Friday, May 29, 2009
THE DRUG ECSTACY played a big part in his relationship with KATRINA HALILI if we are to believe some of the testimony of DR. HAYDEN KHO before a committee of the Senate today. He claims never to have used any drugs at all (not cocaine, or marijuana or shabu) until August 2007 when he was introduced to Ecstacy allegedly by Katrina or her associates. To hear him tell it, they sometimes met at hotels like the Holiday Inn "for SEX and DRUGS, SEX and DRUGS". Throughout his narration, she steadfastly denied ever having taken any drugs with him. Indeed, Ms. Halili insisted they would be going to the PDEA for drug tests, but Dr. Kho pointed out that traces of Ecstacy are only detectable by the PDEA's facilities if the tests are done within 2-4 days after ingestion, and challenged her to drug tests involving hair samples (which are however only good for ninety days or so after ingestion). What I found suspicious was the sudden discovery by Ms. Halili that her case and her cause was a defense of women's exploitation and oppression by men like Dr. Kho, as she so declared, half in tears and half in anger, and not about their alleged use of Ecstacy for sex. In researching the DRUG ECSTACY on the web, I found this article most comprehensive and enlightening: UTOPIAN PHARMACOLOGYMental Health in the Third Millennium MDMA and Beyond
from which we get this passage which may explain a bit of what Hayden and Katrina were doing for months at the Holiday Inn and various other trysting places:
Thursday, May 28, 2009
I heartily applaud SENATOR KIKO PANGILINAN'S early declaration for the Vice Presidency, which is off to a running start with the help of wife and megastar, SHARON CUNETA and her legions of adoring Sharonians. (Ronnie Puno can just run for Barangay Tanod). Of course, Kiko has a long way to go in order to regain the confidence of many in Civil Society who cannot forget his role in the 2004 election canvass as "Mr. Noted" (some of them are sure to show up here making snide remarks). But Sen. Pangilinan's campaign to wield the Damocles Sword of the Vice Presidency is tied to a serious voter registration campaign for youthful and first time voters. This recalls a page from out of the history of the US Civil Rights Movement of the 50s and 60s that can only yield fruitful political results. It also happens to be a more statesmanlike strategy than just trotting out the megastar missus. And listen to the above speech given by Kiko at Rock the Vote 2010. This is not your usual mild mannered Kiko "Clark Kent" Pangilinan. Here are glimmerings of Martin Luther Kiko. And check out his campaign on Facebook.
Tuesday, May 26, 2009
The 1987 Constitution provides that,
Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members;
But how many Members of the Congress are there and how many would constitutes "three fourths of all its Members?" The answer to this question used to be uncontroversial at 195 or so, but a recent SCoRP Decision (Banat v. Comelec) seems to have JUDICIALLY LEGISLATED an increase in the membership of the House to 275 (220 District and 55 Party List representatives). Given that there are 23 incumbent Senators, the total membership of the Congress is 298. Rounded up, three fourths of 298 is 224.I don't think there's ever even been that many Members of the Lower House together in one place, anywhere, any time.
Monday, May 25, 2009
Although there is much reason to celebrate the success of the pushback on the book tax there seems to me some grand unfinished business that suggests itself right in the Preamble of the Florence Agreement:
The contracting States,
Considering that the free exchange of ideas and knowledge and, in general, the widest possible dissemination of the diverse forms of self-expression used by civilizations are vitally important both for intellectual progress and international understanding, and consequently for the maintenance of world peace;
Considering that this interchange is accomplished primarily by means of books, publications and educational, scientific and cultural materials;
The presumptive consideration in the second paragraph in the Preamble of the Florence Agreement above is clearly no longer as true today in the 21st Century world as it was 1950 when it was signed by the member states of the United Nations.
If in 1950, the nations of the world recognized the importance of books as "vitally important" to human progress and world peace, today in 2009, that vital importance still applies to books, but also to much more than just books.
It is to my mind no small irony that the vast majority of those who put their shoulders to the millstones of Facebook and Twitter and blogged the Great Book Blockade of 2009 to its destruction, are not themselves on the wrong side of what has come to be called the Great Global Digital Divide.
What I think is needed is a modernization of the Florence Agreement that will promote policies and actions, including taxation and investments by governments, that will bridge the Great Global Digital Divide. The material in Appendix C (Visual and auditory materials of an educational, scientific or cultural character) of the Florence Agreement seems like a good place to start.
It's easy to forget that the Internet had not yet even been invented when the Florence Agreement was signed in 1950. And that despite their well-known benefits, books, newspapers, magazines and other materials printed on paper constitute half the municipal solid waste streams of most big cities and are a big contributor to the problem of global warming. The production and use of paper and printing at present levels is ecologically and economically unsustainabl, and ought not be supported or encouraged by taxation policies once suitable alternatives are in place.
Getting to those alternatives is more than a matter of having a well-read public. It is a matter of survival for the nation in the present Age of Information.
The Great Book Blockade of 2009 has been lifted by order of no less than President Gloria Macapagal Arroyo. Powerbooks outlets and National Bookstores in the gate-guarded barrios and barangays of Alabang, Makati, and other upscale enclaves are rejoicing and ought to give out free copies of Twilight. The substantial history of this matter is best recorded and appreciated in this continuously updated Timeline by Manuel L. Quezon III.
KUDOS to a President they have bitterly opposed will be hard for the victors to give without noblesse oblige, after a cast of Internet tens of thousands from Iowa to Jolo apparently moved the President to strike down the book-taxing barbarians within her own administration. It could be the beginnings of a "kinder, gentler GMA" a lover of books, a cutter of taxes!
I confess that I also worship at the altar to the God of Knowledge, but I don't mind saying I've had some second thoughts and caveats about this matter. I almost never buy books anymore because of their high cost compared to other sources of information. I only buy books I am in love with, or have a strong infatuation for the author of. Or am required under pain of expulsion to do so by a book club I belong to. Still, there are far better ways than printed paper books in the 21sth Century to get new knowledge and "mind candy".
Still I agreed substantially with the legal interpretations of the Florence Agreement and the various "pro-intellectual" arguments that have been advanced. But the full merits and demerits of Philippine policies on taxation and duty vis a vis printed paper books, magazines and other materials ought now to be further examined for impacts on ecology, economy, and technology.
Some interesting questions abound. Can the provisioning of the public schools with imported textbooks be a viable solution to that well-blogged conundrum? (The nationalists won't like that consequence, once they recognize its reality.)
Why are computers, software and other such products not exempt under the Florence agreement? Are they not educational materials too? Moreover, remember that half the municipal solid waste stream of cities like Manila is paper from newspapers, books, magazines, etc...which comes from killing trees and releasing their carbon spirits into the air. The carbon footprint of printed paper books, especially being exported from abroad ought to be quantified and the effect of taxes and duties figured in.
The question stands for a future resolution and improvement: how ought the policies on taxation and duty be fashioned to best assist the general educational upliftment of the Filipinos? Why is it that the principal beneficiary seems to be the international publishers of pulp novels like the Twilight, the original goad for this brouhaha?
Friday, May 22, 2009
The Commission on Elections has announced that some 80,000 Counting Machines to be used in the 2010 national elections must be capable of 99.995% reading accuracy--which means that for any batch of 20,000 optical marks the Counting Machine attempts to interpret, it is not expected to make more than one error.
The Precinct Count Optical Scan (PCOS) machine to be used in the balloting will be tested this week, according to Comelec spokesperson James Jimenez.
The accuracy requirement of 99.995 percent means a threshold of “one error out of 20,000 markings,” Jimenez said. If it falsely reads two or more ballot markings, the machine will be rejected, he said.
Jimenez said the accuracy rate was based on the number of ballots that would be fed into the voting and counting machine. Each PCOS equipment is expected to process about 1,000 ballots with 35,000 markings, he said.
This Margin of Error depends mainly on the Sample Size, or in this case the number of test marks. Intuitively, the Margin of Error goes down as the number of test marks goes up. It is the exact same animal as the plus or minus 2.8 percent (or 3%) margin of error in the standard 1200-respondent SWS survey, where also, the margin of error intuitively goes down as the number of respondents goes up. Both come from the formula that gives the Margin of error to be plus or minus the reciprocal of the square root of the number of survey respondents or test marks.
The correct sample size depends on the precision desired and how strictly we want to run the test. Careful calculation should now be done by Comelec as to what that correct number of test marks is. I can tell you it is far many more that 20,000! [More in a subsequent post!]
An excellent standard statistical reference on accuracy and precision in statistical quality control testing, sample size and margin of error is: Intermediate Statistics for Dummies which explains things mostly in plain English.
Question: What is the required number of test marks to measure the reading accuracy rating of a given machine with a Margin of Error of, say, 0.0025 percent (half the last digit of precision in the spec of 99.995 percent)?
Thursday, May 21, 2009
To believe that the “ethics” case mounted against Senator Manuel Villar is actually about ethics would mark one as refreshingly innocent. It would mean that one harbors the idealistic notion that those calling themselves “honorable” would be driven by ethically pure motives rather than by purely (impurely?) political calculations. Those not so innocent, however, would take note that the case in the Senate is being rammed through by convenient pro-administration allies of those dreaming about the presidency in 2010.
Although Mr. Villar has refused to play his assigned kontrabida role in the televised zarzuela that senators so love to stage, he has made to media a detailed presentation refuting the “double insertion” and “realignment” charges filed against him. Now whether one is convinced by his refutations or not, it should be clear that the statements of certain senators known to be ardently aspiring to be the administration-anointed successor of President Arroyo that the hearing on this case “will be objective and not based on political biases” would be, at the very least, patently suspect. Those, like me, who long ago crossed the divide between innocence and cynicism, would label the statements incredible. As it is, I am difficult to convince that those loudly proclaiming an “ethical” stance are not secretly guilty of unethical things.
A senator belonging to the 17-member pro-administration goulash in the Senate, Miriam Santiago, was unguarded enough to reveal the not-so-secret intentions of that bloc. Reporter Michael Ubac of the Inquirer quoted her the other day as saying, “The signs towards expulsion are manifest. The normal procedure of the ethics committee is to allow complaints against senators to languish. As a rule, senators are averse to judging their own colleagues.” Well, it is understandable that they are averse. A prudent rule to follow is that those who live in glass houses should not engage in stone throwing.
Why then is this case against Mr. Villar different? What is it about Mr. Villar that compels the Senate majority to take such unusual (for them) action against him?
Those who have been stripped of their blissful innocence – generally from observing politicos over a lifetime – have no trouble answering that question. It’s simple really: fear of the loss of power and wealth. The fear is that political and business plans that supposedly extend up to 2022 will be derailed or disrupted. To address that fear, there is a compelling need for the present ruling group to acquire some leverage over Mr. Villar or, failing that, to make absolutely sure that Mr. Villar does not succeed to the presidency in 2010.
Let me (a cynic who occasionally longs for a lost innocence) explain. Mr. Villar is popular enough and rich enough and organized enough to run a possibly winning presidential campaign on his own. That he does not require funding or organizational support or even command votes from the ruling politicos and their wealthy business cronies makes him the one candidate the pro-administration honchos find dangerous because they cannot currently exert control over him. The ongoing attack against him is intended to make the ruling group acquire that control, which it could conceivably do if it could successfully trade abandonment of the (contrived?) ethics charges in exchange for important concessions or if it could sufficiently damage his popularity that the votes that can be produced by their dagdag-bawas machinery becomes a useful bargaining chip. It goes without saying of course that, if they fail to obtain the control over him that they seek, they will pull out all the stops to make sure that there is no way he can win in 2010.
It is obvious to those suffering from a sad lack of innocence that pro-administration strategists would have no such problems with any of the other prospective candidates. All the other candidates lack something – whether funds or organizational machinery or popularity – that makes them vulnerable to specific enticements from those who can provide solutions to these glaring lacks. This makes them nowhere near as feared by the ruling group as Mr. Villar presently is. Scuttlebutt in fact has it that the top Malacañang strategists are privately dismissive of even currently popular presidential aspirants who posture as oppositionists because Malacañang has in its hands the levers that can make these ambitious politicos bend completely to its wishes.
We should bear in mind that installing a president who will be under the control of the present ruling group is an object of pro-administration strategy. Of course, it is still only a fallback object, meaning it has a lower priority in the administration scheme of things than changing the nation’s charter to effect a shift to the parliamentary system (to allow Mrs. Arroyo to remain head of government as Prime Minister) or manufacturing an extension of the terms of incumbent officials (possibly through a failure-of-elections scenario and the declaration of martial law). But, if these higher priority goals cannot for one reason or another be achieved, the fallback goal becomes the most important object of desire.
When the “double insertion” and “realignment” allegations were first raised over eight months ago, it was clearly in the nature of a threat. At that time, Mr. Villar was said to be under consideration by pro-administration honchos as the Malacañang candidate and it was therefore necessary to fabricate something to hold over him and make him sufficiently tractable. Apparently, the threat was not deemed serious enough or substantial enough for Mr. Villar to come to proper heel. Accordingly, Malacañang strategists have ratcheted up the threat to the current move to actually expel Mr. Villar from the Senate. As the rabidly pro-administration Mrs. Santiago points out, expulsion from the Senate can be accomplished with the vote of 16 senators – two-thirds of the membership – and the majority bloc already wields 17 votes.
From a strategic perspective, getting expelled from the Senate may be the best thing that can happen to Mr. Villar. It will certainly make it clear – to both innocent and non-innocent observers – which one, out of a number of cloying pretenders, is the true opposition candidate. It will make it clear who is – and who isn’t – truly independent of the present ruling group. It will make it clear who in truth really represents at least the possibility of change.
[This article is published by the Rizalist Press with permission from its author Rene B. Azurin. It was also published by Business World Online on Thursday, May 21, 2009 as Unethical politics--DJB]
Monday, May 18, 2009
Saturday, May 16, 2009
On Saturday, May 16, 2009
Friday, May 15, 2009
A curious feature of the 1987 Constitution is that the President and Vice President are not elected as a team or ticket, like they are in the United States, but instead, run in simultaneous but separate elections for the two posts. Therefore, it is always possible for the people to elect a President with an opposition Vice President that could replace him or her in case something goes wrong, in effect placing a Sword of Damocles over the throne in the Palace in case Damocles rules unjustly. This makes the Vice Presidency a worthy and separate goal of lofty, or craven, political ambition. Who would make a good fiscalizing vice president in 2010?
This larger point is that the electorate can hedge its bet on the President by choosing a Vice President who may not be inclined to just sit back as a Spare Tire, but may be determined to act as a super-fiscalizer to the President with his or her own Bully Pulpit. Although the Vice President would not have the resources or immediate command of the executive as the elected President, nonetheless he or she could pose a threat, or perhaps a check and balance to the President.
Article VII The Executive DeptIt is well worth noticing also that the possibility of serving for more than six years as President can only be attained under the 1987 charter by first becoming the Vice President and somehow succeeding to the higher office through death, resignation, permanent disability or impeachment, conviction and removal from office of the President. This feat has already been achieved by Gloria Macapagal Arroyo, with disastrous effects. But the larger point is that it can be done again, intentionally.
Section 1. The executive power shall be vested in the President of the Philippines.
Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.
Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed from office in the same manner as the President.
The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.
Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.
No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.
Considering the large number of presidentiables already semaphoring their intentions to run for President, perhaps some of them ought to look with more imaginative eyes at the Vice Presidency and the unique possibilities of that office. The younger or less winnable candidates for the Presidency might find it profitable to aim a little lower, though it is likely the crowd for that office will grow and the race for veep even more competitive. The reason being that whether a vice president behaves in opposition to the President or not, another rule of thumb seems to be that the Vice President is an automatic top contender for President in the next election cycle.
The big, portentous question now is: who might he run with??
Thursday, May 7, 2009
Earlier this week Manila Judge Jorge Emmanuel Lorredo issued a most unusual Decision (via the blog of Manuel L. Quezon III in which he warns Mr. Defensor of the health hazards that are many old time Filipinos believe result from evil or unjust undertakings!
Judge Lorredo (excerpt from transcript at Ellen Tordesillas, Vera Files):There is extensive coverage of the ZTE/NBN controversy here at Philippine Commentary, as well as that of Romulo Neri, Executive Privilege, Ben Abalos, Joey de Venecia.
From People of the Philippines v. Jun Lozada:
Hence, I have decided to include those words in this order for Defensor to ponder on. I hope that Defensor would be able to clearly so that on May 7, 2009 (accused’s arraignment), there could already be peace between him and Lozada.
Why is it safer for Defensor to settle the case—
Defensor has admitted on TV that this perjury case he is pursuing against Lozada is very bad for his political career. I fully agree with him.
Furthermore, I say that it may be very bad for his health and his family as well. If he gets sick like Mike Arroyo, would not that be bad for him and his family?
The Presidents that I have known are only Presidents Marcos, Aquino, Ramos, Estrada and Arroyo.
My observation is that of all the presidential spouses, Atty. Mike Arroyo is the one who is very sickly. He has a serious heart disease. He even tries to make us believe that he is in no condition to attend Senate probes.
Imelda was strong during Marcos’ incumbency. Aquino, of course, was a widow during her term. Ming was so healthy and strong during Fidel’s time; and even after Fidel’s term, she was even the president of the Philippine Badminton Association. Dra. Loi was also very strong during Erap’s rather abruptly ended service.
There are those who say that the serious heart disease is some kind of punishment for Atty. Mike Arroyo. I do not know if this is true, for I do not really know how our Lord works, for He does works in mysterious ways. But what I do know is that Lozada is being protected by the Church, by the priests and nuns. That must mean something. Defensor, take note: that must mean something.
I invite Defensor to look closely at the faces of the priests and nuns protecting Lozada; at the faces of the other people openly voicing their support for Lozada. They are guarding Lozada so closely for they feel that what he says is the truth and they fear that the Arroyo administration might harm him because of his expose. That is why his custody during this trial in my court is such a big issue for those who support him.
Now, why are all these so important for Defensor to ponder on. Simple: if it is true that Mike Arroyo is being punished, Defensor may also be punished with some serious disease. I am sure his loved ones do not want that to happen to him.
The whole thing bears watching more closely now because it seems the battle lines have once more been drawn.
Sunday, May 3, 2009
Friday, May 1, 2009
Is there any doubt in your mind that "doubt" is a thing that exists only in the human mind? Indubitably, doubt is a mental or subjective state, a state of mind that arises in human beings when they are given a set of facts and are asked to adjudge the truth of some claim based on them. Doubt arises because we can never have a perfect knowledge of all the facts in the lives of one or two actual persons, and therefore we cannot draw absolute, black and white conclusions about them.
The color of doubt is gray. The only things we do not doubt are the axioms of Logic, Language and Mathematics which we assume are always true and are way beyond reasonable doubt. Clarifying the nature of "doubt" is important because in all criminal prosecutions, we say that the accused shall be presumed innocent until guilt is proved beyond a reasonable doubt.
The fundamental tenets are well-expressed by the Supreme Court (People v. Dramayo, J. Fernando):
Accusation is not, according to the fundamental law, synonymous with guilt, the prosecution must overthrow the presumption of innocence with proof of guilt beyond reasonable doubt. To meet this standard, there is need for the most careful scrutiny of the testimony of the State, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment.
In the above, Justice Fernando is describing the essential MORAL DUTY of Judges at the RTC, Court of Appeals (CARP) and the Supreme Court (SCoRP), when deciding criminal cases that come before them.
Thus, to be convicted of a crime requires the following results of DUE PROCESS:
(1) One Trial Court Judge must find moral certainty and no reasonable doubt in the proof of guilt of the accused as presented by the Prosecution.
(2) A simple majority of a division of at least three Court of Appeals Judges must find moral certainty and no reasonable doubt in the proof of guilt of the accused as presented by the Prosecution, and that all records and proceedings and rulings comply with all the laws and rules of Court, including that of the Trial Court Judge.
(3) Finally a simple majority of up to 15 Supreme Court Justices must likewise find moral certainty and no reasonable doubt in the proof of guilt of the accused as presented by the Prosecution, and that all records and proceedings and rulings comply with all the laws and rules of Court, including those of the Trial Court and Appeals Judges.
The RTC+CA+SCORP process represents a three-tiered justice system. I liken these three Courts of Law to the two Houses of the Congress, at least for the purposes of their official ACTS. The Congress for example, is a bicameral chamber, but as we all know, bills proposed in either House do not pass into Law unless both Houses have approved the same and reconciled their provisions. Likewise, we may regard the Final Sentence of Conviction which is pronounced by SCoRP at the end of a successful criminal prosecution to be the equivalent of a Bill being enacted into Law. As in the legislative process, this particular judicial process requires the judgment of "guilty" from each of the three levels of the Court system.
There is one curious observation we can make. Notice that although we have been saying proof of guilt beyond a reasonable doubt in the mind of the Judge ruling on the case must exist, a person can certainly be convicted and punished even if he is found NOT guilty by up to seven out of fifteen Supreme Court justices!
The Law evidently does not consider it a reasonable doubt in the proof of guilt of an accused even if seven SCoRP justices say they have found reasonable doubt in their own minds in such proof of guilt, as long as eight other SCoRP justices say they have found moral certainty and no reasonable doubt in the proof of guilt. I guess, this is like what happens when Congress passes a bill into law. Each House of Congress approves the bill by simple majority rule. Likewise, in a criminal prosecution, the final Sentence of Conviction that truly and legally overcomes the accused's Presumption of Innocence comes only when all three, RTC, CA and SCoRP find the accused guilty beyond a reasonable doubt.
THE SUBIC BAY RAPE CASE
In the Subic Bay Rape Case, the accused Lance Cpl Daniel Smith was found guilty of raping Suzette Nicolas y Sombillon by Judge Benjamin Pozon of the Makati RTC. However, in March 2009, the alleged victim, pseudonymously called Nicole, publicly doubted her testimony at trial. Then in April, 2009, the Court of Appeals acquitted the accused upon a unanimous decision by an all-woman division of three Lady Justices, Monina Arevalo Zenarosa Remedios S. Fernando and Myrna Dimaranan Vidal.
There are some of our colleagues who insist that the accused U.S. Marine corporal in the Subic Bay Rape Case, was a "convicted rapist" after the Regional Trial Court Judge Ben Pozon found him guilty beyond a reasonable doubt of rape. They claim the Presumption of Innocence was "lost" or "taken away" by Pozon, but that it was "restored" on appeal, when three Judges of the Court of Appeals merely "reversed" the RTC decision. But I find this interpretation self-serving of the Lynch Mobs and a logical stretch. It implies the the Burden of Proof shifted from the Prosecution to the Defense and that the task on appeal was for the Defense to prove innocence of the accused (with what quantum of evidence or proof we cannot say). Yet the Court of Appeals decision itself contradicts this interpretation when Justice Zenarosa declared in disposing of the case that,
“As in this case, a careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence, we must acquit. To the point of triteness, it has been repeatedly stressed that in this jurisdiction, accusation is not synonymous with guilt and that this has still to be proved beyond reasonable doubt.”
The three Lady Judges of the Court of Appeals have been viciously attacked by the fading remnants of the Lynch Mobs as old fashioned manangs who just think lowly of "Nicole".
Now in our recent discussions here at Filipino Voices, unaided by carping lawyers inadequate at explaining their own craft to the satisfaction of mere laymen, two very interesting, but somewhat different issues arose that are still being controverted, or shall we say, "clarified" of doubt. One is a legal, Constitutional question, the other is a matter of ethics:
THE LEGAL QUESTION: THE PRESUMPTION OF INNOCENCE
After a criminally accused person, such as Mr. Smith, has been found "guilty beyond a reasonable doubt" by a Regional Trial Court Judge, such as Ben Pozon, and appeals his case, has he lost the Presumption of Innocence? Has the burden of proof shifted from Prosecution to Defense, and if so, what is the quantum of proof or evidence required to prove innocence? Beyond or within reasonable doubt, total certainty, reasonable certainty?
I have made the assertion that even after the accused is found guilty by the Trial Court Judge, -- at the Court of Appeals and Supreme Court stages, the accused has not lost the Presumption of Innocence--which I take to be a Right, like the Right to Life, Liberty and the Pursuit of Happiness. The Presumption of Innocence of a criminally accused person is not a mental state that is supposed to exist in the Judge's mind. Unlike "doubt", which is a subjective, judgmental state, the Presumption of Innocence is a Constitutional right, entitlement or possession, like Deed or Title to a piece of property. Thus, when we say judges must "presume" the innocence of an accused, we do not mean they are to "assume" the accused is innocent -- after all, the authorities have found "probable cause" that he committed a crime and that is why they arrested and charged him. We only mean that a judgment of "Guilty" must be pronounced and the Presumption of Innocence rescinded if, and only if, Judges do not find reasonable doubt, but find instead moral certainty about the validity of the proof of guilt offered by the Prosecution.
The question that now arises is this. Is it legally correct to say that the accused has been CONVICTED of the crime charged after the Trial Court Judge has found him "guilty beyond a reasonable doubt" and an appeal is filed? My answer is NO. Not until the Judges in "upper houses" of the Judiciary likewise do as Fernando preaches: find moral certainty in their own minds as to the proof of guilt of the accused.
These considerations explain the reason why uniformly and consistently, appellants in criminal cases decided by the Court of Appeals and the Supreme Court are referred to in the formal written Decisions, as "Accused Appellant" and never, for example, "the Appellant Convicted Rapist" or "Appellant Convicted Perjurer", et cetera.
I have likened the argument that it is okay to think of and label the accused as a CONVICTED RAPIST simply upon the strength of one RTC Judge's decision as the Constitutional equivalent of those in the House of Representatives (HoRRP) calling for a Unicameral Con-Ass. Just as the House cannot ACT for The Congress, neither can the RTC enact a conviction without the further affirmation of the CA and SCoRP upon the same exacting degree of moral certainty.
THE ETHICAL QUESTION: PARITY OF PRIVACY RIGHTS IN RAPE CASES
The first question to ask oneself is, WHO is the victim in a case of rape: the Accuser or the Accused? Remember that in a rape case, one of these two parties will be proved to be a liar. Now please consider the following pertinent provision of the Republic Act No. 8505, the Rape Victim Assistance and Protection Act:
Section 5. Protective Measures. - At any stage of the investigation, prosecution and trial of a complaint for rape, the police officer, the prosecutor, the court and its officers, as well as the parties to the complaint shall recognize the right to privacy of the offended party and the accused. Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial and that the name and personal circumstances of the offended party and/or the accused, or any other information tending to establish their identities, and such circumstances or information on the complaint shall not be disclosed to the public.
Clearly, the VICTIM in a rape case could be EITHER the Accuser or the Accused, which is why the Law protects the Right to Privacy of both in EQUAL measure.
Amazingly, two weeks ago, Evalyn Ursua, fired lawyer of Nicole, and lawyer Katrina Legarda, told Cheche Lazaro on ABSCBN News’ Media in Focus TV talk show that the Philippine Daily Inquirer and anyone else, including bloggers, publishing her full name and pictures are CRIMINALLY LIABLE for “revealing” such information about the alleged rape victim of the accused Lance Corporal Daniel Smith.
I think a plain-reading of RA 8505 would suggest that it is Ms. Ursua who is criminally liable for wantonly violating the parity of privacy rights between Accuser and Accused in a rape case prosecution, because WHO the victim is will not be decided until the end of the case in acquittal of the Accused or his final and executory conviction and sentencing by SCoRP.
Regarding the "Lynch Mobs" and the general behavior of those in Mass Media and the Blogosphere for whom the Subic Rape case was always just a Political Spectator Sport in which the crowd participates activistically, I have raised several ethical questions related to the above legal and Constitutional questions because of the the Presumption of Innocence is mentioned in the Code of Ethics of Professional Journalists:
I. I shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by omission or improper emphasis. I recognize the duty to air the other side and the duty to correct substantive errors promptly.
VII. I shall not, in any manner, ridicule, cast aspersions on, or degrade any person by reason of sex, creed, religious belief, political conviction, cultural and ethnic origin.
VIII. I shall presume persons accused of crime of being innocent until proven otherwise. I shall exercise caution in publishing names of minors and women involved in criminal cases so that they may not unjustly lose their standing in society.
In making illegal and unethical cause with Ms. Ursua, the Gabriela activists (all one and a half dozen of them) much that is obviously unethical, immoral, unfair, unjust and plain badkharmaphilic -- are on plain display to this day among the Lynch Mobs in the Mass and Blog Media.
The Lynch Mobs are pitiably disconsolate and unconsolable. They are reduced to insulting the Lady Justices of the Court. But their keening, ululating angst is well-deserved for being self-imposed as a steadfast denial of the eternal principles of the Law. These are the Just Desserts of Rash Judgment.
If we must insist on viewing Current Events as a Spectator Sport, at least we must understand and play by the Rules of the Game.