CLEAN TOURIST CITY. Davao City Mayor Sara Duterte-Carpio receives the Association of Southeast Asian Nation (ASEAN) Clean Tourist City Award presented by Department of Tourism region 11 director Antonio Fernando Blanco during Monday’s (February 5, 2018) flag raising ceremony in front of the Davao City Hall. (Robby Joy D. Salveron / davaotoday.com)
But are they the same? Not exactly because one involves a doctrine and the other, a statute.
IN DEFENSE. Solicitor General Jose Calida defends Malacañang’s suspension of Overall Deputy Ombudsman Arthur Carandang despite a Supreme Court ruling taking away the President’s power to discipline a Deputy Ombudsman. File photo by Ben Nabong/Rappler
MANILA, Philippines – “Look who’s talking?” is the latest offensive hurled against Ombudsman Conchita Carpio Morales as Solicitor General Jose Calida recalled the time when the Ombudsman suspended former Makati City mayor Junjun Binay despite the existence of the condonation doctrine.
The condonation doctrine says a reelected official should no longer be made accountable for an administrative offense committed during his previous term.
The Supreme Court would later strike down the doctrine. But Calida argued: what is the difference between Morales supposedly violating an existing doctrine at the time, and Malacañang violating an existing ruling now?
The answer: It’s a doctrine vs a statute, said Abdiel Dan Elijah Fajardo, the national president of the Integrated Bar of the Philippines (IBP).
“When the Executive Secretary (ES) issued the suspension order, there was no law to apply. The ES supplied a law that was not there,” Fajardo said.
Let’s explain.
Doctrine vs statute
The condonation doctrine was borrowed from American jurisprudence. It’s not a statute, but it was used by the Supreme Court in several rulings, and invoked by Binay then.
“When the Ombudsman skewered then mayor Junjun Binay by finding him guilty of graft over the Makati Parking Building, did she respect the Aguinaldo doctrine, which was the prevailing jurisprudence at that time? No.” Calida said on Friday, February 2. (READ: The Carandang conflict: Threat to checks and balances)
Morales did not find Binay guilty of graft, the Ombudsman is not a court. What she found him guilty of was the administrative charges of grave misconduct and serious dishonesty. On that basis, she suspended and later dismissed him from service.
“Now, she chides the Office of the President for ordering the preventive suspension of Overall Deputy Ombudsman Melchor Carandang (ODO), which she characterized as ‘a clear affront to the Supreme Court.’ Look who’s talking?” Calida said.
In the Carandang suspension, Malacañang issued the order despite a 2014 ruling from the Supreme Court declaring unconstitutional Section 8 (2) of the Ombudsman Act, which previously gave the President the power to discipline Deputy Ombudsmen.
Fajardo explained: “In the case of Binay, the Ombudsman ignored the condonation doctrine in effect, because it’s not in the law. In this case, the power to discipline a deputy ombudsman was part of the law, and it was declared unconstitutional.”
Constitutional law professor Dan Gatmaytan explained it this way: the condonation doctrine is a matter of defense in an administrative case, while the SC’s 2014 ruling is an interpretation of the Constitution.
“In other words, the Constitution itself limits the President’s powers over the Office of the Ombudsman,” Gatmaytan said.
He added: “Administrative agencies typically conduct their investigations and file the appropriate cases based on their findings. Respondents then set out their defenses including the condonation doctrine if applicable. I do not know of any case where the disciplining authority was reprimanded or sanctioned for not checking the applicability of the doctrine.”
Gatmaytan also said that Calida’s Binay defense is “not a valid argument.”
“You cannot justify the Carandang suspension on the ground that the Ombudsman may have ignored the condonation doctrine before. The issue is whether there is a legal basis for the suspension, not whether the Ombudsman’s record is pristine,” said Gatmaytan. (READ: Carandang case: Impeachment for Morales or Duterte?)
Showdown
Calida said that when Morales inhibited from the investigation into President Rodrigo Duterte’s wealth and appointed Carandang to head it, she “created a procedural, legal and ethical vacuum” precisely because of a lack of a clear rule on who can discipline a Deputy Ombudsman.
Carandang was suspended due to alleged disclosure of Duterte’s bank records as he was investigating a complaint on alleged ill-gotten wealth.
“The President, in issuing the preventive suspension, merely filled the vacuum left by the Ombudsman’s masquerade, and enforced accountability in public service,” Calida said.
This is a clear showdown between the Executive and a constitutional body.
“The Office of the Ombudsman is not a fourth branch of government,” Calida said, implying that it does not enjoy the same independence accorded the 3 branches.
Where does this take us? The Office of the Ombudsman has not responded to queries on whether it will file a petition with the Supreme Court. Presidential Spokesperson Harry Roque said they will not go to court, but will answer Carandang’s petition if there is one and if they are confident of a reversal.
Either way, Gatmaytan said Malacañang has achieved exactly what it wanted: a controversy that the Supreme Court may rule on.
How will the SC rule – will it reverse itself to favor the President? – Rappler.com
Rafael Baylosis. Contributed photo by Pinoy Weekly
The firearm and grenade reportedly seized from the apprehended consultant of the National Democratic Front (NDF) were only planted, National Union of Peoples’ Lawyers (NUPL) president Atty. Edre Olalia claimed on Friday.
NDF consultant Rafael Baylosis and his companion Roque Guillermo Jr., were arrested by operatives of the Criminal Investigation and Detection Group-National Capital Region (CIDG-NCR) in Quezon City last Wednesday.
READ: Red leader nabbed in QC
While a police report disclosed that the two yielded two .45-caliber guns, 14 bullets, two magazines, cellphones, and assorted documents, Olalia said they were merely planted.
“When NDF consultant Raffy Baylosis was seized Wednesday afternoon, there was no outstanding warrant against him. The gun was simply planted,” Olalia said in a statement.
“During the inquest yesterday, suddenly a hand grenade decided to come out of thin air. So the false charge was not only illegal possession of firearm which is bailable. Now to make the case non-bailable, the gun decided to give birth to a hand grenade, an item which was not mentioned in the police spot report issued earlier,” he said.
Moreover, Olalia noted that the Manila Regional Trial Court (RTC) Branch 32, which hears the murder charges filed against Baylosis, denied the earlier motion of the prosecution to cancel his bail and order his rearrest.
“So the only basis for his arrest was the concocted story that a known 69-year-old peace consultant was swaggering around a busy city street with a gun in his waist and a grenade ‘associated’ (the police’s term, not ours) with the brown rice he was holding,” Olalia said.
“What a way to plant and cook evidence,” he lamented.
Baylosis and his companion are currently detained at the Philippine National Police headquarters in Camp Crame, Quezon City. /jpv
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Updated
By Analou De Vera
The Manila Regional Trial Court (RTC) has denied the request of customs “fixer” Mark Taguba to remain under the custody of the National Bureau of Investigation (NBI) and ordered his immediate transfer to the Manila City Jail.
Mark Taguba (JAY GANZON / MANILA BULLETIN)
The Manila RTC Branch 46, under the sala of Presiding Judge Rainelda Estacio-Montesa, said that Taguba’s camp failed to establish that his life was in danger. The court also cited that the NBI is not authorized to hold Taguba under their custody.
Taguba has been arrested by elements of the NBI on Wednesday evening after the same court issued an arrest warrant against him and seven others over their alleged involvement on the controversial P6.4 billion shabu shipment.
The court also ordered the arrest of Li Guang Feng alias Manny Li; Dong Yi Shen Xi alias Kenneth Dong; Eirene Mae Tatad, Teejay Marcellena, Chen I-Min, Jhu Ming Jyun, and Chen Rong Huan, after the court found “probable cause” to charge them for violating Section 4 Article II of R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002).
Taguba is set to appear again in court after Montesa set his arraignment on February 9.
Tags: court order, fixer, Manila Bulletin, Manila City Jail, Manila RTC, NBI, Taguba, transfer
MAGUINDANAO, Philippines — Gunmen ambushed two police teams — one in Basilan and the other in Lanao del Sur — in separate attacks Thursday.
Chief Superintendent Graciano Mijares of the Police Regional Office-Autonomous Region in Muslim Mindanao said Friday no one from among his subordinates got hurt, but the attacks caused panic among villagers near the scenes of the incidents.
Members of the Lantawan municipal police in Basilan were returning to their station from a peacekeeping activity when suspected Abu Sayyaf gunmen fired at their vehicle while at Barangay Bulan-Bulan southwest of the municipality.
The passengers of the patrol vehicle, SPO4 Richelle Perez, SPO1 Ruffe Hunas, PO3 Abdelkhan Sakandal, PO3 Abdurahman Ismael, PO2 Hadzmin Abdulajid, PO1 Sotero Malawit Jr. and PO1 Murada Bantarasa, managed to return fire, preventing their attackers from closing in.
Mijares said the incident was preceded by the ambush by bandits of a group of combined soldiers and policemen in Pualas, Lanao del Sur.
Personnel of the Pualas municipal police and the Army’s 55th Infantry Battalion were on separate vehicles en route to the border of Barangays Bolinsong and Ingud northeast of the municipality when they were attacked by no fewer than 10 men armed with M14 and M16 assault rifles.
The bandits hurriedly escaped when the policemen and soldiers they fired at outflanked and almost cornered them as the gunfight ensued.
In a report to Mijares Friday, Senior Inspector Knievel Salem of the Pualas municipal police said local officials and barangay leaders have confirmed that the ambushers were led by Masood Dagar and his siblings Moomin, Ola, and Momong.
They are all wanted for heinous offenses, including large-scale drug trafficking, motorcycle and cattle theft.
Mijares said he has directed municipal police probers to file criminal charges against the Dagars for perpetrating the ambush that endangered the lives of policemen and soldiers.
THE number of drug addicts in villages across the country have increased, even as Metro Manila residents think there are fewer drug addicts in their communities, a nationwide survey taken in the last quarter of 2017 revealed.
The Social Weather Stations (SWS) survey released on Friday showed that families in Luzon, Visayas and Mindanao believed that “presence of drug addicts in their neighborhoods” has become greater than before.
In Luzon, the number of drug addicts rose by 11 percentage points to 45 percent in December 2017 from 34 percent in September 2017, according to the survey.
The SWS, however, noted that the “annual average presence of addicts” in Luzon was at 46 percent, which was way below the 54.5 percent average in 2016. It added that the rate was also the lowest since the 42.3 percent average in 2013.
In the Visayas, the survey recorded that the presence of addicts rose by three percentage points to 43 percent in December 2017 from 40 percent in September 2017.
In Mindanao, the survey revealed that the number of drug addicts rose also by three percentage points to 30 percent in December 2017 from 27 percent in September 2017.
But the SWS likewise noted that annual averages for both regions were at 41.5 percent in Visayas, and 37.3 percent in Mindanao for 2017 – way below their recorded averages in 2016, which was 56 percent in the Visayas and 51 percent in Mindanao.
Further, the SWS said that the 2017 average of Visayas was also the lowest since the 30.5 percent annual average in 2012, while the average in Mindanao was also the lowest since the 33.3 percent annual average in 2011.
For validation
Sought for comment, Supt. Reyman Tolentin, information officer of the Police Regional Office in Central Visayas (PRO-7), said they were doing their best to lessen, if not to eradicate, the volume of shabu that comes to the region.
“If the people feel that the number of drug addicts in their places has increased, then we will validate that,” he said in an interview on Friday.
Based on the records of PRO-7, about 100,000 drug dependents have surrendered to authorities since President Rodrigo Duterte assumed his post in July 2016.
At present, Tolentin said only less a thousand drug users who were in the police’s drugs watchlist in the region have yet to surrender to the police.
“We will come up with a new list of drug users in the region with the help of the local government units,” he said.
Tolentin assured the public that there will be no let up in their campaign against the narcotics trade.
Record low
Families in Metro Manila, meanwhile, think the presence of drug addicts in their communities have decreased. The survey said the rate fell by 12 percentage points to 50 percent in December 2017 from 62 percent in September 2017.
This brought the 2017 average presence of drug addicts in Metro Manila to a record low of 57.8 percent, according to the SWS.
“This is 12.2 points below the record-high 70 (percent) annual average in 2016, and 0.2 point below the previous record-low annual average of 58 (percent) in 2006,” it pointed out.
No attribution, however, was indicated by the SWS as to why the interviewed adults think there were more or less drug addicts in their communities.
The survey, conducted from Dec. 8-16, 2017, used face-to-face interviews of 1,200 adults (18 years old and above) nationwide. It has a margin of error of plus or minus three percent nationwide, plus or minus four percent for Luzon, and plus or minus six percent each for Metro Manila, Visayas and Mindanao.
While the Constitution is not perfect, many argue now is not the time to change it
HIGHEST LAW. The administration of President Rodrigo Duterte is attempting to change the Constitution to make way for Federalism. Photo by Rappler
MANILA, Philippines – The 1987 Philippine Constitution reestablished the democracy halted by decades of Martial Law under former dictator Ferdinand Marcos. Now, lawmakers in Congress are once again attempting to change the nation’s highest law.
Critics and defenders of the Constitution know it is not a perfect document. There are several provisions that need to be clarified – including Article XVII, which outlines the process of amending or revising the Charter and which has spurred contentious debates between the House of Representatives and the Senate. (READ: Why 1987 PH Constitution unclear on Congress’ Charter Change vote)
Past administrations touted Charter Change as a means to address these flaws and “improve” the country. President Rodrigo Duterte likewise pushed for a federal form of government during his campaign.
But is there really a need to change the Constitution?
Open to abuse
Retired Supreme Court (SC) Justice Vicente Mendoza explained that while the Constitution may have its flaws, now is not the time to change it as partisanship runs thick. (READ: What you need to know about Charter Change)
“This is a very partisan period in our history and it is no time to do these things…The risks that constitutional reform might be used as an excuse for extending stays in office and shifting to federalism are just too great to offset the need to make these changes,” Mendoza said.
According to Dante Gatmaytan, a constitutional law professor at the University of the Philippines College of Law, skepticism towards Charter Change is rooted in the Marcos era when Marcos changed the Constitution to duck term limits.
“We have a distrust of our politicians to the point that we do not trust them to tinker with the fundamental law of the land. Every attempt to amend the 1987 Constitution was met with skepticism that they were mere ploys to eliminate term limits,” Gatmaytan said.
“Since that trust was betrayed, politicians have not earned our respect,” he added.
While there are areas of the Constitution worth revisiting – such as the extent of judicial review, the ban on political dynasties, and provisions to encourage competition in business – Mendoza and Gatmaytan said doing so now may leave it vulnerable to abuse.
Hearings in the House of Representatives have given a glimpse at some of the proposed changes to the 1987 Constitution.
These include the shift to a federal form of government, as well as the possible abolition of the Office of the Vice President, Office of the Ombudsman, and Judicial and Bar Council. Lawmakers also proposed to limit the protection for free speech.
“The 1987 Constitution is not perfect but it is a good document… What worries me about the present attempts to amend the Constitution is the way it is selling federalism as the solution to poverty. With the level of political maturity that we have, federalism is likely to strengthen bosses in their turfs,” Gatmaytan said.
Mendoza added that while permanence is an attribute of a good Constitution, the reason why the many attempts to change the Charter have failed is not because of intrinsic merit.
“It’s not that this Constitution is flawless or a great Constitution. I do not think it is…It needs amendments. The trouble is, if you do that, politicians will come in and bring proposals to extend their term. That’s what deters people like me from proposing these many changes, to make this a good or better document,” Mendoza said. (LOOK BACK: Past Charter Change attempts and why they failed)
CONGRESS. Hearings on Charter Change continue to take place in the House of Representatives and Senate. File photo by Alberto Alcain/PPD
Congress as a rubber stamp?
But despite clear opposition and warning, Congress is determined to see Charter Change through.
House Speaker Pantaleon Alvarez earlier opened the possibility of canceling the midterm 2019 elections while Senate President Aquilino Pimentel III said the 6-year term of Duterte may be extended “if necessary” to shift the country to federalism.
Lawmakers have also proposed to change the Constitution by convening into a Constituent Assembly, saying it would be “cheaper and faster” than a Constitutional Convention as earlier proposed. (READ: The problem with Con-Ass? Distrust with Congress)
Alvarez likewise threatened to allocate a “zero budget” to lawmakers who refused to support the proposed Charter Change, though he later took it back and said he was only “joking.” (READ: Zero budget for anti-federalism provinces just a ‘joke,’ says Alvarez)
Framers of the Constitution, however, struck down current attempts to revise it.
1987 CONSTITUTION. Members of the 1986 Constitutional Commission during deliberations. Photo from the Official Gazette
Speaking at a Senate hearing on Charter Change, Christian Monsod – who was part of the 48-member 1986 Constitutional Commission – said problems lie in the implementation of the law, rather than the Constitution itself. (READ: Congress, not Constitution, is the problem – Monsod)
“The problem is not the Constitution but the legislators who slept on the job for 30 years to fully implement it. Or when reform legislation was passed, [they] made sure it was watered down and underfunded,” he said.
Retired SC Chief Justice Hilario Davide echoed this statement in a speech to the business community in November 2017 and said the objectives of federalism could be well achieved by the existing Constitution.
“I would forthwith assert that a shift to federalism or amendments to our present Constitution to accomplish the goals and objectives of the proponents of federalism is totally unnecessary. The reasons adduced to support it are deceptively misleading and unfounded,” Davide said.
He added, “All such goals and objectives can adequately and sufficiently be accomplished, and the reasons disproven, by merely – but effectively and efficiently – implementing the relevant provisions of our present 1987 Constitution.”
If not Charter Change, then what?
Though there is no need to change the Constitution in its entirety, retired SC Justice Adolfo Azcuna said that what should be done instead is a review to determine necessary changes.
“It is timely to review the Constitution with a view of determining whether or not it should be changed to better address the situation of Filipinos today,” he said.
Gatmaytan also said there may be no need to revise the Constitution “when an amendment of laws may suffice.”
While attempts to change the Constitution are serious, Gatmaytan added an assembly that is also beholden to the President may not produce the best document.
“Any project that involves drafting the fundamental law of the land will benefit from serious deliberation founded on contending views, not a mere collection of ‘yes men,’” he said. – with reports from Jodesz Gavilan/Rappler.com
