Thursday, July 31, 2014

SC orders 4 judges probed over 'Ma'am Arlene' link | ABS-CBN News

See - SC orders 4 judges probed over 'Ma'am Arlene' link | ABS-CBN News

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MANILA - The Supreme Court (SC) has ordered the further investigation of four regional trial court (RTC) judges in connection with the high court's probe into the influence-peddling controversy hounding the judiciary, particularly the elections of the Philippine Judges Association (PJA) last October 2013.

In an en banc resolution dated July 22 but released to the media on Thursday, the high court directed the Court of Appeals (CA) to further investigate 

- Judge Rommel Baybay of Makati RTC Branch 132, 
_Judge Ralph Lee of Quezon City RTC Branch 83, 
_Judge Marino Rubia of Binan, Laguna Branch 24, and 
_Judge Lyliha Aquino of Manila RTC Branch 24.

The action taken was on the initial report of the SC Investigating Committee headed by Associate Justice Marvic Leonen.

The investigation ordered by the high court is "in relation to the findings of violations of our laws and rules in the conduct of the elections of the Philippine Judges Association (PJA) officers."

"The judges shall be investigated individually by different investigating justices. The Presiding Justice of the Court of Appeals is directed to raffle the investigation for each judge among the associate justices. The justices to whom this matter will be raffled to are ordered to conduct the investigation and submit a report and recommendation to this Court (SC) within 90 days from raffle," the resolution read.
The PJA elections became controversial after it was reported that its outcome was influenced by a certain 'Ma'am Arlene.'
The separate investigations will be conducted with confidentiality.
"The investigation(s) shall be conducted with utmost confidentiality and the report and recommendation shall be directly submitted to the Clerk of Court of the Supreme Court in a sealed envelope," the resolution read.
The high court also suspended the recognition of Lee and Aquino as president and secretary-general of PJA, respectively, and ordered the recall of Aquino as Acting Presiding Judge of Manila RTC Branch 24 and directed that she return to her former station, Tuguegarao RTC Branch 4.
The other recommendations of the investigating committee will be further deliberated and acted upon, in due time.

x x x."

Constitutionalism, statesmanship, and the good | Inquirer Opinion

See -  - Constitutionalism, statesmanship, and the good | Inquirer Opinion

"x x x.

The President sees himself as a statesman with a near-impossible mission of steering the ship of state from a decade of corruption that destroyed institutions, consigned the citizens to continued poverty, and further entrenched our country’s reputation as the “sick man of Asia.” He has produced results, and can give us a list of verifiable accomplishments—the improved numbers of the economy, the reform of the budget, and the aggressive pursuit of the corrupt. He believes his politics is transformative, and therefore must be given the freedom to begin such transformation, at the very least.
This freedom to reform society requires an environment of rules that will not shackle his discretion. These are difficult times, and the Constitution’s commands must be given practical breathing space so the President may straighten the nation’s path. The Constitution is here, not so that its rules may be imposed on the people regardless of consequence, but so that it may be an instrument for their welfare. We can assume this was the President’s view when, during his recent State of the Nation Address, he demonstrated the DAP’s ground results with repeated exemplars of how this program actually benefited impoverished and marginalized citizens. This is his way of asking us to “go beyond legalism and return everyone to the big picture,” as Pangalangan has noted.

Given the President’s and the Supreme Court’s disparate anchors for defining what is good, we can, along the lines of one of Nery’s theses, see the Court’s constitutionalism as potentially undermining the President-as-statesman’s mandate. To be sure, this is not a conflict between good and evil, right and wrong, but an unfortunate though hopefully temporary disagreement over business models for interpreting rules—one emphasizes freedom, the other, constraint. This interpretive disagreement is at its most intense in the DAP decision because, as Nery sharply notes, it touches the President’s “core achievement” and puts an embarrassing dent on it that can be painfully spun by critics—“you improved the economy, but ‘violated’ the Constitution and ‘raped’ Congress”; “you reformed the budget, but accumulated billions for ‘discretionary’ spending”; “you went after the corrupt, but ‘bribed’ senators with public funds.”

Nery also points out that the Supreme Court’s vaunted legalism can again rear its head in the other legacy issues that will be decided by the Court, that are or will be known also by their acronyms—the Edca (Enhanced Defense Cooperation Agreement) and BBL (Bangsamoro Basic Law). This is a matter of grave concern for everyone, and we can only hope that the leaders of our institutions can dig deep and find unity of vision at some level. The future is too important to be left to happy accidents of circumstance.

Florin T. Hilbay previously circulated this piece to his colleagues at the UP College of Law, where he teaches constitutional law. He is on secondment to the Office of the Solicitor General. His views in this piece are academic and personal.

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Aquino bats for FOI | Manila Bulletin | Latest Breaking News | News Philippines

See - Aquino bats for FOI | Manila Bulletin | Latest Breaking News | News Philippines

"xx x.

President Aquino has called on Congress to swiftly pass the Freedom of Information (FOI) bill, the P2.606-trillion national budget for 2015, and 28 other administration priority bills.
He made the call after getting the flak for his failure to mention the FOI bill in his fifth State-of-the-Nation Address (SONA) last Monday.
The list of the President Aquino’s priority legislative measures was transmitted by Executive Secretary Paquito Ochoa to House Speaker Feliciano Belmonte.
Ochoa, in a recent letter to Belmonte, said the “high-impact” legislative bills seek to achieve inclusive growth, promote good governance, enhance social protection, among others.
“These are legislative bills that intend to achieve inclusive growth. More particularly, they are projected to result in a high, sustained, and broad-based economic growth that generate mass employment and draw the majority of the people into the economic and social mainstream, reduce poverty and achieve the Millennium Development Goals,” Ochoa said.
“It is further hoped that these measures will improve the quality of governance, boost the market’s essential institutional infrastructure, and support an economy that guarantees full, equal, and universal enjoyment of all human rights,” he added.
The priority list included the six measures endorsed by the President in his SONA before the joint session of Congress last Monday. These are the 2015 national budget, supplemental budget for 2014 to fund projects previously bankrolled by the Disbursement Acceleration Program (DAP), Uniformed Personnel Pension Reform Bill, Bangsamoro Basic Law, extended filing of notice of coverage under land reform program, and the joint resolution that will clarify the budgetary items listed in the DAP.

The priority bills related to the economic development and trade are the rationalization of fiscal incentives, amendments to the Build-Operate-Transfer Law, amendments to the law on right of way of government infrastructure projects, amendments to the Cabotage law, amendments to the Bangko Sentral ng Pilipinas (BSP) charter, removal of investment restrictions in specific laws cited in the Foreign Investment Negative List, rationalization of the mining fiscal regime, and the Competition Law.
On ensuring security and public order, the President also pushed for the swift passage of the Whistle Blowers Protection Act, amendment to the Human Security Act, revision of the criminal code, and delineation of the Philippine maritime zone/archipelagic sea lanes.
Other proposed measures are the Act Instituting Reforms in Land Administration, National Land Use Act, Delineation of Specific Forest Limits of Public Domain, Water Sector Reform Act, the FOI Act, Civil Service Code Reform, Magna Carta of the Poor, Act Protecting Rights of Internally Displaced Persons, amendments to the Anti-enforced Disappearance Law, Strategic Trade Management Act, amendments to the Ombudsman Law, and bill converting Bantayan Island into alienable and disposable land.
Ochoa said the Palace is ready to discuss with Congress any additional priority measures that should be included in the list.
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Kasambahay contract now available in 12 different local languages | Official Gazette of the Republic of the Philippines

See - Kasambahay contract now available in 12 different local languages | Official Gazette of the Republic of the Philippines

"x x x.

From the Department of  Labor and Employment
Secretary of Labor and Employment Rosalinda Dimapilis-Baldoz yesterday said that the Department has made available the Service and Recruitment contracts for Public Recruitment and Placement Agencies (PRPA) under the Kasambahay Law (Republic Act. No. 10361) into 12 local languages.
“Yes, the Service and Recruitments contracts for PRPAs under the Kasambahay Law has been translated into 12 local languages for easy understanding,” Baldoz said.
“User-friendly documents, such as these contracts, written in plain and easily-understandable language, could cultivate a healthy and dynamic relationship between the employer and employee,” she added.
The labor and employment chief observed that the only difference between these translated contracts and those legalistically drafted is enforcement. She explained that as more kasambahay and employers become aware of their rights, they are spared from the hassle—saves them time, money, and effort—of ensuring that the legal force and the rights sought to be protected are intact.
According to Baldoz, the Bureau of Local Employment (BLE) had caused the translation of both the service and recruitment contracts into Bicolano, Cebuano, Chavacano, Hiligaynon, Ilokano, Kapampangan, Maguindanawon, Meranao, Pangasinense, Filipino (Tagalog), Tausug, and Waray.
“The translation is one of the BLE’s initiatives under its Labor Market Information dissemination mandate, while the formulation and drafting of the contracts was the initiative of the Bureau of Working Conditions, another DOLE [Department of Labor and Employment] bureau.
“The service contract for kasambahayis a binding covenant that sets the balance for the protection of both employer and household service workers [HSWs]. It guarantees a system that affords both parties their own rights when they recruit or hire household service workers, and when they accept a job offer from a potential employer,” Baldoz said.
“In effect, the contract puts on record all transactions between both parties. Thus, creating an effective mechanism to back-track on agreements and facilitate the necessary redemption for the aggrieved party,” Baldoz explained.
Among the contents of the contract are the following responsibilities of the PRPAs, to wit: (a) ensure that the kasambahay is qualified as required by the employer; (b) secure the best terms and conditions of employment for the kasambahay; (c) ensure that the employment agreement between the kasambahayand the employer stipulates the terms and conditions of employment and all the benefits in accordance with this implementing rules and regulations; (d) provide pre-employment orientation debriefing to the kasambahay and the employer about their rights and responsibilities; and (e) ensure that the kasambahay is not charged or required to pay any recruitment or placement fees.
The contract also directs PRPAs to undertake the following in facilitating the employment of HSWs: (a) keep copies of employment contracts and agreements pertaining to recruited kasambahay which shall be made available during inspections, or whenever required by the DOLE or local government officials; (b) assist the kasambahay in filing complaints and grievances against employers; (c) cooperate with government agencies in rescue operations involving abused or exploited kasambahay; and (d) assume joint and solidary liability with the employer for payment of wages, wage-related and other benefits, including monthly contribution for SSS, PhilHealth, and Pag-IBIG membership.
“The PRPAs are also tasked to facilitate the replacement of kasambahay within one month from the day he/she reported for work. The agency must grant the employer a qualified replacement at no additional cost to the employer,” Baldoz explained, adding:
“The employer shall be entitled to a refund of 75 percent of the fees paid to the private employment agency, if the latter failed to provide a qualified replacement after the lapse of one month from receipt of request for replacement.”
The Kasambahay Law is a landmark piece of labor and social legislation that recognizes for the first-time domestic workers as similar to those in the formal sector. It is expected to benefit at least 1.9 million domestic workers, such as househelp, nannies, laundrywomen, cooks, and others.
The law fulfills the country’s obligation to enact a national legislation in compliance with the International Labor Organization’s Convention 189 which sets new international standards for the protection of household helpers.
The translated Kasambahay Service and Recruitments Contracts for Public Recruitment and Placement Agencies (PRPA) are available upon request from the Bureau of Local Employment. You may call tel. nos. 528-0083/528-0108 or visit them at 6th Flr., BF Condominium, cor. Solana & Soriano St., Intramuros, Manila.
x x x."

The Filipino Exclusion Act of 1934 | Inquirer Global Nation

See - The Filipino Exclusion Act of 1934 | Inquirer Global Nation

"x x x.

According to federal immigration authorities, 52,193 “unaccompanied alien children” were apprehended on the Southwest border of the U.S. since October of 2013, nearly twice the number apprehended during the same period in the last year.
This surge of children primarily from Honduras, Guatemala and El Salvador are spurring demands from congressional Republicans for Pres. Obama to “enforce the law” and deport the children back to their home countries.
But these children ventured to travel all the way to the U.S. because of news of the 2008 Trafficking Victims Protection Reauthorization Act, signed into law by President George W. Bush in March 2008, which requires that children crossing the U.S. border from countries other than Mexico and Canada must be given a chance to apply for refugee status before being sent back home.
But what happens if the US Congress passes a law offering the children free passage back to their home countries?

Repatriation of unwanted immigrants 
None of the children who risked their lives to find safe haven in the U.S. would likely take up the offer as their homelands offer them nothing but poverty, unemployment and death. Such an offer to repatriate large numbers of unwanted immigrants back to their homeland “at U.S. expense” was made before, nearly 80 years ago, to Filipinos.
Time magazine featured a report on Filipino repatriation in an article published on October 3, 1938 entitled “Philippine Flop,” which described the success, or lack thereof, of such an effort.
“Aboard the S. S. President Coolidge when it cleared the Golden Gate for Manila last week were 75 guests of the U. S. Government. They were Filipinos taking their next-to-last chance to go home at U. S. expense. Already 1,900 had taken a free ride home since the Filipino Repatriation Act was passed in the summer of 1935. Just one more Filipino repatriation party is to be given before December 31, when the Act expires.
“Although $237,000 has been spent to date on Filipino fares, both Immigration officials and California Labor regard the repatriation program as a flop. Remaining in the U. S. are 120,000 low-paid Filipino farm workers, houseboys, janitors, cooks. Half are in California, 97 percent are bachelors about 30 years old.
“The boys, explained Dr. Hilario C. Moncado, president of the Filipino Federation of America, do not want to go back without money or assurance they will earn a living.”

Non-White Exclusion Act 
The name of the ship of the “repatriados” in the Time article provides a certain irony. It was US President Calvin Coolidge, who signed The Immigration Act of 1924 — which included the Asian Exclusion Act — into law on May 26, 1924. The law’s expressed aim was to restrict the immigration to the US of people from non-white nations in order “to preserve the ideal of American homogeneity.”
How homogeneous? Because some Italians are dark-skinned, the quota for Italy dropped from 20,000 a year to 4,000 a year after the 1924 Act was passed. In contrast, a pure Aryan nation like Germany saw its annual quota increase to over 57,000. In fact, more than 86 percent of the 155,000 permitted to immigrate to the U.S. under the 1924 Immigration Act were from Northern European countries, with Germany, England and Ireland receiving the highest annual quotas.
For the rest of the nations of the world, the maximum number allowed to immigrate to the US was 50 a year. The Philippines was exempt from this quota restriction because it was a US colony, and its citizens were not aliens but “US nationals,” officially since April 19, 1899.
From 1907 through 1925, over 120,000 Filipinos immigrated to the US to work primarily as farm laborers.

Unlikely supporters of PH independence 
But the Philippines would not remain exempt for long. Nativists who sought the exclusion of Filipinos realized that in order to accomplish their objective, the Philippines had to be granted independence. Following the Great Depression of 1928, an unlikely constellation of political forces banded together to support Philippine independence.
Leading the charge for independence was organized labor, which desired to eliminate the competition offered by cheap Filipino labor. The founder of the American Federation of Labor (AFL), Samuel Gompers, was a Jewish American who supported the Immigration Act of 1924 even though it severely restricted the immigration of Jews to the US. He was opposed to the US annexation of the Philippines because he feared it would lead to the “mongrelization” of American labor.
Among the other strange bedfellows who supported Philippine independence were American sugar beet, tobacco and dairy farmers who opposed the low-tariff products from the Philippines. Even American sugar interests in Cuba, who feared the competition from Philippine sugarcane, joined the clamor for Philippine independence.
This broad coalition endorsed the Hare-Hawes-Cutting Independence bill, which was championed by Philippine leaders Sergio Osmeña Sr. and Manuel Roxas (the Os-Rox Mission). Though Pres. Herbert Hoover vetoed the bill in 1932, the US Congress passed the bill over his veto in January of 1933.
Manuel Quezon opposed the bill because the provision restricting Filipino immigration to just 50 a year was too stringent, he said. But it was politics. Quezon simply did not want Osmena and Roxas to receive the credit for bringing home Philippine independence.

Filipino Repatriation Act 
Due to Quezon’s opposition and his political influence, the Hare-Hawes-Cutting bill failed to pass the Philippine Legislature. Quezon then went to Washington, DC to negotiate passage of a revised independence bill, the Tydings-McDuffie Act, in March 1934.
It passed the US Congress and was signed into law by Pres. Franklin Roosevelt and approved by the Philippine Legislature. It provided for a ten-year transition period to independence, during which the Commonwealth of the Philippines would be established.
But the quota for the Philippines remained the same as the previous bill: 50 a year. The bill should properly have been called the Filipino Exclusion Act of 1934.
A year after passage of this Act, the US Congress passed the Filipino Repatriation Act on July 10, 1935, providing free transportation for Filipino residents of the continental United States who wished to return home to the Philippines but could not afford to do so. The goal of the new law was to return all 120,000 Filipinos in the US back to the Philippines.
On April 13, 1936, Time featured an article about the Filipino Repatriation Act (“Lovers’ Departure”), which explained that the bill was the result of the lobbying of Pacific Coast Labor, which resented Filipinos for “selling their services for 10¢ an hour in competition with white men.”
Time reported: “The Pacific Coast was interested in this subsidized exodus not only from the standpoint of labor but also from the standpoint of race and sex. In many places Filipinos are “problem children” for Pacific Coast authorities. To the intense dismay of race-conscious Californians, these little brown men not only have a preference for white girls, particularly blondes, but have even established to many a white girl’s satisfaction their superior male attractions.”

Scarcely more than savages 
The Time article quoted extensively from San Francisco Municipal Court Judge Sylvain Lazarus, who ruled in a case involving a Filipino man coveted by two white women. “This is a deplorable situation,” Judge Lazarus said. “It is a dreadful thing when these Filipinos, scarcely more than savages, come to San Francisco, work for practically nothing, and obtain the society of these girls. Because they work for nothing, decent white boys cannot get jobs.”
The widely publicized Lazarus denunciation of Filipinos prompted the Filipino community in San Francisco to pass a resolution denouncing the judge for his racist view of Filipinos. The resolution was sent to Washington, DC to Philippine Resident Commissioner Quintin Paredes (no PH Ambassador as the Philippines was a US Commonwealth). Paredes promptly wrote Judge Lazarus a note stating that “I cannot believe that you had in any way intended to refer to my people as a whole.”
Judge Lazarus immediately responded to Paredes: ”I intend to be as straightforward with you as you have been considerate with me. Basing my conclusions on years of observation, I regret to say that there is probably no group in this city, proportionate to its members, that supplies us with more criminal business than the local Filipino colony. It is no compliment to the predominant race that most crimes committed by Filipinos have as background intimate relations with white girls.”
Judge Lazarus continued: “I am making allowance for the fact that there is a scarcity — I imagine almost a total absence — of Filipino girls in this country and that the kind of white girls who associate with these Filipino lads is not calculated to provide the best influences for them. However, the girls are satisfied and generally very happy in their relations with these boys. Their sweethearts are working — all of them — as waiters, elevator operators, janitors, bell boys, etc. and are able to supply them, according to their notions, with abundant attentions and diversion.
“Some of these boys, with perfect candor, have told me bluntly and boastfully that they practice the art of love with more perfection than white boys, and occasionally one of the girls has supplied me with information to the same effect. In fact some of the disclosures in this regard are perfectly startling in their nature.” “Well,” said Senor Paredes urbanely, “the Judge admits that Filipinos are great lovers.” [Time, April 13, 1936].

NaFFAA – advocate for Filipinos in America 
If Time magazine were to publish an article like this now, or if a judge or any US official were to make a statement denouncing Filipinos as “scarcely more than savages,” there would be protests all over the U.S. organized by the National Federation of Filipino Associations in America (NaFFAA).
NaFFAA was founded in Washington DC in1997 to secure social justice, equal opportunity and fair treatment for Filipinos in America.  It will be holding its 10th biennial national empowerment conference in San Diego from April 7-10, 2014 with Pulitzer prizewinner and “Documented” filmmaker Jose Antonio Vargas as keynote speaker. Other speakers include Gen. Antonio Taguba, Loida Nicolas-Lewis, Liberty Zabala, Billy Dec and Tony Olaes. For more information about NaFFAA, please check out .

(The author taught Filipino History in America at San Francisco State University. Send your comments to or mail them to the Law Offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 94127 or call 415.334.7800). 

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Thursday, July 24, 2014

Palace releases list of holidays for 2015 | Headlines, News, The Philippine Star |

See - Palace releases list of holidays for 2015 | Headlines, News, The Philippine Star |

"x x x.

MANILA, Philippines - Filipinos can look forward to eight long weekends next year based on Proclamation No. 831 declaring the regular holidays, special non-working days and special holiday for schools issued by Malacañang for 2015.
Under the proclamation, the following are the regular holidays: 
Jan. 1, New Year’s Day, which falls on a Thursday; 
April 2, Maundy Thursday, 
April 3, Good Friday; 
April 9, Araw ng Kagitingan (Thursday); 
May 1, Labor Day (Friday); 
June 12, Independence Day (Friday); 
Aug. 31, National Heroes Day (last Monday of August); 
Nov. 30, Bonifacio Day (Monday); 
Dec. 25, Christmas Day (Friday); 
Dec. 30, Rizal Day (Wednesday).

Special non-working days include 
Feb. 19, Chinese New Year (Thursday); 
April 4, Black Saturday; 
Aug. 21, Benigno “Ninoy” Aquino Jr. Day (Friday); 
Nov. 1, All Saints’ Day (Sunday).

Additional special or non-working days are 
Jan. 2, (Friday); 
Dec. 24, (Thursday) and 
Dec. 31, last day of the year, which also falls on a Thursday.

The special holiday for all schools was declared for Feb. 25 in celebration of the first EDSA revolution in 1986. The event falls on a Wednesday.
The long holidays cover the following dates: Jan. 1 (Thursday) and 2 (Friday); Maundy Thursday to Black Saturday; May 1 (Friday); June 12 (Friday); Aug. 31 (Monday); Nov. 30 (Monday); Dec. 24 (Thursday) and Dec. 25 (Friday) and Aug. 21 (Friday).
Headlines ( Article MRec ), pagematch: 1, sectionmatch: 1
The Eid’l Fitr will depend on the Islamic calendar, according to the proclamation signed by Executive Secretary Paquito Ochoa Jr. on behalf of the President.
On Feb. 19, Chinese nationals all over the world will celebrate Spring Festival or Lunar New Year, one of the most revered and festive events not only in China but in the Philippines as well.
“The joint celebration is a manifestation of our solidarity with our Chinese-Filipino brethren who have been part of our lives in many respects as a country and as a people,” Aquino said.
EDSA People Power Revolution is celebrated because it restored and ushered political, social and economic reforms in the country and serves as an inspiration to Filipinos everywhere as a nation and as a people, the proclamation read.
x x x."

Dismissal of prosecutor in Garcia plea bargain affirmed | Headlines, News, The Philippine Star |

See - Dismissal of prosecutor in Garcia plea bargain affirmed | Headlines, News, The Philippine Star |

"x x x.

MANILA, Philippines - The Court of Appeals (CA) has upheld with finality the dismissal of former Special Prosecutor Wendell Barreras-Sulit for approving the plea bargain deal in the plunder case against retired military comptroller Maj. Gen. Carlos Garcia in 2010.
In a six-page resolution, the special former 8th division of the appellate court upheld its decision on Aug. 23 last year that affirmed Malacañang’s dismissal order against Sulit.
The appellate court denied for lack of merit the motion for reconsideration filed by the former chief prosecutor of the Office of the Ombudsman.
“We have pointed out that we cannot legally and technically ask the executive branch to observe judicial courtesy, but observing the same will not make those involved in administrative proceedings lesser persons, if they, by their own volition, observe the reason for the principle of judicial courtesy – respect of law and legal processes,” read the ruling penned by Associate Justice Agnes Reyes-Carpio.
Associate Justices Ramon Garcia and Priscilla Baltazar-Padilla concurred in this ruling.
Sulit argued Malacañang had no jurisdiction to investigate her or order her dismissal since she was not yet a presidential appointee at the time she recommended the plea bargain deal with Garcia.
Headlines ( Article MRec ), pagematch: 1, sectionmatch: 1
Sulit said she was merely officer-in-charge of the Office of the Special Prosecutor.
But the CA did not agree, saying Sulit was already performing the duties and powers of the office at the time she faced the administrative proceedings.
The court also held Malacañang has jurisdiction over her position, which is not similar to the ombudsman post that is covered by impeachment.
“In here, it is a lot easier as there was no transfer of agency. It was a matter of promotion within the same agency. Petitioner’s present position at the time of the charge is Special Prosecutor, making her clearly under the disciplinary power of the Office of the President,” the CA explained.
Former ombudsman Merceditas Gutierrez resigned from her post in 2011 due to mounting pressure over the Garcia plea bargaining agreement.
Under the controversial plea bargain deal, Garcia pleaded guilty on the lesser offenses of money laundering and direct bribery, and agreed to return P135 million of the more than P300 million in public funds he allegedly amassed illegally.
x x x."

Wednesday, July 23, 2014

Executive immunity | Inquirer Opinion

See - Executive immunity | Inquirer Opinion

"x x x.

There is no provision in the Constitution clothing the president with immunity from suit. The 1973 Constitution had a specific provision guaranteeing the president’s immunity but the 1987 Constitution did not preserve this provision.

Nevertheless, executive immunity dates back to the cases of governor generals. The subsistence of this doctrine under the 1987 Constitution was confirmed in Soliven vs Judge Makasiar which assumed that indeed the president, Cory Aquino in this case, enjoys immunity. The Court said: “The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President’s behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused.”

Does executive immunity continue even after the president leaves office? 

This came up in the case of Estrada vs Desierto. Estrada, prosecuted for plunder after having left the presidency, pleaded presidential immunity from suit as his defense. Moreover, he claimed that he could not be sued before the impeachment could be terminated. On this matter the Court said: “We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting President. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.”

Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US vs Nixon, US President Richard Nixon, a sitting president, was subpoenaed to produce certain recordings and documents relating to his conversations with aides and advisers. Seven advisers of President Nixon’s associates were facing charges of conspiracy to obstruct justice. President Nixon himself was named as an unindicted coconspirator. President Nixon moved to quash the subpoena on the grounds, among others, that the president was not subject to judicial process, and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” In the 1982 case of Nixon vs Fitzgerald, the US Supreme Court further held that the immunity of the president from civil damages covers only “official acts.” 

The US Supreme Court had the occasion to reiterate this doctrine in a case where it held that the US president’s immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. It declares as a state policy that “(t)he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.” It ordains that “(p)ublic 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.” It sets the rule that “(t)he right of the State to recover properties unlawfully acquired by public officials or employees from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel.” It maintains the Sandiganbayan as an antigraft court. It creates the Office of the Ombudsman and endows it with enormous powers, among which is to “(i)nvestigate 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.” The Office of the Ombudsman is also given fiscal autonomy. These constitutional policies will be devalued if we sustain the claim that a nonsitting president enjoys immunity from suit for criminal acts committed during his incumbency.

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The gaps in the Supreme Court’s DAP ruling

See - The gaps in the Supreme Court’s DAP ruling

"x x x.

Below are 4 gaps that left critical questions hanging and issues unresolved on the DAP controversy. This is how the decision could be wanting for non-lawyers.
1. It did not particularly rule the legal basis of the DAP unconstitutional.
The President used parking as an analogy to drive this point. You parked and was given a ticket for illegal parking, though the parking lot has yet to be declared a no-parking zone.
Chapter 5 Book 6 Section 39 (and Sections 38 and 49) of the Administrative Code that served as the main legal basis of DAP has yet to be ruled unconstitutional by the SC (a no-parking zone in the analogy of the president). Yet, the DAP (the car) has already been deemed unconstitutional (reprimanded for illegal parking).
Father Joaquin Bernas, in his opinion, said a law does not supersede the Constitution. He said that “it is safe to assume” that the Supreme Court is aware of the Administrative Code.
Do we really have to assume? Also, isn't it logical to deal with the legal basis first before looking into the actions taken following such legal basis?
If the principle is obvious and known to lawyers, does it hurt if the SC decision contains that point too? Better yet, is it too much to ask for the SC to declare Chapter 5, Book 6, Sections 38, 39 and 49 of the Administrative Code unconstitutional once and for all, so it will not create any more confusion in the future?
2. It did not clarify that the Constitution supersedes even laws created during extraordinary times, like that period between the ratification of the 1987 Constitution and the convening of the first Congress.
When we say extraordinary, common principles and rules do not apply, right?
The period between the ratification of the 1987 Constitution and the convening of the first Congress can be considered as extraordinary because the president exercised legislative powers then. As Raissa Robles recalled in her article, during this period, as per the transitory provision of the 1987 Constitution, all issuances of then President Corazon Aquino were upheld as regular laws.
The Executive Order that created Admin Code Chapter 5 Book 6 Sections 38, 39 and 49 was passed during that period.
Again, the principle is that no law supersedes the Constitution.
But how about if the law is passed during extraordinary times when regularity is suspended?
Could the transitory provision be taken as a blanket provision that extends not only legality, but constitutionality to all executive issuances passed during that extraordinary period in our history?
Institutions evolve and develop within a historical context that is dynamic and confusing. We can't blame if people keen about history ask about the applicability of laws given the context they were created. It is a valid question to ask.
3. It did not take into account the inherent possibility of imbalance of powers or conflict in a presidential system.
I already discussed this in my earlier article on the DAP. Tug-of-war is the nature of presidential system. It lies on the premise of potential abuse of power, hence the need to make the 3 branches co-equal and separate for checks and balances.
Of course, the potential abuse is managed by having rules and laws, like terms of engagement among the 3 branches. But there are times when the three branches are not unanimous on how to interpret their terms of engagement. There will be times that one will attempt to encroach upon the others' territory and institutionalize its claim through a law, which is how I would explain what happened to the Admin Code.
This dimension is important in the SC decision because it provides an explanation for the actions of the executive that is consistent with the nature of our present institutional-legal framework. Stretching the logic of that, the implication is, you can't be sanctioned for actions that are within your nature.
It also puts the entire DAP saga into a framework of a dynamic and active accountability system where the use (and potential further accumulation) of power is a given, but is checked through the system. The SC decision itself is a check to the attempt of the executive to expand its powers to perform its mandate, which is again, a given.
4. It did not dig deep into the root problem that made the DAP necessary.
The Supreme Court is perhaps not the proper venue to discuss pressing issues of governance. This time, though, it is being challenged to do so.
Can the Supreme Court be more pro-active and dig deeper since it is already at it? At the very least, recommend possible legal recourse to address the core problem at hand, instead of simply saying what is not allowed.
What is the core problem addressed by the DAP? Inefficiency in the bureaucracy. There are many ways to address this, mostly long-term. But in 2011, there was a need to urgently respond to the situation of large unspent resources best used to propel the economy.
In situations such as this, where time is of the essence, is there a way to provide the needed flexibility that will be made accountable through other available means?
A more grounded decision
I am sure a lot of lawyers and law students are finding these demands from the Supreme Court absurd. Answering these questions is not in the nature of the Supreme Court and keeping such nature provides stability in the rule of law.
That is understandable. However, the Supreme Court, likewise, in this case, should understand the executive. It is not in in the nature of the executive to be unresponsive to people's needs. If its ability to respond is curtailed by legal impediments, it will find a way to respond. For the executive is not only accountable to the laws and institutions, more importantly, it is accountable to the people.
The Supreme Court must see that unlike most decisions, there are more non-lawyers curious about this case and want to understand it on their own. This is a good thing. It builds ownership of laws by the people.
These gaps that make the SC decision "mahirap maintindihan (hard to understand)” are some of the reasons why there are calls for the SC to revisit its decision on the DAP. This is not arrogant. Neither does it mean undermining the authority of the SC. The SC is being asked to reconsider its decision. Its authority over this is acknowledged.
A motion for reconsideration on the DAP ruling can improve the SC decision in a way that will strengthen and reform our institutions to be responsive to the needs of the people. That is a mandate not only of the executive, but of the entire government, including the Supreme Court. –
Joy Aceron is program director at Ateneo School of Government, the graduate school for leadership and public service of the Ateneo de Manila University.
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