Tuesday, 21 April 2009

Usapang de kampanilya

Pagsakay ko sa bus kagabi, sinalubong agad ako nang tanong ni Chang: “Anong tingin mo sa nangyari kay Ted Failon?



Sa totoo lang, medyo naiirita na ako sa ganiyang mga tanong dahil simula pa lang noong pumutok ang istorya, kung sino-sino na ang nagtanong sa akin nang ganyan sa pag-aakalang may nalalaman akong tsika na bubusog sa kanilang kuryosidad.

Kunsabagay, may persepsyon rin nga naman ang karamihan na mas nauuna sa balita at maaaring may nasagap na mas malalim na detalye sa mga bagay-bagay ang mga diyarista dahil sa trabaho nga naman namin ang kumalap at maghayag ng tamang impormasyon.

Subalit wala ako sa Pilipinas at gaya ng karaniwang Pedro, Juan at George, sa TV at internet lang rin ako kumukuha ng bali-balita hinggil sa pagkamatay ng kaniyang asawang si Trina Etong.

Sa nagaganap na “circus” mula sa New Era General Hospital hanggang sa puneraryang pinaglagakan ng bangkay ni Gng. Etong, kung anu-ano nang eksena at anggulo ang binigyang pansin ng aking mga kabaro.




Subalit bilang dating mag-aaral ng batas, ang aking interes ay nakatuon lamang sa kung anong mga bagay o ebidensiya ang maaaring timbangin ng husgado.

Naging masalimuot ang kaso dahil sa sala-salabat na pangyayari mula sa umano’y pagsira sa pinangyarihan ng insidente at sa umano’y hindi makataong pag-aresto sa mga kaanak at kasambahay ng pamilya Etong na ngayo’y pinararatangan ng kasong “obstruction of justice”.

Nangelam ka sa mga awtoridad sa layong pigilan sila sa pagtupad sa kanilang tungkulin ang alam kong buod ng depinisyon ng “obstruction of justice”.

Ang abogadang ipinakita sa TV na nagtangkang pigilin ang mga pulis na bitbitin ang mga kasambahay ng mga Etong dahil sa labag umano ang kanilang ginawa sa prosesong nakalatag sa batas ay posibleng balikan ng mga pulis at kasuhan ng “obstruction of justice”.

Ang mga reporters, cameramen at photographers na naghambalang sa bahay ng mga Etong kung kaya’t nahirapang makapasok ang mga pulis ay possible ring kasuhan ng “obstruction of justice”.

Ano nga ba ang “obstruction of justice”?

Sa pagbubutingting ko sa internet, nakita ko ang isang piyesa sa Manila Standard Today na isinulat ni Fr. Ranhilio Callangan Aquino, ang dekano ng Graduate School of Jurisprudence and Justice Sciences ng aking pinakamamahal na alma mater, ang San Beda College.

Basahin natin at maliwanagan.

At please lang po .. wala akong nalalaman sa kaso ni Ted Failon subalit nakasisiguro lang akong alam niyang hindi dapat ginagalaw ang isang crime scene dahil yan ang aming natutunan sa Arellano University College of Law.


Ang obra ni Father …

What is obstruction of justice?
By Fr. Ranhilio Callangan Aquino

‘Obstruction of justice” comes up in many conversations these days obviously because of the death of Trina Etong, Ted Failon’s wife. So what is this crime called “obstruction of justice”?

PD 1829 is the applicable law and under the law, the crime consists in “knowingly or willfully obstructing, impeding, frustrating or delaying the apprehension of suspects and the investigation and prosecution of criminal cases”.

In the Failon case, obviously whoever wiped off blood stains, altered the “scene of the crime [or incident]” or worse, concealed evidence may be held to answer under this law provided that what the law calls the mens rea requirement is present.

That refers to the mental element that should be present: obstructing, impeding, frustrating or delaying apprehension, investigation and prosecution knowingly or willfully.

In this respect—and I write this for law students who may have been wrongly taught—it is wrong to assert that special laws do not require a criminal intent. There are in fact special laws that require a criminal intent.

In this case, the presence of the criminal intent is essential to the crime. The law is unmistakable on that point.

Let us say then that Kikay, a housemaid, was ordered to clean the bathroom and wash off all blood stains. Would Kikay, if these facts were established conclusively, be liable under PD 1829?

If Kikay did what she did merely because she was ordered to, and as a housemaid habitually complied with orders, and for no other reason, then Kikay would be off the hook.

For Kikay to be guilty of obstructing justice she should have cleaned the bathroom and eliminated or tampered with the evidence “with intent to impair its verity, authenticity, legibility, availability or admissibility as evidence in any investigation of or official proceedings.”

The intention to spare the child the sight of her mother in such a sorry state does not inspire much credence.

Obviously, the simplest thing to do would be to seal the bathroom and keep the 12-year-old away from the gruesome scene.

I am not saying the Ted Failon is guilty of obstructing justice, although he may very well be. I am only saying that we should not be too quick about charging the police with arbitrariness and oppressive conduct.

The victim here, it should not be forgotten, was Trina Etong, not Ted Failon.

Should it be later established with certainty that the late Trina committed suicide, will this result in the dismissal of all obstruction of justice charges?

It should not, I am convinced.

The issue in an obstruction of justice case is whether or not a respondent obstructed, impeded, or mislead the conduct of investigation and prosecution of a crime.

As the police are still determining whether or not a crime has been committed, anyone who alters, conceals, destroys or suppresses evidence or knowingly misleads investigators will be obstructing justice, whether or not the conclusion is eventually reached that there was no crime.

When one delays in reporting a crime, does this constitute obstruction of justice?

In the first place, why should one delay in reporting a crime? Preventing witnesses from reporting a crime is clearly obstructing justice under Section 1a of the law.

Likewise liable is anyone who misleads investigators or fabricates information. When one delays in reporting a crime, one rightly stirs the suspicion that he is the criminal.

The provisions of the obstruction of justice decree, however, cannot be used to defeat constitutional guarantees.

A suspect who clams up at custodial investigation is in a very real sense obstructing justice—but he cannot be indicted for the offense because the Constitution grants him the right to be silent.

When a homeowner refuses law enforcers entry into his dwelling when they announce a search but cannot present a warrant, the homeowner can neither be charged with obstructing justice because the Constitution protects the citizen against unreasonable searches and seizures.

Obstruction of justice is a crime because justice is the virtue of organized society and obstruction is exactly what it is.

I think too that we should be asking the right questions: Who ordered the bathroom cleaned?

If the house-helper who admits having wiped off blood stains volunteers the information that she did the cleaning—and meticulously, at that—“without having been instructed by anyone to do so”, is it not interesting that she did not know that it was wrong to tamper with the scene of the incident, but seemed to be fully aware that it was important that she pointed at no one as having ordered her?

It is important that Ted’s daughter has protested her father’s innocence and insisted that her mother committed suicide.

It shows how eager members of the family are to avoid wreaking further havoc on the family by implicating Failon in the terrible crime of parricide. But he must remain a suspect and if Raquel Fortun, who seems to be so eager to prove every other pathologist wrong, is right that paraffin tests prove nothing, then that Failon and Trina (or at least Trina’s lifeless body) have tested negative for powder burns says nothing for or against parricide on the part of the former, and for or against suicide on the part of the latter. (And by the way, that paraffin tests are not very accurate does not mean that they are not accurate at all and should be banned! That’s King-Kong logic!)

I called up Secretary Raul Gonzalez to congratulate him for reminding the head of the Public Attorney’s Office that Ted Failon is not an indigent, and that it was not seemly of her to act as de facto legal counsel for Failon. It would have even been more acceptable had she shown interest in protecting the interests of the departed Trina—such as encouraging house-helpers and members of the Failon household to disregard instructions not to speak and to be more forthright with investigators.

May Trina rest in peace. The Catholic Church has a different attitude now towards those who are alleged to have committed suicide.

In the past, she would have slammed Church doors on them, refusing them the rite of Christian funeral. Not anymore.

One who commits suicide, moral theologians argue, does something so fundamentally counter to the drive to preserve life that it can be presumed that the victim was not sui compos… in complete control of herself.

She enjoys the benefit of the doubt in respect to moral responsibility.

On the other hand, may the Republic of the Philippines, particularly investigators and prosecutors, not rest in peace until we know whether it was suicide or parricide, not only for the sake of Trina and her family, but for the sake of law and that nebulous ideal called justice.

No matter how Ted Failon may feel about it, or his children may protest against it and call for “peace,” there can be no “peace” in the suppression of the truth when human life is brutally ended.

A shadow of doubt hangs over Ted Failon, and we should allow it to hang there until credible evidence allows it to dissipate.

I am appalled at the eagerness with which one TV channel insinuates the innocence of Ted and the suicidal inclinations of Trina. As a TV and radio personality, Ted has been unrelenting in his campaign against the suppression of evidence and the concealment of wrongdoing. He should face his own investigation with the same resoluteness.

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