Posts Tagged ‘GMA’

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.


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.

Gagging Mariano Part 3


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.

Martial Law

While the murder of women and children is certainly reprehensible business and must be dealt with not only with decisiveness but even with some measure of violence, it hardly seems that martial law is necessary or even germane to the current situation. At least from a legal perspective, it’s like removing a particularly troublesome hangnail with an exceptionally large battle-axe.