Technicalities

We have rules on evidence primarily for the purpose of establishing the truth and upholding justice without delay, in judicial (or suppletorily in quasi-judicial or administrative) proceedings to settle and resolve actual controversies involving rights which are legally demandable and enforceable. Unfortunately however these rules are sometimes used to suppress the truth, perpetrate injustice or delay the resolution of the case.

This is especially true in proceedings such as ours which are highly adversarial in nature; where the parties and their lawyers, instead of being allies in search for the truth, come to court as intense rivals in hotly contested bouts trying to technically knock each other out or beat each other to the pulp in an effort to win the case. It is in this kind of proceedings also where parties who are obviously not on the side of the truth virtually achieve victory by simply delaying the resolution of the case and indefinitely staving off defeat until their opponents capitulate and reluctantly settle on their own terms.

Hence one of the favorite and oft repeated jokes going the rounds of the legal and socio-civic circles is about the anecdote concerning a senior lawyer in a law firm giving instructions to his assistant who is about to go to court for the trial of the case he is handling. In his usual grandiose and clever manner, the elderly lawyer gave the following instructions to his assistant: “when you go to trial son, just remember that if the facts are on your side, pound on the facts; if the law or rules are on your side, pound on the law, but if neither facts nor law are on your side, pound on the table”.

Funny as the anecdote may be, it is no longer a laughing matter as it seems to be actually happening in most of our high profile judicial proceedings notably in the long running ill gotten wealth cases against the Marcoses. For almost 17 years our government has been trying to recover their ill gotten wealth but up to now, the family of the late dictator seems to be succeeding in warding off such attempts. Talks are even rife that a compromise with the Marcoses is in the offing. True or not, this is apparently due to the twisted and long winding nature of our judicial process caused by the too technical rules of procedure that perfectly fit into their scheme of prolonging recovery and forcing settlement.

For the past 17 years, not a peep has been heard from the Marcoses about their supposed part ownership of Tan’s businesses. Then suddenly Marcos Jr. has become so vocal and dared to lay claim on the tycoon’s business interest with the aid of the PCGG. I just have a feeling that the public is being treated to another zarzuela. It just does not add up that the dictator’s own lawyer and formidable legal apologist during the martial law years is now on the opposite side of the fence thwarting the claim in defense of Tan. Somehow a well thought out script seems emerging true to form — that nothing will come out of such claim — because of lots of pounding on the table. Meantime PCGG is again left holding an empty bag for failing to prove another ill gotten wealth.

The rule involved here and vigorously raised by Tan’s very able lawyer says that “when the subject of the inquiry is the contents of a document, no evidence shall be admissible other than the original of the document itself”. If the original cannot be produced or has been lost or destroyed, the offeror should prove its existence and due execution and why it is unavailable without bad faith on its part, before a mere copy can be admitted (Section 3 and 5 Rule 130, Rules of Court).

The subject document here is a letter of Michael Schmitz, chief counsel of the US Treasury Department dated September 20, 1990 addressed to PCGG Commissioner Cesar Parlade merely certifying that they have in their possession certified copies of the business, financial and other documents seized from the Marcoses on February 26, 1986 at the Hickam Air base in Hawaii. The contents of this document are actually not the subject of the inquiry. The vital documents are those mentioned in the letter allegedly proving Marcos’ part ownership of Tan’s businesses. The originals of these documents are the ones necessary in the testimony of Marcos Jr. especially during his cross-examination. It is therefore premature to stop Junior’s testimony at this stage.

So many other incidents in the recent past (one of which is now being revived in the Senate) have shown that technicalities are effective tools in preventing the truth from coming out. Among them is the scandal now being revived in the Senate. This is another classic example.

Fortunately, in the judiciary, the Supreme Court (SC) has already taken steps to revise the Rules of Court with Chief Justice Reynato S. Puno as overall chairperson. In fact a sub-committee has been specifically formed to revise the rules on evidence and formulate a new rule on DNA evidence. This is headed by retired Supreme Court Justice Romeo J. Callejo Sr. who chose to continue serving for the betterment of our judicial system. Working closely with him are: Court of Appeals (CA) Justice Regalado E. Maambong, my law school classmate, as Vice Chairperson, CA Justice Lucas P. Bersamin, Sandiganbayan Justice Diosdado M. Peralta, Judge Raul B. Villanueva, retired Judge Aloysius Alday, Attys. Rogelio Vinluan and Francis Ed. Lim from the academe and the private practitioners, as members, and the indefatigable retired SC Justice Bernardo P. Pardo and retired CA Justice Oscar M. Herrera as consultants.

With such dedicated, highly competent and acknowledged masters in this field working to revise the rule on evidence, expectations are high that they will come up with revisions that will serve the ends of truth and justice by avoiding delays and minimizing technicalities without sacrificing orderly procedure.    

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