Thursday, June 30, 2005
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Blog Lecture No. 18: Original Evidence

Ok class! Lets tackle this wonderful thing called original evidence. But we have to tackle several topics along, before and beyond it...

What are the basic types of evidence?
Basically, there are now three kinds of evidence:
1. Object or real evidence
2. Documentary Evidence
3. Electronic Evidence

What is object evidence?
Section 1 of Rule 130 defines what it object evidence. It says:

Section 1. Object as evidence. — Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.

Examples of these are murder weapons, drugs confiscated from the bust, undies, pubes and rubber in a rape case. Strands fiber, etc.

What is documentary evidence?

Section 2 of the same Rules defines this as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents.

What is original evidence?

Traditionally, original evidence refer only to documents, though taken loosely now in Congress.

They are defined under section 4 of the same rule as any one of the following:

(a) The original of the document is one the contents of which are the subject of inquiry (or the one in issue).

(b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (These are called "duplicate originals.")

(c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. ("Business records" such as receipts...)

Why is the original important? Can't we just present copies, anyway they are the same?

As they say, the original is still the best. According to the "best evidence rule" (Section 3 of the same Rules):

Section 3. Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

This rule simply says, if the original evidence is available, you have to present it. Otherwise, the contents of a document can still be contested by the one producing the original document.

When, then, can you use copies (or technically, when can you resort to secondary evidence)?

You can use secondary evidence when:

1. When original document is unavailable.
2.When original document is in adverse party's custody or control
3. Voluminous business records
4. When original document is a public record, in which case, you can present a certified true copy
What about electronic evidence?

Electronic evidence basically fall into these categories:
1. Electronic Documents
2. Digital Audio, Photographic, Video and
3. Ephemeral Electronic Communications

What are ephemeral eletronic communications?

These are communications of a fleeting, temporary nature (unrecorded) such as cel phone conversations (Hello, Garci?) and text messages (eow grci?)

What is the basic principles in electronic evidence?

First, electronic documents and evidence can already be admissible because of the E-commerce Act. (Republic Act No. 8792). You can get this from Atty. JJ Disini's site here.

Basically, the new rules of electronic evidence (but I would defer to my former boss, Atty. JJ Disini, the specialist on this topic) simply ensures the authenticity and integrity of what such evidence proves before it can be admitted as evidence.

The more interesting and relevant item for our blog lecture is Rule 11. It says:


Section 1. Audio, video and similar evidence.– Audio, photographic and video evidence of events, acts or transaction shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof .

Section 2. Ephemeral electronic communications. – Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply. (Emphasis supplied.)

What does this mean?

Her "sorry" truly admitted it...but which did she admit?

There's that D-O-G again...

Again in some stroke of pure genius, the D-O-G of a department will again see if charges could be filed against "that griping widow." Utterly in bad taste, chauvinist and downright insensitive of it... And you know what they say about people who pick fights with women...

They also need to be remided that the last "griping widow" managed to topple a 20 year old dictatorship that allowed them to be in power now... Never underestimate what these "griping widows" can do. What this last "griping widow" achieved, this D-O-G can never hope to match even in their multiple lifetimes. They better just go back to tooting their own horns (or "huwang-huwangs," as one of my classmates from law school used to say) because that's the only thing they're good at...

In some other news, the First Gentleman and the Eldest Son shall make the "sacrifice" and go to some undisclosed foreign land.

Where can I sign up to make the same "sacrifice"? Going to a foreign land, and probably not work for a living, living like royalty and instead engage in endless socializing. It's going to be hard, but I'm also willing to sacrifice like this for the good of the country.

Finally, I thought Congress will "send home" their teachers for giving the "wrong" answers for their questions...

Only in the Philippines! Oh well...

Sorry guys. I'm too tired to make a blog lecture today...perhaps tomorrow...anyway, four "legal luminaries" already made lectures yesterday about things I have already, here in relation to this.

Wednesday, June 29, 2005
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Blog Lecture No. 17: Impugning a Witness' Testimony

Ok class! We are now going to more advanced lessons...but these are not "trade secrets." Most, if not all of what I teach you can even get from the internet.

A friend of mine once remarked, "If I buy all the lawbooks you use, I wouldn't need a lawyer anymore. That might be a better one-time investment than hiring one on a per need basis..."

"There's one problem with that," I said. "We lawyers know what page it's on..."

Anyway, let's begin...

What does impugning a witness' testimony mean?

The word "impugn" means to attack as false or questionable. Hence, impugning a witness' testimony means to attack the truth of the witness' testimony.

How does one go about it?

This is achieved by lawyers through years of practice and experience. However, there are portions of the law itself that lend a glimpse in the practical ways one can go about it.

What is cross-examination?

During trial, a party presents a witness to conduct what is called a direct examination. This is the initial questioning of such witness on such fact the lawyer wants to present.

After that comes cross-examination. Section 6, Rule 132 of the Revised Rules of Evidence characterizes cross-examination succinctly (perfectly). It states:

Sec. 6. Cross-examination; its purpose and extent. - Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.

So what can we learn from this nature of cross-examination?

Here we can see how we can test the testimony of the witness.

We can test the accuracy and/or truthfulness of his testimony. Are there inconsistencies in his testimony? Or is his testimony too perfect? When we ask for details, do these details conflict? Does the witness engage in flip-flopping?

Remember what the police general in the juetengate hearings said (as if he understood it, he was just reading it): Falsus in uno, falsus in omnibus?

For your benefit (and his), it means false in one, false in all. When a witness has made a deliberate falsehood in one material aspect, he must have done so as to the rest.

Also, did the witness just assume certain things in the course of his testimony? Those assumptions may have been mistaken...

Finally, how does his present statement fit with his past statements/actions/documents? Any inconsistencies between those?

What else can we get from this definition of cross-examination?

We can likewise look out for a witness' interest or bias, or the lack of it when he is testifying.

Does the witness have an axe to grind against the one he is testifying against? Is that agenda sufficient reason or motivation for him to lie (and believe me some can lie very well, even fool experienced judges).

One the other hand, does the witness have something to gain from such testimony? Again, is the gain sufficient reason for him to lie in court, or in sworn statements?

Anything else?

Also, we can elicit other facts from a witness and turn him into a witness for our own purposes-- a legal jujitsu of sorts.

Does he know certain facts actually favorable to us? Is his testimony edited, re-edited and re-formatted to suit whoever is presenting him. Impugning this witness can also be done for this purpose.

That's all for now class. Be sure to look out for these matters when people try to discredit witnesses and impugn their testimonies during the next few days.

For further study, you could read The Art of Cross Examination, by Francis L. Wellman. I sure did, more than a few times already...

Tuesday, June 28, 2005
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Non sequitur?

(Warning, another opinion!!!)

Later on today on ANC, I heard Congressman TeddyBoy Locsin spell out this argument, initially propounded by Sec. Mike Defensor:

GMA admitted that it was her voice.

Hence, it now admitted as wiretapped.

Hence, it's now illegal to play, distribute the tape and its transcript, including ringtones and car horns.

With all due respect, I would like to disagree. I thought an admission to an improprierty is supposed to bring you penance (or punishment) for the sins you admit. Only in the Philippines can one admit to an impropriety and then benefit from it.

WOW! What kind of a country has this country become?

Also with all due respect (and this is the more legal argument), you want technicalities? I'll give you technicalities...

Wiretapping is again in the nature of a private crime. Hence, it is not enough, as the Honorable Congressman says, to have the NBI make a preliminary declaration that all versions of the Gloriagate tape, be it the mother, the sons, the ringtones or the horns are contraband materials and mere possession thereof makes one liable under Republic Act No. 4200. She has to file a complaint (or sue) EACH and EVERYONE to be liable under this law. As this is in the nature of a private crime, no complaint, no complainant, no crime.

Also, to successfully prosecute, she has to appear as complaining witness EACH and EVERY time anyone is prosecuted for it. And if she occupies all her time doing just that, she may just as well be impeached for it.

Sorry to say, a preliminary declaration of illegality is just that. I don't even think it amounts to probable cause since there is still no complainant. What more of guilt beyond reasonable doubt?

And if she indeed endeavors to do this, where will the "moving on" declaration be in all of this?

I say let the tapes be played. Pursue the wiretappers to the fullest extent of the law, if she must, but LET THE TAPES BE PLAYED. Let the people judge for themselves if she committed an improper act. Only then can she (and we) even attempt to move on...

Again, my two cents on the matter...

Another personal opinion

Atty. Luis Sison of Bangon Pilipinas had it right with his comparisons in last night's Talkback with Tina Palma.

He said (and of course this is paraphrased):

It's like a La Salle student caught cheating in his exams. Can he just argue that he can pass without cheating, anyway? So if he just says sorry and asks that the school administration forget about it and leave it behind, would he get away scott free?

(Of course, I'm using a La Salle student as an example for obvious reasons. Ateneans don't cheat (*joke*). Hey! I'm just trying to put some humor in an otherwise serious matter...)

Monday, June 27, 2005
This day in history from:

It's me. So what?

Let's go to something that's really interesting and direct to Gloriagate.

In a press statement tonight, she admitted it was her on the wiretapped conversation.

What is the answer to the question in the title of your entry?

Following is her possible liability:

1. An Election Offense.

She maybe liable for violating Section 261 (f) of the Omnibus Election Code which states:

Section 261. Prohibited Acts.- The following shall be guilty of an election offense:

(f) Coercion of election officials and employees. - Any person who, directly or indirectly, threatens, intimidates, terrorizes or coerces any election official or employee in the performance of his election functions or duties.
2. A Graft and Corruption Case

Contrary to public perception, the term "graft and corruption" is not merely limited to looting and enriching one's self from government coffers. That term covers many acts, as defined in Republic Act No. 3019, otherwise known as the "Anti Graft and Corruption Act," specifically Section 3 (a) that says:

(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

3. An Impeachable Offense

From a previous blog lecture, she may be liable for graft and corruption (as stated above) and betrayal of public trust, which involves any violation of her oath of office involving loss of public support even if it does not amount to a punishable offense (these are Hector De Leon's words, cited in my post).

Incidentally, her oath of office says:

"I do solemnly swear that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God." (Section 5, Article VII, 1987 Constitution)
Both of these are grounds for impeachment.

What are the penalties?

For an election offense, the prizes are:

1. A non-probationable prison sentence, from one year to six years;
2. Disqualification from public office; and
3. Deprivation of the right to vote.

For the graft and corruption offense, the prizes are:

1. Imprisonment for one to ten years;
2. Perpetual disqualification from public office;
3. Confiscation/forfeiture of the fruits of the "crime" (this may not be relevant for this issue)

For impeachment, as stated before:

1. Removal from office;
2. Disqualification for holding any other public office.

Anything else to add?

The election offense and the anti-graft offenses are mala prohibita, meaning, malice or bad intent need not be proved (unlike crimes in the Revised Penal Code that are mala in se, meaning, malice or bad intent needs to be proven before being liable).

Again, it's one thing to say she may be liable. It's another thing to see if she actually will be due to the numerous technicalities involved here...

But one thing's for sure. This will not be the end of this...

Again, may God (or again, whatever Supreme Being you believe, or don't believe) have mercy on us all...

Heads or Tails: Atenista questions

For this Heads or Tails post, Tiborcee posited the following questions:

1. What's your student number?
870627(College)/91-134(Law School)

2. Did you pass Ateneo or was waitlisted?
passed (and even got a merit scholarship)

3. How did you know your ACET (Ateneo College Entrance Exam) result?
Our ADMHS guidance councilors released all our letter all at the same time. I could still hear the collective screams (of agony or joy) that day...

4. Is Ateneo your first choice?
Of course. I came from its high school also.

5. What is your ACET score?
I was merit scholar so I guess it was high.

6. What course was your first choice?
Legal Management

7. Second choice?
Political Science, I think.

8. Are you chinito?
Dark, short and fat chinito

9. From Ateneo high?

10. Did you enjoy you orsem (orientation seminar)?
Yes, a younger, unretouched and more down-to-earth Regine Velasquez sang during our ORSEM night.

I participated in future orsems as an ORCOM member all my college years hence. Even met my first gf there.

11. What gate did you use on your first day?
During high school, gate 2
During college, gate 3.
During Law School, back door.

12. Did you live in a dorm?
My house is near...

13. Did you ever get an "F"?
No grade lower than C+. And only two of them.

14. How about an "A"?
More A's than any other letter grade.

15. Highest grade?
full house/four-of-a-kind. Four A's (or was it three?) and a couple of B+s, but I could not remember the QPI.

16. Lowest?
C+ in English and Philo... One sem out of the dean's list (the first Sem of my life).

17. Worst experience in admu:
Also baking under the sun for rotc/cmt.

18. Did you always attend your classes?
Except for CMT (ROTC) where I used all my cuts, you can count with one hand all my cuts for my whole college stay.

19. On scholarship?

20. Did you dream of being "laude?"
Yes. Did not come close, but I medalled.

21. When did you graduate?
March 1991/March 1995 (law school). From there, you can calculate my age (oops, you can do that too from my profile...)

22. Fave teacher?
Fr. Bartholomew Lahiff, S.J.(+). Dra. Christina Astorga, Fr. Adolfo Dacanay, S.J., Fr. Luis Candelaria, S.J. (we hated him when he was HS principal because he resectioned our classes and imposed a dress code, but loved him during College), Dr. Ramon Reyes, Dra. Soledad Reyes, Atty. Maningat, Fr. Jose Arcilla, S.J., Dr. Policarpio Peregrino.

23. Worst teacher?
Atty. Martinez. A lawyer teaching marketing? C'mon!

24. Fave subject?
Theo 131- Marriage including Family Planning (got an A there but miserably failed in OJT...)

25. Worst subject?

26. Favorite landmark in admu?
Gate 3 Waiting Shed (memories...)

27. Building?
Faura, where all the beauties used to be...

28. fave eating place?
Used to called the "country club" (near the tennis courts) and Pampanguena

29. Did you pay student rates in jeepneys?
Did not have those discounts during my time. But it was only P1.50 minimum fare then...

30. Are you always at the Rizal lib?
Somebody told me to have my nameplate nailed to my usual desk there...

31. Ever gone to the infirmary?
Yes. Had a blood pressure of 160/120 so the nurse gave me calcibloc had my "mommy" fetch me...

32. Any crush on campus?
So many! From the "girl mountain" to the "nice booty twitch"! And who could forget "GT FOREVER!!!"

33. Girlfriend?
My first, after college while in law school.

34. Any plans to get a master's or a Ph. D.?
Probably, but not here.

35. What were your PE subjects?
foundations (pe101), table tennis, lawn tennis at swimming (during second sem... it was cold!)

36. How was your block ?
Also close in general, but of course there were individual groups. Still in touch with some of them.

37. Ever watched a graduation?
Yes. My cousin, Prof. Sereno's, of UP Law. She graduated valedictorian. She's the reason I studied law...Bea's prep graduation also.

38. Memorized "Song for Mary?"
Since high school (I can even play it.)

BTW. I was surprised that younger Ateneans don't know that our alma mater song was knocked off by the late Raul Manglapuz from "Oh, Canada," the Canadian National Anthem...

39. Memorized "Fabilioh?"

(The spelling could be wrong, though...)
Ho! Fabilioh!
Ready, 1, 2..

Fabilioh Fee!
Fablioh Aei!
Hurrah, hurrah
Hurrah Rah
Ateneo, Ateneo
Rah! Rah! Rah!

40. How about "Halikinu?"
Of course.

Ho! Halikinu!

Ready, 1, 2...

Halikinu Kinikina
Halikinu Kinikina
Yea bo, yea bo, Ateneo rah!
Halikinu Kinikina
Halikinu Kinikina
Yea bo, yea bo, Ateneo rah!

Halikinu hu!
Halikinu rah!
Halikinu kinikina
Rah rah rah!
(Do you want the X-rated version?)

41. How about "Blue Eagle Spelling?"

Blue Eagle spelling!
Ready? 1,2...
B L U E...
Blue Eagle! Blue Eagle!
Blue Eagle! The King!

(How about UP spelling....? Easier but boring...)

42. Are you a member of Team Ateneo?
Only in spirit.

43. Who were your favorite UAAP basketball players?
Of the ones who played during my stay, my HS classmate Danny Francisco, Eric and Jun Reyes
Of the ones who played after my stay, Rich Alvarez, Richie Ticzon, L.A. Tenorio, Wesley Gonzalez...

44. Ever got "perfect" in an exam?
I can't remember, probably. But I got a "100" quarterly grade twice in high school...

45. What do you hate most about hell week?
What's hell week?

46. Did you learn how to smoke and drink there?
I didn't learn how to smoke. I learned to drink when I got married... way after my school days...

47. What did you like about our school?
Also the people, the scenery, the two latin diplomas, and the distance from my house and oh, the "Jesuit" education.

48. What didn't you like?
The 7:30 classes at 2nd floor, Gonzaga Hall, followed by an 8:30 class at 2nd floor, Belarmine Hall. The teacher in Gonzaga (Prof. Eric Torres) insisted on extending our class while our 8:30 (Fr. Bart Lahiff, S.J.) was so particular about tardiness... Got my thrice a week exercise from it, though.

49. Bought anything in the A-shop?
Before grad, my mother liked buying tshirts at jackets. after grad, I bought mostly planners...

50. Did you look good in your ID pic?
No. In college, I had my picture taken after a grueling registration process, hence the harrassed look. In law school, my ID pic was my college grad pic taken by Toch...

51. Did anything illegal inside the campus?
I was a saint during college.

52. Bought anything in National katips?
During my college days, there was no National katips, but I bought something there recently.

53. Have you been to Starbucks katips?
Yes. Even if it replaced Tia Maria's, the "view" there is spectacular...

54. Want to study again?
Someday, in the states...

His answers to the same questions can be found here.

(PS. stepping on poop also answered the same questions here.)

Blog Lecture No. 16: Ending Congressional Committee Hearings

Ok class! Let's go to the relevant but short topic of ending congressional committee hearings with the end of a regular session:

The relevant provision is Section 15, Article VI of the 1987 Consitution. It reads:

Section 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.

What is a regular session of Congress?

It may be termed as its "legislative year," comparable to a calendar year of law-making functions, and supposedly all sub-functions that go with it. With a term of three years, each Congress has three regular sessions. (e.g. 13th Congress, First Regular Session was from July 2004 to 25 June 2005, the Second Regular Session, therefore starts on 25 of July 2005.)

What is the argument for ending all congressional inquiries at this time?

Since the First Regular Session is ending (or had ended last 25 July 2005), the committee which is a mere branch or limb of Congress already has no authority to conduct hearings. Simply put, when the tree is dead, so are its branches.

What is the argument against ending congressional inquiries at this time?

A common reading of the provision above only says the session ends 30 days before the start of the regular session. Neither this, nor Section 22 of the same Article of the Constitution says all committee hearings must end with each session.

If we follow the argument for ending the hearings, as those in favor of continuing would say, we have to end all hearings while Congress is in recess or when it has adjourned (as in what happened now). So if the hearings continued when session has already adjourned, as in the case now, there is no reason why it should stop because of this provision.

Besides, the President can still call a special session well after this supposed deadline. Of course, she will not because there is no need for such a call.

What argument do you favor?

Both sides are, of course, legally defensible. It's a good topic for debate, though it would waste a lot of time for someone who will raise a point of order in both Houses...

Obviously based on the discussion above, and the motto of my friend Ron Allan, I would favor continuing the hearings and not rely on this debatable constitutional issue. If the hearings end abruptly, it will reinforce the public perception that there is a cover-up going on...

(But this is just my opinion. Of course it does not count, even in the blogosphere. But thanks for listening [or reading] anyway...)

Sunday, June 26, 2005
This day in history from:

Menage a trois

Teacher Sol tagged me to answer these questions in threes (hence the title of this entry...not what you're thinking, though that's fun too, heheheheheh!). Some are kinda personal, though...

I will also declare a "free cut" today. We will resume our blog lectures tomorrow...

Three names you go by:1. Punzi 2. Atty. Punzi 3. Punzi

Three screen names you have had: 1. Punzi 2. attypunzi 3. punzi

Three physical things you like about yourself:1. skilled hands, dexterous fingers 2. the way my eyes disappear when I smile... (i.e. bungisngis...) 3. no-maintenance hair

Three physical things you don't like about yourself: 1. Weight 2. Rashes due to the heat 3. Girth

Three parts of your heritage: 1. Filipino 2. Tagalog 3. Chinese (my relatives from my mother's side say)

Three things that scare you: 1. Accidents 2. Failure 3. Betrayal

Three of your everyday essentials: 1. Vicks 2. Rosary 3. Scapular

Three of your favorite musical artists:1. Michael Crawford 2. Josh Groban 3. Sarah Brightman and Andrea Bocelli (actually, this is not enough, I have a lot of favorites per genre)

Three of your favorite songs: 1. Music of the Night (Michael Crawford, Phantom of the Opera) 2. Home to Stay (Josh Groban) 3. Time to say goodbye (Sarah Brightman and Andrea Bocelli), again, three is not enough just mentioned there to fit my favorite musical artists above...

Three things you want in a relationship: 1. None 2. None 3. No relationship (for now...)

Three lies and truths in no particular order:(lies) 1. Crime does pay 2. True love 3. Pure altruistic motives (truths) 1. Garbage in, garbage out 2. Karma 3. The Golden Rule.

Three physical things about the opposite sex that appeals to you: 1. eyes 2. body (sorry, only human, though I'm also a chubby chaser) 3. smile

Three of your favorite hobbies: 1. Video games 2. Music (listening and playing) 3. Computers

Three things you want to do really badly now: 1. Have financial stability 2. Secure my children's over-all security 3. Rest

Three careers you're considering/you've considered: 1. Music 2. Computers 3. Teaching

Three places you want to go on vacation: 1. United States tour (includes Washington DC, New York, California, Boston, Nevada) 2. European Tour (includes, but not limited to Paris, Rome, the Vatican, Venice, Florence, London, Finland [the land of Nokia, hehehehe], Sweden, Germany, etc.] 3. Holy Land Pilgrimage

Three kid's names you like: 1. Breanna 2. Beatriz 3. Nicholas

Three things you want to do before you die: 1. Visit the Smithsonian and all famous museums 2. Visit the Vatican and/or Pilgrimage to the Holy Land 3. (Already did this) Watch Phantom of the Opera, albeit the movie

Three ways that you are stereotypically a boy: 1. Endurance 2. Heart of stone 3. Always on time

Three ways that you are stereotypically a girl: 1. Sensitive (joke) 2. Passionate 3. Compassionate

Three celeb crushes: 1. Debra Messing 2. Kristin Kreuk 3. Alicia Silverstone
(also Kirsten Dunst, Jessica Alba, Nicole Kidman, Lindsay Lohan, Angelina Jolie, Marina Sitris, Jerry Lyn Ryan, Dido, Kyle Minogue, Amy Lee, Carrie-Anne Moss, Sandra Bullock, Meg Ryan, Andrea Corr, Belinda Bright, Brooke Burke, Shu Qi, the girls of Dead or Alive 2 and 3, Nina, Mira Sorvino, Jules Asner, Kristanna Loken, Cindy Margolis, Liv Tyler, Kate Mulgrew [Katherine Janeway], Emmy Rossum, Enya, Suzanne Ciani, Keiko Matsui, Julia Ormond, Michelle Rodriguez, Portia de Rossi, Kate Winslet...)

I will think about who to tag next, raincheck?

Saturday, June 25, 2005
This day in history from:

Gadgetflash No. 3: Wireless Routers

Thanks to my friend, Mayo, I was able to pinpoint my home network problems.

The problem was my home WiFi network could not share my broadband connection with all my computers. I could only access the internet one computer at a time. My provider said that's because my account was only for single computer, so I just lived with it.

She said that should not be the case and that my router should be able to distribute the connection. She said it might be a simple matter of configuring the wireless access point.

Turns out my access point was NOT a router (did not read it, got it in an ex deal anyway, so I could not complain). It gave me a wireless network alright but it did not network my broadband connection.

So I had to replace my wireless access point with a wireless router (the access point was already built in). After a few drops of sweat, VOILA! Even my PDA is enjoying the benefits.

That was an expensive lesson on the difference between a wireless access point and a wireless router, though...

Anyway, thanks Mayo!

Teacher Sol, I'll deal with your quiz later. Choir practice awaits...

Blog Lecture No. 15: Newly Discovered Evidence

Ok class! For today let's discuss the possibility of seeking relief for a lost cause based on newly discovered evidence. This will be a very short lecture because, far from what it seems, I also have a life, too.

What is newly discovered evidence?

It is that "which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result." (From Section 1, Rule 37 of the 1997 Revised Rules of Civil Procedure)

Please note that the classification "newly discovered evidence" is a function of two things, namely:

1. Time of Discovery and Production

The evidence (whether object or testimonial evidence, more on this in another blog) could not have been discovered and produced during the time it was needed (in civil and criminal cases, during trial). This should not be the case of "forgotten" evidence, which was already discovered and could have been produced during trial, but was not due to some tactical blunder.

2. Materiality (Relevance)

The "newly discovered evidence" must not only be "newly discovered." It must also have a bearing on the outcome of the decision. According to the definition I said above, it must be of such magnitude as to "probably alter the result."

Can you give me an example?

Of course.

The classic example of this is DNA evidence being presented to exonerate an alleged rapist convicted at the time DNA fingerprinting was not yet available. (Also a classic CSI episode.)

We can see here that DNA evidence passes the two tests I stated before. It was not discovered or produced during the trial because such forensic data/testing was not available at the time. If there were object evidence with recoverable DNA samples then (e.g., undies, used rubber, pubes, etc.) and it did not match the alleged rapist, enough reasonable doubt could be established to give the alleged rapist a "Get out of Jail, free" card.

In civil cases, a last will and testament could be discovered among a person's papers tucked away in a secret compartment of his house, discovered only when the house was being renovated way after the properties were distributed to his heirs. That will could have substantially affected the way the properties should have been divided among these heirs.

So I found "newly discovered evidence," how can I use it?

In civil and criminal cases, this can be the basis to ask for new trial or reconsideration of the judgment already rendered.

How about in election cases?

Oh, of course the evidence must be admissible first. (Heheheheh!)

But if at all there is such newly discovered evidence, it may be used to prosecute persons or candidates of election offenses and even question the legitimacy of the win. It all depends on what stage of the election we are in (or we are not...)

How to go about this is the reason why election lawyers are paid huge amounts...So give us a chance to earn our keep...

Friday, June 24, 2005
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Blog Lecture No. 14: False Testimonies

Ok class! I've recovered enough from my headache to deliver this lecture about false testimonies.

There are a lot of crimes covered by this topic. Let's start with the Revised Penal Code Provisions on the matter:

Art. 180. False testimony against a defendant. — Any person who shall give false testimony against the defendant in any criminal case shall suffer:

1. The penalty of reclusion temporal, if the defendant in said case shall have been sentenced to death;

2. The penalty of prision mayor, if the defendant shall have been sentenced to reclusion
temporal or reclusion perpetua;

3. The penalty of prision correccional, if the defendant shall have been sentenced to any other afflictive penalty; and

4. The penalty of arresto mayor, if the defendant shall have been sentenced to a correctional penalty or a fine, or shall have been acquitted.

In cases provided in subdivisions 3 and 4 of this article the offender shall further suffer a fine not to exceed 1,000 pesos.

Art. 181. False testimony favorable to the defendants. — Any person who shall give false testimony in favor of the defendant in a criminal case, shall suffer the penalties of arresto mayor in its maximum period to prision correccional in its minimum period a fine not to exceed 1,000 pesos, if the prosecution is for a felony punishable by an afflictive penalty, and the penalty of arresto mayor in any other case.

Art. 182. False testimony in civil cases. — Any person found guilty of false testimony in a civil case shall suffer the penalty of prision correccional in its minimum period and a fine not to exceed 6,000 pesos, if the amount in controversy shall exceed 5,000 pesos, and the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not to exceed 1,000 pesos, if the amount in controversy shall not exceed said amount or cannot be estimated.

Art. 183. False testimony in other cases and perjury in solemn affirmation. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person, who knowingly makes untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires.

Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein.

Art. 184. Offering false testimony in evidence. — Any person who shall knowingly offer in evidence a false witness or testimony in any judicial or official proceeding, shall be punished as guilty of false testimony and shall suffer the respective penalties provided in this section.

So what are crimes under false testimony?

They are:

1. False testimony against a defendant (more accurately an accused)
2. False testimony favorable to a defendant (again more accurately, an accused)
3. False testimony in civil cases
4. False testimony in other cases
5. Perjury
6. Offering false testimony in evidence (for us lawyers)

So as you can see, the penalties for false testimony are dependent on (1) the sentence on the accused and (2) where the false testimony was used and (3) whether the testimony is for or against an accused (or defendant, in civil cases).

Can you please give examples of each?


1. In a rape case, Victim X falsely testifies against Accused Y. If Y is sentenced to death, X gets the penalty.

2. In the murder case, Witness W falsely gives Accused Z an alibi. Witness W is likewise liable for false testimony.

3. In a collection case filed in court, collector F falsely testifies that E borrowed money from him. F is liable for false testimony.

4. In an administrative case, witness A falsely testifies that respondent B was guilty of misconduct. A is liable for false testimony.

5. For any other purpose, character JA executes an false affidavit on a material matter against a bishop O. JA is likewise liable for perjury.

6. Finally, if lawyer P knowingly offers (or uses) such false testimony in court or any other body, he suffers the same fate as the one who actually makes such false testimony.

What are the essential elements in all these cases?

For a person to be liable, the testimony must be under oath, sworn to or notarized (in the case of perjury).

The term perjury is actually limited to affidavits and sworn statements but in common parlance has also covered false testimony. It just sounds "cooler" to call them all perjury....

Also, it does not matter if the court or body considers such false testimony or perjury in deciding the case.

Finally, the one giving such false testimony or perjurious statement know that it is false and hence, motivated by malicious motives.

What is reclusion temporal?

No, it does not mean you will be a temporary recluse, it is a prison sentence from twelve years and one day to twenty years, along with the accessory penalties that goes with it.

What is prision mayor?

No, it does not mean you will be sent to a major prison, it is a prison sentence from six years and one day to twelve years, again with the accessory penalties.

What is prision correccional?

No, it does not mean you will be sent to the correctional, it is a prison sentence from six months and one day to six years, again with the accessory penalties. Although I think you really do serve this in a correctional facility.

What is subornation of perjury?

It is procuring (by induction or even money) another to swear and testify falsely against another. While it is not exactly defined under our penal code, the one that does this is nevertheless punished the same manner as a principal by inducement.

Anything else you want to add?

I will probably tackle how to prove false testimony in another lecture...

A headache...

No, I have a headache because I just started wearing glasses again. I stopped wearing them about two years ago. All this blogging has probably taken a toll on my eyes.

Someone told me to wear new glasses first thing the next morning, not immediately upon getting them. I was probably in a hurry to look "smart" again so I started wearing them this afternoon. Now, I'm paying for it.

Our choir practice last night went well. With a little more polishing, we'll be ready for the Choir Convention.

This compounded my headache even more...So please forgive me if I cannot think of something more sensible to blog about. I'll probably think of something better to blog about with some shuteye...

Thursday, June 23, 2005
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Blog Lecture No. 13: Unlawful Means of Publication and Unlawful Utterances

Ok class! Let's discuss the crime of unlawful means of publication and unlawful utterances.

These crimes are defined under the Revised Penal Code (Act No. 3815, not Republic Act No. 154. I checked RA 154 and it is a 1947 law that presecribes certain privileges to veterans taking the Civil Service Examinations). Anyway, it states:

Art. 154. Unlawful use of means of publication and unlawful utterances. — The penalty of arresto mayor and a fine ranging from P200 to P1,000 pesos shall be imposed upon:

1. Any person who by means of printing, lithography, or any other means of publication shall publish or cause to be published as news any false news which may endanger the public order, or cause damage to the interest or credit of the State;

2. Any person who by the same means, or by words, utterances or speeches shall encourage disobedience to the law or to the constituted authorities or praise, justify, or extol any act punished by law;

3. Any person who shall maliciously publish or cause to be published any official resolution or document without proper authority, or before they have been published officially; or

4. Any person who shall print, publish, or distribute or cause to be printed, published, or distributed books, pamphlets, periodicals, or leaflets which do not bear the real printer's name, or which are classified as anonymous.

What are the acts punished under this law?

They are:

  1. Publishing false news which may endanger the public order, or cause damage to the interest or credit of the State.
  2. Publishing or uttering or making speeches that encourage disobedience to the law or to the constituted authorities or that praise, justify, or extol any act punished by law.
  3. Maliciously publishing any official resolution or document without proper authority, or before they have been published officially.
  4. Publishing or distributing books, pamphlets, periodicals, or leaflets which do not bear the real printer's name, or which are classified as anonymous.

Can you give me an example of each?


1. A newspaper publishes a news item headlined "Invasion!" and reports that aliens have invaded the planet when it was not true (or was just a plug for "War of the Worlds" featuring Tom Cruise who apparently swept Katie Holmes off her feet...I'm digressing again...) and caused a panic among the masses.

2. A publication or speech encouraging the people not to pay taxes or extolling the virtues of a known criminal and/or criminal activities.

3. Malicious publication of a "proclamation declaring martial law" when there is none or before it was official. Note the word "malicious" and hence, the malice is an essential element of the crime and must be proven.

4. Publication/distribution of a "manifesto" without the real printer's name or was published under "anonymous."

Any application to "President Evil"?

As I have seen, none. The depiction is clearly a metaphor and is no different from the effigies being burned during demonstrations. There is no false news there because it was just an channel to redress grievances.

There is no encouragement to disobedience to the law or to duly constituted authorities because (as I have glimpsed on the poster) there isn't any call to any action. And even if there was, the accused can always argue that the "authority" was not duly constituted in the first place...(oh how my mind wanders....)

The last two acts are completely inapplicable to this issue.

What's a better charge?

Libel, if there was an imputation of a crime, vice, defect, etc. (please refer to my first blog lecture here) in those "President Evil" posters. Of course, one can argue that saying President Evil is already libelous because it implies that the president is evil. Or if you further allude to the movie and/or Capcom hit video game, the poster may have implied that the president is a vile, gory, blood-thirsty zombie (again, libelous and also yucky!). But the aggrieved party must file the complaint first before the authorities can go-a-raiding printing presses or go-a-confiscating posters.

What is arresto mayor?

No, it does not mean the mayor will be arrested or you're in for a major arrest. It is a type of penaltly of imprisonment imposed by the Revised Penal Code, with a period ranging from one month and one day to six months, plus the accessory penalties that go with it.

Hence, this is bailable and probationable and with the the speed of the justice system here, one would have served the penalty way before the judge has decided on the case.

What can be said to the agents that conducted the raid?


Wednesday, June 22, 2005
This day in history from:

Welcome back Tarongoy?

As the latest news item states, Robert Tarongoy was released by his Iraqi captors sometime today.


He may be expecting a hero's welcome when he comes back. He may be expecting people to fete him with honors, a house and lot, a livelihood, etc.

But I hope not!

Let me start by saying that I have nothing against OFWs and their contribution to the nation. My Dad was the original OFW (decades before that term was coined). He worked in Guam in the early 70s and the Middle East for most of the 80s. My Dad did not see me grow up and my earliest memories of him was the fantastic presents he gives me every time he returns.

I already knew where Iraq and Kuwait (my dad helped build some buildings in Baghdad and the Basra Sheraton Hotel) were during the late 70s when people knew where they were only in the early 90s. Also, if it wasn't for my Dad's sacrifice, we would not enjoy the life of a little comfort that we have (because I moved back to their house, remember?) now.

So believe me when I say, I know their plight and the sacrifices they make very well.

HOWEVER, let us not forget that Mr. Tarongoy slipped out to Iraq in blatant disregard of the government ban on Filipino workers in Iraq (because of the Angelo Dela Cruz incident). And he did this at his own peril.

So it's one thing to go abroad and seek a better life for one's family. It's another thing when GREED comes into the picture. Let's face it. Mr. Tarongoy was already earning a decent living as an accountant in Saudi Arabia. It was his GREED that made him take the bait and go to Iraq-- and that got him kidnapped.

And as he did so, the government nevertheless spent precious resources to secure his release in the form of the salaries and expenses of the Philippine Iraq Crisis Team or Team Iraq specifically formed to secure his release. These resources could have been spent feeding the hungry, curing the sick and providing for the needy. The government readily spent this to avoid being unpopular, as well as other political repercussions.

So instead of heaping praises, honors and prizes at him, I say, we

(PS. Malaya reports that the Philippine government allegedly paid $1.4M ransom to secure Tarongoy's release. That's about P78.4 Million Pesos. You can relocate and provide housing for 392 underprivileged families with that money [@ the standard NHA Relocation package of P200,000.00 each]. How many schools, barangay centers, parks, etc. can the government construct with this money?)

(Of course, this is my humble opinion. You are welcome to disagree and comment because that's the beauty of free speech. Something I took an oath to defend.)

Blog Lecture No. 12: Congressional Rules on Motions

Ok class! Like you, I was watching intently the proceedings of Congress yesterday and you may be wondering why our esteemed congressmen can just interrupt anyone, even the Chairperson of the joint committees.

The reason is their own rules on motions. I got this from here.

The following is the House Rules on Motions for the this present Congress:


Section 120. Recording of Motions. - Every motion shall be entered in the Journal with the name of the Member making it unless it is withdrawn on the same day.

Section 121. Reading and Withdrawal of Motions. - The Speaker shall state the motion or, if in writing, shall cause it to be read by the Secretary General before being debated. A motion may be withdrawn any time before its approval.

Section 122. Precedence of Motions During Debate.- When a question is under debate or before the body, no motion shall be entertained except the following, which shall take precedence in the following order:

First- Motion to Adjourn;
Second- Motion to Raise a Point of Order;
Third- Motion to Raise a Question of Privilege;
Fourth- Motion to Declare a Recess;
Fifth- Motion for Reconsideration;
Sixth- Motion to Lay on the Table;
Seventh- Motion to Postpone to a Day Certain;
Eighth- Motion to Refer to or to Re-Refer;
Ninth- Motion to Amend; and
Tenth- Motion to Postpone Indefinitely

The first seven (7) motions shall be decided without debate, while the last three (3) motions may be decided after debate subject to the five-minute rule.
Section 123. Rider Prohibited. - No motion or proposition on a subject matter different from that under consideration shall be allowed under the guise of amendment.
Section 124. One Motion for One Subject Matter. - A motion shall cover only one (1) subject matter.
Section 125. Point of Order. - A Point of Order is a privileged question that raises a violation of the rules in relation to the matter under discussion on the floor. A motion to read any part of the Rules is equivalent to a Point of Order and takes precedence over any motion other than to adjourn.

Section 126. Questions of Privilege. - Questions of privilege are those affecting the duties, conduct, rights, privileges, dignity, integrity or reputation of the House or of its Members, individually or collectively. Subject to the ten-minute rule, every member has the right to raise a question of personal or collective privilege. However, prior to availing of this right, a Member shall seek the permission of the Chair which shall, in turn, allow the Member to proceed upon a determination that the request is in order. On Mondays, a Member who has registered to speak on a specific subject matter in the Privilege Hour can not rise on a Question of Personal or Collective Privilege on the same subject matter.

Section 127. Reconsideration; Procedure; Exceptions. - When a bill, report or motion is adopted or lost, a Member who voted with the majority may move for its reconsideration on the same or succeeding session day. Only one (1) motion for reconsideration shall be allowed. The motion shall take precedence over all other questions except a motion to adjourn, a point of order, a question of privilege, and a motion to declare a recess. No bill, resolution, memorial or petition recommitted to a committee or ordered to be printed shall be brought back to the House on a motion to reconsider.

Section 128. Amendments. - When any matter is under consideration, a motion to amend and a further motion to amend the amendatory motion shall be in order. When an amendment is rejected by the proponent of the original motion, the proponent of the amendment may appeal to the body. The proponent of the original motion and the proponent of the amendment may explain their positions, on appeal, subject to the five-minute rule. It shall also be in order to move for amendment by substitution, but said motion shall not be voted upon until the text of the original matter is perfected. Any amendment may be withdrawn before a vote is had thereon.

Section 129. Amendment of Title. Amendment(s) to the title of a bill or resolution shall be in order only after amendment(s) to the text thereof have been completed. Amendment(s) to the title shall be decided without debate.

Section 130. Motion to Strike and Insert. - A motion to strike and insert is indivisible. The loss of a pure motion to strike shall not preclude an amendment or a motion to strike and insert.

Section 131. Motion to Postpone. After a motion to postpone to any day certain or to postpone indefinitely is lost, such motion shall not again be allowed on the same day.

Section 132. Vote on Paper Objected To. - A motion to read a paper other than that which the House is called to vote upon shall be voted on without debate.

What is the order of precedence of motions in this Congress?

1. Adjourn
2. Point of Order
3. Question of Privilege
4. Recess
5. Reconsideration
6. Lay on the Table
7. Postpone to a day certain
8. Refer or Re-refer
9. Amend
10. Postpone Indefinitely

What does this mean?

This means the a Committee Chairman and the Committee must recognize and deal with the more preferred motion first before dealing with the less preferred ones.

For example:

Between a motion to lay on the table and a point of order, the Committee deals with the point of order first, because it is the preferred motion.

Between a point of order and a question of privilege, the Chairman must entertain the point of order first.

Of course, all motions bow down to a motion to adjourn, the most preferred motion. Don't ask me why.

A good chairman must know this order of preference by heart so he can effectively steer the proceedings. Also, he must also discern the motion called by a member and its actual content or simply recognize its real nature.

Some members just say "point of order" but they raise a lesser preferred motion just to have the floor. A good Chairman must recognize this and declare this member out of order and quickly move to the next preferred motion.

What is a motion to raise a point of order?

It is a privileged question that raises a violation of the rules in relation to the matter under discussion on the floor. Loosely, it can be termed as an objection.

For example, the Press Secretary is being asked on a matter pertaining to the Justice Secretary. A congressman can raise a point of order stating the Press Secretary cannot be subject to matters that does not pertain to another's department.

What is a motion to raise a question of privilege?

Questions of privilege are those affecting the duties, conduct, rights, privileges, dignity, integrity or reputation of the House or of its Members, individually or collectively.

For example, Congressman "ER" stated on the floor that Congressman "MZ" was using dilatory tactics. Congressman MZ can raise a question of privilege to answer that.

What is a motion to lay on the table?

No, it is not a pro-wrestling finishing move (or something kinky...hehehheheh!). It is simply a motion to defer consideration of a pending motion, to "enable the assembly, in order to attend to more urgent business." (from Roberts Rules of Order a good reading actually, as this is also used for board/stockholder meetings worldwide).

So you see, class, our Congressmen ARE doing their jobs...

Tuesday, June 21, 2005
This day in history from:

Happy Father's Day, Cardinal Sin...

I knew Cardinal Sin was on his last legs when he failed to attend the Papal Conclave due to sickness.

But I don't want to believe it. Until now.

Rest in peace, dear Jaime Cardinal Sin. You have shepherded the Filipino people well.

May God and John Paul II welcome you to Heaven with open arms...Please continue to watch over us from up there.

We need it. And we will miss you...

Photo from the Legion of Mary website.

Blog Lecture No. 11: In aid of legislation

Ok class! Instead of lecturing about habeas corpus (sounds like Habemus Papam, and it is likewise similar) since it's not relevant (at least not yet), I've decided to give a short lecture on congressional inquiries.

The power of Congress to conduct inquiries in aid of legislation is derrived from Article VI of the 1987 Constitution. The pertinent portion reads:

Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

Section 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.
But even without these provisions, the power of congressional inquiry is inherent in legislative power, as shall be explained below.

What is the power of legislative inquiry?

It is the inherent power of Congress or any committee thereof to conduct investigations or hearings in aid of legislation.

A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislations is intended to affect or change; and where the legislative body does not itself possess the requisite information — which is not frequently true — recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed. (McGrain vs. Daugherty, 273 U.S., 135; 71 L. ed., 580; 50 A. L. R., 1.) [From the classic case of Arnault vs. Nazareno, G.R. No. L-3820, 18 July 1950; BAR REVIEWEES TAKE NOTE!)

What is its scope?

It scope is as wide as legislative power itself. In the words of the Supreme Court, "[I]t is coextensive with the range of legislative power." [Arnault vs. Nazareno, as quoted above]

This means it is plenary (translation: all-encompassing; anything under the sun), except for constitutional matters, though the Constitution likewise provides for a mechanism that gives Congress to deal with such. More on this in another blog lecture, if Cha-Cha becomes relevant again.

In the issue of materiality, the materiality of a question that it may be propounded to a witness is determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation.

The reason is simple. Congress has to acquire accurate information to effectively legislate. Hence, this wide latitude given in congressional inquiries.

What are its limits?

Under the Constitution, the rights of persons appearing in or affected by such inquiries shall be respected.

Off the bat, I can name the right against self-incrimination.

How different is this from a court hearing?

A Congressional inquiry is more "loose" than a court hearing.

In a court hearing, the types of questions are limited to its materiality and pertinence to the issues or the subject of the case. Questions to a witness have strict rules and the manner of questioning (especially in direct examination) is very limited and should be logically arranged.

From experience, you cannot ask a "leading" question (in simplest terms, a question answerable only by a yes or a no) and all questions have some legal, logical basis or flow from the last question (the technical term is laying the predicate.)

Conducting a direct examination is one of the hardest, most tedious jobs a litigator has in a court hearing. Newbies even make scripts and rehearse their witnesses beforehand. This is good for beginners. But we experienced lawyers love to throw objections left and right in order to derail a newbie's train of thought. With a script, it is difficult to get back on track once his adversary throws and correctly objects to the line of questioning. The script, then, gets thrown out the window.

It takes experience, however, to conduct a direct examination without a script. But a scriptless examination cannot be derailed by the Jedi mind tricks of his Sith adversary. There is a downside to it also. If the witness does not know the point of the litigator, there may be surprises along the way. So it's also a good idea to discuss with a witness the line of questioning and my point in putting him in the witness stand beforehand.

(How about me? It depends. Some witnesses are too scared so I still prepare scripts. But I also explain to a witness that the script can change without prior notice. Then, we just play it by ear... Now, I'm digressing)

A Congressional hearing is more free-wheeling. "Leading" questions are allowed. A Congressman or a Senator need not have a basis for asking his subsequent questions. More importantly, there can be no objections, except when the witness' rights are to be violated.

Can Congress require the attendance of the President? Any Justice of the Supreme Court? Another Congressman/Senator?

No. Here the principle of inter-branch courtesy (or inter-parliamentary courtesy in the case of Senators/Congressmen in the other House's committee hearings ) comes in. Anyone in a co-equal capacity in the three great branches of government (Executive, Legislative and Judicial officers stated above) can attend, though, completely at their option.

This rule also insures the independence of these three branches of government from each other. If you can haul these people's arses in an inquiry, imagine what kind of pressure and/or influence a member of Congress has over the Chief Executive and the Judiciary...

How about Department Secretaries?

First, they can appear only with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. A department secretary is the alter-ego of the President in such department and hence, this special rule.

Second, written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance.

Third, interpellations shall not be limited to written questions, but may cover matters related thereto.

Finally, when the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Any more questions? (I hope not.)
So I hope you have fun watching/listening to this day's events...

A late Father's Day plug for my Dad

Well, I helped my dad put up a complainion blog for his radio program called "Kaya Mo Ba 'To?" (Can you do this?) airing every Sunday,1-2 p.m. over @ DZRM, 1278 khz.

This is an alternative lifestyle, alternative thinking show that teaches moral, physical/health, social renewal as the key to this nation's progress.

I'm also helping in the tweaks of this blog site. But they will deliver its content. That is not my field of expertise...

Please try to check it out. And visit it often.


Monday, June 20, 2005
This day in history from:

Heads or Tails: Prologue

An officemate of mine and a blogger way before I was suggested that we do some "tag team blogging."

The concept is simple: We each blog about a topic that has two sides (an ideological, societal, religious, political, legal or whatever issue, perhaps) or maybe some non-sense just to break up the seriousness of my blog...

Then we will link to each other as two sides of the issue, much like two faces of a single coin, the yin and the yang, the ebony and the ivory or (insert your favorite two-sided metaphor here).

This we will do twice a week, or perhaps more if it becomes a hit. Since we see each other often (not everyday because I'm just a consultant there), we will decide on the topics "off-blog" and probably in vino.

The other side of this coin is here.

Blog Lecture No. 10: Martial Law

Ok class! For this lecture, you may lose your lunches...let's talk about martial law...

Declaring martial law under the 1987 Constitution is not the same as the one used by Marcos (under the 1935 Constitution). The martial law provisions now are limited in scope and duration and laden with a lot of checks and balances from the other branches of government.

As our law school teachers have all said, the 1987 Martial Law provisions are all reactionary to what Marcos did, to ensure what happened then will never happen again. It also reversed all Supreme Court decisions pertaining to this power made during Marcos time.

The pertinent provisions in Article VII of the 1987 Constitution state:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or the legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

What is martial law?

Simply put, this is military rule. The President acts as the Commander-in-Chief of the armed forces.

What are the salient features of martial law today?

1. Period of martial law is limited to 60 days.

2. The power is granted to the President in cases of invasion or rebellion, when public safety requires it.

3. The President has to submit written report to Congress within 48 hours from proclamation.

4. Congress has the power to revoke or extend the proclamation by a vote of majority of all members, voting jointly. (This means 50% plus one of House members and Senators.)

5. Propriety of the declaration is always subject to review of Supreme Court and it must decide within 30 days from filing.

How is this different from suspension of the privilege of the writ of habeas corpus?

OMG! You're psychic! How did you know the topic of my next blog lecture?

Sunday, June 19, 2005
This day in history from:

Father's Day Message

Upon Jove's advise, I will postpone my blog-lecture on martial law tomorrow...

What I want to say about father's day I got as a text message from my officemate way back in 2001 that caused a major marital fight then:

"Happy Father's Day! May you have many more mothers to come..."

Now...I wish! Heheheheh! EVIL!!!!!!

Saturday, June 18, 2005
This day in history from:

Traffic from those looking for Gloriagate...

Welcome to those who "stumbled" into my humble blog!

You may be here because you just wanted to get informed about "Gloriagate."

To save you the trouble:

1. If you are looking for the "Hello, Garci" ringtone, you can download it from PCIJ's Blog, or directly here.

2. If you are looking for the "Gloriagate" transcripts, you can get it again, here. Again, this is from the brave chaps of the PCIJ and it's in .pdf format.

3. If you are looking for the "Gloriagate" audio clips in mp3 format, you can visit PCIJ's blogpost here. The mainstream media outfits such as ABS-CBN and INQ7 have likewise jumped on the bandwagon and offered the clips for download at their respective sites. INQ7 also has the Bunye-bungling CD tracks that caused all this trouble in the first place. You'll know why when you hear them.

But otherwise, feel free to read around my humble blog. You may find it... interesting. And do drop by again if you have the chance (or the bandwidth, or enough patience...)

My blog-lectures here are targetted at the periphery and not directly at the issues involved--to inform you of the laws involved in this situation so you can judge for yourselves the events as they happen.

May the truth set us free. And may God (or whoever Supreme Being you believe in) have mercy on us all.

(PS. The Unlawyer has graciously provided a better quality, 160 kbps version of the MP3 "Hello Garci" ringtone. Or you can click here. For celfones that cannot accept MP3 ringtones, the same site also has a .wav version here.)

Blog Lecture No. 9: Privacy of Communications

As a companion blog with my friend, the Sun Tsu guy, I will deliver this blog-lecture on this topic. Of course, this lecture can stand up of its own as much as his blog can.

Hold on to your hats, folks, wire-tappers and celfone users! Because this may legally extricate the central figure in Philippine current events today.

Section 3 of the Bill of Rights (Article III, 1987 Constitution) says:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

What does this mean?

Without a court order and if not done in accordance with the above-stated provision, the Gloriagate tapes are inadmissible in any proceeding and for any purpose. Including impeachment proceedings as this provision did not make any distinction...

Well, well! This is a breath of fresh air for them...or bad news for others...

What is the exemption?

Republic Act No. 4200, our good friend, the Anti Wire Tapping Act. It says:

Sec. 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence.

The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest.

All recordings made under court authorization shall, within forty-eight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.

The court referred to in this section shall be understood to mean the Court of First Instance [Regional Trial Court] within whose territorial jurisdiction the acts for which authority is applied for are to be executed.

What are the crimes involved when privacy of communications can be violated?

They are:

1. Treason,
2. Espionage,
3. Provoking war and disloyalty in case of war,
4. Piracy,
5. Mutiny in the high seas,
6. Rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion,
7. Sedition, conspiracy to commit sedition, inciting to sedition,
8. Kidnapping, and
9. Other offenses against national security

How about Coup d'etat?

Since it is a crime against national security (Article 134-A of the Revised Penal Code), it is included.

How about election fraud?

Again, unfortunately (or fortunately?), it is not included.

I'm in a hurry and I can't waste my time reading your blah-blag blog. Just give me the steps for law enforcement to obtain and use wiretaps are valid pieces of evidence.

They are:

1. Application with the RTC where the wiretap shall be made.

This should prove (a) commission or imiment commission of the above-stated crimes, (b) importance in obtaining wiretaps and (c) lack of any other readily available means.

2. Court Order to conduct the wire tap.

3. Deposit of wire tap materials to court that issued the order.

So what happens again if these are not followed?

Again, the evidence obtained shall not be admissible in any judicial, quasi-judicial, legislative or administrative hearing or investigation. (Section 4, RA 4200)

This includes impeachment cases.

So, have you seen the light?

(This is a rhetorical question, don't answer it...)

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Lord Jesus,
Teach me to be generous,
Teach me to serve You as You deserve
To give and not to count the cost,
To fight and not to heed the wounds,
To toil and not to seek for rest,
To labor and not to ask for reward,
except that of knowing
That I do Your Holy Will. Amen

May every word I speak be from Your Truth...
I ask come from Your Wisdom...
May every case I handle receive Your Guidance...
May every heart, every life I touch, feel Your Love.

And Jabez called on the God of Israel saying,
"Oh, that You would bless me indeed,
and enlarge my territory,
that Your Hand be with me,
that You would keep me from evil,
that I may not cause pain."

So God granted him what he requested.

Side Oath

The Lawyer's Oath
I do solemnly swear that
I will maintain allegiance to
the Republic of the Philippines,
I will support its Constitution
and obey the laws as well as
the legal orders of the
duly constituted authorities therein;
I will do no falsehood,
nor consent to the doing of any in court;
I will not wittingly or willingly
promote or sue any groundless,
false or unlawful suit,
nor give aid nor consent to the same;
I will delay no man for money or malice,
and will conduct myself as a lawyer
according to the best of my knowledge
and discretion with all good fidelity
as well to the courts as to my clients;
and I impose upon myself this voluntary obligation
without any mental reservation
or purpose of evasion.
So help me God.

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