At long last, the die is cast. After repeatedly saying that Chief Justice Renato Corona need not take the witness stand in the impeachment trial against him, his counsel, out of the blue, assured the Senate that the CJ will take the witness stand.
The promise though appeared to have a condition: that is, that the Complainants against the CJ in a pending complaint in the Ombudsman, to wit, former Akbayan Representative Risa Hontiveros-Baraquel and Rep. Walden Bello, together with Harvey Keh, and no less than Ombudsman Conchita Carpio-Morales; should be subpoenaed by the Senate to appear purportedly as hostile witnesses in the impeachment trial. After which, the CJ’s counsel promised that his client will take the stand to rebut what these witnesses may say. This is interesting. While the nation has been left wondering about an alleged 700,0000 dollar account with PS Bank allegedly belonging to the CJ and yet undeclared in his SALN, the nation gasped with horror at the possibility that the CJ may have a lot more in his dollar accounts. In fact, the amount is mind-boggling: 10 Million or at least 420 Million pesos at today’s exchange rate.
There’s an obvious difference between the circumstances behind the 700,000-dollar placement and this later 10 Million deposit. In the case of the smaller amount, it was the Prosecution that asked the Court to subpoena PS bank to bring and present to the Court the documentary evidence for such an account. When asked by the Court where the Prosecution obtained its information about the account, the Prosecution panel claimed that a “small lady” in the gallery of the Senate gave it to Rep. Reynaldo Umali. It would later turn out that Rep. Jorge Banal of Quezon City had previously gone to the Katipunan branch of PS Bank to inquire about this 700,000-dollar account. Rep. Banal in turn, claimed that an unknown person left the documents at his residence.
The Supreme Court then came to the rescue of the embattled CJ when in a petition filed by PS Bank, the Court issued an indefinite temporary restraining order which effectively stopped the impeachment court from compelling the bank to produce all relevant documents relative to the $700,000 account. This time, the $10 Million dollar deposit was not even by reason of any document, even information, provided by the Prosecutors. Instead, what is clear on the basis of newspaper reports are: One, as alleged by veteran Journalist Ellen Tordesillas in a story published by Vera files, the Ombudsman allegedly had asked the Anti-Money Laundering Council to provide her with a copy of the documents establishing that the CJ has an undisclosed amount in dollar deposits in undisclosed banks. This, according to Tordesillas, the Ombudsman did in response to the complaint filed by Hontiveros et al.
Two, in a story carried exclusively by the Philippine Daily Inquirer, the CJ was allegedly asked by the Ombudsman to explain in writing within 72 hours how he acquired several peso and dollar accounts, described as “grossly disproportionate” to his salary. Quoting from Carpio’s order, the PDI reported that the CJ was allegedly asked to explain, among others, how he acquired dollar deposits with an “aggregate amount of at least US$10,000,000”.
It was because of this second story that Senators Miriam Defensor-Santiago opined that the Ombudsman could conduct a parallel investigation with the impeachment court on the CJ’s concealed dollar deposits. Senator Edgardo Angara , for his part, said that the impeachment court could accept evidence emanating from the Ombudsman in this regard. The legal basis for both Senators’ opinions is found in the Ombudsman law, which provides that the said office may investigate even impeachable officers for the purpose of recommending to Congress the initiation of impeachment against them.
Apparently, this was the game changer. While the CJ, through his lawyers, lawyers ignored the show cause letter of the Ombudsman arguing that the said office has no jurisdiction over an impeachable officer such as the Chief Justice, the results of such an investigation was nonetheless, the reason why the CJ will now take the stand. According to his counsel last Tuesday evening, this was to “rebut the testimonies” of Hontiveros and the Ombudsman et al, which presumably, will be adverse to the CJ. Obviously the nation will be glued to the proceedings specially when the Ombudsman takes the stand, which she has said she will. And the obvious question will no longer be whether such a huge deposit exists, which for all intents and purposes, appear to be admitted. The issue now is why he did not declare such an amount and how he acquired this huge sum.
The plot thickens. It’s definitely more fun in the Philippines!
President Aquino’s pronouncement in the United States that he would have family planning devices available to those who cannot otherwise afford them ushered in a storm probably surpassing the intensity of Ondoy that hit us last year.
On the one hand is the Catholic Church that has traditionally taken the view that artificial contraception is contrary to the teachings of the bible. It teaches its flock thus that spouses who want to plan the size of their families are limited either to natural family planning called the “rhythm method”, which unfortunately has largely proven to be ineffective and rather messy; or to abstinence, which to many Filipinos is like telling the sun not to rise.
On the other hand are advocates of the pending reproductive health bill which mandates that government, both national and local, should provide family planning devices for free so that those who badly need to plan the size of their families, the poor, can have access to them. Thus far, the debate has taken religious undertones with the church fulfilling its role as the guardian of morality, while RH bills supporters,in turn, highlight the separation between church and state. And yes, while both the church and the RH supporters differ in the methods by which spouses should plan the size of their families, both sides to the debate nonetheless somehow acknowledge, save perhaps for the very conservatives in the Church, that uncontrolled population growth will in fact lead to economic debacle given very limited resources available to an ever-growing population.
Thus far though, the debate has ignored the human rights dimension of family planning. This perspective finds its origin in a decision rendered by the United States Supreme Court in the famous case of Griswold v. Connecticut. While this is a foreign judgment and is, at most, persuasive in our jurisdiction, our own Supreme Court has adopted its ratio decidendi as part of our very own jurisprudence.
Griswold involved the criminal prosecution of a doctor and a couple who were accused of violating a Connecticut statute that made it illegal for doctors to prescribed artificial family planning devices to couples. Here, the petitioners were all convicted of violating the statute, which prompted all of them to appeal their conviction by challenging the constitutionality of the criminal statute.
While the petitioners could have questioned the constitutionality of the statute for violating the separation between church and state, and without doubt, the prohibition was largely influenced by the teachings of both the early Calvinist and the Roman Catholic Church, the petitioners instead focused on what they said was a right implied in the due process clause of the US Bill of Rights. We have adopted en toto the due process clause in our own Constitution. While there was literally no provision in the Bill of Rights that recognized the right to “privacy”, petitioners nonetheless argued that there are decisions that only spouses can make from themselves and which decisions should not be hampered either by the church or the state. Thus includes the right to determine the size of one’s family or the right to choose the number of children that couples would want. According to the petitioners, this is a right which is a “penumbra” or arising from the right to due process that protects both life and liberty against arbitrariness. In other words, while petitioners could have subjected their criminal conviction to the exact same debate that we are again having, they opted to altogether to skirt the debate by arguing that as a matter of human right, spouses have the absolute right to determine the number of siblings free from any interference from an anybody or any institution, full stop.
The arguments persuaded the US Supreme Court and hence, the rise of the right to “privacy”. This right is separate and distinct form the right to privacy in one’s communication and correspondence that is separately protected by the bill of rights. The Griswold type of privacy is the right to literally be “left alone” to make very personal decisions that only individuals can make for themselves. While it was originally applied in declaring the Connecticut statute imposing criminal sanctions to doctors and patients who will resort to artificial birth control methods as being unconstitutional, it has since also been made to apply in equally personal decision’s such as whom to spend the rest of one’s life with, and even in declaring criminal statutes prohibiting same-sex sexual encounters as being unconstitutional.
My point is this: the debate on reproductive heath, if conducted as one involving morality and separation between church and state, would be an endless and unproductive debate. This is why despite the fact that we are literally suffering from an unsustainable population growth, the debate continues. Perhaps, both the church and state, and their respective supporters, should cease to view this issue purely in terns of morality, which in the end is subjective. Instead, they should focus on the right of individuals to make very personal decisions for themselves. In this manner, the debate should cease as in lieu thereof, both church and state should defer to decisions to be made by people for themselves. Ultimately, this would mean empowering the people since it gives them the right to decide freely on matters that they should be the sole judges of.
Kudos and congratulations are in order for P-Noy for remaining steadfast on this issue. Previous controversies notwithstanding, his handling of this most sensitive issue has proven that he can rise up to the challenge and actually rule and lead this very troubled land of ours. Way to go, P-Noy!
Much has been said about the Truth Commission. While it is true that this body promised by President Noynoy Aquino as a means of ferreting out the truth on the many scandals of Gloria Macapagal Arroyo is in reality a toothless tiger, a superfluity, and will be the source of disappointment for many, it is still an exercise that must be resorted to if the Arroyos are to be held responsible for their many crimes.
The pitfalls of the commission are many. For instance, as a creation of the Executive, it cannot exercise powers beyond gathering facts. It cannot have the powers to issue summons, nor will it have the power to cite individuals in contempt. In other words, absent legislative imprimatur, it can only count on the willingness of crucial witnesses to testify and their voluntary submission of evidence.
To be sure, P-Noy’s Truth Commission is not the first in Philippine history. An earlier one was the Agrava Commission. It was formed to conduct factual investigation on who killed Ninoy Aquino. The appointed Chair of the Aquino Truth Commission was also legal counsel of the Agrava Commission. To highlight the weakness of fact-finding commissions, thirty years after the Agrava Commission was formed, we still do not know with certainty who killed Ninoy Aquino.
The Truth Commission is also being compared to the Presidential Commission on Good Government. The comparison at least is that both bodies seek to ascertain the sins of the previous dispensation. But that is the beginning and end of the comparison. For unlike the Truth Commission, the PCGG was a legislative creation, created pursuant to EO 1 issued by then President Corazon Aquino when she was exercising extraordinary powers that were both executive and legislative in nature. The PCGG could hence issue summons, order the production of evidence issue writs of sequestrations, and cause the filing of cases in court. The difference lies, in other words, with the fact that the law gave the PCGG extraordinary powers whereas the Truth Commission, being a mere creation of the Executive, cannot exercise powers not delegated to it by Congress, the latter in the exercise of its policy making mandate.
Can it compel, for instance, Romulo Neri to answer the three questions which would implicate Gloria Macapagal Arroyo in the NBN-ZTE scam but which were declared by the Supreme Court to be covered by executive privilege? Certainly not. If Congress, despite its plenary powers to conduct investigation in aid of legislation, was restrained by the Supreme Court, there is more reason that a mere fact finding commission would not succeed in this regard. Likewise, Cito Lorenzo, even if he wanted to turn state witness, could not count on the Commission to grant him testimonial immunity. It behooves both rhyme and reason why he would then incriminate himself voluntarily without being admitted first as a state witness.
Likewise, it is unlikely that the intelligence community, despite the chain of command, would voluntarily surrender information on the “Hello Garci” scandal. And of course, the Department of Foreign Affairs, still under Secretary Alberto Romulo, would not want to reopen the Northrail controversy as he would almost certainly argue that to do so would harm bilateral ties with China.
So is the Truth Commission completely irrelevant?
Not necessarily. In transitional societies like South Africa where convictions for the gravest human rights violation has become impossible because of the passage of time and the dearth of witnesses, truth commissions have at least accorded these societies an opportunity to heal. While justice was not completely served in the absence of criminals actually being meted sentences for crimes that they committed, the truth would at least give the victims an opportunity to move on. There is solace in knowing, for instance, that a loved one who has disappeared has conclusively been found to have been killed. These kinds of confirmations at least accorded mothers to grieve, rather than hope that their loved ones could still be alive.
The Truth Commission to be established by P-Noy should not, however, follow the pattern of the South African model. In truth and in fact, the Commission should meanwhile perform the fact-finding function that the Ombudsman has opted not to perform. With Merceditas Gutierrez appointed precisely to protect the Arroyos, the intention should be not to accord the latter impunity, but to engage in fact finding while there is paralysis, nay dereliction of duty, in the Office of the Ombudsman.
The Truth Commission should thus be supported precisely because the evidence against the Arroyos should be gathered and preserved while the merciless Mercy is still in office. It should never be considered as a substitute for the vast powers granted by the Constitution to the Ombudsman. It is, hence, a stop-gap measure intended to send the message that at no time should the Arroyos think that they can get away with their crimes.
Since the Truth commission appears to be a necessary toothless tiger, how then should the Commission proceed with its mandate?
To begin with, in the absence of legislative imprimatur, it must conduct its investigations utilizing existing executive offices with the powers that it will require. Here, it is indispensable that the Department of Justice formally conduct preliminary investigations on the many crimes of the Arroyos. In this manner, it can utilize its power to resort to compulsory processes, which the Commission does not have on its own. Furthermore, the Commission should also have the Solicitor-General on board. This is because existing laws on unexplained wealth grants the Solicitor-General the power to file forfeiture cases against proceeds of the crime of plunder and other violations of the Anti-Graft and Corrupt Practices Act. Likewise, the Commission should have the full support of the Anti-Money Laundering Council, if we are to freeze and still recover the ill-gotten wealth of the Arroyos and their cohorts.
Ombudsman Merceditas Gutierrez proves anew her loyalty to the Arroyo’s. As if on queue with the homecoming of Cito Lorenzo, she filed charges for mere malversation of funds against Bolante and Lorenzo instead of Plunder in connection with the Fertlizer Fund Scam. The charge does matter. Malversation is bailable, while plunder is not. Moreover, despite the fact that Mrs. Arroyo no longer enjoys immunity, she did not include her in the charge sheet. What was the use of sitting on the fertilizer scam case for 5 years if she did not charge one who no longer has presidential immunity after she finally took action on the case? The Filipino people are screwed anew. When evidence was submitted by the Senate that 728 Million of taxpayers money was spent for liquid fertilizers intended for orchids, delivered to non-existent framers groups, and diluted with water, these were already at least three separate criminal acts that qualified the scam into an act of plunder. This decision, therefore, is legally erroneous, disadvantageous and malicious against the Filipino people.