10/13/14 PROPER FORUM FOR WHOM? (Or, why a lawyer should or should not attend investigations) Still apropos of the Binay banners and banters, the Inquirer headline today “Binay to Cooperate with De Lima probe” would have been more accurate if it had been tail-ended with “if” because, as the accompanying story shows, when he was “asked by reporters yesterday if he would face the DOJ investigation, Binay said: `Yes. But, this depends on what kind of investigation (the DOJ will do)’, (but) He did not say, however, what kind of investigation he wanted from the DOJ”. In other words, if he decides to attend. Earlier, in reaction to the admonition of Senator Santiago that he should appear at the Senate probe on alleged irregularities at the Makati local government in order to clear his name, Binay was quoted to the effect that he, just like Santiago, is also a lawyer (meaning, that his opinion is as good as hers) and that he should not face the Senate because it had already pre-judged him. A judgment or a decision is made in adversarial processes involving conflicting claims affecting a person’s life or liberty (criminal cases) or property (civil or administrative cases). An NBI or senate investigation does not result in any judgment or decision in favor of one or against another. Rather, these are preliminary fact-finding processes the results of which are merely basically recommendatory: on the part of the NBI, to determine whether or not a case should be filed with the prosecutor’s office or the courts; on the part of the Senate, to ascertain what laws should be passed, reviewed or amended. In both, a person does not lose his constitutional rights. So, why would a person refuse to appear in such fact finding investigations? The only reason should be that he does not want the real facts to be known. Idol Jarius Bondoc, while a most objective observer, in his Philippines Star column today entitled “This accuser is employing militaristic tactic on Binay”, may have fallen for the fallacy that the Senate is an adjudicatory body when he writes, B on B, that Binay may snub the senate hearing since three senators have already been “pronouncing him guilty solely on say-so and not documents, then challenging him to prove innocence”, while “normally the burden in place on the accuser to prove guilt, not on the accused to prove otherwise”. The Senate investigation should be placed in its proper perspective. It was conducted to probe the alleged overprice of the Makati City Hall parking building and not to specifically probe the Binays. Obviously, the inquiry is in aid of legislation: to ascertain how, despite the seemingly rigid rules on government contracts and procurements, such a reportedly anomalous overprice still took place so that the proper remedial legislations could be passed. Also, such a probe may be necessary to further define the powers and functions of the local governments and the local executives. The involvement of Mercado and the Binays are merely incidental, but unavoidable: Mercado because he claims to have knowledge of the irregularities, Binay because he happened to be the Mayor of Makati, hence, presumed to have knowledge, if not acquiesced, to the irregularities. Had things ran as the parties involved originally planned, it could have been Mercado who was the Mayor at the time of the construction of the building, hence, he would then be the one considered as the “accused” and not the ”accuser”. But, then there is no accuser and accused in the senate investigation. Persons appearing thereat are mere resource persons whom the senate hoped would provide facts or data in aid of its investigation. As things stand, the only data thus far presented before the Senate were mostly those given by Mercado and other witnesses. In the course thereof, the names of the Binays and others inevitably cropped up. For, how could an investigation on the construction of the building be made without including those who approved it in the first place? The basic questions in any investigation start with what, when, where, who and why. Leaving out any of these would not result in an impartial probe. While the Binays were initially represented by Mayor Junjun Binay, he later also refused to appear thereby, apparently refusing to shed further light on the investigation on certain matters which needed further clarifications on the part of the Senate. With the mention of the Binays, it was therefore, rightful, fitting and proper, that they should be invited to shed further light on the issues raised. Otherwise, it might be said later on that any recommendation which the Senate may make was arrived at without the Binays given the opportunity to air their side. The building probe morphed into the hacienda hunt. Resistance to the latter is that it is no longer covered by the investigation on the building. .But, it is as it should be. Under the constitution, while every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof, no such limitation is imposed on investigations in aid of legislation. But, the inquiries on both the world-class parking and the air-conditioned piggery would still serve the need for remedial legislation insofar as it would provide legislators data on how to pass laws affecting property ownership and anti-graft and corrupt practices act, The Constitution bans land ownership by foreigners. To circumvent this, foreigners use dummies, including marrying Filipinos just for the convenience and legality of acquiring and owning real properties. To conceal ill-gotten wealth, pubic officials cause the registration of properties they acquire while holding public office in the names of dummies. Such issues have been brought to the fore in the senate investigation. Ranged against the testimonies of Mercado and so many others that certain properties or businesses were actually owned by the Binays, the latter deny since all documents are not in their names. Idol Bondoc thus prefers documentary over testimonial evidence, which is again a fallacy because under the law on evidence, one type of evidence is not pre-eminent over the other. One may be the registered or apparent owner but he may not be the actual owner. Even the Civil Code recognizes this with the various provisions on property, succession, trust and agency. A TCT may still be in the name of a person who has already died. A person in possession of a cell phone is presumed to be the owner by the mere act of possession, but it may be shown to have been stolen. A car purchaser may cause its registration in the name of another for the purpose of a taxi franchise. A foreigner may request a local resident to open a bank account in the latter’s name to avoid payment of additional charges on foreign deposits and withdrawals. In all of these instances, courts may go beyond mere documentation even as certain anti dummy laws provide for conclusive presumptions on what the registered documents provide. Testimonial and other documentary evidence may show facts and circumstances which would belie registration of ownership by others, such as actual use, relationship (which is decried as guilt by association), the circumstances surrounding the acquisition by the registered owner, the similar acts done, and such other circumstances which would indicate actual ownership unless otherwise explained or rebutted. Mercado and others have testified or stated that the Binays are the owners. It therefore, behooved upon the latter, for which Santiago gave counsel, to appear before the senate and explain their side. Otherwise, with the evidence on the balance - the documents vs. the testimonies of witnesses - the senate would be free to choose which of these to accept as the truth. With the testimonies of the Binays, the evidentiary equilibrium may just be tilted in their favor In his 10/11/14 Philippine Star column (p. 10), Alexander the Great branded Mercado as a weaver of lies when Mercado’s claim that “the cakes the city gives out to its senior citizens .was overpriced 300%” (p.s. if the star with its pool of proofreaders could overlook a dis-agreement between subject and predicate, similar lapses on the part of another writer should be remissible), was “confronted with documentation showing the cakes to be priced lower than similar products commercially available”. This refutation is another example of a negative pregnant: it does not deny something even as it denies one thing. Reports have also been that the cake-providers is actually a Binay, the registration of the business in the name of another notwithstanding. So. While Mercado was guessing on the price, as Magno writes, this would not rule out the claim that a Binay is the baker. Also, the other similar products may be highly priced, but this would not rule out overprice on the Binay bread if the ingredients in the other similar products were more expensive, their bakers better paid, and their business more snooty and French sounding like, le cake le cours, hence, more expensive. Politically motivated is the usual reason given for a charge or imputation against any politician. But, as Professor (Mareng may mislead others in believing so) Winnie, Neil Cruz and others chorused, assuming that Mercado was biased, what of it.? As VP Binay would often say, with an abundance of smiles, about his political plans “in politics, anything is possible” or “in politics, nothing is impossible”. Indeed, it is because of politics that well-meaning individuals seek appointments to lucrative positions such as the Bureau of Customs, BIR, BID, and even the DepEd, in order to amass the funds with which to get themselves elected. And, it is because of politics that once elected politicians skim off contracts with the SOPs and resort to various anomalous practices to amass more funds to be spent, in the name of public service, for scholarship and health programs, dole out cakes and flowers on births and deaths, or outright vote buying to ensure re-election. And, it is precisely because of one’s political position that a person is able to commit the acts imputed to him. As the good book says, let him without sin cast the first stone. Another excuse is that the present charges are just a rehash of old charges which have already been dismissed. There are various reasons for the dismissal of charges, but unless the dismissal is one with prejudice or one in which the principles of double jeopardy or re adjudicata applies, a charge or complaint can always be revived subject to the statute of limitations or the prescriptive periods within which to file a case or complaint. But, more importantly, as stated, the senate investigation is not a charge against anybody. So even if the charges against a person may have already lapsed, it should not prevent the senate from reviving old issues if this would aid in better legislation. Another reason is that the senate is not the proper forum But, why should it not be? It is the best forum, if not the only forum, for the purposes for which it was conducted, which is to enable the senate to gather facts in aid of legislation. There is another equally good or best forum and this is the similar right to investigate by the House of Representatives.. So, if the foregoing reasons are not good enough to justify non-appearance, what could be the reason? In a congressional investigation, as in any NBI investigation, the person queried answers under oath. So, if he says something false, he faces prosecution for perjury. On the other hand, if he tells nothing but the truth and the truth as he tells it shows infraction of some law, such as the anti-graft and corrupt practices act, on his part or some other persons, he and they might be held criminally liable. So, it’s a case of a damned if he tells the truth and damned if he tells a lie if he appears at the investigation. Of course, he can invoke the right against self-incrimination, but an invocation of this right is itself self-incriminatory since silence is often a roaring acknowledgment of guilt. One big difference between an NBI investigation and a Senate investigation is that the latter is now often telecast live. Before an NBI investigator, a person can easily invoke his right against self-incrimination but with a snug smirk on his face and this would sufficiently stop the investigator on his track. This might not be so in a congressional investigation because the senators could insist that the right does not apply, and in case of refusal to answer, the resource person may be jailed as in contempt. Of course, the resource person could always seek judicial relief to restrain the senate from insisting on the question. But, then, the courts may just side with the senate. On tv, tell tale signs of truth or falsity, or even just exaggerations (as in the case of Vice Mayor Mercado) can easily be detected by the viewing public. So, if a person would want his name to be cleared by the public, he should not hesitate answering questions on tv so that the public could best gauge his demeanor. Fears have been aired that VP Binay would just be embarrassed if he appears. But, a person is usually embarrassed if he says something which is not true, claims it to be true but later proven that is not true. Besides, the senate has assured that it would accord him the respect befitting his office. They senators can be expected to do this because if they do not it would backfire on them and would even boost the image of the VP as an underdog and downtrodden, another reason why he should appear. The latest is that there is a conspiracy entitled Oplan Nognog to derail his 2016 presidential run. If so, then he is in accord with that oplan by his refusal to appear before the senate because by refusing to air his side he is allowing the perceived plotters to use the senate as a forum against him. He should similarly use this same forum in his favor. The three senators should not be faulted for making statements which are now being interpreted as casting pre-judgment against Binay. If this is the perception then he only has himself to blame by his refusal to answer the issues which had emerged against him in the course of the investigation. But, there is reason for the non-appearance, as any lawyer would know. The spokesmen of VP Binay repeat the mantra of a “proper forum” in which they he would present evidence in due time. They also dare his detractors to file the corresponding charges in court if these detractors really have solid evidence which would stand up in court. A different forum and different quantum of evidence are apparently in mind. The search for truth is not limited to court proceedings. When a person says something, such statement is deemed true, unless the declarant is a known liar. So if a person in Metro Manila would now tell a person who had just arrived from abroad that there was a thunderstorm in metro manila yesterday, the hearer would generally accept the information as true. But, if the hearer would want to verify the information further, he would ask other persons if indeed there was a thunderstorm. The other person asked me confirm, deny or claim lack of knowledge. He may deny just for the fun of it. He may have no personal knowledge if he had been asleep for the duration of the thunderstorm. In the face of the uncertainty of the information, the hearer may resort to other means of knowing the truth such as reviewing the news reports or asking futher some more persons. The opposite could also be true. It may not have rained, yet the person asked may claim that it rained. So to ascertain the truth of this statement, the hearer resorts to the same manner of gathering information so as to know the truth. This is the same as the ongoing investigation. Without the explanations from the Binay camp, the senate should not be faulted for relying on the testimonies of Mercado et al. They may be faulted for being bias, but this would not necessarily mean that their declarations are not true. If a person says something outside of the court in which charges have been filed against him or before such charges have been filed, such extrajudicial statements may be used against him. He may not later change in court his previous statements because this would affect his credibility. So that it is often practical not to give any statement during the preliminary investigations before the NBI or any other police officers or the prosecutor’s office or a senate investigation because this would already tie him down on these statements. On the other hand, if charges were filed in court on the bases merely of the statements and other evidences of the complainant, then this would give the accused greater flexibility and leg room in setting up his defenses. This is because the presentation of evidence and his guilt would also depend on how the charges, termed “information”, would be worded. The information would have to specify the offense charged and the evidence must conform to the elements of the offense as defined by the corresponding law violated. Otherwise, if the allegations in the information, the evidence presented and the definition of the offense do not jibe then the accused would have to be acquitted as this would violate his constitutional right to be informed of the nature of the charges against him. On the other hand, senate investigations are not circumscribed by the aforesaid limitations because since it is merely fact-finding and would not result in any judgment or decision against a person, it could lead anywhere. A person may be guilty but he may be acquitted because the information was improperly worded. If a person charged opts not to give evidence in the preliminary investigation, then the information filed would have to be based on the evidence presented solely by the complainant. While this evidence may be sufficient for a finding of probable cause, it may happen that the accused would be able to present evidence which would sufficiently rebut the allegations in the information and the evidence even if this same evidence may prove the commission of an offense not charged in the information but based on the same acts of the accused or the same subject matter. But, since his guilt would depend on the allegations of the information filed, he would have to be acquitted which would bar another prosecution for another offense based on the same facts on the ground of double jeopardy. In this regard, a google search would show that some years back, a case against then mayor Binay was dismissed by the Sandiganbayan for the reasons that the Sandiganbayan deemed the information insufficient to establish probable cause. The Ombudsman may have learned a lesson from this debacle and would word any information more carefully and on the basis of facts presented during the preliminary processes. Any statement that the Binays would give in the senate investigation would certainly be considered in the drafting of any possible information. Hence, it is but understandable that the Binays would not give any further information before the senate which could otherwise be used as evidence against them.
Posted on: Mon, 13 Oct 2014 07:04:28 +0000
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