Binay prevails

Kudos to Makati City Mayor Jun-Jun Binay for winning his legal battle against DILG’s Mar Roxas and the Office of the Ombudsman. Just last Monday, the Court of Appeals made permanent its earlier temporary restraining order which seeks to maintain the status quo. This time, the Appeals Court clarified that the status quo meant the situation prior to the service of the Ombudsman’s suspension order on the Mayor. This removes any and all doubts that the CA intended to maintain Mayor Binay in office despite the Ombudsman’s suspension order. This hence debunks the view of Justice Secretary Leila De Lima, who earlier opined that the CA’s TRO was moot and academic because meanwhile, the suspension order had allegedly already been served.

 I admittedly am not a big fan of the Philippine legal system. There’s the dismal 1-percent conviction rate for extra-legal killings before Philippine courts. There is the longest period of time in the world by which cases are heard by the courts, an average of five to seven years. There too is the perception of corruption amongst the ranks of public prosecutors and judges. But all told, the decision of the CA granting Mayor Binay injunctive relief was well-reasoned and consistent with jurisprudence. In brief, the CA ruled that since Mayor Binay had already been re-elected after the so-called City Hall Annex scam, all of his administrative liability, if any, is deemed extinguished by reason of his re-election. This is the principle of “condonation” and is premised on the fact that the people are sovereign. This is not a novel theory having been first recognized by the Supreme Court in the case of former Cagayan Governor Aguinaldo, and reiterated in the cases involving Governors Garcia and Salalima, all of whom were sought to be suspended similarly as Binay. This is why the principle is referred to as the “Aguinaldo rule”. The logic of the principle is that since the electorate decides who will serve them in an elective capacity, an erring official who has been re-elected is deemed “forgiven” by his constituents when despite the administrative lapse, he is re-elected. The Ombudsman’s position, mirrored by De Lima, is that the office has plenary powers to suspend officials which according to its legislative charter, is immediately executory and not subject to injunction. Here, the CA reasoned that there’s a difference between a suspension by way of penalty meted by the Ombudsman, and a preventive suspension preparatory to an administrative investigation. The former is immediately executory and not subject to injunctive relief. The latter though, and this is the suspension meted on Binay, is subject to judicial review. I find myself in accord with the line of reasoning adopted by the CA. In fact, in a case that I personally argued before the Supreme Court which sought to restraint the House leadership from filing an impeachment complaint against then-Chief Justice Hilario Davide, the Supreme Court, through the incumbent Ombudsman, ruled that our Court’s certiorari powers under the 1987 Constitution have  “cut the umbilical cord” between Philippine and  American jurisprudence. While American courts can opt to exercise judicial restraint, Philippine courts, under the 1987 Constitution, must decide cases involving alleged grave abuse of discretion amounting to lack of jurisdiction. This means that our courts must always exercise jurisdiction where there is an allegation of grave abuse of discretion. This was the allegation of Mayor Binay and hence, the duty of the Court of Appeals to decide. The victory is temporary. In fact, the Supreme Court has already scheduled oral arguments on the petition of the Ombudsman against the CA’s order. What appears to be going in favor of Mayor Binay is the fact that the Ombudsman sought but was denied injunctive relief to restraint the CA from restraining the office from suspending Mayor Binay. The Court’s refusal to issue a TRO, although not a ruling on the merit, nonetheless is tantamount to recognizing the validity of the CA’s actions thus far. While the odds are still against Mayor Binay since the Ombudsman was a former colleague of the incumbent Justices of the Supreme Court, the latters denial of the former’s prayer for TRO is recognition that there is no urgency nor an irreparable injury in the event the CA is not restrained. Congratulations are this in order to Mayor Binay and his legal team! ** ** Congratulations too to the UP Law’s Moot Court team that won the world championship in the recently concluded Freedom of Expression Moot competition in Oxford University. The team bested over a hundred teams worldwide that competed in Oxford and in various regional championship rounds around the world. The problem of the moot is of extreme relevance to freedom of expression in today’s Internet age. Could states limit the freedom to curtail hate speech that has led to a riot that injured over a hundred individuals? At issue, too, was whether Internet service providers should incur liability for materials posted through them. The winning team is composed of Pauline Gairanod (adjudged the best speaker), who hails from Zamboanga City, Modesta Chungalao from Baguio City, Gil Anthony Aquino, Raphael “Apa” Pangalangan, Rachel Miranda, and Gemmo Fernandez. A testimonial in their honor will be held on Monday 10AM with no less than Chancellor  Micheal Tan in attendance. Good job, team!

Criminal liability for DAP

This is one of our biggest wins. On Tuesday, the Court voting almost unanimously (because J. Teresita De Castro took no part) declared all the features of DAP which we impugned as being unconstitutional as illegal. Specifically, newspapers reported Budget Circular 541 issued by the Department of Budget and Management allowing it to withdraw “unobligated allotments of agencies with low levels of obligations as of June 20, 2012 to “augment existing programs and projects of any agency [emphasis by DBM] and to fund priority programs and projects not considered in the 2012 budget was declared unconstitutional.

The Court also annulled the following:

“1. The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;

2. The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive;

3. The funding of projects, activities and programs that were not covered by any appropriation in the GAA;

4. The use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant GAA”.

The Constitutional provision declared to have been violated by the DAP is Section 25 (5) Article VI of the 1987 Constitution which reads: “no law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

Now that the Court has declared the DAP as invalid, what happens to those who implemented it?

Here, a distinction should be made between those who implemented them allegedly as a “stimulus measure’, and those who gave them to the senators to influence their votes for the ouster of former Chief Justice Renato Corona. In any case, for both types of government officials, they are liable for graft and corruption.

For those who implemented the DAP in good faith, believing that this would stimulate the economy, RA 3019 penalizes those who “caused any undue injury to any party, including the Government, x x x in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.”Certainly, violating the Constitution through illegal disbursements of public funds constitute a damage to the government whether or not the public officer actually benefitted from the disbursement.

For those who disbursed it and accepted it to influence the outcome of the impeachment trial of former Chief Justice Corona, the anti-graft law states that penalizes this as bribery, or “directly or indirectly requesting or receiving any gift, present, x x x or benefit, for himself or for any other person, in connection with any x x x transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.”

While the proceeds of DAP were allegedly for government projects, the reality is the benefit for the legislators will be the “tongpats”, or the commissions, which respected journalists Yvonne Chua and Ellen Tordesillas wrote could range anywhere from 10-50% of the total cost of the project. The element of the transaction wherein the public officer has to intervene in his official capacity is the removal of the former Chief Justice.

I have said it before and will say it again: resort to bribery to remove the former Chief Justice was wholly unnecessary. It was Corona himself that called attention to his own culpability of betrayal of public trust when he himself acknowledged not having declared the entirety of his assets in his SALN. Moreover, the Ombudsman had the goods on him: AMLAC records proving the bank deposits which the removed Chief Justice did not declare. As a Private Prosecutor in that impeachment trial, it angers me that the not-so-bright boys and girls of Malacanang had to taint the process with fraud when in truth and in fact, no Senator could have turned a blind eye to the evidence against Corona.

So what now? Well, we’ve started the cleansing when we charged three senators for plunder. Time now to charge more senior officials, including Cabinet members, and the senators who benefitted from DAP for graft. Anent the President—well, the wait won’t be too long. His immunity is only for the next two years. Hopefully by then, we’ve done away with hospital arrests for former presidents!

This column appeared in Manila Standard Today on July 3, 2014

Joint Supplemental Request for Investigation and Complaint-Affidavit vs. COMELEC filed at the Ombudsman today

Text of the  Joint Supplemental Request for Investigation and Complaint-Affidavit   filed at the Office of the Ombudsman today, June 18, 2013, by individual members of the Automated Election System Watch (AES Watch) against the incumbent Commissioners of the COMELEC  for their failure to protect the sanctity of the ballot in the conduct of the May 13, 2013 elections.

Click here to view the Joint Supplemental Request for Investigation and Complaint-Affidavit

The $10 million question

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!

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!

Revisiting the Ombudsman Law

That former police officer Rolando Mendoza complained about the inefficiency of Ombudsman Merceditas Gutierrez highlights the need for Congress to re-examine the Ombudsman as an institution created by the Constitution and by law. While it is the 1987 Constitution that first created the Office of the Ombudsman, it is a mere law that gave the said office a monopoly in the filing of criminal information against government officials with a salary rank of Grade 27 and up. It is also a law that gave the Ombudsman the power to hear and decide administrative charges against all government employees. This appears to be redundant given that all line agencies, in conjunction with the Civil Service Commission, already have existing mechanisms to determine the fitness of individuals to occupy a public office.
The complaint of the bemedaled slain hostage-taker was that the Ombudsman was not acting seasonably to dismiss charges against him. He apparently considered these charges to be bereft of merit. The charge was supposedly filed by a chef from Manila Hotel who claimed to have been a victim of hulidap by Mendoza et. al. It was this charge, I understand, that led to his discharge from his office which then gave rise to his demand to be “reinstated into the service”.

In a press forum yesterday at the Rotary Center in Quezon City, journalists mentioned that the same charge against Mendoza had already been dismissed by the Internal Affairs Service of the Philippine National Police. Apparently, despite this dismissal, the matter is still being heard by the Office of the Ombudsman. I can only surmise that this is so because criminal charges against Mendoza must have been filed arising from the “hulidap” incident. In turn, the filing of every criminal charge in the Ombudsman comes with it an administrative charge which will determine whether the respondent should stay or be fired from his public office.

Not being a fan of the Ombudsman, I can only hope that Mendoza’s valid complaints against her will add much needed fire to the pending impeachment complaints against her now pending in Congress. But over and above the fitness of the Ombudsman to continue occupying such a sensitive post, the Mendoza incident ought at least to prompt our lawmakers to revisit the Ombudsman law. In particular, I submit three basic submissions on why the said law should be amended: to prevent similar paralysis in the Office where it is occupied by a virulently political person; two, to put the office at par with the National Prosecution Service; and three, to rationalize its administrative jurisdiction.

The Ombudsman was envisioned to be a super body that would have the power to promote honesty, efficiency, and transparency in government. Its powers are many and may in fact be rivaled only by the President himself. It has coercive powers to compel attendance and production of evidence, order the doing or to cease the doing any act, to investigate any case of ill gotten wealth, and even the power of contempt. Moreover, it has the power to file criminal information before the Sandiganbayan against public officers with a salary grade of 27 and up. It is this particular power that is hindered where the Ombudsman is seen to be more political than a legal institution. As seen in the case of Ombudsman Merceditas Gutierrez who has admitted her personal closeness to the past dispensation, political loyalty could lead to wanton impunity owing to the Ombudsman’s avowed refusal to investigate her political benefactors. Perhaps, amendatory legislation is now necessary to address this inherent weakness. How? By vesting in the Executive, through the Department of Justice, the concurrent power to file these criminal Information with the Sandiganbayan. Had this been in place, there would have been no further need for P-Noy’s Truth Commission.

Secondly, in the conduct of preliminary investigation, the law should be amended to compel the Ombudsman to resolve all of its investigations within a non-extendible period of 90 days. In the Pestano case for murder, the Ombudsman took ten years to investigate the matter and at the end of its alleged investigation- only to dismiss the case. Why should the Ombudsman be allowed 10 years to determine the existence of probable cause where our public prosecutors will lose their entitlement to their salaries if they do not conclude with their investigations within 90 days? This was the crux of Mendoza’s gripes against the Ombudsman. The truth of the matter is that the Ombudsman is now notorious for sitting on cases for years with the result that once decent people, like Mendoza, have lost all hopes in our legal system precisely because of inordinate delays.

The final area for remedial legislation is the need to rationalize the exercise of the Ombudsman’s administrative jurisdiction. If the reports from the media are correct, Mendoza’s administrative case had already been dismissed by the Internal Affairs Service of the Philippine National Police. In other words, had it not been for the administrative investigation also being conducted by the Ombudsman, there would not have been a hindrance to his reinstatement into the service even without him resorting to the taking of hostages. It seems to me that legislation should be introduced either to vest in the Ombudsman the sole jurisdiction to determine the fitness of individuals to hold public office, or to grant this existing power to already existing agencies. In the case of the PNP, these bodies are the Internal Affairs Service or the National Police Commission. Certainly, we can understand the frustration of Mendoza when despite being cleared by the

IAS, the inaction of the Ombudsman has nonetheless prevented his reinstatement.

Nothing of course will justify what Mendoza did. Some good, though, should come out of this latest tragedy. Perhaps, the foregoing remedial legislation will be the good news resulting from the tragedy at Luneta.