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The Song of Udong

(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 considerations”.

  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 the merits. 

Just goes to show that exploiting the imperfections of our legal system is not limited to the poor.

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 inappropriate.

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 retraction”. 

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. 

In Remudo, 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”.

Udong’s second 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 cross-examination. 

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.