10/5/13 THIS CAKE TAKES THE CAKE At today’s issue of the Philippine Star, page 14, Alex Magno writes: “Justice Secretary de Lima should please enlighten my simple mind. How can an arrest order issued by an inferior court stand after a superior court decided the case that caused that warrant no longer stands? How can a door still be what it is after it has been unhinged? I know lawyers reason in mysterious ways, but this one takes the cake. Last week, the Court of Appeals (CA) denied the Doj’s motion for reconsideration on an earlier ruling that found de Lima guilty of grave abuse of discretion when she formed a second panel to override the first on the matter involving former Palawan governor Joel Reyes and his brother Mario. The first panel dismissed the case against the brother. The CA found no reason why the findings of the first panel should be reversed.” Considering the apparently busy schedule of the Justice Secretary, she may not have the condescension to comment to the article. While am not her spokesman, since the article also inveighs against lawyers in general, it invites comments from lawyers, like me, in particular. It’s elementary, my dear. And, very simple. The explanation can be found in the article itself. The warrant of arrest cannot as yet be arrested by the denial of the motion for reconsideration by the CA because the ruling finding De Lima guilty of grave abuse of discretion is still at the level of the CA and it is not yet final since it is still subject to an appeal to or petition for review before the Supreme Court. And, De Lima has announced such an appeal. But, there are other explanations, which though legalese, are just as simple. The warrant of arrest was not issued by De Lima. It was issued by the trial court where the criminal case was filed. And, under the Constitution, a warrant of arrest is issued by the court only after the court has examined the records of the preliminary investigation conducted by the fiscal, initially, and the Secretary of Justice subsequently, and the court has concluded, by its own independent assessment of the evidence, that probable cause exists for the issuance of the warrant of arrest. The proceedings before the Court of Appeals which questioned the affirmance by De Lima of the findings of the second panel of preliminary investigators are separate from the proceedings before the trial court which issued the warrant of arrest. Under our criminal procedure, once a criminal complaint is filed before the court, this court has the plenary authority to make dispositions on the case, including the issuance of a warrant of arrest and, conversely, the recall of any warrant already issued. This is referred to as the “Crespo vs. Mogul” doctrine. Accordingly, even if the decision of the Court of Appeals were to be sustained by the Supreme Court, this would not mean the automatic recall of the warrant of arrest. A motion, or a written request, must be filed before the trial court for it to dismiss the case and/or recall the warrant of arrest. The last paragraph of the article reads: “ At any rate, de Lima’s position on the matter of the arrest warrants for the brothers Reyes seems to put her once again in collisions course with the courts”. On the contrary, the fact that the trial court issued the warrant of arrest after the findings of the second panel were conformed to by de Lima indicates that their legal hearts beat in harmony. Of course, if the Supreme Court sustains the CA, it would be the trial court which would bow in submission by recalling the warrant or dismissing the case. I am often inveigled by non-lawyers, the missus included, into discussions on legal issues. Initially, I would engage, but would demur whenever the discussants would insist on and intersperse their positions with the apologia “I am not a lawyer, but ….”. It’s like a priest and a scientist debating on the origin of man. Lawyers do not reason in mysterious ways. Law is no more esoteric than economics or political science. After all, all of these specialties concretize their abstractions with the same letters of the alphabet. If ever a simple explanation is incomprehensible, it is only because the mind is obfuscated by passion, pride or prejudice. What should be more interesting in the article is the following paragraph. “There seems to be powerful forces, in both Puerto Princesa and Manila, bent on peddling prejudgment of this case – perhaps to cover up the real instigators for the murder of Gerry Ortega or to deny the brothers opportunity to regain their place in Palawan politics. The brothers deserve due process in this case, which is what the CA decision insists on. So intent are those forces on destroying the Reyes brothers, they have seized upon the current controversy over the Malampaya funds accessed by the provincial government under Reyes and the pork barrel funds that have now produced plunder charges.” But, is not the article itself a soft sale on prejudging the case in favor of the Reyeses? Since the decision of the CA is not yet final, hence, sub judice, a legal term which should not be a mystery to the writer, should comments on it not be deferred until the Supreme Court shall have finally reviewed it? True, the brothers deserve due process. But, Ortega and his heirs also deserve due process. To borrow from former Chief Justice Enrique Fernando, justice, and with it due process (n.b. sa akin na ito), though due to the accused is due to the accuser also; the concept of justice must not be strained until it is narrowed down to a filament, we are to keep the balance true. Between a preliminary investigation conducted by the fiscal or the DOJ, which is summary, and a full blown trial before the courts, in which the parties are given the right to cross examine, the best legal device of ascertaining whether a witness is true or false, the latter should be the more efficient process of ascertaining the guilt or innocence of the accused. The writer seems to be in possession of information vital to the case, otherwise he would not have made the statements he did. He might want to share such knowledge not only with the investigators in the Ortega case but also in the Malampaya investigation if only to contribute in the search for truth, which would make all those concerned free: the accused/respondents freed from detention and accusation, the accusers freed from the shackles that bind them to their search for the malefactors. Kung hindi ang writer kikilos (on his revelations), sino ang kikilos? Kung hindi ngayon, kalian pa?
Posted on: Sat, 05 Oct 2013 11:39:31 +0000
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