Restorative Justice

1) Do you believe that President Duterte should intervene and lawyer for Duque, et al. and
deciding that they are innocent for any corrupt deeds? 500 words

Ans: As simple as the question may seem, it actually presents several issues that
necessitates a thorough, logical, and comprehensive discussion.

First, it is rudimentary in Political Law, particularly in Constitutional Law, that in our

jurisdiction, there are three separate branches of the government – 1) The Executive
Branch, 2) The Judiciary, 3) and the Legislative Department. These branches have their
own distinct and separate powers which cannot be exercised by another. It is the duty of
the Legislature to make the law; of the Executive to execute the law; and of the Judiciary
to construe the law. The Legislature has no authority to execute or construe the law, the
Executive has no authority to make or construe the law, and the Judiciary has no power to
make or execute the law. Subject to the Constitution only, the power of each branch is
supreme within its own jurisdiction. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided for
an elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government.

Second, it is likewise an elementary principle that cabinet secretaries are the alter-egos of
the president, this is under the impression and logical implication that it is of judicial
notice that the “Duque” being referred to in the question is the Secretary of the
Department of Health, Sec. Francisco Duque III.

The “alter-ego doctrine” simply means that the Chief Executive of the land exercises
power through the Cabinet, which is comprised of different departments. Department
secretaries actually function as representatives of the President for obviously, the latter
cannot immediately and personally attend to each and every required task or national
issue.

Third is the issue on Criminal Law and special penal laws. By simply reading the above
discussed and presented principles, we already know that the President cannot adjudge or
decide whether the persons mentioned are guilty or innocent of the anti-graft and corrupt
practices act and other relevant laws, as it is for the Judiciary to ultimately declare a
verdict.

Fourth and finally, the President, being a lawyer even prior to becoming the President of
the Republic, and having practiced the same prior to his election to any other branch of
the government had long been obliged to follow the Code of Professional Responsibility
for Lawyers. This means that the Canons stated therein, and the Rules provided
thereunder, had long been inculcated in his daily life.

Above premises considered, The President cannot arrogate upon himself, the powers
which rightfully belongs to the Judiciary. Deciding in a criminal case where his alter-ego
is one of those implicated is clearly a conflict of interest. It is a different matter if Sec.
Duque would be relieved of his duties as it is well within the powers of the President, for
the former merely holds a confidential position. It is my humble opinion that the
President, as a lawyer, is well-aware of these legal principles.

2) Do you believe that the Senate has the mandate to conduct an investigation in aid of
legislation as in the case of Pharmally investigation? 500 words
Ans: The power to conduct investigative hearings are provided for under Sec. 21 of Art.
VI of the 1987 Constitution which provides:
“Sec. 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.

This provision, however, is merely permissive and not mandatory. While it is true that the
Congress, both the House of Representatives and the Senate, has the power to conduct
inquiries in aid of legislation, there exists several limitations to this power, viz. 1) it must
be “in aid of legislation”, (2) it must be “in accordance with its duly published rules of
procedure”, and (3) “The rights of persons appearing in or affected by such inquiries shall
be respected.”

The condition sine qua non that the investigation be “in aid of legislation” is an
indispensable element for establishing the jurisdiction of the legislative body. This is one
of the easiest limitation to satisfy as practically any investigation can be in aid of the
broad legislative power of Congress. This, notwithstanding, the Supreme Court rules in
Bengzon, Jr. v. Senate Blue Ribbon Committee (203 SCRA 767, 1991) that the said
committee had gone beyond what was allowable.

The Court ruled that the investigation was not in aid of legislation because “the speech of
Senator Enrile contained no suggestion of contemplated legislation” but merely pointed
the need to determine whether “the relatives of President Aquino, particularly Mr.
Ricardo Lopa, had violated the law.

Similarly, in the instant question, there has been no indication of contemplated

legislation. In fact, several legislations already exist with respect to the controversies
surrounding the reason for said inquiry, most significant being the Government
Procurement Reform Act (RA 9184) and others being Bayanihan to Heal as One Act (RA
11469) and Bayanihan to Recover as One Act (RA 11494).

While the transactions were indeed questionable, they were necessitated by the fact that
the virulent COVID-19 had proved to be difficult, if not impossible to contain, at the time
the transactions were entered into and that the Government needed to act fast.
Unfortunately for the Filipino people, the authorities miserably failed to think that they
could have established a factory capable of supplying the medical supplies needed by the
Government, which would have also generated more jobs to supplant the closure of a lot
of industries and retrenchment of employees during the said period. Not to mention the
income that it will generate in the following years even after the health crisis has been
long gone and/or the virus having been eradicated.

The significance of the second limitation on the investigatory power – that the inquiry be
“in accordance with its duly published rules of procedure” – can be appreciated by
considering it side by side with the control Congress has over its rules when they affect
merely matters internal to it. The case of Osmena, Jr. v. Pendatun (109 Phil 863, 1960) is
instructive on the matter. It was held that, when the Congress suspended the operation of
a House rule which could have protected Congressman Osmena, the parliamentary rules
“may be waived of disregarded by the legislative body”. Nevertheless, this view is not
applicable when private rights of witnesses in an investigation are involved, because if
such is the case, the Congress and its committees MUST follow the “duly published rules
of procedure”, and one must have been published.

Anent the third limitation that “the rights of persons appearing in or affected by such
inquiries shall be respected”, this is one way of saying that legislative investigations are
subject to the limitations placed by the Constitution on governmental action, enshrined
under the bill of rights.
 It is lamentable that the Senate investigation, and the Senators elected by the people, are
not well-versed with these doctrines and principles and have been conducting inquiries in
the guise and under the erroneous belief that these investigations are ultimately geared to
the prosecution of some of the people involved in the same. As in the case of Pharmally.

3) Now, there are many criticisms leveled against the police for corruption, abuses,
especially in operation Tokhang where drug suspects like sellers were killed by the police
on mere suspicion of “nanlaban”. This is now investigated by the Department of Justice
and the International Criminal Court. What do you think of operation Tokhang. Is it
legitimate or not? What do you suggest to be done, increase the killing or just arrest the
alleged drug traffickers then file case in court, then rehabilitate them. 1000 words.

Ans: Even before the fateful day of May 9, 2016, where the Filipino people had
overwhelmingly chosen the then Mayor of Davao City, Rodrigo Duterte had already
expressed his disgust towards the drug menace plaguing the country. He vowed to crack
down the proliferation of illicit drugs within the first six (6) months of his term.

Upon taking his oath as the 16th president of the Republic, he immediately directed the
Chief of Police to execute “Operation Tokhang”, adopted from his experience as a Local
Chief Executive and derived from his native language - “toktok, hangyo” meaning
“knock and talk”.

Tokhang was a scheme where households were visited by the police and were asked if
any of the inhabitants therein are or were using illegal drugs. They were then
“encouraged” to register as drug “surrenderees”, in order to show their commitment to
stop in their illegal ways. This was to become part of one of the main goals of the
President – to end the illegal drug trade which was plaguing the country.

Although the intention was noble, the reality was far from that. It is my humble
submission that the implementation of operation “tokhang” was improper and there were
indeed undeniable violations of constitutional rights and various other laws.

The name alone is a suggestion that the scheme was an attempt to trample upon the rights
of the people to be secure in their person, houses, papers and effects by using such system
as a veil to conceal the violation of constitutionally enshrined rights, i.e. Right to Due
Process, Right against Unreasonable Searches and Seizures, among others. A seemingly
friendly invitation or visitation to private citizens without the slightest suspicion or
probable cause that the latter are involved, not only in illegal drugs, but also any illegal
activity, thus making a mockery of the Right against Self-Incrimination, although the said
right may only be invoked in a court proceeding.

Almost on a daily basis, news in the mainstream media and social media would always
feature a drug-related incident, be it a legitimate anti-illegal drug police operation or a
cold-blooded murder committed by unknown individuals against “suspected” persons
wherein the latter group often had their corpses slandered with the words “Pusher Ako,
Wag Tularan”, “Adik ako, wag tularan”, and the like.

The continuous and unstoppable police operations led to the congestion of already
congested prison facilities by drug-related arrests. The justice system was streamlined to
address this issue and several issuances were issued by the Supreme Court through the
Office of the Court Adminstration, including but not limited to the Revised Guidelines
for Continuous Trial of Criminal Cases. (A.M. No. 15-06-10-SC).

When the first cases to reach the Supreme Court were decided, the horrors of substantive
and procedural lapses, and apparent violations of the Constitution and even the governing
law (RA 9165) surfaced. This led to the ultimate acquittal of most drug-related cases filed
during the present administration. Eventually, the lower courts followed suit and
acquittals became the normal verdict.

Unfortunately, as many violations observed and alleged, only a few administrative, civil,
or criminal cases were filed against the erring law enforcement officers. Most notable
was when a Judge of RTC Branch 34 in Negros Oriental sentenced five (5) PDEA Agents
for Indirect Contempt, snippets of the decision are quoted hereunder, to wit:

“The court wants to emphasize that the basis for the indirect contempt
charges arises from the fact that the official narrative of the arrests as
contained in the affidavits, photographs, and other attachments to the
complaint, has been unmasked as false and fake.

In finding respondents guilty of indirect contempt, the court is of the view

that they acted willfully and deliberately to cause injustice to the accused
and to degrade the administration of justice, which is abhorrent to the
dignity and authority of this court”

It is lamentable that there were police officers who, motivated by greed and ambition to
rise higher in the ranks, were willing to make a mockery of the justice system at the
expense of innocent citizens, arresting the latter for the sake of promotion and higher
salary, puera delos Buenos.

In sum, while the police were acting under the direction of the President and may have
been legitimately executing/implementing the law, we cannot deny the fact that there
were numerous violations committed against innocent persons. Not to mention that there
were some operations which appeared to be legitimate but were found to be infested with
several substantive and procedural violations, as found in the now abundant Supreme
Court drug-related rulings. This only shows that our justice system had not strayed away
from the old adage that it is better for ten (10) guilty persons to be set free, than to let an
innocent person spend a minute incarcerated in jail.

This does not mean, however, that the drug menace is a mere product of imagination and
drug personalities should be allowed to roam freely.

The government should focus its attention to the real root cause of this problem. It is a
misconception that the roots of the problem are the drug lords, pushers, syndicates, etc; it
is far deeper than that. A common denominator of those involved in the use and abuse of
illegal substances is that most of those who use and abuse the same are poverty-stricken;
some are merely influenced by their colleagues; and some are experiencing problems
which they cannot solve on their own but are afraid to seek help…

HELP. It is regrettable that even our government had not realized the needs of these poor
drug personalities.

“Most drug-users were poverty-stricken”. Poverty is a societal problem that even the
wealthiest states had failed to eradicate. Most drug-users resort to using illegal substances
as an escape to reality that they can barely sustain their most basic needs. It might be
because it provides them with temporary happiness which they cannot attain without its
presence. Worse, some users may have even resorted to selling illegal substances to
sustain their vices.

“Some are merely influenced by their colleagues”. This is also related to the first problem
as it has a domino effect. The government is yet to come up with a concrete and
sustainable plan to help them uplift their lives.
 “Some are experiencing problems which they cannot solve on their own but are afraid to
seek help”. Precisely because they do not know whom to seek.

With all these, the solution lies with improving our rehabilitation facilities. Investing in
publicly-owned rehabilitation facilities – free of charge, is one of the solutions that the
government should have done. There could have been no need to use precious
government resources in police operations and court litigations if only rehabilitation
centers for drug users were established early on. With the staggering amount of “drug
surrenderees”, encouraging them to seek help at these institutions could have even been a
solution to another problem – poverty.

In fact, rehabilitation centers have not earned a good reputation albeit having been known
as a solution to the drug problem. What is being done inside rehabilitation centers? The
information drive for these institutions are scarce, if not neglected. Rehabilitation centers
should be concentrate more on unlocking the potential of the seemingly hopeless drug-
users and pushers in uplifting their lives. One proposed solution is for them to make
money out of what they are good at or on what they love doing. A simple hobby can turn
into a business venture with the right set of skills and passion. With support from the
government, they will not only be rehabilitated but will also be empowered and with the
hope of a better future.

Legal Advice

1) Lawyer X was approached by Mr. A who is charged with Robbery of a water pump of A,
engine worth P50,000.00. But he got the water pump because it was actually his but made
a collateral for a loan of P30,000.00. Subsequently, he went to steal the pump but the
police found it in his possession. The client requested the lawyer to remedy the situation
and the lawyer instructed the client to talk to 2 or 3 of his best friends to testify that they
were together in Cagayan at the time the alleged theft happened. The client was very
happy and give the lawyer an advance fee.

Make 500 words comment to the action of the lawyer, who believed that a lawyer must
defend its client in any way he can, and that what will be legal.

Ans.: The action and advise of the lawyer is absolutely improper, and an outright insult
and mockery to the legal profession.

It has been pronounced, time and again, that the practice of law is a privilege bestowed
on those who show that they possess and continue to possess the legal qualifications for
it. Lawyers are expected to maintain at all times a high standard of legal proficiency and
morality, including honesty, integrity and fair dealing. They must perform a four-fold
duty to society, the legal profession, the courts and their clients, in accordance with the
values and norms of the legal profession as embodied in the Code of Professional
Responsibility (CPR).

The Lawyer's Oath enjoins every lawyer, not just to obey the laws of the land, but also to
refrain from doing any falsehood in or out of court or from consenting to the doing of any
in court, and to conduct himself according to the best of his knowledge and discretion
with all good fidelity to the courts, as well as to his clients. All lawyers are servants of the
law, and have to observe and maintain the rule of law, as well as be exemplars worthy of
emulation by others. It is by no means a coincidence, therefore, that the CPR
emphatically reiterates the core values of honesty, integrity, and trustworthiness.

As officers of the court, lawyers are expected to act with complete candor. They may not
resort to the use of deception, not just in some, but in all their dealings. The CPR bars
lawyers from committing or consenting to any falsehood, or from misleading or allowing
the court to be misled by any artifice or guile in finding the truth. Needless to say,
 complete and absolute honesty is expected of lawyers when they appear and plead before
the courts. Any act that obstructs or impedes the administration of justice constitutes
misconduct which merits disciplinary action on lawyers.

Concededly, a lawyer must represent his clients with utmost zeal, provided however, that
is should be done within the bounds of the law. As mentioned earlier, it is not only to his
clients that a lawyer is duty bound, but also to the legal profession, to the courts, and to
the society.

It is clear as the bright blue sky that the advice of Lawyer X is an absolute falsehood, and
merely concocted to exculpate his client in the crime charged against the latter. Even with
the little amount of facts provided above, it is evident that the crime of robbery did not
take place as at least one of its essential elements, i.e. “the taking is with violence against
or intimidation of persons or with force upon things” is not present.

In fact, it has not been shown that the water pump was given to the creditor at the time
the loan was secured. It has been a common practice that while a property is being made
as a security for a loan, its possession remains with the debtor. Here, we can even say that
there was animus lucrandi as the water pump, being used as security for the contract of
loan is merely an accessory contract. In fact, the ownership thereof is still retained by the
debtor, Mr. A. Therefore, the crime thus charged and whatever other crime necessarily
included therein was not committed.

With this, it shows the incompetence of the Lawyer X, and a penalty of suspension is in
order.

2) A woman went to lawyer X and said her husband came home from Saudi Arabia and
having been apprised of rumors from relatives that she is sleeping together in a hotel with
a handsome athlete in basketball, the charge is adultery. But the woman told the lawyer
she has no money, would that be okay? And the lawyer said it depends. And he
insinuated “if you like me too, there will be no need of any payment”. And the woman
said “you look handsome to me, so I will follow you when you need me.”

The husband of the woman, with adequate evidence against the lawyer, would like to file
a disbarment case against the lawyer for immorality.

React in 1000 words whether the disbarment case must push through. And why? Give the
decision that you want to be given whether a penalty of removal from the list of lawyers
or just a suspension for some time because the husband who filed the disbarment case
later on forgave the wife and the lawyer paramour. And made an affidavit of desistance
withdrawing the case of disbarment.

What do you think of the decision of the Supreme Court would be?
-research cases of disbarment, cite a jurisprudence.

Ans: The lawyer should be disbarred and the Affidavit of Desistance executed by the
offended spouse does not have any bearing as a case for disbarment is sui generis and the
Office of the Bar Confidant may even conduct a motu proprio investigation

Indeed, the heart has reasons of its own which reason does not know. However, in the
present case, the lawyer had known from the