Tuesday, December 25, 2012

Right of appeal of accused must not be forfeited upon lawyers’ negligence in any case

A thesis:

Right of appeal of accused must not be

forfeited upon lawyers’ negligence in any case

Author of book entitled “Simplified Libel Law in the Philippines”

Should the courts forfeit the rights of the accused to appeal from judgments if they desired to appeal but their lawyers failed to do so or if they filed their appeal through their lawyers but their counsels committed lapses in complying with reglementary periods to file the appellant’s briefs?

No! The courts have no right to do that.

The author about to blow birthday candles on Dec 10, 2012
 Here, the author exposes the brute jurisprudence on this aspect as if the courts breach their duties as agents of the State to send a message of goodwill to the world.

Additionally, the writer urges the Supreme Court to modify its rule on reliefs given to accused who have become victims of their lawyer’s gross negligence. 

This modification is indispensable for the State of the Philippines to avoid the impression that while the country signed treaties and conventions to promote fundamental human rights of liberty and fight off torture, it is actually unwittingly committing acts that are inhuman and degrading.

This thesis concludes it is unreasonable for the Supreme Court to require from the accused to prove they diligently followed up their cases before relieving them from the gross negligence of counsels.

Complexity in the face of simplicity

Basically, the rule is a simple statement: that only the guilty can be punished. 

But behind this simplicity of the statement lies the reality of the puzzles no courts in the world have untangled.

The only situation where correctness of judgment is almost not an issue is when the accused pleads guilty.  It is almost” because of the possibility that there are persons who plead “guilty” although they should be innocent, for convenience or whatever other reasons. 

Reasonably, there is also no issue of conscience as to the accused who accepted the judgment of guilt without reservation.  But this must be done expressly.

There are, however, some issues if the accused accepted the judgment of guilt just as a practical option.   Among them are those who opted to lay the issue to rest because of the fact that fighting for innocence will entail more litigation expenses. 

There are those who waived their right to appeal in order to qualify for probation to keep them under supervised freedom as a pragmatic option. 

There are those who waived the right to appeal but who have been under detention for periods longer than the supposed punishment and who think that fighting for the declaration of innocence will only add stresses and prejudices or expenses. 

There are those who waived the right to appeal and they are actually guilty and opted to apply for parole or commutation of sentences with the hope of getting freedom sooner. 

In all these, only one is certain.  The judgement of conviction by the trial courts cannot be certain to be correct.

            This is the maze of complexity that always haunts any justice system in the world.

The present rules and trend of jurisprudence

The present Rules of Court and jurisprudence put the blame more on the accused for the fault of their lawyers to file their appeal, the delay in filing their appeal, or the failure to file the appellant’s brief when the notice of appeal was filed.

The Supreme Court has churned out rulings exempting the accused from the lapses of their lawyers provided it is shown: (1) that the lapses of their lawyers constitute gross negligence; and (2) that the accused were diligent enough to monitor their cases with their lawyers.

Leading cases decided by the Philippine Supreme Court include Ace York Aguilar vs. Court of Appeals (G.R. No. 114282, November 28, 1995) and Bejarasco, Jr. vs People of the Philippines (G.R. No. 159781, February 2, 2011).

            As will be argued later, the present trend of the jurisprudence is revolting.

            This is aggravated further by the fact that there is no law that treats this matter.

Rule not fair

Is this present trend of the Supreme Court fair?

Not fair enough.

The author protests against this standard.  He will not stop until all these errors are corrected.   In fact, he is now espousing his thesis in at least two petitions he filed before the Court of Appeals and the Supreme Court.

In the Court of Appeals case, the author is asking for a relief for the accused whose appeal has been dismissed with finality because his former lawyer did not file the appellant’s brief required by the Rules of Court. 

In the Supreme Court case, the author is pleading for relief for the siblings whose appeal in the CA was denied and the denial has become final and executory because the assigned Public Attorney’s Office (PAO) lawyers did not file a motion for reconsideration.

While the Supreme Court had recognized this abandonment by lawyers as an injustice to the clients in criminal cases, the solution laid down has not been enough.

           Moreover, the solution neglected the more substantive principles related to justice as will be explained hereafter.

            What should be fair is to relieve the accused from the negligence of their lawyers, even of simple nature, even if there were negligence on the part of the accused.

            As will be argued below, the scales of justice cannot be outweighed by the negligence of the lawyers, no matter how small, if only the State wants to keep faith in the United Nations covenants and treaties the Philippines signed.

Accused must be relieved of lawyers’ negligence at all cost

            No matter the negligence is only simple, the accused must be relieved and be allowed to continue his appeal as a matter of course.

            The reasons discussed below for this proposal are too overwhelming.

A. High uncertainty of judgment

First, we know that the trial courts and the appeals courts cannot assure correct judgments of conviction.

One proof that judgments of trial courts are unreliable is the statement itself of the Supreme Court in People vs Efren Mateo, G.R. No. 147678-87, 07 July 2004. In this case, almost 72% of the Regional Trial Courts’ decisions have been rebuked by the High Court where it stated:

“Statistics would disclose that within the eleven-year period since the re-imposition of the death penalty law in 1993 until June 2004, the cases where the judgment of death has either been modified or vacated consist of an astounding 71.77% of the total of death penalty cases directly elevated before the Court on automatic review that translates to a total of six hundred fifty-one (651) out of nine hundred seven (907) appellants saved from lethal injection.”

If that is so, there is a heavier demand of duty for the Supreme Court and other appeals courts to subject the judgments of trial courts to the strict scrutiny rule that should be inherent in appeals. 

Aside from trying its best to be fairest as possible, the other objective of giving full process of trials and appeals is to at least lessen the pricking of the conscience on the State. 

At least, even if the appeals courts or the Supreme Court affirms the judgments of the lower courts, the State has satisfied itself and its conscience that it has exhausted all opportunities available in order to finally affirm the judgments.

In the face of these uncertainties and circumstances, the only logical way is to exhaust all opportunities of trial and appeal before depriving persons of their liberty.

This can be done by allowing the appeal to run its full course despite the negligence on the part of the counsels and lack of diligence on the part of the accused, as long as the accused signified intention to appeal or as long as the accused did not signify intention to waive.

To repeat, the fact that there is no assurance that the judgment of convictions is correct is sufficient to make it indispensable for the courts to allow the accused to exhaust all opportunities for appeal even if their lawyers committed negligence, gross or otherwise, and even if the clients may have been negligent.

            B. Imprisonment requires proof beyond reasonable doubt

As solemnly declared by the people when they ratified the Constitution, only proofs beyond reasonable doubt can justify imprisonment.

If we begin from this premise, how can the State comply with the declaration of the people when they ordained the Constitution if its agents that are the courts will forfeit the right of appeal just because the counsels were negligent, simply or grossly, and the clients failed to show that they monitored or followed up their cases with their lawyers?

After the decisions have been issued by the trial courts, the appeals courts cannot assure themselves that the accused were correctly or justly convicted and meted the correct or just punishments.

If the accused filed their appeals, it is as good there is no conviction yet and the accused are still entitled to be presumed innocent.

If the accused are still presumed innocent, then the act of forfeiting the appeal just because the lawyers of the accused committed negligence and the accused did not follow up their cases with their lawyers will constitute sufficient doubt in favor of the accused.

The Supreme Court has argued repeatedly that no matter the degree of negligence committed by their lawyers, the accused will be faulted if they did not follow up the statuses of their cases with their counsels.

However, following the line of the Highest Tribunal is like saying that the accused are convicted not by proofs beyond reasonable doubt but by their lack of diligence in monitoring their cases with their counsels and by the gross or simple negligence of their counsels.  This violates the command of the people.

C. The rule that the actions of the counsels bind the clients does not apply

There is no law that says that the actions of the counsels bind their clients.  But Supreme Court decisions have been consistent in pronouncing that the actions of the counsels bind their clients. 

The author, however, does not agree that actions include the failure to do an act.  This rule applies only when there are overt actions performed by the lawyers in their official functions as counsels and as officers of the court.

The most that the writer can concede if ever the non-action may be considered as an action is that that inaction can bind the clients only as to the strategies involved and not when the fundamental right of liberty is seized.

Moreover, there is no law that authorizes the action by the court that affect fundamental rights such as the liberty from imprisonment.  So that the rule of the courts can only bind the procedure or strategy involved, it cannot go to the extent of foreclosing the liberty of the accused.

Ergo, it is incongruent to the principle involving seizure of fundamental rights to apply this rule when the lawyers did not do their official duties to their clients, particularly in this case involving the non-compliance with the reglementary period to file the appellant’s brief or even the non-filing of the notices of appeal when their clients wanted to appeal.

D. The rule fails the substantive due process test

It is the postulate of this author that if only procedural rights are involved, the clients can be bound by the actions of their counsel.  

But if what is directly affected is the right to liberty that is a fundamental right, whatever Rules of Court provision that directly forecloses the liberty of the accused must be checked against the substantive due process test.

Substantive due process test must examine the purpose or the end of the rule whether it is for the common good and examine the means employed to see whether the means substantively advances the purpose.

Let the test be applied on the present rule that the negligence of the counsels must be coupled with the diligence of the accused to monitor their cases with their lawyers. 

The obvious purpose is to achieve justice: that only just punishment is meted, that the accused are acquitted if there is no sufficient evidence or reasonable doubt or that the evidence show the innocence.  This is without doubt one for the common good.

The tool used is to forfeit the right of appeal for failure of the counsels to file notices of appeal or failure to file appellant’s briefs if that failure is coupled with the lack of diligence on the part of the accused to follow up their cases with their lawyers. 

Will this means employed advance the interest of justice that is the end of all of this? 

The answer is: it will not. 

How will it advance the interest of justice if the result is always affirmation of the judgments of convictions that could be reversed after all and that there is no way that the said judgment to be reversed?

Along with this, this author asks: “Is it not more in keeping faith with the duty of the State to serve justice by requiring the appeals court to just examine the records of the case if the accused or their lawyers failed to file their appellant’s brief?”

This question is consistent with the rule employed under the People vs Mateo (G.R. No. 14678-87, July 7, 2004) case where it ruled that if the Court of Appeals affirms the conviction of reclusion perpetua, life sentence and death penalty it shall automatically elevate the records to the Supreme Court without need of filing appellant’s briefs.  If it can be done in these cases, there is less justification not to do the same for appeals brought to the Court of Appeals from the Regional Trial Courts or appeals brought to the RTC from the Municipal Trial Courts.

Nevertheless, the obvious now is that the substantive due process test proves it is incorrect for the Supreme Court to still require the accused to prove diligence in monitoring or following up their cases with their counsels as long as it is shown that their lawyers committed negligence in not filing their notices of appeal or not filing the appellant’s briefs.

E. The Constitution requires accused to have lawyers

What is then the logic of the Constitution to require lawyers for all accused?

It is because the accused are presumed to be not knowledgeable of the intricacies and rudiments of the Rules of Courts and the Constitution wants to protect the accused against unfair convictions.

If that is the essence, it is also implied that the higher interest of the Constitution is justice and that no accused shall be unduly prejudiced by the lack of counsel.

The negligence of counsels is equivalent to the absence of counsels.

So that at the moment the counsels neglect the official duties to the accused by not filing a notice of appeal when the accused want it or by not filing appellant’s briefs, there is no counsel to talk about.  If the Constitution invalidates extrajudicial confession without the aid of in independent and competent counsel, with more reason that inaction of the counsels as stated must be invalidated and the accused relieved therefrom.

F. The Rules requires only notices to the counsels are binding

The Rules of Court and jurisprudence make it a rule that the only notices that are binding to the clients are the notices to their lawyers.

The notices to the clients are not notices to the clients.  If copies of the decisions of the courts are received only by the clients, these are not deemed received by the clients.  The counting of the fifteen (15) days period to file an appeal will not start from the day the clients received the same decisions.

But when copies of the same are received by the lawyers, only from that day of receipt by their lawyers that the days to appeal begin to run.

There must be no other logic why the Rules of Court and jurisprudence count only the notices received by the lawyers of the clients.   This must have proceeded from the Constitutional requirement for all accused to be represented by lawyers and the Constitutional presumption that laymen are not expected to be able to know what to do with their cases.

So that if the clients are not expected to know what to do, there is then no justification for the Supreme Court to forfeit the rights of appeal of the clients if they and their counsels received notices (for instance a notice to file appellant’s brief) and their lawyers did not perform the duties.

          It is a horn-book rule that waiver of fundamental rights can be valid only when the one waiving fully knew what he was waiving.  In the case of clients who did not do diligence to monitor their cases with their lawyers, it  cannot be said that the negligence of the accused is equivalent to full knowledge of the rights to be waived.

By this reason, it is clear to see that the Supreme Court have erred in requiring that the clients monitored their cases with their lawyers as a condition sine qua non before getting relief from the gross negligence of their counsels.

            G. Presumption of innocence cannot be defeated by lack of diligence

       It is also a horn-book rule that the presumption of innocence is the highest in the hierarchy of presumptions.

            The presumption of innocence cannot be defeated by another presumption. Only a proof beyond reasonable doubt can cross over the bar of presumption of innocence.

            If the accused had filed their notices of appeal, the presumption of innocence still remains because the fact of appeal makes the convictions not final and executory and the appeal automatically puts the whole case back to square one for the purpose of reexaminations of evidence, reexaminations of conclusions or inferences from evidence, and reexaminations of the laws applied or relied by the lower courts.

            Now, the failure of the lawyers to file the notices of appeal or file appellant’s briefs and the failure of the accused to monitor their cases with their lawyers can at most be a presumption of a waiver of right to appeal.  This presumption can never be more than the presumption of innocence.

            Once the accused affirmatively declared that they wanted to appeal and did not waive their right to appeal, the burden of proof now is shifted back to the prosecution and the courts.

           So that if the accused invoked their right of appeal after their counsels have acted in gross negligence, it should be automatic that the appeal right be preserved or reinstated.

            The failure to file notices of appeal and appellant’s briefs are always negligence in the degree of grossness because they affect the substantive or fundamental right of liberty of the accused.

H. Duty to international laws and the world community

Under the incorporation clause of the Constitution, international laws form part of the law of the Philippines.

The State of the Philippines signed and ratified the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture, and Other Cruel and Inhuman or Degrading Treatment or Punishment (CATOCIDTP), and the Rome Statute on International Criminal Court (ICC). 

So that it is without question that these conventions or treaties are laws to be obeyed in so far as the Supreme Court and other courts are concerned.

Now, the agent of the State on criminal matters is the Supreme Court and all other courts.  So that the High Tribunal has the duty to ensure that these international laws are observed under the doctrine of pacta sunt servanda.

In all these covenants are written that obligations of all States that signed them to ensure fairness of the criminal proceedings in their respective territories by means of exhaustion of all opportunities for the accused to defend themselves.

Additionally, even without these covenants, the State of the Philippines has inherent obligations to the world community to assure that all the accused in its territory are assured of fair treatment, of full due process that all opportunities for defences are exhausted before condemnation.

These natural obligations proceed from the desire of each State to look good before the world: that it does not take advantage of the weakness of the accused in order to imprison.

No State can assure perfect judgments.  But all States can assure near-perfect fairness to the accused.

And if fairness is being talked about, it is inconsistent with seizure of the right of appeal just because the lawyers of the clients are negligent and that clients did not do the corresponding acts of monitoring their cases with their lawyers.

By the way, what about if the lawyers cannot be found? Is it not that it is difficult to look for counsels who are negligent? Is it not difficult to find lawyers who hide from their clients?

It does need stress to say that the first and foremost duty of the State is to ensure that there is no travesty or miscarriage of criminal justice that would be caused on any person in its territory.  Otherwise, it is liable under the international law to pay for the commensurate compensation for the injustice caused on any person and it will look barbaric to the world community.

            Another related justification for the exhaustion of possibilities before depriving an accused of the right to liberty is: it is indispensable for the State to avoid at all cost to be bothered forever by the conscience of men and of the world’s.

            I. Res inter alios acta doctrine

To seize the right of appeal of the accused just because their counsels acted in gross negligence is just like violating the doctrine of res inter alios acta, that no one can be bound by the declarations of another.

In this case, it is like making the accused bound by the misdeeds of their counsels.  It is no less than an act of punishing the accused for the actions of their lawyers; not punishing the accused for their own sins.

Now, it cannot be denied that there are always accused who are innocent but they have been insufficient in diligence to follow up their cases with their lawyers or the courts.  It is revolting to imprison these kinds of persons.

J. Supreme Court trends toward loosening strictness

The fact that the Supreme Court has actually trended to loosen its strict applications of the Rules of Court is a piece of evidence that it is receptive to the proposition to relieve the accused from their lawyers’ gross negligence notwithstanding the insufficient diligence on the part of the accused to follow up their cases with their lawyers.

The Supreme Court has relaxed the rules of procedure in the following situations: (1) when it appears clearly that its application results in injustice; (2) when the rules are new and counsels cannot be expected to comply; (3) when what are involved are reglementary periods like relaxing the “balance-of-period” rule in making an appeal in criminal cases if a motion for reconsideration or for new trial is filed, upon the reason that if in civil cases a fresh period to appeal is given then there is no reason to deny the same in criminal cases where what is at stake is a right that is more substantive than property, which right is the right to liberty; and (4) when there is a gross negligence on the part of the lawyers of the litigants concerned and evidence that the litigants did not lack in diligence to follow up their cases.  There are other situations, too.


            K. Other justifications for the author’s proposition

There are cases where the innocence of the accused is clearly seen on the face of the decisions or final orders themselves.    In this first kind of decisions, it is obviously revolting to the conscience of humanity to just let these decisions or final orders be kept as final and executory or immutable just because the lawyers of the accused failed to file an appeal or a motion for reconsideration and because of the principle of immutability.

Any negligence by the counsels under this first kind is sufficient in itself to reinstate the appeal.

There are some cases where the innocence of the accused may not be clear on the face of the decisions or final orders but it looks like there are chances that may alter the outcome of the case.    In this second kind, it is also revolting to the conscience of humanity to just leave these decisions or orders untouched and as a result deprive the accused of another day in court just because the lawyers of the accused failed to file an appeal or a motion for reconsideration and because of the principle of immutability.

In this second kind, it is also logical to reinstate the appeal if the lawyers acted in gross negligence, even if the clients lacked in the diligence of monitoring their cases with their lawyers.

There are also cases where the imprisonment or civil awards are grossly unjust.  In this third kind, it is equally revolting to humankind to just leave the decisions or final orders untouched and giving primacy to immutability of the decisions or final orders just because the lawyers of the accused failed to file an appeal or a motion for reconsideration and because of the principle of immutability.

Under this third kind, it is equally logical to reinstate the appeal like in the second kind.

There are also cases where the courts that issued the decisions or final orders clearly lacked jurisdiction, over the subject matter or over other jurisdictional reasons.   In this fourth kind, it is equally revolting to humanity to just let these decisions and final orders untouched just because the lawyers of the accused failed to file an appeal or a motion for reconsideration and because of the principle of immutability.

In this fourth kind, it is also compelling to reinstate the appeal with the negligence alone of the lawyers.

            L. Nothing is lost

Whereas, upon the other hand, to allow exhaustion of all possibilities no matter the smallest chance the accused may have to win will not affect the rights of the State.  After all, the appeals courts will always affirm the conviction if they are correct.

            M. It is the counsels’ duty to inform the clients

           Since it is a horn-book rule that the counsels have that duty to inform their clients of the updates of their cases, it is now awkward to require the accused to watch almost all the time at the doors of their lawyers if only to be informed of the statuses of their cases.  It must be the duty of the counsels to inform the clients of the statuses of their cases, not the other way around.

            N. Clients are entitled to rely completely on their lawyers

            Most of the clients have no knowledge in laws and in the procedures of the courts.  That ignorance entitles them to rely on their lawyers.

           This is also the obvious wisdom why the Rules of Court and jurisprudence require that the only notices binding to the accused are the notices received by their lawyers and why the Constitution requires competent counsels to serve the accused.

            O. Possibility of counsels taking advantage of clients’ ignorance

           There are lawyers who commit fraud on their clients.  And among these, there are lawyers who would evade their clients just to be able to make good of their fraudulent acts.

              These are possible to happen.

            To obviate the possibility of the injustice caused by  the lawyers abandoning their clients due to fraud, it is the better rule to reinstate the appeals if it is shown that their counsels committed gross negligence.

            P. The Constitution requires competent and independent counsels

Additionally, the Constitution requires that the accused must be represented by competent and independent counsels.  

The key word is “competent.”  A competent counsel is inconsistent with negligent counsel. 

So that if the accused happened to have been served by a negligent counsel, there is then no compliance with the command of the Constitution.  

And if it does not comply with the Basic Law, then the accused being served by negligent counsels is equivalent to the accused without counsels at all. 

And since the accused in this situation are effectively without counsels to speak of, because the counsels abandoned them, it is an offense against the Constitution to forfeit the right to appeal.

            Q. Appeal is a natural right

The courts and others may argue that appeal is not a natural right but just a statutory privilege. 

The author begs to disagree. 

First, the Constitution says of “due process” before deprivation of liberty.  It does not speak of “half process” or “one-third process.”  It speaks of “due” that means complete.

Second, the Supreme Court itself cannot assure the whole world that the decisions of its lower courts are correct and fair. 

Logic dictates that only when there is a system that can perfectly assure fairness and correctness in judgments that the State can withhold the right to appeal.

R. Seizure of rights to liberty on convenience unacceptable

Moreover, to seize the right to liberty upon the negligence of the lawyers and upon the lack of diligence on the part of the clients is like the State wanting to imprison its people on convenience.

This is unacceptable in whatever form.

The Proposition

Thus, it is urged that the Supreme Court must now adopt the rule of removing the requirement of due diligence on the part of the accused if it is shown that their counsels committed gross negligence. 

The author proposes that unless the accused expressly waive their right to appeal, the appeal process must go the full course at all cost. 

That is even if the prevailing jurisprudence insists that appeal is a mere statutory privilege. 

To ensure that appeal is not lost inordinately, the courts must notify the accused in a language known to them whether they opt to waive the right of appeal after it has been established that their counsel failed to file their appellant’s brief or failed to file a notice of appeal. 

And in so notifying, the courts must secure the signatures of the accused that they received the notice and that proofs of signatures of receipt must be kept as indispensable part of the records or rollo. 

If there are no signatures appearing therein, the accused must be presumed to have not waived their right to appeal.

Thereafter, the accused must be given a reasonable period to get new lawyers.
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