Archive for the ‘filipino’ Category

PPP for School Infrastructure: Old Dogs Old Tricks

Is there an answer to the classroom shortage?

Depending on who you ask, the Department of Education’s (DepEd) backlog for school buildings ranges anywhere from 30,000 to close to 200,000. DepEd itself pegs the estimate at 60,000 school buildings and admits that it has no way to fill the shortage on the present budget.

Part of the problem is that the DepEd model for constructing school buildings has always been one of traditional government procurement (i.e., government bids sites to its accredited contractors and pays for them pursuant to terms contained in a supply agreement). This prevents the department from going beyond its allotment and confines it to DPWH designs which are not only outdated but also expensive.

Last year, we introduced a different channel to the Department when our clients submitted an unsolicited proposal for the erection of 300 school buildings in Regions III and IV-A under the Build-Operate-Transfer (BOT) Law. Instead of “acting” on the proposal as the law requires however, the Department archived the proposal and invited private sector to participate in the PPP for School Infrastructure Program (PSIP). This program essentially allows private sector to submit bids for one, two or all three contract packages comprising approximately 10,000 school buildings in pre-selected areas in Regions I, III and IV-A under a Build-Lease-Transfer arrangement spanning 10 years.

There’s be a bit of vicarious nitpicking involved on account of the fact that our consortium desisted from submitting pre-qualification documents at the last minute due to unresolved issues on certain financial aspects of the PSIP. Fortunately, this frees us to discuss some of those very same issues here.

One of the principal concerns for our consortium was the absence of a government guaranty, especially considering the long payout period. The obligation was backed only by a Multi-Year Obligation Authority (MYOA) – a written recognition issued by the Department of Budget and Management that the agency concerned is authorized to enter into a forward obligation but which stops short of a guaranty. The banks were hesitant to backstop the consortium on this kind of security because the obligation was still budget dependent and there was no assurance that Congress would appropriate the amounts needed to finance the lease for a sustained period exceeding the term of the current administration.

At the same time, we felt that government imposed requirements on the contractor which were unrealistic and even illogical. For instance, that the project is based on a BLT arrangement backed by strict performance guaranties means that the transaction is purely turn-key and that non-delivery risk is virtually zero for the government. Yet the DepEd imposed ultra high capitalization requirements and construction experience thresholds which eliminated all but the biggest construction contractors and required smaller players to “rent” the bigger names for the purpose of pre-qualifying. The irony of it is that the big, traditional construction contractors may by themselves not be equipped to handle the delivery of 10,000 schoolrooms spread over  3 geographical regions in one year because the exercise is not at all akin to construction of a large structure in a single (or practically single) site. Rather, the project calls for rapid fire manufacturing of the building blocks, logistics, planning and massive deployment.

Despite all these inconsistencies however, the PSIP is essentially a good idea long in coming and one has to root for the project’s success notwithstanding private loyalties.  But having seen the bureaucracy up close, it’s difficult to shake the feeling that we are still a long way from 60,000.




Impeachment: How did it come to this?

Americans Reinstate Audencia Territorial: Judges take the Oath


Now that the impeachment trial of the Chief Justice is well underway, it is worth some time to examine how we had arrived at this situation.

After EDSA and under the helm of the first President  Aquino, the sovereign Filipino people  overhauled their Constitution for the second time (not counting the provisional Constitution). One of the most significant innovations of the 1987 Constitution was Article VIII, Section 1 which expressly bestows power on the courts not only to decide “actual controversies” but also to correct grave abuses of discretion “on the part any branch or instrumentality of government,” to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.

This “power” to review acts of other branches is not exactly new. In Angara vs. Electoral Commission (GR No. L-45081), the Supreme Court was asked to decide a conflict between a Resolution of  the National Assembly (i.e., the legislature) confirming the election of Jose Angara and a resolution of the Electoral Commission allowing his opponent until a certain date to file a protest. One of the issues raised in the case was whether the Supreme Court had jurisdiction to settle the controversy involving as it does a co-equal branch of government (the National Assembly) and a Constitutional body.

In its Decision penned by Justice Laurel, the Supreme Court recognized the supremacy of each branch “within its own sphere” but held, much like in Marbury vs. Madison, that the Constitutionally mandated system of checks and balances requires the Supreme Court to effectively check the other branches of government because of its power to determine constitutional boundaries and if other branches went beyond them. It went further than Marbury vs. Madison however, in that the High Court pronounced itself the “final arbiter” to settle constitutional conflicts in “times of social disquietude or political excitement,” thus:

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

That assertion of judicial supremacy has never been seriously questioned and arguably may even be critical to the orderly functioning of society. To be fair, the Supreme Court has showed self restraint in the exercise of judicial power. Oddly enough therefore, the need to express the authority to exercise judicial review more definitively in the Constitution came as a reaction to the perceived weakness of the Tribunal and its hesitation to correct legal abuses committed by the former President Marcos in cases like Javellana vs. Executive Secretary (GR No. L-4460) .

As it turns out, strengthening the judiciary is all well and good but inadvertently manufactures another logical dilemma: that of a counter-majoritarian court which has the power to strike down acts of the other branches of government. In other words, how is it possible, in a “democratic” government founded on the rule of the majority, for unelected magistrates to veto acts of officials elected by the people and in certain cases even influence policy? To whom are they accountable?

The obvious answer is that Justices of the Supreme Court are accountable to the people directly. Under Article XI, Section 3 of the 1987 Constitution, an impeachment complaint may be initiated by any citizen upon a resolution of endorsement of any member of the House of Representatives, thus:

Section 3.

  1. The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

  2. A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

  3. A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

  4. In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

  5. No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

  6. The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

  7. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

  8. The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

However, this is true of all officials who can be removed by impeachment.  Thus, the provision is not specifically designed as a check against the abuses of a “rogue” court and may prove to be inadequate for the purpose.

As the impeachment grinds on and more legal issues are raised in the Senate, resort at some point to the Supreme Court almost seems inevitable. To what extent then, if at all, will the Supreme Court assert its role as the “final arbiter” of legal questions as against the exclusive jurisdiction of the Senate over impeachment cases?


The TRO Against the DOJ Watchlist Order: Will There Be a Constitutional Crisis?

DOJ defies TRO (Image from PDI)

Sabres have been drawn between the Supreme Court and the Executive Branch, under the banner of the Department of Justice (DOJ) Secretary Leila De Lima. Like most struggles in history, this clash is about a woman and the refusal of one of the zealous pursuers to let go.

Citing medical necessity and her constitutional “right to travel”, the former President sought judicial intervention against an Order of the Department of Justice placing her under a Watch List which effectively prevents her from leaving the country. That relief came on Wednesday (the 15th of November) in the form of a Temporary Restraining Order (TRO) issued by what is popularly perceived as an Arroyo loaded  Court. Despite the TRO, the DOJ has instructed the Bureau of Immigration and Deportation (BID) not to allow GMA to board her plane until after the Supreme Court rules on its hastily filed Motion for Reconsideration.

In the meantime, the camp of the former Chief Executive has filed Contempt charges against De Lima.

So far, no one has blinked.

Leaving the constitutional issues (which warrant a more incisive discussion) for later, we focus our attention on the TRO issued by the High Tribunal and why I don’t believe that it will lead to a “Constitutional Crisis” as alarmists are presently claiming.

For the most part, the reasons why it should not have been issued have been discussed in the most lucid and convincing fashion by Justice Sereno in her dissenting opinion.  I just wish to add that in this case, a Temporary Restraining Order is severely misplaced.

The purpose of a TRO, or any injunctive relief for that matter,  is to preserve the status quo until the merits of the controversy can be heard (Rodulfa v. Alfonso, 76 Phil 225, citing Frederick v. Huber, 180 Pa. 572, 37 Atl. 90). The “status quo” (or more properly, the status quo ante litem) is not necessarily what the situation  is obtaining immediately preceding the filing the case. Rather, it refers to “last, actual, peaceable and uncontested status” before the litigation.

In other words, the status quo which is required to be preserved in this case is that government is poised to indict the former president for crimes committed during her office. That Congressman Arroyo was scheduled to leave the country is not “the last peaceable and uncontested status” because precisely her right to leave the country and the validity of the restriction imposed by the Watch List Order is the very lis mota of her petition before the Supreme Court. To allow her to leave and eventually avoid prosecution for her alleged offenses  would destroy or change the status quo rather than preserve it.

In the case of Yuquico v. Quiambao [GR No.191238], an intra-corporate dispute was filed by the stockholder’s group  led by respondents against those of petitioners. As part of their complaint, the Quiambao group contested the legitimacy of the corporate officers elected during a meeting held on 01 March 2004. Clarifying its earlier order to restore the status quo, the Supreme Court explained that the last, actual, peaceable, uncontested status of the parties prior to the filing of the case could not be the results of the election of officers on 01 March 2004 as this is precisely the meat of the controversy in the case.

In annulling the assailed RTC resolution, the CA. correctly opined, citing Mayor Garcia v. Hon.
Mojica,that the last actual peaceable uncontested status of the parties prior to the filing of Civil
(SEC) Case No. U-14 would not refer to the result of the election of officers held on March 1, 2004
since that election did not precede the present controversy; it is, in fact, the real controversy.
The last actual peaceable uncontested status of the parties prior to the filing of this case would be the
composition of STRADEC’s directors and officers prior to the March 1, 2004 elections, or that
obtaining during the 2003-2004 elections.

So for the most part, I hope that the DOJ secretary stands firm on her decision to keep GMA within reach of her department’s prosecutors. I certainly do not believe that her apparent insouciance to the Supreme Court directive would result in a constitutional crisis.

Indeed, this is not the first time, and it certainly would not be the last, that a branch of government has ignored and even defied another co-equal branch. On 11 June  1963, three African American students applied for admission before the University of Alabama following the landmark decision of the US Federal Supreme Court in Brown v. Board of Education which ruled in 1954 that the segregation policy in public schools was unconstitutional.  Then Governor George Wallace of Alabama blocked the entrance to the school auditorium to deny access to the African-American students in open defiance of the decision.  It took a direct order from the President of the United States and the intervention of the National Guard to resolve the standoff.  Had the federal government not agreed or supported the decision, it would be nothing but a victory on paper, largely ignored in application.

Even Marbury v. Madison (5 US 137) , the recognized progenitor of today’s concept of judicial review, stemmed from a refusal of the Secretary of State  (James Madison) to affix the seal of the United States on William Marbury’s commission after he was appointed as justice of the peace by the previous President John Adams. Keenly aware that the Supreme Court of the United States could not do anything if the Secretary of State disregarded an express directive issued by the Court, Justice Marshall refused to issue a writ of mandamus against the Madison on the ground that it had no power to do so in the exercise of its original jurisdiction. It ruled that Section 13 of the Judiciary Act which gave the Supreme Court such power of mandamus was unconstitutional. In so doing, Justice Marshall deftly avoided a conflict with the executive department but paved the way for general acknowledgement that the Court had the power to review an act of Congress.

An equally important aspect of that decision is often unappreciated. Nowhere is it mentioned in Marbury that the power of the Supreme Court to determine whether an act is unconstitutional is the exclusive province of the judiciary. Contrary to the general impression, all branches of government are duty bound to observe the Constitution. Hence, it necessarily follows that the executive and the legislative must have the authority to determine the constitutionality of official acts. The President is duty bound not to support a law which he strongly believes to be unconstitutional. By the same token, the Executive should also be free to disagree with the decision of the Supreme Court. In such an event, he is in fact under obligation by his own oath to bring the matter of their disagreement again to the Supreme Court for consideration.


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.

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.

Gagging Mariano (Part 1)

A few days ago, Manila newspapers reported that the Solicitor General recommended the rejection of Mr. Mariano Tanenglian’s offer  to testify against his brother Lucio Tan in exchange for immunity from civil and criminal liability (some reports make use of the phrase “state witness”).

Mariano is expected to testify  that a substantial part of billionaire Lucio’s business empire comprises wealth unlawfully amassed by the former President Ferdinand Marcos during his tenure and therefore subject to forfeiture.  Given that the Republic has consistently failed to get a firm hold on the elusive prize for decades, the emphatic and almost brusque rejection of the offer seems puzzling.

Admittedly, we are not privy to all information which may or may not have influenced the Solicitor General’s decision.   By way of example, since one of the principal justifications for the rejection is that the specific conditions for the giving of the testimony were unacceptable, a copy of the draft Immunity Agreement would have been helpful in testing the substantive merits of the position.

In any case, what we do have are public statements made by the concurrent Solicitor General and Acting Secretary of Justice regarding the rationale for the rejection.  These justifications can in fact be measured against a legal standard even outside the context of the terms of the proposed Immunity Agreement (albeit perhaps with certain qualifications).   Considering that the case in which the proposed testimony is to be taken is of historical import and considering further the personalities involved,  we venture to add that these legal standards must be somewhat restrictive.

Thus, the question is: are the justifications offered by the OSG for the rejection of the offer of Mariano Tanenglian to testify in Sandiganbayan Civil Case No. 005 legally valid?