By Fr. Ranhilio Callangan Aquino

One reason the public complains about prosecutors and judges is that the rules of reasoning in the law?what conclusions can be drawn and what cannot?are not the usual rules by which the average individual infers and deduces. Let us start with a very simple example. When the police find sachets of shabu or marijuana leaves stashed away in some concealed nook of one?s house, what seems to be obviously established is that one is in possession of prohibited substances. Many would even be prepared to go farther: One is a dealer or a ?pusher?. The prosecutor or the judge, however, will first want to know: What were the law-enforcement officers doing inside the house? Were they there by virtue of a validly issued warrant? No matter how seemingly foregone the conclusion might be that one is in possession of prohibited substances, if the police cannot advance a valid reason for their presence in the house and for the search, the inevitable (albeit counter-factual) conclusion of the prosecutors and judges will be that one cannot be held liable for illegal possession of prohibited substances, much less of dealing in them!

A second example should bring the point home even more clearly. When investigators take in a notorious neighborhood gangster for questioning after he is identified by neighbors as the last person seen alive with a rich neighbor who is later found shot after having been robbed, and the suspect, after some grilling, tells the investigators: Huwag na natin patagalin ito. Ako ang gumawa, again ?common sense? will allow the case to rest there, with the suspect admitting his guilt. In law, this is not so, because if the obviously repentant suspect did not validly executive a waiver of his right to counsel, that clear, unequivocal admission of guilt would be inadmissible in court?and if that were all that the prosecution had to go by, it would lose its case, and the accused would be acquitted. In a criminal case, by virtue of a constitutional provision, the cards are stacked in favor of the accused, and against the prosecution.

Our rules of evidence, that include rules of admissibility, are not only crafted to enable courts to answer the question: ?What really happened?? If that were the only concern, then admissions and confessions made under duress or torture would be welcome as would unauthorized recordings of tapped conversations. But spouses are not normally allowed to testify against each other, un-counselled confessions are not admitted without due waiver of the right to counsel, ?fruit of the poisonous tree? ?the result of illegal arrests, searches and seizure?is rejected by the courts no matter how luscious the fruit. Clearly then getting at ?what happened? is not the only value the rules of evidence promote. The so-called ?exclusionary rules? that exclude certain types of evidence of questionable provenance are meant principally to safeguard the private space of the individual as well as his physical, moral and spiritual integrity.

Then too, there is the question of how much proof you need. Most Pinoys demand very little to draw conclusions, and perhaps that is part of our national malady: a propensity for ill-grounded and unwarranted conclusions. When word goes around?and it does very quickly here in the Philippines especially because almost all Pinoys can boast of ?text? savvy?that Malakas bribed Maganda, and the passbook of Malakas shows substantial withdrawals while Maganda?s bank records show interestingly considerable deposits at approximately the same time, then it is tempting to conclude that Malakas did in fact bribe Maganda. By the precepts of legal logic, however, the most one has is ?some reason to suspect,? because the talks of bribery alone do not supply the necessary nexus to establish that what came out of Malakas? account entered that of Maganda unless one has made sure that the talks are liable or trustworthy. To prosecute, one will need ?a well-founded suspicion?? which is definitely more than just suspicion, what rules of criminal procedure call ?probable cause?. To convict, one will need ?proof beyond reasonable doubt??the exclusion of all doubt arising from the way things normally go (what is technically called ?moral certitude?).

I am concerned with the way trial courts often cite Supreme Court statements on matters of evidence. As a general rule, the Supreme Court creates binding precedent when it reasons through a conclusion to a question of law. In other words, it is the so-called ratio decidendi that creates doctrine. When the high court for example holds that the Legislature may only invite officials of the Executive branch when conducting oversight inquiries and may not compel their attendance, that is indeed doctrinal. But there is so much that lower courts routinely quote from the Supreme Court on matters of evidence that, to me, is not doctrine at all. One example of this is the oft-quoted line: ?In a rape case, when the victim clearly testifies that she has been raped, she has said all that the court needs to know.? What is that supposed to mean?that the trial court must take as a matter of fact that a woman was raped just because she clearly declares she was raped? That would be to make doctrine out of a non sequitur. Another of my favorite lines is: ?When the testimony is straightforward, unhesitating and consistent in its main points, it is worthy of credence??and that, of course, is exactly the testimony you will get from a seasoned, or well-rehearsed liar as from a truthful witness. The point I am trying to make is that when the Supreme Court makes generalizations of this sort, these are not really doctrinal or precedent-setting because they are statements of an epistemological character, statements on the theory of knowledge that we can agree on after reasoned and learned discussion but that cannot be canonized by Supreme Court pronouncement. What all this ultimately means is that rather than quoting some generalization by the high court, the judge should exercise her powers of discernment and her critical faculties that enable her to sift the veridical from the prevaricated.

In respect of evidence, I have always tended toward the positivist side. I refuse to conclude more than the evidence I have on hand allows me to. According to the rubrics of logical positivism, one is to refrain from using terms for which one cannot provide a logical account. If you intrepidly declare: ?This man is noble?, you better be prepared to account for use of the term ?noble?, and when all that you can say is that for one reason or the other you admire him, then according to logical positivism, that is what your statement of admiration?This man is noble?will mean, nothing more, nothing less. Similarly, if you say: Malakas bribed Maganda, you must be prepared to give an acceptable account of that declaration. If all that you mean is that you suspect, because of a ?concatenation of circumstances?, that Malakas bribed Maganda, then all that your statement? ?Malakas bribed Maganda? ? means is: ?I suspect that Malakas bribed Maganda?.

This is not being picky, nor is it splitting hairs. It is being logical, being reasonable. While I am not declaring all prosecutors and all judges innocent of wrong-doing?for some have indeed betrayed the sacred trust reposed in them?we would be less troubled when prosecutors and judges arrive at findings disparate from what common-folk take to be a foregone conclusion.

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There are so many events we mark with holidays in this country, but for too long now, we have passed over March 16 in silence.  This is not fair.  Today, in 1521, Ferdinand Magellan brought our islands to the attention of the Spanish court commencing what would virtually be four centuries of Spanish presence in the Philippines.  There is every reason to celebrate March 16 with full acceptance of what we are as a people and our history.  The four-hundred year presence of the Spaniards in the Philippines shows itself in our skin, in our political organization, in our religion and in our churches, in our language and in our expressions and in the name of our country itself.  It is not fair that we pass over March 16 as if we wanted to forget about it.  There is no doubt that Magellan was an intrepid navigator; there is similarly no doubt that he was aflame with the desire to win glory for Spain, for the Catholic Church?and doubtlessly for himself,

but it does not do justice to us as a people and to our history to try to be forgetful of March 16.  Lapu-lapu killed Magellan, that is true, but it is not really clear whether he killed Magellan because Magellan was a white man or whether he would have killed anyone, fellow-Visayan even, who dared trespass his turf.  We can keep them both, however, as heros: Lapu-lapu and Magellan.  As children we were taught: ?Magellan discovered the Philippines on March 16, 1521.?  In these more sophisticated times we would like to qualify the word ?discovered??but whatever else we would like to say, today, Magellan brought the Philippines to the attention of the leading powers of the mid-16th century.

rannie_aquino@rannieaquino.com