statute. In order, therefore, that not a single peso of that appropriation is devoted to unconstitutional purposes, the objectionable sections of the statute must be declared unconstitutional.

It has also been urged that the Supreme Court stay its hand; that it exercise judicial restraint because the legislature has declared its intention of amending the law, and the executive has declared that it would apply the law judiciously. But neither legislative intentions, nor declared prosecutorial restraint, have formed the basis for judicial abstention. Intended changes are not facts; and it is elementary that courts decide only on the basis of facts.

Despite their professed adherence to the principles that underlay the Bill of Rights, many legislators agreed to the bill. Is it because they want to minimize internet posts critical of them? There is Tito Sotto and the plagiarism issue. There is Villar and the corruption issue. In the case of the executive, were they also motivated by self-interest? To chill internet posts like the Abnoy youtube videos, and the dalliances of the Executive Secretary with a hot number?

And what of the Court? After all, there are also issues about its Members. There is the psychological test of the Chief Justice. There are the talks about the Firm, its founding member, and former closeness to Gloria Arroyo. There is the still lingering talk about the plagiarism of another justice. Will the Court members yield to self-interest in deciding this case? Will the Court yield to the political power of the few?  Or will the Court members decide in such a way as to deserve their title? Justice.

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[1]    New York Times v. Sullivan 376 US 254

      http://caselaw.findlaw.com/al-supreme-court/1303676.html

[2]      Milkovich v. Lorain Journal Co. 479 US1, quoting  Philadelphia Newspapers, Inc. v.                     Hepps,   475 U.S. 767 (1986)

        http://www.law.cornell.edu/supct/html/historics/USSC_CR_0497_0001_ZO.html

[3]    http://caselaw.findlaw.com/al-supreme-court/1303676.html

[4]     In Gottschalk, the State of Alaska argued that the Alaska criminal-defamation statutes should be narrowed to escape a holding of constitutional infirmity and that the trial court had properly narrowed them in its jury instructions;  that argument was very similar to that  The Supreme Court of Alaska, presented here by the State of Alabama.  however, disagreed, and stated:
“We recognize the rule of construction that where it is reasonably possible to do so, statutes should be construed in a manner consistent with constitutional  Here, however, ․ we are not able to save the statute in requirements.  question because in doing so we would be stepping over the line of interpretation and engaging in legislation.
“We are supported in our conclusion that it would be improper for us to engage in the radical reconstruction necessary to save [the statutes] from unconstitutionality by the decisions of other state courts which have  In Commonwealth v. Armao, 446 Pa. 325, dealt with the same problem.  286 A.2d 626 (1972) the Pennsylvania Supreme Court struck down criminal libel statutes which suffered from the same defect as ours, stating:
“ ‘The Commonwealth urges us to in effect re-draft the criminal libel  To accede to statutes in accordance with First Amendment requirements.  this request would be to undertake a wholly inappropriate judicial activity amounting to judicial legislation.’ ”
 The Gottschalk court also noted: 575 P.2d at 296.
“If we were to engage in the process of narrowing suggested by the State, after striking [the statute making truth a partial defense] we would then have to decide whether [the defamation statute] should be limited only to cases of private defamation or should apply to defamation of public officials, public figures or concerning public issues;  whether truth should be an absolute or a conditional defense to private defamation;  and, whether a private false defamation which is neither  The variety of knowingly nor recklessly false should be criminal.  these choices underscores the essentially legislative nature of the task of bringing our defamation statutes within constitutional bounds.”

[5]    http://www.lawphil.net/judjuris/juri2012/apr2012/gr_164987_2012.html

Renato Corona’s SALN - Three Grounds for Dismissal of Article 2
of the Articles of Impeachment

The failure to provide information in the SALN is alleged to be an impeachable offense; removal is sought on the basis of three grounds:

1. That it is a violation of the anti-graft and corrupt practices act;
2. That it is a culpable violation of the Constitution; and
3. That it is a betrayal of the public trust.

 Graft and corruption

On the first issue, the complaint states that:

“2.3. It is also reported that some of the properties of Respondent are not included in his declaration of his assets, liabilities, and net worth, in violation of the anti-graft and corrupt practices act.”

As basis for impeachment, the Constitution provides as follows:

The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. ( Art XI Section 2)

Note that the Constitution states “graft and corruption”, while the complaint alleges “violation of the anti-graft and corrupt practices act”. Is there a difference? Or is this mere sophistic quibbling?

There is no sophistry if the law itself declares the difference.

The Anti-Graft and Corrupt Practices Act states that:

Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (Italics supplied in the law)

An enumeration of acts declared to be corrupt practices follows in subsections 3 (a) to 3 (k). They are acts that range from receiving a    commission in any government contract (3 b), requesting a gift from an applicant for a government permit or license (3 c), and giving a party an unwarranted advantage or preference in the discharge of the public official’s duty.

The  mandatory requirement to submit SALNs, however, is found in Section 7.

 

 It is clear from the foregoing, that the mandate to submit SALNs is not part of Section 3, which declares what are “corrupt practices”. Any failure to comply with Section 7, therefore, cannot be considered an act of corruption to provide basis for impeachment under the phrase “graft and corruption” found in Section 2 of Article XI.

There is no guile, therefore, if the respondent submits that the Constitutional provision referring to “graft and corruption” does not apply to him. There is, in fact, craftiness in the complaint, in alleging “violation of the anti-graft and corrupt practices act”, to yield a basis for impeachment which is easy to prove.

Aside from the textual basis for non-inclusion of Section 7 in the coverage of “graft and corruption” under Section 2 Art XI of the Constitution, exclusion is also warranted based on conceptual grounds. The crimes (treason, bribery, high crimes) enumerated in the provision of the Constitution refer to crimes which are mala in se.

It might be pertinent at this point to hark back to the concept of mala in se as opposed to mala prohibita,  for that is what distinguishes Section 3 (mala in se) from Section 7 (mala prohibita).

Any freshman law student will proudly recite that an act that is mala in se is an act that is inherently evil - one that is universally characterized as immoral or depraved. Majority of the crimes defined by law are of such nature – murder, rape, robbery.

An act that is mala prohibita, on the other hand, is punishable, only because the Congress declares so. The declaration is made, as a matter of public policy, to effect a behavioral change in society. The resultant behavior is, in the judgment of Congress, a good that must be pursued. Congress, however, pursues the good through the stick, and not the carrot. Penalties are imposed, in the hope of effecting behavioral change.

An example is the prohibition on overspending during the elections. There is nothing inherently wrong in a rich man spending all his money to chase a public office. But Congress saw it fit to level the playing field, for which reason, it has made it an election offense to spend beyond some limit.

Another is the ban on smoking in certain areas.

The offenses enumerated in Section 3, being mala in se require the element of mens rea (intent), aside from the prohibited act.  The element of intent … is described as the state of mind accompanying an act, especially a forbidden act. It refers to the purpose of the mind and the resolve with which a person proceeds. It does not refer to mere will, for the latter pertains to the act, while intent concerns the result of the act. [1]

The result of the acts which characterize most offenses involving graft and corruption, is the pecuniary gain to the offender. Commissions, gifts, etc., all produce material gain to the offender. There is no material gain, however, in the refusal to disclose financial information. In fact, refusal may be motivated, not by a desire to conceal corruption, but by a desire to shield one’s privacy, from intrusions by the state. The latter is exemplified in the case of Morfe v. Mutuc.

In that case, Judge Jesus P. Morfe, in the words of the Supreme Court, “a judge of repute of a court of first instance” [2], refused to submit his SALN after his first submission. He questioned Section 7 of RA 3019 in a declaratory relief action before the court of first instance (presided by another judge). The lower court sustained Judge Morfe, which prompted the government to elevate the matter before the Supreme Court.

On the basis of textual and conceptual evaluation, therefore, a removal is not warranted on the ground of “graft and corruption”.

Culpable violation

Another potential basis for removal is the alleged “culpable violation” of the Constitution. The prosecution asserts that submission of the SALN is required under the Constitution.

Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. (Article XI)

The mandate of the Constitution only requires a submission, which was complied with when the respondent submitted his SALN to the Clerk of Court of the Supreme Court. Even if the respondent refused to submit his SALN as Judge Morfe did, it is doubtful that this can serve as the basis for removal.

It bears noting that the Constitutional provision only refers to the filing of the SALN upon assumption of office. Subsequent filings are provided by law, and their non-compliance is dealt with in accordance with said statute. Any violation after a first filing, therefore, is  covered by law, not the Constitution. This, clearly, is not a basis for removal.

In fact, not every failure to comply with a Constitutional mandate can serve as a basis for removal. The violation, it is submitted, must be one that is mala in se (inherently evil), like the other bases for removal, because the phrase “culpable violation” of the Constitution appears in the same enumeration as treason, bribery, and graft and corruption. Under the principle of ejusdem generis, when an enumeration is made, the enumerated items are deemed to be of the same nature or characteristic.

But is there a violation of a Constitutional mandate that cannot be considered inherently evil? It is submitted that such a violation is possible.

The Constitution provides that:

“The President shall submit to the Congress, within thirty days from the opening of every regular session as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.” (Section 22, Article VII). 

If a President decides that he needs more time to arrive at a workable budget, and submits it sixty days after the opening of session, it certainly will not furnish a basis for removal. And the reason for that is the fact that no evil intent can be ascribed to the President, nor can a resultant evil occur (Congress still has months to deliberate).

Similarly, the Constitution provides that: “The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time.” (Section 23, Article VII).

A President, like Thomas Jefferson and all subsequent presidents before Woodrow Wilson, may believe that the address is too monarchical (similar to the Speech from the Throne) [3]. If said President sends a report, instead of addressing Congress, it is doubtful that the refusal to address Congress would form the basis for a removal. The reason for that is the fact that the refusal is not an act that is mala in se, like treason and bribery; there being no resultant evil, nor evil intent in the refusal.

The second ground, therefore, cannot be invoked for a removal.

Betrayal of Public Trust

A third potential basis for removal is the alleged betrayal of public trust. In submitting a less than complete SALN, it is argued that the respondent betrayed the public trust. The prosecution seems to  imply that the term “trust” in the phrase “public trust” refers to the candor demanded of a public official,  as in “The public can no longer trust the respondent because he lied when he filled up his SALN.”  The phrase “betrayal of public trust”, however, is not a term of Philippine coinage. As used in the United States, the phrase refers to a breach of fiduciary obligation, not want of candor or dishonesty.

In the case of US v. Addonizio [442 U.S. 178 (1979)], the City Mayor of Newark, New Jersey was charged with extortion, in conspiracy with 14 others. Said crime of extortion was characterized by the District Court as “a serious breach of public trust”.

In the case of US v. Clarence E. Braasch [502 F.2d 139], the Court of Appeals for the Seventh Circuit commenced its decision by stating that: This prosecution, brought under the extortion statute, depicts a betrayal of public trust of the most alarming type to a free society: the corruption of the entire vice squad of the 18th Police District of Chicago over a period of many years.

And in the case of United States Postal Service v. National Association of Letter Carriers (847 F.2d 775), a case involving theft of mail by a post office employee, the Court of Appeals for the Eleventh Circuit the defendant’s “conduct violated his fiduciary responsibilities and amounted to a betrayal of public trust.”

The above cases illustrate that the phrase “public trust”, in the American context, signifies fiduciary obligation; a breach of that fiduciary obligation is what constitutes a betrayal of public trust.

Although not expressly stated in the American Constitution, betrayal of public trust is a basis for removal, understood to be included in the phrase “high crimes and misdemeanors”. Such understanding was culled from English law, the origin of the American concept of impeachment.

As early as 1701, Lord Halifax was impeached for corrupt practices and betrayal of trust. “Thus, under English precedent, “high crimes and misdemeanors” denoted a category of political crimes against the state that was “beyond the reach of ordinary criminal redress,” which included: “misapplication of funds… abuse of official power… neglect of duty…encroachment on or contempt of Parliament’s prerogatives,” and corrupt practices and betrayal of public trust.” [4]

“Blackstone defines the “first and principal” high misdemeanor as “maladministration of such high officers as are in public trust and employment,” usually punished by Parliamentary impeachment.” [5]

Similarly, Alexander Hamilton described impeachment as  follows:

“[It is appropriate for] those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” [6]

Pursuant to the understanding that “high crimes” includes betrayal of public trust, “Judge George W. English was charged with favoritism and breach of public trust and confidence”  in 1926. [7]  The charges stemmed from an investigation which found that Judge English manipulated bankruptcy funds (held in trust), and usurped powers over state officers. [8]

The four articles of impeachment presented against Richard M. Nixon, all employed the phrase “Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government.” [9] Clearly, all the articles alleged that Nixon betrayed the trust reposed in him as a President.

Again, by that term “trust”, is meant fiduciary obligation, not candor. In legal parlance, the term trust always is employed to mean fiduciary obligation, not candor. When one creates a (private) trust, for instance, one appoints an agent, called a trustee, who is given property to be held in trust, and managed for a beneficiary.

At the common law, one encounters the doctrine of “public trust”. “The origins of the public trust doctrine are traceable to Roman law concepts of common property. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. This concept that tide and submerged lands are unique and that the state holds them in trust for the people has endured throughout the ages..” [10]

The State as trustee, is entrusted with common property; concomitant to its control of the common property, is the fiduciary duty to maintain the property for the public good.

Similarly, when it is stated that public office is a public trust, that signifies that something is given to the public official, which he holds, or uses in trust, for the common good. That something is a portion of sovereign power; the executive power, in the case of the President, and the power to decide cases, in the case of the judiciary. Said sovereign power is to be wielded for the common good, not for personal gain. So when the sovereign power is exercised for personal gain, as when bribes are received for a favorable judgment, it is at such a time that there is a betrayal of public trust – a derogation of the fiduciary obligation to exercise the power for the benefit of the public.

So only when the exercise of judicial power is tainted with the motive of personal gain, would there be a betrayal of public trust by a judicial officer. 

A similar intention is manifested in the deliberations of the Constitutional Commission, quoted in the concurring opinion of Justice Carpio in the case of Merceditas Gutierrez v House of Representatives G.R.  193459:

MR. REGALADO.  XXX      XXXX

Just for the record, what would the Committee envision as a betrayal of public trust which is not otherwise covered by by other terms antecedent thereto?

MR. ROMULO. I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it refers to his oath of office, in the end that the idea of public trust is connected with the oath of office of the officer, and if he violates that oath of office, then he has betrayed the trust.

MR. REGALADO. Thank you.

MR. MONSOD. Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks.

THE PRESIDENT. Commissioner de los Reyes is recognized.

MR. DE LOS REYES. The reason I proposed this amendment is that during the Regular Batasang Pambansa where there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term "betrayal of public trust," as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose, Madam President.(Emphasis in the concurring opinion).

Viewed in its proper context, then, betrayal of public trust cannot be the basis for removal of the respondent, on the allegation that he lied when he filled up his SALN. The accomplishment of the SALN, and its submission, is not an exercise of judicial power, the abuse or misuse of which is a breach of the judge’s fiduciary obligation. Submission of the SALN is a burden on all public officials that has no relation at all to the powers conferred on the officials.

Commentators favoring the prosecution seek to persuade by alluding to the case of Federal District Judge Harry Claiborne, who was removed for tax evasion and falsification of tax returns. Commentators claim that the falsification of tax returns by Harry Claiborne is akin to the alleged falsification by the respondent of his SALN. The Philippine Senate should, therefore,  convict as the US Senate did.

What commentators fail to disclose is that Harry Claiborne had been convicted of tax evasion by a jury, prior to impeachment. The convicted and imprisoned Judge Claiborne refused to resign and continued to collect his full salary, while in prison. It is for that reason that impeachment as a sword, was once again unsheathed by the legislature after a fifty-year hiatus. [11]

The foregoing discussion shows that the facts proven, clearly do not allege a Constitutional violation. A dismissal of Article 2, therefore, is in order.

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[1]  Antonio Villareal et al v. People of the Philippines (the Lenny Villa case penned by Sereno).

[2] Judge Jesus P. Morfe worked with the luminaries of old:

1.      He first appeared before the Supreme Court in  August 1935, with Claro M. Recto, in case of  Matias Sales v. Director of Lands (G.R. No. L-41901).

2.      He next appeared in the case of Sebastiana Rodriguez v. Irinea Caoibes (G.R. No. 34147), along with Claro M Recto, and the Sumulong, Lavides and Sumulong law firm; they faced Ramon Diokno (later appointed Supreme Court justice).

3.      In December 1949, Morfe appeared with Claro M. Recto (justice), Manuel C. Briones (justice), Jesus P. Barrera (justice) , and Antonio Araneta, in the case of Nacionalista Party v. Comelec (G.R. No. L-3521)

[3] http://en.wikipedia.org/wiki/State_of_the_Union_address

[4]  The Law of Presidential Impeachment (Edwin Brown Firmage) page 3, 3^rd paragraph, quoting Raoul Berger (Utah Law Review Volume 1973 (Winter) No. 4, 681-704.)

http://oneutah.org/oneutah-filez/authors/firmage/Substantive%20Law%20of%20Impeachment.pdf

[5]  Firmage, supra, page 3, second to last paragraph.

[6]  THE FEDERALIST NO. 65, at 423–24, quoted in Firmage, supra.

[7] Firmage, supra, at page 10, quoting 67 CONG. REC. K 6283–87 (1926).

[8] http://news.google.com/newspapers?nid=1787&dat=19260310&id=Dt8cAAAAIBAJ&sjid=GmQEAAAAIBAJ&pg=5122,2805054

[9] http://classes.lls.edu/archive/manheimk/371d1/nixonarticles.html

[10]  The Public Trust Doctrine – California State Lands Commission.

  

[11] Warren S. Grimes, Preserving Impeachment As The Exclusive Removal Mechanism For Federal Judges. UCLA Law Review June 1991, found at

 http://members.tripod.com/the_solipsist/id50.htm

Erap

The five current or former government employees among the candidates have all had at least twelve years of government service. Their record of service can, therefore, be a good indicator of whether or not they will deliver on their campaign promises. This is the reason why I have chosen to support Erap; for it is Erap who has been most productive as a civil servant.

The years as mayor need no discussion here, nor the fact that most roads of San Juan have been cemented. This is a feat no politician can boast of, no matter how close to Marcos or Arroyo, no matter how big the pork barrel. The achievements won Erap the TOYM award in 1972. Other government officials who won the TOYM award for public service, are Ninoy Aquino in 1960, and Paeng Salas in 1962 (wizard of Marcos’ miracle rice production surplus).

The years as legislator were uneventful; proving that Erap is better as an executive than as legislator. One noteworthy item is his advocacy (his maiden privilege speech) of legalizing jueteng.

His aborted presidency, bore more fruit than the successor. And that is due to his careful selection of his cabinet. To paraphrase that old cliché, tell me who comprise the cabinet, and I will tell you the type of president you have. Erap appointed individuals, who were not only competent in the field, but had their hearts in their portfolios. Appointing one who truly cares for the portfolio, is a sign, not only of good management, but of sincerity in delivering the service of that portfolio. Appointing somebody unqualified actually guarantees the failure of the portfolio, as evidenced by the failures of the incompetent Angelo Reyes.

The following is a sampling of some of the appointees of Erap.

Brother Andrew Gonzales – a lifelong educator, and former head of La Salle was appointed as the Secretary of Education. The La Salle brothers, like other religious orders, have dedicated their lives to the education of the youth. The successor, on the other hand, appointed a corporate lawyer with no education experience.

William Padolina was appointed to the Department of Science and Technology. Like Erap, Padolina is a TOYM awardee (Science and Technology – 1985), and a UP System awardee as outstanding administrator.

Domingo Siazon, Jr. was appointed as Secretary of Foreign Affairs. Siazon is a career diplomat, who rose from the ranks; starting as vice-consul in 1964, until his appointment as Secretary by Erap. The successor appointed non-career diplomats, as secretary and ambassadors.

Justice Serafin Cuevas was appointed as Secretary of Justice. His entire career was devoted to the administration of justice, starting as assistant fiscal of Manila, to CFI (Court of First Instance) judge, justice of the court of appeals, and later Supreme Court. He is the unquestioned authority in remedial (procedural) law, among his peers in the Supreme Court, and in the academe. Erap’s successor appointed Raul Gonzales – one who was earlier suspended by the Supreme Court for ignorance of the law, and one who capped his stint as DOJ Secretary with that scandal involving drugs, bribes, and the Alabang boys.

Erap’s economic team was comprised of Felipe Medalla at the helm of the NEDA, and budget secretary Benjamin Diokno, both economics professors from UP, with Ph.D’s from Northwestern University and Syracuse University, respectively. Some economic stats (taken from the World Bank) of Erap’s term, attributable to these gentlemen, are as follows:

GDP growth was negative in 1998, the first half year of Erap, due in large part to the Asian economic meltdown. It rose to 3% in 1999, and 6% in 2000. (See Stats 1, How to Get Data below).

Gross capital formation for those years was 20% (98), 21% (00) and 19% (01). Gross capital formation, as defined by the UN, is measured by the total value of investments in fixed assets, by the entire economy, business, government and households. Fixed assets include buildings, roads, bridges, equipment, etc.( http://datafinder.worldbank.org/gross-capital-formation) In layman’s terms, it is the measure of goods that produce other goods. An increase in these assets increases productive capacity, and leads to greater employment. The figures for Erap’s successor have averaged 16.24% for 2001 through 2008. This belies any claim that more investments, whether foreign or domestic, were made in her time. (Stats 1)

Exports during Erap’s time were 52%, 51% and 55% of GDP for the three years. The successor started with 49% in 2001, slid to 47% in 2007, and a dismal 37% in 2008. Exports minus imports yields a negative $5.1 Billion for Erap in 1998, against negative $11.1 Billion for the successor in 2008. (http://devdata.worldbank.org/AAG/phl_aag.pdf)

The growth rate of GDP per person employed or labour productivity is defined as the growth rate of output per unit of labour input.

(http://mdgs.un.org/unsd//mdg/Metadata.aspx?IndicatorId=0&SeriesId=757)

It was negative 3% in 1990, zero in 1995, and 6% in 2000. It was zero in 2005, and 3% in 2008. Clearly, labor was more productive during Erap’s time than during the years of his successor. (Stats 2)

In the ratio of employment to population, the successor performed slightly better than Erap, with 58% in 2000, against 60% in 2005 and 61% in 2008. (Stats 2)

Remittances from OFWs ballooned from Erap’s 5.1 Billion pesos in 2000 to 18.6 Billion pesos in 2008. (Stats 1) I will not consider this a positive factor, however - that people were forced to seek employment abroad. The low capital formation, low productivity and higher employment, may indicate that many of the so-called employed were actually underemployed.

The exchange rate of the peso to the dollar has not recovered from its 2001 levels. In stark contrast the currencies of our Asian neighbors have all appreciated against the dollar, and have improved against their 2001 levels, as indicated by the table below:

Country	2000	2001	2008	current
Philippine Peso	29.47	40.89	44.4	44.34
Thailand Baht	31.36	41.35	33.37	31.75
Malasian Ringgit	2.81	3.90	3.33	3.16
Indonesian Rupiah	2,909	10,013	9,558	9.017

(http://en.wikipedia.org/wiki/Tables_of_historical_exchange_rates_to_the_USD)

The peso of the year 1998 can buy goods worth 1.10 pesos in 2000, showing a slide of ten centavos in purchasing power during the term of Erap. The peso of 2008, however, can buy goods that a mere 64 centavos of 1998 can buy. That is a slide of 36 centavos of purchasing power. (http://www.census.gov.ph/data/sectordata/tscpimon.html)

The job of the Chief Executive is to spot the talent, deploy him/her, and lend full support. The Chief Executive, himself, does not have to be a good lawyer, engineer, or physician, in the case of the health department. As Henry Ford said, “I do not need to be a good engineer, I can hire one”. The assembly of a good team, and their competent performance, is the reason why I chose to support Erap.

Age

It is said that at 73 (Happy Birthday Sir), Erap is too old to govern. Konrad Adenauer was 73 when he took the helm of West Germany, and governed until he was 87. Deng Xiao Ping was 76 when he took over and produced China’s economic miracle. This is not to say that Erap will be as great as these leaders. But these men prove that age is no hindrance to performance (No this is not a sales pitch for Viagra).

Plunder

There is, of course, that conviction for plunder; and the perception that Erap is corrupt. But I have little regard, in fact, unalloyed contempt for a court that deigns to consider fabricated evidence. And it is difficult to believe that one who said no to the $14 Million bribe of IMPSA would yield to the temptation of Chavit Singson [572 Million pesos at the exchange rate then - (http://en.wikipedia.org/wiki/Tables_of_historical_exchange_rates_to_the_USD)]. There is also the issue of credibility. One bill weighs one gram. So if the 130 million were in 1,000 peso bills, that would yield 286 pounds. Even Arnold Schwarzenegger would have difficulty lifting that. (1,000 pieces of 1,000 pesos = one million = 1,000 grams/454 grams per pound = 2.2 pounds, multiplied by 130 = 286 pounds.)

Disqualification

The rules only bind the servant (government); they do not bind the taskmaster (sovereign people). A direct act of the people always prevails over legislative acts, because legislative acts are acts only of the representatives. The direct act, I submit, also prevails over the Constitution, because this is a later direct act, and therefore, the will of the people at the present time. Furthermore, the Constitution was ratified in toto, meaning, wholesale. A voter may have been in disagreement with, say, the presidential system, or the fact that there is no provision for a reelection of the president. But the voter may have discounted that objection, because his choice was limited to ratifying the whole or not ratifying. In the case of a vote, there is only one issue – who should lead the country? This is, therefore, an unequivocal manifestation of the will of the people on a single issue, involving a single candidate (you only write one name). So between this singular unequivocal act, and the general intent in ratifying the Constitution, the unequivocal vote must prevail.

Our recent history has shown that the rich and powerful have gotten back what they lost in the Marcos years. The Lopezes got back Meralco. The Jacintos got back their companies. The Marcos cronies got back into the halls of power. Heck even the Marcoses are back in the government. It is only the poor who have been denied what is due them. Few, if any, have been compensated for the transgressions in the Marcos years – a pittance compared to what the Lopezes got back.

It seemed for a while that the poor got back their voice. They voted for Cory, but the rich and powerful declared Marcos the winner. The poor found their strength, regained their freedom, and gained the leader who inspired them. Alas, it was short-lived. The poor later voted for Erap, but the very people who ululate “people power” and “the will of the majority” conspired against the leader who garnered more votes than Cory.

Do the poor still want Erap to lead? That I cannot say. But based on his record, and on what I can read from the record of the other candidates, I chose to support Erap. The economic stats prove that si Erap ay para sa mahirap.

How to get the data:

Stats 1

1. http://www.worldbank.org/
2. click Data and Research
3. Left panel (Data), below that it says Key Statistics, default is data by country,
4. click Go
5. On the left panel, click "Key Statistics"
6. Scroll down and click "Quick Query"
7. On the next window, scroll down to Philippines and click "Select". Lower right, click "Next"
8. On the next window, click "Select All", Lower right, click next.
9. On the next window, click "2008", scroll down to the year you want (I chose 1986 as starting point), on your keyboard, hold down the shift key and click "1986". Click "Select", Lower right, click "Next"

Now you have your data. You can export this to Excel, so you will not need to access the World Bank website everytime.

You export by clicking on the top right, to the right of the word "Export", the

dropdown menu with the word select, and click "Data"

That will fire up the export applet.

Stats 2

1. http://www.worldbank.org/
2. click Data and Research
3. Left panel (Data), below that it says Key Statistics, default is data by country,
4. click Go
5. On the left panel, click "Key Statistics"
6. On the next window, click "Millennium Development Goals"
7. On the next window, click the dropdown menu, scroll down, and click "Philippines"
8. You get the stats for the millennium goals. You can also export to Excel like above.

Dacer, DNA and Brady Violations

An extradition hearing is held to enable the court to decide whether the defendant is subject to surrender to the requesting government. The District Court’s function in an extradition hearing is not to act as a rubber stamp to an extradition request but to ensure that our (American) judicial standard of probable cause is met by the Requesting Nation (US v. Valentin Linson 88 F.Supp.2d 1123). The evidence must demonstrate probable cause to believe that the accused committed the crime charged. Merino v. U.S. Marshall, 326 F.2d 5, 12 (9th Cir.1963).

“The range of evidence that a defendant may introduce as to probable cause at an extradition hearing is limited. The general rule is that evidence that explains away or completely obliterates probable cause is admissible, while evidence that merely controverts the existence of probable cause is not” (Krenar Hoxha v. Troy Levi, 3rd Cir. No. 05-3149, Oct. 3, 2006).

Evidence to support probable cause is concededly of lower quantity and quality compared to evidence to support a conviction. It is for this reason that DNA evidence, if available, is material, for DNA evidence trumps all evidence in the determination of guilt or innocence.

In the case of US v. Sczubelek [402 F.3d 175, 178 (3d Cir. 2005)], the Third Circuit Court of Appeals stated that DNA is more reliable as a means of identification than fingerprints or even photographs. The Philippine Supreme Court is of the same view, holding that:

DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. [People v. Joel Yatar (G.R. No. 150224, May 19, 2004)].

That DNA trumps all evidence, is proven by the cases reopened by the Innocence Project (www.innocenceproject.org). The Project has successfully overturned guilty verdicts in 235 cases, with the presentation of post-conviction DNA. The DNA evidence proved either that the accused was not at the scene of the crime, or that the DNA found at the scene of the crime matched the DNA of another individual.

The two cases cited below, illustrate how post-conviction DNA trumped all other evidence presented in court.

Case of Steven Barnes

In the case of Steven Barnes, the evidence for the prosecution consisted of:

1. Microscopic analysis of hair found on Barnes’ truck, which was said to match the victim’s, and did not match the hair of Barnes;
2. Soil samples from Barnes’ truck taken one year after the crime, was said to have “similar characteristics” with soil from the crime scene;
3. There was testimony of a jailhouse informant, who said that Barnes confessed the crime to the informant (shades of Mancao and Aquino’s alleged statements in Las Vegas).
   

The victim in Barnes’ case was raped and murdered. The DNA of sperm found on the body of the victim did not match Barnes’ DNA.

Case of Ryan Matthews

In the case of Ryan Matthews, a man wearing a ski mask entered the victim’s store and demanded money. When the victim refused, the perpetrator shot him four times and fled, taking off his mask and diving into the passenger side window of an awaiting car. Two eyewitnesses identified Matthews as the man who shot the victim. One was in her car, and saw the perpetrator run from the store, and identified Matthews from a photographic array. The other saw the perpetrator from his rearview mirror while he (witness) was being shot at, and trying to block the escape of the getaway car.

Five years after conviction, DNA testing on the mask matched with another individual, not Matthews. Matthews became the 14th death row convict who was exonerated by post-conviction DNA, lending truth to the observation of Justice Brennan that: “The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification” [US v. Wade 388 U.S. 218 (1967)].

Brady Violations

The Philippine DOJ in the Mancao extradition presented to its US counterparts, the report of Dr. Raquel Fortun which stated that:

“Fragments of charred bones and other objects were obtained. “..the following conclusions were arrived at:

1. The remains recovered from the scene are of human origin.
2. At least two adult individuals are present.
3. These two individuals are positively identified as MR. SALVADOR “BUBBY” DACER and MR. EMMANUEL CORBITO.”

The Philippine DOJ (PDOJ) conveniently omitted presenting evidence which stated that the bones tested negative for human DNA.

The PDOJ also failed to apprise the US DOJ of the decision of the Supreme Court in the case of Allado, which held that:

“A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust.”

"To allege then that the body of Van Twest was completely burned to ashes in an open field with the use merely of tires and gasoline is a tale too tall to gulp” (People v. Allado G.R. No. 113630 May 5, 1994).

In Allado, the Philippine Supreme Court ruled that there was absence of probable cause, and issued a writ of prohibition on the trial court.

Brady (v. Maryland) and its progeny make it the duty of the prosecution to disclose exculpatory material to the defense. The suppression of DNA evidence, or the withholding of jurisprudence favorable to the defense, singly, constitutes a Brady violation; said violation renders the prosecutor susceptible to disciplinary action for prosecutorial misconduct [US v. Byron Mitchell 145 F.3d 572 (3rd Cir. 1998)].

There is no Brady violation here, because the US DOJ gave the defense all the material it had in its possession [In the Matter of the Extradition of Michael John Drayer 190 F.3d 410 (6th Cir. 1999)]. The Philippine DOJ is off the hook on a technicality, because it did not plead before the US Courts. But there is, at least, in this case, diplomatic discourtesy; for the Philippine DOJ has exposed the US DOJ to the embarrassing situation of being confronted with evidence and jurisprudence suppressed by its side (US and Philippine DOJ). The Philippine lawyers are also susceptible to disciplinary action for violating the provisions of the Code of Professional Ethics of the Philippines, which provides as follows:

Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice.

The Court was misled by the submission of Dr. Fortun’s report which positively identified the remains as those of Dacer and Corbito. That identification was proven incorrect by the DNA report, stating that the bones tested negative for human DNA.

The Code of Professional Responsibility also provides that:

Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

This was violated by the failure of the PDOJ to apprise the US DOJ and the defense, of the Philippine Supreme Court’s decision in the case of Allado.

Philippine DOJ’s lack of candor in previous cases.

The PDOJ has been less than candid, if not, in fact, misleading in two previous extradition requests.

US v. Valentin Linson

In the case of US v. Valentin Linson (88 F.Supp.2d 1123) the PDOJ did not present to the US DOJ the recantation affidavits of the witnesses who implicated Linson in the alleged crime. Those affidavits were sworn to before the very same prosecutor trying the case. The Court was moved to observe the lame excuses of the PDOJ as follows:

At the December 21, 1999 hearing the Philippines did not proffer any evidence to the Court challenging the authenticity of the recantations. Instead, the Philippines offered explanations showing why they could not proffer the recantation evidence. First, their state prosecutor who witnessed the recantations had no telephone and could not be reached. Second, the Senior prosecutor, Mr. Barrios stated that the recantations were never forwarded to him. US v. Valentin Linson 88 F.Supp.2d 1123, District Court of Guam.

The Court also diplomatically pointed to the fact that the PDOJ fabricated evidence, by forging a witness’ signature:

Third, the Philippine Government presented an affidavit in which Roberto Calingasan implicated Linson stating “I saw him (Valentin Linson) shoot Bien, the policeman once.” However, defendant has supplied the Court with an affidavit signed by Calingasan in which he denies he signed such statement for the NBI. In the affidavit presented by the defendant Calingasan states that “I did not give NBI a statement … what was written in the statement was not true” and “I did not sign a statement at NBI.” This second statement is signed in a cursive style signature whereas the first one provided by the Philippines only had Calingasan’s name printed in block letters on the signature space.

In the Matter of the Extradition of Roger Laurence Strunk (293 F. SUPP 2D 1117)

In the case of Roger Laurence Strunk (husband of Nida Blanca), the PDOJ made selective presentations of evidence. It presented evidence from Elena De La Paz, the housemate of the accused (husband) and the victim (wife), and personal assistant of the victim, to prove motive on the part of the accused (page 12). But the PDOJ did not submit Elena’s testimony, that the accused was in the house, the entire evening that the murder occurred in a neighboring city (page 14).

The PDOJ anchored its finding of probable cause on the confession of Medel, who stated that he was hired by Strunk to commit the crime. Medel confessed, then later recanted his confession in open court, alleging it had been obtained through coercion and torture (page 6).

Commenting on the credibility of Medel, the Court observed:

First, as is evident throughout most of the declarations in this case, the first statement is never good enough. There always seems to be a need to embellish what was initially said in order to make the case better (shades of the Mancao affidavits - Aquino talking of Viña's bungling the job, later, Aquino talking of "Tirahin si Bero"). This fact is not necessarily detrimental, but importantly, the embellishments contain significant inconsistencies (page 7).

The penchant to embellish the submitted evidence was further underscored by the observation that:

The court will not consider the belated evidence submitted by the Philippines filed November 3, 2003. This extradition proceeding is not some movable feast----never to be finished as long as the parties drip evidence into the undersigned, when they feel moved to do so, or after the undersigned makes a comment on the submitted evidence at hearing or in writing.

The Court further observed that Medel was paid for his confession. “Payment to a defendant to confess his and others participation in a murder will cast doubt on the validity of the statement” (page 8).

The inconsistencies moved the Court to state:

“…. the evidence submitted by the Philippines concerning Strunk's participation in the murder of Blanca is so inconsistent and conflicting that it provides little competent evidence to support the conclusion that Strunk hired Medel to murder Blanca. “… the competent, admissible evidence submitted by Strunk obliterates the case presented by the Philippines resting on the Medel confession.”

The Court concluded by stating that:

US Attorney Ken Melikian “did his customary, professional presentation of evidence, and his customary, informative legal briefing. However, as the decision makes clear, the evidence given to Mr. Melikian was not competent. Good as he is, Mr. Melikian could not perform legal alchemy.”

It may be, that Dacer is dead, and justice must be done for him. But one does not achieve justice for the victim by doing an injustice to people who are presumed innocent; that works an injustice to the system – a typical result in the Philippine system.

It is true, that Philippine jurisprudence states that flight may indicate guilt. But flight, as exemplified by Linson and Strunk may have been motivated by fear – fear that the system is not fair, and would be used as a tool for persecution.