Rape and probable cause against Del Castillo

Voting 38-10, with no abstentions, the House of Representatives Committee on Justice determined the existence of probable cause for betrayal of public trust against Supreme Court Associate Justice Mariano Del Castillo. This is the latest in the saga of the Malaya Lolas, victims of mass rape during World War II, who have been fighting for redress for the past 60 years. The impeachment, together with the Lolas’ motion for reconsideration pending in the case of Vinuya et al vs. Executive Secretary, are the last remaining legal attempts to obtain justice for these victims.It was my first time to attend the House proceedings. Last week, four of the Lolas trooped to the Committee to give evidence to prove the existence of probable cause against the magistrate. Unfortunately, in the one and only time I could have spoken on behalf of the Lolas in Congress, I happened to be abroad to deliver plenary remarks in an international conference to mark the tenth year of the International Criminal Court in Sydney, Australia. I would have preferred to talk on behalf of the Lolas in Congress. Unfortunately, my restricted and non-refundable ticket to Sydney had already been issued by the time I received my invitation to the Committee hearing. It was my law partner Joel Butuyan and the Executive Director of Center for International Law, Romel Bagares, who went to represent the Lolas in Congress.But just as the Lolas were giving their testimony in Congress, I too was discussing their plight in the ICC conference. Before an audience consisting of the “ who’s who” in international law, I discussed lessons learned and challenges arising from the Philippine accession to the Rome statute of the ICC. One such challenge is the ability of the Philippines to exercise primary jurisdiction in crimes cognizable by the ICC. I argued that the decision in Vinuya, the Lolas’ case, is evidence of a lack of capacity of our courts to apply the basic principles of international criminal law. This may be a from of “inability” to exercise primary jurisdiction. The good news is that this would justify the ICC prosecuting similar crimes in the future without offending sovereignty.

The audience was in disbelief when told about the Vinuya decision They could not understand why the Court declared that the waiver of further reparations provided in the San Francisco Peace pact should prevail over the jus cogens norm against rape as a war crime and the duty to provide redress to victims thereof. That the women are entitled to reparations despite the waiver of further reparation has been the consistent position of the United Nations, particularly the Special Rapporteur on violence against women and the Committee on the Elimination of Discrimination Against Women. Since the pendency of Vinuya, the South Korean Constitutional Court has expressed the same opinion. Only recently, the latter ruled that a failure of the South Korean government to espouse their comfort women’s claim is unconstitutional.

Worse, the audience was baffled with our Court’s opinion that rape only became criminal in the 1990s as a result of the decision of the Rwanda tribunal in the case of Prosecutor v. Akayesu. This was what prompted me to instruct my law associates to look at each and every footnote cited by the Court in Vineyard. Simply put, that conclusion was wrong.

Back to the Congressional hearing, much of the time spent prior to the voting on the existence of probable cause was whether the plagiarism and the twisting complained of by the complainants were serious enough to warrant impeachment. The chairman of the committee, Rep Neil Tupas, started the hearing by reading from the proceedings of the constitutional commission. It was clear from what Tupas read that betrayal of public trust as a impeachable offense is new. It was added to include acts which may not be criminal- but could still affect the fitness of an impeachable officer to hold office.

Yesterday’s ruling was ground breaking not only insofar as the Lolas’ quest for justice is concerned. In Roque v. De Venecia, our Court ruled that the definition of betrayal of pubic trust is beyond the ambit of judicial review and is a political question, The question was given an answer yesterday: 32 counts of plagiarism and the twisting perpetrated by Justice Del Castillo in Vinuya, albeit allegedly without intent, constitute betrayal of public trust.

Future magistrates, beware.

Published in: on February 23, 2012 at 2:19 am  Comments (1)  
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Corona’s (not so) secret account

 

The crown's dollars

 

I expected Annabelle Tiongson, manager of the Katipunan Branch of PSBank, to do as she did. Why shouldn’t she? As Niñez Cacho-Olivarez reported, the bank document that formed the basis for the prosecutors to subpoena Chief Justice Renato Corona’s dollar account at PS Bank came from Tiongson herself. Had the Senate ignored the court ruling enjoining the opening of this dollar account, Tiongson would have been the Clarissa Ocampo of this impeachment trial. But because the Senate honored the Court ruling, the best course of action for her was to deny its authenticity.But should the nation believe her hook, line and sinker?

Of course not. To begin with, no less than Corona, by seeking an order from his colleagues at the Supreme Court to restrain the opening of his dollar account, has himself admitted that the said exists. If it is but a figment of the prosecution’s imagination, as the defense would want us to believe, what is there to be restrained by the Court? Any which way, the mysterious dollar deposit works in favor of the prosecution, and courtesy of the CJ’s actuations at that.

There is  a presumption in our rules of evidence that he who suppresses the presentation of evidence does so because it is against him. Here, the chief justice’s insistence on secrecy can only be because the existence of the dollar account will prove anew that he failed to declare his dollar deposit in his SALN.

In any case, the PSBank dollar account is only icing for the prosecution. What is undeniable now is that Corona did not declare a total amount of P31 million cash in his SALN. The defense insists that SALNs are subject to correction. Cuevas should tell that to the court interpreter in a Regional Trial Court in Davao who was fired because he failed to declare in his SALN a market stall. Said the Court “We have repeatedly held that although every office in the government service is a public trust, no position exacts a greater demand for moral righteousness and uprightness from an individual than in the Judiciary x x x Personnel in the Judiciary should conduct themselves in such a manner as to be beyond reproach and suspicion, and free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday life. They are strictly mandated to maintain good moral character at all times and to observe irreproachable behavior so as not to outrage public decency.”

I guess Corona believes that the high ethical standards can only be demanded from lowly court employees and not from the Chief Justice himself.  It is obvious that in Corona’s mind, being primus inter pares, or the first amongst equals, is tantamount to a shield of immunity even for criminal acts.

And lest we forget, the undeclared 31 million in cash is over and above the real estate property that he also failed to declare in his SALN. There were at least three pieces of real estate property that he failed to declare: a condominium unit in Spanish Bay Tower, another unit in Makati at the Columns, and a lot in McKinley Hills. There too is the undervaluation of the Bellagio unit by at least 24 million pesos. Altogether, Corona, the Honorable magistrate, did not declare a total of at least P65 million worth of property.

The question is why. Well, the sage and statesman Jovito Salonga, when he wrote the law requiring the filing of truthful SALNs, knew that property which is not proportional to a public official’s salary is presumed ill-gotten under another statute, the unexplained wealth act. Need we say more?

Perhaps Corona should heed the ruling of his own Court. In another ruling ordering the dismissal of a regional revenue officer for failing to disclose two cars in his SALN, the court said: “(T)he SSAL (sworn statement of assets and liabilities) is not a mere scrap of paper. The law requires that the SSAL must be accomplished as truthfully, as detailed and as accurately as possible  x x x  It serves as the basis of the government and the people in monitoring the income and lifestyle of officials and employees in the government.”

 

Top

Published in: on February 16, 2012 at 7:20 am  Comments (3)  
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SALN

All public officers are required to file their Statement of Assets, Liabilities and Net Worth on or before 30 April of every year. This is provided by RA No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. The rationale for the filing of the same is to enable the public to find out if there has been an appreciable increase in the net worth of a public officer on a year-to-year basis. In turn, under the provisions of the Unexplained Wealth Act, any property that appears to be disproportionate to the annual salary of a public officer is prima facie presumed to be ill gotten and is subject to forfeiture in favor of the state. This is one very rare instance where the law presumes property of a public officer as ill-gotten. Cleary, the requirement to file the SALN is complimentary to the intent of the law to deprive pubic officers of the fruits of graft and other corrupt practices. It is a tool to determine if the net worth of a public officer is within his means as a public officer.I am sure that this is why the prosecution panel in the impeachment of Chief Justice Renato Corona decided to begin introduction of their evidence on Article 2 instead of Article 1 of the impeachment complaint. Stated differently, since the public prosecutors have told the nation that the Chief Justice has very valuable real estate registered in his name, property whose value appears to be beyond his annual income as an Associate Justice and later, as Chief Justice of the Supreme Court, these may be deemed ill-gotten. One of the grounds for the Chief Justice’s impeachment, in turn, is graft and corruption.Moreover, the filing of the same is mandatory and required to be under oath. Any failure to file the same, or a failure to declare all assets owned by the public officer in the same, will amount to a violation of a public officer’s duty to uphold the laws of the land.  This is also betrayal of the public trust. This is because a public office is a public trust and a public officer’s breach of an existing law is also a breach of the trust reposed in the public officer.

The Constitution further requires that the SALN “shall be disclosed to the public in the manner provided by law.” RA 6713 provides for the manner of public disclosure of a public officer’s SALN.  Section 8(C) of said law provides: “(C) Accessibility of documents. — (1) Any and all statements filed under this Act, shall be made available for inspection at reasonable hours. x x x“(2) Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law. x x x (4) Any statement filed under this Act shall be available to the public for a period of ten (10) years after receipt of the statement.”

The crux of the controversy is while the Chief Justice maintains that he has filed his SALN according to law, no one, except for the Court Clerk of Court, has seen them. This is because in an attempt to guard against harassment, the Court, by an en banc resolution, has ruled that these SALN should not be made public and will only be released on “good grounds.”

A legal issue to be resolved by the Impeachment Court is whether the Chief Justice, relying on a court resolution, can claim immunity from Section 8C of the law as quoted above. The House prosecutors obviously believe that he cannot and the refusal to make such SALN public is already a violation of the law — hence, an impeachable offense, that of betrayal of public trust. Corona maintains otherwise.

But a startling event happened yesterday when the Clerk of Court of the Supreme Court refused to turn over Corona’s SALN to the Senate despite a subpoena issued for them. Obviously, much of Article 2 of the impeachment complaint may be proven by the production of Corona’s SALN’s in the custody of the Clerk of Court. But the Clerk, alleging that the Supreme Court as a co-equal branch of government with its own internal rules, initially refused, pleading that the Court en banc must give her authority to surrender them to the Senate.

A constitutional crisis was averted when Senate President Juan Ponce Enrile rightfully ordered the Clerk of Court to surrender the SALN to the Senate. If this is a portent of things to come, we’re bound to have many more potential constitutional crises in the course of this impeachment.

The lesson is clear: let us elect a President who will make responsible appointments particularly to the Judiciary. Never again should we allow a person with no mandate to govern. And by God, let’s make our elections clean and safe especially from high-tech cheats!
Published in: on January 19, 2012 at 12:30 pm  Comments (9)  
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The wrong IBP statement

IBP President Roan Libarios

Was both sad and disappointed when the Integrated Bar of the Philippines took the stand that the impeachment against Chief Justice Renato Corona was an affront to the independence on the Judiciary. Sad because I hold the IBP very dearly, having served as its Presidential Assistant for Human Rights for two years during the incumbency of President Feliciano Bautista. Disappointed because knowing almost all of its national officers personally, including its incumbent President Roan Libarios whom I had the pleasure of serving with when he was National Vice-President of the IBP, I do not understand how they can misread the importance of impeachment as a constitutional tool for public accountability of public officers. It was indeed a wrong statement.

The IBP anchored its stand on the false belief that any and all means to promote accountability on the part of our magistrates is an affront to the Judiciary. Nothing can be farther from the truth. When the Constitution made the Supreme Court a co-equal branch of government, it did so mindful that there was a need to promote both independence and accountability of our magistrates. To achieve independence, the Constitution gave the Court both fiscal autonomy and security of tenure for all magistrates to serve until age 70. But to balance this independence, the Constitution included the remedy of impeachment to remove magistrates with otherwise fixed terms should they commit culpable violations of the Constitution, betrayal of public trust and graft and corruption. To provide the Court only with means to make it independent but bereft of an instrument of accountability would be to make a monster out of our courts. Hence, contrary to the position taken by the officers of the IBP, impeachment is a constitutional tool to promote accountability and not the sword of Damocles that it portrayed it to be.

Furthermore, as I argued in my paper which I delivered only this month in Hong Kong University on the occasion of the 4th International Conference of the Asian Society of Constitutional Law, the impeachment is a tool by which our policy makers, both from the House of Representatives and the Senate, can uphold the supremacy of the Constitution particularly on the issue of Corona’s appointment as Chief Justice. Normally, legal formalism demands that we accept as final and executory decisions made by the Supreme Court particularly where it interprets the Constitution. In Angara v. Electoral Tribunal, the Court declared that when it declares an act of any branch or instrumentality as unconstitutional and hence, null and void, this is not an exercise of “judicial supremacy”, but one that “upholds the supremacy of the Constitution”.

But what happens when the Court abdicates this duty to uphold the Constitution as it did in De Castro v. JBC when it resorted to constitutional draftsmanship in upholding Corona’s appointment as a midnight Chief Justice in a manner contrary to the language and intent of the Constitution? Are all the other branches of government precluded from defending the Constitution? Certainly not.

All public officers from all branches of government took an oath to uphold the Constitution. Here, the remedy is clearly impeachment, as the issue to be resolved by our policy makers will include that of the correctness and the wisdom of the Court’s ruling in De Castro. Surely, the people that gave life to the Constitution did not intend to grant unto the Court a monopoly of upholding the supremacy of the highest law of the land.

As correctly observed by Senator Joker Arroyo, Article 1 of the articles of impeachment will involve purely legal issues which includes the constitutionality of Corona’s acceptance of the post of Chief Justice.

I would also have appreciated it if the IBP’s leadership attempted to consult its members prior to issuing its statement against the impeachment of Chief Justice Corona. Certainly, as the compulsory national organization of lawyers, there is virtue in hearing what its members, all of whom are trained in constitutional law, have to say before issuing a statement that appears to bind all of its members. As it turned out, I am a bona fide member of the IBP and I have been whole-heartedly supporting the impeachment of Corona as a means of strengthening the constitution and the Court as an institution. My leaders in the IBP did not consult me before they issued their official position despite the fact that the articles of the IBP do contain a provision on consultation with its members. I am now constrained to put on record the fact that I do not approve of the IBP stand and that I have not authorized them to speak on my behalf on this particular issue. This is sad, but necessary.

In any case, I am pleased that the House of Representatives chose lawyer Mario “Ayo” Bautista to lead its panel of private prosecutors in the impeachment trial. Ayo was my boss during my first year of litigation practice and I know him to be a brilliant and dedicated litigator. With him on board, I am sure that the people’s interest would be promoted and safeguarded in the impeachment trial.

I’m sorry to write a serious article for my last column for the year. Rest assured, I will try to be less serious in the upcoming New Year.

Happy New Year to one and all!

Published in: on December 29, 2011 at 8:15 am  Comments (17)  
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Morality in the impeachment process

Am very much bothered by pronouncements made by the members and the chairman of the House Committee on Justice that they will abandon the impeachment proceeding against Justice Mariano del Castillo. The reason given was that the House could not handle the prosecution of the Corona impeachment and that of del Castillo at the same time. This is a lame excuse. To begin with, it is the constitutional duty of the committee to deal with all impeachment complaints and act as prosecutors for all impeachment proceedings. For the committee to abandon an otherwise meritorious impeachment complaint because they’re doing too much already is itself an abdication of a constitutional mandate. Worse, it may send the message that the impeachment of the Chief Justice Corona is not about justice, but as Gloria Arroyo and her cohorts have been saying, part only of a political vendetta. Why?

Del Castillo’s impeachment is all about morality. It is about what is right and what is wrong. It is good versus evil. It is wrong to steal, be it under the laws of God or the laws of men. Plagiarism, any which way you look at it, is thievery. It became robbery when Del Castillo’s ponencia even twisted the already plagiarized work of others to support the exact opposite of the thesis submitted by the plagiarized authors: that is, that victims of mass rape during World War II are entitled to the legal remedy of reparations. It may even be akin to genocide not only because the root word of “plagiarism” was derived from murder, but also because on its face value, the Del Castillo ponencia added insult to the injury of the victims when the decision declared that there was no non-derogable prohibition on rape as a war crime during World War II. Ergo, it may have been allowed. It even insinuated that rape committed against civilian populations was not even criminal during World War II.

 

It was precisely this kind of a ponencia that made the whole nation to think about the fitness of the justices of the High Court to sit where they do today. In the minds of many, why bother to have a Supreme Court when they are not able to give the victims of gross injustice, even the semblance of a legal remedy?

 

This will also explain why despite legal formalism which requires the people to accept the decisions of the high court as being final and executory, the people questioned the wisdom of the Supreme Court’s decisions on the Truth Commission and the temporary restraining order on the watch-list order against Mrs. Arroyo. These decisions, like the exoneration of Del Castillo for plagiarism and the court’s order to admonish the UP 37, were deemed to be contrary to morality and natural justice. It was the Del Castillo impeachment complaint that opened the public’s mind to the reality that while the court is referred to as “supreme”, its decisions need not be infallible. Without the Del Castillo impeachment complaint and the ensuing public debate surrounding it, it would have been impossible to rally the people around President Aquino today in damning an Arroyo court.

 

And lest we forget, Mrs. Arroyo and her cronies are now highlighting that Corona’s impeachment is all about political vendetta. The latest pronouncement is that the Corona impeachment was the President’s way of getting even with the court for awarding Hacienda Luisita to its farmer beneficiaries. Of course I don’t believe this. On the contrary, I have maintained that Corona should have been impeached on Day One of PNoy’s presidency. But pubic opinion is not what lawyers and professors believe. It is about what the average person in the street thinks. Abandon the Del Castillo impeachment and Juan de la Cruz will think that perhaps, Arroyo and her cohorts are correct—that the Corona impeachment is not about what is right or wrong. It is about decisions that proved to be painful to the powers that be. And yes, Rep. Arroyo still commands billions in resources sufficient to support a public relations campaign to portray the Corona impeachment as nothing but vendetta. Dismiss the Del Castillo complaint and you remove the moral dimension in the impeachment process. This is exactly what the Arroyo public relations machinery needs. Could it be that this is the real plan of those who want the earlier impeachment complaint to be dismissed?

 

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Published in: on December 23, 2011 at 12:49 am  Comments (7)  
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10-4-9 for removal of Corona

Photo from Philippine Daily Inquirer 12/15/11

So it happened. A few days after my column last week where I exhorted the impeachment of both Chief Justice Renato Corona and Associate Justice Mariano Del Castillo, the President, weary of yet another TRO from the Arroyo court -asked his allies in Congress to impeach the Chief Justice. And while I have maintained that this should have been done since day 1 of his administration, its certainly better late than never, as the saying goes.

Critics though have claimed that the impeachment will undermine the independence of our courts. Far from it. In the first place, it was Corona who did it to himself. He agreed to become an unconstitutional Chief Justice when he assumed the office knowing fully well that both the language and the spirit of the Constitution barred his appointment. You cannot undermine the judiciary when you remove an unconstitutional appointee. On the contrary, you uphold the supremacy of the Constitution by doing so.

True, the Constitution defines judicial power as including the power to declare any act of any branch or instrumentality of government as null and void where there is grave abuse of discretion resulting in lack of or excess of jurisdiction. Included in this function is the duty to declare as illegal any act that is contrary to the constitution. But this is not a monopoly of the Courts. All public officers are required to uphold the constitution and the laws of the land. Surely, when it is the Supreme Court that makes a mockery of the Constitution, as it did in the case of De Castro v. JBC where the midnight appointment of Corona was upheld, the executive is duty bound to resort to the constitutional tool of impeachment to uphold the constitution and accountability of public officers.

It must be underscored that while the Constitution refers to the Senate as an “impeachment court”, the language of the organic act should not deceive the Senate. They are a court only for the purpose of determining whether the impeached official should be removed from office. This does not make them a court of law. They are still policy makers who must formulate policy on whether one should continue in public office. They should not make the mistake, as argued by Estelito Mendoza during the Erap impeachment, of acting like a court hearing a criminal case. Public office is still a privilege and not a right. When the Constitution vested in elective representatives of the people the power to remove impeachable officers, it was their will to include the issue of fitness for a public office as a policy issue and not a criminal inquiry. The standard is hence not proof beyond a reasonable doubt, nor any of the standards recognized by our rule of evidence. The sole criterion is fitness to remain in office from a policy point of view. While the grounds for impeachment should still be proven, the Senate though is free to decide on the basis of other considerations considered relevant in formulating policy. Otherwise, the power to impeach and sit as an impeachment court should have been vested in the judiciary.

So how will the Senators possibly vote on the Corona impeachment case? Well, while it is still too early to tell, my crystal ball shows the following:  all four LP Senators: Drilon, Recto, Pangilinan, and Guingona will vote for impeachment. They have to. When we say impeachment is a political process, it also means that political parties, at least in the United States from whom we copied our constitution, vote along party lines. Expect the four to be joined by Senators Trillianes, Estrada
, and Lacson, all of whom have proven to be staunch political nemesis of Corona’s boss, CGMA. 
 Add to the list Senate President Enrile who should know that voting in favor of Malacanang’s wish would be the surest way of safeguarding his post as head of the Senate. Voting with JPE would be his majority floor leader Sotto and his prodigee, Honasan. That’s a sure 10 votes for impeachment.

Those who will most likely cast negative votes would be Senators allied with or sympathetic to CGMA. This would include Senators  Revilla
, Lapid
, Arroyo, and Marcos. That’s a sure 4 votes against impeachment.

The rest, 9 in all , I think, are undecided: Santiago

 , in my mind, is undecided because while she appreciates Malacanang’s support for her ICC candidacy, still, she has been very  clear that she does not think Corona should be impeached. Angara, as a veteran politician, should be  open to offers. The same goes for Legarda. Villar and his block, including the two Cayetanos, have been rabid anti-Malacanang Senators. Palace operators may have to strike a deal first with the Villar block, if they want to have the numbers to remove Corona. Osmena is undecided because he has been maverick lately, opposing even the nomination of P Noy’s Tito, Domingo Lee, as Ambassador to China. This means that Osmena does not believe in voting along party lines. And finally, Escudero is an undecided because he normally defers to his elders in his own fraternity. One of his esteemed senior brod, former Chief Justice Renaldo Puno, is seen as being sympathetic to Corona as in fact- he even resigned earlier than his 70th birthday to facilitate Corona;s appointment. Pimentel is an undecided because he has been quoted as saying he will decide on the basis of evidence.

We need 16 Senators to remove Corona. But anything can happen. As we have known all along: never underestimate the vast powers of the President

Published in: on December 14, 2011 at 11:52 pm  Comments (10)  
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Flip-flop

I am one of those disturbed by the recent order of the Supreme Court to reopen a final and executory decision ruling that the dismissal of 1,200 Philippine Airlines flight attendants was illegal. I too, find this decision—made in response to a letter of the lawyer of one the richest men in the world—to be out of the ordinary, given that lawyers normally communicate with all courts in the form of pleadings and not through a letter. Mr. Estelito Mendoza, Esq., has got to have the most expensive letterhead in the Philippines, as far as his clients are concerned. But where I differ is in the conclusion that many have made: that is, that money may have played a role in the unusual reversal. Here, I think the Justices of the Supreme Court, like all human beings, have a right to be presumed innocent until proven otherwise.

Having said that, the problem is the lack of mechanism by which the members of highest court of the land could be held accountable for their acts as public officers. True, the Court, for the first time, created an ethics committee to investigate one of its own whom we complained may have committed plagiarism. Assuming this mechanism could be resorted to when the conduct of one of them is impugned, what will the Court do when the conduct of a majority of them- and the decision to reopen is a majority opinion of all its members- is now under question? How can the court investigate itself?

When we in the Concerned Citizens Movement accused then-President Gloria Macapagal-Arroyo of the commission of crimes as a result of the NBN-ZTE scandal, we argued that the concept of immunity from suits should cover only sovereign acts and not the commission of crimes. This was pursuant to decisions of the UK House of Lords in the Pinochet case and the US Supreme Court in Clinton vs. Flowers. Both decisions ruled that sovereign immunity extends only to sovereign acts and do not cover illegal acts that both Courts said could never be official in character.

The dilemma confronting us now is while the individual justices, unlike the President, are not entitled to immunity; it was the Court nonetheless that ruled that its justices, and the other impeachable officers, could not be the subject of criminal complaints while they remain in office. The remedy is to impeach them first from office before these complaints could be acted upon. The rationale to this is that the security of tenure intended to be enjoyed by impeachable officers would be rendered nugatory should criminal complaints against them be allowed to proceed prior to impeachment.

While I am no fan of then Tanodbayan Raul Gonzalez, I do remember sympathizing with him when, as a result of his resolve to investigate sitting members of the Supreme Court during the Cory Aquino administration, the Court sanctioned him by suspending him from the practice of law indefinitely. That decision is a clear reminder to the bar that any lawyer who insists on holding sitting members of the Court criminally liable will be deemed guilty of legal malpractice.

So in the absence of accountability, how do we now dispel the public’s suspicion that the recent flip-flop in a case involving one of the country’s tycoons was not attendant with graft?

Theoretically, the Office of the Ombudsman, on its own, has the power to conduct an investigation for the purpose of recommending to Congress to initiate impeachment proceedings should its findings justify it. But in the complaint that we filed in connection with the NBN-ZTE, the Ombudsman, then headed by Merceditas Gutierrez, insisted that in the case of a sitting President, even an investigation resulting in a mere recommendation to initiate impeachment proceedings is not allowed. Our petition impugning this decision of Gutierrez remains pending in the Supreme Court. The good news though is that the erudite Solicitor General, Joel Cadiz, has filed a manifestation and comment with the Supreme Court supporting our position that a President is not immune from the investigative powers of the Ombudsman.

Since the Court’s ethics committee may not be the best forum to investigate where the conduct of majority of the members the Court is the subject of public suspicion, my position is that the Ombudsman, on the basis of its Constitutional and legislative mandate, can unilaterally investigate the circumstance that led to the recent reversal. While the end result may just be a recommendation for Congress to initiate impeachment, its importance should not be underestimated. We only know too well, after having filed three impeachment complaints against Mrs. Arroyo, that impeachment is a political process and a “numbers game”. But with a solid recommendation from the Ombudsman, the political debate would at least take place in the context of a factual determination made by the Constitutional body created for the purpose of upholding the accountability of public officers. I doubt if such a recommendation can easily be ignored –not even by Congress.

It’s certainly a tough call for the current Ombudsman, Conchita Morales-Carpio, to investigate her former colleagues at the High Court.

Moreover, she risks suffering the fate of Gonzalez. Still, the morally unacceptable alternative is that no one does anything.

Published in: on October 13, 2011 at 6:58 am  Leave a Comment  
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IMPEACHMENT: AT LAST!

The good news is that after five or so years, we may finally impeach Merceditas Gutierrez. This is because of the Supreme Court’s ruling yesterday dismissing her petition to restraint the House of Representatives from hearing two impeachment complaints against her. The Ombudsman complained that since two petitions were filed against her; to wit, one from Akbayan and another by Bayan, then there is a violation of the constitutional prohibition on the filing of multiple impeachment complaints within one year.

With a slim majority, the Supreme Court upheld our earlier position in Martinez vs. House of Representatives where we argued that the prohibition is against multiple impeachment proceedings and not multiple complaints. In Martinez , the House of Representatives, taking the cue from Congressman Edsel Lagman’s “prejudicial questions”, ruled that a subsequent amended impeachment complaint, which superseded the original Lozano complaint against GMA, was barred as a prohibited second complaint. On certiorari, we argued that since the decision of the Supreme Court in Roque vs. De Venecia was that commencement of an impeachment complaint was the filing of an impeachment complaint and its referral to the Justice Committee, there is no violation of the constitution where both the original and the amended complaints were referred to the Justice Committee at the same time. The only weakness in our position then was articulated by Fr. Joaquin Bernas who agreed with our position, but doubted if the court can compel the Committee on Justice to consolidate all complaints into one committee report which is the usual recourse in legislation. With this latest ruling in the Gutierrez case, it is now clear that impeachment, as the constitutional mode to promote accountability of very high impeachable officers, is not a race amongst rats. It can no longer be that an impeachable officer can have a year free of impeachment through the filing of an earlier sham complaint that could be dismissed by congress for insufficiency in form and substance. At least, it is now clear that the one impeachment bar should apply only after the Committee on Justice had already deliberated on all complaints referred to it on the same date and not just on the basis of which complaint was filed first.

The practical consequence of the ruling is that finally, we can hold the Ombudsman liable for her non-action in complaints involving GMA and her cohorts. It also involves her snail pace investigation in the 15 year unsolved murder case of Navy Ensign Philip Pestano whose killers continue to be at large until today. It must be a source of solace to the parents of Philip that while the killers have not yet been punished, a woman who was instrumental in their impunity could at least be held liable.

I hasten to warn though the House Committee on Justice from entertaining further charges not included in the twin complaints of Akbayan and Bayan Muna. I have read Deputy Speaker Erin Tanada’s opinion that they are studying including the additional charge of the Gen. Garcia plea bargaining agreement as a further charge against the Ombudsman. With all due respect to Rep. Tanada who should be Senator soon, this may give the Ombudsman further armament to go up anew to the Supreme Court to question the validity of the extra charge. The fact is, regardless of the specific charges against her, what we need now is the political will to muster the numbers to remove the Ombudsman. While the Garcia plea bargain deal is equally deplorable, let’s not risk yet another stay order from the high court . Let’s concentrate on getting the numbers and getting it as soon as possible.

Still on the issue of accountability of public officers, while our local customs and traditions value honoring the dead, I am nonetheless of the belief that the recent burial of former AFP Chief of Staff Angelo Reyes should mark the commencement anew of our continuing search for the truth and accountability. Without meaning to be disrespectful, the decision to end his life was one made by Gen. Reyes alone. This should not be a reason for us to detract from the genuine issue at hand, which is systemic corruption in the military. While I condole fully with the Reyes family, I agree still with the opinion of Senator Miriam Defensor-Santiago that the estate of Gen. Reyes should still be held responsible if it is proven that the departed General really partook of the pabaon system. That system is illegal, full stop. Moreover, regardless of how one may have viewed the actuation of Senator Sonny Trillanes in questioning Gen. Reyes, the fact remains that the good Senator was only articulating what should be the correct position of every decent human being: absolute intolerance to corruption. I submit that part of why corruption has become systemic in this country is that we put too much emphasis on “civility” over principles. The correct conduct should be to shame those who have plundered the public coffers so that they may not enjoy the fruits of their criminal acts as if they are civilized people. In other words, we should consider thievery as the worse form of conduct and deal with them accordingly: with absolute contempt. This is what is meant by zero tolerance to corruption. And this is what we must do to end corruption in this country.

To the thieves in this country: beware. We shall shame you and in a manner that would make the conduct of Trillianes look genteel.

Published in: on February 18, 2011 at 8:48 am  Comments (9)  
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Battle Royale

Impeachment is once again controversial. In an unprecedented move, the House Committee on Justice lead by its Chairman, Rep. Neil Tupas Jr., voted overwhelmingly to defy a status quo order ordered by the Supreme Court on the impeachment complaint filed against the Ombudsman Merceditas Gutierrez. At issue is whether a second impeachment complaint by the party list Bayan Muna filed and consolidated with an earlier one filed by Rep. Rissa Hontiveros of Akbayan was a prohibited complaint for violating the one-year ban on the filing of subsequent impeachment proceedings against an impeachable officer. The allegation of the beleaguered Ombudsman is that it is. The House of Representatives believes that the Court has no jurisdiction to hear the Ombudsman’s petition. This is because according to it, the initiation of an impeachment complaint is an exclusive power of the House of Representatives. Hence, the Court is bereft of jurisdiction to hear the Petition of the Ombudsman.
To the surprise of the House of Representatives, and before it could be heard, the Supreme Court issued a stay order that effectively had the effect of a restraining order. Predictably, the Court spokesman warned members of the House that they risk being cited in contempt of court should they proceed with their proceedings. Well, the die has been cast: the House has defied the court. Who will blink in this constitutional confrontation?

We have had our share of involvement in impeachment proceedings. In 2003, we petitioned the court to restraint the House of Representatives from transmitting its articles of impeachment against then Chief Justice Hilario Davide Jr. on the ground that the same was a second prohibited impeachment proceeding. This was because the articles of impeachment was signed by one-third of all members of the lower house a day after the Justice Committee had dismissed an earlier impeachment complaint against the Chief Justice for administering the oath to President Gloria Macapagal-Arroyo as President after Edsa 2.

Later, we also served as counsel for three impeachment complaints against ex-president Gloria Macapagal-Arroyo and a petition in the Supreme Court questioning the dismissal of an amended impeachment complaint filed after an earlier complaint filed by Oliver Lozano.

At the center of all controversies is the one-year ban provided in Section 3 (5), Article XI of the 1987 Constitution: “(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year”.

In the first case, the court ruled in Roque et. al. v. De Venecia that it had jurisdiction to act on the petition seeking to restraint the filing of the impeachment despite clear language of the Constitution that the House of Representatives has the exclusive power to initiate impeachment complaints. This, according to the court, is precisely the purpose behind judicial power, that is, to uphold the supremacy of the constitution where there is grave abuse of discretion on the part of an agency or department of government. There is grave abuse of discretion where a branch of government contravenes a literal provision of the Constitution.

The Court then ruled that initiation is upon filing of a complaint and referral to the Committee of Justice. Under this interpretation, the court ruled hence: “In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on Aug. 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro Jr. and Felix William Fuentebella against the Chief Justice on Oct. 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period”.

In the second petition, Martinez v. De Venecia, we questioned the decision of the House to junk the substantive amended complaint to the Lozano petition. We argued that what is prohibited by the Constitution is more than one impeachment proceeding per year and not multiplicity of complaints itself. Otherwise, we argued that all that an impeachable officer would do to ensure a year of impunity is to cause the filing of a bogus impeachment complaint.

In the vernacular, we warned that what would ensue would be an “unahan ng daga”. Hence we argued that what was literally prohibited was “multiple impeachment proceedings” and not “complaints”. No ruling on the merit was rendered in this second case because the court dismissed it on the ground that it had become moot when Mrs. Arroyo ended her nine years of destructive reign. But the court did miss a golden opportunity to give guidance to bar and bench on what is precisely prohibited by the constitution. This once more, is the issue in Gutierrez v. House of Representatives Committee on Justice.

The argument by the Ombudsman is that the House Committee on Justice violated the constitution when it consolidated the second Bayan petition with the first Akbayan petition and proceeded to determine sufficiency of form and substance of both complaints.

This we submit is the correct course of action in the event of multiple impeachment complaints. Provided it complies with the ruling in Roque that it was referred simultaneously to the Committee on Justice, the committee should consolidate all pending complaints in the same manner that any House committee would consolidate all the different bills covering the same subject matter in a committee report that would then be submitted to the plenary. The difference is that unlike in the earlier controversy, this is now the course of action taken by the Committee. Our problem then was whether as a result of separation of powers, the Court could in fact compel the House Committee on Justice to do what it did now in the Gutierrez complaint.

But the really interesting issue now is: which branch of government will blink? Relax and enjoy the best show in town!

Published in: on September 30, 2010 at 1:53 pm  Comments (4)  
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