(Article published in the Sep 8,2003 issue of TODAY, Business Section)
Senate Blue Ribbon
Committee chairman, Joker Arroyo, describing what his committee jointly
with two others was doing, is reported to have said last week, “We are a
court of public opinion, this is a public inquiry.”
The obvious inference is that the proceedings are limited to
receiving whatever Senator Panfilo “PING” Lacson has to offer in
support of his accusations against the President’s husband, Jose Miguel
Arroyo and cannot play police detective to gather the evidence needed by
the policeman-senator to make his case.
Senator Edgardo Angara, on
the other hand, is reported to have expressed the view that the Senate
investigations must be more “pro-active.” The committees, in his
opinion, must use their powers to make up for the deficiencies and fill in
the holes in the Lacson power point presentation, perhaps so-called
because power, which is at stake in the 2004 elections, was the point of
the presentation. The purpose of the exercise, as far the non-presidential
aspirant is concerned, is to court public opinion by inquiring publicly on
an essentially private matter as a bank account.
Last week, on center stage
was Eugenio Mahusay, Jr., nicknamed “Udong”.
Sometime in July, Udong
executed an affidavit claiming that he saw the Mr. Arroyo sign as “Jose
Pidal”. He was thus top billed by Senator Lacson as his Kissa Ocampo,
one of the shining stars in the impeachment proceedings, who testified
that then President Estrada, two feet away from her, signed account
opening documents as “Jose Velarde”.
But unlike Kissa, who stood by her testimony both through the
interpellation of the then honorable senators and the cross-examination of
Erap’s counsel at the subsequent plunder trial, Udong last 02 September,
before the Blue Ribbon’s counsel, swore to another statement and in
grand fashion recanted.
How are we the inquiring
public to view Udong’s new tune? The
courts who have, to rephrase an expression from the irrepressible Miriam
Defensor Santiago, retractions for breakfast, have formulated an attitude
which we may well adopt. A
quick scan of the recent Supreme Court decisions is sufficient to give us
some useful guidelines.
The intensity of the
general stance taken by the courts falls within a certain range but the
judicial posture is unanimously negative.
Some decisions say that a retraction “does not necessarily cancel
an earlier declaration” (People v. Davatos, 229 SCRA 647).
A step away from the neutral negative are others which view a
retraction “with suspicion and reservation”.
But the majority are those which call retractions as “disfavored
in law” (People v. Valenzuela,
GR No. 126776, Sept. 5, 2002) or, more emphatically, “viewed with
considerable disfavor” (People v.
Remudo, 364 SCRA 61).
The reasons for the
judiciary’s hostility to retractions, particularly of testimonies
previously given in court, are well stated in the case of People
v. Deauna, GR Nos. 143200-01, Aug. 1, 2002.
The Supreme Court there explained that retractions “can be easily
obtained from witnesses through intimidation or monetary
In another case, they were considered “easily procured through
intimindation, threats, or promise of reward” (People
v. Gavino, GR No. 14249, March 18, 2003).
Moreover, they were said
to be “easily secured from poor and ignorant witnesses.
And there is always the probability that they will be later
repudiated and there would be no end to criminal litigation [which] would
make solemn trials a mockery and place the investigation of the truth at
the mercy of unscrupulous witnesses” (People
v. Deauna, citing the separate opinion in Alonte
v Savella, 287 SCRA 245).
The subsequent recantation
of a previous retraction, of course, is not limited to the “poor and
ignorant”. Bangko Sentral
Governor Rafael B. Buenaventura had an unfortunate experience of such a
turn around. Buenaventura was
initially charged in the Office of the Ombudsman in a complaint under oath
by Teodoro Borlongan for the closing the Urban Bank.
While the case was pending, Borlongan, with the assistance of
counsel (who was also Erap’s counsel during the impeachment trials),
withdrew his complaint and the case was dismissed.
Right after EDSA II, however, Borlongan retracted his retraction,
claiming that he withdrew his complaint under duress.
The then Ombudsman, Aniano Desierto, without conducting any hearing
on whether or not in fact duress was exerted on Borlongan, treated the
second retraction as a motion for reconsideration and proceeded to rule on
Just goes to show that
exploiting the imperfections of our legal system is not limited to the
At any rate, expressions
of the courts’ hostility to retractions ought to be taken with a grain
of salt when evaluating the second song of Udong.
A careful reading of the cases suggests that the general principles
are premised on specific circumstances which render the uncritical
application of the general statements to the Jose Pidal vaudeville
For instance, in Deauna,
the Supreme Court, while stating that “the mere retraction by a
prosecution witness does not necessarily vitiate her original
testimony”, held that “if such testimony was sufficiently clear,
consistent, and credible to establish the crime beyond reasonable doubt, a
conviction may be based on it, notwithstanding its subsequent
The obvious reason for
rejecting the retraction, therefore, was that the previous testimony was
“sufficiently clear, consistent and credible”.
The question therefore that we ought to ask, before rejecting
Udong’s retraction, is whether his first affidavit was “sufficiently,
clear, consistent and credible”.
The retraction in Valenzuela
was, observed by the Supreme Court, “done more than one and a half years
later, casting serious doubt thereon” Less than two months elapsed
between the first affidavit of Udong and his second one.
Hence, the doubt cast by the lapse of time on the retraction in Valenzuela
is absent in Udong’s.
the retraction of the witness, who was the victim of the crime herself,
was submitted to the court after a conviction was handed down. The court
found it incredible that the victim, after having the accused (the crime
was for statutory rape by the victim’s own brother) “arrested by the
police, positively identifying him as the person who raped her, enduring
the humiliation of physical examination of her private parts, and then
repeating her accusations in open court by recounting her anguish, would
suddenly turn around on appeal and declare that what transpired, was a
consensual sexual act”.
affidavit, on the other had, was ironically the focus of the senators and
not the first. Moreover, it
was submitted not after conclusions were made, but, in fact, at the
investigations’ initial hearing. Hence, the first affidavit of Udong did
not have the moral high ground of being tested in the crucible of rigorous
Finally, duress was found
to have been actually exerted on the retracting victim in Gavino.
At the Senate investigations of Jose Pidal, Udong was asked in
public by the worthy son of the late Jose W. Diokno, a legal luminary in a
by-gone era of senator-statesmen, whether he freely and voluntarily
executed his second affidavit, and Udong in no under uncertain terms,
affirmed that he was not in any way forced to retract.
We, the public viewers of
the Lacson show, thus cannot simply dismiss the Udong retraction as
unbelievable simply because it is a retraction.
It was at the receiving end of the senators’ searching questions
(although even the younger associates in the litigation department at the
law office I work for could have done a much better job) and thus, is not
to be bunched with mere “affidavits taken ex parte…generally
considered inferior to the testimony given in open court” (People v. Somodio, GR No. 134139-40, February 15, 2002).
In the final analysis, the public’s only recourse is to treat the retraction of Udong just like any other sworn statement. “Like any other testimony, it is subject to the test of credibility based on relevant circumstances and specially the demeanor of the witness on the stand” (Santos v. People, GR No. 147615). And, better still, the public should simply sit back, watch the Lacson show as one would in a beer garden, and focus simply on the singer, not the song.