Author Archive

The First Hundred

The overarching strategy appears to hinge on the promotion of Public-Private Partnerships (or PPPs). Other than the fact that this is by no means an innovation, infrastructure development by itself is not a recipe for bringing the country out of its status as the perennial bridesmaid of Southeast Asia into the club of the sought after. There are tough choices to be made regarding population control, balancing the budget, peace and order plus of course, the manner and degree of aggressiveness in fighting corruption. Hard decisions require deft political handling and large political capital. While there is still hope, the President has to make these choices soon before his coin runs out.


PPPs and Risk, Part 1

Finally, opening the floodgates to indiscriminate government guarantees is short-sighted and counter-productive. At the end of the day, the increased cost of a government guaranty against regulatory risk will be borne by the tax payers. Since most PPP contracts will outlive President Aquino’s administration, he should be wary about putting his signature on a piece of paper which will doom his successor (and the one after that) to additional fiscal burdens, especially where the benefit is not clear or the need is not immediate.


Noynoy, Gibo, Villar and the new EDSA Revo-lections

Critics bemoan the fact that many Filipinos are reduced to electing the “least corrupt” rather than the “most competent” candidate for the highest post in the land. But that argument presupposes that the two concepts are mutually exclusive. On the contrary, we cannot deny that it is precisely the sad state of the country which calls for a comparison not of one’s track record of real and hyperbolic accomplishments but a demonstration of what one has NOT done despite being possessed of power. In this, Noynoy is head and shoulders above all. As it turns out, Noynoy has shown by his previous conduct that he is the most competent to wield the awful powers of the President by showing its grandest manifestation — that of RESTRAINT.


Who’s Holding the Purse? The Line Item Veto and other Fun Facts Part I

The true “power of the purse” does not arise from the requirement that all revenue bills must originate from Congress as stated in Article VI, Section 24 of the Constitution. Rather, it lies in the dynamic created by the concept that the President must ask Congress for money. Thus, more than the authority of Congress to institute revenue measures, the true nature of the power shows itself in the authority of Congress to WITHHOLD money from the President.


The Acting Secretary of Justice: Error or Something Else?

Amidst a storm of public protests and faced with mutiny from his own lieutenants (the Department’s high level career prosecutors ), Acting Secretary Agra stands pat on his unpopular decision to move for the discharge of Autonomous Region of Muslin Mindanao (ARMM) Governor Zaldy Ampatuan and former Maguindanao Vice Governor Akmad Ampatuan from the criminal charges stemming from the Maguindanao Massacre.

The Resolution has been the subject of all manner of punditry from armchair lawyers to conspiracy theorists.  In essence, most critics decry both the unholy speed by which the Secretary issued his decision and the fact that he sustained the legally weak defense  of alibi over positive testimony of one of the witnesses.   Adding my own two cents worth to these, most litigators will tell you (as well as anyone else who has had experience petitioning the DOJ) that if there’s one thing that the Department is NOT known for, it’s promptness.  Setting aside the possibility that the Acting Secretary may have precisely chosen to break with this particular DOJ tradition, it is still puzzling that he would act contrary to what prosecutors have historically been inclined (even told) to do , which is to prosecute in the event of conflicting evidence.

Whether Secretary Agra (a former advocate of volunteer legal aid for the poor) deserves the vilification that he is receiving today depends on another question which has only been asked implicitly — whether the resolution to absolve two of the high profile principals in the massacre constitutes simple error which is arguably the Secretary’s to make or rather bears the earmarks of something more sinister.

During the earlier part of my legal career, I was part of the team of private prosecutors that appeared in the case of “People of the Philippines v. Hubert Webb.” Webb, the son of a Philippine Senator, was one of the accused in the brutal rape of Carmela Vizconde and the slaughter of the entire Vizconde household.

Immediately after Hubert Webb was indicted, he questioned the finding of probable cause against him by the DOJ Panel despite producing exculpatory evidence in the preliminary investigation consisting of, interestingly enough , alibi.  Specifically, he presented documentary evidence that would supposedly place him in the United States  at the time that the crime was committed.

The Supreme Court, in Webb v. De Leon [GR No. 121245 (23 August 1995)], ruled that faced with “conflicting pieces of evidence,” the DOJ correctly found probable cause to indict the accused. It also explained that probable cause was synonymous with “probability of guilt” and therefore required a LOWER QUANTUM AND QUALITY of evidence than that required for conviction, to wit:

Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing  absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause demands more than “bare suspicion,” it requires “less than evidence which would justify . . . conviction.” A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.

In other words, the Philippine Supreme Court directs that if the Secretary were to err in the exercise of quasi-judicial powers of determining probable cause, he should do so on the side of INDICTING the accused, instead of setting him free.

From all accounts, the Acting Secretary seems to be as astute as any individual who had previously held his position.  Thus, it becomes difficult to justify his decision on account of a mere catastrophic failure to appreciate the ruling in Webb v. De Leon.  Yet the other conclusion is simply too scary to contemplate.


What It Will Probably Take Part II: More on Including the Poor in the Equation

Theoretically, higher income per capita should offset the effects of either a lower minimum wage or a moratorium on wage increases. Stated otherwise, a lower legislated minimum wage would cease to be relevant when a larger part of the workforce is doing higher level jobs and are therefore earning way beyond any floor set by government.


What It Will Probably Take Part 1: Inclusion

At the end of the day, people will not sign on to any plan to overhaul the economy if they don’t see more food coming to their table or if the food is not coming soon enough. This is significant because that plan may ultimately involve reforms that are designed to increase country competitiveness by liberalizing trade laws or lowering the cost of Filipino labor.


The Bastard and the Messiah: Problems With the Philippine Presidential System

Rightfully or wrongly, the 1987 Constitution adopts such a pessimistic attitude towards the President that it almost seems to be betting that more often than not, Filipinos will elect the bastard. In the process, it also hampers a “good” President with restrictions that make it extremely difficult for him to deliver the monumental course changing performance that the collective dreams about.


Gagging Mariano Part 3

Re: THAT THE TESTIMONY OF MR. TANENGLIAN IS “SUSPECT” AND “WOULD SERVE NO USEFUL PURPOSE FOR THE GOVERNMENT”

The OSG has also taken the position that the testimony of Mr. Tanenglian is “suspect” and therefore “valueless.”

That conclusion seems to be borne out of the following premises:

(i) The PCGG does not know the motives for the offer to testify

(ii) It took Mariano Tanenglian 20 years before offering to testify

Testimony is not “suspect”

Even assuming that Mr. Tanenglian has an interest adverse to his brother, this fact alone will not make his testimony untrue.  The Philippine Supreme Court has time and again ruled that a party’s interest is “not a ground for disregarding his testimony,” thus:

While  a party’s interest may to some extent affect  his credibility, his interest alone is not a ground for disregarding his testimony. The argument that the testimony of an interested party is self-serving and therefore inadmissible in evidence misses the essential nature of self-serving evidence and the ground for its exclusion.

[National Development Co. vs. Workmen’s Compensation Commission, et al; G.R. No. L-21724, 27 April 1967]

The common objection known as self-serving is not correct because all testimonies are self-serving.

[Hernandez vs. Court of Appeals; G.R. No. 104847, 14 December 1993]

“The law itself provides that a party or any other person interested in the outcome of a case may testify (section 18, Rule 130, Rules of Court). The testimony of an interested witness, this Court has said, should not be rejected on the ground of bias alone, and must be judged on its own merits, and if such testimony is clear and convincing and not destroyed by other evidence on record, it may be believed (U.S. vs. Mante, 27 Phil. 134).”

[Carandang vs. Cabatuando; G.R. No. L-25384, 26 october 1973]

Indeed, testimony by an individual is naturally and generally “self-serving” and made for his own interests. That Mariano Tanenglian has personal interest in the subject of litigation does not necessarily invalidate his testimony.

Regarding a possible ulterior motive, the rule is that in its absence, all testimony must be given full faith and credibility. The presumption is in favor of the good faith.

The PCGG, on the other hand, is presuming just the opposite, which contravenes well known rules of appreciation laid down by the Supreme Court, to wit:

It is settled that when there is no showing that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that the witnesses were not so actuated and their testimonies are thus entitled to full faith and credit. Testimonies of witnesses who have no motive or reason to falsify or perjure their testimonies should be given credence.

[People vs. Gallarde; G.R. No. 133025, 17 February 2000]

Without showing any reason or motive for a prosecution witness to perjure his testimony, the presumption is that no such improper motive exists, and his testimony is worthy of full faith and credit.

[People vs. Carino; G.R. No. 129960, 28 august 2001]

Absent any evidence showing any reason or motive for the prosecution witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimonies are thus worthy of full faith and credit.

[People vs. Mallari; G.R. No. 145993, 17 June 2003]

Since the presumption is in favor of the witness’ good faith, clear and convincing evidence of bad faith is necessary to overturn the presumption [Heirs of Severina Gregorio vs. Court of Appeals, et al.; G.R. No. 117609, 29 December 1998].   Thus, the government is under no obligation at the first instance to establish goodwill or a noble motive in order to put Mr. Tanenglian on the witness stand.

Corollarily, it seems incongruous for the OSG to automatically attribute ill-motive on a potential witness simply due to his relations to one of the defendants.  As a matter of fact, jurisprudence itself proclaims that relationship should not automatically give rise to a presumption of bad faith, thus:

Relationship per se does not give rise to the presumption of ulterior motive nor does it ipso facto tarnish the credibility of a witness.

[People vs. Vicente, et al., G.R. No. 142447, 21 December 2001]

With respect to motives in “ill-gotten wealth” cases in particular, the High Court in “Tanchangco and Lacson vs. Sandiganbayan, et al.” [G.R. No. 141675-96, 25 November 2005]  recognized that self-serving interests such as protection and benefit are ACCEPTABLE motives, thus:

In tracing and recovering the colossal sums of `ill-gotten wealth’, the PCGG would inevitably collide with powerful interests. Persons who would be able to assist in the prosecution of cases of ill-gotten wealth may understandably be hesitant to cooperate with the PCGG without the assurance of some protection, or perhaps corresponding benefit on their part. There may be some inherent unease with the notion that persons may acquit themselves of their own criminal culpability by striking a deal with the government, yet the process of compromise has long been allowed in our jurisdiction, and in the jurisdiction of other states as well. This holds especially true in the prosecution of ill-gotten wealth cases, which not only involve monumental amounts, but have also acquired immense symbolic value. [emphasis supplied]

Neither is the alleged delay in Mr. Tanenglian’s offer to testify sufficient to destroy the credibility of his testimony, thus:

It has been a consistent ruling of this court that a witness’ delay in testifying does not affect his credibility.

[People of the Philippines vs. Obosa; G.R. No. 132069, 31 May 2000]

It is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case. The natural reticence of most people to get involved is of judicial notice. It is understandable for a witness to fear for his safety, especially in this case where PC men were involved in the commission of a crime. Such initial reticence does not affect the witness’ credibility.

[People vs. Caraig; G.R. No. 116224-27, 28 March 2003]

Even more importantly, beyond a preliminary determination that a witness is qualified for discharge and/or immunity under the rules, neither the PCGG nor the OSG have any business preempting the rightful prerogative of the courts to decide on issues such as the credibility of the witnesses and weight of their testimony.

By placing unnecessary obstacles to the testimony of Mr. Tanenglian, the prosecution is effectively depriving the Sandiganbayan of the opportunity not only to hear evidence but also to perform its constitutionally mandated function.


Gagging Mariano Part 2

From the previous blog, I mentioned that each of the publicly stated reasons for the OSG’s recommendation to reject Mr. Tanenglian’s offer can be examined under a legal microscope.

First Reason: The danger that Mariano Tanenglian  will “suddenly [change] his mind and [turn] his back on [the State][1]?

The first reason offered by the Solicitor General to vindicate her recommendation is her concern that the witness may retract his statements or renege on his agreement to present evidence after immunity or discharge is granted by the State.

The “possibility” of such occurrence has to be acknowledged, but is the danger of retraction of such magnitude and degree that it would warrant the outright rejection of the offer of a willing witness to testify? My candid opinion is that it isn’t.

Discharge as state witness

The provision on “discharge” of a person accused as state witness is found in Section 17 of Rule 119 of the Rules of Court:

“Section 17. Discharge of the Accused to be a State Witness. When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that:

“(a) There is absolute necessity for the testimony of the accused whose discharge is requested;

“(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the said accused;

“(c) The testimony of said accused can be substantially corroborated in its material points;

“(d) Said Accused does not appear to be the most guilty; and

“(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

“Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denied the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.”

Note that the last sentence of Section 17 explicitly provides that “[i]f the court denied the motion for discharge x x x, his sworn statement shall be inadmissible in evidence.” This can only mean that before one may be considered a state witness and therefore be entitled to the effects of the discharge, he is required to execute a sworn statement containing the substance of his testimony.

The sworn statement mandated under the foregoing rule (which is usually in the form of an Affidavit) by itself provides a good measure of protection against the possibility of retraction.  A witness who contradicts the contents of his sworn statement will subject himself to Perjury punishable under Article 183 of the Revised Penal Code.

Thus, even absent any specific provision in the proposed Immunity Agreement which provides for sanctions against retraction of testimony, the requirement of the Rules to execute a Statement under oath already serves to deter the possibility that the “[witness] may refuse to cooperate with the Republic without any damage or prejudice to himself.”

Furthermore, the witness will not be discharged until he actually testifies against the accused in a criminal case in accordance with his sworn statement. Section 18 of the same Rule 119 states:

“Sec. 18. Discharge of accused operates as acquittal. – The order indicated in the preceding section shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for the discharge.”

[emphasis supplied]

Immunity from prosecution

For immunity from “future prosecution,” section 5, of Executive Order No. 14, as amended (the provision which empowers the PCGG to grant immunity from criminal prosecution) provides:

“Sec. 5. The Presidential Commission on Good Government is authorized to grant immunity from criminal prosecution to any person who provides information or testifies in any investigation conducted by such commission to establish the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in any case where such information or testimony is necessary to ascertain or prove the latter’s guilt or his civil liability. The immunity thereby granted shall be continued to protect the witness who repeats such testimony before the Sandiganbayan when required to do so by the latter or the commission.”

In the case of “Placido L. Mapa, Jr. et al vs. Sandiganbayan” [G.R. No. 100295, 26 April 1994], the Supreme Court held that the PCGG has ample discretion to impose conditions for the grant of immunity, thus:

“Contrary to the ruling of the respondent court, the failure of petitioners to testify in the RICO cases against the Marcoses in New York can not nullify their immunity. They have satisfied the requirements both of the law and the parties’ implementing agreements. Under Section 5 of E.O. No. 14, as amended, their duty was to give information to the prosecution, and they did. Under their Memorandum of Agreement, they promised to make themselves available as witnesses in the said RICO cases, and they did. Petitioners were ready to testify but they were to called to testify by the US prosecutors of the RICO cases. Their failure to testify was not of their own making. It was brought about by the decision of the US prosecutors who may have thought that their evidence was enough to convict the Marcoses. Since petitioner’s failure to testify was not of their own choosing nor was it due to any fault of their own, justice and equity forbid that they be penalized for their withdrawal of their immunity.” [emphasis supplied]

So, not only is the PCGG authorized to impose additional requirements not appearing in Section 5 of EO 14, the decision seems to imply that it is the duty of the PCGG to impose the conditions for the grant.  Indeed, the text of the Decision takes for granted the fact that a failure to testify allows the withdrawal of immunity.

In this connection,  recall that one of the reasons publicly offered by the OSG is that “the agreement does not provide any sanction/penalty/liability in the event that Tanenglian reneges on his obligations” and stops at that. If the statement is true and the agreement is indeed lacking in this respect, it would have been a simple matter for the OSG to recommend certain conditions which it deems would be sufficient to protect the State instead of rejecting the offer outright.

Similar to the case of a discharge, the OSG and eventually the PCGG may require Mariano Tanenglian to execute an affidavit and testify before any court. As discussed earlier, this by itself operates as a deterrent against retraction.

Indeed, the PCGG is also authorized to broaden or limit the scope of immunity granted to the applicant. This discretion was recognized by the Supreme Court in Jesus T. Tanchangco, et al. vs. Sandiganbayan, [G.R. No. 141675-96, 25 November 2005] where it stated:

“From these premises, we can draw useful conclusions. Section 5 is worded in such a manner as it does not provide any express limitations as to the scope of immunity from criminal prosecution that the PCGG is authorized to grant. The qualifications that Section 5 do provide relate to the character of the information or testimony before the PCGG of the grantee of the immunity, namely, that it “establish[es] the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in any case where such information or testimony is necessary to ascertain or prove the latter’s guilt or his civil liability.

Xxx

“Another consideration impels us to sustain this broad application of immunity under Section 5 of E.O. No. 14-A. We cannot ignore the special circumstances under which the PCGG was created, and the extra-ordinary powers with which it was vested. The Freedom Constitution itself, under which the body was created, recognized the need “to [r]ecover ill-gotten properties amassed by the leaders and supporters of the [Marcos] regime”. It has been acknowledged that the PCGG is “charged with the Herculean task of bailing the country out of the financial bankruptcy and morass of the previous regime and returning to the people what is rightfully theirs. For this reason, the PCGG was granted quasi-judicial functions encompassing special investigatory and prosecutorial powers. Among them, the power to grant immunity.

Xxx

“The overwhelming need to prosecute the ill-gotten wealth cases is entrenched in statute and public policy. The stakes being as they are, the need is apparent for a highly conducive environment under which witnesses may be induced to cooperate with the PCGG in the prosecution of the ill-gotten wealth cases. The authorization of the PCGG to broadly extend criminal immunity, as is apparent in the language of section 5, is attuned to such claims. Certainly, Section 5 as constructed leads to a reasonable conclusion that the scope of criminal immunity which the PCGG may offer need not be limited to prosecution relating to the information or testimony offered by the witness. And it is apparent on the face of the Cooperation Agreement with Tanchangco that the PCGG understood just as well that it had the power to grant criminal immunity even over such acts which did not directly bear on the information or testimony.

“Our conclusion is also supported by the fact that based on the PCGG immunity agreements which have come before this Court, the scope of offered immunity has proven variable. For example, the grant of immunity accorded by the PCGG to Jose Yao Campos and his family was qualified only by reference to Section 5 of E.O. No. 14. On the other hand, the immunity received by Placido Mapa and Lorenzo Vergara was limited “over any offense with reference to which [their] testimony and information are given, including any offense and commission of which any information, directly or indirectly derived from such testimony or other information is used as basis thereof, except a prosecution for perjury and/or giving false testimony.” In Tanchangco’s case, his entitlement to criminal immunity applies to three determinate circumstances: for acts committed while he was in the service of the Marcos government; acts committed in behalf of the Marcos government; and any other acts revealed by him in the course of his cooperation with the PCGG.

“These variances are indicative of the fact that the PCGG has the discretion to vest appropriate levels of criminal immunity according to the particular witness. There are several factors that may affect his choice, which may include the relative importance of the witness to the prosecution of ill-gotten wealth cases, the degree of culpability of such cases, or even the condition expressed by the witness as sufficient to induce cooperation. Given the language of Section 5, we do not doubt that latitude afforded to the PCGG in determining the extent of criminal immunity. [emphasis supplied]”

Furthermore, instead of immunity from criminal prosecution, the PCGG is authorized to grant  only “civil immunity” to Mr. Tanenglian.

In this connection, it may be worthwhile to note that Mr. Tanenglian’s offer pertains to an offer to testify in “Republic of the Philippines vs. Estate of Ferdinand Marcos, et al”.   This case is civil in nature and in fact bears a docket number denominated as CIVIL CASE NO. 005. Thus, the pertinent provision is Section 3 of E.O. No. 14, which states:

“Section 3. Civil suits for restitution, reparation of damages or indemnification for consequential damages, forfeiture proceedings provided for under Republic Act No. 1379, or any other civil actions under the Civil Code or other existing laws, in connection with Executive Order No. 1 dated February 28, 1986 and Executive Order No. 2 dated March 12, 1986, may be filed separately from and proceed independently of any criminal proceedings and may be proved by a preponderance of evidence.”

This was confirmed in Republic of the Philippines vs. Sandiganbayan [G.R. No. 84895, 4 May 1989] where the Supreme Court interpreted Section 3 in this wise:

“[T]he PCGG may file an independent civil action separate from the criminal action. Hence, section 5 thereof which empowers the PCGG to grant criminal immunity must be interpreted to relate only to a criminal action and not to a civil action. In case of a civil action, the power to grant immunity or the making of the decision not to file a civil case or to drop one already in progress must be related to section 3 of the law which specifically provides for the procedures and the applicable laws in the prosecution of civil suits.”

That being the case, the Supreme Court went on to declare that the power of the PCGG to grant immunity is not derived from Section 5 but on the rules of compromises under the Civil Code, to wit:

“In the absence of an express prohibition, the rule on amicable settlements and/ or compromises on civil cases under the civil code is applicable to PCGG cases.”

The case concluded:

“We thus hold that the Cooperation Agreement, validly undertaken between the PCGG and Tanchangco as it was, precludes the prosecution of Tanchangco under the subject charges. The Sandiganbayan acted with grave abuse of discretion in refusing to dismiss the charges despite its lack of jurisdiction to continue hearing the cases against Tanchangco. In the present petition, insofar as it relates to Tanchanco, must be granted. It goes without saying  though that this ruling does not shield all grantees under Section 5 of E.O. No. 14-A from all kinds of criminal prosecution. The extent of immunity available to each particular grantee depends on their respective immunity agreements with the PCGG and the surrounding facts.

In other words, in lieu of an outright denial of the offer to testify, the OSG would have been well within rights to recommend the grant of civil immunity only, depending on the circumstances of the case.

Consequently, it is clear that from a legal standpoint, the fear of retraction should not be an overriding factor that would warrant the outright rejection of Mr. Tanenglian’s testimony. Even if the possibility of such retraction is acknowledged, certain measures can be undertaken to minimize the impetus for its occurrence.


[1] Appearing in GET REAL: ABOUT FACE; Philippine Daily Inquirer, 10 October 2009