The legal argument against martial law

By: Oscar Franklin Tan, Philippine Daily Inquirer 

Who sends Tyrion Lannister to a sword fight and Jaime Lannister to a negotiating table? Sadly, this is what the most vocal legal critics of martial law have done in the past 18 months.

Martial law is our most formidable emergency power. Deploying it merits serious political and legal questions.

The political asks: Is martial law correct? The legal asks a more basic question: Is it even permitted given the facts?

Law sets minimums but cannot decide for us.

How confused has the legal debate been?

Initially, for example, critics argued a president may not declare martial law if not recommended by his defense secretary.

No judge could accept this. Our Constitution has no such requirement and it is illogical because a president may overrule or even replace his defense secretary any time.

Sensible legal advocates frame:
1. What actual powers does martial law grant?
2. How has martial law actually been used since May 23, 2017?
3. What military plans for 2019 cannot be pursued without martial law?

Visualize the Marawi siege.

At its height, Mayor Majul Gandamra and policemen barricaded themselves in Marawi’s City Hall, preventing the Islamic State flag from being flown there. City hall reopened days later, although it was too dangerous for staff to come to work daily.

This is the extreme scenario martial law solves. With the mayor fighting for his life and other officials dead or in hiding, martial law empowers a general to intervene and restore government.
But this picture equally demonstrates when martial law is irrelevant.

If no bullets are flying and City Hall is open, what does martial law authorize the general to do that he cannot normally do? Remember, the military already has broad powers, to match its broad responsibilities.

Article VII, Section 18 of our Constitution primarily requires an “actual” — this is the technical legal term, contrasted with threatened or imminent — rebellion to declare martial law.

Our Supreme Court’s Lagman decision, in February 2018, allowed a second martial law extension. It accepted that an “actual” rebellion tried to remove territory from the government. The military is still chasing rebels across Mindanao as they try to regroup, recruit new members and restart the fighting.
How does one dissect planned action in 2019 in a legal context?

If the plan is for a general to run Marawi due to a new attack, this may meet Article VII, Section 18.
But if the plan is to chase rebels into mountains and swamps, troops may be transferred to Mindanao under normal powers. And generals do not need to temporarily take control of mountains and swamps from civilian leaders.

If the plan is to step up intelligence and counter terrorist recruitment, the military is also already authorized. And only new legislation, not martial law, would give them additional budgets and new legal tools for intelligence.

If the plan is to improve peace and order and scour the countryside for loose firearms, then this is a job for police, not the military. Peace and order is a civilian task and the police is a civilian agency.
Remember, the military may be deployed to assist police under normal powers, without martial law, as they are to help build roads in remote areas and rescue flood victims.

One concludes martial law is the wrong legal tool to achieve many military goals, as opposed to new legislation, increased budgets and troop redeployments. It is thus crucial to set politics and egos aside and have the separate legal debate free of drama.

The goal must be to deploy the best legal tools to allow our soldiers to complete their mission safely and allow Marawi to rebuild with dignity.

Further, we have an obligation to the next generation to document how the new martial law was implemented in fidelity to our Constitution.

But we must understand the difference between political and legal arguments, as we do the difference between standing beside Tyrion and beside Jaime in a sword fight.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.

Barry Gutierrez saves ICC withdrawal case

If the International Criminal Court (ICC) withdrawal hearings on Aug. 28 and Sept. 4 were “Infinity War,” Centerlaw veterans Romel Bagares and Gilbert Andres were Captain America and Black Panther, fighting on after teammate Ray Paolo Santiago completely surrendered to Justice Marvic Leonen’s Thanos-like opening punch.

Former Akbayan Rep. Barry Gutierrez was Thor, arriving in the nick of time with bolts of lightning to even the odds.

This is not a human rights case. It is a highly technical, sleep-inducing structure-of-government case about who authorizes termination of a treaty, whether ICC, military defense or double tax.
The president must sign a treaty, then two-thirds of the Senate must concur.

The Avengers argue that Senate concurrence is necessarily required to terminate. A president should not be able to single-handedly terminate the ICC treaty, subjected to 11 years of political debate. If a new president could after an election, it would undermine the Senate as a check-and-balance institution.

The rebuttal is, if the Constitution is silent, we should not infer new powers for the Senate.
Detained Sen. Leila de Lima could not argue for petitioning senators. They drafted Gutierrez only after the first hearing, frustratingly leaving Thor out of half the movie.

Leonen pounced on this. He spent the first belabored hour asking Santiago whether his clients (cause-oriented groups, not senators) could prove “direct injury.”

This is a standard freshman midterm question.

Direct injury must be shown in a constitutional case. Senators could, since they were given no chance to vote on the ICC withdrawal.

As an exception, ordinary citizens may question lack of authority as “public right.” In the 2003 Francisco case, citizens blocked Chief Justice Hilario Davide Jr.’s impeachment when Davide refused to sue in his own court.

Astoundingly, Santiago repeatedly but unqualifiedly conceded there was no direct injury. He then reframed the issue as a loss of citizens’ ICC remedies, not the narrow question of who authorizes treaty termination.

Santiago went so far out of bounds that he argued to Justice Andres Reyes that the United States, Russia and China must join the ICC.

Leonen devastatingly asked if he compels the Supreme Court to uphold his politics. When Santiago backpedaled, Leonen accused him of changing theories midway.

Sympathetic justices spoke as the experienced Bagares and Andres held their ground.
Senior Associate Justice Antonio Carpio argued that a treaty has a law’s status, and the president alone may not repeal laws. Justice Francis Jardeleza posited that the loss of ICC remedies amounts to a loss of the constitutional right to liberty. Justice Alfredo Caguioa argued that this loss amounts to direct injury for any citizen (the public right exception).

Bagares impressively rode Jardeleza’s US Youngstown Steel vs Curtiss-Wright framework. Caguioa commended him as petitioner in the 2005 Pimentel Jr. case to compel ICC ratification.
Gutierrez opened strong in the second hearing, discarding Santiago’s tangents. His argument was that if a mere executive agreement cannot amend a treaty, surely a president cannot terminate one alone.
Leonen pounded on procedure for half the hearing, with Justice Noel Tijam. They argued that the Senate never formally adopted a resolution asserting a need to concur, even if 14 out of 23 senators signed.

This dangerously alluded to the US Goldwater case, where one justice argued to dismiss because Congress as a body never officially opposed a termination. Gutierrez countered with Philippine cases where the senators’ right to sue is individual.

Jardeleza added that we do not follow US tolerance of unilateral termination. More recent concurrences now state a need to concur in terminations.

Will the Avengers fall before Leonen? Despite other receptive justices, he did cosmic damage, outlining how to dismiss purely on procedure. Leonen would even cut off Gutierrez and Bagares when they replied beyond his narrow, leading questions.

The show resumes on Oct. 9.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.

source:  Philippine Daily Inquirer Column By: Oscar Franklin Tan

Meanness of spirit

In the dark days of apartheid in South Africa, detainees who, despite being white, resolutely opposed the white supremacist regime, were often subjected to mean punishment. The scholar and writer Ruth First, charged with treason, was the first white woman to be jailed under the so-called 90-Day Detention Law.

In her memoir, “117 Days,” she recalls how, after being held in solitary confinement for 90 days, she was told she was free to go. Her jailers let her make a phone call to her family so she could be fetched. Then, as she prepared to leave, all dressed up for that joyous day, she was told she was being rearrested.

She writes: “Left to face my second round of ninety days, I was filled with loathing and bitterness against the Security Branch detectives who had stage-managed my humiliating phony release and then rearrest; but I was also overcome, for perhaps the first time since my initial arrest, by a wave of self-pity… I sat on the edge of the bed, still in my navy outfit, and shook with sobs.”

One can only suppose that this is more or less how President  Duterte wants Sen. Antonio Trillanes to feel after invalidating the amnesty the previous administration had granted to the young senator, and ordering his immediate rearrest. He probably expects to see this angry rebel, who has minced no words in his attacks against him, lower his head, helpless in his loathing and bitterness.

If so, Mr. Duterte and his willing band of enablers and implementers do not know a thing about the spirit of defiant heroism. Ruth First never gave her captors “the satisfaction of an outburst that would reveal my feelings.” She struggled to keep a “tight hold on my emotions and to let no sound of them escape me,” until she knew she was completely by herself.

One expects no less from Sonny Trillanes or, for that matter, from another jailed senator, Leila de Lima. They may occasionally cry or feel depressed.  But they have proven themselves to be brave souls beyond intimidation. Trillanes, a veteran of prison life and an irrepressible rebel against all injustice and corruption, seems to flourish even more when he is targeted. Bolstered by her unshakable faith in God and by the steady support of family and friends, De Lima keeps busy in detention issuing her own critical analysis of the nation’s situation, and shows no signs of despair, exhaustion or regret.

If an assassin’s bullet or poison does not stop them, they will surely outlive Mr. Duterte.
In contrast, by allowing his primal thirst for vengeance to define his presidency, and by finding common cause with those who seek to regain public esteem after the people had rejected them for betraying the public’s trust, Mr. Duterte has hardly any time left for the urgent matters that demand the singular attention of the nation’s highest office. Rushing back from another overseas trip, he is no doubt haunted by the thought that some of history’s tyrants lost their positions while they were abroad.

He comes home to a country reeling from the effects of rapid inflation, the sharp depreciation of the peso, and, amid a sustained decline in the value of stock market shares, a growing skepticism about the nation’s future. The people may care little for what happens to De Lima and Trillanes, perhaps even seeing in their travails a warranted comeuppance. But, they will not keep quiet when the prices of food and other basic necessities begin to rise way beyond their earning capacities, when the purchasing power of their money is depleted daily, when they lose their jobs, and when they see their children die from lack of medicines and medical care. That is when they begin to ask where the President is, or whether he knows what he is doing.

For many people, the economy, the law, and politics itself, are complex things that only a few can really fathom.  But, they can quickly sense when their leaders are being honest with them, or when they are feeding them nonsense.

Revoking the amnesty that freed Senator Trillanes in 2010 on the ground that he never filed an application for amnesty and never admitted guilt is utter nonsense. Ignoring news videos showing him swearing to the truthfulness of the information he wrote in his amnesty application, the government insists he must produce a certified true copy of his application for amnesty because the original allegedly could not be found in the government’s files. Unless there is valid reason to think that Trillanes’ amnesty had been fraudulently obtained, to demand to see the application form is sheer persecution and harassment.

We apply for all kinds of documents during our lifetime—passport, a driver’s license, a clearance, a marriage license, etc.—knowing fully well that we are not expected to keep a certified true copy of the application itself. We make sure we have the passport, license, permit or certificate at hand when demanded by persons in authority. But, the duty to keep the various forms that have to be accomplished in the course of the application process lies solely with the government office or agency concerned.

The primary function of the law in any society is to stabilize expectations about what is allowed and what is not. Without law, behavior would be subject to the whims of the powerful. All contracts, licenses, passports and government-issued permits would be treated as fake, unless the bearer could prove that he or she went through the entire process of applying. There is no apt word to describe this Kafkaesque attitude but meanness of spirit.

public.lives@gmail.com

source:  Philippine Daily Inquirer Column By: Randy David

The Great Inflation

Of expectations, that is. When it was announced that the President would address the nation on Sept. 11, the generation of martial law babies and those older immediately (and ominously) connected it with the great dictator’s birth anniversary. By the next day, the Armed Forces had to issue the kind of statement that triggers panic — don’t panic, it said.

Reacting to social media chatter and reporters picking up on the buzz and asking the AFP if, indeed, there was an ongoing movement of armored military vehicles, the Armed Forces replied, no; but even if there were — and there are, and have been, and will be — movements of armored vehicles, that’s to be expected in the vicinity of armed camps, so stay calm, don’t panic, do not fall prey to the evil designs of rumor-mongers.

But that can be explained away as an excess of zeal on the part of the military. What really put the current state of the ruling Noob Society on full display was when the Palace made an announcement early yesterday afternoon. The next 20 minutes or so that gripped the nation can be summarized as follows:

Presidential Communications Operations Office: No presidential presser anymore, we can’t say why.

Bong Go: No presser but speech to proceed at 3:15.

Salvador Panelo: No presser was scheduled in the first place.

Harry Roque: No cancellation happened; what was scheduled will push through but under modified format.

Indeed, what there would be, Roque purred, was a “tête-à-tête.” Panelo would read questions from the media, which, however, would be barred from the actual tête-à-tête. The Malacañang Press Corps had been biding its time, literally kept in the dark — someone, somewhere, didn’t think it was necessary to switch on the lights in the media briefing room. But rumblings of discontent, shared by foreign and domestic media practitioners alike, provoked a withdrawal of questions from the forthcoming tête-à-tête.

In the end, the tête-à-tête proved a test of patience, as the President’s complexion bore a startling — and distracting — resemblance to Among Ed Panlilio (hopefully, a makeup artist somewhere is going to take the blame). A foreign journalist from abroad commented online that it was a scene straight out of the Vladimir Putin playbook. For the domestic crowd, the only thing missing was the late Ronnie Nathanielsz, though Panelo proved an equally obliging substitute — exclaiming, at one point, with pointed enthusiasm, that the President looked very healthy, indeed.

The President ended up revealing what had been clear since his particularly ill-tempered press conference when he returned earlier than expected from Jordan: The scheme of the Solicitor General to pin down Sen. Antonio Trillanes IV has caused unforeseen complications, not just in terms of a debate within the Armed Forces and general contempt over the move’s legal reasoning on the part of the legal community, but also the continuation of the erosion of the perception that the President’s word is, literally, the law.

Judges dug in their heels — or, to be precise, shuffled their papers — saying they had to hold hearings and study the case. This led to the military and police taking on a more neutral stance, subordinating their actions to the courts, leading, in the end, to a swift, surprising consensus to let the courts handle matters without rushing to an actual arrest.

If the past two months have seen the startling transformation of the President from a strongman whom no one dared oppose, to a tired, cantankerous senior citizen overwhelmed by events, then the Trillanes saga offered the chance to prove who’s boss. It’s turning out that there remains residual self-respect among legal practitioners to resist the Executive’s whims—gently, but firmly enough (so far).

The President’s bullying and hectoring has found its match in Trillanes, who has never been subtle and whose lack of subtlety is apparently tailor-made for confronting the current Chief Executive. Indeed, the whole message in the presidential tête-à-tête, if there was one to be found, was that the President has discovered the limits to his power and charisma. There are lines more and more of his subordinates won’t cross. He needed to save face, and so he had a chat on TV.

mlquezon3@gmail.com

source:  Philippine Daily Inquirer Column By: Manuel L. Quezon III

DU30’s prerogative?

AS this is written, President Rodrigo Duterte is about to address the nation in a live TV broadcast. Malacañang has given no indication what exactly he intends to talk about. He arrived last Saturday from a week-long arms-shopping trip to Israel and Jordan, which did not bear much fruit. The news cycle has since been dominated by his controversial attempt to revoke a 2010 presidential amnesty granted by then President Benigno S. Aquino 3rd, with the full concurrence of Congress, to former Navy lieutenant-turned-senator Antonio Trillanes 4th for his participation in three destabilization efforts in 2003, 2006 and 2007 against the Gloria Macapagal Arroyo government.

This is now the subject of a raging debate, and no one has accused DU30 of winning it.

It is not for me or anybody else to tell him what to talk about. But he has a vast field to cover if he wants to be informative and forthright. He could begin by talking about his Israeli and Jordanian trips: what happened in those visits? He traveled with a planeload of 400 people, according to the news reports; the taxpayers would like to know if they were all freeloaders who may be part of the reasons why we now have Southeast Asia’s highest inflation rate of 6.4 percent.

What happened in Israel
In Jerusalem, a number of good things happened. DU30 discovered the God of Abraham is real, all-wise and all-powerful, and not in the least “stupid”; that Hitler was absolutely insane for ordering the Holocaust which killed 6 million Jews; and that he owed former US President Barack Obama (who is incidentally not a Jew) an apology for calling him a “son of a whore” in 2016. It would be good to hear DU30 say something about all these. But more importantly, it would be good for him to tell us what happened to his well-announced plan to acquire the most modern military arms and equipment from the Jewish state.

By this, he had intended to show his “independence” from the US, the country’s historic ally, which he accused of giving the Philippines only hand-me-down arms and equipment. Since then, US Secretary of State Mike Pompeo, Defense Secretary James Mattis and Commerce Secretary Wilbur Ross have written DU30, presumably on behalf of President Donald Trump, a letter offering the Philippines a range of modern military equipment. Is it true Prime Minister Benjamin Netanyahu showed no interest whatsoever in selling DU30 any Israeli arms and equipment?

What happened in Jordan
It was in Amman, Jordan where DU30 finally got some discussions on military purchases going. Jordan agreed to transfer two refurbished Bell A-HI Cobra attack helicopters to the DU30 government by July. Unless I am completely mistaken, these are slightly used US-made helicopters. But the more interesting question about the Jordanian visit was that it was cut short by one day without any official explanation for it. Was there anything Malacañang failed to tell us? Perhaps there was.

Earlier in March, DU30 had a lively exchange with Jordanian Prince Zeid Raad Al Hussein, the UN High Commissioner for Human Rights from 2014 to 2018, who once played a central role in organizing the International Criminal Court at the Hague, where a private party has brought allegations of crimes against humanity against DU30.

Zeid said DU30 needed to be psychiatrically evaluated after he threatened to go after Agnes Callamard, the UN special rapporteur on extrajudicial killings, who has been trying to inquire into the drug killings in the Philippines. DU30 said Zeid, coming from a monarchy, was unfamiliar with the ways of constitutional government. Having apologized to Obama while he was in Israel, people expected DU30 to apologize to Zeid, a blood relative of King Abdullah 2nd, before or during his visit to Amman. But he did not, so people are asking whether that had anything to do with his decision to shorten his four-day visit. It would be good to hear from DU30 on this.

The Trillanes amnesty
Or he could explain more comprehensively his attempt to cancel Aquino’s final and irrevocable amnesty in favor of Trillanes. This has been lengthily discussed in the press, but his latest statement seems to provide a definitive proof of how he completely misunderstands the constitutional powers and prerogatives of the President. He says his attempt to cancel Aquino’s Proclamation 75 of November 24, 2010 by his own Proclamation 572 on August 31, 2018 is an exercise of “presidential prerogative.”

This is a complete misreading of the Constitution. The president’s power and prerogative, under Article VII, Section 19 of the Constitution is “to grant amnesty with the concurrence of a majority of all the members of the Congress.” It is not the opposite. The Constitution does not grant the president the power to revoke or cancel any amnesty previously granted by another president under the same provision, even with the concurrence of all the members of Congress.

Least of all does it grant him the power to revoke any such amnesty without the concurrence of any member of Congress. Some propagandists have tried to advance the view that while the consent of Congress is necessary and essential to give validity to the president’s amnesty, it does not share the president’s power to issue such amnesty. This is probably the last word in sophistry, but you don’t need to have studied Aristotelian logic to show this is bunk. The power to grant amnesty is defined by the Constitution as a shared power of the president and the Congress.

Gazmin’s intervention
The only pro-government argument that seems worth exploring is the one advanced by the most unlikely source, the presidential counsel Salvador Panelo, which claims that the official who granted Trillanes and company their amnesty was not Aquino himself but only his Secretary of National Defense, Voltaire Gazmin, who had no constitutional authority to do so. Since Aquino could not delegate his power to Gazmin, if it were shown beyond doubt that the amnesty was granted by Gazmin rather than Aquino, then it would be void ab initio.

But was that, in fact, the case?

It appears there is no dispute on the authenticity of Aquino’s signature on Proclamation 75; Gazmin intervened solely as processing officer, pursuant to the rules of procedure in the processing of amnesty applications. His participation could not invalidate the amnesty unless it was shown that he, rather than Aquino, granted amnesty to the applicants without legitimate constitutional authority. If DU30 can show this to have been the case, then he could question not Trillanes’s amnesty alone, but that of 38 other officers and 53 enlisted men as well. But can he?

Ousting DU30
This is also a good time for the President to talk with some coherence about his claim that certain groups are out to oust him in October. He has identified three groups, but Defense Secretary Delfin Lorenzana has confirmed the alleged threat from only one group — the Communist Party of the Philippines/New People’s Army/National Democratic Front. The communists reportedly started planning their move against DU30 in 2016, then finalized it in 2018. As an old student of Philippine politics, I have serious reservations about it. Most, if not all, of DU30’s problems are self-inflicted.
But assuming Lorenzana is correct, DU30 should have been the first one to know about it. Why then did he have to appoint seasoned members of the CPP/NPA/NDF to the Cabinet, give imprimatur to the idea of a coalition government, and allow his Cabinet secretary, the rebel ex-priest and vice chairman of the NDF, Leon Evasco Jr., to conduct his grassroots campaign for the development of a Philippine socialist state?

Why did he make a big show of separating economically and militarily from the US and aligning himself with China and Russia against the world? And how does this explain his latest public statements that the CIA is out to kill him? Will he care to tell the nation whether he sees an active alliance between the CIA and the communists? Or will he care to remind the nation that he had long warned us that only two out of his five statements are to be taken seriously?

The economic crisis
Did DU30 decide to speak to the nation because the looming economic crisis threatens to go out of control? If so, it will not be enough to blame Donald Trump’s “tariffs” for the skyrocketing consumer prices that have given us the highest inflation rate of 6.4 percent nationwide (9 percent in Bicol) in all of Southeast Asia. The people must have enough food on their table and must not be made to choose between “rice with bukbok” (weevils) and “bukbok with some rice,” and imported galunggong.
Faced with the massive complaints against all the negative effects of the TRAIN (Tax Reform for Acceleration and Inclusion) Law, DU30 should decide whether the problem could be solved by scrapping the said law, or simply by renaming it TRABAHO (for Tax Reform for Attracting Better and High-quality Opportunities). Propaganda allows the government to tell the starving masses how much they are enjoying the bounties of good government.

DU30 will have to decide whether Davao should carve the biggest share of the national budget while the other regions get nothing. He will also have to decide whether the family of his special assistant Christopher Lawrence “Bong” Go, whom he had long described as a “billionaire,” should have all the infrastructure contracts denied to more deserving competitors. Finally, he will have to decide whether or not to keep the large number of incompetent and corrupt officials who have become an albatross around the neck of his administration.

I do not expect DU30 to have the courage to fire any of these scoundrels right now, but never before have I felt any desire to be wrong about this ex-mayor of Davao.

IN MEMORIAM. It is with the deepest sorrow that I share with friends and readers the news about the passing of Ambassador Jose V. Romero Jr., 84, in Baltimore, Maryland. The information is sketchy, but everything is being done by his bereaved family to make sure his remains are brought to Manila as soon as possible. Joe served as Philippine ambassador to Rome, and as permanent representative to the Food and Agriculture Organization and the International Fund for Agricultural Development.

Until his passing, he chaired the Philippine Council for Foreign Relations, and was a professorial lecturer in political economy at the University of Asia and the Pacific, where he earned a doctorate in development management. A product of Trinity College, Cambridge, he took graduate studies in economics at Georgetown University later. One of his enduring causes was to fight for the coconut farmers. A mutual friend Charlie Avila was able to pay him his last respects before he passed. “Finish the fight,” he told Charlie before he expired.

Joe contributed occasional pieces of substance to the Manila Times. He had a passion for excellence and he lived the life of a devoted Catholic Christian gentleman. I ask the pious reader to offer a prayer for the repose of his soul.

fstatad@gmail.com

source:  Manila Times Column By FRANCISCO S. TATAD

House won’t implement unconstitutional Ombudsman order on Garcia: Alvarez

Speaker Pantaleon Alvarez today said the House of Representatives would not implement the order of the Ombudsman for the dismissal of Deputy Speaker, Cebu Rep. Gwendolyn Garcia, because it has no constitutional basis.

“Definitely not,” Alvarez said in a phone patch interview, when asked if he would implement the order of the Ombudsman.

The Office of the Ombudsman announced today that it ordered the dismissal of Garcia in connection with her actions when she was still Governor of the Province of Cebu.

According to the Office of the Ombudsman, a copy of the order will be provided to the Office of the Speaker for appropriate action.

“The appropriate action is not to implement the order. Why? Because there is nothing in the Constitution that allows me to do that,” Alvarez said.

He stressed that he found no basis in the Constitution for the House to implement the dismissal order against Garcia.

“In fact, it is not in the power of the Ombudsman to discipline much more to remove any member of the House of Representatives,” Alvarez said.

Since the Constitution gives the House the power to discipline or even expel any of its members, Alvarez said implementing the Ombudsman’s order would constitute violation of the charter.

“So pag ginawa ko yan I will be violating the Constitution, since merong nakalagay sa Constitution na kami lang yung may kapangyarihan to discipline or remove a member of the House of Representatives,” Alvarez said.

Paragraph 3, Section 16 of Article VI of the 1987 Constitution provides that “Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member.”

Besides, Alvarez noted that the dismissal order against Garcia was issued in connection with her actions as a governor, not as a lawmaker.

“Yung dismissal order na yan, ang ni-recommend mo dyan yung dismissal niya as a governor, not as a congressman. Baka late yung desisyon, late yung order. Dapat nilabas yung order nung siya ay isang gobernador pa lang,” Alvarez said.

However, Alvarez refused to comment on the claim of Garcia that the timing of the issuance of the order is suspect because it came at a time she was very active in her participation in the impeachment proceedings against Supreme Court Chief Justice Ma. Lourdes Sereno.

“Wala naman akong pakialam diyan sa timing-timing na yan kung ano man yan. Wala rin akong pakialam kung ano man yung laro diyan. Ang sa akin lang, yung legal basis lang. That is, kung merong legal basis yan base sa ating Saligang Batas ay gagawin ko. Pero kung wala naman I will not do it,” Alvarez said.

source:  House of Representatives

Carandang case: Impeachment for Morales or Duterte?

MANILA, Philippines – In the standoff to suspend Overall Deputy Ombudsman Melchor Arthur Carandang, who committed an unconstitutional act? The one who ordered the suspension, or the one defying it?

Lawyer Jacinto "Jing" Paras, newly-appointed labor undersecretary, is appealing to lawmakers to sign their names on the impeachment complaint against Ombudsman Conchita Carpio Morales that they filed before the House of Representatives. It has not moved since it lacks the required endorsement.

“If indeed they are allies of the President, then there is no more obstacle to sign and endorse the impeachment complaint against Morales, otherwise, Morales will continue to be arrogant and defiant, and will undermine the powers of the President,” Paras said.

Law professor Tony La Viña said that if President Rodrigo Duterte insists on enforcing a provision in law that has been voided by the Supreme Court, then he is committing a possibly impeachable offense.

Malacañang issued the suspension order against Carandang despite a ruling by the Supreme Court in 2014 that declared unconstitutional the provision in the Ombudsman law which previously gave the President the power to discipline Deputy Ombudsmen.

“The current law now is that the Deputy Ombudsman is not under his disciplinary authority as ruled by the Supreme Court. The President took an oath to implement our laws faithfully. If he acts contrary to that in the Carandang case, he is violating his oath of office and culpably violating the constitution. That is theoretically impeachable,” La Viña said.

La Viña added: “I emphasize theoretical because enough members of the House of Representatives must agree to send articles of impeachment to the Senate for trial."

Of course under the law, there cannot be an impeachment complaint against Duterte until the one-year ban has passed since Magdalo Representative Gary Alejano filed the first complaint in March 2017.

Unconstitutional

Former Solicitor General Florin Hilbay, a professor in Constitutional Law, agreed that the suspension order against Carandang was an “unconstitutional act.”

“That is culpable violation of the constitutionally guaranteed independence of the Ombudsman as interpreted by the Supreme Court,” Hilbay said.

Chief Presidential Legal Counsel Salvador Panelo defended the suspension by saying all official acts enjoy presumption of legality – an established rule in Philippine jurisprudence.

“That presumption stays until a court of competent jurisdiction declares it’s unconstitutional,” Panelo said in a mix of English and Filipino.

Panelo and the rest of Palace officials are confident that the Supreme Court will reverse its rule. (READ: Malacañang on Carandang: 'There is only one President')

“True, the SC can reverse its 2014 decision – but that is also beside the point. No public official, not even the President, can adopt a 'violate-the-law-now, seek-reversal-later' attitude when its comes to decisions of the SC. That attitude is incompatible with his constitutional obligation to enforce the law: it is the antithesis of the rule of law,” Hilbay said.

La Viña and Hilbay agree that Morales’ defiance is simply the Ombudsman following the law.

“She is following the Constitution scrupulously. She should be impeached if she implements the order of Malacañang,” La Viña said.

Carandang

“The unconstitutional act is tainted by a personal conflict of interest. The President is acting not to protect a beleaguered citizen from abuse of power by the Ombudsman; he is acting to protect himself. This act cannot pass any standard of fairness,” Hilbay said.

Carandang was suspended for alleged illegal disclosure of bank details of the President and the first family. Carandang is the head investigator of the alleged ill-gotten wealth of the Dutertes.

Paras was among those who filed the complaint against Carandang before Malacañang, dismissing as an outright lie Carandang’s disclosure that records show a transactions of almost a billion pesos.

“This defense by Morales of Carandang clearly shows that Morales has sanctioned Carandang to lie to the public on Duterte’s bank account and made herself a party to lies being spread against the President thereby causing undue injury to the latter,” said Paras.

Supreme Court

Constitutional law professor Dan Gatmaytan said that Malacañang got exactly what they wanted, which was to create a controversy for the Supreme Court to rule on.

Malacañang is relying on the fact that the tight voting of 8-7 in 2014 can be easily reversed.

Panelo even dropped a hint to Duterte appointees Associate Justices Noel Tijam, Samuel Martires, Alexander Gesmundo and Andres Reyes Jr: “So apat ang bagong appointees so, hindi natin malalaman kung ano ang takbo ng mga utak nila (There are 4 new appointees, we don’t know how their minds work.”

Former senator Rene Saguisag, Duterte’s fellow Bedan lawyer, calls this an “arrogant and presumptuous move.”

“They are bragging that they can hold the Supreme Court by the balls,” Saguisag said.

Asked if he thinks it can be a ground for impeachment against Duterte, Saguisag said: “Impeached by lackeys? Tell me another.”

Saguisag said that we have a “gangster government” that gets whatever they want.

Can anybody stop them? “The people,” Saguisag said. – Rappler.com

May the President remove Deputy Ombudsman and Special Ombudsman?

source:   Gonzales vs OP, G.R. No. 196231 (January 28, 2014) En banc

BRION, J.:

We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012 Decision1 which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of Republic Act (RA) No. 6770.2

In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him the penalty of dismissal.

I. ANTECEDENTS
II. COURT’S RULING

On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman. (As the full explanation of the Court’s vote describes below, this conclusion does not apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman which does not include the Office of the Special Prosecutor under the Constitution. The prevailing ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario Victor Leonen).

A. Preliminary considerations:
B. The Deputy Ombudsman: Constitutional Issue

a. The Philippine Ombudsman
b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence

Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions shares certain characteristics – they do not owe their existence to any act of Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the framers of the Constitution intended that these "independent" bodies be insulated from political pressure to the extent that the absence of "independence" would result in the impairment of their core functions.

xxx xxx xxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but is similar in degree and kind – to the independence similarly guaranteed by the Constitution to the Constitutional Commissions since all these offices fill the political interstices of a republican democracy that are crucial to its existence and proper functioning.

c. Section 8(2) of RA No. 6770 vesting disciplinary authority in the President over the Deputy Ombudsman violates the independence of the Office of the Ombudsman and is thus unconstitutional

Our discussions, particularly the Court’s expressed caution against presidential interference with the constitutional commissions, on one hand, and those expressed by the framers of the 1987 Constitution, on the other, in protecting the independence of the Constitutional Commissions, speak for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the independence of the Office of the Ombudsman.

In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by the President, whose own alter egos and officials in the Executive Department are subject to the Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate, includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and balances that the creation of an Ombudsman office seeks to revitalize.

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be expected to place her complete trust in her subordinate officials who are not as independent as she is, if only because they are subject to pressures and controls external to her Office. This need for complete trust is true in an ideal setting and truer still in a young democracy like the Philippines where graft and corruption is still a major problem for the government. For these reasons, Section 8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be declared void.

d. The mutual-protection argument for crafting Section 8(2)of RA No. 6770

In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of an external check against the Deputy Ombudsman would result in mutual protection between the Ombudsman and her Deputies.

While the preceding discussion already suffices to address this concern, it should be added that this concern stands on shaky grounds since it ignores the existing checks and balances already in place. On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari. The same attempt can likewise subject her to impeachment.

The judicial recourse available is only consistent with the nature of the Supreme Court as a non-political independent body mandated by the Constitution to settle judicial and quasi-judicial disputes, whose judges and employees are not subject to the disciplinary authority of the Ombudsman and whose neutrality would be less questionable. The Members of the Court themselves may be subjected to the impeachment power of Congress.

In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible. At the same time, the Court remains consistent with its established rulings - that the independence granted to the Constitutional Commissions bars any undue interference from either the Executive or Congress – and is in full accord with constitutional intent.

e. Congress’ power determines the manner and causes for the removal of non-impeachable officers is not a carte blanch authority

C. The Deputy Ombudsman: The Dismissal Issue
D. The Special Prosecutor: The Constitutional Issue

a. The Office of the President’s finding of gross negligence has no legal and factual leg to stand on

The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan at the time83 became the Office of the Special Prosecutor under the 1987 Constitution. While the composition of the independent Office of the Ombudsman under the 1987 Constitution does not textually include the Special Prosecutor, the weight of the foregoing discussions on the unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded in jurisprudence.

Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an organic component of the Office of the Ombudsman and by granting the Ombudsman control and supervision over that office.105 This power of control and supervision includes vesting the Office of the Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem fit.1âwphi1 Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which include investigation and prosecution of officials in the Executive Department.

 xxx xxx xxx

Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy the same grant of independence under the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the President over a Deputy Ombudsman, in violation of the independence of the Office of the Ombudsman.

However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under the Constitution.

 

WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL.


source:   Gonzales vs OP, G.R. No. 196231 (September 4, 2012) En banc

The Court's Ruling

Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate that the President has no disciplinary jurisdiction over them considering that the Office of the Ombudsman to which they belong is clothed with constitutional independence and that they, as Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of said office.

The Court is not convinced.

 The Ombudsman's administrative disciplinary power over a Deputy Ombudsman and Special Prose-cutor is not exclusive.

By granting express statutory power to the President to remove a Deputy Ombudsman and a
Special Prosecutor, Congress merely filled an obvious gap in the law.

The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is
Implied from his Power to Appoint.

Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the
Independence of the Office of the Ombudsman.

Petitioner Gonzales may not be removed from office where the questioned acts, falling short of
constitutional standards, do not constitute betrayal of public trust.