Cloning De Lima, the IIRC and the inquisitorial system


The raging controversy today is the 12-point recommendation of the Incident Investigation and Review Committee on the August 23 Luneta debacle. There has not been any report in this country that was welcomed by everyone. The IIRC report is no exception. It was met by a mixture of relief and appreciation by those who want to move on; and scorned by those whom the Committee recommended to be the subject of criminal prosecution. I myself have mixed feelings about the recommendations of the Committee. While I generally support its recommendation to indict the men in uniform and other public officers either for their incompetence, fault or failure to exercise control over their subordinates, I nonetheless lament its recommendations to charge the media for the debacle.
I continue to be the biggest fan of Justice Secretary Leila de Lima and still think that she should be cloned so that she can serve in all graft-ridden departments and agencies of the bureaucracy at the same time. I do believe, though, that even the mere recommendation that charges be filed against the media would result in chilling the exercise of freedom of the press. If and when these indictments are actually filed, it would further result in an actual infringement of this all-important right.

Looking at my past writings, I noticed that majority of them have been on freedom of expression and freedom of the press. This is not a coincidence as the promotion of these rights has been the primary advocacy of the Center for International Law, a civil society organization that I chair. This explains our participation as private prosecutors in the Ampatuan massacre case as the killing of journalists is the ultimate form of censorship. This is also why we sued the former first gentleman, Miguel Arroyo for P12.5 million in damages for resorting to the filing of at least 45 libel cases which we described as infringement of the right to a free press and an abuse of right. This also explains why we sued the police and the military for their en masse arrests of members of the media for covering the walkout and press conference of Senator Antonio Trillanes at the Manila Peninsula. Indeed, it could be said that bulk of my professional life has been devoted to promoting freedom of expression.

This is due to good reasons. First, I have always had a big mouth and have always been opinionated. To me, without free speech and a free press, there could not be an exchange of ideas that would lead to debates and eventually, solutions to our many problems. Freedom of the press is also indispensible for the formation of public opinion that has proven to be more potent than the Ombudsman (certainly under the current one), the Sandiganbayan, and the Supreme Court combined, in dealing with despotic leaders. And to those who believe that man was created in the image of God, freedom of expression is a right bestowed by God, full stop.

It is hence indispensible that media should be allowed to perform their task except where their conduct will lead to a clear and present danger that the state has a right to prevent. Even in times of armed conflict, media is allowed to perform their job of reporting to the public the truth and events as they transpire in the battlefield. If they are allowed to perform their profession even when there is full blown shooting without fear of criminal prosecution, why should the IIRC recommend their criminal prosecution for their coverage of an isolated act of violence?

True, media’s coverage of the Luneta debacle was far from ideal. But what made the event a debacle was not because it was reported by the media, but because the police and all those identified by the IIRC as being culpable were either at fault or negligent. And yes, with the finding that the fatalities were killed by the gunman himself, where is the criminal culpability of the media?

Ultimately, any act where agents of the state seek to substitute their judgment on what and how to cover a news worthy event infringes on the right to a free press. Moreover, even conceding that some members of the media were guilty of bad journalism for their coverage of the debacle, still there is no criminal statute against bad journalism. Nullum crimen, nulla poena sine praevia lege poenali. (No crime, no punishment without a previous penal law)

One very good thing, though, illustrated by the IIRC was the speed and dispatch by which the Committee received evidence on the incident. If only our criminal courts could function in the same manner that Secretary De Lima and her committee did, I am sure we would not have the backlog that has caused a state of paralysis in our courts today.

Blame should be put on those who opted to abandon the inquisitorial system that we inherited from Spain, in favor of the current adversarial system of hearing cases in our courts. Under the European model, it is the Judge, much in the same way that Secretary De Lima did in the IIRC, who would ask questions from witnesses and order the production of evidence. I had personal experience on this system when I appeared in a case in Basel, Switzerland where the Judge asked questions for seven and a half hours and gave each counsel 15 minutes each at the end of the hearing to ask clarificatory questions or to make submissions. We junked this system in favor of our adversarial system that we borrowed from the Americans. Under this system, the Judge is a passive recipient of evidence. It is the lawyers who ask the questions and present the evidence. This ultimately is the source of delay in the administration of justice in our country. Hence, not only do we need to clone de Lima, we also need to revert to the inquisitorial system.

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8 comments on “Cloning De Lima, the IIRC and the inquisitorial system

  1. Renato Pacifico says:

    I agree with your 1st. But, please, informations and reportings should not be handled by a bunch of english-speaking kindergartners who cannot tell the difference between ‘RESPONSIBLE’ and ‘IRRESPONSIBLE’ reporting. These kindergarten reporters has this idea that with their flash of kindergarten’s Press Card Filipinos and authorities quiver before them.

    They knew ‘RESPONSIBLE’ reporting on Ces Drilon kidnapping news blackout. But they totally failed on the hostage crisis.

    Our journalists are far from being professionals. They needed extreme re-education and heavy dose of arrogance management.

  2. Renato Pacifico says:

    I wish I would be in this inquisition. Problem, is Filipinos are so stuck-up on credentials. They attack mangled english and wrong spelling first sidelining contents.

  3. Harry, some concerns.

    Bad journalism may not be a crime, but it can rise to a tort, making the journalists and their employers liable.

    As to public officers, there is a hard-to-define line between bad judgment and incompetence. They still have their right to due process. I believe Mayor Lim may have made a wrong judgment call, but the incompetence was somewhere else.

    I also wonder about whether the arrest of the hostage taker’s brother can be the proximate cause of the tragedy. Somehow it doesn’t fit the controlling definition in Bataclan v. Medina. The arrest as “first act” must be followed by a natural and continuous chain of events, each event having a close causal connection to the next. Can we really say that an arrest order leads naturally to it being executed on live tv? I think not. The brother seems to have deliberately worked the cameras, and the networks obliged.

    In any case, if a public official with duty and discretion to order an arrest were to have to second-guess liability for untoward incidents relating to the arrest, no public officer would sign a warrant or order one!

  4. Renato Pacifico says:

    Benign0 will go easy on Puno because of lack of evidence. But it was OK if it was GMA. Now Cojuanco has denied the allegation of Bishop Cruz. Bishop Cruz will be in quandary how he will prove the conversation happened.

    Problem with idiot peryodistas, they publish tsismis without vetting. THEY TOTALLY NEED RE-EDUCATION.

    Tsismis like this cannot happen in civilized world where our bureaucrats and the credentialed were educated.

    They should look at the messenger if they are in uniform, has driver’s license, competent and all the tra-la-la. THE PHILIPPINE PERYODISTAS ARE TOTALLY DUMBING THE FILIPINOS. And the Filipinos thought that our peryodistas are on the level.

  5. joey says:

    . . . my concern is that media’s actions affected the situation . . . media irresponsibly was broadcasting the tussle with Mendoza’s brother and the police probably unaware that he was watching the whole incident through the monitor in the bus . . . RMN was interviewing him irresponsibly tying up one of the communication lines to Mendoza . . . just these 2 actions already merit a degree of punishment for affecting the situation . . . yes, there were greater factors and forces that affected the outcome but you have to agree that if media had worked much closer with the police, there would have been better “coordination” . . . so are we saying now that if there is now “better coordinator”, media will do waht it does even if it borders on irresponsible . . . even lawyers are liable when they interfere irresponsibly . . . I am all for free speech, free information, free speech but that does not mean we should exercise this freedom without consideration of the possible harm it may do the other . . . we all had good intentions on that fateful day and the results were tragic . . . I have yet to see and hear any of those directly involved own up to their responsibilities . . . this, I feel is our greater tragedy . . .

    • Renato Pacifico says:

      Right on, brother! RIGHT ON!!!! Journalism should be under the purview of PRC (joke only). I still believe journalism should not be regulated. What tick me off is their not knowing when is responsible and when it is not.

      There is no self-criticism among them. The politicians are afraid of them because they got plenty of skeletons. THE LOSER IN THIS ARE THE FILIPINOS.

  6. Renato Pacifico says:

    HA!HA!HA! As what I suspected, IIRC report would be revised. The report went to China first. They look at it and grade it. Made recommended changes. And Benign0 duly complied.

    Of course, 3rdworld country quakes before 1stworld giant!

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