Checks and balances in public accountability

With Due Respect By: Artemio V. Panganiban

The 1935 Constitution allocated the three great powers of the government—to make laws, to execute them, and to interpret them—to Congress, the president, and the Supreme Court (and other courts), respectively.

Checks and balances. Using the lessons learned from the martial law regime of Ferdinand Marcos, the framers of the 1987 Constitution improved this tripartite system of checks and balances by limiting the powers of the president, strengthening those of Congress and the Supreme Court, and institutionalizing three independent commissions (on elections, on audit, and on civil service).

Equally significant, the 1987 Charter included a new provision, “Accountability of Public Officers,” which commands: “Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.”

Congress’ role. It prescribed two ways of exacting accountability. The first is the congressional power to impeach and oust our top officials — president, vice president, Supreme Court justices, members of the three constitutional commissions, and ombudsman — and to disqualify them perpetually from holding public office for “culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.”

The Constitution gave the House of Representatives “the exclusive power to initiate all cases of impeachment” and the Senate “the sole power to try and decide” such cases.
The ease of obtaining an indictment via one-third vote of all House members is checked and balanced by the difficulty of getting a conviction via two-thirds vote (16) of all senators.

Congress’ impeachment power is neither checked nor balanced by any other government agency. It is subject only to reason and equity, and ultimately to the people’s will expressed in traditional media (TV, radio and print), social media, opinion polls and periodic elections.

OMB’s role. The second way of exacting accountability is through the “independent Office of the Ombudsman (OMB).” The Constitution grants the OMB vast powers and duties, among them to “investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.”

Moreover, the Ombudsman Act of 1989 (Republic Act No. 6770) empowers the OMB “to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted” in the House of Representatives.

In addition, Sec. 15 of RA 6770 mandates the OMB “to investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth … and the prosecution of the parties involved therein,” and “to give priority to complaints filed against high ranking government officials…”

In sum, the OMB’s accountability duty includes the investigation of impeachable officials for the purpose of (1) recommending, if warranted, the initiation of impeachment; (2) filing civil cases for the recovery of ill-gotten wealth; and/or (3) filing criminal indictments for violation of antigraft and other penal statutes after the impeachable officials shall have served their terms.

The OMB is also authorized to investigate and file criminal, civil, or administrative cases against members of Congress and the Cabinet. No wonder every ombudsman is under fire from these high officials.

Powerful as it may be, the OMB is checked by the judiciary, principally by the Sandiganbayan and the Supreme Court which can reverse or modify the actions and cases it initiates.

The ombudsman (and her or his overall deputy) can also be impeached by the House and ousted by the Senate, and once ousted, can be sued criminally and civilly, like the other impeachable officials.

With this info, I hope readers can wisely evaluate the forthcoming impeachment proceeding against the Ombudsman: whether it is a sincere effort to uphold accountability or a mere ploy to extract political vendetta.

Comments to chiefjusticepanganiban@hotmail.com

source:  Philippine Daily Inquirer

Supreme Court's 9-6 ruling keeps De Lima in jail

(5th UPDATE) The High Court rules the Sandiganbayan has no jurisdiction over De Lima. This means her case will not be handled by the Office of the Ombudsman, but by DOJ prosecutors who will defend their case against her before the Muntinlupa RTC.

MANILA, Philippines (5th UPDATE) – Voting 9-6, the Supreme Court (SC) en banc on Tuesday, October 10, junked the petition of Senator Leila de Lima, saying it is the Muntinlupa Regional Trial Court (RTC), rather than the anti-graft court Sandiganbayan, that has jurisdiction over the drug trade cases filed against her.

De Lima will remain in jail at the custodial center in Camp Crame.

SC Spokesman Theodore Te confirmed the ruling in a press conference on Tuesday.
De Lima petitioned the High Court to nullify the warrant of arrest issued against her by RTC Judge Juanita Guerrero, citing lack of jurisdiction. Included in her petition was a plea to the SC to stop Guerrero from conducting further proceedings on her drug case.
De Lima’s petition, in essence, wanted the SC to rule that the Department of Justice (DOJ) and RTC don’t have jurisdiction over her cases so that they can be dismissed and she can be set free.

In dismissing the senator's petition, the SC gave the 3 RTC branches of Muntinlupa handling her cases the go-signal to continue with their proceedings. (READ: EXPLAINER: Issues on jurisdiction in De Lima cases)

The 6 justices who voted for De Lima are Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio, Associate Justices Estela Perlas-Bernabe, Francis Jardeleza, Marvic Leonen, and Benjamin Caguioa.

The 9 justices who voted against De Lima are Associate Justices Presbitero Velasco Jr, Teresita Leonardo-De Castro, Diosdado Peralta, Lucas Bersamin, Mariano Del Castillo, Samuel Martires, Noel Tijam, Andres Reyes, and Alexander Gesmundo.

De Castro, Peralta, Martires and Gesmundo were all justices of the Sandiganbayan before their appointments to the SC. They ruled that the Sandiganbayan has no jurisdiction over De Lima.

The SC decision means that De Lima's case will not be handled by the Office of the Ombudsman, but by the DOJ state prosecutors who will prove their case against De Lima before the Muntinlupa RTC.

So far, Branches 204 and 205 have issued arrest warrants. The one issued in February by Branch 204 Judge Guerrero was the subject of De Lima's petition, saying the judge committed grave abuse of discretion.

The SC decision marks another episode in the battle of De Lima, staunchest critic of President Rodrigo Duterte. (READ: De Lima in jail: 'I never imagined Duterte would be this vindictive')

One of De Lima's counsels, former solicitor general Florin Hilbay, said that the ruling affects DOJ prosecutors who are the “most worried” and who will “now have to establish a case without evidence.”

Hilbay said on Twitter: “The path to justice for Leila De Lima is a steep incline, but her strong heart & unconquerable spirit will persist till justice is done.”

Solicitor General Jose Calida said the ruling only proves that Duterte’s war on drugs is not a war against the poor.

“The decision further negates the erroneous perception that the government’s war on drugs is waged only against the unlettered and the underprivileged,” Calida said in a statement.

Ruling
The SC sided with Calida’s argument that under the Dangerous Drugs Act, it is the RTC which has sole jurisdiction to try the charges under that law.

“The Court did not agree with petitioner’s characterization of the offense as Direct Bribery under the Revised Penal Code but maintained that the Information are sufficient to characterize the offense as a violation of the Dangerous Drugs Act,” the SC said in a summary sent by Te.
De Lima’s camp had insisted that she falls under the jurisdiction of the Sandiganbayan because she falls under the classification of a public official with Salary Grade 27 and higher, and that the alleged offense was committed in relation to her office.
The SC did not agree, saying, “The Sandiganbayan’s jurisdiction is limited to violations of the anti-graft laws and [does] not extend to violations of the drugs law.”
The Sandiganbayan, however, handles other cases of public officials apart from graft. In the case of the "Morong 43", for example, police and soldiers are accused of violating the rights of arrested or detained persons.

The SC also ruled that Judge Guerrero did not commit grave abuse of discretion in ordering De Lima’s arrest before resolving the Senator’s motion to quash. Judge Guerrero was just complying with the Rules of Court, which impose a 10-day period to evaluate evidence upon filing of charges, the High Court said.

The SC also said De Lima “violated the rule on hierarchy of courts and the prohibition against forum shopping.”

The SC also gave merit to Calida's argument that De Lima falsified the jurat or notarization of her pleading.

"The Court also found that the petition was not properly executed under oath and that the jurat (certification) was defective for not having subscribed to the same in the presence of the notary public," the SC said.

Criticized by the De Lima camp then as "legal nitpicking and hairsplitting," they admitted that the notarization was not done face to face. They said De Lima met with the notary public on the day of her arrest, but due to the circumstances, could not be in the presence of the lawyer when it was officially signed, also on the same day.

The ponente of the case is Justice Velasco, whose inhibition from the case De Lima sought, citing conflict of interest. It is unclear whether the en banc also resolved De Lima’s motion for inhibition, but Velasco had already voted against the senator.
Arrest
De Lima was arrested late February for allegedly receiving money from drug convicts inside Bilibid in exchange for their protection. The money, the convicts said, was intended to fund De Lima's senatorial bid in 2016. (READ: EXPLAINER: What is Leila de Lima being accused of?)

It was the conclusion of a series of sensational congressional inquiries where Bilibid convicts pointed to De Lima, as having been complicit in the proliferation of the drug trade inside the jails.

A panel of prosecutors from the Department of Justice (DOJ) handled the complaints, despite De Lima's contention that it is the Ombudsman who has jurisdiction over her.
De Lima first sought relief from the Court of Appeals but the CA refused to give her a Temporary Restraining Order (TRO). A week after, the DOJ proceeded to file the charges before the Muntinlupa RTC.

The DOJ also cleared 5 high-profile convicts in the De Lima cases, in order to use them as witnesses against the senator.

De Lima immediately filed a motion to quash. In her petition, De Lima said Judge Guerrero committed grave abuse of discretion because she issued a warrant of arrest without ruling on the motion to quash first.

The SC heard the De Lima petitions in 3 days of oral arguments in March. Hilbay argued for De Lima, while Calida argued for the government.

source:  Rappler

EXPLAINER: Issues on jurisdiction in De Lima cases

MANILA, Philippines – The main contention over the charges against Senator Leila de Lima is whether the Department of Justice (DOJ) as investigating body and the Muntinlupa Regional Trial Court (RTC) have jurisdiction.

This is what De Lima’s petition before the Supreme Court (SC) is all about – to dismiss the charges against her for lack of jurisdiction. In her petition, De Lima’s lawyers cited the pronouncement of Muntinlupa RTC Branch 204 Judge Juanita Guerrero during a hearing that she does not have jurisdiction over the detained senator yet.

"I have no jurisdiction yet over the persons of the accused, right? So how can I rule on your motion to quash?" said Guerrero, based on the official transcript of the hearing on February 24, the day De Lima was arrested and her camp filed a motion to quash before the same court.

2 kinds of jurisdiction

There are two kinds of jurisdiction: jurisdiction over the person and jurisdiction over the offense.

During the first round of oral arguments at the SC on March 14, former solicitor general Florin Hilbay, lead oralist for the De Lima camp, asserted that according to the Sandiganbayan Act of 2014, it is the anti-graft court which shall have the jurisdiction to try an appointed official like De Lima, who was justice secretary when she allegedly committed the crime. (READ: Hilbay: OSG case vs De Lima different from drug charges)

Hilbay said De Lima belongs to this category under the law: "Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher."

In his interpellation, Justice Diosdado Peralta pointed out the difference between the two kinds of jurisdiction, and said that the Sandiganbayan Act only has jurisdiction over De Lima as an accused.

“I think the Sandiganbayan law refers to jurisdiction over the accused. If you look at paragraph A and paragraph B, the Sandiganbayan has jurisdiction over the following: those who have salary grade of 27, and those who occupy the following positions. In paragraph B, it says: those who belong to category...those who receive salary grade 27 as provided by paragraph A in relation to office. It’s not actually jurisdiction over the offense, but jurisdiction over the person or the accused," Peralta said in a mix of English and Filipino.

“The Sandiganbayan law...there was an obvious legislative intent to cover as much ground as possible when you talk about offenses committed by public officials in relation to their office, that's why exclusive, original, that's why it says all, and then you have specification of the crimes, and then you have a catch all provision, all other offenses and felonies in relation to their office, that exhausts all possibilities, your honor,” Hilbay answered.

Is the crime related to office?

Peralta’s interpellation shifted to whether De Lima's alleged crime is related to her office then, the Department of Justice. 

Peralta used the example of Senator Panfilo “Ping” Lacson who was then accused, along with other policemen, of killing suspected members of the Kuratong Baleleng robbery gang. Lacson was then police chief superintendent and head of the Presidential Anti-Organized Crime Task Force (PAOCTF).

“The court says the RTC has jurisdiction over the crime of murder, although those who died allegedly were killed while the PNP officials were performing their duty, and there was an allegation of in relation to their office,” Peralta said.

Hilbay said De Lima could not be likened to Lacson in that case because the latter could still have committed the crime even if he wasn’t the police chief.

“The police officers who were accused in that case could have performed or done what they did without even having to pretend that they were public officials. in that case, they simply used their position as a cloak to perform what is otherwise murder. [In De Lima’s case] the allegations say the money was given for protection so that she can run for public office, they would not have allegedly given her money because they supported her campaign, she extorted, and the only way she could have extorted was because she was the secretary of justice,” Hilbay said.

Corruption charge or drug charge?

Justice Lucas Bersamin reminded Hilbay that to prove the Sandiganbayan has jurisdiction, he has to cite the specific contents in the 3 informations filed against De Lima that would say so. (READ: Explainer: What is Leila de Lima being accused of?)

Hilbay mentioned two phrases:

1. “By taking advantage of their position…”

2. “With the use of their power, position and authority, demand, solicit and extort money…”

Echoing the argument of Solicitor General Jose Calida, Bersamin cited Section 28 of the Comprehensive Dangerous Drugs Act which states that any government official found guilty of violating the law shall be held criminally liable with the maximum penalties provided for by the said law.

“This is hypothetical theory – if one is charged, a govenrment official is charged under these portions of the law on drugs, would you have these government officials charged and tried with the Sandiganbayan?” Bersamin asked Hilbay.

Hilbay said, “The basic question is whether or not this is a corruption charge or a real drug trade charge.”

In arguing his position, Hilbay said that the informations do not accuse De Lima of drug trade but of corruption.

“It wasn’t as if she talked to an inmate and said, 'I want to become part of the trade, I want to become part of the business, I want to enter into contract in the sale of drugs, now I’ll give you cellphone so you can do that.' No, she did not do that, as per the allegation, she was interested in running for the Senate, she needed money, and therefore she demanded and solicited. That is corruption,” Hilbay said. (READ: Leonen: De Lima relief from SC may set precedent)

Calida’s arguments

In his argument on jurisdiction, Calida cited Section 39 of RA 6425 or the Dangerous Drugs Act of 1972, which stated that the “circuit criminal court shall have exclusive original jurisdiction over all cases involving offenses punishable under this act.”

He also cited the Judiciary Act of 1948 which says that the courts of first instance shall have original jurisdiction in all criminal cases in which the penalty is imprisonment for more than 6 months or a fine of more than P200.

The circuit criminal court and the court of first instance are what we now know as the RTC.

Calida also cited Section 90 of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002, which says the “Supreme Court shall designate special courts from among the existing regional trial courts in each judicial region to exclusively try and hear cases involving violations of this act.”

Peralta used the same provision when he interpellated Hilbay.

“That is clear – the Supreme Court shall designate RTC as special court; that is the law. The law does not say the SC shall likewise designate MTC courts to try drug cases; that’s specific, it’s actually a directive to us,” Peralta said.

Hilbay argued that the power of the SC was only administrative, and that the determining law shall still be the Sandiganbayan law.

“If it happens that the RTC has jurisdiction, that’s only when Section 90 would kick in because that grants the SC the power to administratively designate RTCs that have jurisdiction to act exclusively on drugs cases,” Hilbay said.

Hilbay reiterated during round one of the oral arguments that even if there are disagreements due to different laws, the Sandiganbayan law shall prevail because it is the latest among the laws.

Calida has promised to throw “knock-out” punches when it’s his turn to argue before the SC.

Ahead of turn, however, Calida made public last week his manifestation that De Lima’s petitions should be dismissed by the High Court because she falsified the notarization on her affidavits.

Citing logbooks and testimonies from security officers at the Philippine National Police (PNP) Custodial Center, Calida said there was no evidence that De Lima personally appeared and swore before the notarizing lawyer, Maria Cecile C. Tresvalles-Cabalo, in relation to her affidavits on February 24, the day the senator was detained at Camp Crame.

De Lima’s lawyer, Alexander Padilla, said the execution of the affidavits happened at the headquarters of the Criminal Investigation and Detection Group (CIDG) where De Lima spent a couple of hours before she was taken to her detention cell.

The second round of the oral arguments will begin at 2 pm on Tuesday, March 21. – 

Rappler.com