‘L na L Kasi!’

It is no secret that Philippine President Noynoy Aquino (PNoy) has been widely criticized as being lazy. This criticism is not just the product of attacks by the opposition, the laziness is reflected by the lack of progress and direction the country is in under his leadership (or rather, lack of leadership). No less than Yellow-leaning writer, Boo Chanco, himself said that:

“While I thought that so-called paper of Ate Glue on P-Noy’s economic performance is so much political propaganda, I can’t help seeing the danger of this lack of early visible results damaging P-Noy’s continuing credibility. … P-Noy’s administration appears clueless on the economy because it offered too much, failed to deliver and then flip flopped.”

There is a saying that: “A leader leads by example”. I am afraid that this saying may be true and PNoy’s example is being absorbed by his allies in government like sponge absorbs water.

To demonstrate this point, let us not even delve into the half-baked economic measures the PNoy bright boys have come up with so far. Let us look at the lethargic work his allies are doing in the on-going warfare they are waging against the Supreme Court Chief Justice. In the past few days PNoy’s Congressional lapdogs have been releasing to the media their “evidence” against the CJ of allegedly owning 45 properties in Metro Manila, suggesting that most of these properties were ill-gotten. This is being done, of course, in the Court of Public Opinion and what they are engaging in is called “Trial by Publicity”. Trial by Publicity is a very intellectually lazy route to take because it mainly relies on public emotion rather than the actual merits of the case. Public emotion is very susceptible to logical flaws as discussed in my previous article. Here are some examples of the prosecution’s glib…

On the charge that CJ Corona owns 45 properties in Metro Manila, most of which the prosecution suggested to be ill-gotten, prosecutor Erin Tañada said that: “this (the Senate) is the venue to disprove the claim”. Now, under the presumption of innocence until proven guilty concept, isn’t it the prosecution’s role to prove the charges to be true? I am astonished how much the prosecution is resorting to “Shifting the burden of proof”. Suppose we say that the Presidency of the country ought to be considered vacant because we charge the incumbent President is incapacitated for he is under the mind control of a flying spaghetti monster. Are we then justified to require anyone defending the incumbent President charged to disprove the allegations by perhaps starting with proving the non-existence of a flying spaghetti monster? No! We made the assertion so it is our responsibility to prove our claim. So technically speaking, it isn’t really the CJ’s responsibility to disprove the allegations; it is the prosecution’s responsibility to prove the allegations to be true. That is why in a Court of Law (which the Senate is playing the role of in the impeachment case), the accused is always presumed innocent until proven guilty. This means that there is no element of guilt yet that the accused (i.e. CJ Corona) is supposed to disprove during or before the trial. The fact that prosecutor Tañada alludes to the notion that the Senate is the venue for the CJ to disprove the charges hurled against him is not only resorting to “Shifting the burden of proof” but it is also smacking of the “Fallacy of presupposition”. It essentially begs for an explanation for something which is not yet established. Why on Earth should the case be about “disproving” the charges? The charges have not been proven yet to be true, so what is there to disprove?

Yesterday was supposed to be the first day for the prosecution to present its evidence. But by an interesting turn of events, the prosecution asked the Court to re-arrange their order of presentation. Instead of starting with the first item in the 8 Articles of Impeachment, they wanted to tackle and present evidence for the second item. The lead prosecutor, after being questioned by the Senate President (SP) and the defense team, admitted that they were not ready to present their evidence for the first item of the Articles of Impeachment. The embarrassment drew laughter amongst the Senator-Judges and spectators. It is indeed funny how eager they are to impeach the CJ and to present their proof to the media yet in the actual Court they are empty-handed. When given a sign of leeway by the SP on their proposition to re-arrange the order of their presentation, the prosecution team was again met with another embarrassing situation. The prosecution wanted to submit as evidence “certified copies” of documents that they claim would prove that the CJ owned the alleged ill-gotten properties. But when asked to present attestation to the authenticity of the “certified copies”, the prosecution team again came up short.

The lead prosecutor asserted that the copies they wish to present ought to be accepted as evidence because these are copies of public records and are “computer generated”. But just because these documents are “computer generated”, this does not mean these are duly authenticated! I work in the Pharmaceutical and Medical Device industry and we deal with 21 CFR Part 11 which deals with Electronic records and signatures. For the electronic documents to be accepted they have to show that the equipment used passed proper qualification (Installation Qualification, Operational Qualification, Performance Qualification, etc.) and validation; there has to be proper traceability and audit trail, especially to the person responsible for generating the data/document.

Let us not even predicate the issue with a different realm (Pharma and Med Devices)… let us just go with the Rules on Evidence as described in the Rules of Court. The prosecution was correct to suggest that the copy they wish to present ought to be accepted because it is a public record. (Rule 130, B.1.d). However, they merely stopped at that point and seem to have failed to look at other important aspects of the Rules on Evidence. What they are trying to present is considered “Secondary Evidence” and the pertinent rule on their Secondary Evidence states that the contents of the document may be proved by a certified copy issued by the public officer who holds the original. SP Enrile was correct to ask for a witness who will testify to the authenticity of the secondary evidence the prosecution wishes to present. Now if we go with Rule 132, B (Authentication and Proof of Documents), notice that Section 25 states that the copy must be attested to through an official seal of the attesting officer or by the clerk of court. Now if these documents are considered public records of private documents, Section 27 states that the legal custodian of the record must attest to the authenticity of the record and the officer must hold an appropriate certificate showing that he or she indeed has custody of the record.

Even if we go by the more specifically pertinent rules, Rules on Electronic Evidence, it clearly states that under Rule 5, Section 2, the documents must be authenticated by either any of the following:

(a) by evidence that it had been digitally signed by the person purported to have signed the same;

(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

The prosecution’s attempt to present their evidence fell flat upon failure to authenticate the documents.

To save face, prosecutor Sonny Angara said that the notion that the prosecution was “not prepared” is a misconception. He claims that the prosecution team came to Court with “at least over a hundred documents, land titles, etc. and deeds of sale”. But even if they came to Court with a million documents but if the documents are inadmissible or at least questionable according to the Rules on Evidence (and Electronic Evidence) as mandated by the Rules of Court, this hardly means that they came in prepared!

It is unfortunate that the intellectual and legal laziness of the prosecution is adding to yet another item in the long list of items the PNoy administration has bungled. Palibhasa “L na L” kasi ang leader kaya “L na L” din ang prosecution team nya. Of course, “L na L” means…. “Lazy na Lazy”.

[Photo courtesy Katy Kelleher.]

Hector Gamboa

Calling a spade, a spade…