An all too powerful Ombudsman

TO many of our colleagues in the legal profession, the recent resolution of Ombudsman Conchita Carpio-Morales ordering the dismissal of suspended Makati Mayor Junjun Binay as well as the latter’s perpetual disqualification from holding public office has made the anti-graft agency chief more powerful than PNoy.

Why? Because under our laws, not even the President has the power or authority to remove erring elective local officials. It is only the courts, particularly the Sandiganbayan or the Regional Trial Court (depending on the salary grade of the accused government official) who can impose the penalty of dismissal on wayward elective officials.

As the SC said in the case of Pablico vs. Villapando, which involves an elected mayor who was ordered removed by the Office of the President: “The pertinent portion of Section 60 of the Local Government Code of 1991 provides: Grounds for Disciplinary Actions. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:…An elective local official may be removed from office on the grounds enumerated above by order of the proper court.”

“It is clear from the last paragraph of the aforecited provision [Section 60] that the penalty of dismissal from service upon an erring elective local official may be decreed only by a court of law. Thus, in Salalima, et al. v. Guingona, et al., we held that [t]he Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts, as expressly provided for in the last paragraph of the aforequoted Section 60,” declared the SC.

The SC also said that Congress intended to limit the power of the President to remove an elected mayor because “what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. [The people’s] will must not be put to naught by the caprice or partisanship of the disciplining authority.”

This explains why Morales’ decision in Mayor Binay’s case has led several legal scholars to question the Ombudsman’s power of dismissal over elected officials.

And apparently, even allies of PNoy like Liberal Party (LP) vice-chairman and Senate President Franklin Drilon share the view that the Ombudsman has no power to remove public officials from public office and/or perpetually disqualify a public official to hold public office.

We recall that sometime in 2007, Drilon – who was then Chairman of the Senate Committee on Public Order and Illegal Drugs, and member of the Senate Committee on Local Government – conducted a legislative inquiry on the forcible removal from the provincial capitol of lloilo Governor Niel Tupas, who was administratively dismissed and perpetually disqualified by the Ombudsman for grave misconduct.

In the Committee Report No. 258 which he submitted to the Senate, Drilon’s committee concluded: “…after having closely examined the powers and functions of the Ombudsman as provided under the 1987 Constitution, it is hereby clearly established that the Office of the Ombudsman has no power to remove public officials from office. And that the Office of the Ombudsman is vested only with an advisory and recommendatory function.”

“This is because the Ombudsman being the lawyer of the complainant cannot be the judge at the same time. The Ombudsman, by virtue of…Section 21 [of RA 6670 granting disciplinary authority to the Ombudsman over elective and appointive officials], will become the complainant‘s counsel (lawyer), the prosecutor (the Special Prosecutor being his subordinate) and the judge (disciplinary authority) rolled into one. Such a situation is abhorred in a democratic society like ours,” the report said.

“Moreover, Republic Act No. 6770 or the Ombudsman Act does not provide the Ombudsman the power to perpetually disqualify a public official to hold public office,” the committee report said.

“The penalty of perpetual disqualification is punitive in nature and therefore can be imposed only in criminal cases such as violations of the Anti-Graft and Corrupt Practices Act. While the Ombudsman may have the power to recommend the removal of a public official pursuant to RA 6770, the said law does not provide him the power to perpetually disqualify a public official to hold public office.”

“Also, the penalty of perpetual disqualification is an accessory penalty. There should first be a conviction by the proper court and the imposition of a principal penalty carrying with it a perpetual disqualification to hold public office. It necessarily follows that before the accessory penalty of perpetual disqualification may be properly imposed, the accused should first be found guilty of a crime committed in relation to public office,” the report further stated.

For many Filipinos, Morales’ decision has attracted public scrutiny due to her inconsistent treatment of politically sensitive cases.

For instance, they point out that the Ombudsman immediately absolved PNoy on the Disbursement Acceleration Program (DAP) scandal on the ground that he could not be impeached for malversation.

Yet, in the case of the ruling Liberal Party (LP)’s political foe, Vice President Jojo Binay, who, like PNoy, is an impeachable officer, Morales not only pursued the investigation but even ordered the Vice President’s indictment for malversation and graft even though she admits he also cannot be impeached on said charges.

It will be interesting to learn how the SC will rule once the Binays raise this matter to the High Court.

source:  Manila Times Column of ATTY. DODO DULAY

By the SC, not by the UN

The United Nations (UN) Working Group on Arbitrary Detention (WGAD) was widely reported to have opined that “the detention of former President [Gloria Macapagal] Arroyo (GMA) was arbitrary and illegal under international law … with an enforceable right to compensation.”

Bail denied. Commenting on this opinion obtained by international celebrity lawyer Amal Alamuddin Clooney, Communications Secretary Herminio Coloma Jr. said that GMA “has been accorded due process and has availed herself of various legal remedies … in Philippine courts, which have sole jurisdiction to decide on such matters.”

And may I add that the controversy is about a mere “opinion” of a UN “working group” which does not have the coercive power of a treaty, or a customary international law, or a decision made after trial and hearing of an international tribunal like the International Court of Justice, or the International Criminal Court, or of the International Tribunal for the Law of the Sea, where the Philippine claim in the West Philippine Sea is being heard.

GMA faces two major suits: (1) electoral sabotage, a capital offense, in the regional trial court (RTC) of Pasay for her alleged role in the manipulation of the 2007 election results in Maguindanao, and (2) plunder, also a capital offense, in the Sandiganbayan (SBN) for her alleged participation in the illegal use of P366 million in funds of the Philippine Charity Sweepstakes Office (PCSO).

She was granted bail by the RTC (affirmed by the Court of Appeals) because the prosecution failed to prove that “the evidence of guilt is strong.” However, the SBN denied her plea for bail in the PCSO case.

After the prosecution finished presenting its evidence in the PCSO case, the defense filed a “demurrer” on the ground that the evidence presented had failed to prove GMA’s guilt beyond reasonable doubt.

Demurrer also denied. However, a Special SBN Division of five, voting 3-2, denied the demurrer and ruled that the prosecution has proven her guilt beyond reasonable doubt, and asked her to present countervailing evidence. Otherwise, she would be at risk of conviction.

Significantly, and this was noted in the WGAD opinion, the demurrer of her four coaccused (former PCSO chair Manuel Morato, former PCSO board members Raymundo Roquero and Jose Taruc, and former Commission on Audit chair Reynaldo Villar) was granted, resulting in their acquittal.

The charge against another coaccused, former PCSO chair Sergio Valencia, was downgraded to malversation. Since this is not a capital offense, he was allowed to post a bail bond of P500,000. Only GMA and another coaccused, former PCSO executive Benigno Aguas, were neither acquitted nor granted bail.

Failing in her bid for demurrer and bail, GMA filed a motion in the SBN to change her confinement from the Veterans Memorial Medical Center to her home at 14 Badjao Street, La Vista, Quezon City. In view of the recent WGAD opinion, she is renewing her plea for bail.

Equal protection. I believe, however, that more compelling than the WGAD opinion—which, as Coloma correctly pointed out, is not binding on our judiciary—is the recent Supreme Court decision (Ponce Enrile vs Sandiganbayan, Aug. 18, 2015) granting bail to Sen. Juan Ponce Enrile.

Bail was allowed, not because the prosecution (the Office of the Ombudsman) failed to present “strong” evidence of guilt, but because of (1) Enrile’s “fragile” health (uncontrolled hypertension, arrhythmia, coronary calcifications, and exacerbations of asthma-COPD overlap syndrome) and (2) advanced age (“already over 70 years old at the time of the alleged commission of the offense”).

Veering away from “strong evidence of guilt” as the only constitutionally-mandated ground to grant bail in capital offenses, the Court said that the SBN “arbitrarily ignored the objective of bail to ensure the appearance of the accused during the trial…”

True, this 8-4 decision was heavily criticized by the dissenting opinion of Justice Marvic M.V.F. Leonen. However, whether we agree with it or not, once affirmed to be final (through a denial of the pending motion for reconsideration), it becomes a binding precedent.

Citing the equal protection of the law, GMA’s lawyers could obtain bail if they can show that, like Enrile, she is not a flight risk because of her fragile health and advanced age.

Ineluctably, GMA could secure her longed-for temporary liberty because of that Supreme Court decision, not of the much-publicized WGAD opinion.

source:  

WITH DUE RESPECT 

By: Artemio V. Panganiban

Philippine Daily Inquirer

TPP is good for the Philippines

The Trans Pacific Partnership (TPP) has become a major political issue in the American elections. When Hillary Clinton was Secretary of State, she called TPP the “gold standard for trade agreements.” Now that she is running for the Democratic Party presidential nomination, she has reversed her stand because of political pressure from American labor unions who believe that the agreement will result in the loss of manufacturing jobs in the USA.

In the Philippines, TPP is hardly discussed except in business circles. Even among business leaders, there is still very little appreciation of its beneficial effects on the Philippine economy. For instance, some claim that the contents of the TPP Agreement is a secret. The TPP document has 30 chapters which can be downloaded and read by any interested party. There is also a summary that lists the key features of the agreement.

The Trans Pacific Partnership is envisioned to be similar to the European Common Market. The goal is to eliminate trade barriers especially tariffs and quotas among countries in the Asia Pacific region. The first batch of signatories included Australia, Brunei, Canada Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam.

Although the Philippines is not in the first batch, Foreign Affairs Secretary Albert del Rosario stated, two months ago, in a round table discussion, that the Philippines had begun preliminary negotiations to join the second batch of TPP countries. Trade Secretary Gregory Domingo has also said: “I want to state clearly and irrevocably that we [ Philippines] want to join the TPP.”

The first batch of TPP has four ASEAN members – Brunei, Malaysia, Singapore, and Vietnam. In a recent Bloomberg report, it said that the biggest beneficiary of the TPP would be Vietnam because it would have the lowest wage policy compared to the other member-nations. Once the Philippines joins, this nation will certainly be one of the biggest beneficiaries of this new Common Market.

I recently read a warning that joining the TPP might result in the Philippines being flooded with duty free American made products. Obviously, the writer has not fully realized the transformation of the world economy in the last five decades.

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It is true that there are certain products like aircraft and heavy machinery that are made in the United States. But the USA has long ceased to be an industrial power. Even iconic American products – Apple, Barbie, Nike – are all produced outside the USA. On the crowded streets of Metro Manila, it is Japanese, Korean and German cars that dominate with only a scattering of American cars. The steel industry is now dominated by China, India and Germany – not the United States.

One of the biggest automotive parts company in the world is Continental Temic, a European company. It has factories in China and two plants in the Philippines. Two of the biggest manufacturers of printers in the world are Japanese – Brother and Epson. Both of them have plants in China and are expanding in the Philippines. In fact, there are reports that Epson expects to have 20,000 workers in its plant sites in the CALABAR region. South Korea is another prospective member. Its two biggest companies are Samsung and Hyundai which has manufacturing and shipbuilding facilities in the Philippines but also in Vietnam and China. These are the types of companies that are expected to expand once the Philippines joins the TPP.

Textiles and apparel are among the product categories that will be duty free. The major textile and apparel countries – China, Bangladesh, Cambodia – are not going to join the TPP. This presents a golden opportunity for the Philippines to revive its textile and apparel industries.

Since China is organizing its own Common Market, the manufacturing hub of the TPP will be Vietnam and, hopefully, the Philippines. However, Indonesia is also expected to join and is also another potential hub. This means that the Philippines cannot afford NOT to join.

The United States is interested in joining because the TPP will open up new markets for its service industries. This will present potential competition for local companies in the financial and professional services. However, this also presents new opportunities for the Philippines.

The principal customers of our Business Process Outsourcing (BPO) industry are American service companies in industries like financial service, accounting, legal, marketing, entertainment, animation and technology. As the American service industries grow, the Philippine BPO industry will also grow and will have preferential status if the Philippine joins the TPP since its major competitors – India and China – are not expected to join.

In agriculture, importation of beef, wheat, corn, and dairy products will be duty free. But there is now the opportunity to export, duty and quota free, our own farm products – banana, pineapple, coconut, mango, durian – to Japan, Australia, Canada, and the United States.

The 12 countries now in the TPP account for 40% of the world economy. The next batch of nations will include, South Korea, Indonesia, Taiwan and the Philippines. The TPP will create the most powerful and wealthiest economic region in the world.

Among Filipino companies, there will be winners and losers. But for the nation as a whole, joining the TPP will mean more jobs, faster economic growth and reduction in poverty.

The Philippines must join the Trans Pacific Partnership – the TPP.

source:  BREAKTHROUGH By Elfren S. Cruz (The Philippine Star) 

Statement of the Philippine Council on Foreign Relations on foreign ambassadors’ statement of support for BBL

THE European and other ambassadors’ statement appearing in media today supporting the CAB and the BBL, whose constitutionality has been challenged by various sectors of Philippine society and which is now pending in the Supreme Court and being deliberated in Congress, show a lack of respect for Philippine laws and can be considered an undue interference in the affairs of a nation to which these ambassadors have been accredited.

The joint statement is allegedly an expression of “concern(ed) with the delay in the implementation of the CAB,” according to the news reports.

Specifically, the concern is in regard “to the long term political, economic and social pillars that will bring the peace dividend to the country as a whole” according to the “unity” statement.

The “unity” statement “ask(s) for a continued commitment … to enable the Bangsamoro people to form an effective and inclusive, devolved administration as called for in the 2014 Comprehensive Agreement on the Bangsamoro.”

The final point in the “unity” statement declares that “it is important that work on normalization progresses credibly.”

The Philippine Council for Foreign Relations take exception to this manifesto for the following reasons:

Firstly, the above is a value judgment on the impact of the CAB/BBL of the nation.
Secondly, it is politically incorrect for foreign diplomats to comment on matters that are of purely domestic concern in their host country which is a violation of the historically-honored rule of non interference in domestic affairs of other countries.

In the above instance, this is compounded by the fact that:

1. The matter is currently being deliberated before the Congress of the Philippines

2. The matter is now “sub-judice” before the Supreme Court of the Philippines
Before the statement is construed as exerting of undue influence by the diplomats on branches of this government, the PCFR therefore requests the above group to cease and desist in making statements like the one they have made and make an apology to the Philippine government.

Signed for the Trustees and the general membership by Amb. Jose V. Romero, Jr. Ph.D.
President, Philippine Council for Foreign Relations, Inc.

The PCFR is composed retired ambassadors, multi-sectoral organizations, retired flag officers, members of academe, businessmen, and distinguished members of civil society.

source:  Manila Times

Elections, information, and governance

It’s that time again, the filing of certificates of candidacy that’s the prelude to the months-long extravaganza-cum-freak show that we call elections.

Thanks to the media focus on who’s running for such national offices as the Presidency, the Vice-Presidency, and the Senate, an observer unfamiliar with the Philippine system can’t be blamed if he or she were to conclude that Philippine elections have nothing to do with community issues.

The reality is that the Philippines has the distinction among its neighbors -- all of which have parliamentary systems of government -- of holding national elections every six years and local elections every three. In 2016 as in 2010, both national and local elections will be held, which imposes on the electorate the immense burden of having to choose from among tens of thousands of aspirants -- from President of the Republic to municipal councilor -- the people who will govern in their name.

Few will argue that the voters always, or even often, choose wisely.

The evidence is not only in the huge mistakes they’ve made in electing clowns, scoundrels, thieves, morons and even killers to office. It’s also evident in the unmitigated gall with which the unqualified, the corrupt and the simply clueless presume that they stand a chance of being elected to even the highest office in the land. (How else explain Emmanuel “Manny” D. Pacquiao’s decision to run for Senator despite his putrid attendance record in the House of Representatives, or former actress Alma Moreno’s decision to seek the same post in the same chamber in which Recto, Laurel, and Tañada distinguished themselves except the assumption that the voters will elect anyone to office?)

I do not necessarily mean the so-called “nuisance candidates,” some of whom have been and will be so declared because, according to the Commission on Elections (Comelec), they can’t wage “a credible nationwide campaign” (meaning they don’t have the billions needed to compete with the hierarchs of the political dynasties that have monopolized political power in this country for decades).

With the exception of those who are certifiably insane, it is certainly possible that even those who have been so declared have sound ideas. I am instead referring to the clueless, but who not only have the means and the political machinery to campaign throughout the length and breadth of this archipelago, but also the billions needed to keep themselves in the public eye through the media between now and May 2016.

No matter how hard the Comelec may proclaim the sanctity and seriousness of Philippine elections, the results are nevertheless almost always disappointing, primarily because the money-driven process is itself flawed, and would even be laughable if its consequences weren’t so tragic.

And yet elections are the only means through which an allegedly free people can delegate their sovereign powers of governance to leaders they can trust to enforce their will. The results suggest, however, that while most Filipinos whine about corruption, joblessness, lack of social services, etc., etc., the kind of people they themselves elect suggests that they’re not really serious about solving those problems. Of course it has happened that to correct their mistakes, the electorate -- or at least some of them -- have removed the officials that they themselves elected.

Electing the right officials isn’t the same as removing the wrong ones, whom they can oust through direct action, recall through a petition, or impeach through Congress.

The first has twice happened in the Philippines, the first time in 1986 when a civilian-military mutiny overthrew Ferdinand Marcos (who had been twice elected to the Presidency), and the second in 2001 when Joseph Estrada, despite his having amassed an avalanche of votes in 1998, was ousted in the aftermath of the failure of the attempt to remove him through impeachment. Only local officials have been recalled and by-elections subsequently held in some communities in the Philippines since 1986.

But none of the above options to correct electorate error would be necessary if voters chose their leaders carefully. The Philippine experience with EDSAs 1 and 2 may be a positive indication of the extent to which Filipinos are prepared to correct their mistakes at the polls. But it also does show how flawed their judgment has often been.

Other than through fraud, violence, intimidation and bribery, the bad choices the Filipino voter too often makes have been attributed to the insufficient, distorted, or outright absence of accurate and meaningful information. It’s a deficiency that leads citizens into voting on the basis of name recall, or such entertainment rather than political values as the ability to sing and dance, and even how pretty a candidate is.

While the persistence of political dynasties and all its consequences limit electorate choices to candidates with whose names they’re already familiar, awareness of the merits of other candidates and the social, economic, and other issues that need to be addressed and the policy options available can theoretically help correct that, and the press is the only institution that can provide the necessary information quickly and on a wide scale.

Although the coverage of Philippine elections is far from perfect, in the last two Philippine elections (2010 and 2013) the major players in Philippine media seem to have recognized the inadequacy of their past, mostly reactive reporting by interviewing lesser known candidates, providing readers, viewers and listeners the track records of candidates, and/ or pressing them to commit to the adoption of clear policies on current issues.

But that’s only at the level of the so-called national media.

An executive of a major broadcast network once declared -- apparently as something she had just discovered -- that most of the voters in local communities are not familiar with the issues, but saw no connection between that fact and media performance. Indeed little has changed at the community level, with voters being besieged by candidates who publish newspapers for the duration of the campaign, who buy radio stations outright, pay off local journalists for favorable coverage, finance block-timers, or are block-timers themselves.

The affiliates of local networks are in default, because they’re unable or unwilling to provide the information that could temper the influence of bought and paid-for reporting and comment.

The coverage of elections at the local level therefore remains mostly incomplete, distorted and biased -- the exact opposite of the informative and fair reporting that’s most needed.

The consequences are not limited to bad choices at the local level, in the offices of which warlords, members of political dynasties, the corrupt and even the criminal proliferate. The consequences also include voting for candidates for national office on the basis not only of the “command votes” local political kingpins control, but also of assumptions drawn from the same absence of reliable information in many communities.

And yet the challenge to the media is most urgent at the local level, where the most relevant information is needed -- but where the news media are failing to provide the information the voters need. The crisis of information during elections inevitably leads to a crisis of governance, whether at the national or local levels through its inevitable consequence: the election of incompetent and corrupt leaders.

Luis V. Teodoro is on Facebook and Twitter (@luisteodoro). The views expressed in Vantage Point are his own and do not represent the views of the Center for Media Freedom and Responsibility.

www.luisteodoro.com

source:  Businessworld Column of 

Vantage Point 
Luis V. Teodoro