Clobberin’ time versus Cayetano

The public mood: Gov’t poor vs inflation, graft but good in foreign relations.

… lot of people talking at cross-purposes, about all sorts of things.

Take the Palace camp: Favila: There’s no contract with China yet but on the other hand, Mendoza: I have full authority on $329M broadband contract. What’s going on? Who knows? Not 1 but 5 contracts lost in China but apparently, that’s not an obstacle to anything. Incidentally, one of the related deals, the DepEd’s CyberEducation project, is explained by Willy Prilles (who finds it disturbing), and its pros and cons delved into in another entry in his blog, A Nagueno in the Blogosphere.

You would think that this is a situation screaming for an investigation by the Blue Ribbon committee. And it is, although Senator Allan Peter Cayetano seems unusually cautious this early on: Cayetano: No public trust in blue ribbon committee. He seems to be saying, this is an altogether different league. and it is.

Still, there’s still time for the usual cat-and-mouse: Iggy: Who’s afraid of Alan Peter at Blue Ribbon? and Iggy dares Peter: Make my day (Ignacito knows he can insist on interparliamentary courtesy, your honor!), while Cayetano has higher priorities now than Garci, Pidal probes.

Meanwhile, Senate minority bloc livid (and for effect, Gordon did a little grousing, too: Gordon: Villar takes cue from Arroyo, Estrada). No wonder 28 bills pushed by Palace at LEDAC meeting. The Inquirer editorial today takes a look at the goings-on in the Senate, and argues that the administration’s scored a major victory in terms of committee chairmanships. Along the way, it quotes a passage from Woodrow Wilson. I’ve long been a great believer in Wilson’s arguments and it bears further quotation here, since I strenuously oppose the argument that the chief function of Congress is to pass laws. As Wilson explained it,

An effective representative body, gifted with the power to rule, ought, it would seem not only to speak the will of the nation, which Congress does, but also to lead it to its conclusions, to utter the voice of its opinions, and to serve as its eyes in superintending all matters of government, – which Congress does not do. the discussions which take place in Congress are aimed at random. They now and again strike rather sharply the tender spots in this, that, or the other measure; but, as I have said, no two measures consciously join in purpose or agree in character, and so debate must wander as widely as the subjects of debate. Since there is little coherency about the legislation agreed upon, there can be little coherency about the debates. There is no one policy to be attacked or defended, but only a score or two of separate bills. To attend to such discussions is uninteresting; to be instructed by them is impossible. There is some scandal and discomfort, but infinite advantage, in having every affair of administration subjected to the test of constant examination on the part of the assembly which represents the nation. The chief use of such inquisition is, not the direction of those affairs in a way with which the country will be satisfied (though that itself is of course all-important), but the enlightenment of the people, which is always its sure consequence. Very few men are unequal to a danger which they see and understand; all men quail before a threatening which is dark and unintelligible, and suspect what is done behind the screen. If the people could have, through Congress, daily knowledge of all the more important transactions of the governmental offices, an insight into all that now so often shaken, would, I think, be very soon established. Because dishonesty can lurk under the privacies now vouchsafed our administrative agents, much that is upright and pure suffers unjust suspicion. Discoveries of guilt in a bureau cloud with doubts the trustworthiness of a department. As nothing is open enough for the quick and easy detection of peculation or fraud, so nothing is open enough for the due vindication and acknowledgment of honesty. The isolation and privacy which shield the one from discovery cheat the other of reward.

While the Palace defends P12-pay hike, its statement involves pretty much the rhetorical defense in response to the predictable condemnation of such moves by the usual suspects. The Business Mirror editorial, however, asks if this “annual exercise in class struggle” really does anyone any good:

One of the larger considerations here is the comparative wage rates in Asia. At the current wage levels, minimum pay in Metro Manila is close to $8 a day, against Thailand’s $6.35, Beijing’s $3.43, Indonesia’s $3.25 and Vietnam’s $1.27.

What these figures suggest is that an unwarranted increase in local wages would simply turn off investors some more. This consideration is important because, in reality, at the root of this incapacity of many firms to pay higher wages is the small size of the Philippine economy itself.

Despite the significant growth rates we have achieved in the last few years, the Philippine economy and its capacity to create jobs has been generally weak. More so because the new creators of jobs, specifically outsourcing, are in the services sector that needs highly skilled graduates who are normally paid rates higher than the minimum-wage rates.

It’s obvious that minimum-wage workers are probably concentrated in the industry sector, which, by some indications, are fast shedding jobs already – owing to a lot of factors, including poor infrastructure, a strong peso, strong competition from China and Vietnam, and rapid technological change.

To survive, many companies have relocated to China while others are restructuring their cost structures to stay afloat. You put a drastic wage increase in their equations and it’s likely that they are just going to fold up or simply adopt more labor-saving devices.

This is not to deny the need for decent wages in the Philippines. In fact, we need them here. But the reality is that the performance of companies and industry sectors are uneven.

Certainly, firms in electronics, mining, outsourcing, banking, and wholesale and retail are probably doing good. But other firms, especially small and medium enterprises in the manufacture and export of furniture and fixtures, as well as food, are probably ailing owing to the strong peso and other factors.

It means that while other firms could absorb the wage rates, others are not likely to do so, and go under. The ideal policy approach, therefore, is an arrangement that would consider these different business conditions.

William Pesek of Bloomberg reports on a meeting of Apec finance ministers:

Yet, if this year’s finance ministers’ meeting highlighted anything, it’s that as much as Asia-Pacific nations say they’re cooperating, they’re standing very much alone.

It illuminated how the US still blames Asia for saving too much and holding down currencies. Asians blame the US for saving too little and relying too much on Asia’s money. Japan criticizes China for an undervalued currency, while South Korea is stepping up criticism of Japan for the same reason. China is perturbed that it’s being criticized at all.

He then goes on to set the scene: finance ministers are nervous, and a Filipino official explains why:

Apec’s gathering unfolded amid increasing volatility in global markets. One heard more consternation over who’s to blame for imbalances than how to fix things. And Henry Paulson’s decision to blow off the event was a bigger problem than the US Treasury secretary may realize.

“A lot of this market volatility is about subprime-mortgage-market contagion from the US,” Diwa Guinigundo, deputy governor of the Philippine central bank, told me in Coolum.

Pesek thinks American officials are in a state of denial, and that problems in the US economy are in the process of spreading to Asia:

Australia is on the front lines of how problems in the US are spreading to Asia. On August 2, shares in Macquarie Bank Ltd. fell the most in five years after Australia’s largest securities firm said investors in some of its funds may lose as much as 25 percent of their money. Taiwan Life Insurance Co. stock had its worst week in over three years amid hedge-fund losses.

It’s one thing for Bear Stearns Co.’s hedge funds to get slammed by the subprime mess; it’s another for casualties to begin piling up a world away. The Morgan Stanley Capital International Asia-Pacific Index plunged 3.9 percent in the five days ended July 27, the worst weekly drop since July 2006.

“The correction is coming about because of weakness in the US,” said Australian Treasurer Peter Costello. “It illustrates how interconnected the world is.”

It’s a breathtaking role reversal. Just as Asia downplayed the odds of its 1997 contagion oozing around the globe, the US claims its problems are containable. While that’s possible, the concerns of investors like Jeremy Grantham, chairman of Grantham, Mayo, Van Otterloo & Co., and Jim Rogers, chairman of Beeland Interests Inc., are worth noting.

My show last night focused on an article by Filomeno Sta. Ana III, which bears looking into in light of the above (see also my Arab News column for this week, Can the 1997 Crisis Happen Again?).

In Mindanao, Basilan contingent encounters fire fight. Of course, Philippine Commentary calls the ongoing offensive a sham. Also, the incredible Bedol gets an incredible slap on the wrist: Solons outraged over Bedol verdict: Say fraud is the issue not contempt.

PCIJ reports Spate of attacks alarms local Indian community. Nice backgrounder in their blog on the history if Indian immigration to the Philippines.

An interesting article, “Political Parties in the 2007 Elections”, by Joel Rocamora, is reproduced in Mga Diskurso ni Doy.

In kidglove’s life belt, the blogger takes a snapshot of a homeless man who uses a flag for a blanket; and then offers up a meditation on the meaning -and meaningless- of the law.

The entry of Quixotic Kibbitzer led me to consult Atty. Edwin Lacierda on the points he raised. This was his reply:

Sounds logical but it does not work that way. Sometimes during trial and even before final judgment, the constitutional presumption of innocence can be overturned such as unexplained flight. When an accused takes flight, the constitutional presumption to innocence is overturned by the presumption of guilt. As we say in procedural law, flight denotes a presumption of guilt. Thus, it is possible that the constitutional presumption of innocence can be lost subject to the existence of some circumstances.

But he is being ingenious, there is a great distinction between Jalosjos and Trillanes and it is the fact that Jalosjos’ presumption of innocence has been overturned by conviction even if it was still pending appeal. The fact that Jalosjos has been convicted with proof beyond reasonable doubt overturns the constitutional presumption of innocence. Evidence of guilt beyond reasonable doubt always overcomes the constitutional presumption of innocence.

The constitutional presumption of innocence really means that accusation is not synonymous with guilt. But if one is convicted, then it showed that the presumption has been overturned and it is now the turn of the accused to prove that the judgment of conviction is wrong. Moreover, to be very technical about it, an appeal is a statutory right, not a constitutional right.

If you read the Jalosjos decision, the background scenario is that he has already been convicted and is sitting in prison. The equal protection of the laws says that all persons similarly situated should be similarly treated. Jalosjos and Trillanes are not in the same situation. Trillanes has not been convicted so far. His detention is due to the fact that the crime he committed is non-bailable, not because he has been convicted. Thus, he continues to enjoy the presumption of innocence. That is the big difference. By all accounts, your analysis is clear and correct.

And if the guy wants to be consistent, then by all accounts, his presumption of innocence must allow Trillanes to sit as a senator and attend to the senate sessions.

Read the decision, what makes Jalosjos so different from Trillanes is that apart from the conviction, he ran away from his duties in Congress and hid from his fellow congressmen when a warrant of arrest was issued him. Afterwards, he invoked Congress when it was a convenient ploy to secure temporary liberty. That never happened with Sonny Trillanes.

There you go. Manuel Buencamino’s right on the button.

Finally, from Flip Brown Guy, those guards and their magic sticks.

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    • DJB on August 8, 2007 at 4:07 pm

    Good to see Ed Lacierda confirm the theory propounded that the difference between Jalosjos and Trillanes has to do with the presumption of innocence.

    I am beguiled by his claim however that if for example Senator Trillanes is next found guilty by Pimentel, that now the burden of proof shifts to the accused to prove his innocence because he has lost the presumption of it. Is it true that all such accused convicted at the level of RTC are PRESUMED GUILTY on appeal?

    May we ask Atty. Lacierda what he considers the “quantum of evidence” for proving innocence? Is it innocence beyond a reasonable doubt? A preponderance of the evidence?

    Whatever that quantum of evidence is, it must be something greater than “evidence beyond a reasonable doubt” that he claims has already overthrown the presumption of innocence.

    My reading of Fernando is that it is the Court’s duty to ascertain the existence of evidence beyond a reasonable doubt at each stage of the case. Even on appeal, the accused is not required to submit any evidence (he is explicit about that) and may remain totally silent while the appellate courts go over what the prosecution and lower courts have or have not proved.

    But I want to be proven wrong if I am:

    The presumption of innocence of an accused in a non-bailable crime is not overthrown until all appeals are exhausted and the verdict of guilt beyond a reasonable doubt is deemed final and executory by the only Court with Constitutional existence, the Supreme Court. All lower court findings are “advisory” and may be overturned, resulting in immediate acquittal.

    Without this “vertical jury system” composed of judges and courts, we would be living under a vast tyranny of unelected judges at the lowest levels of a corruptible judicial system, any one of whom, according to Ed, could strip us of the most precious rights we have: the presumption of innocence, the right to remain silent and the rights of physical freedom.

    To me it is inconceivable that our system gives such power to unelected RTC or MTC judges: to take away my presumption of innocence?

    It can’t be right!

    Ed?

    • manuelbuencamino on August 8, 2007 at 4:37 pm

    DJB,

    RTC tries the defendant. If he has been found guilty beyond reasonable doubt then he appeals and tells the appeals courts that the RTC verdict was flawed.

    That means your boy Daniel Smith will stay in jail unless one appeals court overturns his conviction.

    • lacierda on August 8, 2007 at 5:06 pm

    DJB,

    The constitution says a person enjoys the presumption of innocence until proven guilty. This means that accusation of a crime is not synonymous with guilt. That is the bedrock explanation of the consitutional presumption of innocence. In other words, the mere filing of a case of rebellion against Trillanes does not mean that he is already guilty of such crime. One cannot be condemned before one’s case is heard.

    But that presumption is rebuttable and can be overtuned. For instance, when the case proceeds and he escapes from detention, then his presumption of innocence can be overturned by the fact of flight which is indicative guilt.

    And when his case proceeds and he is found guilty beyond reasonable doubt and convicted, then the presumption is overcome. He has to sit in prison and cannot be given preferential treatment, as in the case of Jalosjos. Why? Because the constitution and procedural laws say so. Oh and by the way, with all this talk about presumption of innocence, it might interest you to know that Jalosjos never invoked his constitutional presumption of innocence in his petition before the Supreme Court. I certainly doubt that his lawyers were incompetent.

    The argument of a constitutional presumption of innocence, I think, is important and it applies with force to Sonny Trillanes but I believe that the greater constitutional principle that should be applied here is the equal protection of the laws. All persons similarly situated should be similarly treated.

    One can clearly see the difference between Jalosjos and Trillanes. Trillanes has not been convicted, Jalosjos was. Jalosjos was a fugitive from justice and was a flight risk, Trillanes is not and does not intend to be so, Jalosjos’s case ended with a conviction and the necessary consequence of being convicted of a non-bailable crime is imprisonment, Trillanes’ case is still in the original court of jurisdiction with no judgment as yet.

    Given the contrast, can one really conclude as did Judge Pimentel that the two are similarly in facts and therefore, Trillanes’ petition should be denied?

    I think a deeper analysis of the Jalosjos decision would not have moved the Judge to deny Sonny’s prayer to attend Senate hearings. What was done by the judge was to disregard the contextual setting of the Jalosjos decision and applied the portion of the decision justifying his ruling. That is the only charitable position I can think of why the judge issued such a ruling.

    Lastly, it is true that judges can take away your presumption and it can do so because they accord each and every one of us our right to due process. In the final anaylysis, once due process is observed and the quantum of evidene necessary to support a conviction ruling is met, the Supreme Court has no choice but to agree to the decisions of these unelected judges who hold sway over our lives. And there are plenty of decisions that have been affirmed by the Supreme Court because precisely, the constitutional presumption of innocence was overturned by guilt beyond reasonable doubt.

    • hvrds on August 8, 2007 at 5:26 pm

    Till today classical Keynesians and disciples of Milton Freidman argue on what caused the depression. Freidman insists on the failure of the Federal Reserve to maintain money supply levels. Keynes offered a deeper cause. You can’t trust markets as sometimes they overreach. Simply waiting for them to correct and reach equilibrium by itself when the transition to urban based employment becomes dominant would create social instability as there would be vast armies of unemployed created in urban areas.

    Deflation and depression can only be cured with inflating the economy. Thus the idea of the government becoming the prime creator of jobs when business conditions create a lot of overcapacity brought forth the Keynesian policy of pump priming the economy to instill confidence in both business and then eventually consumption to spring back up.

    This theory presupposes that the society is already entered and have been in the stage of industrial capitalism where large numbers of the labor force are already involved in industrial production of capital goods. You have a well developed proletariat class.

    This era in history brought forth radical changes in the way fiscal and monetary systems developed along nationalist lines.

    The story of Hitler and his rise was due in no small measure to the destruction of the German Reichsmark through hyperinflation in the early 20’s.

    The exchange rate then was as follows:
    April 1919: 12 marks
    November 1921: 263 marks
    January 1923: 17,000 marks
    August 1923: 4.621 million marks
    October 1923: 25.26 billion marks
    December 1923: 4.2 trillion marks.

    In 1923 was when our dear friend Hitler attempted his coup in Munich. When Germany defaulted on its war time debt France occupied Alsace Lorraine (the heart of the coal and steel region of Germany. That effectively weakened the German state and the U.S. government came in with the Dawes Plan.
    Dawes later won a Noble peace prize.

    Effectively U.S. capital brought Germany out of its economic crisis and rebuilt the economy for Hitler as he came in later. He became chancellor later in 1933 and the depression was already ongoing.

    He repudiated all debt payments The U.S. (Young Plan called for debt forgiveness in 1929 anyway) and turned German industry into a war machine. The shame of defeat and the hardships imposed on the German people presented Hitler with an important facet for his fiery brand of radical German nationalism. He made it a jihad on behalf of the blonde blue eyed Aryans. His Gestapo and his SS Totenkopf (Death’s head) divisions would have made all present day jihadists proud. They were the best and most dedicated and loyal fighters to the Fuehrer. In battle they distinguished themselves.

    When normal states fail crazies usually come up. Usama Bin Laden led a fierce bunch of jihadists in Afghanistan vs. the Russians. Look all around the world and when economic crisis cause states to fail crazies come into the picture.

    The U.S. is no exception. The U.S. is facing the “mother of all fiscal crisis” in the next 20+ years. In terms of government planning that is a short period. When the world went off the gold standard in 1972 and fiat currency came in use worldwide, an experiment that some say has caused untold sufferings worldwide, that day of reckoning for the U.S. will come. Taken together the total accumulated tax entitlement obligations of the U.S. government to its retirees is in the vicinity of $60 to $70 trillion. Keynesian economics gone absolutely nuts.

    “Consider the outlook. From 2005 to 2030, the 65-and-over population will nearly double, to 71 million; its share of the population will rise to 20 percent from 12 percent. Social Security, Medicare and Medicaid — programs that serve older people — already exceed 40 percent of the $2.7 trillion federal budget. By 2030, their share could hit 75 percent of the present budget, projects the Congressional Budget Office.” Robert J. Samuelson

    http://www.washingtonpost.com/wp-dyn/content/article/2007/07/31/AR2007073101625.html

    The Empire is at risk and it will do what it takes to maintain itself.

    • Jeg on August 8, 2007 at 6:07 pm

    “The correction is coming about because of weakness in the US,” said Australian Treasurer Peter Costello. “It illustrates how interconnected the world is.”

    And how would we, the Philippines, be affected by this?

    Two officials at leading Communist Party bodies have given interviews in recent days warning – for the first time – that Beijing may use its $1.33 trillion (£658bn) of foreign reserves as a political weapon to counter pressure from the US Congress.

    Shifts in Chinese policy are often announced through key think tanks and academies.

    Described as China’s “nuclear option” in the state media, such action could trigger a dollar crash at a time when the US currency is already breaking down through historic support levels.

    Link: http://www.telegraph.co.uk/money/main.jhtml?xml=/money/2007/08/07/bcnchina107a.xml

    • Karl Garcia on August 8, 2007 at 7:34 pm

    Sad to say, if the USA does catch a cold we all sneeze.
    Now with the manufacturinhg scare,the outsourcing issue becoming a hot issue in the US congress,yari ang mga call centers pagnagkataon….pero malabo macontol ng congress ang corporate America…

    Like the Philippines basket ball team who concentrated on beating China too much…Alas! we did beat a China,but in reality even it we beat the A team of China,many teams have caught up with them already.

    The US must stop being afraid of China and allow it to go with the flow and at the same time for China to allow its currency to apprecaite a little bit,to make it a win-win situation.

    The US must not also be afraid of the Arabs through the point of exaggeration,imagine not allowing Dubai ports to run a number of ports taken over from P and O ports of London…

    And yet who saved citibank from bakruptcy ,a trillionaniare from dubai (forgot his friggin name,though)

    That’s all,folks!

    • Shaman of Malilipot on August 8, 2007 at 9:42 pm

    I think the burden of the accused appealing a lower court conviction is to successfully inject doubt in the minds of the CA or SC justices, so that his guilt becomes less than “beyond reasonable doubt”. His burden is not to prove his innocence beyond reasonable doubt.

    How does he do it? I’m not a lawyer, but I guess, he does it by convincing the CA or SC that the trial judge erred in appreciating the evidence and/or in applying the law.

    • justice league on August 8, 2007 at 9:45 pm

    Some might find this interesting.

    People vs. Mejia

    “Enshrined in the Bill of Rights is the right of the accused to be presumed innocent until the contrary is proved. To overcome the presumption, nothing but proof beyond reasonable doubt must be established by the prosecution. Save in certain circumstances as where, for instance, the accused admits the commission of the acts alleged to constitute a crime but interposes justifying circumstances, the burden is never shifted to the accused or diminished by the weakness of his defense. Indeed, unless the prosecution successfully discharges that burden, the accused need not even offer evidence in his behalf.

    In our jurisdiction accusation is not synonymous with guilt. The freedom of the accused is forfeit only if the requisite quantum of proof necessary for conviction be in existence. This, of course, requires the most careful scrutiny of the evidence for the State, both oral and documentary, independent of whatever defense is offered by the accused. Every circumstance favoring the accused’s innocence must be duly taken into account. The proof against the accused must survive the test of reason. Strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged. If the prosecution fails to discharge the burden, then it is not only the accused’s right to be freed; it is, even more, the court’s constitutional duty to acquit him.

    After a painstaking review of the records and the transcripts of the stenographic notes of the testimonies of the witnesses in the cases before the LARON court and the CASTILLO court, we are not convinced with moral certainty that the appellants committed the crimes charged. Reasonable doubt burdens our conscience; our minds cannot rest easy on a verdict of conviction.”

    • baycas on August 8, 2007 at 9:54 pm

    Jalosjos, while convicted by the trial court, was still presumed to be innocent because his conviction was on appeal. At that point, he remains an accused and not a convict by final judgment. You don’t grade the presumption of innocence by the stage of the proceeding. Until such conviction is by final judgment, i.e., there is no more appeal or the right to appeal has been lost by inaction, the right of the accused to be presumed innocent remains.
    – Jaxius

    As I understand it, presumption of innocence ceases upon conviction (and consequent sentencing) by a lower court.

    Even on appeal, the conviction is already working in place and the accused is already doing his time while waiting for the result of the appeal. The length of time he has already done (while awaiting final judgment from the appellate courts) will be subtracted from the total length of time he is sentenced to do if ever the conviction is upheld. Certainly, during that waiting time he no longer enjoys the presumption of innocence simply because the conviction already operates and he is already doing his time.

    An accused already convicted but is released on bail (if ever the offense is bailable) pending appeal, I believe, is common occurrence. Just the same, the accused is no longer presumed innocent because the conviction stays and the execution of sentence is only stayed. If perhaps the appeal of the accused is successful, the conviction (that is already in force) is reversed (as in, totally expunged) and the sentence altogether disregarded.

    • Shaman of Malilipot on August 8, 2007 at 10:17 pm

    “An accused already convicted but is released on bail (if ever the offense is bailable) pending appeal, I believe, is common occurrence. Just the same, the accused is no longer presumed innocent because the conviction stays and the execution of sentence is only stayed.”

    Baycas, I’m not sure about this. What I understand is that an accused on bail gets his temporary freedom only for the duration of the trial. Once he gets convicted, he is clamped into prison, even if his conviction is on appeal, precisely because the presumption of his innocence has been overturned.

    If an arrested person is detained pending his posting of bail, how much more a convicted person?

    • Shaman of Malilipot on August 8, 2007 at 10:51 pm

    By the way, is Trillanes entitled to his salary and emoluments as a senator, including pork, despite his inability to discharge his duties? Is it no-work-no-pay?

    Remember, he has been sworn into office.

    • justice league on August 8, 2007 at 11:04 pm

    Trillanes should be wary.

    The Lower House ejected Jalosjos eventually from Congress because he could not attend.

    • cvj on August 8, 2007 at 11:53 pm

    How is it that even respected lawyers (Jaxius and Lacierda) have different interpretations of whether the presumption of innocence is overturned by conviction by the lower court? I would have thought such principle would have been firmed up by now, one way or the other.

    In the previous thread, i’ve also read Bencard’s explanation that presumption of innocence and burden of proof are different things (as i initially thought they were). So my question (to any lawyer who would be willing to answer is), does the loss of presumption of innocence upon conviction by the lower courts mean that the burden of proof shifts during appeal?

    DJB, glad to see you’re coming around to the realization that our system is ‘corruptible’. Does that make you appreciate more why many of us are not so enthusiastic about the HSA?

    • baycas on August 9, 2007 at 1:19 am

    Shaman,

    Bail may be granted before or after conviction subject to the conditions enumerated in Rule 114 of The Revised Rules of Criminal Procedure (December 1, 2000). Chan Robles Virtual Law Library has full text of Rules 110 to 127.

    • DuckVader on August 9, 2007 at 1:22 am

    Manolo,

    Flight, even if proven, does not overturn the presumption of innocence. Presumption of innocence is only overturned if a court finds a person guilty of the crime with evidence that proves him guilty beyond a reasonable doubt. To quote somebody, “this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created.” The mere introduction and proof of flight, while evidence, is itself, alone, insufficient to overturn the presumption. The court must make a finding that the evidence is sufficient to prove guilt. Until then, and only until then, the presumption of innocence applies.

  1. hvrds, great post. i’ve always liked your posts and the way you present them, following each one with gusto. of course, it is inevitable, that somewhere in history, the US would cease to be a superpower (economics/military) and a new one arise. it’s just the logical order of things.

    • baycas on August 9, 2007 at 2:07 am

    During trial: Without reasonable doubt, the prosecution rebuts the presumption of innocence.

    On appeal: Creating reasonable doubt, the accused rebuts the presumption of guilt.

    • manuelbuencamino on August 9, 2007 at 2:16 am

    Duck,

    “As we say in procedural law, flight denotes a presumption of guilt.” Atty. Edwin Lacierda

    • justice league on August 9, 2007 at 2:52 am

    Cvj,

    I can’t quite understand your question but just in case you are asking if the burden of proof shifts as in the person must now prove his/her “innocence” to the charge on his appeal; I would guess no.

    Please consider that in such cases; the SC just reviews the records and trancripts etc. etc.

    If the SC determines that based on those; the accused should not have been convicted, then the person is set free.

    Since in the lower courts the burden of proof “mostly” lie on the prosecution (except on certain cases like “self defense” etc.); I would say that it doesn’t shift.

    • cvj on August 9, 2007 at 3:37 am

    Justice League, thanks for clearing that up! That exactly was my question which was nagging me ever since DJB brought this up during the Daniel Smith-related threads a few months back. So if i understand correctly, that means that while presumption of innocence may be overtuned, the burden of proof (as a rule in most cases) stays with the prosecution even during appeal.

    • frombelow on August 9, 2007 at 3:47 am

    legal wisemen
    if i were found guilty by a lower court, MTC or RTC, but eventually exonerated by the appeals court, what is my official record then? a convicted person or an exonerated one? i presume i can’t be both. not only because it is legally confusing but also it might require a revision of English dictionary.

    • DuckVader on August 9, 2007 at 3:58 am

    Manuel,

    I have to disagree. It is evidence, but it doesn’t create a presumption of guilt; in fact, there is no circumstance as far as I know (other lawyers can correct me on this) on presumption of guilt in our legal system. The constitution says the accused shall be presumed innocent until the contrary is proved. nd the Rules of Court say that every accused is presumed innocent until the contrary is proved beyond reasonable doubt. There’s a longer discussion on whether a guilty verdict in the lower court changes any presumptions or burdens of proof, but that’s another topic. Suffice to say, my argument is that flight, if established, does not create any presumptions of guilt. It is evidence of guilt.

    • Bencard on August 9, 2007 at 4:30 am

    duckvader, i think you’re right. it is evidence of guilt that does not affect the presumption of innocence. it could,
    however affect your bailability, being a “flight risk”.

    • jaxius on August 9, 2007 at 4:33 am

    atty. lacierda,

    allow me to respectfully digress.

    The constitutional right to be presumed innocent of the crime charged would seem a hollow one if merely stated like a worn-out mantra. Thus, the law and the rules provided in concrete terms how this constitutional right is protected. This right is observed through the following:

    1. All persons in custody shall have the right to bail except when the crime charged is punishable by reclusion perpetua and the guilt is strong

    2. That the prosecution shall bear the burden of proof

    3. That no penalty shall be executed except upon final judgment

    As one goes up the appeals ladder, it can be observed that an accused begins to lose the abovementioned rights in the order stated. Does this mean he loses his presumption of innocence? I submit that he does not, not until the last right is lost, i.e., that the judgment has become final.

    Let me argue my case.

    First, on the matter of bail. The right to bail springs from the constitutional right of an accused whom should not be inflicted incarceration at the outset since the after the trial he would be entitled to be acquitted if his guilt is not proven beyond reasonable doubt.

    However, conviction of a crime in the trial court level does not forfeit one’s right to bail. Even after conviction, an accused has the right to apply for bail under the following circumstances:

    1) as a matter of right, conviction of a crime within the jurisdiction of an MTC or MCTC
    2) as a matter of discretion by the judge, after conviction by the RTC

    If conviction by the trial court overturns the presumption of innocence, perforce the accused should lose the right to temporary liberty, bail being only given as an observance to the constitutional right to be presumed innocent. Can’t it now be argued that a person convicted of a crime is still presumed innocent because of the possibility that the conviction can be overturned on appeal?

    It begs the question, what is the nature of detention of a person convicted of the crime but has appealed his conviction?

    Clearly, he is not serving sentence because Section 78 of the Revised Penal Code clearly states that no penalty shall be executed except upon final judgment.

    A judgment of conviction becomes final (a) when no appeal is seasonably filed, (b) when the accused commences to serve the sentence, (c) when the right to appeal is expressly waived in writing, except where the death penalty was imposed by the trial court, and (d) when the accused applies for probation, thereby waiving his right to appeal.

    A man languishing in jail because he was convicted of a crime but who seasonably appealed his case stands in the same situation as an accused in jail pending trial. Both are considered detention prisoners, not convicts.

    If we are to parse the language used by the SC in the Jalosjos case, it uses the word “confinement” to describe Jalosjos’ incarceration. He is not considered a convict yet, he is a detention prisoner. Just like Trillanes. He is in jail pending appeal not mainly because of the conviction of the trial court but because the State needs to protect the public and itself by preventing the commission of another crime and to ensure the administration of justice by preventing his escape.

    On the question whether the accused still enjoys the presumption of innocence on appeal, I submit he still does. One reason is already stated, even after conviction, he is still entitled to bail, as stated in Sections 4 and 5 of Rule 114 of the Rules of Court.

    As i have stated in a previous comment, the RTC or the CA in their appellate jurisdiction are not bound by the findings of fact or law of the lower court. On appeal to the RTC of a case adjudged in the MTC, the RTC shall decide on the basis of the entire record of the proceedings in the lower court, to include briefs/memoranda the RTC may require the parties to submit. Simply put, the RTC is not bound by the findings of the MTC.

    On appeal to the CA of a case decided by the RTC, the CA is empowered to receive evidence, conduct hearings and any/all acts to resove factual issues, including the power to grant or conduct new trials. This is so because the CA is both a trier of facts and a trier of law. If the CA decides to conduct a new trial, would the so-called presumption of guilt stick? I think not. The burden of proof would remain with the prosecution.

    It is of course different when the case is reviewed by the Supreme Court, the high court not being a trier of facts and is bound by the findings of fact of the lower courts, subject of course to some exceptions. There is no more burden to speak of, the controversy generally being limited to questions of law.

    Lastly, the fact of flight ALONE cannot stand to overturn one’s right to be presumed innocent. To be precise, flight is an indicia or evidence of guilt, not strictly a presumption of guilt. To be more technical about it, flight as an indication of guilt is a presumption of fact as opposed to the presumption of innocence which is a presumption of law. A presumption of law is an inference that must always be made when the circumstances are present. On the other hand, a presumption of fact is discretionary upon the court taking into consideration the circumstances of a particular case.

    • Karl Garcia on August 9, 2007 at 4:35 am

    A basta sa police clearance ma blotter ka lang me derrogatory record ka na, sa NBI me kapangalan ka lang na criminal me record ka din.

    Presumed innocent?sa TV pa lang makita mo na gulpi na either by police o taong bayan mapag bintangan pa lang na nandukot,nagholdap,nanghipo….

    That is reality.

    And to Jaxius,the lawyers of Sonny are not incompetent,and nakakahiya as you claim them to be.

    You can sue me for libel..go ahead!

    .

  2. presumption of innocence then would be a myth. everyone’s got a preconceived notion if an accused is guilty or not. it can’t be help. people are built to be judgmental. even the most open-minded people will entertain “first impressions.”

    as MLQ3 wrote, perception is king.

    and Manolo, I still am not through back-reading. it might interest you to know that your links to your PDI columns in 2004 lead to INQ.NET’s archive sections which only contain articles up to 2006 (i think) i hope INQ.NET can increase its server size and publish online the entirety of its archives since the paper’s inception. (like what I see in american movies, where their papers are archived online, not just the texts, but the actual pages shown as slides, and you can search for articles going as far back as centuries ago) but i’ll take the INQ.NET now as compared to its other counterparts that are very lacking when compared to INQ.NET

    i really am against dead links and it is one of my pet peeves. perhaps you should consider editing them sometime soon or if you have a webmaster (which i highly believe you have), put him to work!

    • baycas on August 9, 2007 at 6:48 am

    if i were found guilty by a lower court, MTC or RTC, but eventually exonerated by the appeals court, what is my official record then? a convicted person or an exonerated one? i presume i can’t be both. not only because it is legally confusing but also it might require a revision of English dictionary.

    An exonerated one…an acquitted – a free man. Ruling of the court of first instance is REVERSED (as in, totally wiped out) and sentence is SET ASIDE (as in, erased from memory)…it’s as if nothing happened.

    You’re official record then is one sad start but with a happy denouement.

    That is where injustice emanates…from an erroneous conviction.

    • salve on August 9, 2007 at 8:00 am

    hi mlq3, here’s another twist on “perception is king”.

    i find it revealing how Filipinos gave the government failing marks in fighting inflation when inflation is hardly the problem in the economy nowadays. its so benign at 2.6% and it has been that way for months. when the inflation figure came out last month, i asked two trainees to do a man-on-the-street interview on Ayala and results confirmed that there’s a disconnect between perception of prices and actual price increases as reported by the government.

    again, perception is king. whatever magic the government is doing to bring inflation down (or perhaps its just a happy coincidence hehe) is not really causing ooohs and ahhs among the Mang Pandoys.

    • mlq3 on August 9, 2007 at 8:44 am
      Author

    devilsadvc8:

    abe olandres handles technical and only technical stuff, which means as far as content is concerned, i’m on my own. re: dead links, according to inquirer.net people, the link should work if you substitute “inquirer.net” wherever link says “inq7.net.”

    • devilsadv8 on August 9, 2007 at 8:58 am

    Devilsadvoc8

    Before, besides methe only another guy does back reading(at least to my knowledge; and that is the much maligned sleepingwithwho)

    I doubt that you are the same person because he would have discovered that before inquirer.net came,it used to be inq7.net

    and to ask our dear host and mr. Olandres to do them for you,is asking for to much.

    And speaking of identities,just asking..

    Bencard are you an incarnation of Joey who suddenly knows how to spell better than I do?

    I would ask some more other handles,but its your privacy dudes..

    Take care,guys.

    Karl

    • Karl garcia on August 9, 2007 at 9:01 am

    Bakit nga ba devils ang nalgay ko sa pangalan

    buti na lang me pangalan sa ilalim

    nagiging idol ko na siguro si devils

    • mlq3 on August 9, 2007 at 9:03 am
      Author

    karl,

    btw good to have you back here.

    • Karl Garcia on August 9, 2007 at 9:05 am

    At least kahit na seryoso ako paminsan minsan, I can still find time to give you comic relief,kahit corny.

    • Karl Garcia on August 9, 2007 at 9:07 am

    Mlq

    The honor and pleasure are mine.

    Karl

    • vic on August 9, 2007 at 9:18 am

    Got few questions here, is the practice of presentation of the accused before the media before he or she even has the day in court had been challenged if constitutional? Is it not a violation of one’s right to be presumed innocent? and also disclosing evidence of the the case to the media and to the public before the trial?

    • Shaman of Malilipot on August 9, 2007 at 9:37 am

    salve,

    The official inflation rate does not mean anything to the man on the street. Juat as GNP and GDP figures are immaterial to him. What matters to him is that the market price of a kilo of galung-gung has increased from P50 to P80 and the price of rice has increased from P21 to P 26 per kilo. Those are not perceptions. Those are day-to-day gut issues for the ordinary man.

    • Shaman of Malilipot on August 9, 2007 at 9:59 am

    Justice League,

    I simply can’t shake off the feeling that an accused person convicted by the trial court has the burden, well okay, the task of convincing the CA or the SC that his conviction is not beyond reasonable doubt. After all, the initiative on appeal is his. He has to argue his case in his appeal pleadings. He may not introduce additional evidence, but he has to strive mightily to convince the CA or SC that his conviction is not beyond reasonable doubt. The prosecution does not have to do anything since it has proven its case at the lower court.

    Isn’t there, somehow, a shift of a burden, or an onus?

    • lacierda on August 9, 2007 at 10:45 am

    jaxius,

    No, a person is not necessarily entitled to bail after conviction. You must know that even prior to conviction, bail is not a matter of right in some crimes as provided in Criminal Procedure.

    Similarly, Criminal Procedure dictates that bail is not a matter of right is certain crimes after conviction, as in the case of Jalosjos.

    Trillanes and Jalosjos are not similarly situated. There is no judgment of conviction yet on Trillanes and if one reads the Jalosjos decision and the contextual circumstances, one would clearly see the distinction. They are both in detention but one springs from conviction, another springs the nature of the crime. And taking a cue from your argument, Jalosjos was all the more denied liberty because he was precisely a flight risk.

    The presumption of innocence was overturned in the Jalosjos decision and that is the reason he appeals before the higher court to have his conviction reversed. The constitution does not say you are presumed to be innocent until proven guilty by a final and executory judgment. The constitution merely says that you are innocent until proven guilty. The judgment of conviction in the lower court suffices that initial constitutional requirement. Again, at the risk of sounding redundant, Jalosjos never invoked his constitutional presumption of innocence when he filed his petition before the Supreme Court.

    Laslly, unexplained flight can overturn a presumption of law. That is the very reason why trial in absentias are allowed subject to the compliance of certain conditions.

    • frombelow on August 9, 2007 at 10:53 am

    “An exonerated one…an acquitted – a free man. Ruling of the court of first instance is REVERSED (as in, totally wiped out) and sentence is SET ASIDE (as in, erased from memory)…it’s as if nothing happened.

    You’re official record then is one sad start but with a happy denouement.

    That is where injustice emanates…from an erroneous conviction.”– baycas
    ———————————————————
    so a man convicted once can still redeem his name through an act by an appeals court. Isn’t that presumption of innocence? So how can we refuse bail to a man who yet to be convicted and be so lenient to a man convicted, but later reversed, by a superior court. My point is that people could have pinning down Trillanes for other purposes. Just thinking.

    • tagakotta on August 9, 2007 at 11:33 am

    MIRIAM ON SENATE REORG(2006)

    “The Senate is now dominated by a mutant majority. The core group of 13 who elected Villar as senate president is composed of both administration and opposition senators. Thus, the new Senate majority is an aberration at birth. If it were a car, it would be a hybrid. If it were a horse, it would be a piebald. Wonders never cease in politics. What we are seeing is the art of the political deal.”
    miriam defensor santiago website

    • Karl Garcia on August 9, 2007 at 1:20 pm

    Dami nang laman ng thread..di pa yat nadidiscuss ang blog entry ttle re:cayetano.

    it might be partly my fault because I said yesterday that everything remains to be seen,and it looked like I dug my own grave,when I attempted to look for my old comments.na lumabas tuloy na sa tingin ni Rego and Bencard..I have told you so!

    Pero wag kang mag alala Rego,mas marami pang paraan para maging productive ang blue ribbon committeee besides the cases that we would have wanted to be resolved ASAP….We won’t have to wait for another three years.

    • justice league on August 9, 2007 at 3:18 pm

    Cvj, Shaman,

    I think the problem is semantics.

    I think one of the ways to clarify the issue is to present an SC decision.

    The following is People vs. Calica

    Calica was found guilty of the crime of murder.

    On appeal to the SC; the SC stated that

    “On appeal before this Court, the appellant ascribes the following errors to the court a quo:

    I

    THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

    II

    THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE DEFENSE INTERPOSED BY THE ACCUSED-APPELLANT.[54]

    The appellant insists that the prosecution utterly failed to prove his guilt beyond reasonable doubt of the crime charged. Not one of the witnesses presented by the prosecution personally witnessed the abduction and killing of the victim Igmedio Pispis. The appellant asserts that there was no evidence that he was present during the meeting called by CHDF Commander Pedro Lopez. Defense witnesses Elias Palog and Agustin Alonzo did not testify that the appellant was among those who attended the meeting of December 22, 1986 and abducted and killed Igmedio. Considering that the trial court based its findings on their testimony which were exculpatory of the appellant, it clearly erred when it convicted him.

    The appellant, likewise, asserts that there is doubt as to the veracity of the identification made by Dominga Pispis and Dolores Gonzales; one claimed that she was able to identify the appellant because his blindfold was lost, while the other claimed that he had a loosened bonnet. The appellant points out that a bonnet and a blindfold are two different things. It would have been reckless of him to have worn a loose bonnet, thus exposing his face, since he was known to Dominga, Igmedio and their daughter. Furthermore, the prosecution failed to prove any motive on his part to kill the victim, especially considering that the victim was his own cousin. As a consequence, the APPELLANT ASSERTS that he was convicted on the basis of mere circumstantial evidence, which has not been adequately established much less corroborated. Hence, it cannot by itself be the basis of conviction. Finally, according to the appellant, he did not even have to establish the defense of alibi since the prosecution was unable to overcome the constitutional presumption of innocence in his favor.

    For his part, the Solicitor General asserts that the trial court correctly found that the evidence adduced in the instant case established the culpability of the appellant for the crime of murder beyond reasonable doubt. The inconsistencies pointed out by the appellant are minor matters which do not impair the integrity of the prosecution’s evidence, or the credibility of the witnesses who positively identified the appellant as the perpetrator of the crime. ”

    (In the appellant’s brief, the convicted appellant [actually the lawyer] puts forth the issue that the lower trial court erred in its decision and cites the instances on why it erred in its decision.
    The burden of “showing” that the court erred lies on the appellant)

    Continuing with the SC decision:

    “The Ruling of the Court

    The THRESHOLD ISSUE in this appeal is whether or not the prosecution was able to prove, through the collective testimonies of Dominga Pispis and her daughter, that the appellant was one of those who abducted Igmedio from his house at 1:00 a.m. on December 23, 1986, and killed him shortly thereafter.

    In criminal prosecution, accusation is not synonymous with guilt. It is incumbent on the prosecution to prove the guilt of the accused beyond reasonable doubt. By reasonable doubt is meant that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. There is a need, therefore, for the most careful scrutiny of the evidence of the prosecution, both oral and documentary, independently of whatever defense the accused may offer. The prosecution must rely on the strength of its own evidence and not on the evidence of the accused. The weakness of the defense of the accused does not relieve the prosecution of its responsibility of proving the guilt of the accused beyond reasonable doubt. In every case, the overriding consideration is not whether the court doubts the innocence of the accused, but whether it entertains reasonable doubt as to his guilt. Where the pieces of evidence against the accused are insufficient or doubtful to determine the guilt of the accused with moral certainty, he should be acquitted. Speculations, surmises and probabilities cannot take the place of proof beyond reasonable doubt.

    The prosecution is burdened to prove beyond reasonable doubt that (a) the crime charged was committed, and (b) the identity of the perpetrators of the said crime. In People v. Esmale, we held that the first duty of the prosecution is not to present the crime but to prove the identity of the criminal. To warrant the conviction of the accused, the identification of the accused as one of the assailants must be positive, categorical and consistent, made by a credible witness or witnesses. The identification of the accused as the perpetrator or one of the perpetrators of the crime charged is concededly not an easy task.”

    “We find the identification of the appellant as one of the abductors and killers of the victim dubious and unconvincing. Consequently, we acquit the appellant of the crime charged.”

    (The SC then puts out the transcipts of the case in the lower court and later states)

    “The People may argue that, based on the evidence of the prosecution, a strong probability of the appellant’s guilt was established, a strong suspicion that the appellant was one of those who abducted and killed the victim, or, at the very least that there is a strong doubt as to the appellant’s innocence. But such quantum of evidence is NOT SUFFICIENT on which to anchor a judgment of conviction. Before the appellant can be convicted, the hypothesis of his guilt must flow materially from the facts posed and must be consistent with all of them.

    As we acquit the appellant BECAUSE OF THE PROSECUTION’S FAILURE TO PROVE his criminal culpability for the crime charged, we quote our ruling in People v. Eslaban:

    Admittedly, if a life is taken, justice demands that the wrong be redressed, but this same justice that calls for retribution cannot be the same, one that would convict the accused-appellant at bar whose guilt has not been proven beyond reasonable doubt. The burden of proof rests upon the prosecution and unless the State succeeds in proving his guilt, the presumption of innocence in favor of the accused-appellant applies. The conscience must be satisfied that on the accused-appellant could be laid the responsibility of the offense charged.

    IN LIGHT OF ALL THE FOREGOING, the appeal of the appellant is GRANTED. The decision of the trial court is SET ASIDE AND REVERSED. The appellant is ACQUITTED of the crime charged. The Director of the Bureau of Corrections is ORDERED to immediately release the appellant from detention unless detained for another cause or charge, and to submit his compliance with this decision of the Court within five (5) days from notice hereof.”

    ————-

    I think the issue is the burden of the accused/appellant to “show” that the trial court erred in its decision when he/she appeals.

    But I just don’t think its called “burden of proof”.

    • Shaman of Malilipot on August 9, 2007 at 4:08 pm

    Justice league,

    If I understand you correctly, what you are saying is that, even on appeal, the CA or SC will primarily delve on what the prosecution did or failed to do to justify the verdict of guilty beyond reasonable doubt, regardless of whether the defense was strong or weak. So, the burden is still on the prosecution.

    • Shaman of Malilipot on August 9, 2007 at 4:47 pm

    And now, to the lawyers:

    Can’t the mere possibility that the trial judge could have erred in his judgment preserve the constitutional presumption of innocence while the case is on appeal?

    Sabi ni Trial Judge: “Guilty”

    Sabi ni SC Justice: “Sandali lang, tingnan ko muna.”

    After a period of time (hopefully not in years), sabi ni SC Justice: “Oo nga, guilty.”

    That’s the only time when we can categorically say: “No doubt about it, guilty talaga.”

    • rego on August 9, 2007 at 5:49 pm

    “Pero wag kang mag alala Rego,mas marami pang paraan para maging productive ang blue ribbon committeee besides the cases that we would have wanted to be resolved ASAP….We won’t have to wait for another three years.”

    Oo naman Karl, marami talganag paraan para maging productive ang blue ribbon. And I belive Villar did the right thing in putting Allan Cayetano in the committe. What I dont understand is the softening of the agressiveness in the part of Allan Cayetano now that he became a chairman and has all the power to go after the Arroyo corruption.

    Two that is coming to my mind:

    1. That is one of the condition imposed by Villar for his appointment. That is to go slow on the Arroyo.

    2. Grand Standing is just his real nature.

    Anyways, what ever he does with the blue ribbon its really up to him.

    • cvj on August 9, 2007 at 5:59 pm

    Shaman, i think that is a very important question (and i’m also interested in the lawyers’ answers) especially in the case where the convicted person dies before the appeals process is completed. In the United States, i read that the winners of the law suit (i don’t know if it’s civil or criminal or whether that matters) against Kenneth Lay (of Enron) will not get anything because he died before his appeal was completed and therefore he cannot be said to have been proven guilty.

    On the other hand, i suppose that ‘guilty talaga’ can still be reversed even after a Supreme Court ruling as in the example of the introduction of new DNA evidence that proves that a person convicted of rape (before DNA matching technology was available) could not have committed the crime. So i think we could reason that there is nothing mystical in a Supreme Court decision that finalizes presumption. Rather presumption (of innocence or guilt) should be attached to a particular judgment rendered at a particular time. Presumed Innocent or Guilty as of time mm-dd-yyy as judged by the insert name of court here.

    • justice league on August 9, 2007 at 6:57 pm

    Shaman,

    Yes, I think the “burden of proof” will still be on the prosecution.

    But pardon me as its hard to just say yes to your other issues.

    We have to consider that its not only the accused that can appeal.

    I would rather say it is to find merit on the appeal and what the appellant wants. But I understand what you are saying as it would be basically what most accused appellants want though we also have to consider the example above where the appellants brief points to “THE TRIAL COURT GRAVELY ERRED ….”

    I will be signing off for the weekend and no doubt will be coming back to a very interesting issue.

  3. “abe olandres handles technical and only technical stuff, which means as far as content is concerned, i’m on my own. re: dead links, according to inquirer.net people, the link should work if you substitute “inquirer.net” wherever link says ‘inq7.net.'” – mlq3, then in that case, all my sympathies go with you, as i have a fairly good idea of how taxing it is maintaining a clean website. and with the Explainer and all your other commitments, it’s a wonder you can still visit your blog! anyway, i’d like to commend you on all the good work you’ve done so far. i’ve been an avid reader ever since your transfer to PDI, and it is just unfortunate that our cable company here in our place does not carry ANC, or I would also watch your show regularly. im really learning a lot, esp now that i started back-reading your older posts.

    KG, i’ve been reading inq ever since it first went online. (PDI is the only broadsheet my family ever read) and i am familiar with the shift from inq7 to inq.net. and you’re right in saying im asking for too much. i discovered a while ago that with a little more inititaive and digging of my own, i was able to find MLQ3’s 2004 columns online thru INQ.NET’s archive sections (Manolo’s links led to the articles index which only indexed articles as far back as 2006) some of the dead links can also be searched individually w/o relying on the links itself

    • jaxius on August 9, 2007 at 8:18 pm

    atty lacierda,

    The Rules of Court says otherwise. Section 4 of Rule 114 states:

    SEC. 4. Bail, a matter of right; exception.—All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment.

    Clearly, a person convicted of a crime punishable under the jurisdiction of the MTC -when the judgment is not yet final and executory, i.e., he seasonably filed an appeal or some other remedy that prevents the judgment from becoming final and executory like a motion for reconsideration or a motion for a new trial – is entitled to bail as a matter of right.

    It begs the question, what is the rationale of giving him bail as a matter of right? What sets him apart from a person convicted with a penalty exceeding six years who has no such right and whose application for bail is discretionary upon the court? Basically, they are on the same boat as they are both convicted at the level of the trial court.

    One explanation, which would be consistent with your position that once convicted there is a presumption of guilt, is that bail is granted as a matter of right to one convicted by the MTC because of the relative lightness of the penalty imposed.

    An alternative explanation is that it is precisely because of the presumption of innocence even after conviction by the trial court. But why deny the right to bail as a matter of right to a person convicted by the RTC? Because under a balance of interest test, the state has the right to protect itself, prevent the escape of the accused, and taking into consideration the nature of the crime, the detention of the accused is justified. His right to bail is merely subjected to the sound discretion of the court.

    However, the nature of bail is that it is awarded to honor the right of the accused to be presumed innocent until his guilt is proven beyond reasonable doubt. This conflicts with the idea that bail after conviction is given due to the light penalty imposed by the MTC.

    While I agree with you that the Constitution merely states that the accused has the right to be presumed innocent until the contrary is proved, you take it to mean that a conviction in the trial court suffices to overturn said presumption and the conviction does not even have to be final and executory. Using your tact of taking a very strict interpretation of the constitutional provision, the provision in question does not also say that the right to be presumed innocent is overturned by a conviction in the trial court. It merely says “until the contrary is proved”. However, it is incontrovertible that the law withholds the execution of the penalty until the judgment of conviction becomes final and executory. Until then, he remains a detention prisoner and not a convict.

    As to Jalosjos and Trillanes, they are in the same situation because they are both asking for a special privilege, to be temporarily allowed liberty so that they can attend to their duties. As the SC said, any claim of privilege must find its basis on a provision of law, not merely inferred from the duties of the office. Nothing in our Constitution and statutes can we find a provision that gives a senator or a congressman the privilege of being exempted from the established rules for the disposition of criminal cases, save that of privilege from arrest for criminal cases when Congress is in session but only for offenses punishable by not more than six years imprisonment.

    Take note that Trillanes was not requesting that he be granted bail. It would have been different because the right to bail is granted by law and the rules. What the judge would do then is to determine whether the evidence is strong or not.

    As to the issue of Jalosjos not invoking his right to be presumed innocent, suffice it to say that such right has no bearing to the privilege he is asking and his battery of lawyers knew it. If the State has the right to hold in detention a person accused of a capital offense when the evidence of guilt is strong, how much more an accused already convicted of a capital offense though pending appeal?

    My point, on the other hand, about flight is that, all on its own, it cannot overturn the presumption of innocence. Absent any other evidence that proves the accused committed the crime, the fact of flight alone will not suffice to convict the accused. In a trial by absentia, if flight is considered a presumption of guilt, why still conduct a trial to prove that he committed the crime? If it is enough to overturn the presumption of innocence, then judgment should follow. Some sort of judgment by default. But that is not how our criminal justice system works.

    • baycas on August 9, 2007 at 10:29 pm

    Can’t the mere possibility that the trial judge could have erred in his judgment preserve the constitutional presumption of innocence while the case is on appeal?
    – Shaman

    Unelected as they are, but trial judges enjoy the presumption of regularity in administering their duty, i.e., with erudition, professionalism and utmost integrity and impartiality. This presumption holds unless and until the SC reverses his decision. In other words, the decision to convict (or acquit) the accused stays until ERROR in judgment is determined by the appellate courts.

    So, a carry-over of the presumption of innocence of the accused during appeal will not happen.

    Besides, the presumption of innocence of the accused already ceases to operate once a guilty verdict is handed down. This means that the prosecution was successful in unburdening themselves of the proof beyond reasonable doubt that the accused was guilty of the offense.

    (BY REASON OF THE PRESUMPTION OF INNOCENCE, burden of proof is taxed heavily on the prosecution and not only that…the benefit of the doubt is on the accused because guilt cannot be presumed unless and until guilt is proven beyond reasonable doubt.)

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