Posts Tagged ‘noynoy’

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?


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.

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.

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.


“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.


“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