Palace: Duterte immune from suit

Malacañang insisted on Sunday that President Duterte cannot be hailed to court by the Office of the Ombudsman in connection with the plunder complaint filed against him by Sen. Antonio Trillanes IV.

“The President enjoys immunity (from suit) while in office,” Presidential Communications Secretary Martin Andanar said in a statement.

While Ombudsman Conchita Carpio Morales may place Mr. Duterte under investigation, Andanar said she “cannot discipline or remove a sitting President.”

Under existing jurisprudence, an incumbent President is exempted from facing any legal action. The privilege, however, is not explicitly contained in the 1987 Constitution.

Andanar said the Ombudsman’s decision to look into Trillanes’ allegations against the President was just “part of the constitutional mandate of the Ombudsman.”

“However, whether this will become a case against the President is an entirely different matter,” he said.

\In an interview with reporters last Friday, Morales said the Ombudsman had been conducting an investigation against Mr. Duterte based on Trillanes’ allegations that he had hired 11,000 “ghost” employees when he was the mayor of Davao City in 2014.

Trillanes said a report from the Commission on Audit showed that the city government spent P708 million for the salaries of contractual employees despite lack of documents showing they had actually rendered service.

“At the time the case was filed, he was not yet President. See, under the law, even if a person has immunity or even if he’s impeachable, you still continue the investigation for purposes of determining whether there is misconduct,” Morales said.

source:  Inquirer

House, Senate concur: Ethics rap, not arrest warrant, vs De Lima

Instead of issuing an arrest order against Senator Leila de Lima, the House of Representatives will just ask the Senate, through an ethics complaint, to discipline its own members, Senate Majority Leader Vicente “Tito” Sotto III said on Tuesday.

Sotto said the consensus was reached when leaders of the Senate and the House met Monday night.

“The meeting went well. We discussed possible Ledac (Legislative-Executive Development Advisory Council) issues to take up with the President, then, we agreed to avoid a possible confrontation between the two houses,” he said in a text message.

“We will respect any moves of their committees for show-cause order as long as it is not directed towards the Senate itself. It will be up to Senator De Lima if she will answer or not. Then we will take action on any complaints they will file in the Senate ethics committee,” the senator added.

Sotto is also chair of the Senate ethics committee, which has already received at least two complaints against De Lima.

The House earlier issued a show-cause order against De Lima for allegedly advising her former aide, Ronnie Dayan, not to attend its hearings on the alleged proliferation of illegal drugs at the New Bilibid Prison when she was still Justice Secretary.

Speaker Pantaleon Alvarez even threatened to issue an arrest order against De Lima if she refuses to respond to the show-cause order.

But De Lima, who had repeatedly denied involvement in illegal drugs, stood pat against participating in the House probe, which she described as a “kangaroo court,” saying she would not honor the show-cause order.

Asked if the House would still pursue the arrest order against the lady senator, Sotto said, “They will avoid issuing an arrest order although they think they can (do) that, they will take a different process, and that is to ask us to discipline our own.” CDG

source:  Inquirer

Overdue process?

By: Artemio V. Panganiban / @inquirerdotnet

Philippine Daily Inquirer

No person shall be deprived of life, liberty or property without due process of law…” is the most basic right enshrined in the first section of our Constitution’s Bill of Rights. Deprivation is not necessarily unconstitutional. What is prohibited is deprivation without due process.

Illegal arrests and searches. Moreover, the second section of the Bill of Rights guarantees “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose.”

To deprive a person of this right—that is, to be able to arrest him/her, or to search his/her “body, houses, papers, and effects”—the arresting officer must first secure an arrest or search warrant from a judge.

In turn, to issue either or both warrants, the judge is required to personally determine “probable cause” by examining under oath the complainants (or the police officers) and the witnesses they may produce. The warrant must specify the place to be searched and the persons or things to be seized. It cannot be used to search any place or to seize any person or thing other than those specified therein.

My Oct. 6 column (“Dismal record in prosecuting drug cases”) explained the exceptions to the need for warrants, like those made in flagrante delicto and in “hot pursuit.”

Note that courts strictly construe these exceptions. Defects in the warrants, like where the judge did not personally examine the witnesses, or where the arresting officer did not have personal knowledge of the facts and depended merely on “surveillance operations,” make the arrest and/or search illegal.

Similarly, our Constitution grants suspects the so-called “Miranda rights” requiring the arresting officer to inform suspects of their rights to remain silent and to have competent and independent counsel; otherwise, the arrest and search would likewise be illegal.

Moreover, confessions extracted with “torture, force, violence, threat, intimidation, or any other means which vitiate the free will” would also be illegal.

In all these instances, the illegally obtained evidence, even if tending to prove guilt, would be inadmissible in evidence, and would thus result in the acquittal of the accused.

Libertarian pendulum. Why is the Constitution so protective of suspects and so strict on police officers? Because when it was crafted in 1987, the horrifying abuses during the martial law regime were still fresh. Our constitution drafters wanted iron-clad protection for the innocent, especially the poor and the marginalized.

However, the libertarian pendulum swung too much to the opposite direction, resulting in the timidity of the police, lest they be held liable administratively and criminally. The net result is the rise in criminality. Grafters, killers, rapists and drug lords misuse the liberality of the Constitution to evade liability for their crimes and misdeeds.

And even when police officers strictly observe constitutional rights, some prosecutors and judges, out of sheer ignorance, apathy, laziness, or corruption, fail the justice system. So, too, witnesses are bribed, lose their memory, or otherwise disappear. Many lawyers thrive in technicalities and delays, rather than in their sworn duty to do justice to everyone.

Extralegal solutions. The consequence is a general revulsion against democratic methods, overlooking that means are as important as ends. Due process is equated with costly suits, tiring delays, inexplicable technicalities, long-winded trials, interminable appeals, unwelcome acquittals and plain injustice.

In frustration, people tend to take matters into their own hands and turn to extralegal and extrajudicial shortcuts.

To solve this revulsion to “overdue process,” the police, the prosecutors, the lawyers and the judges will have to cooperate, think outside the box, moderate the pendulum swing and craft innovative ways to provide quality and speedy justice for all. There must be a way to safeguard our precious constitutional rights without the “over” in due process.

Comments to chiefjusticepanganiban@hotmail.com

The politicization of human rights

By: Neil B. Nucup / @inquirerdotnet

Never was my interest drawn to the US presidential election until September, when it became clear that Rodrigo Duterte’s own election as president was proving to be greatly divisive. Seeking enlightenment on how Western democracies choose their leaders, I closely followed the campaign trail of Republican nominee Donald Trump and Democratic candidate Hillary Clinton. To be sure, the two presidential aspirants are poles apart. Yet, despite their fundamental differences, Trump and Clinton flaunt themselves as though they share the same advocacy—human rights.

This would have been a welcome circumstance had their supposed human rights crusade been ideological. But it was not, and quite far from it. Rather, it was purely political and intended to propel one’s candidacy while pulling down the other. Not surprisingly, Clinton joined the bandwagon in vilifying Trump for his derogatory remarks on undocumented immigrants, Muslims, and women. With the recent release of a 2005 recording of his crass remarks on power and women, the business mogul’s candidacy went on a downward spiral. Undaunted, Trump said his “words” were not comparable to the “deeds” of Bill Clinton, his rival’s husband. Trump also hit his rival for supporting the US war on Iraq, which, despite the absence of weapons of mass destruction, was “preemptively” attacked nonetheless for its purported gross violations of human rights.

In other words, Trump argues that Clinton does not have the moral ascendancy to castigate him on human rights issues because she herself does not have a good track record on human rights to speak of.

The argument sounds familiar, doesn’t it? When the Senate committee on justice started to look into the spate of extrajudicial killings, President Duterte took offense. His political allies immediately came to his aid, leading to Sen. Leila de Lima’s immediate ouster as committee chair and her replacement by Sen. Richard Gordon. Then the House of Representatives and the Department of Justice launched an all-out inquiry into De Lima’s alleged involvement in the illegal drug trade. Gordon has terminated the Senate inquiry but the matter remains unsettled; in Sen. Antonio Trillanes’ view, the closure of the proceedings amounted to a cover-up.

This is the danger of wielding human rights as a political weapon, whether to overthrow a regime or silence the opposition. Their enjoyment becomes arbitrary and lines are drawn between the administration and anyone not supportive of it. As a result, where the majority sees a fraction of the population as a menace to society, the latter can easily be made to relinquish the right to live by state authority. This is the tyranny of the majority at its worst.

Speaking to soldiers of the 10th Infantry Division in a military camp in Mawab, Compostela Valley, on Sept. 20, Mr. Duterte assured them of full protection from liability: “For as long as there is the power to pardon sa Constitution, yan ang weapon ko against crime. Mag-massacre kayo ng isang daan, isang daan din kayo, eh di pardoned lahat kayo—restored to full political and civil rights plus a promotion to boot.”

I remember a friend once telling me, “Since when did life become so cheap?” Her question got stuck in my head, which is why every time I read and hear news about drug-related deaths, I ask myself the same thing. Since when did criminals forfeit the right to live? Since when did we have the moral ascendancy to judge who deserves to die? Since when did we ever become self-absorbed and self-righteous?

On Nov. 8, America’s fate will be decided as to who between a proud racist-misogynist and an impulsive warmonger will emerge victor in the presidential polls. Meanwhile, for the next five years and nine months, the Philippines will remain under the leadership of a man who has brazenly compared his relentless war on drugs to Hitler’s extermination of the Jews.

God bless America. And God bless the Philippines.

Neil B. Nucup is a private lawyer-turned-civil servant.

His usual hype or (shudder) not?

By: Solita Collas-Monsod / @inquirerdotnet

Philippine Daily Inquirer

Now I know how the Cubans must have felt when Fidel Castro, who overthrew the military dictatorship of Fulgencio Batista in 1959 and gained their adulation for it, declared himself a Marxist-Leninist two years later. Of course, they must have seen it coming, since he nationalized US-owned enterprises a year earlier, but still it must have come as a shock and a betrayal. It was like jumping from the frying pan of Batista’s excesses into the fire of Castro’s. By the way, Castro didn’t give up his leadership of Cuba until almost 50 years later, when he transferred the reins to his brother.

But at least Castro gave the Cubans two years before he showed his true colors.

Rodrigo Duterte has done that after less than four months in office as president. Shifting to his planned triumvirate with China and Russia (“the three of [them] against the world”) was never part of his campaign platform, however hazy that was. In fact, during one of the presidential debates held before the election, he said he would take a jet ski to China’s newly constructed air base in the West Philippine Sea and plant the Philippine flag there (to much laughter and applause).

What President Duterte said in Beijing on Thursday doesn’t jibe with his campaign speeches, and it doesn’t jibe with what he told us just before he left for abroad. But coming as it does just as the Social Weather Stations released the results of a survey taken last month, showing that Filipinos much preferred/trusted the United States over China, this Filipino cannot help but feel disoriented, in addition to feeling betrayed. And I think a lot of Filipinos will end up feeling the same way.

Probably he missed the survey, and maybe, just maybe, he could use the information from the survey as enough justification for undoing what he did in Beijing—announcing his “separation” from the United States and, I suppose, following this line of speech, his “marriage” to China, and possibly Russia.

Because the result of that survey, and others taken before it (the surveys started in 1994, and 40 have been taken) apparently show that this trust/distrust toward the United States/China is not a one-time feeling. They also show the magnitude of the trust/distrust, to wit:

Since the surveys started, the net trust (the percentage of people who had “much trust” minus the percentage who had “little trust”) in the United States has always been positive, ranging from a moderate +18 to an excellent +82.  The latest was a very good +66 (76 percent much trust, 11 percent little trust).

In contrast, the net trust in China has been mostly negative; it was positive in only 7 of the 40 surveys.  The highest positive net rating China got was a +17, and the lowest it received was a -46 (September 2015). The latest was a net trust rating of -33 (22 percent of Filipinos have much trust, versus 55 percent with little trust)—characterized as bad.

In summary, last month’s survey showed a positive net trust rating of +66 for the United States, and a negative trust rating of -33 for China. As many as 76 percent of Filipinos have much trust in the United States, and 22 have much trust in China. Or, 11 percent have little trust in the United States, while 55 percent have little trust in China.

Given that general attitude by the large majority of Filipinos, how can the President announce a “separation” from the United States, and a marriage with China, or a possible ménage à trois with China and Russia?  Ridiculous. Whatever slights Mr. Duterte and the Philippines have suffered at the hands of the United States (and there are many) must be compared with the indignities heaped upon us by China, including the latest one which forced us to go to arbitration. And how can that major victory we won against China be so cavalierly given up?

And that is what his close economic advisers must think, too, because they have already made statements to the effect that President Duterte really didn’t mean what he said. The military advisers have yet to chime in, but as soon as they conquer their fear, I’m sure they will do so.

So, was this his usual hype, or (shudder) is Mr. Duterte following Fidel Castro’s footsteps?

Delicate balance

The House committee on constitutional amendments approved last Wednesday the concurrent resolution for Congress to convene in a Constituent Assembly (Con-Ass) to amend the Constitution.With this, the Con-Ass express has officially left the station.

The entire House is expected to uphold the Committee report. When the vote is called, majority will invoke the bargain price of a Con-Ass compared to the Constitutional Convention (Con-Con) mode. Reports place the spread at P2 billion for Con-Ass compared to P6-7 billion for Con-Con.

If cost should factor in the choice of mode, it is imperative that we have data to confirm the premises of the differential. I say this because there are suggestions that the expense of a Con-Con drops dramatically if the election for delegates were to be synchronized with the Barangay elections next year or the local elections in 2019. This adjusted figure is actually closer to the Con-Ass P2 billion price tag.

Of course, the concurrent resolution would have no effect if the Senate withholds its concurrence. As of today, it appears from reports that the Senate may be persuaded to agree to the Con-Ass mode for as long as the three-fourths supermajority required in the Constitution is understood to mean three-fourths of each chamber, voting separately.

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Reform areas. In previous administrations (notably, those of President Joseph E. Estrada and Benigno C. Aquino III), the focus of movements to amend or revise the Constitution was on economic provisions which limited foreign ownership in: exploration, development, and utilization of natural resources; real property; reserved investments; franchises, schools; mass media; the advertising industry.

Under the Duterte administration’s Constitutional Reform package, economic liberalization is likewise on the table. The intent is to increase the ownership ratio up to 70-30 in favor of foreign investments.

Economic reform also inexorably draws us into the realm of political reform. Federalism and its attendant massive overhaul of the existing centralized structure will be the centerpiece issue. The debate will focus on the decentralization of power in a federal system. But more important than the division of governmental power vertically – creating two sovereigns, national and regional – is the potential for change in the division of power horizontally, i.e. the area of separation of powers.

Cory innovation. One of the innovations of the 1987 Constitution that impacts on the delicate equilibrium among the branches was the creation of the Judicial and Bar Council (JBC) and the confiscation of the confirmation power over the Judiciary from the Commission on Appointments (CA).

The raison d’etre of this move was the insulation of the Judicial branch from patronage and partisanship, one of the bulwarks of the Rule of law being an independent and impartial Judiciary. Pre-martial law horror stories of kowtowing to CA members permeated the atmosphere of the 1986 Constitutional Commission (ConCom) deliberations. This, and the gravitas of ConCom President Cecilia Munoz-Palma and member, former Chief Justice Roberto Concepcion carried the day for the supposedly less political JBC creation.

To not a few, however, the diminution of this legislative check over the Judiciary was a black day for checks and balances. The debate in the ConCom itself was heated and the vote extremely close. Accordingly, constitution observers have always cast a critical eye toward this new creature. 

Thus far, the performance of the JBC has received mixed reviews. Typical commentary is this statement from Transparency and Accountability Network: “If you look at the record of both the JBC and the CA, neither of them has a very good track record. The JBC has a terrible track record. …. if we go with the suggestion to take [the vetting] out of the CA, well, we haven’t done well with a non-CA process either.” Apparently, the Congressional Old Boys club of the CA is seen as having simply turned into a Presidential Old Boys club.

Duterte Court. We are presently on the eve of the first Supreme Court appointments of President Rodrigo Roa Duterte. He will have 12. (President Ferdinand Marcos had 31; Gloria M. Arroyo had 21; Corazon Aquino, 18). Two iconic Associate Justices are due for retirement this December: Justice Jose Portugal Perez, the Court’s first homegrown member having spent his entire career in the Supreme Court, and Justice Arturo D. Brion, one of the greatest intellects in the history of the Court. The retirement age, by the way, is still another topic for discussion as, arguably, 70 is the new 60. Quality of life has made the senior set more productive. Seventy-five should be the new retirement age.

During ordinary times, Presidential appointments to the Supreme Court are ranked among the most sensitive considering the awesome power possessed by each one of the 15 Justices. In extra-ordinary times, the importance is magnified. Inevitably, these men and women would have to make decisions on matters such as the death penalty, respect for human rights, and a host of constitutional questions on subjects ranging from international relations to land reform.

Now, more than ever, it becomes imperative that the choice of individuals to sit on the Court meet the highest standards of the four-fold litmus test in the Constitution: competence, integrity, probity and independence. A 24-man panel of nationally elected officials beholden to no one would arguably carry out this function more critically than would a seven-man body, six of whom are Presidential appointees.

JBC vulnerable. But these arguments are moot. The JBC is vulnerable. In contrast to the composition of the ConCom, this Con-Ass is composed entirely of Legislators. The Congressional check over the Judicial department used to be: the confirmation power, the budget power and the impeachment power. The JBC broke up this triumvirate. With Con-Ass, the safest bet is that these three checking mechanisms will be reunited.

Justices cannot escape being vetted. It is simply a question of who should do it. A CA confirmation is better as it is more transparent. Whatever diminution is felt by the Executive who appoints and the Justice who is appointed should be compensated by the benefit we all derive from a strengthened system of checks and balances.

source:  Philippine Star

Duterte announces ‘separation from the US’

PRESIDENT Rodrigo Duterte on Wednesday announced his “separation” from the United States in terms of military and economic cooperation, saying he would turn to China instead.

“I announce my separation from the United States, both in military and economics,” the President said in his speech during the Philippines-China Trade and Investment Forum in Beijing, China.

With this separation, the President told Chinese officials and businessmen that he would now be relying on China.

“So please, you have another problem of economics in my country. I have separated from them (US) so I will be dependent on you for a long time, but don’t worry, we will also help,” he said.

His comments came after he met his Chinese counterpart Xi Jinping at the Great Hall of the People on Tiananmen Square, with the two men pledging to enhance trust and friendship, while playing down a maritime dispute.

Duterte’s visit to Beijing capped a series of recent declarations blasting the US and President Barack Obama.

Addressing the Filipino community in Beijing Wednesday, the firebrand leader said the Philippines had gained little from its long alliance with the US, its former colonial ruler.

“Your stay in my country was for your own benefit. So time to say goodbye, my friend,” he said, as if addressing the US.

source:  Manila Times