Error of Law

What happens when government officials commit errors of law?

1. When legislators make mistakes, they pass bad laws.
2. When executive officials make mistakes, bad laws are applied and good laws are applied badly.
3. When judicial officers make mistakes, justice is defeated by injustice.
4. In all cases, the Filipino people and the rule of law suffer in the hands of the minority.

Has the Arroyo administration committed any error of law, or failed to rectify one?Let us consider the following:

Anti-Terrorism Law

On March 6, 2007, the Human Security Act of 2007 - popularly known as the Anti-Terrorism Law - or R.A. 9372, was signed into law. It defines terrorism as follows:

“SEC. 3. Terrorism. – Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup d‘Etat), including acts committed by private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,

or under

1. Presidential Decree No. 1613 The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207,(Atomic Energy Regulatory and Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.”

Comment:

1. To convict under the law, all the enumerated elements of terrorism must be proven beyond reasonable doubt. Otherwise, the accused must be acquitted.
2. The last element is: “to coerce the government to give in to an unlawful demand”.
3. In law, “government” is distinguished from “administration”. The first is a juridical person which is separate and distinct from the people who act in its name. The second is the group of human beings who run the government.
4. Thus, the question is: Can a juridical person, such as the government, be coerced into giving in to an unlawful demand? The answer is NO. Government can act only through people or natural persons who are its agents. If these agents give in to an unlawful demand, they would be acting beyond the scope of their authority. In such case, their act, being unauthorized, is not the act of the government. Therefore, the last element of terrorism, as defined by law, can never be proven beyond reasonable doubt. Why? Because it is inherently impossible to coerce the government into giving in to an unlawful demand. It ought to follow that no one can be justly convicted of terrorism. Hence, the anti-terrorism law appears to be a useless law.
5. Had the legislators used the term “administration” instead of “government”, the conclusion would be otherwise.

Emasculation of death penalty

On June 24, 2006, R.A. 9346 was signed into law. The law prohibits the imposition of death penalty in the Philippines.

Is this consistent with the 1987 Constitution?

NO. The Constitution expressly provides: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the law” (Sec. 1, Art. III). By necessary implication, a person may be deprived of life, liberty, or property provided there is due process of law. It is thus constitutional to deprive a citizen of life, liberty, or property in certain cases. R.A. 9346 provides otherwise. It makes the imposition of the death penalty illegal in all cases. Hence, while the Constitution allows the imposition of death penalty in certain cases, the statute prohibits the same in all cases.

E.O. 464

On September 28, 2005, Mrs. Arroyo issued Executive Order 464, “Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,” which, pursuant to Section 6 thereof, took effect immediately. The Order materially provides as follows:

“SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

1. Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).
3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
4. Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
5. Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

1. Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
2. Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;
3. Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;
4. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
5. Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)”

Comment:

(a) The legislative power of inquiry materially provided in Section 22 of Article VI of the Constitution reads:

“SECTION 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House as the rules of each House provides, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate, or the Speaker of the House of Representatives at least three days before, his scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.”

(b) In other words, the Constitution provides for two (2) modes by which the heads of executive departments may appear and testify before Congress:

First mode: Upon their own initiative, with the consent of the President; or

Second mode: Upon the request of either House of Congress.

Clearly, the consent of the President is required under the first mode, but not in the second. The law is clear. Yet, in E.O. 464, Mrs. Arroyo requires her prior consent even under the second mode. Thus, E.O. 464 constitutes an amendment of the Constitution. Does Mrs. Arroyo have the authority to amend the Constitution? The answer is obviously NO.

“Pardon” for President Estrada

On October 25, 2007, Mrs. Arroyo granted executive clemency in favor of President Joseph Estrada. The document is reproduced as follows:

Comment:

(a) Is the pardon sufficient in form and substance? It does not seem so.

(b) Under the law: “Administrative or executive acts, orders and regulations, shall be valid only when they are not contrary to the laws or the Constitution.” (Art. 7, last par., Civil Code)

(c) The ordinance power of the President is exercised by way of written issuances which are enumerated and defined in the Administrative Code of 1987 (Sec. 2, Chap. 2, Title I, Book III). What are these issuances? There are seven (7), namely: Executive Orders, Administrative Orders, Proclamations, Memorandum Orders, Memorandum Circulars and General or Special Orders. Pardon is not among those enumerated. Thus, it is deemed excluded. Inclusio unius est exclusio alterius. By definition, the grant of pardon should be denominated as a Proclamation, which the law defines as the act of a President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend.

(d) Is the document an actual grant of pardon? NO. While the title is “Pardon”, what was actually granted was “executive clemency”. Had the document used the term “pardon” instead of “executive clemency”, there would be no reasonable doubt what was granted was actually pardon. Unlike “pardon”, the term “executive clemency” does not appear in the Constitution, the Revised Penal Code, the Civil Code, or the Philippine Law Dictionary. Its meaning is therefore indefinite, while that of “pardon” is definite.

(e) According to the document, the “pardon” shall take effect upon acceptance by the grantee. The intention is clear. Unless there is acceptance, the pardon shall not take effect. Is there a valid acceptance? NO. Acceptance means a meeting of the minds with respect to the object of the agreement. Is there a meeting of the minds with respect to the meaning of “executive clemency”? NO. As earlier pointed out, its meaning is indefinite. While it could mean pardon, it could also mean other things like commutation, reprieve, restoration of property and political rights, and other acts of mercy. Had Mrs. Arroyo really intended to be definite, she could have used “pardon” instead of “executive clemency”. She did not. Thus, she appears to have chosen to be indefinite.

(f) If there is no meeting of the minds, then the pardon is invalid. May the grantee be re-arrested upon this ground? Strictly speaking, YES.

(g) The document expressly restores the grantee’s civil and political rights. What are civil rights? Rights under the Civil Code which are essentially those pertaining to family and property. What are political rights? The right to vote, be voted for, or be appointed to public office. Does the document express any restoration of the grantee’s right to liberty? NO. How about by implication? NO. Why? Because there is no meeting of the minds as to the specific meaning of “executive clemency”.

(h) According to the document, the “pardon” took effect on October 26 when it was signed and accepted by the grantee. Hence, it did not take effect on October 25 when it was signed by Mrs. Arroyo. Is this consistent with the constitutional contemplation of pardon which cannot be interfered with by even the Supreme Court? The answer is NO. It would seem absurd to make the effectivity of the power of pardon depend, not on the exclusive will of the President, but on the will of the convicted grantee. The law abhors absurdity.

Forfeiture in plunder case

On September 12, 2007, the Sandiganbayan convicted President Estrada of plunder, and sentenced him to suffer the penalty of reclusion perpetua.

The dispositive portion or fallo of the decision further materially provides:

“Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the government of the following:

(1) The total amount of Five Hundred Forty Two Million Seven Hundred Ninety-One Thousand Pesos (P545,291,000.00), with interest and income earned, inclusive of the mount of Two Hundred Million Pesos (P200,000,000.00), deposited in the name and account of the Erap Muslim Youth Foundation.

(2) The amount of One Hundred Eighty-Nine Million Pesos (P189,000,000.00), inclusive of interests and income earned, deposited in the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as “Boracay Mansion” located at #100 11th Street, New Manila, Quezon City”

Comment:

(a) The decision became final and executory when President Estrada withdrew his motion for reconsideration.

(b) In law, the decision consists of two (2) parts: the body and the fallo. The body contains the facts, issues, and reasoning of the court, while the fallo contains the specific orders of the court which are to be executed by the sheriff.

(c) That duty of the sheriff is purely ministerial in nature. This means the sheriff’s authority is limited to the textual content of the fallo. He cannot add to nor subtract from the plain meaning of the written words.

(d) Is the forfeiture valid? NO.

First, the plunder law expressly provides forfeiture shall be in favor of the “State”. The fallo provides forfeiture shall be in favor of the “government”. Does the Sandiganbayan have the authority to amend the plunder law? The answer is NO. It has no authority to legislate. To amend the law is to legislate. This is prohibited by the principle of separation of powers under the Constitution.

Second. In law, government, along with people, territory and sovereignty, is an element of the State. They are separate and distinct from each other. Thus, the Sandiganbayan cannot properly treat them as one and the same.

(e) Is it possible for the sheriff to perform his ministerial duty of enforcing the fallo of the decision? NO. It is impossible for him to do so.

First, the fallo is fatally defective. It suffers from judicial, not merely clerical, errors.

Second, as to the Erap Muslim Youth Foundation, the forfeited amount is written in words with a total sum of P542,791,000.00, but it is written in figures with a total sum of P545,291,000.00. Does the sheriff have the discretion to choose which amount should be the basis of execution? NO. His ministerial duty proscribes the use of such discretion.

Under the Rules of Court:

“In all cases, the writ of execution shall specifically state the amount of interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant.” (Sec. 8e, Rule 39)

Does the fallo comply with this requirement? NO. It does not “specifically state the amount of interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment”.

The fallo describes the forfeited amount as “deposited in the name and account of the Erap Muslim Youth Foundation.” Does the sheriff have the authority to execute with respect to non-deposited amounts? NO. The fallo is clear. It is limited to deposited amounts. It does not cover non-deposited amounts.

Does the fallo indicate the name of the depositary bank? NO. Does it indicate the corresponding account number? NO. Does the sheriff have legal authority to determine, in one way or another, the answers to these questions? NO. Why? The use of such discretion is proscribed by the ministerial nature of his duty.

May the fallo be clarified or amended by the Sandiganbayan? NO. It is already final and executory. Under the law, final and executory judgments may be clarified or amended only with respect to clerical errors. Here, the errors are judicial in nature. Reason presumes the Sandiganbayan justices had carefully read and understood the contents of the fallo before they signed the decision. Hence, the error is theirs. Ironically, to presume otherwise would lead to the same conclusion.

Third, as to the Jose Velarde account, the forfeited amount is described as “deposited in the Jose Velarde account”. Clearly, the fallo refers to deposited amounts. It does not cover non-deposited amounts. Again, the fallo does not indicate the name of the depositary bank and the account number.

Fourth, as to the “Boracay Mansion”, the fallo does not indicate the lot area, as well as the number of the corresponding Transfer Certificate/s of Title (TCT). Ergo, the concerned Register of Deeds, whose duty is also ministerial in nature, would not know which TCT to cancel.

Fifth, President Estrada or his co-accused do not appear to be the registered owner of the real property. Therefore, the registered owner, who appears not to have been given the opportunity to be heard, is being deprived of property without due process of law. Consequently, the declaration of forfeiture is unconstitutional and void from the beginning.

(f) Forfeiture is part of the criminal, not civil liability, of the accused. The law enumerates what civil liability includes, namely: (a) restitution; (b) reparation of the damage caused; and (c) indemnification for consequential damages (Art. 104, Revised Penal Code). What the law does not include is excluded. Hence, the sheriff cannot validly execute against properties of the accused which are not among those forfeited.

Illegal suspension

Is Executive Secretary Eduardo R. Ermita criminally accountable for suspending the duly elected mayor, vice-mayor and councilors of Makati City? It would seem so.

Why?

First, that power is vested by law exclusively in favor of the President. There appears no law which authorizes the Executive Secretary to exercise that power.

Therefore, his exercise of that power is outrightly unlawful.

Second, the Administrative Code of 1987 expressly limits the authority of the Executive Secretary to acts that merely IMPLEMENT, and NOT ISSUE, presidential directives, orders and decisions. In the following case, the Executive Secretary himself ISSUED the suspension order. He acted as “the President”.

The order reads:

Office of the President

of the Philippines

Malacañang

ROBERTO G. BRILLANTE,

Complainant,

-versus- O.P. CASE NO. 06-H-305

MAYOR JEJOMAR C. BINAY,

VICE MAYOR ERNESTO S.

MERCADO, COUNCILORS

ERWIN JEJOMAR BINAY,

FERDINAND EUSEBIO,

ERLINDA GONZALES, RICARDO

JAVIER, RICARDO J. PUNO,

MONIQUE LAGDAMEO, ROMEO

MEDINA, ERNESTO ASPILLAGA

ISRAEL CRUZADO, ELIAS

TOLENTINO, DIVINA JACOME,

ROMANA PANGILINAN, NELSON

PASIA, NEMESIO YABUT, JR.,

RODOLFO SESE and CHRISTINE P.

MERCADO, all of Makati City,

Respondents,

X————————————-x

ORDER

This Office is confronted by the prayer in the complaint of Roberto G. Brillante for the Issuance of a preventive suspension of all respondents in order to prevent the latter from harassing possible witnesses, and to prevent them from tampering vital documents and evidence now in their offices.

Under Section 63 (b) of the Local Government Code (R.A. 7160), a preventive suspension may be imposed only after the Issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great: probability that the continuance In office of the respondent could influence the witnesses: or pose a threat to the safety and integrity of the records and other evidence.

In the case at bar, the records show that all the respondents have filed their respective Answers (Affidavits) to the complaint except respondent city mayor who submitted an Affidavit. Ad Cautela as a “precautionary” Answer to the charges. Mayor Binay Is requesting for a bill of particulars which could be ventilated before the Department of the Interior and Local Government (DILG) as Investigating Authority during the preliminary conference (Section 5, Administrative Order No. 23, as amended).

Considering that the contents of the said affidavit of respondent City Mayor Binay have answered squarely the Issues/charges set forth In the complaint, we, therefore treat said affidavit as his answer to the complaint thereby joining the Issues herein.

The second requirement Is that the evidence of guilt is strong. Contrary to respondents’ allegations, the documents submitted as annexes to the complaint present strong evidence of guilt that some of the employees may be “ghost employees” from their respective offices, collecting salaries from the city government to the prejudice of the latter.

Moreover, In view of the seriousness of the offense and the great possibility that respondents’ continuous presence in their respective offices would put pressure and influence on would be witnesses, and put in jeopardy the safety and integrity of the various records and documents, this Office deemed it necessary, In the Interest of justice, that the respondents be separated from their offices as a precautionary measure.

WHEREFORE, premises considered, respondents MAYOR JEJOMAR C. BINAY, VICE MAYOR ERNESTO G. MERCADO, COUNCILORS ERWIN JEJOMAR BINAY, FERDINAND EUSEBIO, ERLINDA GONZALES, RICARDO JAVIER, RICARDO J. PUNO, MONIQUE LAGDAMEO, ROMEO MEDINA, ERNESTO ASPILLAGA, ISRAEL CRUZADO, ELIAS TOLENTINO, DIVINA JACOME, ROMANA PANGILINAN, NELSON PASIA, NEMESIO YABUT, JR., RODOLFO SESE and CRISTINE P. MERCADO, all of Makati City, are hereby preventively suspended from office for sixty (60) days effective upon receipt hereof.

Meanwhile, so as to avert a vacuum and paralysis In the smooth and orderly delivery of basic and essential services to the constituents of the City of Makati, the DILG CITY DIRECTOR of Makati City is hereby designated as Caretaker of Makati City to run the day-to-day local government affairs thereat until such time that the President of the Philippines shall have designated a new set of officials for the City of Makati.

The Department of the Interior and Local Government Is hereby directed to implement this Order, immediately.

SO ORDERED.

Manila, Philippines. OCT. 16, 2006

By authority of the President:

(Signed)

EDUARDO R. ERMITA

Executive Secretary

The order appears to be the proverbial “smoking gun” and ought to be Exhibit “A” in the contemplated case of People of the Philippines vs. Ermita.

Third, the law also limits the authority of the Executive Secretary to decide, for and in behalf of the President, on matters NOT requiring personal presidential attention. Does preventive suspension of the elected officials of a highly urbanized city such as Makati – require personal presidential attention? Yes. Section 63 of the Local Government Code expressly says so. It would seem absurd to allow an appointed official to suspend duly elected officials. The authority of the first is merely derivative in nature, while that of the second is original – coming as it does from the direct mandate of the sovereign people.

Fourth, while the Executive Secretary is authorized to sign papers “By authority of the President”, the same is expressly limited to acts that merely IMPLEMENT presidential directives, orders and decisions. If he acts outside that limitation, he would be acting beyond the scope of his authority.

Fifth, under the law, the Executive Secretary may ATTEST, but NOT ISSUE, executive orders and other presidential issuances. According to Black’s Law Dictionary, “attest” means “to signify by subscription of his name that the signer has witnessed the execution of the particular instrument”. In the case at bar, the instrument or suspension order was EXECUTED by the Executive Secretary. He did not act as a mere witness to its execution.

Sixth, did Sec. Ermita persuade, induce or influence other public officials to perform an act? Yes. He ordered the DILG (Department of Interior and Local Government) and police officials to implement the suspension order which was, in fact, implemented. Did that act constitute an offense in connection with the official duties of the DILG and police officials? Yes. They enforced what appears to be a patently unlawful order. Instead of acting as law-enforcers, they acted as law-breakers. They acted unjustly and in bad faith when they deprived the sovereign people of the services of the latter’s duly elected officials, without proper legal basis. Thus, a case should be instituted for violation of Sec. 3a of the Anti-Graft & Corrupt Practices Act.

Seventh, did Sec. Ermita knowingly approve or grant any privilege or benefit in favor of any person? Yes. He had intentionally approved and granted the privilege of serving as Makati City officials in favor of persons who served in substitution of the unlawfully suspended officials. Were the substitutes legally entitled to such privilege or advantage? No. The order or quasi-judicial decision appears illegal and void on its face. According to jurisprudence, it has no legal and binding effect, force or efficacy for any purpose whatsoever.

In Re: Report on the Judicial Audit in RTC-Br. 15, Ozamis City, 438 SCRA 363, it was ruled that a decision that is void for failure to comply with substantial requirements would remain invalid notwithstanding the failure of the parties to question it.

Eighth, under the law, the Republic of the Philippines is not bound by the mistakes or errors committed by the Executive Secretary in the exercise of his functions. Consequently, he is personally liable for the same.

Sec. Ermita did not act alone when he suspended the subject Makati City officials. He and other persons had come to an agreement concerning the commission of the patently unlawful suspension and they decided to commit it. Under the law, that is conspiracy. The rule in conspiracy is - the act of one is the act of all. Thus, the case against Sec. Ermita should include all those who conspired with him.

Therefore, the title of the case against Sec. Ermita should not be People vs. Ermita (alone). It should be People vs. Ermita, and others.

Emasculation of impeachment process

In Francisco vs. House of Representatives, 415 SCRA 44, the Justices of the Supreme Court ruled that an impeachment case or proceeding is initiated when a verified complaint is filed and referred to the Committee on Justice for action, and that no second verified complaint may be accepted and referred to the committee within a period of one (1) year.

Is this consistent with the 1987 Constitution?

NO. The Constitution expressly provides: “The House of Representatives shall have the exclusive power to initiate all cases of impeachment” (Sec. 3, No. 1, Art. XI). It further provides: “No impeachment proceedings shall be initiated against the same official more than once within a period of one (1) year. (Sec. 3, No. 5, ibid.).

In other words, no citizen can initiate any case of impeachment. Why? Under the Constitution, only the House of Representatives can do that. The House of Representatives, and no other person or entity, can properly endorse the articles of impeachment to the Senate. There is no impeachment proceeding to speak of until the House of Representatives endorses the articles of impeachment to the Senate. What about the filing of a verified complaint by a citizen, is that not an impeachment proceeding? NO. It is a proceeding for impeachment. It is NOT YET an impeachment proceeding. It is the indictment by the House of Representatives, not the indictment by a citizen, that constitutes the true impeachment proceeding. It is thus incorrect to say that a verified complaint for impeachment filed by any citizen initiates an impeachment case or proceeding; or, that a second verified complaint filed by another citizen is covered by the one-year prohibition.

Emasculation of the Ombudsman

In Maceda vs. Vasquez, 221 SCRA 464, the Justices of the Supreme Court ruled the Ombudsman has no authority to investigate judges’ and court personnel’s compliance with all laws, or take the proper administrative action against them, if they commit any violation thereof.

Is this consistent with the Constitution?

NO. The Constitution expressly provides: “The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.”

In other words, the Constitution vests blanket investigative power in favor of the Ombudsman. The rule applies to ALL public officials, employees, offices and agencies. The rule does not distinguish between executive, legislative and judicial officials. The rule does not provide for any exception. Yet, the Justices of the Supreme Court do the opposite. They distinguish where the Constitution does not distinguish, and they provide an exception where the Constitution does not provide for any.

Emasculation of people’s initiative

On October 25, 2006, the Justices of the Supreme Court ruled in Lambino vs. Comelec that: “A people’s initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision.”

Is this consistent with law?

NO. It is contrary to law. The Administrative Code of 1987 expressly provides: “Any amendment to or revision of the Constitution, directly proposed by the people through initiative, shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty (60) days nor later than ninety (90) days after the certification by the Commission on Elections of the sufficiency of the petition” (Sec. 10(2), Ch. 2, Book 2).

The statute is clear. Revision of the Constitution may be directly proposed by the people through initiative.

Do the justices of the Supreme Court have authority to amend, modify, or repeal a statute? No. Under the principle of separation of powers, judicial officers have no authority to legislate.

Estrada vs. Arroyo

Under the Constitution, a duly-elected President may be removed from office only through the process of impeachment in Congress. The anti-Estrada forces wanted him removed, so they impeached him before the House of Representatives. Then, they tried him before the Senate. Then, the prosecutors walked out. They were not able to convict him. However, they were able to remove him by way of a military coup d’ etat led by Gen. Angelo Reyes. WAS THAT REMOVAL CONSTITUTIONAL? The answer is NO. Constitutional removal contemplates a CONVICTION resulting from an impeachment proceeding. President Estrada was not convicted in the impeachment proceeding. Therefore, his removal is void and inexistent from the beginning.

Under the Constitution, the trial of a duly-elected President must be conducted by the Senate of the Philippines. The Senate has SOLE JURISDICTION and is the EXCLUSIVE VENUE for the trial of the President. However, after the effort to remove President Estrada failed in the Senate, the trial was transferred to another venue - the Sandiganbayan. WAS THE TRANSFER OF VENUE CONSTITUTIONAL? The answer is NO. There is no provision in the Constitution which authorizes such transfer. Up to now, the justices of the Supreme Court or the Integrated Bar of the Philippines have not pointed to any such provision.

On January 20, 2001, the justices of the Supreme Court, led by Chief Justice Hilario Davide, Jr., swore in Gloria Arroyo as president in substitution of President Estrada. WHAT WAS THE CONSTITUTIONAL GROUND THEY INVOKED TO JUSTIFY THEIR ACTION? PERMANENT INCAPACITY / DISABILITY on the part of President Estrada. This was the ground invoked by Mrs. Arroyo herself in her letter to the Supreme Court justices who went to Edsa II upon such invitation.

THE HONORABLE SUPREME COURT
Supreme Court Building
Padre Faura St., Ermita, Manila
Attention: Honorable Hilario G. Davide, Jr.
Chief Justice

Your Honors:

The undersigned respectfully informs the Honorable Court that Joseph Ejercito Estrada is permanently incapable of performing the duties of his office resulting in his permanent disability to govern and serve his expired term. Almost all of his cabinet members have resigned and the Armed Forces of the Philippines and the Philippine National Police have withdrawn their support for Joseph Ejercito Estrada. Civil society has likewise refused to recognize him as President.

In view of this, I am assuming the position of President of the Republic of the Philippines. Accordingly, I would like to take my oath as the Honorable Chief Justice Hilario G. Davide, Jr., today, January 20, 2001, at 12:00 noon, at the EDSA Shrine, Quezon City, Metro Manila.

May I have the honor to invite all the members of the Honorable Court to attend the oath-taking.

Very truly yours,

(Signed)
GLORIA MACAPAGAL-ARROYO

However, in the justices’ decision in Estrada vs. Arroyo on March 3, 2001, the justices invoked the ground of CONSTRUCTIVE RESIGNATION, NOT PERMANENT INCAPACITY. What is the significance of the difference? By invoking constructive resignation, the justices necessarily repudiated the ground of permanent incapacity which they had earlier relied upon. What is the significance of that repudiation? The justices thereby ADMITTED they swore in Mrs. Arroyo upon a WRONG and INAPPLICABLE ground. Thus, her swearing in as President was INVALID from the beginning.

DID HER TAINTED ELECTORAL VICTORY DURING THE MAY 2004 PRESIDENTIAL ELECTION CURE THE DEFECT?

NO. There can be no valid presidential elections where the term of the last elected president has not yet validly expired. Under the Constitution, the one who takes over after the removal of the President shall serve for the unexpired term. But, this provision is premised upon a VALID REMOVAL. Therefore, WHERE THE REMOVAL IS NOT VALID, as in the case of President Estrada, the one who takes over CANNOT serve for the unexpired term. Why? The effect of an unconstitutional removal is necessarily the OPPOSITE of the effect of a constitutional removal.

In other words, President Estrada’s 1998 CONSTITUTIONAL CLOCK for six (6) years under the Rule of Law STOPPED on January 20, 2001 when he was forcibly removed. It was replaced by Gloria Arroyo’s UNCONSTITUTIONAL CLOCK under the Rule of Force. Hence, any presidential election, like the 2004 presidential election, would be contrary to the Constitution which cannot honor an unconstitutional removal of a duly-elected President. In short, THE 2004 PRESIDENTIAL ELECTION IS INVALID since the constitutional term of President Estrada has not yet validly expired.

WHEN WILL THE CONSTITUTIONAL CLOCK RESUME ITS OPERATION?

When President Estrada is reinstalled in office.

Epilogue

In the meantime, the Philippine government continues its unchartered journey inside the constitutional limbo of Gloria Arroyo’s unconstitutional clock.