Friday, November 30, 2012

SCARY & SHALLOW!



SCARY & SHALLOW!

By BERTENI CATALUÑA CAUSING
President of Alab ng Mamamahayag (ALAM)
President of Hukuman ng Mamamayan Movement, Inc. (HMMI)
Author of the book entitled “Simplified Libel Law in the Philippines”


                Scary and shallow!

                Scary and shallow indeed is the decision penned by Court of Appeals Justice Leoncia Real-Dimagiba that virtually gave freedom to Palawan’s ex-governor Joel T. Reyes and Coron Mayor Mario Joel T. Reyes.

                In reversing the resolution of the “second” panel of investigators finding ex-Governor Reyes and Mayor Reyes probably guilty of masterminding the murder committed against lowly broadcaster Dr. Gerry “Doc Gerry” Ortega, Real-Dimagiba declared that the act of Department of Justice Secretary Leila De Lima in creating the second panel was done in grave abuse of discretion.

                If a court ruled an act as done in grave abuse of discretion, it means it is null and void. In simple language, it is as good as it did not happen.

                It is a doctrine in law that when an act is declared null and void, all that resulted from that is also null and void.

                So that it means that if the creation by De Lima of the second panel of investigators is null and void as ruled by Justices Real-Dimagiba, Ramon A. Cruz and Myra V. Garcia-Fernandez, it also means that the decision of the “second” panel is null and void.

                If the three CA justices were correct, then the indictment of the two Reyeses for murder is also null and void.

Why scary?

                It is scary because the poor quality of the decision of Justice Real-Dimagiba is a proof that there is a possibility that the cases filed in the Court of Appeals are in a clear and present danger of getting decided with low quality.  It is a kind of travesty of justice.

                But what is scarier is the fact that the CA justices did not try to weigh the evidence of murder when they saw a perceived error in the procedure used in looking at the evidence.   

This also means that the people seeking justice in the appellate court are possible to be victims just because the CA has the tendency of setting aside altogether the weight of evidence in favor of perceived errors committed by prosecutors in the use of the procedures of preliminary investigation.  To think, the complainants should not be faulted for the faults of the prosecutors!

                Why shallow?

                First, with due respect to the writer of the decision and those who concurred in Justice Real-Dimagiba’s judgment, they ignored discussing the weight of the evidence of murder against the perceived abuse of De Lima in creating the “second” panel of investigators instead of deciding the earlier petition for review filed by the widow of Doc Gerry.

                If only the CA justices examined the evidence against the perceived error of De Lima, perhaps Justice Real-Dimagiba could see the compelling reason to set aside mere errors in the procedure employed in conducting the investigation.

                It is worth noting that the decision of the CA justices itself says that De Lima created the “second” panel to look into the new set of evidence submitted by Patria Gloria, the widow of Doc Gerry.   But it says that the means was unacceptable yet the justices did not say that the same means was not for the sake of justice.

                So that the act of disregarding the evidence and the findings on evidence done by the “second” panel and the act of putting premium to the creation of the “second” panel as a big error, was indeed shallow for the CA to say outright that the creation of the “second” panel was an act of grave abuse.

                There was no grave abuse of discretion.

                Contrary to the ruling of Real-Dimagiba, this author strongly opines there was no evidence of grave abuse of discretion.

                First, Real-Dimagiba herself ruled that Secretary De Lima has the power to create a panel to conduct a reinvestigation and that the same panel was within the discretion to conduct a reinvestigation.

                To see this, let the ruling of Real-Dimagiba, found in the second paragraph of Page 33 therein, be read:

                “We admit that the creation of the Panel is generally well within the authority of the Secretary of Justice.  We also admit that the conduct of reinvestigation by the DO-170 (Department Order No. 170 creating the second panel) having been mandated upon it by the Secretary of Justice is generally within its authority.”

                Then, Real-Dimagiba ruled that Secretary De Lima exceeded her discretion when she refused or failed to exercise her power to review the resolution of the original (first) panel and instead created another panel of prosecutors to conduct the reinvestigation because Real-Dimagiba’s company did not see any compelling reason for De Lima to do so.

                To this, the author begs to disagree.

                Secretary De Lima’s act of refusal or failure to do the review of the petition is within the limits of her power.  Together with the power to review is also the power not to review.  After all, to review is not a duty to review.  An authority has the option whether to exercise or not to exercise a power given it by law; upon the other hand when a duty is the one given the authority has no choice but to perform it.

By choosing not to exercise the power to review the petition and exercising a power that is inconsistent with review is in itself a tacit act of throwing out or dismissing the petition and ordering a new hearing.  Ordering a new investigation is part of the residual or reserved powers of review that includes the power to remand to the lower level body to do the act that was not done during the preliminary investigation but ought to be done first by the lower body before a review can be had.

It is like the Supreme Court remanding a case to the trial court to conduct hearings on an issue of fact that was forgotten to be resolved during the trial, or to look into new evidence that showed up only later on appeal but which new evidence has the potential to alter the outcome of the case.

Additionally, Secretary De Lima was correct in remanding the case to the lower level and in doing so she chose to remand the same to a new lower-level body she created that impliedly replaced the first panel.

She was correct in remanding because the power of review is nothing more, but review. 

If one body is only reviewing, it has no authority to look at new evidence.   

And because the widow of Gerry Ortega filed a motion seeking to consider new set of evidence consisting of text messages between ex-Gov Reyes and the middle man to the gunman and CD records of the radio programs of Doc Gerry, De Lima had no power to proceed with the act of reviewing while being prompted with the new evidence she would see for the first time.  Looking at it for the first time is not second view or, in other words, not re-view, or not looking at it again.

If the author were the justice to decide the issue, the author would dismiss the petition for review filed by the lawyers of the Reyeses upon the reason that they failed to exhaust the remedies available at the level of the panel and the Secretary of Justice. 

The counsels of the Palawan politicians should have filed first a Petition for Review of the resolution of the second panel or simply a motion for reconsideration.

This is so because there was no more petition for review from the first panel that existed owing to the remand of the case to the lower level, although the lower level this time was already the new panel that was created within the limits of discretion of the Secretary of Justice. In opting to replace the first panel with new members the obvious purpose was only for fairness and fairness can never be an act of impartiality.

After all, the Reyeses were even given the opportunity by the second panel to file their response to the new evidence but they chose to go to the Court of Appeals.

                Remember, justice is a function of evidence, not the means.
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