When is HRET Jurisdiction begins and COMELEC's ends?

Reyes v. COMELEC, June 25, 2013, G.R. No. 207264 

 

In Vinzons-Chato v. COMELEC, citing Aggabao v. COMELEC and Guerrero v. COMELEC, the Court ruled that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins. (Emphasis supplied.)

This pronouncement was reiterated in the case of Limkaichong v. COMELEC, wherein the Court, referring to the jurisdiction of the COMELEC vis-a-vis the HRET, held that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins. (Emphasis supplied.)

This was again affirmed in Gonzalez v. COMELEC, to wit:

After proclamation, taking of oath and assumption of office by Gonzalez, jurisdiction over the matter of his qualifications, as well as questions regarding the conduct of election and contested returns – were transferred to the HRET as the constitutional body created to pass upon the same. (Emphasis supplied.)

From the foregoing, it is then clear that to be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office.

xxx

Here, the petitioner cannot be considered a Member of the House of Representatives because, primarily, she has not yet assumed office. To repeat what has earlier been said, the term of office of a Member of the House of Representatives begins only “at noon on the thirtieth day of June next following their election.” Thus, until such time, the COMELEC retains jurisdiction.

 

Pork barrel 101

Under the doctrine of separation of powers, Congress shall enact laws, the president shall execute them, and the Supreme Court shall interpret them. This delineation of authority is exclusive and absolute and the three great branches of government cannot intrude into each other’s exclusive domain.

Basic doctrine. Consequently, the president cannot make laws, except when the Constitution is abrogated, like during the martial-law era when Ferdinand Marcos ruled by issuing presidential decrees, or like during the revolutionary government in 1986-1987 when Cory Aquino issued executive orders that were the equivalent of laws. Unless subsequently repealed or modified by the legislature, these decrees and orders are still valid up to now.

By the same token, the Supreme Court cannot legislate or implement laws; it can only interpret them. It can invalidate laws but it cannot create new ones. Judicial legislation is anathema to the Constitution.
Likewise, Congress cannot interpret with finality the meaning of the laws it passes. Neither can legislators implement them, nor participate in their implementation. Unconstitutional would be a law that empowers members of Congress (1) to specify what projects should be undertaken, and/or (2) to determine what offices or organizations should be given government funds from an appropriated lump sum to implement these projects.

Change in facts. In the past, legislators were not given by law any of these two prerogatives. They merely “recommended” the projects to the executive agencies. Hence, in 1994, the Supreme Court held that the pork barrel system was constitutional since the legislators were not empowered by the then prevailing law to determine the projects to be implemented. They merely recommended the projects to the executive offices, which retained the absolute discretion to accept or reject these recommendations.
In the case now pending in the Supreme Court, the contentious point is whether the present law requires the executive agencies to implement the projects that the legislators chose through the nongovernment organization (NGO) they select. Otherwise stated, is the “recommendation” of the legislators binding? If so, then the law would be unconstitutional because it authorizes the lawmakers to participate in the law’s implementation.

The 1994 precedent would not apply because it had a different factual setting: Under the then law, the lawmaker’s recommendation was not binding. A difference in facts produces a different ruling. “Stare  decisis” or stability of precedents would not apply when the facts change.

On the other hand, legislators may include in the law itself the specific projects to be undertaken (like a university or hospital) or to be built (like a bridge, port or highway) without violating separation of powers. Thus, Congress can validly pass a law describing in the law itself the specific projects and the source for funding them. This would not violate the Constitution because the legislators would not have post-enactment power to interfere in the law’s implementation.

What is prohibited is a law appropriating a lump sum and at the same time empowering the legislators individually to dictate the specific projects to be funded from the lump sum. This is what may make the present pork barrel law invalid: Legislators are given the power to interfere by choosing (1) what specific projects would be funded from the lump sum, and (2) which executive agency or NGO would undertake the projects. 

How to abolish pork. More reprehensible is the downright misuse of the pork funds. According to media reports, releases from the lump-sum appropriations were diverted, at the alleged direction of some legislators, to NGOs which however did not undertake the projects. Simply stated, the funds were given to bogus NGOs and for ghost projects. Misuse of pork funds is not only unconstitutional; it is criminal. The scammers should be punished.

Who can abolish pork barrel? Answer: the Supreme Court, by declaring the law unconstitutional. Or Congress, by eliminating (1) the lump-sum appropriation and (2) the legislators’ power to direct the use of the lump sum via their chosen agencies or NGOs.

Hospitals, bridges, roads, scholarships, emergency aid, etc. can still be funded through and implemented by the line executive agencies. That is how it should be: The legislators make the law and the executive agencies implement it without any interference by the lawmakers.

Can it be abolished by a people’s initiative? The Supreme Court, in Lambino vs. Comelec (Oct. 25, 2006, penned by Justice Antonio T. Carpio during my term as chief justice), restricted the use of initiative to simple “amendments,” not to complicated “revisions” requiring debate and deliberation. As to whether the pork’s abolition is a simple amendment or a complicated revision could be debated ad  infinitum  and would surely end up in the courts.

Besides, initiative is a tedious process. It requires the signatures of at least 12 percent of the 50 million voters and of at least three percent of the voters in each of the 234 legislative districts; favorable action by the Commission on Elections; and a referendum by the people, all of which will take at least a year. Longer, if the matter is raised to the Supreme Court, as was done in previous initiatives.

In short, the unconstitutionality route, or congressional repeal, would be less convoluted and much faster. If these two solutions are ignored, it is time for another Edsa.
* * *

Comments to chiefjusticepanganiban@hotmail.com

source: Philippine Daily Inquirer Column of CJ Artemio Panganiban

TRANSFER OF FUNDS: Can the DAP be saved?

This afternoon, the Supreme Court once again hears a controversial case, this time on the constitutionality and legality of the Disbursement Acceleration Program of the Aquino government. A formidable group of petitioners and their counsels will argue the case against the DAP. These includes, among others, the Philippine Constitutional Association, distinguished public finance experts like former Budget Secretary Benjamin Diokno and former National Treasurer Leonor Briones, and individuals and groups from the progressive political coalition Makabayan. The Solicitor General and his team of excellent lawyers will of course take the cudgels for the administration.

The stakes are higher for the Aquino administration and the country in this case, much higher, I suspect, than the PDAF case argued a couple of weeks ago. In that case, what was at stake was simply the funding of projects of legislators. In that case too, there was a clear legal basis in the General Appropriations Act in the PDAF disbursements.

In the DAP, we are talking of much larger expenditures and for projects of much higher priority than the pet projects of the legislators. In addition, the DAP is not in the GAA or any law, not even in an executive or other presidential order, and its sole justification is the constitutional provision that allows the president to augment from savings other appropriated items.

Turning now to its legality, as I have observed before, the weight of legal opinion seems to be for its unconstitutionality. Senator Miriam Defensor Santiago has pointed out that the Constitution “allows fund transfers, only if there are savings, meaning that the project was completed, and yet the appropriation was not exhausted; but there are no savings if a project was merely deferred.” She observed that it appeared that DAP funds were taken from alleged slow-moving projects. “If so, no savings were generated, and therefore DAP is illegal.”

Disagreeing with Santiago, Ateneo Law Professor Mel Sta. Maria, in an opinion piece for the TV5 website, argues that the DAP is nothing else but the disbursement of funds sourced from savings of a particular item to fund a deficit in another item for the purpose of immediately accomplishing a priority activity. This makes the DAP legal and constitutional. In his words: “The only transfer that cannot be made in this process is a transfer of saved-funds from one great government department to another. Hence, the President cannot transfer executive funds to the judiciary, the judiciary to the executive, the judiciary to the legislature, the legislature to the executive, the executive to the legislature. To do so would be unconstitutional. But within the executive branch, which is composed of so many departments, the President may do so pursuant to the Constitution and the Administrative Code. In fact, the Constitution also explicitly grants the Chief Justice, the Senate President, the Speaker of the House, the head of Constitutional bodies the same powers within their departments.”

Fr. Joaquin Bernas SJ, in an interview with ANC, seems to agree with Santiago asserting that savings should only be spent to augment existing line items in the budget. Bernas also identified the enabling conditions for realigning savings. “One, you have to have savings. Two, if these savings are to be transferred, they have to be transferred in the same department.” Later, in his column in the Philippine Daily Inquirer, Fr. Bernas observed that “the outcome of the controversy on the DAP will depend on the answer to factual questions:  Did he transfer ‘savings’ and where did he put them?”

I think Fr. Bernas asks the right questions that must be answered in the affirmative if the DAP is to survive constitutional scrutiny. More concretely, I would ask: Are funds transferred in the middle of the year “savings” because of slow-moving projects constitute savings? And, were the projects augmented funded by and already identifies the GAA?

As for me, in the case of DAP disbursement decisions made purely by the executive branch, there is a color of legality precisely because the President has the power to realign savings. I think however that it would have been more prudent if the President issued an executive order or other presidential issuance that established the DAP. Without that, the administration has been able to communicate its message clearly and effectively, leaving even its supporters confused about  the DAP. In fact if the administration intends to continue with this approach in disbursement, particularly in response to the recent disaster in Zamboanga and Bohol, then they should issue such an executive order. However, I would counsel that it completely abandon the term “DAP” as it has become so tainted and controversial that it cannot be rehabilitated. All political analysts and communicators know that the best way to end a controversy is to change the conversation.

As to DAP disbursements that were made upon recommendation by senators and other legislators, I believe that these were illegal and in the case of the senators clearly improper.
In the case of the PDAF, there is a presumption of constitutionality because of the GAA and the prior Supreme Court decisions. But in the case of the DAP, there is no legal basis at all for allowing the legislators to identify projects. Corruption also tainted DAP disbursements because, as in the case of the PDAF, the legislators were allowed to cross the line with respect to implementation.

As for the Senators, from an ethical point of view, given the context of the Corona conviction, allowing the senators to identify even more projects than they already did with their PDAF reeks of quid pro quo. It may not be criminal or impeachable bribery but it definitely does not look or smell right.
Can the DAP be saved? The better question I think  is – should it be?

Facebook: Dean Tony La VinaTwitter: tonylavs

source:  Manila Standard Column of

People's Initiative vs PDAF

Why People’s Initiative is doomed

When retired Chief Justice Reynato Puno suggested that the people should take the route of People’s Initiative as mandated by the 1987 Constitution, or by a Republic Act to have the pork barrel system totally abolished, there were some reservations.

These reservations came with good reason. The process is a long and tedious one.
First of all, if the people themselves take the mode of amending the Constitution to have the pork barrel system abolished, there must be a petition of at least 12 percent of the total number of registered voters, of which every legislative district must be represented by at least 3 percent of the registered voters therein.
A republic act requires only 10 percent of the total number of registered voters nationwide with the same percent of 3 percent of every legislative district.

My gulay, even if only one legislative district is not able to comply, the People’s Initiative is doomed!
Since the initiative would deprive legislators of their pork barrel where commissions, rebates and kickbacks abound, that means the greedy lawmakers would campaign against it in their legislative districts. In many districts nationwide, there are command votes dependent on how much and how far a congressman or senator can spread the gravy.

Those who agree with Puno’s proposal have to agree on which route to take—the constitutional mode, or the Republic Act. Since we have a President who doesn’t like to touch the 1987 Constitution framed during his late mother’s term, taking the constitutional route is far-fetched. Thus, we are left with the law on People’s Initiative. But that also is steeped with land mines since a lawmaker who doesn’t want his pork barrel abolished can easily campaign against it.

There is also the need to decide what amendment in the Constitution must be made or what law must be enacted. In the United States where People’s Initiative is prevalent, they call it “Proponent” or “Proposal.” It’s easier there to have the initiative prevail because it’s a federal system of government where every state has its own Congress.

And if the required number of signatures is taken, they must also be verified by the Comelec, after which a referendum will be called for that purpose.
People’s Initiative under the Constitution or by law is doable, but it’s impractical under our system of government.

So, what else can we, the people, do, but continue mounting protests nationwide, hoping that President
Aquino and Congress will listen to the people?

The next move is People Power – but do we really want to go through all that again?

source:  Manila Standard Column of Emil Jurado

Personal Note:

ARTICLE 6 - THE LEGISLATIVE DEPARTMENT

Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

Section 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof.

.

Malampaya and Art 12 of PH Constitution

Malampaya and Gerry Ortega

The $4.5-billion Malampaya Project is a partnership between the government and Shell to extract natural gas from the waters in the area of Palawan. Based on Presidential Decree 910, the proceeds generated by the government from the Malampaya Project are to be used for energy-related projects but they could also be used for other purposes approved by the President. Reports say that the proceeds now total P170 billion, with an estimated P25 billion spent during the Arroyo administration, while P15 billion has been used under President Benigno Aquino III.

Long before allegations came out that around P900 million of the Malampaya funds found their way into some of Janet Napoles’ fake non-government organizations (NGOs), Dr. Gerardo “Gerry” Ortega had been incessantly blowing the whistle, so to speak, on the alleged corruption involving Palawan’s share of the Malampaya funds (In 2007, Executive Order No. 683 was issued providing for a provisional sharing  between  the national government and the local government of Palawan whereby the 40 percent share of Palawan in the Malampaya proceeds would be used for development projects in the province. From 2005 to 2010, around 2.9 billion was released to the province) Doc Ortega’s acerbic commentaries did not spare prominent personalities, including former Palawan Gov. Joel Reyes who was eventually accused as the mastermind of the assassination of Ortega. As early as 2011, the Commission on Audit recommended the filing of graft and criminal charges against the former governor and members of the provincial bids and awards committee under his administration for alleged irregularities in the use of nearly P3 billion in Malampaya revenues.

Palawan correspondent Redempto Anda revealed that before Dr. Ortega’s death, he and the slain radio commentator had been working on reports on the corruption involved in the Malampaya funds. He must have stepped on somebody else’s powerful toes; before his death, he had been regularly receiving death threats. His widow Patria Ortega said that on almost daily basis in his radio broadcasts he would ask three officials, then Gov. Reyes, Abraham Mitra and Vice-Gov. Dave Ponce de Leon for an accounting of the province’s share in the Malampaya funds.

Dr. Ortega was given no chance to reveal what he knew about the Malampaya corruption because his life was cut short by an assassin’s bullet. Two years after he was shot dead in the morning of January 24, 2011 while inside an ukay-ukay in San Pedro, Puerto Princesa City, Palawan, justice has not yet been done and the alleged masterminds are still at large.

Recently, the Court of Appeals came out with a resolution denying Secretary Leila De Lima’s Motion for Reconsideration to an earlier decision which declared null and void Department Order No. 710 including the resolution of the second panel of prosecutors and reinstated the earlier resolution of the first panel of prosecutors which dismissed the complaint against Mario Joel Reyes.

In ruling for petitioner Mario Reyes, the Court of Appeals said that in creating a new panel of investigators, the Secretary did not comply with Department Circular No. 70 92000 (NPS Rule on Appeals) which outlines the procedure in handling appeals by the Secretary of Justice from a resolution by the investigating prosecutor.

Does the Court of Appeals’ resolution amount to an acquittal of the Reyes brothers and their co-accused? In my humble opinion, it does not. By its resolution, the CA merely declared null and void the creation of the second panel of investigators and reinstated the resolution of the first panel. There is simply no mention here of an acquittal. In fact, the CA resolution can be appealed to the Supreme Court which can either affirm or overturn the same, unlike in the case of an acquittal which, except under extraordinary circumstances, can no longer be subject of an appeal because of the principle on double jeopardy. Assuming the CA resolution in fact amounted to a dismissal of the case against the Reyes brothers, the Supreme Court said on many occasions that the dismissal of a case during preliminary investigation does not constitute double jeopardy which is proscribed by the Constitution. Preliminary investigation is not part of the trial for which double jeopardy attaches. It is merely inquisitorial; a means of discovering the persons who may be reasonably charged with a crime. Moreover, the accused in this case have yet to plead to the crime charged. In other words, the case against the Reyeses and the other co-accused, contrary to reports, was not killed on its tracks because of the CA resolution.

Will the Supreme Court affirm or overturn the CA decision in the event the Secretary appeals the adverse ruling? In deference to the Supreme Court being the final arbiter on the matter, I am in no position to make a second guess. After all, any such attempt is but futile speculation.  Nonetheless, the final resolution by the SC of the Secretary’s appeal, if ever it comes to that, will determine whether or not this case will see the light of day. We can only hope that any forthcoming resolution/s will be based solely on the merits and not on technicalities. In the meantime, despite the setback brought about by these recent judicial developments, the fight for justice must continue and hope that someday the culprits will be apprehended and finally brought to account for their crime if only to give Dr. Ortega’s family the justice which is theirs as a matter of right.

Facebook:  Dean Tony La Vina Twitter:  tonylavs

source:  Manila Standard

Personal Note:   
ARTICLE XII - NATIONAL ECONOMY AND PATRIMONY, Sec 2 paragraphs 4 and 5:

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

DAP: Transfering of funds

Transfer of funds

Nobody is denying that President Aquino can transfer funds from his share in the budget. But some are asking: What did he transfer and where did he transfer them to? A ray of hope is that even the Palace has begun to admit that there are problems with the Disbursement Acceleration Program (DAP) which are now being attended to.

The constitutional rule on the transfer of funds is fairly simple: “No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”  Let us dissect this.

First, the President and six other top officials are authorized to transfer funds from their appropriations. This is an exclusive list. Hence, the chief of staff of the Armed Forces, for instance,  may not be given such authority. Likewise, individual members of Congress may not be given such authority and must seek approval from the Speaker or the Senate president if these latter have been authorized by law.

Second, this constitutional power to transfer is activated when Congress passes a law to implement it. For that reason, an authorization from Congress is invariably written in the annual General Appropriations Act.
Third, the named officials can transfer only “savings” in “items” allotted to them. An “item” is a specific amount of money set aside for a special purpose. Savings are leftovers after the purpose has been satisfied.
Fourth, they can transfer savings only to “augment” items in their appropriations. These items which are to be augmented must already be found in the appropriation for their respective departments in the same budget year. What this means is that the power to transfer is not authority to create new items not found in the appropriations act.

An almost identical provision was contained in Article VIII, Section 16(5) of the 1973 Constitution. Under the 1973 Constitution there was an attempt by the president to transfer funds anywhere he wanted. The attempt was based on a Marcos decree, Presidential Decree No. 1177, the Budget Reform Decree of 1977. Section 44 of which said:

The President shall have the authority to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department, which are included in the General Appropriations Act, to any program, project or activity of any department, bureau, or office included in the General Appropriations Act or approved after its enactment. 

Clearly, Section 44 attempted to empower the president “to indiscriminately transfer funds. . . without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken.” Hence, the law was declared unconstitutional in 1987.

Inappropriate provisions. There is another principle related to the budgetary process. And this was the subject of another controversy in 1989 and 1990. The General Appropriations Acts for those years contained similar limitations on the power of the president. The 1989 law said:

Section 55. Prohibition Against the Restoration or Increase of Recommended Appropriations Disapproved and/or Reduced by Congress: No item of appropriation recommended by the President . . . which has been disapproved or reduced in this Act shall be restored or increased by the use of appropriations authorized for other purposes by augmentation. An item of appropriation for any purpose recommended by the President in the Budget shall be deemed to have been disapproved by Congress if no corresponding appropriation for the specific purpose is provided in this act.

There was a similar law in 1990.

Exercising the power of “item veto” the president singled this out for disapproval. Could he do it? This question is important because when the President vetoes a law he should normally veto the entire law with the exception that he may veto “items” in an appropriation law. Were the 1989 and 1990 provisions “items”? They were not. Could the president veto them? Yes, because they were what are now called “inappropriate provisions.”

The Court ruled in 1994: “As the Constitution is explicit that the provision which Congress can include in an appropriations bill must ‘relate specifically to some particular appropriation therein’ and ‘be limited in its operation to the appropriation to which it relates,’ it follows that any provision which does not relate to any particular item, or which extends in its operation beyond an item of appropriation, is considered ‘an inappropriate provision’ which can be vetoed separately from an item.”  Since the 1989 and 1990 laws did not relate to any appropriation item, it was called an “inappropriate provision.” They were “riders” that could be shot down.  The president won.

The outcome of the controversy on the DAP will depend on the answer to factual questions:  Did he transfer “savings” and where did he put them?

source:  Philippine Daily Inquirer Column of Fr. Joaquin Bernas SJ

Pork barrel investigations and PH Constitution, Art 6 - Sections 21 & 22

Every once in a while there is an encounter between Congress and the executive during legislative investigations. Not too long ago it was about the ZTE controversy. The dispute was about whether a witness could be compelled to answer questions which he claimed to be covered by executive privilege. When then Neda director general Romulo Neri maintained silence, the Senate left it at that.
Now it is about the pork barrel scam. It started with the issue of whether some witnesses could be compelled to appear.

There are two provisions in the Constitution which provide for investigations. One deals with legislative investigations in aid of legislation, and the other deals with legislative investigations in aid of the “oversight function” of Congress.

Let me say something first about investigations in aid of the oversight function of Congress.
This function is dealt with in Section 22 of Article VI. The oversight function is intended to enable Congress to determine how laws it has passed are being implemented. In deference to separation of powers, however, and because department secretaries are alter egos of the president, they may not appear without the permission of the president. Department secretaries may appear on their own or upon the request of a congressional body but in either case only with the consent of the president.

The more commonly used provision is Section 21 which deals with investigations in aid of legislation. The power of legislative inquiry is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Where the legislative body does not itself possess the requisite information—which is not infrequently true—recourse must be had to others who might possess it.
Experience, however, has shown that mere requests for information are frequently unavailing and that information that is volunteered is not always accurate or complete. Hence, the power of Congress necessarily includes the power to punish a contumacious witness for contempt. No court can enjoin the appearance of a witness who has been summoned.

Can the Senate president prevent the summoning of a witness against the wishes of the chair of the blue ribbon committee? This issue arose on the opening day of the pork barrel investigation.  In my view, the answer depends on whether the published rules of the Senate allow the Senate president to do it. I would give the same answer to the question of whether the Senate as a body may bar the summoning of a witness by an investigation committee. The houses of Congress are free to formulate their rules of conduct and these rules must be published before they can affect outsiders. 

The requirement that the investigation be “in aid of legislation” is an essential element for establishing the jurisdiction of the legislative body. It is, however, a requirement which is not difficult to satisfy because, unlike in the United States, where legislative power is shared between the United States Congress and the state legislatures, the totality of legislative power is possessed by the Philippine Congress and its legislative field is well-nigh unlimited. It can therefore conduct an investigation on anything which can be the subject of legislation. Nevertheless the Court can protect a witness from being compelled to answer questions that are more in aid of prosecution rather than of legislation.

Who may be summoned to a legislative inquiry? Anybody may be summoned, but because of separation of powers, the president and justices of the Supreme Court may not be summoned. But the Constitution also provides that “the rights of persons appearing in or affected by such inquiries shall be respected.”
The most common defense of a witness being compelled to answer a question is the right against self-incrimination. A witness must take the witness stand when summoned. The time to raise the defense of self-incrimination is when the incriminating question is asked. Refusal to answer can be punished as contempt and the witness may be held in custody by the legislative committee until he answers the question. This is what happened to the witness Arnault in the Tambobong case.

A witness may also refuse to answer a question that asks for a matter covered by executive privilege. But only the president can claim executive privilege. Executive privilege is the right of the president to refuse the disclosure of certain types of information. Thus, a witness claiming executive privilege must show that he is acting on instruction of the president, as Neri did in the ZTE case.

Another basis for refusing to answer a question may be a matter of fairness. For instance, if the case is already being tried criminally, answers in the legislative investigation might prejudice a party in a criminal case.
The investigation of the pork barrel scam has just started. I anticipate that it will be a long process and that it will be interrupted by disputes about the manner of conducting the investigation.

source:  Philippine Daily Inquirer of Fr. Joaquin G. Bernas S. J.

Sandiganbayan can suspend lawmakers

As the “pork scam” scandal gets hotter by the day, calls to suspend accused lawmakers are likewise escalating. So far, these seem to fall on deaf ears. Senate President Franklin Drilon is not budging. We have yet to hear of any plan to convene the Ethics Committee.

I personally do not believe that the Senate will suspend members without the court handing down a guilty verdict against accused senators. And to be fair, the plunder complaints against Senators Juan Ponce Enrile, Jinggoy Estrada, and Bong Revilla are still in the preliminary investigation (PI) stage, technically, these are not yet court cases. The Ombudsman still has to determine if there is probable cause to file the information for plunder in court.

However, the questions of whether lawmakers can be suspended and by whom need answers. Citizens are told that only Congress may suspend its members. Thus, if Congress does not act, no other office can.
Senator Miriam Defensor-Santiago has repeatedly said that senators accused of plunder or graft should be suspended. She fully knows whereof she speaks.

In May 1991, Defensor-Santiago was accused by the Office of the Special Prosecutor (OSP) and the Ombudsman for alleged violation of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act. The case stemmed from complaints filed against her by some employees of the Commission on Immigration and Deportation (CID) where she was then Commissioner.

Defensor-Santiago was already a Senator by the time the Sandiganbayan’s First Division acquitted her from all charges in December 1999.

It was a long-drawn legal battle that reached the Supreme Court.

In 1995, the prosecution filed a motion with the Sandiganbayan to issue a suspension order against the senator. This was granted in January 1996 when the Sandiganbayan resolved:

“WHEREFORE for all the foregoing, the Court hereby grants the motion under consideration and hereby suspends the accused Miriam Defensor-Santiago from her position as Senator of the Republic of the Philippines and from any other government position she may be holding at present or hereafter. Her suspension shall be for ninety (90) days only and shall take effect immediately upon notice.”
Defensor-Santiago went to the SC to oppose the suspension order and in April 2001 (or about one and a half years after her acquittal), the High Court made its ruling. G.R. No. 128055 is quite interesting, informative, and relevant in the light of the ongoing “pork scam” scandal.

In this decision, the SC answered important questions we grapple with on the matter of suspending lawmakers.

Can the Sandiganbayan suspend lawmakers?

The SC answered yes. The High Court said, “The authority of the Sandiganbayan to order the PREVENTIVE suspension of an incumbent public official charged with violation of… RA 3019 has both legal and jurisprudential support.” (Emphasis supplied)

The magistrates quoted Section 13. Suspension and loss of benefits of the anti-graft law which provides:

“Any incumbent public officer against whom any criminal prosecution under a VALID INFORMATION under this Act … or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, SHALL BE SUSPENDED FROM OFFICE…” (Emphases supplied).

A few important things need noting here.
1. Indeed, the Sandiganbayan has the power to suspend accused public officials once the case is already in court. This means that the preliminary investigation is finished and probable cause is established. Since the present plunder complaints against Enrile, Estrada, and Revilla are still undergoing PI with the Ombudsman, they cannot YET be suspended.

2. It is the Sandiganbayan’s RESPONSIBILITY to suspend these senators if probable cause is established. The law’s provision is very clear, the Sandiganbayan cannot exercise any prerogative. It MUST suspend without any need for anyone to request it.

The SC said, “It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of the information filed before it. Once the information is found to be sufficient in form and substance, the court is bound to issue an order of suspension as a matter of course, and there seems to be “no ifs and buts” about it”.

The SC cannot be any clearer about this.

3. The kind of suspension that the Sandiganbayan can order is PREVENTIVE in nature. The SC explained, “xxx. It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension.”

This means that the preventive suspension is neither a guilty verdict nor punitive in character. In succeeding similar cases, the SC further explained that the purposes of preventive suspension are to prevent tampering of evidence and influencing witnesses.

Perhaps, the court thinks that these may be easier done if the accused continues to hold office.
Are lawmakers excluded from Section 13 of the anti-graft law?

This is an important question because of statements that ONLY Congress has the power to suspend its members meaning, senators can only be suspended by the Senate, and representatives, by the House of Representatives.

The SC distinguished preventive suspension that can be ordered by the Sandiganbayan from suspension by Congress. The High Court said, “The order of suspension as prescribed by RA 3019 is DISTINCT from the power of Congress to discipline its own ranks under the Constitution which provides that each —
“xxx. house may determine the rules of its proceedings, punish its Members for disorderly behavior, and with the concurrence of two-thirds of all its Members, suspend or expel a Member…”

The Justices continued,  “The suspension contemplated in the Constitutional provision is a PUNITIVE measure that is imposed upon determination by the Senate or the House of Representatives upon an erring member.” (Emphases supplied)

Thus, the differences between the two types of suspensions are clear.

Preventive suspension does not establish guilt and such guilty verdict is not necessary before this kind of suspension is ordered. The only conditions are that PI has already established probable cause and the valid information has been filed with the Sandiganbayan. Moreover, the court, SHOULD suspend as a matter of duty.

Suspension by Congress on the other hand, may only be resorted to when wrongdoing by a member is already established, AND only with a 2/3 vote of the concerned House favoring the disciplinary action.
The SC concluded that, “RA 3019 does not exclude from its coverage the members of Congress…”

When the SC decided on Sen. Miriam Defensor-Santiago’s petition, it rightfully noted that the senator has already been acquitted. Still, with wisdom, the Justices said, “the Court, nevertheless deems it appropriate to render this decision for future guidance on the significant issue raised by petitioner…”

“Significant” is an understatement. The ongoing “pork scam” investigation is most important to the Filipino people at this juncture. This SC decision must instruct everyone, the public especially, on the matter if suspending lawmakers who maybe parties to plunder and graft and corruption.

Yes, the Sandiganbayan MUST suspend Enrile, Estrada, Revilla, and all other public officials, elected or appointed, accused of plunder or graft, IF probable cause is established.

source:  Manila Standard Column of Elizabeth Angsioco

Suspension of legislators

Of PDAF and other matters

The rule on the discipline of members of Congress is found in Article VI, Section 16(3): “Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.”

Inherent in any legislative body is its power of internal regulation and discipline. As Justice Joseph Story said, “If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority.”

What stands out from the jurisprudence on the subject is that, except for some limitations of detail found in the Constitution itself, there is a clear recognition of the overall autonomy of the legislative body both in the formulation and in the application of its rules. 

On the question whether a legislator’s action constitutes disorderly behavior, jurisprudence says “that the House is the judge of what constitutes disorderly behavior… The theory of separation of powers, fastidiously observed by this Court, demands in such situation a prudent refusal to interfere.”

On the question of whether a legislator under investigation should voluntarily go on leave, that is for the individual legislator to decide. We should also keep in mind that, like every person, legislators have the constitutional right to be presumed innocent until guilt is proven.

source:  Philippine Daily Inquirer's Column of Fr Joaquin Bernas SJ

Consitutionality of PDAF

Of PDAF and other matters

In 1994, the constitutionality of the pork barrel fund was challenged on the ground of violation of the rule that, although appropriating money is the function of Congress, spending it is the prerogative of the executive branch. The Supreme Court ruled in favor of the fund. It said that what the law allowed members of Congress to do was simply to recommend projects. If the recommended projects qualified for funding under the Countrywide Development Fund, it was the president who would implement them.

The latest Priority Development Assistance Fund is found under the 2013 General Appropriations Act. Its constitutionality is now also being challenged. What defect in the PDAF Law makes it unconstitutional?
The law specifies the total amount to be appropriated, identifies the implementing agencies, specifies the individual amounts that can be identified by legislators (P70 million for representatives, P200 million for senators), and identifies the potential recipients. If realignment is needed, the rules for realignment are set in the law pursuant to a constitutional requirement for transfer of funds. A request for release of funds  must be supported by required documents and endorsed by the committee on finance of the House or the Senate. The release is made by the identified agencies. The Department of Budget and Management and the respective agencies are responsible for posting the identity of the proponent legislators, the name of the projects, the names of the beneficiaries, the program evaluation and the assessment report, the authorized realignment if any, and procurements made under the fund.

Obviously, something went wrong. What went wrong and whose fault was it? We will be waiting for what the Supreme Court will say.

 

source:  Philippine Daily Inquirer's Column of Fr Joaquin Bernas SJ

Zamboanga Problem and the Power of the President to Declare State of Emergency

In the face of the fighting in Zamboanga City, some people have wondered why the President did not declare a state of emergency. The simple answer is that we are no longer under martial law or the 1973 Constitution, which provided for this extraordinary power of the president: “Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instruction, which shall form part of the law of the land.”

Now it is Congress that has the power to declare a state of emergency: “In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy.” Congress has not declared a state of emergency.

It is not, however, as if the President were powerless to deal with emergencies. As Commander in Chief of the Armed Forces, the President, in case of rebellion, when public safety requires it, can declare martial law or call on the Armed Forces to suppress lawless violence or rebellion. President Aquino had greater reason than President Arroyo had when she declared martial law in Maguindanao. There clearly was rebellion in Zamboanga City. Martial law could have given him all the emergency powers he might need. But instead he simply exercised his power to call out the Armed Forces to help the police suppress rebellion in Zamboanga; and it seems to be working, even if he did not have to stay in the city!

source:  Philippine Daily Inquirer's Column of Fr Joaquin Bernas SJ

No to the US Rotational Accord

The Department of Foreign Affairs is currently negotiating with the United States a so-called “Rotational Framework Agreement”. Under this proposed treaty, US forces would be allowed access and use of military bases in the Philippines as part of its defense policy that shifted 80 percent of its naval power to  Asia and the Pacific.

The fact that the DFA is negotiating this agreement clearly indicates that what is contemplated goes beyond American forces  “visiting” the country, which is already governed by the Visiting Forces Agreement. In fact, a treaty is necessary if the Americans were to station their troops in the country for any other reason other than to “visit”. Under the 1987 Constitution, foreign troops, bases, and facilities shall not be allowed in our territory unless it is through a treaty duly recognized as such. This provision is a clear manifestation of our disdain for the presence of foreign troops in our country for good reasons. First, because of our bitter experience in history where the United States imposed on us an unjust treaty as a pre-condition to our independence that allowed it to maintain its largest naval and air bases abroad here long after our independence, or until 1991 when the Jovy Salonga’s Senate kicked them out; and two, because the presence of these troops in our territory is contrary to our national interests for various reasons. To begin with, the presence of foreign troops and facilities offends our national sovereignty and jurisdiction. Under international law, the principle of equality of states dictates that states should be supreme within the confines of their national territory. Foreign bases, troops and facilities are almost always immune from domestic jurisdiction. Their presence hence is always anathema to national independence.

More importantly, the presence of foreign troops in our country will, under the laws and customs of warfare, make us a party to any conflict that the Americans are party to even without our consent. This is because the presence of American troops in our military bases and facilities renders our facilities valid objects of military attack on the part of her enemies. Our consent to for them to use any of all our bases is in effect, our tacit approval to follow the United States to war, even if it is not to our national interest to be engaged in such a conflict.

There too is the social cost of allowing sex-starved GI Joes in Subic and Clark. We know from our recent history that troops that have spent substantial time at sea have problems controlling their libido to the detriment of our women and children. Despite the fact that rape is a non-service related offense, we have learned from Lance Corporal Daniel Smith and the others that allowing US forces in our territory is tantamount to a grant of impunity for these servicemen to sexually abuse our women and children.
American lackeys in our government justify this Rotational Agreement as a valid means of promoting our national defense policy especially now that we have territorial disputes with the regional giant, China. This people are deaf and blind to reality.  The truth is the Americans will station their troops here not to protect us, but only to advance its national interest. Currently, that interest is only to safeguard the freedom of navigation in the West Philippine Sea. The Americans since 1933, when France first laid claim to the Spratlys, have never recognized the Philippine title to the Spratlys and Scarborough. Forget too the possibility of Uncle Sam coming to our rescue in case of a shooting war with China over these disputed islands. They have repeatedly said that if such shooting should happen, they do not consider  such as being covered by our Mutual Defense Pact with them.

The bottom line is that the Americans have long abandoned the establishment of permanent military bases abroad as being too expensive and as being obsolete. Given its current financial difficulties, the US now prefers to operate from military bases in countries that it can dupe. Even if we appear to have common interests currently against China, let’s not deceive ourselves that we are high up on their priorities in Asia.  In fact, while they have never recognized our title to the disputed islands in the West Philippine Sea, they have repeatedly promised to come to the aid and assistance of their most important ally in Asia, Japan. If only for this, we should allow Japan alone to have the burden of hosting American troops and facilities.
We study history so that we can learn from it. Let’s hope that we have learned our lesson from history. Foreign troops and facilities cannot promote the Filipino interests. Only the Filipinos can. While there is a need to increase our capability to defend ourselves, we should do so using the billions of funds which have been misappropriated by Janet Napoles and her cohorts in Congress and the Presidency as pork barrel. Already, the P23.6-billion in Malampaya funds which COA suspects have been misappropriated as pork can buy no less than 40 warships similar to the BRP Del Pilar. This will promote our defense capability, and not our mendicancy and dependence on Uncle Sam.

source:  Manila Standard by Atty. Harry Roque Jr.