On the President’s statement on the abolition of the pork barrel

I welcome the response of the President on the pork barrel issue. It’s time to break down the system of patronage and dynastic politics. Through this, let us intensify the creation of transparent mechanisms for services to truly reach the people. 

We are faced with a comprehensive issue that cannot be solved by the abolition of the pork barrel alone. The path that we must tread in order to move forward is the reform of the budget system in a way that will guarantee the equitable distribution of resources, especially for the poorest provinces. No one must be left behind.

Dinagat is among the provinces which has been left behind in terms of share in our government resources. We have used our PDAF in Dinagat to fund the needs of our constituents. We have allocated funds for scholarships as well as for emergency and medical assistance. National government agencies should ensure that resources are allocated to address these needs of the people in our district.

In time, we must consider shifting to a parliamentary form of governance where the Executive and Legislative are one in implementing programs for the people that go hand in hand with crafting laws that will uplift the marginalized.

At this point, we are called to rally behind the clamor for change. Para sa bag-ong kaugmaon, padayon!

THE CITIZEN-HERO: Sec. Jesse Robredo’s Legacy of People Empowerment and Community Contribution to Nation-Building

by Akbayan Representative Kaka J. Bag-ao

Hindi maikakaila na mahusay na lider si Jesse Robredo. Sa katunayan, alam na alam ni Sec. Jesse Robredo na mahusay siya. Sa katunayan, labing-apat na Galing Pook Awards ang pinaghirapan na sinungkit ng Naga sa kahabaan ng kanyang termino bilang mayor nito. Pero ano ang pinagkaiba niya sa iba pang mahuhusay na lider ng samabayanang Pilipino? Ang sagot: busilak at lubusan niyang pinaniwalaan na hindi lang siya ang magaling, na hindi lang sa kanya ang tagumpay kundi sa komunidad at sa mga indibidwal na mamamayan nito. Pilit niyang binigyan ng pagkakataon ang maliit na tao na hanapin, gamitin at ipagtanggol ang sarili nilang husay para sa pagpapanday ng kanilang lipunang kinabibiliangan.

Indeed, Sec. Jesse institutionalized a brand of leadership which has people empowerment as its basic foundation. By his actions and responses to local government concerns, he taught people how to take responsibility for the progress or decline of their own community. He took to heart the precepts of consultation and participation which the people he was able to engage with realized to be the essence of citizenship. He was quoted to have said that “Collectively, successful local governments, driven by constituencies who are well-informed, constructively engaged, and willing to share the burden of community building, can build our country”.[1] To my mind, he is saying simply that you have to lead people in such a way that they become leaders themselves. Empowering the community member encourages good governance.

He was right. And at this juncture of our country’s history we should take the rare opportunity to lead and nation-build on the basis of such well-proven formula. Tama na ang pogi points brand of constituency engagement. It’s time we treat our people like intelligent members of a community who can become able partners in lessening poverty, reducing crime, and achieving inclusive progress. Sec. Jesse showed us that people who seek remedies from the government are not asking to be spoonfed with ready-made quick fixes. They are, instead, asking that we tap into their rich base of knowledge and experience on the issues-at-hand and they are seeking for a partnership with government to solve the problem and not just its symptoms. Kaya nga sabi niya di ba, “kaya natin” hindi “kaya ko” o “kaya mo”!

That is the best thing about Jesse Robredo’s leadership: the concept of “tayo” which is the core of the Filipino culture of bayanihan in times of opportunity or difficulty.

But he did not only stop with the principle of “tayo”. Sec. Jesse also pushed for the importance of the sectoral groups themselves, which is key to their empowerment and eventual success.

I still remember when we were still campaigning on the Sumilao Farmers case in their “Walk for Land, Walk for Justice” where 54 farmers walked from Bukidnon to Malacañan in 2007.  When the farmers reached Naga City, they were warmly received by the Nagueños.  Sec. Jesse, who was then the mayor of Naga, even organized an entire program for the farmers and served meals and a place where they could rest. What was more surprising was that Sec. Jess literally took the extra mile when he walked with the farmers in the 10-kilometer stretch upon meeting them. Aside from the Sumilao Farmers, Sec. Jesse also welcomed with open arms the farmers of Banasi, Camarines Sur and other peasant groups in their struggle for land rights.

(Photo credit: http://www.naga.gov.ph)

 

(Photo credit: http://www.naga.gov.ph)

I also remember that before we left Naga, Sec. Jesse left this message to farmers, “Mahalaga ang tunay na pakikibaka, hindi dahil sa tayo ay magtatagumpay o di magtatagumpay. Subalit, sa palagay ko, mahalaga na may taong naninindigan sa kanilang karapatan, may mga taong ipinaglalaban ang hustisya, at may mga taong naniniwala sa matuwid. Dahil paminsan-minsan, mahirap ipaglaban ang paniniwala.”

(Photo credit: http://www.naga.gov.ph)

While losing one of our great leaders may be considered to be a time of crisis, I personally do not consider it to be so because it has become a great opportunity for the Filipino people to get to know a national leader of Sec. Jesse’s caliber and integrity; the Filipino youth to find another hero to emulate; and public officials like us to take the challenge and inspiration to blaze our very own trails towards partnering with instead of herding our constituencies.

As he passed on, Sec. Jesse gifted the Filipino nation a moment of collective, national epiphany, a bayanihan sort of “a-ha” moment and left us all with the question of “What will you do now?” What can we contribute to this nation as individuals, as a people, as interest groups, as civil society organizations, as public officials, as a government, as leaders entrusted with the power to effect change, as citizens burdened with the duty to push for accountability?

As Sec. Jesse did, we will seek to know what “general welfare” really is, by consulting with the farmers, fisherfolk, indigenous people, urban poor, and other marginalized groups. We will show respect for the needs of our police force so they will in turn look after the needs of our citizens. We will institutionalize government linkages with civil society organizations which unhesitatingly complement efforts in good governance and protecting human rights. We will fight for transparency and public information in government transactions. We will seek community input on concerns directly affecting them such as peace and security, health, education, environment and natural resource allocation.

As Sec. Jesse did, we shall consider as an important source of policy and legislation not only the gripes and ideas brought to us by our constituencies. More importantly, we shall take steps to reform our offices from within, taking the hard, even dangerous, but necessary steps to take out the long-entrenched culture of self-enrichment, non-transparency and ivory tower type of leadership. If we carefully ponder on the many tributes, accolades and testimonials given by people from all walks of life for Sec. Jesse, we will see that these only prove one thing: The Filipino people are done with the traditional type of politics in which they do not really have the power to choose their leaders and in which leaders impose their will on their constituency as the power flows from top to bottom. Because of the revelation that was Jesse Robredo, they have realized that they should participate in the all-important task of governing themselves and that they can seek accountability by being themselves accountable for their contribution to the community.

As he once said, “Our political history has shown that we have put the burden of running this country to our ‘best’ people for too long.  And yet, the gap between the rich and the poor has grown wider.  For this country to succeed, we need to make heroes of the ordinary people.  We need to make heroes of ourselves”.[2] Salamat Sec. Jesse sa iyong paniniwala sa mamamayang-bayani. ###

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[1] Follow Your Heart; Pursue Your Dream.  Jesse Robredo’ Speech during the Commencement Exercises of the Ateneo de Manila University in Quezon City held on March 29, 2003

[2]Follow Your Heart; Pursue Your Dream.  Jesse Robredo’ Speech during the Commencement Exercises of the Ateneo de Manila University in Quezon City held on March 29, 2003

Privilege Speech – No Arms for Atrocities!

Mr. Speaker, distinguished colleagues, ladies and gentlemen, I rise on a matter of personal and collective privilege.

I must talk about humanity’s struggle to build a more peaceful world. This is a historic moment with the question: Will the world have a global standard on weapons trade? Must we consent to a future where arms proliferate and breed humanitarian and human rights abuses? Last July 27, 2012, the United Nations was unable to reach an agreement on the Arms Trade Treaty (ATT) during the UN Diplomatic Conference held in New York City with representatives from over 170 countries. However, Diplomats at the UN remain optimistic further talks on a draft treaty could lead to a vote on a final ATT by the end of the year.

Mr. Speaker, there is too much at stake for the Philippines in this ATT Agreement. Consider that 6 years ago, Akbayan delivered a privilege speech on the proliferation of small arms. In 2006, when Rep. Risa Hontiveros delivered her speech there were 638 million firearms[1]. Now we have 875 million[2] worldwide. In 2006, there were 800,000 legal and 415,000 loose firearms[3] in the country. Now the Philippines has an estimated 1.1 million loose firearms[4],a 300% increase in just 6 years.

Weapons in the wrong hands undermine peace, our human security, development and poverty-reduction initiatives. Think of weapons proliferation and the Ampatuan massacre. Consider the easy access to small arms and the climate of impunity that surrounds the extra-judicial killings of journalists and activists.

Arms proliferation also facilitates gender-based violence against women.[5] Irresponsible weapons trading and diversion to illicit markets can exacerbate our problem with armed conflicts, and pose serious threats to human rights and international humanitarian law.

Comprehensive policies must include gun trafficking and international trade. Three years ago, a Panamanian-registered, Philippine-owned ship, MV Capt. Ufuk[6] docked in the Philippines. Turkey was the ship’s port of origin, and along the way passed it through Ghana and Congo[7] allegedly for ship repair before briefly stopping in Malaysia and Indonesia en route to Mariveles, Bataan. The ship contained Indonesian-made, Belgian designed SS1-V1 assault rifles ordered by Mali, a small State in West Africa. When the Bureau of Customs and the PNP raided the ship, only 5 gun crates remained out of the 20 crates with as many as 200 rifles. As then Sen. Rodolfo Biazon noted, “This is not just a case of loose firearms but a national security issue because 200 rifles could arm a battalion, (or) arm two companies.”[8] This is a strong argument on the international nature of our local problem with the illicit trade of weapons. There are gaps in our importation and exportation controls[9], and transport procedures regarding weapon shipments.

What is alarming? What is alarming is the sheer number of weapons in the world, and its annual authorized trade that exceeds more than USD 60 Billion. What is alarming is the 747,000 deaths per year because of armed violence worldwide. There are two bullets for every representative in this hall. In fact, there are two bullets for every person on this planet.

Mr. Speaker, there are international regulations in the trade of bananas but no regulations in trade of weapons—trade in nearly all categories of manufactured goods is regulated by rules which bind exporters and importers to commonly agreed conduct.

I call on Congress to support a robust global standard for the arms trade and the ‘no arms for atrocities’ principle. The following are concrete actions that we can spearhead:

One, At the national level, we must strive for the Matuwid na Daan in arms transfers. No arms for atrocities. Congress must enact policies that exact accountability for our international arms and ammunitions transfers.

The Philippines has a growing firearms and ammunitions industry and supporting a robust Arms Trade Treaty in the UN does not mean curtailing these industries[10] but will regulate the trade in weapons so that they may not fall into the hands of abusers.

Two, Congress must enact into law the set of criteria for our arms trade. Our national laws must support the spirit of a strong ATT. Until now we have no clear-cut policies that ensure human rights protection in our weapons trade. We must not allow arms shipment to butchers that will commit grave violations of human rights and humanitarian laws. No arms for atrocities. Mr. Speaker, the weapons industry in the Philippines must not authorize transfers if there is a substantial risk that those weapons would:

a. Be used to perpetuate or facilitate high levels of armed violence including gender-based violence, to particular rape and other forms of sexual violence;

b. Be used to commit or facilitate violations of international human rights or humanitarian law;

c. Impair efforts at poverty reduction or achieving sustainable development.

Three, Congress must support the adoption of the ATT by supporting the Global Parliamentary Declaration. Since last week, members of the Philippine Action Network to Control Arms, have been soliciting our parliamentary support. I encourage fellow representatives to sign the parliamentary declaration on the Arms Trade Treaty.

Mr. Speaker, the peoples of the world have spoken. To date, more than one million photo petitioners and 600,000 petition signatures were gathered and handed over to the UN Secretary General this month. I would like to take this privilege to reiterate the peoples’ longstanding call for a robust and legally-binding standard that ‘1) covers all weapons and transfers, 2) ensures wider transparency in the arms trade, and where 3) transfers are governed by strong criteria supporting international humanitarian law, human rights and gender, socio-economic development, and conflict prevention and reduction.’[11]

By the time I finish this speech, 50 persons would have died because of the illicit and unregulated trade in arms. Now is the time for a bulletproof Arms Trade Treaty that will save lives. Let us do our part in humanity’s quest for a just and peaceful world. No arms for atrocities! Maraming salamat po.

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[1] Hontiveros (2006) “Control Arms Now!” Privilege speech delivered in Congress on 7 August 2006.

[2]Small Arms Survey (2012) Retrieved July 2012 from <http://www.smallarmssurvey.org/weapons-and-markets.html&gt;

[3]Hontiveros (2006) Ibid.

[4]Felipe (2009) “PNP revokes Mayor Ampatuan’s 19 gun licenses”. The Philippine Star. 30 November 2009

[5]Control Arms (2012) Global Parliamentary Declaration on the Arms Trade Treaty.

[6]Vivanews (2009) Indonesia weapons smuggled to Philippines. 28 August.

[7]Manila Bulletin (2009) British captain of arms ship seeks government protection. 26 August.

[8]Philippine Daily Inquirer (2009) Biazon seeks Senate probe of gun smuggling. 03 August.

[9]SIPRI (2009) Arms transfers to Asia and Oceania. Background paper. Retrieved July 2012 from <http://unidir.org/pdf/activites/pdf4-act485.pdf&gt;

[10]PhilANCA and WE Act 1325 (2012) Letter to the President.

[11]Arms Trade Treaty Brief (June 2012).

PUSHING FOR A MINDANAO ENERGY SOLUTION (Speech)

PUSHING FOR A MINDANAO ENERGY SOLUTION

Speech by Akbayan Representative Kaka J. Bag-ao

Mindanao Consumer Summit: Mindanaoan’s Response to the Power Crisis

Ateneo de Davao University, Davao City

May 11, 2012

 

 

To the various civil society groups, people’s organizations, stakeholders, and local officials present, maayong buntag sa inyong tanan.

 

Mindanao has been called the land of promise, and indeed it is true for the millions of people who reside in it. Aside from the rich natural and human resources as well as the diverse culture and tradition that it has, Mindanao also leads the way for the country in renewable energy by having the largest ratio of renewable energy in its energy mix comprising 60% of the power generated in the island. This has been made possible by harnessing the tremendous power of natural forces by damning rivers and tapping geothermal spots to generate electricity.

 

As a Mindanawon, like many of you who are gathered here, I also feel a sense of trepidation with the fate that the island has. The frequent power outages lasting for a couple of hours in some areas while lasting for six to eight in others has left many people in the dark, literally and figuratively. It has unnecessarily disrupted various social, economic, and cultural activities in the island. Mindanawons feel powerless, no pun intended, as some groups say they must swallow the bitter pill of higher electricity rates or accept frequent black outs. Instead of sitting back and accepting such a fate they had nothing to do with, Mindanawons are raising objections to such kind of proposals and have instead come up with their own solutions. And why not? If Mindanao is to face a power crisis, then it should be given the option to solve it.

 

I’m not an energy industry expert but the tireless work of various stakeholders in the power industry has made it clear to all of us that accepting higher electricity rates in order to avert blackouts is a false choice. There are other choices. But before that, let me first raise the following points on the whole issue of the power crisis in Mindanao. First, this current mess that the island can be traced to a faulty national policy on power. Second, its effects are felt not only by Mindanawons but also by the environment especially in the issue of mining. Third, that if any solution can be given for this power crisis it must be a solution grounded on addressing those previous points I mentioned and that such a solution must be a re-imagination, not only of Mindanao’s power industry but that of the entire country as well.

 

Okay, I know those points I raised are a mouthful, but do bear with me as I delve deeper into them.

 

More than a decade since Republic Act No. 9136 or better known as the EPIRA passed into law the promise of affordable power premised on the privatization of power industry assets and competition of power producers has failed to materialize. EPIRA was touted as a way for the country to pay off the huge debts of the state-owned National Power Corporation or NAPOCOR by privatizing its assets. Its proponents promised that NAPOCOR’s P943 billion debt could be paid off. Instead of being paid off, NAPOCOR’s debt increased by 1.24 trillion in 2009 from 943 billion in 2001 and in the process lost profitable power assets that generated tens of millions of dollars in income yearly. Many of these assets were sold at rates often favorable to the purchaser such as the Masinloc Geothermal Plant which had an $80 million dollar annual income and sold for $390 million with only a 40% down payment with the balance to be paid in seven years.

 

The promise of competition didn’t prove to be true either. Instead of competition, the power industry is now controlled by a few business interests many of whom own both the assets that produce power as well as the companies that distribute it. It is not uncommon that the companies operating power assets in some parts of the country are also power distributors in others. In fact one can simply mention four or five companies and these would account to more than half of the entire power industry. Simply put, how can anyone expect competition to bring the prices of electricity down if the production and distribution of power as well as the market prices of power are controlled by a handful of companies?

 

Instead of affordable power, consumers ended up paying more than twice the rates in just a decade. The end of state monopoly of the power industry opened the floodgates for oligopolistic control of the industry. Privatization benefitted groups such as San Miguel, the Lopezes, the Aboitizes, and companies owned by Manny Pangilinan but left the majority of electricity consumers at the losing end.

 

This oligopolistic control of the industry has also created further problems. With these big companies now exerting more influence on the country’s energy policy, they are now also exerting influence on other energy issues such as the kind of energy used and for what purpose it is produced.

 

Although the Renewable Energy Act of 2008 clearly spelled out the country’s policy for renewable energy like hydro, geothermal, solar and wind to have an increased share in the energy mix of the country to address environmental issues as well as to decrease dependence on imported fossil fuel, the half-hearted efforts from the government coupled with the strong lobby of certain groups arguing that renewable energy would cost more prevented the full take off of a strong renewable energy sector. In fact, many of these groups such as the Aboitizes presented coal energy, one of the most detrimental forms of energy in terms of health and environment, as a solution to the growing demand for energy.

 

In effect, we are being told that we should have clean and renewable energy but since we cannot afford it, we should settle for an energy source that will cost us even more causing damage to the environment and exposing us to health risks. Like the issue of privatization, we are being made to choose between two undesirable choices. It’s either we pay for expensive energy or damage our lungs and the environment. Well, we shouldn’t buy into that. Coal isn’t even proving to be affordable as it was promised.

 

Because coal is basically a non-renewable resource, it is no surprise that it is not really cheap, unless coal energy proponents discover a way to create coal circumventing Mother Nature’s process which takes millions of years to create coal, the prices will only go higher. It doesn’t make it any better that its generation cost is also subject to the fluctuations in the price of coal.

 

Coal energy has now expanded its share of the energy mix from 10% in 1991 to the current 30%. Its proponents raise two key issues, affordability and rising demand for energy, as an argument for the further increase of coal’s share in the country’s energy mix. From the current 10 coal-fired power plants in the country, more are set to be built. A coal plant project in Subic, led by the Aboitizes, is planned to generate 400 to 600 megawatts to stave off a power crisis in Luzon. Closer to home, Energy Secretary Rene Almendras unveiled plans for a 1000 megawatt capacity for Mindanao. But stakeholders in Subic and Mindanao have been left scratching their heads. Subic and Olongapo have no need for more power as it is being addressed by existing power plants in the area. Mindanao has a shortfall of only 100 megawatts, not 1000. So, who needs this extra power? There is growing suspicion that such a huge output in energy is needed to meet rising residential and industrial use as well as the growing mining operations in the country.Jean Marie Ferraris, from the Legal Rights and Natural Resources Center-Kasama sa Kalikasan (LRC-KsK) stated that “There is enough energy supply in the country if not for the mining industry.”

 

In Mindanao, the mining industry which already uses tremendous amounts of energy is driving this growth in coal energy. As a result, Mindanao must face greater environmental pressure caused by mining and coal power. Coal energy it seems, is a twin of mining, both create more damage than benefits. Both industries have pernicious effects on the environment. Mining contributes a paltry to the region’s share of the gross domestic product while taking a huge toll on the environment causing soil erosion, threat to biodiversity, and groundwater contamination. Coal energy is not much different; the amount of harmful gases it releases into the environment makes it one of the main causes of global warming. These two industries are mutually dependent. Mining drives the demand for coal energy while coal energy makes an expansion of the mining possible.

 

As the island of Mindanao continues to endure a power crisis, many of its people are left wondering what solutions can be made. Clearly, EPIRA has failed to deliver and the current trend in energy isn’t too promising. Mindanao is lucky in a way because its power sector was given a 10 year reprieve from EPIRA. However, with the current energy crisis gripping Mindanao, some groups have now come knocking on Mindanao’s door. Time is up they say. It’s time for privatizing Mindanao’s power assets they say.

 

To those who believe that the Agus-Pulangui hydro power assets must be privatized, that coal power must now fill a concocted 1000 megawatt demand, that privatization is the solution, and that renewable energy is a waste of money, Akbayan says, “Sorry, we beg to differ.”

 

Combining the proposals of various renewable energy advocates, people’s organizations, and Mindanao leaders a clear alternative is beginning to take shape. Instead of privatizing power assets, greater government control of the industry is gaining more and more supporters. Instead of dirty and expensive coal energy, renewable energy such as hydro power is seen as the strongest answer. What is even more important to this alternative solution is the growing clamor for people’s participation in how their power is made, used, and managed. Indeed this is real people power.

 

It is noteworthy that during the recent Mindanao Power Summit attended by President Benigno Aquino III, various stakeholders in the region from the local government officials to civil society organizations pushed for returning government participation in the industry. Many proposed the creation of a “Mindanao Power Corporation” to manage the various energy assets in the region with the end goal of making the people of Mindanao responsible for their own energy needs. This is a clear rejection of control of the power oligopoly in Mindanao.

 

Another component of this alternative solution is focusing on renewable energy. Instead of abandoning hydro power, we must rehabilitate these power assets, starting with the Agus-Pulangui hydro power plant. Dredging of the heavily silted rivers together with upgrading of its facilities will ensure affordable and renewable energy will remain as a bedrock of Mindanao’s power production. Added to this is the need for investing in other renewable energy resources such as geothermal, solar and wind. Small scale operations of solar energy have shown positive results that run contrary to allegations that renewable energy is expensive. It also noteworthy that Mindanao, which is strongly opposing coal, is also opposing mining. Mindanao will not allow coal power and mining to take off at the expense of the region’s environment and health.

 

Also, important is the need for citizen’s participation in the different levels of the power sector. Mechanisms for consumers to take part and have a say in how their power is sourced and distributed means that the public will no longer become passive actors in the power industry. This also means accountability and transparency is ensured and practices that tend to raise the price of power are prevented. In effect, the promises that EPIRA made will be fulfilled in spite of it.

 

Mindanao is no longer just a land of promise. The Mindanawons who challenge the imposition of higher rates, dirty energy, and privatization have clearly laid out an answer not only for the Mindanao power crisis but also for the future of the Philippine power sector. Indeed, Mindanao must show that there is another way.

 

Daghang salamat

PRESS RELEASE, March 21 2012: Akbayan questions SC ruling reaffirming FASAP recall

PRESS RELEASE, 21 March 2012
Contact Person: Adrian Baccay @ 0927 4308021

Akbayan questions SC ruling reaffirming FASAP recall

Akbayan Party decries the recent Supreme Court ruling on March 13, 2012, rejecting the Motion for Reconsideration filed by the Flight Attendants and Stewards Association of the Philippines (FASAP) against the recall of the resolution of its case versus Philippine Airlines (PAL). The case is part of the impeachment case against Chief Justice Corona.

“The resolution reaffirming the Supreme Court’s earlier recall of an otherwise final and executory decision is devastating to FASAP who have awaited the finality of the favorable decision of the SC for years. The recall order and this recent decision reaffirming it snatched defeat from the jaws of victory for FASAP. I really hope that this decision has nothing to do with the testimony of FASAP President Bob Anduiza in Chief Justice Corona’s impeachment trial,” Akbayan Representative Kaka Bag-ao said.

On February 7, FASAP President Roberto “Bob” Anduiza took the Senate witness stand to prove the irregularities in the Supreme Court’s resolution that recalled the final and executory Decision favoring the flight attendants.

In his testimony for Article III of the verified impeachment complaint, Anduiza said that the Supreme Court appears to give a preferential treatment to PAL as the former required the latter to comment on a petition-letter previously sent by FASAP. But when PAL sent a letter to the Supreme Court through its counsel, Atty. Estelito Mendoza, the case was immediately docketed as a new administrative matter of the Supreme Court despite the fact FASAP was not notified of the existence of such letters. FASAP learned of the existence of the letter only after the court promulgated its resolution recalling its earlier Decision on the case.

According to Bag-ao, the FASAP v. PAL is a landmark case that may just go down the drain by setting a bad precedent for the Philippine judicial system. “With the recall forming part of our judicial system, what can stop parties or their lawyers from employing underhanded maneuverings, in the guise of mere letters or endless Motions for Reconsideration?” Bag-ao quipped.

“It is even more unfortunate that the Supreme Court has denied us the opportunity to present the testimonies of court personnel and documentary evidences which could have shed into light the active involvement of the Chief Justice in the recall of the FASAP Decision that is recently upheld by the Supreme Court,” Bag-ao said.

Bag-ao hopes that the impeachment court will consider the plight of FASAP members in their decision to convict Corona. “By promulgating a guilty verdict on the Chief Justice, somehow we will be able serve the ends of justice in favor of FASAP,” Bag-ao concluded. ###

YOUNG AND DETERMINED

“Whatever happened to helping old people cross the street?”

That was my initial reaction when I was told Chip wanted to file a bill for a “good deed” project at school. Chip’s father is a long-time friend of mine and a fellow alternative lawyer. He said his kid wanted to ban schools from selling softdrinks, so he made a bill prohibiting it. I was told Chip was a Grade One pupil. I said, “Okay. No prob. I’ll file it.” But all the while I was thinking, I was in Grade One too, at that time I also wanted to change the world like Chip, so I made paper machès, stick-figure drawings and paperdolls. For a good deed project, as I’ve said, I’d help an old person cross the street or I’d just probably wash the dishes at home.

Chip came to my office after his class, still in his uniform, ready to make schools a healthier place for kids. Right then and there, he explained to me the health effects of soda and other drinks with high-sugar content and caffeine. He cited studies and Word Health Organization reports. He knew his facts. He knew his arguments. I was amazed. He was seven years old and already, an articulate lobbyist.

So we printed copies of the bill and went to see my fellow Akbayan Representative Walden Bello, for his signature as our co-author. Then we went to the Bills and Index and got our house bill number, HB 4268 or the “Healthy Beverage Options Act of 2011”. But we simply called it the “Chip’s Bill”.

Then Chip toured the House of Representatives. He went to see the Speaker and discussed his bill with Speaker Belmonte himself.

As we walked back to my office, I was wondering what age will Chip be when his bill would finally be passed into law. Take the RH Bill’s ten years (and still counting) for instance, and Chip will already be a high school senior before Chip’s Bill becomes Chip’s Law. Provided he will not be accelerated!

After that, we went back to our office where Chip began playing with the miniature boxing belt which Rep. Manny Pacquiao gave all members of Congress last Christmas. I thought of the committee hearings, the technical working groups, the lobbying of the rich multinational soda companies, the plenary debates, the bicam conference, the caucuses, the presscons, all ahead of this little kid and his progressive little piece of legislation. He just smiled at me and began playing with the small Ifugao hut on my table. He wants to be a scientist, he said, as he continued putting the toy Ifugao man inside his hut.

Chip thanked all of us and said he’ll be back for the deliberations. I thanked him too for the honor of becoming his ‘co-author’. He left our office with smiles on our faces. It felt like that feel-good-story, those of us, cynical civil servants needed for a long while.

A few days ago, I was told that Chip’s good deed project now has a Senate counterpart and a proposed Quezon City Ordinance. He is eight years old and already doing his media campaign. There is really no stopping little Chip!

Meanwhile, House Bill No. 4268 is still lodged in the House Committee on Welfare of Children. Last year, I wrote the committee to consider the bill for preliminary deliberation. It was put in the calendar but its hearing was postponed due to conflicts in schedules.

As I watch Chip on TV, I notice how much taller he is now. I can’t help but say, “Hey Chip, don’t grow up too soon, but when you do, please do us a favor and stay young”

PASS CHIP’S BILL NOW!

Impeachment Chronicles (Day 5)

Impeachment Chronicles

Representative Kaka J. Bag-ao, AKBAYAN Partylist

25 January 2012 (Day 5)

Contact Person: Jan Eugenio, AKBAYAN Policy Affairs Officer, 09088849545

 

Miriam lays down 3 Crucial Points for the Impeachment Trial

For the first time after a week-long absence, Miriam Defensor-Santiago appeared as a senator-judge in the impeachment trial of embattled Chief Justice Renato C. Corona. The feisty Senator gave her perspective at the beginning of the trial yesterday.

First, Santiago stresses that the impeachment proceedings is not a judicial nor a political process. Rather, it partakes of the nature of a quasi-judicial, quasi-political body. The Senator’s view is somehow parallel to the one taken by former Chief Justice Reynato Puno who explained in his dissenting and concurring opinion in the case of Francisco vs. House of Representatives that the impeachment proceedings is sui generis.

Consequently, Santiago made her second point that the quantum of evidence required in convicting an impeached public officer should be of having an “overwhelming preponderance of evidence”. This differs from the views taken by both the prosecution and the defense panels. On one hand, Rep. Niel Tupas of the prosecution panel said that only “substantial evidence” is needed for conviction. On the other hand, former Justice Serafin Cuevas of the defense panel stated that it should be “proof beyond reasonable doubt”.

“Proof beyond reasonable doubt” which is that degree of proof, excluding the possibility of error, which produces moral certainty. If the facts are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfil the test of moral certainty and, consequently, the innocence of the accused will prevail. This is the evidence required in criminal proceedings, and this is the most difficult to obtain. “Preponderance of evidence” means the weight, credit and value of the aggregate evidence of one party is superior to the other party. The only question is which party has the more convincing evidence? This is usually used in civil cases where there are at least two contending parties. “Substantial evidence” refers to evidence adequate to support the reasonable conclusion that a certain act or omission occurred even if it is possible to draw two inconsistent conclusions from the evidence. This is the evidence required in administrative cases, and is said to be the easiest to obtain.

Santiago went one notch higher by adding “overwhelming” to the phrase “preponderance of evidence”, thereby implying that the evidence presented by the prosecution should be far more greater than that presented by the defense. Santiago pointed out that the framers of the Constitution thought that the penalty given in case of conviction in impeachment trial is not retributory in character; impeachment is not a punishment.

Third, Santiago gave her legal opinion on the imminent issue on whether the impeachment Court should be liberal in the appreciation of evidence. Santiago said that there was no need to go into jurisprudence because the rules expressly provide that a liberal interpretation should be made and technicalities should be brushed aside. A liberal interpretation also implies that any document that is related to a particular article of impeachment (in the case of Article 2, the Income Tax Return of Chief Justice Corona and members of his family) must also be admitted as evidence by the impeachment court. In this way, it would hasten the proceedings of the trial. ###

Impeachment Chronicles (Day 1-4)

Impeachment Chronicles

Representative Kaka J. Bag-ao, AKBAYAN Partylist

Updates on 16-19 January 2012 (Day 1-4)

Contact Person: Jan Eugenio, AKBAYAN Policy Affairs Officer, 09088849545

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Defense’s delaying tactics apparent in the first week of the Senate Trial

The information materials on the impeachment process and on the impeachment case against Chief Justice Renato Corona seek to educate the people on the legal processes in and to give updates regarding the trial at the Senate. The ultimate objective of this forum is to assist the people as they participate in this process of making the Supreme Court and its Members accountable to the people, regardless of the outcome of the trial. A recap of the important matters that occurred during the first week of the Senate trial is made below.

Day 1 (16 January 2012):

Exclusive power of the House of Representatives to “initiate” the impeachment case

As expected, the first legal question that the defense team raised at the Senate was on the issue of the verification of the impeachment complaint filed by 188 members of the House of Representatives. Although no motion to dismiss the complaint is allowed at the Senate trial, the defense tried to maneuver around the rule by filing a “motion for a preliminary hearing” (instead of a motion to dismiss) and prayed for the immediate dismissal of the complaint. The defense’s strategy was apparent— to seek an immediate dismissal of the complaint even before the impeachment trial at the Senate has began.

Unfortunately, however, the subject matter of initiation of the impeachment process, including the filing of the complaint, falls under the absolute exclusive power of the House of Representatives. Under the circumstances of this case, the House of Representatives had already passed upon the sufficiency of the complaint in form and substance, and this is deemed to include the aspects of proper verification, favourable resolution and affirmation of at least one-third of all members of the house. The exercise of this power cannot be subject to the scrutiny of the Senate as an impeachment body because the Senate’s power starts with that of “trying and deciding” the impeachment case as already filed before it. And, thus, Senate President Juan Enrile, acting as the Presiding Officer of the impeachment trial, immediately denied the defense’s motion to dismiss (couched as a “motion for preliminary conference”) the impeachment complaint against Chief Justice Corona.

Private Counsels may appear for the prosecution

Early on, the Presiding Officer also settled that the private prosecutors are allowed to appear at the trial provided that “they act under the control and supervision of the panel of prosecutors of the House of Representatives”. However, the presiding officer disallowed the private prosecutors to argue on questions of law. This means that only members of the panel of public prosecutors, the members of the House, may argue during the proceedings. It seems like this ruling is quite contrary to the provision of Article XIII of Senate Resolution 39[1] which expressly allows private counsels for both the defense and prosecution to “appear and be heard upon an impeachment”.

Corona pleaded thru private counsels

Contrary to Corona’s previous statements that he will answer the impeachment complaint squarely and personally appear at the trial to answer the allegations lodged against him, Corona –despite being present at the trial- passed on to his private counsels the actual entering of a plea of “not guilty” in his behalf. Admittedly, though, the rules allow his representatives to act in his behalf.

Day 2 (17 January 2012):

Improper application of the “Doctrine of Privileged Communication”

The Senate, acting as an impeachment Court, voted to deny the prosecution’s motion to issue subpoena ad testificandum to the members of the family of Chief Justice Renato Corona, particularly, his spouse Cristina Corona, his children Carla Corona-Castillo, Francis Corona and Czarina Corona, and his son-in-law Constantino Castillo.

There is no doubt that Chief Justice Corona has the option not to appear before the impeachment court in accordance with his Constitutional right against self-incrimination. In ordinary cases, direct family members also have the option not to testify against one another because their communications are considered confidential. Be that as it may, the prohibition on privileged communications cannot be invoked instantly and in a blanket manner as it may only be invoked when the question being propounded to a witness by the opposing counsel are already incriminating against himself or a member of his/her family. Members of the Congress have clarified this several times in their conduct of investigations in aid of legislation in the past. This means that persons to be summoned by the impeachment court, in this case the members of the family of Chief Justice Corona, cannot refuse the subpoena Viewed in that light, the denial of the subpoena requested by the prosecution can therefore be considered to be premature. Furthermore, it was improper for the Court to also afford the shield of “privileged communication” to the son-in-law of Chief Justice Corona. The law on parental and filial privilege extends only to “children or other direct descendants.”[2] Senator Alan Peter Cayetano was correct in stating that the rule applies only to ascendants or descendants with a common ancestry, not to in-laws.

Impeachment does not take the nature of a criminal proceeding

Although the Presiding Officer agreed that the nature of impeachment proceeding is sui generis (a class of its own)—meaning, it is neither purely political nor criminal in character—he indicated in open court that “it is more akin to a criminal proceeding”.

With due respect to the Presiding Officer, it is opined that the impeachment proceeding is not “more akin to a criminal proceeding”. On the contrary, the proceedings are more political in character. First, the Constitution allocates the power of impeachment to Congress—the right to accuse is exclusively lodged with the House of Representatives, while the sole power to try and decide all cases of impeachment belongs to the Senate—both of which are political branches of the government. Second, the impeachable offenses are political and not necessarily criminal offenses. Hence, among the grounds of impeachment are “other high crimes” or “betrayal of public trust”. Third, the consequences of impeachment are political punishments and not necessarily penal in character. Fourth, the courts have no power to review the decisions of the impeachment body because they are considered as political in nature.[3]

None other than the former Chief Justice Reynato Puno clarified the nature of impeachment proceedings as neither political nor criminal, but sui generis. Not being a purely criminal proceeding, it does not require “proof beyond reasonable doubt” to convict a person impeached. Thus, the senators may use any quantum of evidence except for “proof beyond reasonable doubt” as basis for their vote in any of the articles of impeachment such as “clear and convincing evidence”; “preponderance of evidence”; or “substantial evidence”.

Prosecution has the right to determine the order of presentation of evidence

It is common knowledge in trial practice that the prosecution is given the flexibility in the manner of presenting the evidence, in the same manner that the defense is accorded the same leeway in presenting their defense. It is thus surprising that Corona’s defense counsels were over eager and wanted to dictate the order of presentation of the articles of impeachment. That move was clearly dilatory.

Day 3 (18 January 2012):

Impeachment Court as a Constitutional Body

The Senate properly issued the subpoena to Supreme Court Clerk of Court, Atty. Enriqueta Esguerra-Vidal, as well as the production of the statement of assets, liabilities and net worth (SALN) of Chief Justice Corona.

The Senate sitting as an impeachment court is a Constitutional body created under Article XI for purposes of impeaching a public officer. This does not pertain to the usual legislative functions of the Senate. To effectively comply with this mandate, the Senate has the power to issue subpoena to a person to testify personally (subpoena ad testificandum) or to produce documents (subpoena duces tecum). This would not result in a Constitutional crisis because this is part of the processes the Senate, as an impeachment body, is allowed to issue under the principle of checks and balances.

Senator Judges are allowed to clarify matters

Under the Senate rules, a Senator Judge can put a question to a witness, prosecutor, counsel, and even to the person impeached. Note that each Senator is treated as a Judge in the impeachment trial. He/she has the power to ascertain each fact of the case. The accusations of bias by the defense panel against some of the Senator-Judges who asked questions to clarify some matters are utterly unfounded.

Day 4 (19 January 2012):

Truthful and genuine disclosure

The prosecution started with Article II of the complaint which deals with the non-disclosure of the SALN of Corona. By public disclosure of SALN, the prosecution means the “truthful and genuine” SALN of Corona, not one with hidden or undervalued statements, otherwise, there would be no public disclosure at all as required under the Constitution. Consequently, this article included the investigation of the allegations of ill-gotten wealth and accumulation of other high assets and huge bank accounts.

Again, the defense has thrown a barrage of objections against the presentation of the land titles allegedly owned by Corona and his family. They are expected to continue with their legal maneuverings in the coming days and prevent the presentation of other documents by the prosecution, thereby further delaying the proceedings of the case.

Admittedly, both prosecution and defense panels are still learning the ropes of the conduct of an impeachment proceeding. And, this is quite understandable because the use of the impeachment process is rare as it is important. It is beneficial though that the Senate sitting as an impeachment body is prepared and able to give guidance to the parties, with Senate President Enrile at the helm.

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[1] Resolution adopting the Rules of Procedure on Impeachment Trials.

[2] Section 25, Rule 130, Revised Rules of Court.

[3] Justice Reynato Puno’s Concurring and Dissenting Opinion in Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003.

Dismantling Coronarroyo, Sustaining the Momentum of Change

Dismantling Coronarroyo, Sustaining the Momentum of Change

Speech for the 14th Year Anniversary of Akbayan Citizens Action Party

23 January 2012, Pugad Lawin Hall, Quezon City Sports Club, Quezon City

 

Distinguished and honored guests, friends of Akbayan, my party-mates in Akbayan Kung Hei Fat Choi!

I welcome this invitation to speak before you today as a refreshing break from the intense preparation sessions of our team of lawyers for the prosecution of Articles 3 and 4 of the Articles of Impeachment. Sa totoo lang po ako’y medyo kinakabahan sa bigat ng hamon sa akin at sa laki ng expectations ng mga mamamayan sa aming mga prosecutors sa impeachment trial ni Chief Justice Renato Corona. But since I do not see the now-familiar faces of the Defense Panel – Former Justice Serafin Cuevas, my former teacher Atty. Jack Jimenez in the hall, I do not expect to be interrupted by any objection, technical or otherwise.

Also, before I begin to discuss some serious stuff, I would like to take this opportunity to correct the misimpression being peddled by a certain Professional Heckler. Ang suot ko noong opening ng Impeachment trial ay hindi galling sa alin man branch ng SM. Yan ay isang kasinungalingan. At kung kailangan kong ipa-subpoena sa witness stand si Manay Gina de Venecia at ang iba pang miyembro ng Association of Lady Legislators upang patunayan ito ay gagawin ko. At bago pa man makapag-object si Congressman Walden Bello, na hindi nabigyan ng terno, ay itutuloy ko na po ang aking speech.

The year 2011 will be remembered as the year of reckoning against the corrupt past of Gloria Macapagal Arroyo. “Taon ng pagsingil ng mga mamamayan sa siyam na taong pandarambong at katiwalian ng mga Arroyo.”

We began the year 2011 with a full-court press to dismantle the first line of defense cleverly and maliciously put in place by former president Gloria Macapagal-Arroyo, by impeaching her appointed Ombudsman Merceditas Gutierrez. Merci and her cabal single-handedly frustrated all attempts to make GMA accountable to the various graft and corruption charges against her. It took almost half a year, thanks to the TRO issued by the Supreme Court, for us in the House of Representatives to overwhelmingly impeach her.

Without us firing a single shot in the halls of the Senate, Ombudsman Merceditas Gutierrez succumbed to the tremendous pressure both from the public and from the strength of the Articles of Impeachment against her. Thus GMA’s first line of defense crumbled. And because of this historic victory in our mission to make GMA accountable for her crimes against the Filipino people, she is now facing charges for the anomalies that she and her administration committed in the NBN-ZTE scandal and PCSO fund scam. These are just the first gains that we are reaping from Merci’s impeachment. More are still to come.

At this point let me share to you a personal anecdote, one that is close to Akbayan’s heart. When the Articles of Impeachment against Ombudsman Meceditas were being drafted, one article was considered by many as the weakest – the case of Ensign Phillip Pestaño. In fact, nobody was willing to prosecute the article except for the Akbayan team who insisted on its inclusion. We prepared long and hard to prosecute it in the Senate trial but because of Merci’s resignation, we were denied the opportunity to prove its relevance to the impeachment case. The recent filing of murder charges against the 10  suspects in the murder of Ensign Philip Pestaño by the Office  Ombudsman led by Conchita Carpio Morales is a vindication, not only for us in Akbayan but more importantly for his parents, Ka Pepe and Tita Nene and Philip’s siblings and friends. After more than a decade and a half of constant and unwavering push to make the wheels of justice turn, they will have their day in court and the first step towards achieving justice has been taken.

Akbayan’s critical role in the impeachment of Ombudsman Merceditas Gutierrez cannot be denied. Risa Hontiveros, together with Gen. Danny Lim and Ka Pepe and Nene Pestaño filed the impeachment complaint. Rep. Walden Bello and myself endorsed the complaint and successfully advocated for it in the House Committee on Justice. Akbayan, likewise, took the leadership in the public campaign for Merci’s ouster together with our allies in the Oust Merci Gutierrez Movement (OMG).

With all candor and humility, I claim with pride that we, in Akbayan, were in the frontlines of that battle against the corrupt and inept pawn of GMA and we prevailed.

We have won a battle, we still have a war to win. The next battle has begun and Akbayan’s banner is still waving in the frontlines. In this battle, we stand face-to-face with GMA’s last line of defense, the strongest, brightest and the most loyal among her generals, GMA’s former Chief-of-Staff and now her acting “Secretary of Defense”: Chief Justice Renato Corona.

Much as I want to share with you my thoughts on the merits of the Articles of Impeachment against Chief Justice Renato Corona, I am gagged. Kaya nga po chubby ang cheeks ko.

Let me share with you my thoughts and reflections on the impeachment of the Chief Justice without dealing and arguing on the merits. Kung nakikita nyo po sina Speaker Belmonte, Cong. Jun Abaya, Atty. Ayo Bautista at iba pang miyembro ng prosecution team, paki-distract na lang po sila para di nila marinig ito. Yun pong mga nakikinig nito sa kanilang mga TV at radyo pakihinaan na lang po ang volume dahil secret po ito.

Last January 16 in the morning, a few hours before the impeachment trial in the Senate began, Chief Justice Corona delivered a fiery speech commenting on various points of the Articles of Impeachment and even discussed at length each of the 45 land titles listed and released by the Land Registration Authority. He admitted owning some and denied the others. Nagulat nga ako na inisa-isa nya yun e samantalang may gag din sya. Di ba chubby din ang cheeks nya?

To be honest, I was pleasantly surprised by his show of resolve to argue his own case that I thought he was willing to testify on his own behalf. But this was proven wrong, when his defense objected to the prosecution’s request for the issuance of subpoena for the Chief Justice and his family to testify before the Impeachment Court. Their objection was sustained. I am tempted to present arguments against the ruling here but I am constrained by my cheeks are chubby.

But if the Chief Justice is really serious about defending himself and personally challenge the accusations against him, I challenge him to take the witness stand when the turn of the defense to present evidence comes. It will give him the opportunity to do what he is doing outside the Impeachment Court – rebutting the pieces of evidence and testimony one by one. The witness stand will also give him a bonus. It will also give him the pleasure and opportunity to personally show how inept and inexperienced we, in the prosecution, are.

Let me go to another highlight of his defiant January 16 speech.

In his January 16 speech, Chief Justice Renato Corona bared what is now called “The Conspiracy of 3”. He said it is a conspiracy of three persons: one wants to prevent the distribution of Hda. Luisita, the other one is in a hurry to become vice-president but lost in the election and finally the third, has the ambition to become Chief Justice.

CJ Corona is right. He is right about the existence of a conspiracy but he got his numbers wrongs. It is not a conspiracy of three, neither is it a conspiracy of 188. I daresay it is a “Conspiracy of Millions” – a conspiracy of  Filipinos conspiring to remove him from the post which he abused.

It is not a conspiracy to force the Supreme Court to its knees and follow the will of a dictatorship but rather a conspiracy of millions of people who are desperate to restore the independence of the Supreme Court and free it from any undue influence. It is a conspiracy of Filipinos who are reclaiming the Supreme Court from the clasps of the claws of Corona’s sovereign, Gloria Macapagal Arroyo. This is a conspiracy of the Filipino people intent on reclaiming the Supreme Court from the Coronarroyo Conspiracy.

Chief Justice Corona claims that his impeachment is all about Hda. Luisita. Perhaps, Chief Justice Corona has forgotten that we in Akbayan have been working with the farmworkers of Hacienda Luisita and the Department of Agrarian Reform precisely to make its distribution a reality. Perhaps the Chief Justice does not know that among the ranks of the private prosecutors in his impeachment trials are several lawyers of the Hda. Luisita farmers and farmworkers. In trying to sell his theory, the Chief Justice has conveniently forgotten that the Hda. Luisita case was argued and won by the farmers together with the Department of Agrarian Reform. Masyado pong pilit ang iyong teorya CJ Corona.

Ladies and Gentlemen, in my experience all trials can become dull and boring with very few dramatic and explosive moments that are too far in between. In the absence of drama and explosive action, it is very easy to lose focus on the reasons why there is an Impeachment Trial. In this age of reality shows, I cannot blame the public watching the impeachment trial live on national television to shift their focus and take notice of the different realities happening in the Senate floor. In the eyes of the very critical public it is not only the accussed, the impeached Chief Justice who is on trial, but the prosecutors and the senator-judges, as well.

In the first week of the impeachment trial, the contrast between the defense team, composed mainly of high-caliber and experienced veteran litigation lawyers, and the prosecution team composed mainly of politicians who have spent most of their time in elective public offices and outside the court room gained the attention of the public. We, in the prosecution, became objects of criticism and the harsh Filipino sense of humor especially in cyberspace. I shall offer neither denials nor explanations.

I admit, that in terms of litigation experience, we in the prosecution, especially the public prosecutors are the underdog. In fact most of us in the prosecution team were once students of those in the defense panel. In that respect alone we are oceans apart. Moreover, prosecuting a case with millions of viewers watching your every move and listening to every word you utter is really intimidating.

The defense panel is indeed a Dream Team and their strength lies in their more than 300 years of combined litigation experience. E hindi pa po ako pinanganak Atty. Cuevas na si Justice Cuevas.

However, no amount of trial experience can compensate for the defense’s greatest disadvantage: their client Chief Justice Corona.

Dear friends and comrades, this battle must not only be fought by the prosecutors in the Impeachment Court. The battlefield is not just the plenary hall of the Senate where we have to win hearts and minds of the senator-judges. We also have to wage battle in the public sphere to win the hearts and minds of the people. We need your help in breaking the barriers of legalese and technicalities in the Senate floor and help ordinary people understand the proceedings.

The impeachment process is but a battle that we need to wage to win the war against corruption. For us in Akbayan, our mission goes way beyond this. The present conjuncture provides us with a fertile and favorable political environment to push for the changes that we have been fighting for.

A wave of change is coming. Those who cling to the ways of the past and of the GMA administration, be forewarned. Do not stand in the way.

Kapag Akbayan ang Lumaban, Panalo ang Mamamayan.

Maraming salamat po.

Legal Notes – Simplifying the Senate Rules on Impeachment Trials

Legal Notes of Representative Kaka J. Bag-ao, AKBAYAN Partylist

 

Simplifying the Senate Rules on Impeachment Trials

What is the nature of the impeachment proceedings before the Senate? How will the trial proceed? What are the salient features of the Senate Rules?

 

The impeachment trial of Supreme Court Chief Justice Renato Corona has already begun and the people are eager to watch, learn and analyze the ongoings. Hence, it is just but fitting that a short rundown of the Senate rules on impeachment trial be made so that the ordinary citizen may be apprised of the rules that govern this all-important proceeding which would ultimately affect the nation and the people’s lives.

I. Impeachment Proceedings as “Sui Generis”

Before tackling the Senate rules, it is important to understand the nature of the impeachment trial for it has significant implications. There are two views.

The first view is that impeachment proceeding is political in nature. Historically, impeachment proceedings in England and the United States, from which several of our Constitutional provisions relating to impeachment were borrowed, had been dominantly political in nature. In fact, Sections 1-3, Article XI of the Philippine Constitution allocates the power of impeachment to Congress—the right to accuse is exclusively lodged before the House of Representatives, while the sole power to try and decide all cases of impeachment belongs to the Senate—both of which are political branches of the government. The framers of the Constitution delegated the power over impeachment trials before a political branch, rather than the judiciary, because they chiefly relate to injuries done to the society itself. The Senate, whose members are elected representatives of the people who act on the basis of political consideration, was deemed as the “most fit depositary of this important trust” because its members are representatives of the people.[1]

Second, the impeachable offenses are political and not necessarily criminal offenses. Thus, among the grounds of impeachment are “other high crimes” or “betrayal of public trust”. The offenses are also prosecuted by members of the House of Representatives, also elected officials of the people. Further, the consequences of impeachment are political punishments and not necessarily penal in character.

Third, the courts have no power to review the decisions of the impeachment body because they are considered as political in nature and, thus, non-justiciable except when there are clear violations of the Constitutional provisions on impeachment. Moreover, it is most likely possible that after the successful impeachment proceedings before the Senate, a separate criminal or administrative case would be filed before the appropriate regular courts. The framers of the Constitution deemed it best to have two separate forums before which these cases can be filed to prevent any form of bias and influence on the separate cases. Lastly, a review by the courts of the decisions of the Senate as an impeachment body would be inconsistent with the principle of Checks and Balances.[2]

The second view, adhered to by some legal scholars like former Justice Isagani Cruz, characterizes the impeachment proceedings as “in a sense judicial and penal in character,” hence, akin to criminal proceedings. It is stated in this view that most of the grounds for impeachment are penal in character, such as treason, bribery, graft and corruption, and if the impeached official is found guilty, he may suffer a penalty of removal from office and disqualification to hold office—some of the penalties adjudged to criminal offenders in ordinary cases.[3]

It is submitted that the correct view of the nature of impeachment proceedings is neither purely political nor criminal in character, rather, it is “sui generis,” which means “a class of its own”. In the words of former Justice Reynato Puno, it is a “commixture of political and judicial components in our reengineered concept of impeachment xxx which has been shaped by our distinct political experience especially in the last fifty years.”[4]

The importance of distinguishing the nature of impeachment proceedings has its bearing on its legal implications. First, the interpretation of the Senate rules on impeachment proceedings should be made in a liberal manner and technicalities should be set aside because it is not purely a criminal proceeding. Second, the Constitutional rights of the accused in ordinary proceedings such as the right to due process and right against self-incrimination still apply. Third and most important, the nature of the impeachment proceedings will determine the required quantum of evidence required for convicting an impeached official.

II. Procedure in the Impeachment Trial

Sections 1-3, Article XI of the Constitution lay down the rules on impeachment proceedings. The Constitution further obliges Congress to promulgate its own rules to effectively carry out the process. Hence, the House of Representatives approved the Rules of Procedure in Impeachment Proceedings on 3 August 2010,[5] while the Senate approved Resolution No. 39 (Resolution Adopting the Rules of Procedure on Impeachment Trials) on 23 March 2011. Since the Articles of Impeachment have already been transmitted to the Senate, there is no longer any need for discussing the House Rules and only the salient features of the Senate Rules will be discussed here.

What is the role and duty of the Senate upon receipt of Articles of Impeachment?

Section 3 (6), Article XI of the Constitution states that “The Senate has the sole power to try and decide all cases of impeachment.” Hence, all questions regarding the interpretation of the meaning of the grounds for impeachment and assessment of the evidence—which are unquestionably political in nature—are not subject to review by the courts except for non-compliance with the procedural requirements of the Constitution.

Once the Senate receives the Articles of Impeachment from the House of Representatives, the Senate President shall inform the House of Representatives that the Senate shall take proper order on the impeachment and ready to receive the prosecutors.

What are the powers of the Senate?

The Senate shall have the following powers:

a. Compel the attendance of witnesses;

b. Enforce obedience to its orders, mandates, writs and judgments;

c. Preserve order;

d. Summarily punish contempt of, and disobedience to its authority, orders, mandates, writs, or judgments; and

e. Make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice;

Who shall preside in impeachment proceedings?

The Senate President shall be the Presiding Officer except when the President is on trial in which case the Chief Justice of the Supreme Court will preside. The Presiding Officer shall have the power to make and issue all orders, mandates, and writs, and to make and enforce such other regulations and orders in the premises.

Can the Presiding Officer rule on any questions on evidence?

Yes, the Senate President, as Presiding Officer, may rule on all questions on the materiality, relevancy, competency or admissibility of evidence and incidental questions. The ruling of the Senate President on these matters shall be considered as the ruling of the Senate as a body unless he shall submit any such question to a vote of the members of the Senate or any member of the Senate shall ask that a formal vote be taken. In this case, a vote shall be taken and a majority vote shall prevail. This was what happened during the impeachment case of former President Joseph Estrada where the senators voted on whether to open the second envelope which allegedly contained the evidence regarding the Velarde account. In the Estrada case, a majority of the senators decided not to open the second envelope which enraged the nation which eventually resulted in EDSA II.

How will the person impeached be notified of the Articles of Impeachment?

A Writ of Summons shall be issued to the person impeached notifying him/her of the Articles of Impeachment, the date and time of his/her appearance before the Senate, and ordering him/her to file his/her Answer within ten (10) days from receipt of the notice. The prosecutors may file a Reply within five (5) days from receipt of the Answer.

On the date and time fixed on the Writ of Summons, the person impeached shall be called to appear and answer the Articles of Impeachment against him.

What happens if the person impeached fails to appear on the date fixed by the Senate?

The trial shall proceed nevertheless upon a plea of not guilty. Note that the rules allow that the person impeached may appear by himself or through an agent or counsel. It is also noted that the person impeached still enjoys the Constitutional right against self-incrimination and right to due process. In any case, the impeachment trial will then proceed.

When will the impeachment trial proceed?

Unless otherwise provided, the trial will start on the day fixed by the Senate, particularly, at 2:00 in the afternoon, and the sessions will continue from day to day (except Saturday, Sundays and nonworking holidays) until final judgment shall be rendered. (In this impeachment trial, the Senate will be conducting hearings from Monday to Thursday only.)

Will the legislative business of the Congress be totally suspended pending the impeachment trial?

No. With respect to the House of Representatives, the ordinary legislative business will continue because only the 11-member panel of prosecutors will be handling the case before the Senate. Notwithstanding the trial, the members of the panel of prosecutors are not prevented from continuing with their legislative advocacies in the House of Representatives. On the other hand, the members of the Senate may continue their legislative affairs in the morning or when the trial is not in session.

How long will it take to finish the trial?

It is estimated that the trial may last from 3 to 5 months, depending on the circumstances of the case, such as when the person impeached will resign from his/her post which may result in the termination of the trial. This was exactly what happened to the impeachment proceedings of former Ombudsman Merceditas Guttierez who resigned at the height of the impeachment proceedings against her. It is also recalled that the impeachment proceedings of former President Joseph Estrada was abandoned in the middle of the trial.

Can the impeachment trial proceed despite the resignation of the person impeached during the trial?

It is submitted that the trial may still proceed for purposes of ferreting the truth and ascertaining accountability. Further, his/her disqualification to hold public office in the future may still be a proper subject for the impeachment body to tackle.

What is the role of the House of Representatives in the Trial?

The members of the House of Representatives shall act as the sole prosecutors in the impeachment trial through a panel of 11 members elected by a majority vote in plenary under the rules adopted by the House of Representatives. Under the Senate Rules, however, it allows for the appearance of private counsels to act as prosecutors provided that they shall be under the control and supervision of the panel of prosecutors of the House of Representatives.

How will the trial proceed?

The case, on each side, will be opened by one person. The final argument on the merits may be made by 2 persons on each side (unless otherwise ordered by the Senate upon application for that purpose), and the argument shall be opened and closed on the part of the House of Representatives.

How will witnesses be examined?

Witnesses shall be examined by one person on behalf of the party presenting them, and then cross-examined by one person on the other side.

Can a Senator ask a question on the witness?

Yes, a Senator can put a question to a witness, prosecutor, counsel, and even to the person impeached. The Senator may also offer a motion or order, in writing, which shall be submitted to the Presiding Officer.

Can a Senator be called as a witness?

Yes, and he/she shall be sworn and give the testimony standing in his/her place.

May parties or counsels object to any question propounded by a prosecutor, counsel or Senator?

Yes. All motions, objections, requests, or applications whether relating to the procedure of the Senate or relating immediately to the trial made by the parties or counsel shall be argued and addressed to the Presiding Officer.

What happens after the presentation of the final arguments by the prosecutors as well as the counsels of the person impeached?

After the completion of the trial for all of the Articles of Impeachment, the Senators shall vote on the final question on whether or not the impeachment is sustained. The Presiding Officer shall first state the question and, thereafter, each Senator shall rise and answer: “guilty” or “not guilty”. The vote of the Senate President, when acting as the Presiding Officer, shall be taken after all the Senators have stated their votes. Each Senator may explain his/her vote within 2 minutes.

How shall the voting of Senators be made?

On the final question whether the impeachment is sustained, the yeas and the nays shall be taken on each Article of Impeachment separately. If the impeachment shall not be sustained by the vote of two-thirds of all the Members of the Senate, a judgment of acquittal shall be entered. If the person impeached in such Articles of Impeachment shall be convicted upon the vote of two-thirds of all the Members, the Senate shall proceed to pronounce judgment of conviction. Hence, a conviction on any of the Articles of Impeachment shall be enough to convict the impeached officer.

May the Articles of Impeachment be divisible?

No. The judgment shall be made only after all the arguments of both parties have been concluded. Further, the voting of the Senators shall continue until all the Articles of Impeachment have been read and voted thereon by each Senator.

Is a Motion for Reconsideration allowed?

No. A motion to reconsider the vote by which the Articles of Impeachment is sustained or rejected shall not be in order. In fact, the results of the voting of the Senators shall not be reviewable by the courts as the same is considered political matters and beyond the powers of judicial review. The judgment is therefore final and unappealable.

What is the consequence of conviction in any of the articles of impeachment?

The person impeached shall have a judgment which shall not extend further than removal from office and disqualification to hold any public office under the Republic of the Philippines.

May the convicted public officer be pardoned by the President?

No. The Constitution specifically states that impeachment conviction may not be subject to pardon by the President.

After the Senate conviction, may the convicted public officer be prosecuted in ordinary suits?

Yes, the convicted public officer may be prosecuted in ordinary criminal or civil actions in regular courts, as the case may be. When criminally prosecuted, the person cannot plead the defense of double jeopardy.

In case of conviction in ordinary criminal cases, can the convicted person be pardoned by the President?

In this instance, the convict may be pardoned by the President as in ordinary cases. This is what happened to former Joseph Estrada who was subsequently prosecuted and convicted for plunder before the regular courts of justice after the aborted impeachment trial before the Senate. After his conviction, former President Gloria Arroyo granted Joseph Estrada executive clemency and, thus, he was released from jail. Subsequently, Joseph Estrada again ran for President in the 2010 national elections as he was not barred from running because there was no conviction made during the aborted impeachment trial.

III. Other Salient Features and Gray Areas of the Senate Rules

All Proceedings are Public

Since the issue in impeachment proceedings involves national interest owing to the fact that it is the people through their representatives who are to decide in their sovereign capacity, all the proceedings thereon shall be open to the public.

Political Neutrality

Senators, as judges in the whole proceedings, shall observe “political neutrality”—defined as the exercise of a public official’s duty without unfair discrimination and regardless of party affiliation or preference—during the course of the impeachment trial. In line with this, they shall refrain from making any comments and disclosures in public pertaining to the merits of a pending impeachment trial. This “gag order” also applies to the prosecutors, person impeached and to their respective counsels and witnesses. However, being a public issue which concerns national interest, academic discussions on the issue, rules of the impeachment proceedings, issues already presented before the Senate, as well as the political consequences on the impeachment trial may be the subject of public debates. Again, the public has the right to know all proceedings in the impeachment trial.

Evidence Necessary for Conviction

There are four (4) types of quantum of evidence required in arriving at a decision depending on the nature of the proceedings. First, there is “proof beyond reasonable doubt” which is the moral certainty or that degree of proof which produces conviction in our prejudiced mind. This is the evidence required in criminal proceedings, and this is the most difficult to obtain. The second type, “clear and convincing evidence”, is that weight of evidence that is clear, positive, and convincing, going beyond mere preponderance of evidence. The third, “preponderance of evidence”, means the superior weight of evidence as determined by the Court considering all the facts and circumstances of the case including the witnesses’ manner of testifying, the nature of the facts to which they testify and personal credibility. This is the evidence required in civil cases. The last type, “substantial evidence”, refers to such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. This is the evidence required in administrative cases, and is said to be the easiest to obtain.

As discussed above, the nature of impeachment proceedings is neither political nor criminal, and that it is “sui generis”. Not being a purely criminal proceeding, it does not require “proof beyond reasonable doubt” to convict a person impeached. Hence, the senators may use any quantum of evidence except for “proof beyond reasonable doubt” as basis for his vote in any of the articles of impeachment. This is also the view taken by most of the scholars in American jurisprudence in relation to impeachment proceedings.

Basis of Two-Thirds Vote

The Constitution requires that no person shall be convicted without the concurrence of two-thirds of all the members of the Senate. What does the phrase “all the members of the Senate” mean? Is it based on the full membership of the Senate, which is 24, or on the actual incumbent members? This has particular importance only when the number of seats in the Senate is not completely filled as in the present Senate which only has 23 incumbent members. There is no jurisprudence on the matter yet.

*** A lawyer by profession, AKBAYAN Rep. Kaka Bag-ao was the Convenor of the Alternative Legal Group, a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.

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[1] Justice Reynato Puno’s Concurring and Dissenting Opinion in Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003,citing Alexander Hamilton and the case of Nixon vs. United States (38 506 US 224 (1993) 122 L ed 1 113 S Ct 732.

[2] Justice Reynato Puno’s Concurring and Dissenting Opinion in Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003,citing the case of Nixon vs. United States (38 506 US 224 (1993) 122 L ed 1 113 S Ct 732.

[3] Tupaz, Antonio, R. Fundamentals of Impeachment. 2001 Edition. Phoenix Press, pp. 19.

[4] Justice Reynato Puno’s Concurring and Dissenting Opinion in Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003.

[5] The Supreme Court decision in Francisco et al. vs. House of Representatives (GR No. 160261, 10 November 2003), states that Impeachment proceedings are initiated upon filing of the complaint and/or resolution and its referral to the Committee on Justice.