In February of 2004, civil society led by Bishop Pedro Dulay Arigo of Palawan, Cesar Sarino, the late Dr Gerry Ortega, the late Dr. Jose Antonio Socrates, Prof. Oscar Evangelista and Cesar R. Ventura and I filed suit before the Supreme Court questioning the legality of President Gloria Macapagal Arroyo’s use of the government proceeds from the Malampaya natural gas field. Petitioners, before going to the Supreme Court, had previously filed suit in the RTC of Palawan and the Court of Appeals, pursuant the hierarchy of Courts.
The petitioners’ complaint was simple. Under the 1987 Constitution, local governments were given a fair and equitable share in the revenues derived from natural resources found in their area. Under the Local Government Code, this share was defined as 40 percent of all gross government receipts from these resources. Palawan civil society then argued that a provisional sharing agreement entered into by Mrs. Arroyo and the then-local leadership of the province providing that Palawan shall be entitled to 20 percent net of all government revenues was unconstitutional.
This was on at least four grounds: First, the interim sharing agreement amended the legal provision on how much the entitlement should be: from 40 percent of gross to 20 percent net; Second, it amended the local government code in the manner by which it was to be shared by the barangay, municipality and province where the resources are found. Under the law, the province shall have 20 percent of such revenues, while the municipality and the barangay are to have the lion’s share of the revenues: 35 percent and 45 percent, respectively. The sharing agreement called for projects to be identified by the two representatives of the province, its governor, and the mayor of Palawan. Third, the Code provides the manner by which the money was to be spent: 80 percent of all sums should be applied to lower the cost of electricity in the province, while the remaining 20 percent should go to local government projects and for livelihood. The Interim sharing agreement made the fund additional pork barrel for the two representatives of the province and its other local officials. The fourth argument of the petitioners would prove to be perhaps the most important argument in promoting good governance. Petitioners argued that the manner by which Mrs. Arroyo entered into the agreement was unconstitutional because she spent the funds without congressional authorization.
In entering into the questioned sharing agreement, PGMA invoked the provision of a little known Marcos Presidential Decree 910, section 8 of which reads: “—Section 8. x x x production share on service contracts and similar payments on the exploration, development and exploitation of energy resources, shall form part of a Special Fund to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed by the President.” Petitioners argued that this violates the rule that no money shall be paid out of the national treasury without appropriation by law.
PGMA, on the other hand, argued that because of the foregoing PD, all government revenues earned from Malampaya are in the nature of a special fund which can be disbursed at the pleasure of the President.
It was this argument that later led COA to conclude that at least P2.3 billion of the Malampaya funds were misused by local government officials of Palawan including its fugitive ex-governor Joel Reyes and the defeated Baham Mitra. Unfortunately, it was this interpretation that also led to the disbursement of the first tranche of P900 million Malampaya release that COA now says were plundered by Napoles and her cohorts. Ironically, the first tranche released to Napoles was authorized only two days after our oral argument in the Supreme Court on November 24, 2009. Worse, it is this interpretation that led to the release of a further P26.3 billion of Malampaya funds which early reports now say may have been released and malversed by Arroyo shortly before the 2010 elections.
It comes hence as no surprise that much of the scandal unearthed by the Napoles revelations involve the Malampaya funds. To begin with, the popular clamor that there “shall be no taxation without representation” was based on the idea that the people’s representatives should authorize all public spending and shall exercise oversight on the manner the sums are spent. Because the Malampaya funds were spent without congressional authorization, and hence without oversight, it was spent for any and all purpose that the President desired, And when you have a kleptomaniac for a president, that meant spending the money all for naught.
I cannot help but also blame the Court for this fiasco. The Malampaya petition has been pending in our courts since 2004. It reached the Supreme Court in 2009 after passing through the hierarchy of courts, Until today, it has not been resolved. Had the court acted on the petition seasonably, we may have prevented Napoles from squandering P900 million worth of public funds that could have gone to livelihood and lowering the cost of electricity in Palawan. We may even have prevented the further plunder of P26.3 billion worth of Malampaya revenues and applied the same not just for national defense, but also for education and heath purposes. As the saying goes, “justice delayed is justice denied.”
I rest my case.
Everything about last Tuesday was dramatic. First, there was his refusal to take the stand. He then relented and agreed to testify after the Ombudsman had detailed Anti-Money Laundering Council documents indicating that the chief justice had at least $12 million in various accounts. Prior to last Tuesday, his counsels and talking heads assured the public that Corona would “tell all” and would expose the malice of the individuals who falsely testified against him.
On the day itself, there was a meticulous script acted out by “B” actors, who now deserve acting awards. There was the traditional mass officiated by religious leaders closely identified with former President Gloria Arroyo, the usual illegal mass action by court officials and employees, and even a hero’s send-off for the embattled Corona.
At the Senate itself, the script was literally visible: a couple of pages of a monologue read out by Corona himself, a major deviation from ordinary court proceedings where witnesses are never allowed to deliver opening statements. This was a very carefully written script. Its writers knew that the opus would be allowed by a court that has repeatedly declared that it would respect the magistrate if and when he takes the stand. More importantly, its writers knew that the people would be watching.
And boy, what a show it turned out to be!
The scripted monologue itself was pathetic. Not only was it very poorly written, it was also bereft of the truth that Corona promised the nation. Half of it was mud thrown at the President, Ronald Llamas, and even Franklin Drilon. The other half was about the dirty laundry of the Basas. Was Corona unmindful that his own children and wife were members of the same clan? The Senate President repeatedly asked him if he was finished, but he went on with his litany on matters, which were irrelevant and immaterial. And when he finally addressed the issue leveled against him by the Ombudsman, he resorted to a negative pregnant: the Ombudsman was lying but he admits having dollar deposits which according to him, are absolutely confidential and need not be declared in his SALN.
Prior to his appearance, a little known employee of the BIR, of all agencies, which the chief justice himself quoted in his monologue, opined that dollar deposits do not have to be disclosed in the SALN.
After which, he resorted to a conditional waiver of the secrecy of his dollar and pesos deposits, which takes effect only if and when the 188 congressmen who voted to impeach him and Franklin Drilon sign similar waivers. Talk of a cheap trick!
And after an excruciating two hours of vilification and self-pontification, he states that he is the chief justice of the Republic and leaves the stand.
I still can’t decide which was more offensive: his litany of mud or his walkout. I ask this because he is not just a very high official sought to be removed from his office. He is the chief justice if the land and as such, should personify the prestige and dignity of the legal profession. By resorting to mudslinging at the stand, Corona broke all rules of evidence that were developed over time to ascertain precisely the truth of controverted matters. And by walking out, he has shown contempt not only for the Senate sitting as an impeachment court, but to the rule of law itself, which as chief justice, he should be the first to uphold. If his departure were really for medical reasons, why did he not ask for leave of court? That would have been easy and would certainly have been granted on humanitarian grounds. It does not help that he was captured on camera clearly intent on leaving the Senate on cue. Clearly, what he and his advisers did not anticipate was that the Senate President would order the lock-out of the Senate to prevent him from leaving.
As I write this, it has become apparent that the chief justice will not return to the Senate as he is reportedly in the intensive care unit. I do not question his state of health as that is now between him and his creator. What I condemn is his performance that degraded the legal profession and eroded the people’s trust in the rule of law.
At the very least, Corona has proven to all that he does not deserve to remain as chief justice!
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.
The Ombudsman has dismissed anew the Concerned Citizens Movement’s complaint against Mrs. Gloria Arroyo and her husband for the botched NBN-ZTE scandal. In dismissing the case against Mrs. Arroyo, the Ombudsman recited anew the mantra that the President is absolutely immune from suits while in Office. At the same time, the Ombudsman, perhaps to appease an angry public, charged former Commission on Elections Chairman Benjamin Abalos and Social Security System Chairman Romulo Neri with violating the country’s anti-graft law. It also upheld its own earlier resolution suspending Neri from office.The order of suspension is without a doubt a concrete achievement for the CCM since it was the only group of complainants that charged public officers involved in this scandal with both criminal and administrative complaints. Although co-convenor former Transportation and Communication Secretary Josefina “Josie” Lichauco did not live long enough to know about the finality of the administrative sanction against Neri, this is definitely a legal victory in that at least one sinister character in this episode was meted administrative sanction.
This latest dismissal of the complaint against the President is already the second order seeking to exonerate her on the basis of immunity in the same case. An order of dismissal was issued as soon as the CCM complaint was filed, also on the ground that while the Ombudsman is not a court, all proceedings conducted by it are apparently “suits” for purposes of presidential immunity. CCM then alleged that this was a wrong view since the Ombudsman, when evaluating complaints for violations of the country’s criminal laws on anti-graft and corruption, performs only a quasi-judicial function of determining the existence of probable cause. If it is there, the information is filed with the Sandiganbayan. If none, the complaint is dismissed. Obviously, a “suit” for purposes of the immunity of president applies only the moment an information is filed in court. It cannot include the preliminary investigation conducted by the Ombudsman in the determination of probable cause.
It is submitted that the Ombudsman’s construction of presidential immunity has further weakened an institution that the constitutional framers sought to grant with sufficient powers to uphold the constitutional adage of accountability of public officials. Like ordinary prosecutors, the Ombudsman conducts preliminary investigation with the view of not only charging those who have likely committed crimes, but also with the view of sparing the unnecessary wastage of public funds in the prosecution of those who are probably innocent. But unlike ordinary prosecutors, the Ombudsman is vested by the Constitution with extraordinary powers, including the power to:
“(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith x x x.”
In other words, the Ombudsman is not just a prosecutor, but is also the final administrative authority that has the power fire public officers for breach of the trust reposed in them. It also has the power to compel public officers to perform their duties.
Assuming therefore that the President is immune from suits, the Ombudsman, because it is not a court, could still investigate the President for any misconduct. If, despite the existence of probable cause, it cannot charge her in court; it could at least direct Congress, the exclusive body that can initiate impeachment proceedings, to perform its lawful duty of initiating impeachment. This is pursuant to its power to “direct, upon complaint or at its own instance, any public official or employee of the Government, x x x, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties”.
But the bigger issue is whether presidential immunity from suit remains the absolute rule. Again, it is CCM’s submission that absolute presidential immunity is a thing of the past. What is recognized today is the principle of limited immunity where heads of States are immune only for purely sovereign acts. Thus, when Augusto Pinochet was charged for the commission of torture and enforced disappearances, the UK House of Lord rejected the claim of absolute immunity holding that while sovereigns are indeed entitled to immunity from suit for sovereign acts, the commission of a crime can never be sovereign in character. To illustrate the point, the House of Lord even gave an example, that of a despot who ordered that his gardener be tortured for the sheer pleasure of seeing him tortured. “What, asked the House of Lords, is sovereign in this kind of an order?”
Not far from home is the decision of the US Court of Appeals in the Hilao v Marcos case, or the class suit filed by the victims of the Marcos dictatorship before an American Court. In response to an attempt by the Marcoses to have the suit dismissed on the ground of sovereign immunity, the US Court ruled that where the jurisdiction of the Court is vested by Congress itself through the Alien Tort Claims Act, a law that vests US Courts with the power to hear and decide cases against those that may have committed the international crimes of torture, war crimes, crimes against aggression and genocide; the defense of absolute immunity will not lie.
In yet another American case, no less than the US Supreme Court allowed a civil suit filed by one Jennifer Flowers to proceed against then sitting President Bill Clinton because as ruled the court, immunity only covers official acts and presumably, sexual harassment, which was the claim of Ms. Flowers, is not official in character.
Perhaps the status of law on the matter is evident in the international warrant of arrest issued by the International Criminal Court against the sitting President of Sudan, Omar al-Bashir for genocide, crimes against humanity and war crimes. Certainly, Bashir could argue that the crimes charged were committed in the context of an on-going armed conflict and are hence, sovereign in character. Despite this, he is today an international fugitive.
With all these developments, it should be obvious why international law, if not domestic law, no longer recognize absolute immunity for heads of states. For while in the past, it was thought that sovereigns cannot err, scandals like the NBN-ZTE prove otherwise, Ultimately, the question is: why should presidents be accorded impunity for non-sovereign acts?