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
Monday, November 6, 2017
Sunday, October 29, 2017
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
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
Friday, October 13, 2017
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
Tuesday, October 25, 2016
Can Comelec probe Marcos donation to Duterte?
MANILA, Philippines – The Commission on Elections (Comelec) on Wednesday, October 12, said it needs a formal complaint before it can investigate the reported campaign donation of Ilocos Norte Governor Imee Marcos to then presidential bet Rodrigo Duterte.
Marcos' reported donation was not included in Duterte's Statement of Contributions and Expenditures (SOCE) – a possible violation of Comelec rules.
Comelec Spokesman James Jimenez, however, said the poll body cannot initiate an investigation motu proprio, or on its own, based only on the President's statement that Marcos contributed to his campaign.
"The Comelec cannot act unless a formal complaint has been lodged," Jimenez told Rappler.
"Whoever is interested can file a complaint," he added.
Duterte brought up Marcos' name as a a contributor during a speech on October 4. He said hardly anyone supported him at first, except for people like Marcos.
"Wala akong barangay captain, wala akong congressman, wala akong pera. Si Imee pa ang nagbigay. Sabi niya inutang daw niya," the President said.
(I didn't have a barangay captain, I didn't have a congressman, I didn't have money. It was Imee who donated. She said she borrowed money for it.)
'Many uncertainties'
In his interview with Rappler, Jimenez explained that Duterte's statement "is really not enough to initiate" a motu proprio investigation.
After all, he said Duterte's remarks involve "many uncertainties" – among these, the possibility that the President "misspoke."
Duterte's statements, however, can be part of a formal complaint to initiate a Comelec probe.
Under its rules, the poll body considers incomplete SOCEs as "not filed."
Failing to file the SOCE, in turn, bars winning candidates from taking office.
It is unclear how this applies to winning candidates, such as Duterte, who have already taken their oaths of office.
Candidates who fail to file their SOCEs also face penalties ranging from P1,000 to P30,000 ($20.58 to $617.60).
The SOCE is a way for the Comelec monitor if a candidate overspent during the campaign, and for watchdogs to identify the donors to whom a candidate might be indebted once in office. – Rappler.com
Friday, October 21, 2016
Marcos could be new VP – Duterte
FORMER senator Ferdinand “Bongbong” Marcos Jr. may become the country’s next vice president if he wins his electoral protest against Vice President Maria Leonor “Leni” Robredo, President Rodrigo Duterte said Wednesday night in Beijing.
The President made the remark as he introduced Marcos during his meeting with the Filipino community in Beijing.
Marcos and his sister, Ilocos Norte Gov. Imee Marcos, joined the President’s state visit to China and were on stage when Duterte spoke.
“Si Bongbong … Kung manalo siya sa protest niya baka bago ang ating bise presidente [Bongbong … If he wins in his election protest, maybe we will have a new vice president],” Duterte said.
Marcos is contesting the narrow victory of Robredo in the May 9 vice presidential race, claiming massive electoral fraud, counting anomalies and other irregularities.
Robredo won with 14,682,290 votes against Marcos’ 14,418,817 votes, or a difference of only 263,473.
Duterte, citing his close ties with the Marcoses, initially declined to give Robredo a Cabinet position. He later named her housing czar.
Duterte, citing his close ties with the Marcoses, initially declined to give Robredo a Cabinet position. He later named her housing czar.
Another rival of Marcos in the vice presidential contest, Sen. Alan Peter Cayetano, was also present in the Filipino community event.
Introducing Cayetano to the audience, Duterte described his former vice presidential candidate as “bright.”
Both Marcos and Cayetano sought to run under the Duterte ticket, but the latter got the nod of the former Davao City mayor. Marcos instead ran with the late senator Miriam Defensor-Santiago.
Both Marcos and Cayetano sought to run under the Duterte ticket, but the latter got the nod of the former Davao City mayor. Marcos instead ran with the late senator Miriam Defensor-Santiago.
Marcos camp hits Comelec
On Thursday, the Marcos camp said it would ask the Supreme Court, sitting as the Presidential Electoral Tribunal or PET, to stop the Commission on Elections (Comelec) from releasing supposedly unused vote-counting machines to its foreign service provider Smartmatic.
The move, the Marcos camp said, would violate a precautionary protective order issued by the tribunal to preserve election records and equipment.
“Senator Marcos is vehemently opposing the plan of Comelec to return the 1,356 [machines]to Smartmatic for the simple reason that there is no approval from the PET in the light of the [order]it earlier issued,” said
Marcos counsel Jose Amor Amorado during a Comelec briefing at the poll body’s Santa Rosa, Laguna warehouse that discussed the protocol on the release of the counting machines to Smartmatic.
Marcos counsel Jose Amor Amorado during a Comelec briefing at the poll body’s Santa Rosa, Laguna warehouse that discussed the protocol on the release of the counting machines to Smartmatic.
The Marcos camp insists that the protective order covers the machines, despite the Comelec’s claim that they were not used during the May polls. The machines are scheduled to be released starting October 26.
“These contingency machines were used during the last elections as contingency [machines]. Some of them were deployed admittedly during the earlier meetings in different areas. Some of them were left here in Santa Rosa. So because of the lack of PET approval, the plan of Comelec to return the [machines]to Smartmatic is vehemently opposed,” Amorado said.
The PET had ordered the preservation of automated election equipment such as counting machines, consolidation and canvass system units, secure digital cards, and other data storage devices in all 92,509 clustered precincts used in the May 2016 elections.
source: Manila Times
Sunday, September 25, 2016
Comelec junks protest vs Makati Mayor Abby Binay
MANILA, Philippines – The Commission on Elections (Comelec) has junked the election protest filed by defeated mayoral bet Romulo "Kid" Peña Jr against Makati City Mayor Abigail "Abby" Binay Campos.
Peña, former acting mayor of Makati City, alleged electoral fraud and vote buying to favor his rival, Binay, in the mayoral race.
In an order dated September 20, however, the Comelec First Division said Peña "failed to indicate a detailed specification of the acts or omissions complained of showing the electoral fraud, anomalies, or irregularities in the protested precincts."
For one, the Comelec First Division said, Peña "did not indicate the particular precincts" where vote-counting machines wrongly scanned the ballots.
On top of this, Peña's use "of phrases like 'numerous instances,' 'in some instances,' 'in one instance,' etc, reflects that these statements of irregularities are broad and general in description, which the rules do not allow."
The Comelec First Division explained, "The rule on specificity of the acts or omissions detailing electoral fraud or irregularity is purposely crafted to prevent the tendency of prolonging or delaying election protests, which casts doubt on the validity of the proclamation of the elected officials."
"The protestant did not show the required specific cause why this election protest must continue," the poll commissioners added.
'Unnecessary delay'
At the same time, the Comelec First Division chastised Peña for filing two versions of the same protest.
"The Comelec (First Division) sternly reminds the protestant that this incident, whether intentional or not, has caused the unnecessary delay in the resolution of the case," they said.
The Comelec First Division is composed of Commissioner Christian Robert Lim, as the presiding commissioner, and Commissioners Luie Guia and Rowena Guanzon as members.
In a statement on Friday, September 23, Binay lawyer Daniel Subido said the Makati City mayor is thanking the Comelec "for seeing the protest filed by Peña for what it is, a sham pleading filed by a losing candidate who could not accept the reality of being soundly rejected by the Makati citizenry."
Peña lost by 18,000 votes to Binay, heir to the political dynasty built by her father, former vice president Jejomar Binay, in Makati City.
Peña served as Makati City acting mayor in 2015 after the Ombudsman suspended then Makati mayor Jejomar Erwin Binay Jr.
Binay Jr is the incumbent mayor's brother. – Rappler.com
Wednesday, July 20, 2016
Counting terms: Jurisprudential guidelines on the three-term limit rule for local elective officials
The euphoria of the 2016 elections may have died down but some legal issues are yet to be resolved by the courts and the Comelec. A number of these cases may relate to the proper interpretation of the “three-term limit rule” for local elective officials.
This disqualification rule, as enshrined under Section 8, Article X of the 1987 Constitution and reiterated in Sec. 43 (b) of the Local Government Code of 1991, prohibits local elective officials from serving more than three (3) consecutive terms in the same position. It ensures that there is a change in leadership every after three consecutive terms of a local elective official to give chance to some other qualified individuals. Although the rule appears to be simple, the same has been a fertile ground for disputes stemming from varying interpretations of said rule.
In Abundo v. Comelec (2012), the Supreme Court laid down the following requisites for the applicability of the rule: (1) that the official concerned has been elected for three consecutive terms in the same local government post; and (2) that he has fully served three consecutive terms.
The Abundo ruling likewise summarized various cases where the applicability of this rule was tested. These cases relate to: (1) assumption of office by operation of law, (2) assumption of office after winning a recall election, (3) conversion of a municipality to a city, and (4) declaration of the proclaimed candidate as the losing party in an election contest, and other analogous cases.
ASSUMPTION OF OFFICE BY OPERATION OF LAW
In Borja, Jr. v. Comelec (1998), Capco was elected vice-mayor but he eventually succeeded as mayor by operation of law due to the death of the incumbent mayor. Capco was then elected as mayor for two more terms after his assumption by operation of law. On his third attempt to re-election, his disqualification was sought. The Supreme Court held that “it is not enough that an individual served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply.” Thus, the initial assumption by operation of law was not counted for purposes of the three-term limit rule.
ASSUMPTION OF OFFICE AFTER WINNING IN A RECALL ELECTION
In Socrates v. Comelec (2002), Hagedorn was elected and served as mayor for three consecutive terms. After that Hagedorn opted not to run for the next elections, in which Socrates eventually won. However, while serving his term, Socrates faced recall proceedings. Hagedorn ran for the former’s unexpired term, so Socrates sought his disqualification. The Supreme Court upheld Hagedorn’s candidacy to run in the recall election, since after his third term “he became a private citizen until the recall election” where he won.
CONVERSION OF A MUNICIPALITY INTO A CITY
In Latasa v. Comelec (2003), Latasa served as Mayor of the Municipality of Digos for three consecutive terms. During his third term, Digos was converted to a component city. When he filed his candidacy for city mayor, the Supreme Court ruled that “the conversion of a municipality to a city does not constitute an interruption of the incumbent official’s continuity of service.” Thus, the rule was applied.
LOSING IN AN ELECTION CONTEST
In Lonzanida v. Comelec (1999), Lonzanida was elected and served as mayor for three terms from 1989-1998. However, his proclamation relative to the 1995 election (for his 3rd term) was declared as null on the ground of failure of elections. Three months before the 1998 elections, Lonzanida vacated the mayoralty post. In the May 1998 elections, Lonzanida again filed his certificate of candidacy. This was questioned by his opponent.
The Supreme Court held that “Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections since his assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation.” It was also stated that “Lonzanida did not fully serve the 1995-1998 mayoral term having been ordered to vacate his post before the expiration of the term, a situation which amounts to an involuntary relinquishment of office.” Thus, the rule did not apply.
Contrast this to Ong v. Alegre (2006), Ong was elected and served as mayor for three terms from 1995-2004. During the 1998 elections, the Comelec nullified Ong’s proclamation on account that he lost during the 1998 elections. Nonetheless, the decision became final and executory on July 4, 2001 when Ong had fully served the 1998-2001 term and was in fact already starting to serve the 2001-2004 term. In 2004, he filed his certificate of candidacy for the same position which his opponent questioned. Ong invoked the ruling in Lonzanida.
The Supreme Court held that “his assumption of office as mayor for the term 1998-2001 constitutes service for the full term.”Lonzanida did not apply because the conditions are different. Ong was deemed to have served for a full term because Ong’s proclamation was voided only after the expiry of the term. It was further noted that “the decision declaring Ong as not having won the 1998 elections was without practical and legal use and value.” “His proclamation as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term limit rule.”
Based on the foregoing, the rule is applicable for as long as a local elective official (1) has been elected and (2) had served for three consecutive terms in the same position. As such, an official who merely assumed office by operation of law can run for the same position for three consecutive terms since he was not elected to the position. Likewise, an officer who has been elected and had served three consecutive terms will not be disqualified to run for a recall election for the same position since there has been an interruption in the continuity of terms of office after his third term. Lastly, an official who did not serve a full term for having been declared to have lost an election contest can still run for the same position since the requirements are not complied with.
On the other hand, the rule is applicable to disqualify a local elective official to run for a fourth consecutive term over the same position even if the municipality has been converted into a city, or when a local elective official has been declared to have lost an election only after he had already served his full term.
Reynold L. Orsua is an Associate of the Litigation and Dispute Resolution (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
source: Businessworld
This disqualification rule, as enshrined under Section 8, Article X of the 1987 Constitution and reiterated in Sec. 43 (b) of the Local Government Code of 1991, prohibits local elective officials from serving more than three (3) consecutive terms in the same position. It ensures that there is a change in leadership every after three consecutive terms of a local elective official to give chance to some other qualified individuals. Although the rule appears to be simple, the same has been a fertile ground for disputes stemming from varying interpretations of said rule.
In Abundo v. Comelec (2012), the Supreme Court laid down the following requisites for the applicability of the rule: (1) that the official concerned has been elected for three consecutive terms in the same local government post; and (2) that he has fully served three consecutive terms.
The Abundo ruling likewise summarized various cases where the applicability of this rule was tested. These cases relate to: (1) assumption of office by operation of law, (2) assumption of office after winning a recall election, (3) conversion of a municipality to a city, and (4) declaration of the proclaimed candidate as the losing party in an election contest, and other analogous cases.
ASSUMPTION OF OFFICE BY OPERATION OF LAW
In Borja, Jr. v. Comelec (1998), Capco was elected vice-mayor but he eventually succeeded as mayor by operation of law due to the death of the incumbent mayor. Capco was then elected as mayor for two more terms after his assumption by operation of law. On his third attempt to re-election, his disqualification was sought. The Supreme Court held that “it is not enough that an individual served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply.” Thus, the initial assumption by operation of law was not counted for purposes of the three-term limit rule.
ASSUMPTION OF OFFICE AFTER WINNING IN A RECALL ELECTION
In Socrates v. Comelec (2002), Hagedorn was elected and served as mayor for three consecutive terms. After that Hagedorn opted not to run for the next elections, in which Socrates eventually won. However, while serving his term, Socrates faced recall proceedings. Hagedorn ran for the former’s unexpired term, so Socrates sought his disqualification. The Supreme Court upheld Hagedorn’s candidacy to run in the recall election, since after his third term “he became a private citizen until the recall election” where he won.
CONVERSION OF A MUNICIPALITY INTO A CITY
In Latasa v. Comelec (2003), Latasa served as Mayor of the Municipality of Digos for three consecutive terms. During his third term, Digos was converted to a component city. When he filed his candidacy for city mayor, the Supreme Court ruled that “the conversion of a municipality to a city does not constitute an interruption of the incumbent official’s continuity of service.” Thus, the rule was applied.
LOSING IN AN ELECTION CONTEST
In Lonzanida v. Comelec (1999), Lonzanida was elected and served as mayor for three terms from 1989-1998. However, his proclamation relative to the 1995 election (for his 3rd term) was declared as null on the ground of failure of elections. Three months before the 1998 elections, Lonzanida vacated the mayoralty post. In the May 1998 elections, Lonzanida again filed his certificate of candidacy. This was questioned by his opponent.
The Supreme Court held that “Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections since his assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation.” It was also stated that “Lonzanida did not fully serve the 1995-1998 mayoral term having been ordered to vacate his post before the expiration of the term, a situation which amounts to an involuntary relinquishment of office.” Thus, the rule did not apply.
Contrast this to Ong v. Alegre (2006), Ong was elected and served as mayor for three terms from 1995-2004. During the 1998 elections, the Comelec nullified Ong’s proclamation on account that he lost during the 1998 elections. Nonetheless, the decision became final and executory on July 4, 2001 when Ong had fully served the 1998-2001 term and was in fact already starting to serve the 2001-2004 term. In 2004, he filed his certificate of candidacy for the same position which his opponent questioned. Ong invoked the ruling in Lonzanida.
The Supreme Court held that “his assumption of office as mayor for the term 1998-2001 constitutes service for the full term.”Lonzanida did not apply because the conditions are different. Ong was deemed to have served for a full term because Ong’s proclamation was voided only after the expiry of the term. It was further noted that “the decision declaring Ong as not having won the 1998 elections was without practical and legal use and value.” “His proclamation as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term limit rule.”
Based on the foregoing, the rule is applicable for as long as a local elective official (1) has been elected and (2) had served for three consecutive terms in the same position. As such, an official who merely assumed office by operation of law can run for the same position for three consecutive terms since he was not elected to the position. Likewise, an officer who has been elected and had served three consecutive terms will not be disqualified to run for a recall election for the same position since there has been an interruption in the continuity of terms of office after his third term. Lastly, an official who did not serve a full term for having been declared to have lost an election contest can still run for the same position since the requirements are not complied with.
On the other hand, the rule is applicable to disqualify a local elective official to run for a fourth consecutive term over the same position even if the municipality has been converted into a city, or when a local elective official has been declared to have lost an election only after he had already served his full term.
Reynold L. Orsua is an Associate of the Litigation and Dispute Resolution (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
source: Businessworld
Monday, June 20, 2016
Can Comelec extend the non-extendible?
THE Commission on Elections’ en banc resolution allowing an extension of the final and non-extendible June 8 deadline for the filing of Statements of Contributions and Expenses (SOCE) by candidates in the May 9 elections constitutes not only an extremely dangerous precedent but, above all, a grave abuse of discretion and a patent violation of the law. It is null and void ab initio.
Commissioner Christian Robert Lim is reportedly set to resign today as head of the finance campaign office, in protest against the ruling, which seeks to set aside the provision of the Omnibus Election Code and Comelec Resolution 9991, by a vote of four to three. Both PDP-Laban, the President-elect’s adopted political party, and Vice President Jejomar Binay’s UNA have denounced the ruling as illegal, without saying whether they are taking any concrete action against it or not.
To the Supreme Court
For his part, election lawyer Manuelito Luna, who figured prominently in the celebrated citizenship case against the defeated presidential candidate Grace Poe Llamanzares, will be asking the Supreme Court in his capacity as a concerned citizen and taxpayer to invalidate the Comelec ruling and restore the “status quo ante.” This should happen sometime today.
For his part, election lawyer Manuelito Luna, who figured prominently in the celebrated citizenship case against the defeated presidential candidate Grace Poe Llamanzares, will be asking the Supreme Court in his capacity as a concerned citizen and taxpayer to invalidate the Comelec ruling and restore the “status quo ante.” This should happen sometime today.
Under the law, as clarified by Comelec Resolution 9991, a winning candidate may not take his oath of office if he or his party fails to file his SOCE within the deadline fixed by law. All the candidates have filed their individual SOCEs on time, but their party—the ruling Liberal Party—has failed to do so and has asked for a 14-day extension of the non-extendible deadline.
The campaign finance office called for strict compliance with the law and denial of the requested extension, but the banc decided to extend the deadline until June 30. The law does not grant the Comelec any such authority, but speaking for the banc, Commissioner Rowena Guanzon, one of the four commissioners who voted to extend, said that “procedural rules cannot prevail over the people’s sovereign will.”
An absurdity?
Justifying the ruling, the Comelec spokesman pointed out that if the law were followed to the letter, the Vice-President-elect, five senators-elect, 40 governors-elect and 115 congressmen-elect would not be able to assume office, with incalculable adverse consequences to the operations of the entire government. This would be an absurdity, the spokesman said.
Justifying the ruling, the Comelec spokesman pointed out that if the law were followed to the letter, the Vice-President-elect, five senators-elect, 40 governors-elect and 115 congressmen-elect would not be able to assume office, with incalculable adverse consequences to the operations of the entire government. This would be an absurdity, the spokesman said.
We respectfully disagree. Indeed, it would be most unfortunate if all these elected candidates were barred from taking their oath of office because their party had failed to do its basic duty. But this would be merely a consequence of the normal operations of the law. There is nothing absurd about the law, so by no means could we call it an absurdity.
Indeed, it would be an absurdity if, during the time that the candidates and the LP were preparing their SOCE, a major earthquake, tsunami, epidemic, terrorist attack or any other kind of force majeure struck and destroyed the nation’s cities and countryside, and all LP offices everywhere, and yet the Comelec insisted that they submit their SOCE on time, as if the national calamity did not exist.
Without any force majeure occurring, a real absurdity would arise if hundreds of winning candidates and their respective parties neglected to comply with the simplest legal requirement and yet were spared from any penalty because those who were supposed to enforce the law had decided to bend it, believing they possessed a power they did not have. What the Comelec has done to prevent a so-called absurdity is the real absurdity, which seeks to trample upon the law.
Guanzon’s statement
Commissioner Guanzon’s statement that procedural rules cannot rise above the people’s sovereign will, properly applied and understood, merits no debate. But there are written and unwritten rules attached to the grant of a sovereign mandate to ensure its validity and legitimacy. One such condition is that no candidate must accept financial contributions from an illegal or prohibited source nor spend more money in excess of the amount allowed by law.
Commissioner Guanzon’s statement that procedural rules cannot rise above the people’s sovereign will, properly applied and understood, merits no debate. But there are written and unwritten rules attached to the grant of a sovereign mandate to ensure its validity and legitimacy. One such condition is that no candidate must accept financial contributions from an illegal or prohibited source nor spend more money in excess of the amount allowed by law.
For this purpose, the candidate and his party are required to submit a complete and accurate SOCE within an inflexible period fixed by law. This requirement cannot be waived because it is supposed to perfect a candidate’s and his party’s participation in the electoral process. If the SOCE shows that the candidate or his party had received donations from an illegal source, or had spent more money than was allowed by law, then he would have to be summarily disqualified by the Comelec, regardless of his claim to a “landslide victory.”
There have been high-profile examples of this, the latest being the popular candidate E.R. Ejercito, who won the 2013 governorship of Laguna, but was disqualified for spending more than he was allowed by law, according to his SOCE.
Ministerial act
All winning candidates will have to take their oath of office at noon of June 30 in accordance with law. The June 8 deadline allows the Comelec a reasonably sufficient time to go through the SOCE of winning candidates to see whether each of them, together with their respective political parties, had complied with the law governing campaign contributions and expenses. Extending that deadline to June 30 would deny the Comelec the material time needed to examine the SOCE properly, especially those filed on the last day or the last few days.
All winning candidates will have to take their oath of office at noon of June 30 in accordance with law. The June 8 deadline allows the Comelec a reasonably sufficient time to go through the SOCE of winning candidates to see whether each of them, together with their respective political parties, had complied with the law governing campaign contributions and expenses. Extending that deadline to June 30 would deny the Comelec the material time needed to examine the SOCE properly, especially those filed on the last day or the last few days.
It would thus reduce the filing of the SOCE, and its reception by the Comelec, into mere ministerial acts. The Comelec would no longer have the material time needed to discover that a particular candidate was in willful violation of the law governing the execution of this important document and had to be prevented from taking his oath of office.
The fact that the Vice-President-elect, five senators-elect, 40 governors-elect, and 115 congressmen-elect will not be able to take their oath of office because of the LP’s failure to comply with the law is not a problem of the Comelec, whose duty it is to enforce the law, but solely that of the candidates and the LP, which has failed to comply with the law. This should ultimately lead to LP’s disenfranchisement as an “irresponsible party,” even without the massive post-election migration of its members to Duterte’s new party.
Scary scenario
I am not competent to describe the scenario that should obtain if and when the elected candidates mentioned above are unable to assume office. I can only speculate it would be scary. In the case of the Vice President, the Constitution provides that “whenever there is a vacancy in the Office of the Vice President during the term for which he has been elected, the President shall nominate a Vice President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.”
I am not competent to describe the scenario that should obtain if and when the elected candidates mentioned above are unable to assume office. I can only speculate it would be scary. In the case of the Vice President, the Constitution provides that “whenever there is a vacancy in the Office of the Vice President during the term for which he has been elected, the President shall nominate a Vice President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately.”
Complicated VP
But aside from the SOCE issue confronting Vice-President-elect Leni Robredo, her election is under serious question by her closest rival, Sen. Ferdinand (Bongbong) Marcos, Jr., who has alleged massive fraud, particularly in Muslim Mindanao, and has announced his intention to file a formal election protest before the Presidential Electoral Tribunal, on June 28. This complicates the issue of vacancy in the Office of the Vice President, and how the above-quoted constitutional provision will apply.
But aside from the SOCE issue confronting Vice-President-elect Leni Robredo, her election is under serious question by her closest rival, Sen. Ferdinand (Bongbong) Marcos, Jr., who has alleged massive fraud, particularly in Muslim Mindanao, and has announced his intention to file a formal election protest before the Presidential Electoral Tribunal, on June 28. This complicates the issue of vacancy in the Office of the Vice President, and how the above-quoted constitutional provision will apply.
Effects on Senate presidency
With respect to the vacancies occurring in Congress, the Constitution provides for special elections to fill up such vacancies. Meantime, the five Senate vacancies would reduce the 24 regular Senate members to only 19; in the House, the 115 vacancies would leave 177 active members. Both Houses would still have enough members to constitute a majority, but in the Senate, the five vacancies could alter the fight for the Senate presidency.
With respect to the vacancies occurring in Congress, the Constitution provides for special elections to fill up such vacancies. Meantime, the five Senate vacancies would reduce the 24 regular Senate members to only 19; in the House, the 115 vacancies would leave 177 active members. Both Houses would still have enough members to constitute a majority, but in the Senate, the five vacancies could alter the fight for the Senate presidency.
Sen. Aquilino Pimentel 3rd, the PDP-Laban’s lone member, was earlier reported to have sewed up with the support of the LP. But with Senate President Frank Drilon, top-ranking LP, and four others out in the cold, another senator could emerge to challenge Pimentel’s prospective Senate presidency.
In the case of the 40 governors-elect, they will simply be succeeded by their vice governors, thereby ensuring the uninterrupted operations of the provincial governments concerned. The LGUs are the least likely to be adversely affected by these developments.
Simplifying govt
Should the Supreme Court sustain the Comelec and confirm the extension of the SOCE deadline, President-elect Duterte might be encouraged to seriously consider his earlier “promise” to remove unwanted and unhelpful elements in government and simplify the running of government.
Should the Supreme Court sustain the Comelec and confirm the extension of the SOCE deadline, President-elect Duterte might be encouraged to seriously consider his earlier “promise” to remove unwanted and unhelpful elements in government and simplify the running of government.
The simplification of his inaugural appears to be but a first step. Instead of holding the inaugural at the Rizal Park, where past Presidents had held theirs, President-elect Duterte will hold his at the Rizal Ceremonial Hall of Malacañang Palace, before a limited and controlled audience of 500 guests. He will be sworn into office by Associate Supreme Court Justice Bienvenido Reyes, a fraternity brother of the Lex Talionis Fraternitas at the San Beda College of Law, where they both studied law.
The choice of Reyes to administer the incoming President’s oath of office is reported to have caused “palpitations” on the part of Chief Justice Maria Lourdes Sereno, whom President B.S. Aquino 3rd pole-vaulted from the most junior position to her present post after he had the late former Chief Justice Renato Corona impeached and removed from office on one “non-impeachable” offense by paid members of the House and the Senate impeachment court. At the time Reyes, a 2011 Aquino appointee, was offered the chance to become Chief Justice, but he formally declined being included in the “short list” of nominees “out of respect for the senior justices.”
Chief Justice fears
Although Duterte has not telegraphed any moves against the Chief Justice, Sereno appears to entertain fears that what Aquino had done to Corona the new President might do to her, without his having to invent any valid grounds for her impeachment and removal the way Aquino invented grounds against Corona. It is not clear whether Sereno has been invited to the Duterte inaugural.
Although Duterte has not telegraphed any moves against the Chief Justice, Sereno appears to entertain fears that what Aquino had done to Corona the new President might do to her, without his having to invent any valid grounds for her impeachment and removal the way Aquino invented grounds against Corona. It is not clear whether Sereno has been invited to the Duterte inaugural.
Although the Vice President is traditionally sworn into office together with the President, this will not happen this time. Even if the High Court resolves the SOCE issue in favor of the LP, and all legal obstacles to Leni Robredo taking her oath are withdrawn, the plan is for her to hold her own separate oath-taking somewhere else. We do not have the precise details as of now, but we can be sure it will not be held at the Quirino Grandstand, and neither Sereno nor any other SC justice will administer her oath. Regardless of the venue, according to reports, a barangay official from Caramoan, Camarines Sur, will do the honors.
The apparent motif is one of extreme simplicity, which should create the intended news headlines. But the barangay official concerned might not have the competent authority to administer the oath to the incoming Vice President, especially if he or she would perform the act in Metro Manila, far away from his or her territorial jurisdiction.
fstatad@gmail.com
source: Manila Times
Tuesday, March 8, 2016
4 key issues that divide SC justices in Grace Poe case
MANILA, Philippines – The 5-hour oral arguments on Tuesday, February 2 give the public a glimpse on the issues that divide the Supreme Court justices in the disqualification cases against presidential candidate Grace Poe.
Lawyer Arthur Lim, a member of the Commission on Elections, answered questions from the justices in the 3rd round, defending the poll body’s decision to cancel Poe’s certificate of candidacy on the grounds that she “misrepresented” her residency and citizenship. In other words, Comelec said Poe was not a natural-born citizen and lacked the 10-year residency, 2 basic requirements to run for president.
In these exchanges, 4 key takeaways emerged:
1.When the count for the 10-year residency requirement starts.
Justice Mariano del Castillo, who will write the decision, raised the point that the count for Poe’s residency should start on October 21, 2010, when she “expatriated” herself before the U.S. embassy in Manila. “This was when she gave up her domicile in the US,” Del Castillo said. It was the first time in the series of oral arguments that this reckoning point was brought up.
For the Comelec, July 18, 2006 is the earliest time Poe can be considered a resident. It was at this time that she re-acquired her citizenship, as granted by the Bureau of Immigration (BI). Lim said that the Comelec “wanted to accommodate her position” but this still fell short of 10 years.
But Justice Teresita De Castro pointed out that Poe gave “false claims” to the BI, saying that she was born to Fernando Poe Jr. and Susan Roces, hiding the fact that she was a foundling.
If the count begins October 2010, Poe would have been a resident for only less than 6 years.
2. Will the Court engage in “judicial legislation?” Shouldn’t Congress pass legislation to address foundlings’ eligibility for government positions?
Chief Justice Maria Lourdes Sereno elaborated on her earlier position that thousands of foundlings will be discriminated against should the Supreme Court say that Poe, herself a foundling, is not a natural-born citizen. Many government positions, both elective and appointive, require that holders be natural-born citizens.
For almost 3 hours, Sereno repeatedly made this point. In response, Lim kept going back to the “core issue,” saying that this is for Congress and not for the Supreme Court to resolve. “The sad plight of foundlings is not the issue here…Let’s not lose sight of the fact that Poe is seeking the highest position…Comelec doesn’t want to lose focus on what is at stake. This problem [foundling rights] should be addressed by Congress.”
He added that the Court could be engaging in “judicial legislation.”
Justice Arturo Brion, who was the last to ask questions, followed through. “If the constitutional provision on natural-born citizenship is unreasonable, what is the remedy?” To which Lim answered, “Amend the Constitution.”
Brion is one of the 3 justices who dissented in the Senate Electoral Tribunal decision saying Poe is a natural-born citizen. The other 2 are Justices Antonio Carpio and De Castro.
3. Adoption laws as a defense was not raised by Poe’s counsel before the Comelec.
Brion wanted to know if Poe’s camp used the country’s adoption laws as defense before the Comelec. Sereno had repeatedly argued that these presume foundlings to be Filipino citizens.
Lim said that Poe’s defense was anchored on international laws. To which Brion asked, “You heard it first before the Supreme Court?” He was apparently alluding to Sereno, who brought up adoption laws as defense in the last oral arguments and told Poe’s counsel to look at “rich” domestic laws when they file their expanded briefs.
Lim said he was “not sure” if this line of defense came up first in the Supreme Court.
4. In weighing evidence on Poe’s citizenship and residency, what standards will be used?
Sereno and Justice Marvic Leonen harped on this point. Sereno wanted to know what kind of proof the Comelec wanted from Poe.
Leonen pursued a similar line of questioning and asked Lim to cover this in the poll body’s brief.
Lim said that the evidence presented by Poe was “not enough.” The Comelec was after “substantial evidence.”
The justices are expected to deliberate on these key issues as decision time nears.
So far, 4 justices have kept quiet during all the oral arguments: Lucas Bersamin, Bienvenido Reyes, Francis Jardeleza and Jose Mendoza. The last appointee of President Aquino to the Court,Justice Alfredo Benjamin Caguiao has not participated in the oral arguments since his appointment. It is not clear if he will take part in the voting.
The next oral arguments will take place February 9. – Rappler.com
Wednesday, March 2, 2016
SC nixes Comelec plea for more time to answer Gordon petition
THE Supreme Court (SC) denied the plea of the Commission on Elections (Comelec) to be given more time to answer the petition filed by former Sen. Richard Gordon seeking to compel the poll body to issue receipts for votes cast during the May 9 elections.
At a media briefing, SC Spokesman Theodore Te said the Court denied the Comelec’s motion during its regular en banc session on Tuesday, and decided to maintain their earlier order for the poll body to respond to the motion within five days.
“The Court denied respondent Comelec’s motion for extension of time to submit comment. The Court’s order of February 23, 2016, gave respondent Comelec an inextendible period of five days within which to comment,” Te said.
It will be recalled that, in his petition for mandamus, Gordon, who is also running for the Senate in this year’s elections, said the poll body should implement Section 7 (e) of Republic Act (RA) 9369, or the automated election law, which states that the Voter Verification Paper Audit Trail (VVPAT) is one of the minimum systems capabilities of the automated-election system and a major security feature of the vote- counting machine.
Gordon noted that the VVPAT allows every voter to confirm whether the machine cast the vote correctly based on the choice of the voter, thereby ensuring the integrity of the elections.
He pointed out that VVPAT is a “critical and indispensable” security feature of the automated-voting machine, one that the Comelec must implement.
Gordon said the Comelec must not be allowed to violate the law, as it has done so in the 2010 and 2013 elections, adding that this is one of the reasons there are those who questioned the credibility of the automated-election system, owing to the failure of the poll body to implement the safeguards, such as presenting the source code for review and disabling the use of digital signatures.
Comelec Chairman Andres Bautista said the poll body has decided against printing the receipt, because it might be used for vote- buying, and that it would result to the vote-counting process being extended from six to seven hours, since it takes about 13 seconds to print a receipt, meaning each machine would have to run for that long for the receipts.
Gordon hits back at Macalintal
THE main author of the landmark election automation law, comebacking Sen. Richard Gordon, hit back at election lawyer Romulo Macalintal on Tuesday for saying the law did not mandate the issuance of receipts to voters.
Gordon, who last week filed a petition asking the SC to compel the Comelec to activate the Voter Verified Paper Audit Trail (VVPAT) for the May 9 elections, said Macalintal should check his facts before dishing out “selective arguments.”
Gordon was reacting to Macalintal’s published reaction, criticizing Gordon for filing a “misleading and speculative petition.”
The former senator, who once also chaired the Congressional Oversight Committee on Poll Automation, drew attention to RA 9639’s Sections E, F and N, governing the required documentation and verification system after the country scuttled manual elections.
“Depriving voters of a chance to verify through a receipt if their votes were accurately reflected means you are asking them to put their full and exclusive trust in a machine which can be monkeyed around with,” Gordon told the BusinessMirror.
The issue here, he added, “is guaranteeing the integrity of the polls, and letting people have full confidence in the outcome of the elections.”
This will be crucial, Gordon stressed, in ensuring political stability, especially in light of indications this will be a tight race. “If a winner is declared on a small margin, imagine how hard it will be to assure people that the vote is clean, especially if they don’t have receipts and were forced to blindly trust the machines.”
At the same time, Gordon observed that the Comelec never even activated the onscreen verification, which is now being touted as a possible replacement for VVPAT.
He pointed out that the law contemplates receipts, a paper audit trail, and it is time to enforce that, lamenting that it was taken lightly along with other security features in the 2010 and 2013 elections.
Gordon shot down arguments that a paper trail would invite vote buying, noting the hypocrisy of those who say people should be forced to trust the system enough without demanding receipts while, at the same time, accusing them of being a party to vote-buying.
The comebacking senator also noted that the earlier SC decision being cited by Macalintal was rendered even before the country held its first automated elections in 2010.
He noted that in 2010, neither the VVPAT nor onscreen verification was activated. That year the Comelec was also blasted by critics for also failing to put into action a source-code review and for not compelling its watchdog, the Parish Pastoral Center for Responsible Voting, to seriously carry out the random manual audit in timely fashion as required by law.
To buttress his argument, Gordon further cited specific requirements in the law which mandates “provision for voter verified paper audit trail; system auditability which provides supporting documentation for verifying the correctness of reported election results; and, provide the voter a system of verification to find out whether or not the machine has registered his choice.”
source: Business Mirror
Wednesday, December 23, 2015
FULL TEXT: Comelec chief Bautista's separate opinion on Grace Poe's citizenship
'It is quite clear that a former Filipino who reacquires Philippine citizenship pursuant to RA 9225 has to perform an act to acquire or perfect his or her Philippine citizenship'
SEPARATE OPINION. Commission on Elections chairman Andres Bautista, like all the other commissioners, says Senator Grace Poe is not a natural-born Filipino. File photo by Ben Nabong/Rappler
SEPARATE OPINION. Commission on Elections chairman Andres Bautista, like all the other commissioners, says Senator Grace Poe is not a natural-born Filipino. File photo by Ben Nabong/Rappler
Building a #WonderfulPH
FULL TEXT: Comelec chief Bautista's separate opinion on Grace Poe's citizenship
'It is quite clear that a former Filipino who reacquires Philippine citizenship pursuant to RA 9225 has to perform an act to acquire or perfect his or her Philippine citizenship'
SEPARATE OPINION. Commission on Elections chairman Andres Bautista, like all the other commissioners, says Senator Grace Poe is not a natural-born Filipino. File photo by Ben Nabong/Rappler
MANILA, Philippines – Chairman Andres Bautista is one of two dissenters in the decision of the Commission on Elections (Comelec) en banc rejecting the 2 motions for reconsideration of presidential aspirant Grace Poe on questions about her citizenship and residency.
The en banc voted on 5 points concerning the cases filed before the 1st and 2nd divisions:
- the poll body's jurisdiction over the issue
- Poe's residency
- Poe's citizenship
- whether there was deliberate intention on her part to mislead the electorate on her residency and citizenship status
- whether the appeal will be granted or not
All commissioners said the poll body has jurisdiction over the cases and that Poe is not a natural-born Filipino.
For the residency issues, 5 commissioners, including Bautista, voted against Poe. Only commissioners Luia Guia and Christian Robert Lim voted in favor of Poe.
Meanwhile, only 3 out of the 7 commissioners – Guia, Christian Lim, and Bautista – voted in favor of Poe, saying there was no deliberate intent on her part to mislead the public on her residency status.
As for alleged intent to mislead people on her citizenship status, only Bautista and Commissioner Al Parreño voted in favor of Poe. Lim inhibited from voting on this issue.
Ultimately, 5 voted against Poe's motions, except for Christian Lim and Baustista. The majority were commissioners Parreño, Guia, Arthur Lim, Rowena Guanzon, and Sheriff Abbas.
In his separate opinion on the 1st division case, Baustista said the mere fact that Poe reacquired her citizenship through Republic Act 9225 means she performed an act to perfect her Filipino citizenship, making her a naturalized, not natural-born, Filipino.
Here is the full text of Bautista's concurring and dissenting opinion on the en banc decision upholding the earlier ruling of the 1st division to cancel Poe's certificate of candidacy:
Please refer to the relevant paragprahs in my Concurring and Dissenting Opinion vis-à-vis the Resolution of the Commission En Banc in the case of Elamparo v. Llamanzares, SPA No. 15-001 (DC)
However, I wanted to add a few paragraphs in respect of the issue raised in SPA No. 15-139 (DC) regarding the status of former Filipinos who reacquire their Philippine citizenship pursuant to R.A. 9225.
The 1987 Constitution is clear in its definition of a natural-born citizen. Section 2, Article of the Constitution provides:
“Section 2. Natural-born citizens who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.”
Thus, under said definition, a Philippine citizen who acquired his or her citizenship from birth must have acquired it without having to perform any act to acquire or perfect his or her Philippine citizenship.
Republic Act No. 9225 otherwise known as the “Citizenship Retention and Reacquisition Act of 2003” was enacted to allow the reacquisition and retention of Philippine citizenship for natural-born citizens who have lost Philippine citizenship by reasons of their naturalization as citizens of a foreign country. In the landmark case of Bengson III v. HRET and Cruz (G.R. No. 142840, 7 May 2001) involving repatriation under Republic Act No. 2630, the Supreme Court explained that repatriation results in the recovery of the original nationality. In Tabasa v. Court of Appealss (G.R. No. 125793, 29 August 2006) which involved repatriation under Republic Act No. 8171 otherwise known as an “Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos,” the Supreme Court likewise declared that repatriation has the effect of allowing a former Filipino to recover his natural-born citizenship. Parreño v. Commission on Audit (G.R. No. 16224, 7 June 2007) characterized the procedure under Republic Act No. 9225 as in the form of repatriation.
It is important to keep in mind that the Constitution is the paramount law of the land which is deemed written in every statute and contract (Manila Prince Hotel v. GSIS, G.R. No. 122156, 3 February 1997). The doctrine of constitutional supremacy as enunciated in the Manila Prince Hotel requires that Republic Act No. 9225 must be read and interpreted in a way that would harmonize it with the Constitution. Laws should not be given an interpretation that would render it unconstitutional. As early as Haydee Herras Teehankee v. Director of Prisons, et. Al. (G.R. No. L-278, 18 July 1946), the Supreme Court, citing 11 Am. Jur., Constitutional law, Section 97, ruled to construe the law in consonance with the mandates of the Constitution, thus:
“It is an elementary principle that where the validity of a statue is assailed and there are two possible interpretations, the court should adopt the construction which would uphold its constitutionality. It is the duty of courts to adopt a construction of a statute that will bring it into harmony with the constitution, if its language will permit.
Given the foregoing, there can only be one interpretation of Republic Act 9225 that will do justice to the Constitutional requirements for natural-born citizenship: a former Filipino who reacquired Philippine citizenship should be deemed to be a naturalized Filipino citizen.”
Signed.
J. Andres D. Baustista
Chairman
J. Andres D. Baustista
Chairman
– Rappler.com
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