Philippine Lawbytes 237: Digital Forensic Ethics, Cognitive Bias or Forensic Confirmation Bias, and the PNP DIDM Anti-Cybercrime Group, by Dr. Atty. Noel G. Ramiscal

It has been several years that I have been dealing with digital forensic investigators in different aspects of my cyberlaw practice, both from the government and private sector, and as far as my encounters with them have gone, particularly in court, they have not followed the laws, rules, national and international standards that govern digital forensic investigations. So it was with great anticipation that I accepted the invitation from the University of the Philippines Institute for Government Law Reform (UPIGLR), thru its Director, Atty. Solomon Lumba, and relayed to me by Ms. Eleanor Arzadon, that I can talk about my advocacy against “Digital Forensic Fraud” in the POPLAW seminar series that UPIGLR had been conducting with the Philippine National Police (PNP) for the past 47 years. This continuing program has benefited thousands of our brothers and sisters in blue, in their professional practice.

Dr. Atty. Noel G. Ramiscal prior to his PNP UPIGLR Digital Forensics Ethics and Fraud lecture, with his own designed blazer, UP Malcolm Hall, July 27, 2023

The main unit that this particular series was organized for, was the PNP Directorate for Investigation and Detective Management (DIDM), and the main class was IOBC, but there were representatives from various PNP branches and even from the Philippine Coast Guard. According to their website (https://didm.pnp.gov.ph/index.php), the PNP DIDM is the unit tasked to “assist and advice the (PNP) Chief in the direction, control, coordination and supervision of the investigation of all crime incidents and offenses in violation of the laws of the Philippines.” It has “close supervisory direction of crime laboratories and other investigative support units.” And it has a “Detective School which offers regular courses on Criminal Investigation and Detective Development Course (CIDDC) and other crash courses on investigation.” If ever there was a government entity that I could exchange notes, share my advocacy against Digital Forensic Fraud, and ascertain the standards that government digital forensic investigators (DFIs) follow, it would be from the members of this unit.

Dr. Atty. Noel G. Ramiscal with the PNP DIDM IOBC Class 2023 President, PLTCOL Norman Tanedo Florentino, at the PNP UPIGLR POPLAW Seminar, UP Malcolm Hall, July 27, 2023

First, I qualified the 150 member audience, if there were actual DFIs amongst them that testify in court. Three of them came forward, and for the rest of my lecture, they became my sounding board because their opinions, particularly on standards and ethical matters were what I sought to find out. Since I had not encountered them before in court, I took their statements at face value. They did not disappoint.

One of the egregious violations in my actual experience in court with digital forensic investigators whether they were from government or from the private sector, is that they monumentally fail in observing the standards set by the 2018 Rules on Cybercrime Warrants, particularly in surrendering all the pieces of electronic evidence they collected, acquired, preserved, examined, and stored in e-devices to the court that acquired jurisdiction over the cybercrime case/s. I spent some time narrating the reasons DFIs that I have confronted in court have given as to why they did not, could not and would not turn over these pieces of evidence even though that is the mandate by the Cybercrime Warrants Rules, to defeat the right of the accused to know, confront and disprove the electronic evidence against them. I asked the PNP DIDM DFIs their opinion, and to my surprise, they agreed with me, and one even saying that these Rules are the standard in cybercrime cases that must be followed by all DFIs, even though they are from the private sector, and employed by private complainants.

Dr. Atty. Noel G. Ramiscal talking about digital hashing at his PNP UPIGLR Digital Forensics Ethics and Fraud lecture, UP Diliman, Malcolm Hall, July 27, 2023

I discussed with them some of the nitty gritty stuff they must do in order to comply with the rigorous standards of these Rules, and relevant international standards. I went from using write blockers, to the rigid observance of the Chain of Custody procedures, to hashing algorithms. While some, like the DFIs were able to follow, the rest appeared to encounter the concepts and processes I discussed for the first time, which is fine because not all in PNP DIDM are involved in forensic investigations. I just had to bring to their attention one matter that I disagree with, that was stipulated in the PNP DIDM Investigative Directive 2017-17, dated December 4, 2017, which was issued to govern the forensic investigations done by the PNP Anti-Cybercrime Group (ACG):

PNP DIDM 2017 Directive Request for Extension to Investigate

As I stated in my discussion, the requirement of giving just one destination/hard drive by the requesting agency to the PNP DIDM DFIs, which would be used in storing the additional pieces of electronic evidence that might be gathered, upon the extension of the search warrant, to grant more time for the forensic investigation, should be revised to two repository devices, to comply with forensic industry standards.

Since the 2019 Amendments to the 1989 Revised Rules on Evidence (A.M. NO. 19-08-15-SC) or “New Rules of Evidence” took effect last May 1, 2020, the requisite “education” background of a DFI is now one of the factors to consider and examine when s/he/they are presented as expert witness in court. I apprised the participants about the real legal educational framework which must be used in assessing a DFI’s education and disclosed my professional connection with this framework. It is the Commission on Higher Education’s (CHED) Memorandum Circular #48, series of 2012, entitled “Criminal Justice Education: Policies, Standards and Guidelines for the Bachelor of Forensic Science Program”, which is one of the CHED standards that I was tasked by then CHED Chair, Dr. Patricia Licuanan to critique and give recommendations on. I queried the educational degrees of the three DFIs. While none of them graduated with the Bachelor of Forensic Science degree, all three had Bachelor of Science degrees in the Allied Programs stated under the same Circular.

Dr. Atty. Noel G. Ramiscal sharing insights with the audience at his PNP UPIGLR Digital Forensics Ethics and Fraud lecture, UP Diliman, Malcolm Hall, July 27, 2023

Another significant and vital matter I imparted to them, which was something that all of them had no previous knowledge is the concept of “cognitive bias,” specifically “forensic confirmation bias” which afflicts DFIs, most of whom are not even aware of its influence on their jobs. The ideal notion of a DFI is that s/he/they are properly objective in their mindset, as well as their usage of their forensic tools and their report of their factual findings. But legal and medical literature have confirmed that this notion is far from real. According to the conception of forensic confirmation bias, DFIs are susceptible to being affected by extraneous information, such as the suspect’s ethnicity, previous criminal record, eyewitness identification, or other types of evidence, that are given to them prior to their investigation of a cybercrime. This information can potentially bias the forensic scientist throughout the course of their investigation, affect the way they use their forensic tools, and ultimately bias their analysis of the case.

As an example, I discussed the case of Brandon Mayfield, who was the subject of extraction by the U.S. government, due to what the FBI believed as his direct involvement as the bomber in the 2004 series of bombings in Spain because of a latent fingerprint on a bog of detonation devices found in the crime scene. Even though Mayfield had never been to Spain, or outside of the U.S., since he had no passport, and even if the Spanish authorities already said that he was not the bomber because they caught the real one, one of the top FBI investigators, and several of his subordinates, and a consultant, all “100%” identified him as the culprit! Why? It was because they were made aware beforehand of his background as a Muslim, of the fact that he was a lawyer of a convicted terrorist and he had contacts with Muslim extremists. Mayfield sued the U.S. and won US$2,000,000.00 as settlement.

There is no previous record of the concept of cognitive bias, or forensic confirmation bias, in any cybercrime case in Philippine jurisprudence as far as my research goes. I presented this concept for the first time as the cybercrime consultant of accused in several cybercrime cases in a Regional Trial Court last 2021. To my personal knowledge, this was also the first time this concept had been presented in the RTC level in the Philippines. My client was acquitted in 2022.

Dr. Atty. Noel G. Ramiscal with some of the 150 participants after his PNP UPIGLR Digital Forensics Ethics and Fraud lecture, UP Malcolm Hall, July 27, 2023

In closing, I would like to acknowledge the important work being done by the PNP and the UPIGLR in educating our crime fighters and advancing their professional development thru endeavors like the POPLAW seminars. Special thanks to the considerate UPLGR Director, Atty. Lumba, and the ever kind Ms. Arzadon. Heartfelt appreciation to all the courageous men and women of the PNP and all its units, the PNP DIDM, the IOBC Class President, PLTCOL Norman Tanedo Florentino, the PCG people, and all who put their lives on the line everyday to safeguard our lives and our freedoms. Finally, it was such a privilege to share my advocacy with the participants, specially the 3 DFIs, who appear to be standard bearers of Ethics in Digital Forensics in Government Service! May your tribe increase! Thank you and God Bless!

Philippine Lawbytes 236: IBP Dipolog (Part 2): The Impact of Artificial Intelligence (A.I.) on Cyberlaw Practice and Ethics in the Philippines, by Dr. Atty. Noel G. Ramiscal

My second MCLE lecture for the IBP Dipolog was “Cyber Law Practice Hazards in the Regime of the 2023 Code of Professional Responsibility and Accountability (CPRA)” last June 21, 2023. This was the first lecture I did this year that addressed the effects of A.I. on the legal profession which directly referred to the 2023 CPRA, which is the revised version of the 1988 Code of Professional Responsibility for lawyers. For 2022 and the first quarter of this year, I have discussed Cyberlaw Practice and Ethics in conjunction with the 2022 draft of the CPRA.   

Dr. Atty. Noel G. Ramiscal prior to his June 21, 2023 MCLE Lecture on Cyberlaw Practice Ethics Hazards in the 2023 CPRA

As I have discussed extensively last year and this year, we are now in the age of the 4^th Industrial Revolution, in which A.I., together with Augmented Reality, Internet of Things (IoT), Cloud Computing, Additive Manufacturing, Big Data Analytics, Nanotechnology, Cryptography and Quantum Computing, are the driving forces that will alter our lives, and the way we make our living, way beyond significantly.

How are these technological developments which have various impacts on the personal and professional lives of lawyers, reflected in the 2023 CPRA? Well, apparently, they are not. As I told the IBP Dipolog MCLE participants, the word “technology” was not even mentioned in the 2022 Draft of the CPRA which I critiqued in my 2022 UPIAJ Commissioned Report entitled “A.I., Technology, Gender and Morality in the Philippine Code of Professional Responsibility (CPR) for Lawyers”. The 2023 CPRA, like the 2022 Draft, focused merely on social media and the ethical obligations that lawyers have toward their usage of it. But social media is not the be all and end all of technology for cyberlaw practitioners. My 2022 UPIAJ Commissioned Report delved on different types of technological innovations and tools that have greatly influenced and changed legal practice all over the world. The gist of some of my recommendations and suggestions in my Commissioned Report can be found here:

Philippine Lawbytes 224: The Cyber Ethics of Technological Competence and the 1988 Philippine Code of Professional Responsibility for Lawyers

https://noelthecyberlawyer.wordpress.com/2023/02/28/philippine-lawbytes-224-the-ethics-of-technological-competence-and-the-1988-philippine-code-of-professional-responsibility-for-lawyers-by-dr-atty-noel-g-ramiscal/

In my Dipolog lecture, I delineated the possible legal and ethical frameworks of dealing with A.I. used in the legal industry as “legaltech” and the possible bases for liability, of law firms or lawyers acting as operators of these tools, in cases they go rogue or is implicated in uses that harm humans. In the possible scenarios I gave, I showed the European Parliament and other sources where I culled, or which inspired my discussion.     

Dr. Atty. Noel G. Ramiscal during his June 21, 2023 MCLE Lecture on Cyberlaw Ethics Hazards in the 2023 CPRA

One vital matter in any legaltech and ethical discussion of the future of lawyering is the anthropocentric conception of legal practice, which can be reduced to that hapless phrase “as that which lawyers do” [Cayetano v. Monsod, G.R. No. 100113, September 3, 1991, 201 SCRA 210 (1991)], that is still prevalent in the Philippine legal and judicial professions. Since 2015, I have discussed in my cyberlaw ethics lectures the case of Lola v. Skadden [620 F. App’x 37, 45 (2d Cir. 2015)], where the court ruled that a lawyer who used an A.I. e-discovery tool to do his function of reviewing documents, and used no independent legal judgment because such documents were already pre-marked by the A.I. tool, did not perform any “legal practice”.

With this type of judicial mindset, many of the tasks performed by junior associates in Philippine law firms that do not require any exercise of independent legal judgment on their part (e.g. inputting client data into pro forma affidavits, motions or pleadings, checking for grammatical and typographical errors in legal documents, checking case citations, using e-discovery tools like the one used in Lola, for legal process outsourcers in the Philippines, etc.) do not constitute legal practice. In fact, A.I. tools can do these tasks better, as I showed in several examples where experienced document review attorneys were pitted against A.I. tools which devastatingly outperformed them in all levels. Human lawyers are NOT the gold standard for tasks like these, A.I. tools are. And what is also most disturbing is that A.I. tools can perform their tasks 24 hours a day, 7 days a week, without taking rest or leaves, without getting sick, without needing promotions, and without asking for any job benefits!

Dr. Atty. Noel G. Ramiscal at the Dapitan Heritage house of Aniano Adasa with paintings of Jose Rizal, June 21, 2023

A.I. is also the main reason why law firms and lawyers in different jurisdictions have joined forces with non-lawyers and non-legal entities (like business service firms and I.T. solutions/software firms) to form Alternative Business Structures (ABS) or Alternative Legal Service Providers (ALSPs) or accept investments in their firms from non-lawyer investors.

In this type of set-up, non-lawyers can be partners of lawyers, to the extent that non-lawyers are even legally allowed to manage these firms! This arrangement has been successful because it answers several pressing needs of lawyers and law firms. It provides financial capital that is much needed for the expansion of their legal practice. It also enables law practitioners to have access to technological and other types of resources to offer value added services to their clients, which can make them attract more clients.

Dr. Atty. Noel G. Ramiscal at the Dapitan Heritage house of Aniano Adasa, June 21, 2023

Australia was the first to do this in the early 2000s. U.K. and certain European countries followed. For the longest time, the U.S.A. held out due to the American Bar Association’s (ABA) view that non-lawyers are not allowed to partner with law firms and lawyers, to do “legal” tasks, and to share in legal fees to safeguard the independence of lawyers and protect the legal profession. But during the pandemic in 2020, the Utah Supreme Court allowed the first NON-LAWYER OWNED LAW FIRM, called LAW ON CALL to be established to provide legal services to Utah residents. Arizona then followed suit, while other States like California, Indiana, and even the ABA are considering allowing this type of arrangements.

In the Philippines, we are still saddled with the same restrictions followed by the ABA. The 2023 CPRA canonized the non-sharing of legal fees with non-lawyers in Canon III, Section 43.

Dr. Atty. Noel G. Ramiscal at the Dr. Jose Rizal landing installation marker, Dapitan, June 21, 2023

Judging from the fact that only social media was the one touched on by the current CPRA, it is unfortunate that there appeared to be no discussion, or even awareness, from those who drafted it, of the many complex technological developments that have changed the legal profession around the world.

But maybe this is changing. I consider it providential that I was able to meet during the IBP Dipolog MCLE dinner, one of the members of the Subcommittee that drafted the CPRA rules in 2022, Atty. Fina Tantuico, who was also a lecturer in the MCLE seminar. We had a lengthy discussion about some of these developments and I acquired the consent of the UPIAJ Director, Atty. Emerson Bañez, to share with her, and her Subcommittee co-members my 2022 Commissioned Report.

Dr. Atty. Noel G. Ramiscal with IBP Dipolog Pres. Atty. Augustus Alegarbes and Vice Pres. Atty. Fevie Gador, June 21, 2023

Once again, I am grateful to all the IBP Dipolog officers, Atty. Alegarbes, Atty. Gador, and the rest for their generous reception, to the MCLE Committee members headed by Atty. Lim, and all the IBP staff who made sure we were comfortable. To all the fabulous IBP Dipolog lawyers, who are seekers of Truth and Justice, may your tribe increase!

Philippine Lawbytes 235: IBP Dipolog (Part 1): The Bane of Digital Forensic Fraud In the Philippines’ Legal and Judicial Professions, by Dr. Atty. Noel G. Ramiscal

The Integrated Bar of the Philippines (IBP) Dipolog Chapter, in the Zamboanga del Norte province, thru the Head of its Mandatory Continuing Legal Education (MCLE) Committee, and former Dean of the MDCL Law School, Atty. Kenneth Lim, invited me to give two MCLE lectures for their members. I have been to Dipolog twice in the past, and I consider the people here as supremely friendly and supportive. The place is surrounded by magical waters, and steeped in humanistory and lore. So it was with great excitement that I accepted their generous invitation. My 81 year old mother, who had never been to Dipolog, accompanied me on this trip, with our food and lodging courtesy of the IBP, so it was double the pleasure!

Dr. Atty. Noel G. Ramiscal at Dipolog Beach Boulevard Bay Walk, June 20, 2023

We landed on a rainy day, but we were greeted in the airport with the warm company of Atty. Carl Alejandrino, and Mr. Muyco, the driver of the IBP Dipolog President, Atty. Augustus Alegarbes. We were driven to Hotel Ariana, which had comfortable executive suites, and certainly one of the better restaurants in this part of the world, Chloe’s Bistro. A blink of an eye later, it was already June 20, 2023, and my first official day as lecturer with Atty. Ron Enriquez welcoming us, on the way to the venue.  

Dr. Atty. Noel G. Ramiscal prior to his IBP Dipolog June 20 2023 MCLE Lecture on Digital Forensic Fraud

My lecture entitled “Protecting the Legal and Judicial Profession from Digital Forensic Fraud” is the result of my encounters in legal practice with dubious cyberforensic or digital forensic investigators (DFIs) who are tasked with collecting, acquiring, preserving, examining, and reporting the electronic evidence from cybercrimes, and other infractions that are pertinent in civil and administrative cases.

I told the participants that the Philippine Supreme Court and IBP have yet to come up with rules or even initiatives defining with clarity the ethical and legal obligations of digital forensic investigators, the lawyers who present them as experts in Philippine courts, as well as the duties of judges in determining the validity of the qualifications of DFIs, the credibility of their digital forensic investigation reports (DFIRs), and the reliability of the methods and processes they use.

Dr. Atty. Noel G. Ramiscal during his MCLE Lecture on Digital Forensic Fraud with some of the lawyer attendees, June 20, 2023, IBP Dipolog

Lawyers, as agents of the court, and judges are de facto burdened with the task of being evidentiary gatekeepers and weeding out the bad DFIs from the good ones, as well as inadmissible DFIRs, from the acceptable ones. I imparted to the participants several tips and strategies in doing this.

I introduced to the participants the actual educational framework developed by the Commission on Higher Education (CHED) for all forensic scientists, that include DFIs. This little known CHED standard was reviewed by me when I was the Technical Consultant of the former CHED Chairperson, Dr. Patricia Licuanan. I revealed to the participants some of the professional certifications relevant to the work of DFIs and the required proof for presenting these certifications. These are all relevant now due to the revisions made under the 2019 Amendments to the 1989 Revised Rules on Evidence (A.M. NO. 19-08-15-SC).

The significance of the 2018 Rules on Cybercrime Warrants cannot be gainsaid. Private DFIs have argued in criminal cases where the evidence they collected, acquired, investigated, reported and testified in court, are not covered by the rigorous requirements of these Rules. But I have argued to the contrary. While the rules do cover cases where cybercrime warrants were issued, the general import and intent of the rules, as well as the provisions, apply to all cybercrime cases, in terms of gathering and surrendering the electronic evidence to the court that acquired jurisdiction over these cases.

I exposed the major arguments and tactics I experienced which government employed and private DFIs use in avoiding the requirements of these Rules, so they would not turn over any electronic evidence they acquired to the courts. One disingenuous strategy they employ is to foist their DFIR as the actual legal substitute for the electronic evidence itself, in attempts to hoodwinking the courts and preventing the opposite parties to examine the electronic evidence by their own DFIs. I gave the participants the arguments I used in thwarting this highly irregular and unethical strategy in actual cybercrime cases where I served as the consultant of acquitted accused.

Dr. Atty. Noel G. Ramiscal with Atty. Vince; the MCLE Committee Head, Atty. Kenneth Lim; and the IBP Dipolog Pres., Atty. Augustus Alegarbes, June 20, 2023 presentation of plaque of appreciation

Another very important evidentiary stronghold that unethical DFIs would attempt to bypass is presenting evidence of the Chain of Custody (CoC) they should have established and recorded from the time they collected the e-data up to the time they turned such data to the courts. The DFIRs I have encountered in my practice do not contain any log sheet or any record of everyone who had, apart from the DFI, accessed, examined, or handled in any way, any of the e-data that the DFI acquired for his/her investigation. In my view, without the proper presentation and validation of the evidence of the CoC, the DFIRs, even the testimony of the DFIs should be disregarded because there is no proof that the original e-data collected, acquired, preserved, and examined by the DFI had not been altered in any way, by any party. The evidentiary requirement of CoC is a must in all types of cases where the evidence is quite volatile or easily corruptible, like e-data.

As many lawyers are not trained in law schools and even in MCLE seminars in the technological aspects of their practice, I told them they must persevere in their own pace and time, in learning about these matters and must not be intimidated by the task of perusing DFIRs. They must remember that no matter how technical the processes and the reports apparently seem, they still must conform with the rudimentary requirements stated in our evidentiary rules and the Constitutional right to due process. 

Dr. Atty. Noel G. Ramiscal at the Dipolog City Center, June 20, 2023

I cannot thank enough the forward thinking MCLE Committee Head, Atty. Lim, who is himself, a cyberlaw specialist, and the entire IBP Dipolog officers and members headed by their gregarious President, Atty. Alegarbes, their accommodating Vice Pres. Atty. Fevie Gador, the gracious lawyers (Attys. Vince and Byrne) who took my pictures using my ancient mobile phone, before it conked out, and all the participants for their generosity of Spirit! God Bless!

Philippine Lawbytes 234: Technology Facilitated SOGIE Violence and the Historic IBP Dipolog Chapter and DIPAG Alliance for Upholding LGBTQIA+ Peoples’ Human Rights, by Dr. Atty. Noel G. Ramiscal

June 22, 2023 was a historic day in the ongoing PRIDE battle for the recognition of the rights of the LGBTQIA+ peoples, as human rights, in Zamboanga Del Norte. For probably the first time in the history of the Integrated Bar of the Philippines (IBP), at least in this province, the IBP Dipolog Chapter entered into a Memorandum of Agreement (MOA) with the DIPAG Rainbow Collective, an association of activists, advocates, and allies of the LGBTQIA+ peoples in Zamboanga Del Norte. The MOA contains the legal obligation of the IBP Dipolog chapter to assist in protecting the human rights of this vulnerable sector in legal cases, with the utilization of the free legal aid clinics of several law schools in the province. The IBP Quezon City Chapter was supposed to also sign a MOA with the IBP Dipolog Chapter relative to this matter, but unfortunately their representative could not arrive due to flight issues.

The whole MOA signing between the DIPAG Rainbow Collective Head, Mr. Adrian Jay Alforque, and the IBP Dipolog President, Atty. Augustus Alegarbes, was part of the SOGIE and Technology Symposium that was primarily sponsored by the Jose Rizal Memorial State University or JRMSU (with the VP for Academic Affairs, Dr. Jay Telen, and its Dean of the College of Law, Atty. Mark Jasper Cielo, in attendance, with the latter acting as Moderator in the Open Forum), and supported by the Hon. Chad Martin Paler, the Executive Judge of the MTCC, Dipolog City, who gave an insightful Message on the lot of our LGBTQIA+ brothers and sisters. The Symposium was opened by the IBP Dipolog Chapter Vice Pres. Atty. Fevie Gador, and was attended by professionals, allies and LGBTQIA+ activists, and students from the JRMSU, the Andres Bonifacio College and the Philippine Adventist College.

IBP Pres. Atty. Alegarbes, Ms. Juanita Ramiscal, Exec Judge Paler, Atty. Mark Cielo, Atty. Fevie Gador, June 22, 2023, SOGIE Tech Symposium, Dipolog

Two speakers graced the Symposium. The first was Mr. Alforque, the current Punong Balangay or head of the Dipag Rainbow Collective, which is one of the active LGBTQIA+ groups in Dipolog. He delivered an engaging lecture entitled “SOGIE 101” focused on the fundamentals in understanding the issues concerning the spectrum of sexual orientation, gender identities and, representation of the LGBTQIA+ community, and the struggles of getting the SOGIE Bill passed into law, versions of which had been languishing in the Senate and the House of Representatives since the first one was filed in the latter, in January 26, 2000, by then Congressperson Loreta Ann Rosales (https://issuances-library.senate.gov.ph/bills/house-bill-no-9095-11th-congress-republic).

Dr. Atty. Noel G. Ramiscal, wearing the colors and symbols of his non-binary tribe, on his self-designed blazer, prior to his lecture on SOGIE Based Tech Facilitated Violence, June 22, 2023, Dipolog

The second speaker was yours truly. I began by relating some of the most rabid forms of discrimination and violence I had experienced in my personal and professional life as an advocate, and member of one of the least known “tribes” which is not even in the letters of the community, but included in the “+” sign, i.e., non-binary. Ignorance, hatred of the unknown, and intolerance for alternative ways of Being, manifested in various forms of assault, job and relationship rejections, were some of the travails I had to go thru and overcome just to claim my Self and own my Space, because I never pretended or hid what I am. I had friends and clients who died from the hands of others or from their own because of what they are. And in reflecting on these, I presented to the audience the list or worldwide beliefs that the World Health Organization have pinpointed as those that engender SOGIE based violence, together with some of the most virulent religious and cultural beliefs against women and LGBTQIA+ peoples that fuel and are used as justifications by abusers to perpetrate the never-ending cycle of aggression and brutalities committed against these peoples for millennia.

Dr. Atty. Noel G. Ramiscal’s SOGIE Based Tech Facilitated Violence Lecture, on IoT Violence, June 22, 2023 SOGIE Tech Symposium, Dipolog

Executing these abuses in cyberspace bring different dimensions that are often misunderstood or downplayed particularly by law enforcement authorities (LEAs). The anonymity that technology enables the abuser, particularly to victims who are not tech savvy can lead the latter to feeling unsafe, depressed, and helpless. Abusers can have constant access to their prey survivor through connected devices, which can mean possibility of 24-7 abuse. Digital content can be replicated in perpetuity, in different platforms, and can be used by abusers in teaming with others to organize attacks on their prey, which can effectively lead to the victims shutting down, and even ending their lives. Thus, LEAs should never minimize the effects cyber abuse, and must also be aware of the egregious effects of intersectional violence on the LGBTQIA+ members.

Dr. Atty. Noel G. Ramiscal discussing virtual rape in the metaverse, SOGIE Based Tech Facilitated Violence Lecture, June 22, 2023 SOGIE and Tech Symposium, Dipolog

I then introduced the participants to the types of technologies that can be used in committing these violent acts, the first recorded instance of sexual harassment in a video game and the first virtual rape in the Metaverse, and how the current safeguards in the worlds of these “augmented realities” are not enough. Since the lecture was just two hours, I trust that the Symposium would lead to a series of Symposia that can further explore and elucidate on the various complexities of the topics discussed.

Dr. Atty. Noel G. Ramiscal with DIPAG Rainbow Collective’s Punong Balangay, Mr. Adrian Alforque, during the Open Forum, June 22, 2023, SOGIE Tech Symposium, Dipolog

The open forum featured Mr. Alforque and me as discussants. It is in this part that the relative maturity and keenness of appreciation of the difficult SOGIE issues by the audience of young professionals and students showed through. We had a very substantial discussion with the audience, from building a consensus to the use of gender free bathrooms to the difficulties we experienced as LGBTQIA+ activists.

Dr. Atty. Noel G. Ramiscal, with JRMSU Law School Dean Atty. Mark Cielo, DIPAG’s Mr. Adrian Alforque, and IBP Dipolog Vice Pres. Atty. Fevie Gador, June 22, 2023, SOGIE Tech Symposium

Two matters that I must mention. First, there was a question on apparently competing “realities”, which is what is currently happening in the U.S., and had to some extent been influential in the Philippines concerning the development of LGBTQIA+ activism and its future. Mr. Alforque was right that the Philippines has its own history of native LGBTQIA+ roots and activism. For my part, I stated that we should be on the lookout against false narratives being disguised as alternative truths, which is what the Trumpian presidency represented, and for not accepting the ultra-conservative Republican view of defining and reducing human sexuality to chromosomes that can lead to the further erosion of what little rights are given to LGBTQIA+ peoples.

Dr. Atty. Noel G. Ramiscal, Mr. Adrian Alforque, and some of the wonderful attendees, and LGBTQIA+ activists, advocates, allies at June 22, 2023 SOGIE Tech Symposium, Dipolog

Then there was the reaction of “idealogical extremism” to what I said as the right of a child, or a person to decide their SOGIE. I had to place this point in context. In case of intersexuals, who were born with indeterminate or ambiguous genitals, no doctor, and no parent has the right to decide the SOGIE of the child at the moment (or even several years after) they were born by operating on the child’s genitals to make it appear of a certain sex. This right should be given and exercised by the intersexed person at the time they can determine who they are, SOGIE wise.

For trans youth or transpeople, it is a different matter. They already know what their SOGIE are, almost always from a very young age. I made it very clear, that even if the decision to transition and undergo sexual reassignment surgeries (SRS), resides on the trans person, if the SRS is considered as a remedy for gender dysphoria at a young age, there should be a concerted effort between the person, the parents, the doctors, and in some cases, the judges (if the trans person is a ward of the State), to determine the best time, treatment, procedures and therapies for the trans person. This calibrated, considered approach would belie any claim of caprice and ideological extremism from anyone who would take the time to know what was actually done.

Kudos again to the IBP Dipolog Chapter, its officers and members, and to the DRC for their momentous undertaking, to the JRMSU for its valuable support, and to all the young professionals and students from different schools who attended this worthwhile Symposium. Especial and heartfelt gratitude to my mother, Juanita Ramiscal, for supporting, accepting and loving me unconditionally since birth, and to the God Within, that has revealed to me what I was seeking all my life first in the cavern of Bethlehem, in 2018, and every second since! May the tribes of LGBTQIA+ activists, advocates and allies increase! God Bless!

Philippine Lawbytes 233: Viral Legal and Judicial Misconduct (Part 4) The Lorredo Case and Why the SOGIE Bill Must be Passed and Implemented as Law, by Dr. Atty. Noel G. Ramiscal

The following Passage in the Lorredo case shows why a specific SOGIE law must be passed and implemented effectively in the Philippines:

…(T)he Court has always espoused care in the conduct of judicial proceedings, ever sensitive not to unjustifiably offend the litigants and erode the public’s confidence in our justice system. Thus, any form of discrimination by reason of gender or sexual orientation made by a judge and directed against any person with business before the court shall never be tolerated and must be strongly rebuked. Judge Lorredo must be reminded that the Court has already made a recognition of the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. The Court is cognizant that they have suffered enough marginalization and discrimination within our society. It is not difficult to imagine the reasons behind this censure – religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of members of the LGBTQIA+ community themselves and their perceived lifestyle. Inasmuch, however, that these so-called “generally accepted public morals” have not been convincingly transplanted into the realm of our law, there should be no reason for judges to add to the burdens of members of the LGBTQIA + community through the swift hand of judicial review, or to effectively lend a hand in perpetuating the discrimination they face, whether that effort is self-evident or thinly veiled under claims of religious beliefs or freedom of expression (p 17, bold, italicized, underlined emphasis supplied).

The quoted passage is significant for three reasons:

MERE REBUKE AS OPPOSED TO DISBARMENT IN THE GADON CASE

First, the Court circumscribed the specific sanction of “rebuke” to judges who exercised SOGIE discrimination against any person who have “business before the Court”. In doing so, the Court apparently limited the type of sanctions against judges who are LGBTQIA+ averse in their dealings with members of this community.

In the Gadon case, the Court considered the online intemperate, sexist, misogynistic remarks of Mr. Gadon against a cisgender, and apparently heterosexual female journalist, which was committed outside of any court’s premises, as worthy of disbarment.

But in the Lorredo case, the Supreme Court did not consider the direct face-to-face Biblical badgering and homophobic slurs by respondent judge in the preliminary conference, and those stated in his Comment, against the complainants and his patently explicit LGBTQIA+ intolerance against his fellow judges whom he perceived as gays, to be on the level of the sexist spite spewed by Mr. Gadon.

In the Supreme Court’s view, the behavior of respondent judge in this regard only merits rebuke. This on its face is completely bewildering, considering judges are “frontliners” in dispensing judicial services and how they treat those who have “business before the Court” gravely impacts on the whole judicial system.  

LGBTQIA+ RIGHTS HAVE NOT BEEN “CONVINCINGLY TRANSPLANTED” INTO PHILIPPINE LAW

Second, the Court made much of its previous recognition of the marginalization and discrimination suffered by the LGBTQIA+ community in the Ang Ladlad (Ang Ladlad LGBT Party v. Commission on Elections, G.R. No. 190582, April 8, 2010, 618 SCRA 32) and Falcis (Falcis III v. Civil Registrar General, G.R. No. 217910, September 3, 2019) cases. But as SOGIE awareness and acceptance of certain values in this community have seeped into the “generally accepted public morals”, the Court was quick to point out that these “public morals” have “not been convincingly transplanted into the realm of our (Philippine) law”.

To a certain extent, the Court here is correct. There is no black letter law that expressly grants the LGBTQIA+ community legal protection and recognition of the needs and rights that the conventional heteronormative legal system operated by mostly straight legislators, think are specific to the community, which is the reason why the SOGIE Bills have languished in the legislature since the first one was filed in January 26, 2000.

Despite the age-old cry of LGBTQIA+ members, activists, advocates and allies that LGBTQIA+ rights are human rights, there is still this narrow view that the rights of the LGBTQIA+ members are different from the rights of heterosexual people who are the dominant members of Philippine society.

Though it has the power to legislate because its decisions become part of the law of the land, being a conservative branch of government, it is highly unlikely that the Supreme Court would pave the way for the express legal recognition of the rights of the LGBTQIA+ peoples. Let us not forget the majority statement in the Ang Ladlad decision:

… Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision…

It is quite clear then, that only a black letter law can remedy the lack of protection for LGBTQIA+ members at this stage, so they can hold this up in the face of the indignities that they go through with members of the judiciary who are less enlightened and are in fact averse to their very presence.

THE SAFE SPACES ACT AND WHAT SHOULD HAVE BEEN DONE AS A MATTER OF JUSTICE

Third, even if the “generally accepted public morals” concerning SOGIE and LGBTQIA+ peoples have not been transplanted into law, the Supreme Court did not mention the Safe Spaces Act which provided the legal framework to sanction what Judge Lorredo did as a crime.

Since the Biblical badgering and homophobic slurs he subjected the complainants to happened in a preliminary conference in court that was held in a public building, that can be considered as a “Gender-Based Streets and Public Spaces Sexual Harassment” defined under Section 4 of this law. The law punishes this act under Section 11 depending on the number of violations the accused had already committed.

Since the respondent judge admitted to having used the Bible in settling 101 cases, it was imperative as a matter of Justice to check just how many times he used the Bible to inflict his homophobic, sexist comments and Biblical badgering against the members of the LGBTQIA+ community who appeared before him prior to the complainants.    

CONCLUSION

It is worth remembering what U.S. Justice Cardozo wrote in the past century: The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by [Benjamin N. Cardozo [The Nature of the Judicial Process 168 (1921)]. Their conduct, as well as their decisions, impact the lives of the parties, and those who depend on these parties, that appear before them. They are NOT a privileged class and they should not be treated as such.  

Finally, it deserves stating that judges and justices owe their salaries and hefty pensions to Philippine taxpayers which include the members of LGBTQIA+ community. In this current millennium, there is no room in the judiciary for judges/justices who spew hatred, sexism and discrimination on parties that appear before them cloaked in their biblical interpretations, entwined with their judicial actions. Religious beliefs should not be used as an excuse not to dismiss and disbar apparently bigoted judges/justices whose words and actions make the courts even more toxic and hostile to LGBTQIA+ peoples.

Philippine Lawbytes 232: Viral Legal and Judicial Misconduct (Part 3) Overlooking the Constitutional Infractions and Apparent Gross Incompetency in the Lorredo Case, by Dr. Atty. Noel G. Ramiscal

In a befuddling twist in the Lorredo case, the Supreme Court did not agree with the characterization of the Judicial Integrity Board’s finding of gross misconduct, but determined that he was only liable for simple misconduct, conduct unbecoming of a judge, and sexual harassment under Civil Service Commission Resolution No. 01-0940. He was suspended without pay for 30 days, and fined a total of Php50,000.

Judge Lorredo’s Clear Homophobic Aversion and Prejudice Against the LGBTQIA+ Community as Not the Kind of Bias or Prejudice That Would Warrant Removal from the Bench or Disqualification from a Case

In a case that raises questions of “choosiness” and confusion, the Court stated that Judge’s Lorredo’s badgering questions, his Comment to the Complaint, and his comment regarding his fellow judges he view as gays, are homophobic slurs, and established his personal aversion to the complainants whom he viewed as gays, which his God does not like.

However, such level of personal bias or prejudice he exhibited does not meet the judicial standards for a bias or prejudice to inhibit or disqualify a judge from a case or overturn a ruling. For partiality to be established, the Court reiterated that: (1) there must be adequate evidence to prove the charge; (2) there must be showing that the judge had an interest, personal or otherwise, in the prosecution of the case at bar; and (3) the bias and prejudice must have stemmed from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case (Cabañero v. Cañon, A.M. No. MTJ-01-1369 (Formerly A.M. OCA LP.I. No. 99-784-MTJ), September 20, 2001, 365 SCRA 425). Here, the Court observed that none of the elements were present, and in particular, Judge Lorredo was able to justify his actions because the complainants had no right to the occupied property.

With respect, this ethics case is far removed from the elements established in the Cabañero case. This case was not about Judge Lorredo’s having any legal basis for saying that the complainants had no right to occupying the house they were being evicted from.

This case was about his unethical horrendous treatment of the complainants thru his relentless badgering about their sexual orientation which is a matter that is private between the parties, and had objectively nothing to do with their eviction.

Judge Lorredo overstepped the judicial boundaries of decency, propriety and legality, when he badgered the complainants about their sexual orientation, and used the Bible, or more accurately, his interpretation of some unstated parts of the Bible which he used as the foundation, to make a very discriminatory statement against the complainants (i.e., God is punishing them for being homeless because they are gays) which he believed to be related to their eviction, and to shame them to settle the case! This is an egregious example of judicial perversion of both the Bible and the law, that must be exposed to all and sundry.

Judge Lorredo’s Admitted and Repeated Intentional Disregard for the Constitutional Rule on the Separation of Church and State and Proscription Against Biblical Badgering and Apparent Gross Incompetency  

The Supreme Court stated that in “order to differentiate gross misconduct from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule, must manifest in the former” (Office of the Court Administrator v. Reyes, A.M. No. RTJ, 17-2506, November 10, 2020, p. 9, cited in fn 61 of this case, bold, italicized, underlined emphasis supplied). The Court noted that none of these elements were present.  

The Supreme Court overlooked the significance of his admissions which included him having “admitted to having settled 101 cases using the Bible”!

The 1987 Constitution proscribes that the separation of the State from the Church “shall be inviolable” (Article II, Section 6) which prohibit judges from using their religious beliefs to interfere with their functions, and affect their judgments. Furthermore, the same Constitution mandated that all court decisions must state “clearly and distinctly the facts and the law on which it is based” (Article VIII, Section 14). Nowhere did it state the inclusion of the Bible.

The Court noted in its decision that respondent judge had, in this particular case, allowed “his religious beliefs to impair his judicial functions” (p 15). In admitting he settled 101 cases using the Bible, he had clearly, intentionally, and flagrantly violated the Constitutional rules 101 times, resulting in 101 instances of gross misconduct!

It is also a red flag indicator of the apparent gross incompetency of the respondent judge to conduct a proper preliminary conference. The Judicial Integrity Board (JIB) stated in its decision that “he should be advised to study and learn how to conduct preliminary conference” (see fn 21 of the Supreme Court decision). Obviously settling 101 cases by using the Bible is NOT the proper way to conduct preliminary conferences, from the JIB perspective. And nowhere in the Rules covering preliminary conferences and pre-trial conferences is the use of the Bible allowed or mentioned.

Unfortunately, the Supreme Court did not look into any of the 101 instances of intentional violations of the Constitutional rules, nor did it give any attention to the recommendation of the JIB, which reflect on the apparent gross incompetency of respondent judge.  It ruled only on this specific case as an apparent separate instance.

Had the Supreme Court considered the cumulative amount and impact of the 101 violations the respondent Judge admittedly committed, and his evident incompetency in handling preliminary conferences, it stands to reason that the penalties imposed upon the respondent judge should have been greater, and can possibly be enough to remove him from the Bench, and even the Bar.

Philippine Lawbytes 231: Viral Legal and Judicial Misconduct (Part 2) The Sexual Harassing Bible Badgering METC Judge, Jorge Emmanuel Lorredo, by Dr. Atty. Noel G. Ramiscal

Taking a cue from Gadon’s point of the Court being “choosy” in its application of the ethics rules, I would like to bring to the attention of those who may not be aware of the Supreme Court’s decision in a 2022 administrative case re a judge that might have been missed by almost all LGBTQIA+ members, activists, advocates, and allies. This is the case of Marcelini Espejon and Erickson Caboneta v. Judge Jorge Emmanuel Lorredo, A.M. No. MTJ-22-007 (Formerly OCA IPI No.19-3026-MfJ), dated March 9, 2022.

The brunt of the ethics complaint against this presiding judge of Branch 26, MeTC of Manila is his sexual harassment of the two complainants who appeared before him in a preliminary conference regarding an eviction case. The sexual harassment took the form of his badgering the complainants with repeated recorded questions and insinuations concerning what he perceived to be their sexual orientation, i.e., homosexuality, which he disapproved of, since according to him, his God dislikes homosexuals. The following is an example of his “questioning” at the preliminary conference:  

The Supreme Court noted another of his recorded statements in open court putting the blame of unfortunate events, this time, the death of a child due to the Dengvaxia vaccine, on the sexual orientation of a party, thus: 

“Pagkabading, tomboy, lesbian, ayaw ng Diyos ‘yun” and “So, pag meron kang lesbian relationship, paparusahan ‘yung anak mo. Dengvaxia di ba? Kayo din kasi may kasalanan din sa Diyos… May sin siya, lesbianism. Oh paparusahan yung anak niya, yung apo niya”

[Dr. Atty. Ramiscal’s English Translation: Those gays, lesbians, God does not like them…So if you have a lesbian relationship, your child will be punished. It’s Dengvaxia right? That’s because you have sinned against God…She has sinned, lesbianism. Her child, grandchild will be punished, p 11, see also SC Public Information Office Statement “SC Adopts JIB Recommendation, Suspends Judge for Uttering Homophobic Slurs in Court”, July 7, 2022, Reported In: https://news.abs-cbn.com/news/07/07/22/sc-suspends-manila-judge-over-homophobic-remarks; and https://malaya.com.ph/news_news/sc-suspends-judge-showing-prejudice-to-gay-people/]

On the same proceedings, he also remarked on the travails of fellow judges whom he perceived are “bading” (gay):

Going further along the TSN of Civil Case No. M-MNL-18- 08450-SC, even Judge Lorredo’s co-judges were not spared from his self righteous observations:

COURT: Daing Judge bad[i}ng eh. Pag kinakausap ka hindi naman, akala mo mas marunong sila sa Bible eh.

(Dr. Atty. Ramiscal’s English translation: Complaint of gay judge. If they talk to you, you would think they know more than the Bible)

xxxx

COURT: Kasi ang titigas ng ulo eh. Judge daw si!a, akala nila alam na nila. Puro sakit. Pagka, nagla-lunch kami kinukuwento niya, sakit ng tuhod, di maka-akyat dito, puro pr[o]blema sa staff niya, kasi pagka-bad[i]ng, tomboy, lesbian, ayaw ng Diyos yun. x x x

(Dr. Atty. Ramiscal’s English translation: They are all stubborn. They think they know everything because they’re judges. But they have pains. If we have lunch, they would tell of their pains on their knee, they could not climb, they’re filled with problems with their staff, this is because God does not like gays, lesbians).

In his own Comment to the Complaint, he explained it was merely his intention to warn complainants about his God’s dislike for homosexuals. He expressly stated that “[b]eing a homosexual pervert x x x may be one of the reasons why a person is being punished by God with not having a home of his own and with being ejected.” According to him, as well, “squatters or people who have no place to call their own are being punished by God for their sins or for the sins of their ancestors.” Judge Lorredo cited Biblical passages to bolster his opinions and concluded that homosexuality was material in the case, which was all about ejectment.

Philippine Lawbytes 230: Viral Legal and Judicial Misconduct (Part 1) The Disbarred Lorenzo Gadon, by Dr. Atty. Noel G. Ramiscal

In June 28, 2023, news broke that the infamous Lorenzo Gadon, whose lambasts against the supporters of the former Supreme Court Justice Sereno as “bobo”, “tanga” and “putang ina mo”, went viral, was disbarred unanimously by the Philippine Supreme Court for his misogynistic, sexist, and abusive remarks addressed to the journalist Raissa Robles, which was contained in another viral video [The case was docketed as A.C. No. 13521 [Formerly A.M. No. 21-12-05-SC] (Re: Resolution dated January 4, 2022 in A.M. No. 21-12-05-SC against Atty. Lorenzo G. Gadon) and was decided by the court on June 27, 2023].

In an interview with ANC, Gadon stated that the Supreme Court’s disbarment decision was politically motivated, and showed the Court being “choosy” in dispensing its disciplinary authority, citing the alleged infractions done by other lawyers who remained unpunished (Gadon: SC disbarment ‘purely political’, doesn’t really matter to me, ANC, https://www.youtube.com/watch?v=LfgrPzyQXXk). In the interview, he said that the Supreme Court did not see the context of why he uttered such remarks, and furthermore he had no regrets in doing what he did because his president (Bongbong Marcos) won the last presidential elections.

For those who are interested, the video containing his remarks against Robles, showed him spewing again and again four specific denigratory remarks, translated in English by me: putang Ina mo (your mother is a whore); puki ng ina mo (your mother’s vagina) hindot ka (f*ck you), and magpakantot ka sa aso (get yourself f*ck*d by a dog) as his response to Robles’ allegations that Bongbong Marcos is a tax evader [https://www.youtube.com/shorts/CIAfTxrYKpM]

Disbarred Lorenzo Gadon’s Bilious Rant Against Journalist Raissa Robles

In disbarring him, the Court ruled that the video clip as “indisputably scandalous that it discredits the legal profession.” Citing Canon II on Propriety, of the 2023 Code of Professional Responsibility and Accountability, which imposes the standard that “[a] lawyer shall, at all times, act with propriety and maintain the appearance of propriety in personal and professional dealings, observe honesty, respect and courtesy, and uphold the dignity of the legal profession consistent with the highest standards of ethical behavior” the Supreme Court pointed out that Gadon unfortunately failed to realize that lawyers are expected to avoid scandalous behavior, whether in their public or private life.

The ruling reminded all lawyers that the “privilege to practice law is bestowed only upon individuals who are competent intellectually, academically and, equally important, morally. xxx xxx xxx There is no room in this noble profession for misogyny and sexism. The Court will never tolerate abuse, in whatever form, especially when perpetrated by an officer of the court” (https://sc.judiciary.gov.ph/court-unanimously-disbars-atty-lorenzo-larry-gadon-for-misogynistic-sexist-abusive-and-repeated-intemperate-language/). I do not dispute the Supreme Court’s unanimous decision on this case.

I do not dispute the Supreme Court’s unanimous decision on this case. Viewing the video clip is a particularly jarring, and unpleasant experience, for just about anyone who expects a modicum amount of civility as a requisite for surviving and dealing with members of any community, let alone from a supposed member of a profession that prides itself in protecting the Law as a “temple of justice” [Religious Affairs. vs. Estanislao R. Bayot (74 Phil. 579 (1944)]. It is also an example of how extreme the cult of personality and politics can rabidly mix and manifest, which is a potent recipe for electoral disasters and divisiveness in our already fractured society.

Philippine Lawbytes 229: The First “Live” Digital Forensic Fraud Lecture in the Philippines, Dr. Atty. Noel G. Ramiscal

My MCLE lecture for the University of Cebu Law School (UCLS) last May 6, 2023 was quite historic for me because it was the first “live” lecture on “Digital Forensic Fraud” by any lawyer in the Philippines, and it was certainly the longest, clocking in at three hours.

I had the opportunity to lecture on this topic for the MCLE provider ACCESS twice last year, via Zoom, but my lectures were just two hours each, so their scope had to be curtailed for me to impart the most essential tips and strategies for lawyers to recognize the indicia of fraud committed by digital forensic investigators and how they can legally respond to these instances of fraud. You can read about it here:

Philippine Lawbytes 222: The First Digital Forensic Fraud Lectures in the Philippine Mandatory Continuing Legal Education (MCLE) History

For the UCLS, I was able to discuss the essential elements in electronic discovery procedures in US civil cases which had been judicially refined thru decades of groundbreaking cases and synthesized into concise rules contained in the Federal Rules of Civil Procedure. Unfortunately, these rules had been transplanted in the Philippines by the National Privacy Commission in their own administrative procedures, even though the legal history, awareness, and the nuances in the judicial application of such rules and appreciation of the corresponding sanctions, are all lacking in the Philippine legal milieu.

Dr. Atty. Noel G. Ramiscal in his May 6, 2023 MCLE Lecture on Digital Forensic Fraud for the University of Cebu Law School MCLE Program

As an example of the complexities involved in e-discovery of digital evidence in civil cases that requires the utilization of digital forensic investigators (DFIs), I gave the recent case of Red Wolf Energy Trading LLC v. BIA Capital Mgmt., C. A. 19-10119-MLW, C. A. 19-10119-MLW (D. Mass. Sep. 8, 2022). It involved among others, the e-discovery of incriminating messages between the defendants contained in the web messaging platform “Slack”, which the plaintiff’s e-discovery expert found, but which the defendants did not disclose to the court. Defendants claimed to have hired a DFI who had no experience with “Slack” resulting in the alleged non-discovery of the messages, which the plaintiff’s expert witness countered could have been discovered by the simple use of a free in-built e-discovery tool in “Slack”, and the use of a standard e-Discovery tool which could have costed only US$10,000. In the end, the Court found for the plaintiff and rendered a judgment by default against the defendants for failure to produce all the relevant documents in the case, not once but several times, disobeying the court’s original 2019 order and delaying the trial of the case for three years. This type of nuanced judgment involving the technicalities of e-discovery of electronic evidence, using the US Federal Rules of Civil Procedure, which the NPC merely copied in their administrative procedures, have no parity with any Philippine court decision that I have encountered in my law practice, research, and advocacy.

Dr. Atty. Noel G. Ramiscal bringing his advocacy against “Digital Forensic Fraud” closer to the lawyers who attended his lecture on this matter at UCLS, May 6, 2023

I was able to also discuss the involving her conviction for the Bangladesh Bank heist that involved the Jupiter, Makati, branch of RCBC where she worked as a branch manager. The RTC Judge in January 2019 convicted her solely for being responsible for the loss by the Bangladesh Bank of US$81 million, which the court, thru the testimony of Rafael Echaluse, the Anti-Money Laundering Council (AMLC) secretariat officer who investigated the case. The court deemed that she used “her position in the bank and her banking knowledge and experience, hence accused Deguito was able to execute and implement these illegal transactions with ease”. This conviction was affirmed by the Court of Appeals in February 6, 2023. But what is disturbing in this case, which I discussed with the UCLS participants is the lack of digital forensic evidence presented against her by the prosecution, or in her support, by the defense counsel. I then presented to the attendees, the complicated series of cyber events that eventually led to the cyberheist. Ms. Deguito, even with her “banking knowledge and experience” could not have pulled off, what is largely a very technical cyber operation that could only be done by a State actor, or agents of a State actor, in the span of almost a year, involving several banks in different continents. Evidence of the operation and even the identity of the perpetrators, as investigated by the US FBI, can be found online, but these were apparently not introduced in the Deguito case. It is in cases like this, where the services of a competent reliable DFI is a crucial element to support and safeguard the rights of the accused, and the right of the Philippine general public and the RCBC depositors to know the whole truth.

Another thing that my UCLS lecture afforded me is the opportunity to discuss the importance of ascertaining the complete destruction of electronic evidence which could be by lawful or unlawful means. Since destruction of e-data necessarily entails the prevention of their e-discovery, which could be abused by digital forensic investigators, I showed to the participants how to prove the destruction of e-data in a lawful manner. I also gave tips and strategies on how lawyers and law firms can protect themselves against any legal action involving the destruction of e-data that is potentially subject to e-discovery for future litigation.

Dr. Atty. Noel G. Ramiscal receiving the UCLS MCLE Certificate of Appreciation from Prof. Atty. Ella Mae Mendoza, May 6, 2023 on Digital Forensic Fraud

Of course, I discussed the many ways that digital forensic investigators can perpetrate fraud against any party in any case, and against the Courts. As I emphasized to the participants, they have to know the right educational degrees and professional certification/s of the DFIs. I brought to their attention the sole legal educational standard developed by the Commission on Higher Education (CHED) on forensic scientists that was promulgated in 2012, that can apply to DFIs. I reviewed this standard prior to its passage, as the Technical Consultant of the CHED Chair, Dr. Patricia Licuanan, during that time.

Lawyers must familiarize themselves with the content of a Digital Forensic Investigation Report (DFIR), and know what the content actually translates to in the legal context. And most importantly, they have to understand and relate to the DFIR some of the most crucial concepts I discussed which could indicate if the DFIs did a great job or committed fraud, including digital hashing, hash collisions, write blockers, chain of custody, etc. As lawyers, and agents of the court, they must know the evidentiary tricks of DFIs, which I discussed, so they can act as gatekeepers to safeguard the judicial system from the admission of fraudulent evidence concocted by DFIs who do not act in the interest of Truth and Justice, but rather collude with agents of the State, or with third parties, to falsely incriminate innocent parties, and misdirect the Courts.

University of Cebu Law MCLE Certificate of Appreciation to Dr. Atty. Ramiscal re: Digital Forensic Fraud lecture given on May 6, 2023

Despite the three-hour period given to me, I was not able to cover all the relevant areas that are subject of digital forensic fraud. The thoughtful questions and insightful comments raised by the participants during my lecture and in the written comments they provided showed their high level of engagement and desire for more knowledge and training on this matter. Some expressed their desire for an internship, a full course, or a continuing course on the subject by me. One particularly expressed the wish of being trained by me. The hankering for more information and training on this subject which is not taught in any law school or even in previous MCLE seminars given by any MCLE provider, were also reflected in the comments given by the participants in the previous two ACCESS lectures I conducted last year.

Dr. Atty. Ramiscal with his mother, Atty. Archival, Atty. Mendoza, Ms. Che, & Mr. Tambolero, at Rico’s Lechon, May 6, 2023

Deepest gratitude to the UC MCLE “family” consisting of their founder, Atty. Augusto W. Go, their current Dean, Atty. Al-Shwaid Ismael, the MCLE Program Director, Atty. Josh Carol Ventura, the UC Bar Review Director, Atty. Lorenil Archival, and the MCLE support staff (Mr. Miculo Tambolero), for all their generosity in accommodating us at the very classy Waterfront Hotel, and for providing for all our needs, and to Mr. Macky, for serving as our chauffeur. We also would like to thank Attys. Archival and Mendoza, and Mr. Tambolero, who treated us to Cebuano specialties at Rico’s Lechon before we left. To all the UC MCLE “live” participants who made the seminar even livelier, including Attys. Parcon, Montenegro, Cabahug, Tan, and Dano, and all the generous comments given by the participants, who inspire me to better myself as a communicator, creator, and advocate of relevant legal content and knowledge for the betterment of service to clients and the protection of the Philippine legal and judicial systems, “Salamat gyud kaayo”!

Philippine Lawbytes 228: The First “Predictive Justice” Lectures in the Philippines’ Mandatory Continuing Legal Education (MCLE) Seminars, Dr. Atty. Noel G. Ramiscal

Always looking for innovative topics for MCLE lectures, I was inspired to create a whole new lecture on “Predictive Justice” in 2023, after the Supreme Court came out with its 2022 “Justice in Real Time: A Strategic Plan for Judicial Innovations 2022-2027 (A.M. 22-04-26, June 28, 2022) or the “SPJI”. In order for Philippine courts to be relevant in the age of Artificial Intelligence (A.I.) and the 4^th Industrial Revolution, the SPJI talked about a “re-engineered court system” that will have a digital infrastructure based on a “system wide process mapping” (Outcomes and Activities, p 10), that can contribute to the competence of its members. In doing so, the Supreme Court identified three areas where A.I. can come in: Transcription services, Legal research tools, and Case monitoring.

I had in the past delved on the use of “LegalTech” that incorporate A.I. algorithms and software to make the lawyers’ jobs easier, to the extent that some of these e-tools can replace some of the paid legal functions that lawyers do. But the prospect of developing a three hour lecture on “JudgeTech” tools that can be used for augmenting the jobs of judges, which can affect the way “Justice” is dispensed, profoundly intrigued me. It was the ACCESS MCLE provider that gave me the first chance to impart my newly minted lecture last March 18 and April 13, 2023.

ACCESS Certificate of Appreciation to Dr. Atty. Ramiscal’s synchronous MCLE Lecture on Predictive Justice April 13, 2023

In May 5, 2023, the University of Cebu (UC) Law School, as MCLE provider, gave me another opportunity to do so, but this time, it was in a “live” setting, i.e., in the UC Banilad Building Hall, in Cebu City.

My whole lecture focused on three parts: Delineation and Appreciation of the Context and Risks of “Predictive/Algorithmic Justice” particularly as “Legal Research Tools”; the Technical and Ethical Competence of Judges; and Judicial Viral Misconduct.

Dr. Atty. Noel G. Ramiscal during his May 5, 2023 MCLE lecture for the University of Cebu Law School on Predictive Justice

For this article, I would delve on A.I. tools, software and systems which had been utilized, or are currently being used by judges and justices in several countries. The term “predictive justice” has been applied to the dispensation of justice, by using any algorithmic tool or software that can analyze large and relevant datasets and come up with recommendations based on statistics and probabilities that judges can take into account in making their decisions in certain types of cases.

In Brazil, an A.I. software is being used by the Brazilian Supreme Court in conducting preliminary case analysis to reduce some of the research burdens on the Court. In India, an A.I. portal called Supreme Court Portal for Assistance in Courts Efficiency (SUPACE) was established for criminal cases, to help judges in their legal research and case monitoring. In Canada, the first A.I. driven online dispute resolution (ODR) settlement via an online ODR tool that analyzes the parties bidding tactics and strategies was made.

While plans in Estonia, to establish a robot judge to settle small claims disputes had fizzled, in China, some Shanghai courts have replaced clerks of court with A.I. assistants, and in Beijing, in 2017, some internet courts using A.I. software have been resolving cases without the assistance of human judges, and 98% of the decisions have not been appealed.

In the Philippines, there was a study made by DOST ASTI concerning the use of software in analyzing the decisions of the Supreme Court to predict the outcome of future criminal cases.  I have analyzed in detail the legal and technological implications of this research in some of my previous blogs.

Dr. Atty. Noel G. Ramiscal being interpellated by Atty. Montenegro, at his UCLS MCLE Lecture, May 5, 2023 on Predictive Justice

The SPJI alluded to the unnamed “risks” that A.I. poses when and if used in the Philippine judicial system (Outcome 2: Innovations, p 17). Unfortunately, the SPJI did not even provide any general guideline or standard that can help determine the legality and ethicality of using A.I. tools in assisting the work of judges and in helping them provide for example, a correct framework for assessing the merits of current cases, or the potential of any accused to recidivate. To provide a useful guidance on this matter, I discussed the controversies in the U.S.A., regarding software algorithms which had been used in determining bail amount and probation.

Due to the way A.I. algorithms are constructed and how A.I. tools “learn” from the data they are fed, they had been discovered to incorporate the biases of their creators, and discriminate against women, LGBTQIA+ people, people of color, or ethic minorities. They can be programmed by unscrupulous developers to assist in government corruption. They can also contain source code errors, and can suffer from “software rot”, which their creators and sellers try to hide by using the veil of intellectual property rights.

Ever since I started lecturing on the Law and Ethics involving A.I. in 2022, I have cited and discussed different international standards and frameworks that can actually serve as guidelines which can be used by Philippine legislators and regulators. Amongst these are: (European Parliament resolution of 20 October 2020 with recommendations to the Commission on a civil liability regime for artificial intelligence (2020/2014(INL)); Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL LAYING DOWN HARMONISED RULES ON ARTIFICIAL INTELLIGENCE (ARTIFICIAL INTELLIGENCE ACT) AND AMENDING CERTAIN UNION LEGISLATIVE ACTS, 2021/0106; the Asilomar Principles; and even Isaac Asimov’s Laws of Robotics. For Predictive Justice, I discuss the European Ethical Charter on the use of Artificial Intelligence in Judicial Systems and their Environment (2018), which was adopted by the European Commission for the Efficiency of Justice (CEPEJ).

Dr. Atty. Ramiscal’s Predictive Justice ACCESS MCLE lecture, with sample comment from a participant, March 18, 2023

I delved into the issue if A.I. tools, or “robo-judges”, or the “predictions” they provide to judges can be “legal” or “ethical”. Without going thru the philosophical and political underpinnings of such an endeavor, and basing my analysis exclusively on the constitutional, legal and regulatory standards that exist in the Philippines, I came to the conclusion that they are neither “legal”, nor “ethical”, nor permissible under the 1987 Constitution, and the relevant regulatory framework pertaining to judges, which all require judges to be “human”. The Philippine legal milieu would have to be adjusted or tweaked in order for A.I. tools or “robo-judges” dispensing some form of “legal” prediction or “decision” to gain legal acceptance.

Since the Philippines has no current law that actually regulates A.I., and no specific guidelines as to the use and regulation of A.I. predictive tools used in the judiciary, I brought to the attention of the participants several matters that can be used for developing safeguards as to what these A.I. predictive tools or systems should be fed on, in terms of judicial data. For instance, there has to be parameters set on what these data should include, from what courts should these data be sourced, and the establishment of the provenance of such data for authenticity and verifiability purposes. Content wise, I discussed several Supreme Court decisions that can be considered “bad” for their general and specific legal repercussions on the Philippine public welfare. Any predictive tool or software must, from the very start, incorporate a system of determining and excluding “bad decisions” from being part of the equation of “predictions” that these tools would suggest or recommend to judges.

In order to avoid mistakes that have happened in several jurisdictions (which I also noted in my critique of the DOST ASTI research), where the predictive tools were created by developers who have no expertise on the areas where the tools were going to be used, “multidisciplinarity” is key to the success of these tools. So for predictive justice tools, aside from judges, prosecutors, and lawyers, some of the professionals that can be tapped can, and should include, economists, sociologists,  philosophers, computer engineers, biologists, physicists, mathematicians, statisticians, psychiatrists, and medical doctors, to provide a wholistic view of how predictive justice can achieve its aim of assisting judges.

University of Cebu Law MCLE Certificate of Appreciation to Dr. Atty. Ramiscal re: Predictive Justice given May 5, 2023

I would like to especially thank the ACCESS management, their founders, Atty. Peaches Aranas and Mr. Alex Canata, the Adamson University College of Law, headed by Dean, Atty. Ada Abad, and the ACCESS technical support staff, for giving me the first opportunity to share my research and insights on this complex and very challenging topic via their synchronous MCLE sessions. Special note of thanks to all the ACCESS MCLE participants who gave me some of the greatest feedback I have received during my 15 years as MCLE lecturer, and it happened via Zoom!

Dr. Atty. Noel G. Ramiscal receiving the UCLS MCLE Certificate of Appreciation from its MCLE Director, Atty. Josh Carol Ventura, May 5, 2023 on Predictive Justice

Of course, greatest heaps of thanks go to the UCLS Founder, Atty. Augusto W. Go, the UC Law School Dean, Atty. Al-Shwaid Ismael, the UC MCLE Committee, headed by Atty. Josh Carol Ventura, the UC Bar Review Director, Atty. Lorenil Archival, the technical and support staff, and all the gorgeous, wonderful lawyers who gave me their valuable attention, and their insights, during my lecture, making my first “live” MCLE lecture since March 2020, all the more fun and memorable!