Dissension in the Court: December 2010

The following are decisions promulgated by the High Court in December 2010 where at least one Justice felt compelled to express his or her dissent from the decision penned by the ponente.

In this episode, the search for truth takes center stage.  “What is the truth? Is truth unchanging law? We both have truths? Are mine the same as yours?” (from Tim Rice and Andrew Lloyd Webber’s Jesus Christ Superstar).

1.            You Can’t Handle the Truth (Mendoza, Corona, Brion, Bersamin, Perez, Leonardo-de Castro and Peralta vs. Carpio, Carpio-Morales, Nachura, Abad and Sereno)

Acting on a campaign promise which was ultimately incorporated into his inaugural speech, President Benigno Aquino issued his first Executive Order creating the Philippine Truth Commission of 2010 tasked, among principally, to “seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor.”

Not long after the issuance of Executive Order No. 1, two petitions were filed with the Supreme Court, one by a taxpayer and another by legislators, questioning the legality of the creation of the Truth Commission.  In December 7, 2010, the Supreme Court promulgated its decision in Louis “Barok” C. Biraogo vs. The Philippine Truth Commission of 2010 / Rep. Edcel C. Lagman, et al. vs. Exec. Sec. Paquito N. Ochoa, Jr., et al.

The Honorable Justice Jose C. Mendoza began by disposing of the legal standing issue, confirming that the petitioner-legislators had the requisite standing to challenge Executive Order No. 1 as they are allowed to question the validity of any official action which, to their mind, infringes on their prerogatives as legislators.  As for “Barok” Biraogo, although the Court conceded that he is a nontraditional plaintiff, he does possess the requisite legal standing given the transcendental importance of the case.

The Court discussed the possible legal bases that could support the creation by the President of the Truth Commission and resolved each of these as follows:

  • The creation of the Truth Commission cannot be supported by Section 31 of the Revised Administrative Code which grants the President the power to restructure the internal organization of the Office of the President.  Restructuring implies the reorganization of already existence bodies or offices.  As the Truth Commission is a new office, that provision of the Revised Administrative Code is unavailing.
  • The creation of the Truth Commission cannot be justified by the President’s power of control. Control is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter.  This power is different from the power to create public offices.
  • The creation of the Truth Commission cannot find statutory basis in Presidential Decree No. 1416, as amended by P.D. No. 1772, which granted the President the continuing authority to reorganize the national government, including the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities, transfer appropriations, and to standardize salaries and materials, since this law was issued only in relation to providing for a transition towards a parliamentary form of government.  That statute therefore, is functus oficio.
  • The creation of the Truth Commission, however, can be justified under the Constitutional authority of the President to ensure that all laws be faithfully executed, which includes therefore the power to create ad hoc committees to conduct investigations and other fact finding activities.

However, according to Justice Mendoza, even as the President may have the power to create a Truth Commission, Executive Order No. 1 is unconstitutional for having transgressed the equal protection clause of the Constitution which clause, says the majority, is aimed at all official state actions and not just the legislature.

The majority decision reiterated the equality principles underpinning the equal protection clause and outlined the essential elements for permissible classifications based on the standard of reasonableness: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.

Applying these tests to Executive Order No. 1, Justice Mendoza ruled to strike the order down as unconstitutional for being violative of the equal protection clause given that the clear mandate of the envisioned Truth Commission is to investigate and find out the truth “concerning the reported cases of graft and corruption during the previous administration” only. This intent to single out the previous administration is plain, patent and manifest in the very language of Executive Order No. 1.

For the majority, the Arroyo administration is but just a member of a class, that is, a class of past administrations and it is not a class of its own. Said the ponente, “[n]ot to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction.  Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.”

Before rendering the dispositive portion of the decision, Justice Mendoza however advised that ‘[l]est it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration.  Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution. Of all the branches of the government, it is the judiciary which is the most interested in knowing the truth and so it will not allow itself to be a hindrance or obstacle to its attainment.  It must, however, be emphasized that the search for the truth must be within constitutional bounds for ‘ours is still a government of laws and not of men.’”

The majority decision spawned five dissenting opinions in addition to six separate opinions that supported the conclusions of the majority.  A virtual judicial brawl.

The dissenting opinions that were handed down all took exception to the ruling that Executive Order No. 1 violated the equal protection clause.

One of the more significant common themes that thread through the colorfully-worded dissenting opinions by pointing to the previous administration of President Arroyo, Executive Order No. 1 does not violate the standard of reasonable classification.  Contrary to the reading of the majority, the dissenters believe that by the language Executive Order No. 1, its investigative functions are not limited to the immediate past administration although it is being prioritized.  And such prioritization, which can be supported by important considerations, does not contradict the equal protection clause.  By its nature, investigations, like prosecutions, must be focused on specific persons or incidents and it is not unconstitutional for the President to do so through the Truth Commission.

(Louis “Barok” C. Biraogo vs. The Philippine Truth Commission of 2010 / Rep. Edcel C. Lagman, et al. vs. Exec. Sec. Paquito N. Ochoa, Jr., et al.; G.R. No. 192935 & G.R. No. 19303, December 7, 2010.

(author’s note:  this author is still grappling with the concept espoused by the majority that the previous administration cannot be made a class of its own in the context in which Executive Order No. 1 implies.  Classifications—even by the Supreme Court—for way smaller things have been done in the past.  Moreover, this author subscribes to the view that fact-finding and investigations are necessarily focused and specific and it would seem to this author to be overreaching to strike down an act of the President that seeks to conduct an investigation or fact-finding into a specific matter just because he is not including all that may possibly constitute the rest in that activity.

On a separate matter, this author feels that it would have spared the President a lot of anguish if he proceeded with his objectives to investigate graft and corrupt acts conducted during the Arroyo administration with the use of existing, available tools such as the Department of Justice.  Instead, he opted to grandstand a little bit by creating a special Truth Commission, thereby inviting political opponents to craft innovative, if curious, legal theories).

2.            A Tangled Webb (Abad vs. Villarama)

Though the gruesome 1991 murders of Estrelita Vizconde and her daughters Carmela and Jennifer was most unspeakable, it was then the only talk of the town.  Almost two decades later, when the decision of the Supreme Court in Lejano vs. People of the Philippines and People of the Philippines vs. Webb, et al was handed down, it once again became the topic of every conversation in the country.

Hubert Webb, Antonio Lejano, Michael Gatchalian, Hospicio Fernandez, Peter Estrada and Gerardo Biong were accused of committing the hideous crime, detained and in January 2000, after four years of hearings, were later found guilty by the Regional Trial Court of Parañaque.  A plethora of evidence was presented and adduced during the trial, including evidence intended to support Webb’s alibi that he was in the United States on the day the crime took place as well as the testimony of Jessica Alfaro, who claimed to have been with the group of the accused (save for Biong) when the murders were committed.

In January 2000, the trial court rendered a guilty verdict on the accused, imposing a penalty of reclusion perpetua on all except Biong, who was given indeterminate prison term of eleven years.

The Court of Appeals affirmed the guilty verdict sometime in 2007 and the case made its way to the Supreme Court.  During the course of the Supreme Court’s deliberations on the case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmela Vizconde’s cadaver, which was then believed to be with the NBI.  However, the NBI responded by informing the Supreme Court that it no longer had the specimens and that these had been turned over to the trial court.  However, the trial record showed that such specimen was not among the evidence offered by the prosecution during the case.

This development prompted Web to file a motion for his acquittal on the ground that the government failed to preserve vital evidence in violation of his due process rights.

In the combined cases of Lejano vs. People of the Philippines and People of the Philippines vs. Webb, et al, therefore, the principal issues addressed by the Supreme Court were: (a) whether or not Webb should outright be acquitted for the government’s failure to produce the semen specimen, (b) whether or not Alfaro’s testimony is entitled to belief, and (c) whether or not Webb had presented sufficient proof to support his alibi.

Writing for the majority, Justice Roberto Abad ruled on the first point that the government cannot be faulted for not presenting the semen specimen. According to Justice Abad, citing U.S. jurisprudence, “due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police.”  In addition, the ponente points out that the rules on DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence, at the time the DNA issue was raised.

With respect to the credibility of Alfaro as the principal witness of the prosecution, the majority took note of seeming inconsistencies in her testimony as well as factual accounts given by her that appeared to the High Court to be implausible if absurd.  As a result, the Court concluded that Alfaro’s testimony should not have been accorded the weight it was given by the lower courts.  The same conclusion was reached by the Court with respect of other prosecution witnesses presented to corroborate the testimony of Alfaro.

Finally, on Webb’s alibi that he was in the United States at that time, Justice Abad took issue with the trial court’s decision that Webb’s alibi cannot stand against Alfaro’s positive identification.  He admonished the trial court, insinuating that it arrived hastily into that conclusion.  Said Justice Abad, “[a] positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it.  A lying witness can make as positive an identification as a truthful witness can.”

For a positive identification to be acceptable, it must satisfy the following:

  • the positive identification of the offender must come from a credible witness.
  • the witness’ story of what she personally saw must be believable, not inherently contrived.

Alfaro and her testimony fail to meet the above criteria.

The Court notes that Webb produced various travel documents including his passport and certifications issued by U.S. immigration officials.

On the lower court’s assertion that the passport cannot be given evidentiary weight because the original was not left with the court, Justice Abad noted that it is not necessary to do so where the parties stipulate that the copy left with the court is a faithful reproduction of the original.  And as Webb’s not having been able to present the actual immigration official who prepared certifications on Webb’s United States arrival and departure that validated the stamps of Webb’s passport, the majority held that this was unnecessary as “Webb’s passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued.  The entries in that passport are presumed true.  x  x  x  The officers who issued these certifications need not be presented in court to testify on them.  Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record.”

Although official records that carry the presumption of truth are not immune from challenge, the Court observed that the prosecution in this case did not present any impeaching evidence.

The majority of the Court concluded that Webb’s documented alibi altogether impeaches Alfaro’s testimony, not only with respect to him, but also with respect to rest of the accused. “For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaro’s testimony will not hold together.  Webb’s participation is the anchor of Alfaro’s story.  Without it, the evidence against the others must necessarily fall.”

Justice Martin S. Villarama penned the dissenting opinion to which Justices Brion, Leonardo-De Castro and Chief Justice Corona acceded.

In the dissenting opinion, Justice Villarama meticulously sifted through the prosecution’s evidence that supported the conviction and also evaluated the evidence given by each of the accused in their defense.   Unlike the majority, the dissenters believed that the prosecution’s evidence, particularly the testimony of the eyewitness Alfaro, constituted credible evidence.

Justice Villarama notes that the determination of the competence and credibility of a witness rests primarily with the trial court, because it has the unique position of observing the witness’ deportment on the stand while testifying.  Further, he adds, that it is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors, gross misapprehensions of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings.  When the trial court’s findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon the Supreme Court.

In sustaining a judgment of conviction, the dissenting opinion explains that two crucial points must be considered:  first, the identification of the accused as perpetrator of the crime, taking into account the credibility of the prosecution witness who made the identification as well as the prosecution’s compliance with legal and constitutional standards; and second, whether or not all the elements constituting the crime were duly proven by the prosecution to be present.  In this case, the prosecution complied with these requirements.  No one has doubted the commission of the crime.  As for the identification of the accused, Justice Villarama states:

Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution.  Both the RTC and CA found the eyewitness testimony of Alfaro credible and competent proof that appellants Webb, Lejano, Gatchalian, Fernandez, Rodriguez and Estrada were at the scene of the crime and that Webb raped Carmela as the bloodied bodies of her mother and sister lay on top of the bed inside the master’s bedroom, and right beside it stood Lejano while Ventura was preparing for their escape.  At another house in BF Executive Village where the group retreated after leaving the Vizconde house, Alfaro witnessed the blaming session, particularly between Ventura and Webb, and thereupon learned from their conversation that Carmela’s mother and sister were stabbed to death before she herself was killed.  Alfaro likewise positively identified appellant Biong, whom somebody from the group described as the driver and bodyguard of the Webb family, as the person ordered by Webb to “clean the Vizconde house.”

The testimony of Alfaro on its material points was corroborated by Birrer, Dr. Cabanayan, White, Jr., Cabanacan and Gaviola.  Appellants’ presence at the scene of the crime before, during and after its commission was duly established.  Their respective participation, acts and declarations were likewise detailed by Alfaro who was shown to be a credible witness. It is axiomatic that a witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent on cross-examination is a credible witness.

On Webb’s alibi defense, the dissent reminded that alibi is an inherently weak and unreliable defense, it being easy to fabricate and difficult to disprove.   Thus, the accused asserting alibi must prove (a) that he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.  Alibi must be supported by clear and convincing proof.

On this point, the dissenters observed that Webb’s claim that he left for the United States on March 9, 1991 and returned to the Philippines only on October 26, 1992 was correctly rejected by the lower courts. Said Villarama, “Given the financial resources and political influence of his family, it was not unlikely that Webb could have traveled back to the Philippines before June 29-30, 1991 (when the crime was committed) and then departed for the US again, and returning to the Philippines in October 1992.  x   x   x   There clearly exists, therefore, such possibility of Webb’s presence at the scene of the crime at the time of its commission.”

The dissenting opinion then opted to affirm the findings of the lower courts that the various documentary evidence submitted by Webb to support his defense were either inadmissible, incompetent or irrelevant.

Accordingly, in Justice Villarama’s opinion, Webb’s defense of alibi cannot be sustained where it is not only without credible corroboration, but also where it does not, on its face, demonstrate the physical impossibility of the accused’s presence at the place and time of the commission of the crime.  Against positive evidence, alibi becomes most unsatisfactory.  It is only when the identification of the accused is inconclusive or unreliable that alibi assumes importance.  As far as the dissenters’ are concerned, such was not the situation in the case where the identification of the perpetrators by a lone eyewitness satisfied the moral certainty standard.

The dissenting opinion thereafter dissected the defenses put up by the rest of the accused but arrived at the same conclusion that the findings of the lower court, including that there was conspiracy amongst the accused, were supported by adequate evidence and hence their conviction should be upheld.

(Antonio Lejano vs. People of the Philippines / People of the Philippines vs. Hubert Jeffrey P. Webb, et al.; G.R. No. 176389 / G.R. No. 176864. December 14, 2010. See dissenting opinion here.)

(author’s note:  This case was ultimately resolved not so much on the basis of interpreting the applicable law, but on how credible each individual Justice perceived the witnesses and evidence to be. Thus, it is not implausible, as can be seen throughout the history of this case, that different individuals will have disparate views in their appreciation of evidence.  That’s just the way we humans are made.  The decision in a case like this could therefore go either way depending on how credulous or doubting the Court is on balance [which may explain why many people become hugely interested in the composition of the High Court].

The other interesting thing here, at least to this author,  is that the conviction twice given—at the trial court and at the Court of Appeals—was overturned by the vote of 7 out of a 15-man Court, or less than a majority of the Court, but a clear preponderance of the 11 participated.   Not taking part in a decision is often resorted to in order to avoid the appearance of partiality. But not taking part in a decision, especially where one is convinced of his own impartiality or more so, the truth, can have a profound impact in the dispensation of justice. Appearance of partiality or the dispensation of justice—which should we value more?

As a final note, this author just wants to note that no matter which side you are on, there should be something to be said about the fact that a crime committed in 1991 is finally resolved only in 2010.)