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Short cuts

SEARCH FOR TRUTH - Ernesto P. Maceda Jr. (The Philippine Star) - March 27, 2021 - 12:00am

Around the world, the response of legislatures to the anxiety about drugs is to enact reverse onus provisions. These are short cuts resorted to in order to convict the big fish. At home, the House has already passed H.B. 7814 on third and final reading. This bill presumes certain individuals to be criminals, even if not actually caught in flagrante or proved by evidence to have committed a crime. This burden of establishing guilt is made much lighter for it can now be done on the strength of circumstance.

In short, should this bill become law, the long-established rule that the prosecution should prove each and every element of the crime will now be reversed. For those for whom these presumptions will apply (the bill contains 30 presumptions), including: the landlord of a dwelling used as a drug den; those who happen to know a person who turns out to be an importer or exporter and “helps” him evade arrest; anyone who sends money to a person who happens to be linked to an importer or exporter, the burden is on them to prove their innocence. In the meantime, they’re thrown in jail.

Blackstone’s ratio. Are you more comfortable with the thought of punishing an innocent person or the prospect of allowing a guilty man to go free? Your answer informs your perspective in the debate on these proposed statutory provisions. The eminent English Jurist William Blackstone, channeling old testament values, is credited for the formulation that is the foundational principle for the constitutional presumption of innocence: It is better that 10 guilty persons escape than that one innocent suffer.

In an era wheN governments’ hands are full battling the scourge of terrorism and illegal drug cartels, it is really tempting to get enamored of approaches less reverent of individual rights. The US itself reversed centuries of human rights leadership (except against minorities) in the wake of 9/11. Vice President Dick Cheney, when asked to justify the death of an inmate detained on a case of mistaken identity, erupted with: “I’m more concerned with bad guys who got out and released than I am with a few that in fact were innocent.” This was more Bismarck, Pol Pot, Che Guevara than one would expect of the world’s leading standard of individual freedoms.

The bill’s presumptions are rebuttable, according to author Surigao del Sur Rep. Ace Barbers. Had they been irrebuttable, then that would be anathema to the constitutional protection. Judicial rules that shift the burden of proof should situations dictate it during the trial have become part and parcel of procedure. The presumption of guilt from an accused taking flight is the usual example. But if written into law and the accused statutorily presumed guilty the moment he is charged, this will be constitutionally problematic.

Shakespeare channeling Nostradamus. Famously, in the bard’s Henry VI, a scheming villain uttered this world famous obloquy of the legal profession: “The first thing we do, let’s kill all the lawyers.” I stand with those who read this as an opaque compliment on how lawyers guard against assaults on order.

This week, the Supreme Court released its formidable statement condemning the spate of killings of lawyers, judges and prosecutors. It has been hailed for its impact but acknowledged as rare for two reasons. The Court has not spoken out all this time despite the burgeoning body count. More importantly, it was surprising because the Court barely ever speaks as an institution on a matter other than an actual case or controversy before it.

Officers of the Court. The legal profession is regulated by the Supreme Court on matters of pleading, practice and procedure. In the lawyer’s oath, their status is affirmed as officers of the court. Supreme Court rules used to be subject to repeal, alteration or supplement by the Batasang Pambansa under the 1973 Constitution. But this concurrent jurisdiction has been removed under the 1987 Constitution. Now the regulatory power over lawyers is exclusively the Court’s.

The functioning of the profession is critical in upholding public access to justice. The Constitution highlights the right to counsel, guarantees of fair and speedy trials and the independence of the judiciary. Basic principles on the role of lawyers adopted by the UN in Havana last 1990 state that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.

It is not just the duty of the state but also its obligation to safeguard the independence and security of the profession and to provide them with a professional environment free from harassment, intimidation and reprisals.

The Senate’s wise men, its eight lawyer-members, crossed party lines to file a resolution expressing the Sense of the Senate strongly condemning the killings. Resolution 691 was unanimously passed, with all senators made co-authors. With the Senate sounding its united voice, we have legislature and judiciary again in concurrence in standing with a profession under attack. Last Thursday, the Palace also shared the President’s concern about the deaths of his brother lawyers.

First Filipino. Dr. Deo Florence Onda, UP Associate Professor and Deputy Director for Research at its Marine Science Institute, became the first Filipino, and among the first in the world, to hit the third deepest point ever reached on earth. Dr. Onda descended down to 34,100 feet in the Philippine Trench. He was partnered in the effort by world famous American explorer Victor Vescovo, the first man to go deepest at 35,872 feet, also in the Trench. For perspective, the effort is at least akin to scaling the summit of the highest mountains. Mt. Everest is 29,029 feet about sea level.

Accompanying Dr. Onda on the descent was the Philippine flag which he proudly waved. At least we are able to see our own flag waving above a geographical feature before another flag starts waving above it.

Happy birthday, Dad. Our heartfelt appreciation to all who remembered that yesterday was Manong Ernie Maceda’s birthday. He would have been 86.

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