cj sereno
first, we lost robredo.
now, we get sereno.
parang sad pareho.
i hope sereno surprises us. otherwise the coincidence does not augur well for robredo’s legacy.
Category: supreme court
Unsettled questions #cj trial
In his keynote speech at the launch of the book “History of the Supreme Court” to mark the Court’s 111th anniversary on June 11, former Chief Justice Reynato Puno decried the “spiritual slump” and apparent disarray in the judiciary in the aftermath of its “collision with the political branches of government,” as well as the widespread confusion following the conviction of now ex-Chief Justice Renato Corona by the Senate impeachment tribunal. But because of Corona’s decision not to appeal his removal, we will never know for sure how a “severely wounded” Court would have dealt with certain questions the answers to which were left hanging in the course of his impeachment trial.
If these issues remain unresolved until the next impeachment case, they would be equally unsettling, especially to the 31 constitutional officials whose fame, fate and fortune could be held hostage to an uncertain and, worse, partisan political environment. Let’s go over the more important unsettled—and unsettling—issues.
1. The most crucial is the Supreme Court’s power of judicial review. Article VIII, Section 1 of the 1987 Constitution states clearly that it is the Court’s duty “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” Note that the Constitution makes this a “duty” of the Court. Precisely, this is what it did in dismissing the impeachment case filed against then Chief Justice Hilario Davide in 2003. But Senate President Juan Ponce Enrile, as presiding officer of Corona’s impeachment trial, sternly warned the Court not to entertain that notion on the premise that it is only the Senate that has “the sole power and authority to try and decide all cases of impeachment.” Recall that neither the 1935 nor 1973 Constitution mandated that “duty,” which would have made it both easy and expedient for the Court to dismiss any such appeal as a “political question” that fell outside its jurisdiction.
2. What offense, criminal or otherwise, has Corona been convicted of? Note that even as he voted to convict Corona, Enrile strongly insisted that “the Chief Justice does not stand accused of having amassed any ill-gotten wealth before this impeachment court.” He went so far as to state that “the Chief Justice had justifiable and legal grounds to rely on the Supreme Court’s procedural and policy guidelines governing such disclosures as embodied in a resolution promulgated way back in 1989 when the respondent was not yet a member of the Court.” Enrile even conceded that Corona believed in good faith that the timely and periodic filing of his sworn statements of assets, liabilities and net worth complied with the guidelines of the Court, the law, and the Constitution.
However, the fine distinction between Paragraphs 2.2 and 2.4 in the Articles of Impeachment obviously got “lost in translation.” It was not at all appreciated by a majority of the senator-judges—and certainly not by an already cynical and disbelieving nation that was bombarded for five months by a media blitz about Corona’s lack of character and probable culpability. It is important to emphasize that the impeachment court had earlier disallowed the introduction of evidence in support of Par. 2.4 which pertained to ill-gotten wealth. Par. 2.2, on the other hand, accused Corona of failing to file accurate and complete SALNs. And his belated revelations and admissions concerning his substantial dollar and peso bank deposits, as well as his self-serving interpretation of confidentiality laws, were what finally proved fatal to his defense.
3. Corona was convicted on the basis of the second Article of Impeachment for culpable violation of the Constitution and betrayal of the public trust for his failure to file accurate and complete SALNs. Most of the senator-judges considered the enormity of the amounts in pesos and dollars that Corona neglected to disclose as having established a prima facie case of ill-gotten wealth under the Anti-Graft and Corrupt Practices Act (RA 3019) and the Code of Conduct for Government Officials and Employees (RA 6713). Actually, the term used in RA 3019 is “unexplained wealth,” which “refers to assets which a public official has acquired during incumbency, whether in his name or in the name of other persons, consisting of property or money, which are manifestly out of proportion to his salary and to his other lawful income.” On the other hand, the term “ill-gotten wealth” is specifically related to the crime of plunder, a nonbailable offense, under RA 7080. It is important to bear this in mind in the event that criminal charges are filed against Corona, a definite possibility intimated by no less than President Aquino.
4. If “unexplained wealth” can be explained away, as the term suggests, the failure to file a complete and accurate SALN may justify nonprosecution for the offense. This appears to be the reasoning behind the votes to acquit by Senators Joker Arroyo, Miriam Defensor-Santiago and Ferdinand Marcos Jr. In simple terms, Arroyo’s argument was that there was no such crime as failure to file an accurate or complete SALN until the impeachment court made it so for the first time. Santiago, on the other hand, contended that such a crime, even if it did exist previously, was not an impeachable offense since it could not be equated in terms of scope, nature and gravity to “culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of the public trust.” Marcos was of the same mind, and argued that Corona “must be presumed to have acted in good faith … and that not all omissions and misdeclarations in the SALN amount to dishonesty.” Arroyo and Santiago are held in high respect for their expertise in the law, and Marcos must have consulted his wife, no mean legal scholar herself. Their reasoning surely deserves a more in-depth examination before the next impeachment case comes along.
In the impeachment trial, legitimate questions were raised in relation to substantive and procedural due process, the quantum of proof required to establish or verify a fact and its admissibility in evidence, the degree of respect due impeachable officials and their right against self-incrimination, the scope and extent of the rules on sub judice and trial by publicity, principles of statutory construction, and reconciliation of seemingly inconsistent laws. These remain unsettled even as they are bunched in the layman’s eyes under the rubric of legalese and technicalities. To ensure that the rule of law and impartial administration of justice are not sacrificed in the future, a focused and sustained effort must be made to resolve these quandaries, particularly where they involve amendatory legislation or policy reformulation.
Ismael G. Khan Jr. was the Supreme Court’s first spokesperson, assistant administrator and chief of its Public Information Office from 1999 to 2007.
praning about PCOS
praning, that is, paranoid, about those blasted PCOS machines for the 2013, maybe also the 2016? elections. my beef in 2010 was that there were no manual counts done in random towns / provinces/ regions to prove without a doubt that the machines were counting and relaying real votes. and of course there was all the talk from credible, and very concerned, IT people about 236 glitches, weaknesses, defects, flaws. 236! here’s ex-comelec commissioner augusto “gus” lagman:
[Lagman] noted that when he was still with Comelec, the poll body opted to sign anew a deal with Smartmatic even if the latter had failed to address a lot of errors in the machines.
He said when he joined Comelec, the PCOS machines had “236 problems.”
“But these problems have not been addressed, and yet Comelec proceeded to enter into the deal,” he added.
He asked: “Are we going to count on Smartmatic’s word that these will be addressed?”
Lagman, an IT expert, believes that the machines can be hacked. The petitioners before the SC believe that this could eventually lead to widespread cheating.
says butch del castillo in Those cursed PCOS machines
During the High Court’s hearing on the petitions early this month, former Commissioner Lagman (who was called by the High Court to express his dissenting views) said Comelec’s approval of the purchase came long after its option to purchase had expired. Lagman said Comelec should not have renewed Smartmatic’s contract “because the technical glitches in the PCOS machines were not addressed.”
“Proof of the problems is that they were trying to repair it, an admission that the problems existed,” he said.
Lagman described the whole network of PCOS machines as “very vulnerable to tampering.”
He said, “it does not have enough security features and has no digital signatures, which were supposed to be given by election inspectors rather than the machine.”
Lagman also pointed out that the Smartmatic system “had no mechanism to check the authenticity of the ballots and votes supposedly shown.”
Lagman’s views on the fatal defects of the PCOS machines were similar to the findings of the Philippine Computer Society and other concerned entities that organized themselves into a watchdog group called Tanggulang Demokrasya or Tan Dem.
okay, so the supreme court summoned the IT expert ex-commissioner lagman pala and listened naman to his objections re the use of smartmatic’s PCOS machines sa 2013. and yet the supreme court has nothing to say about these objections. the problem, i suppose, is that the four separate complaints questioned only the legality of the contract signed last march by smartmatic and comelec, and did not raise the lack of security features, the vulnerability to tampering, atbp. bakit? they were so sure that there was no way the court would find the contract legal? that wasn’t very bright of them.
The court said the contract was still valid and existing because the performance security bond posted by Smartmatic-TIM was not yet returned.
The bond was in the form of a letter of credit worth P360 million or 5 percent of the original P7.2-billion poll automation contract for the May 2010 polls.
The bond was meant to fund penalties for non-performance or should Smartmatic-TIM fail to deliver the equipment based on contract schedules.
“That was one expressly stated in the contract, that return of the performance bond will terminate the contract,” (sc spokeslady) Guerra said.
“The court found that the main contract for the automated election system between the Comelec and Smartmatic–containing an option to purchase–was still existing when Smartmatic extended the period and when the Comelec exercised said option,” she said.
and now that it’s a go, biglang Chiz has no more doubts about PCOS.
Escudero said he also used to have doubts about the PCOS machines, but that Comelec statistics on electoral protests after the 2010 polls show the machines work.
“Lahat ng recount nila so far, kung ano ang nabilang ng PCOS at resulta ng halalan, ‘yon pa rin ang eksaktong lumabas. Sa katunayan, ayon sa Comelec, wala pa raw protestang nananalo tungkol sa maling bilang ng PCOS sa lokal na mga laban,” he said.
really? can we see these comelec reports too? and when did comelec come up with these statistics on electoral protests — before or after gus lagman was removed?
The Palace decision not to re-appoint Augusto “Gus” Lagman to the Commission on Elections (Comelec) is regrettable, particularly for a government that claims to be championing reform. Last week, a Cabinet official informed Lagman that his appointment as commissioner was rejected outright by the Commission on Appointments. He was not even given the benefit of appearing before that body. The Cabinet official explained that the Palace wanted to spare Lagman from grief and possibly a confrontation with members of the appointments commission – or at least one powerful member, supposedly Senate President Juan Ponce Enrile. Had he been re-appointed, though, Lagman would have welcomed the opportunity to face Enrile or whoever and to explain in a public forum whatever issue might be raised against him. We would have wanted to see that, too. Unfortunately, Lagman will never have that chance.
“supposedly,” enrile himself? googled it and found this report of march 23, just a week before corona was convicted — peaking nuon ang presiding senator judge.
Brillantes found an ally in Senate President Juan Ponce Enrile, who challenged critics to identify elected officials presently occupying government posts who benefited from alleged glitches in the automated voting.
“Of course, any technician can find something to criticize. But I’m talking about the result of the last election. If you can prove to us that there are people sitting now, exercising power, who were the product of cheating during the last election, then maybe we are open [to changing the system],” Enrile told complainants at the hearing of the committee on electoral reforms.
ganoon? alam ba yan ni mar roxas ? well, enrile’s son is with binay’s una party, no? which makes it even more interesting that one of the solons now daring smartmatic and comelec to bare PCOS’ errors and repairs is jack enrile.
… a day after the high court upheld the validity of the P1.8-billion contract of the Comelec with Smartmatic-TIM for the purchase of 82,000 PCOS for use in the 2013 elections, two lawmakers from the House of Representatives on Thursday expressed their apprehensions over certain alleged security defects that make the machines vulnerable to tampering.
Cagayan Rep. Jack Enrile said the Comelec must categorically address technical concerns aired by one of its former commissioners that the PCOS machines used to automate the May 2010 elections remain vulnerable to tampering.
Enrile said that “even if the high court upholds the Comelec’s decision to use PCOS machines in 2013, election officials are still hard-pressed to shed light on allegations by one of their former colleagues that the machines remain vulnerable to tampering and do not have enough security features.”
He said the poll body must clearly demonstrate to the public that the technical glitches have already been corrected.
He urged the Comelec to make a voluntary demonstration of the new PCOS machines’ features and operation and open the technology to scrutiny by independent IT experts.
Enrile had earlier called on the Comelec to make the PCOS machines available for pre-testing by interested parties even for a limited time, saying this will allow independent groups to identify possible glitches and provide feedback on how to further improve the system.
“The only way to see if the technical glitches in the PCOS machines have been corrected and that security features have been improved is to allow for an actual and thorough examination by independent IT experts on this technology,” he stressed.
“This would assuage public fears that results of the elections could be manipulated if Comelec pushes through with the use of the PCOS machines in the 2013 mid-term elections. The Comelec needs to convince the voting public that results of the elections will be credible and that their voice will be counted come election day,” he said.
“The Supreme Court should also look deeper into Lagman’s allegations and make an independent determination on the veracity of these concerns,” Enrile added.
so father and son don’t agree on PCOS? o nagda-drama lang sila, nagpapalabas, kumbaga?
Bayan Muna Rep. Neri Colmenares, vice chairman of the House committee on suffrage and electoral reforms, said the Supreme Court should have gone beyond the validity of the Comelec’s deal to examine Smartmatic’s capacity to comply with the contract.
“Why should we entrust our votes to a company that failed to comply with its own security measures and contract in the 2010 elections?” Colmenares said.
“Had the votes in the 2010 presidential elections been close, there would have been serious turmoil in the country due to the lack of transparency.’’
jojo robles may be right. it would seem that the complainants underestimated the powers of presidential wishes in these post-corona times.
It is no secret that Aquino, who was installed by Smartmatic’s PCOS machines, was wholly in favor of allowing the subcontractor to continue its work in next year’s midterm elections. Aquino’s push for the renewal of Smartmatic’s contract was a radical turnaround from his original position, however, that a new election automation provider must be found through a new bidding.
Comelec, under the leadership of Aquino appointee Sixto Brillantes, has never hidden its desire to continue using Smartmatic as its automation provider despite the protests lodged before it and, later on, before the Supreme Court. Last April, the high court led by Chief Justice Renato Corona, who had already been impeached and was then being tried in the Senate, issued restraining orders on Comelec to stop it from continuing to honor its contract with Smartmatic and from purchasing the PCOS machines.
googled the part about the prez previously saying that a new election automation provider must be found through a new bidding. found nothing. but found this, circa jan 2011:
The President said he was also in search of a commissioner who is knowledgeable in the field of information technology because of the automation of the country?s elections.
“We have the opportunity to really transform our electoral process through the selection of these people,” he said.
then why did he let lagman go? read this: Just how low can he get.
i wish none of the above were true. i wish we could be convinced that the PCOS machines are now working perfectly and cheating would be impossible in 2013. but it’s just too much of a stretch. better praning than sorry.
*
read too del castillo’s Horror stories about PCOS machines and elinonapigkit’s Post Analysis of Cheating in the Automated Counting and Transmission of Votes of the May 10, 2010 Election.
choosing a chief justice
read Why the next CJ should be an insider, sent to malaya by a lawyer who requested anonymity, and published in the spirit of, heed the message, don’t shoot the messenger.
read also solita collas-monsod’s The best candidate for chief justice. after disposing of the four major objections to the appointment of acting chief justice antonio carpio, she turns to what his actual performance has been in the supreme court:
…I have read his opinions, whether majority or dissenting, in a number of cases which I followed closely because of their importance to either the Philippine economy or its polity. And I have come away deeply impressed by the clarity and logic of his thinking, the solidity of his arguments, the homework he so obviously has done. No strain to credulity, no mental gymnastics, no decision-first-justification-later.
Moreover, as Tony La Viña of the Ateneo School of Government puts it, “He is consistently on the right side of environmental social justice and public accountability cases.” Some of these opinions I have written about, and I invite the Readers to refresh their memories—from people’s initiative to Radstock, to Koko Pimentel, to La Bugal and mining, to martial law.
But wait. A chief justice also has to be an excellent administrator. Does Carpio have what it takes? Just ask the Supreme Court staff how he has handled the administrative tasks assigned to him. Accomplished. Soonest.
And the latest proof, of course, is how, in his first meeting en banc as acting chief justice, he led the high court in reversing its stance on the disclosure of statements of assets, liabilities and net worth.
What are we waiting for?
i agree with the lawyer who prefers to remain anonymous, better an insider than an outsider for all 10 reasons he listed. and mareng winnie has just sold me on carpio. thank god she wasn’t selling justice lourdes sereno, just because, hey, she’s the one who wants to raise compensation for hacienda luisita to some 10B bucks instead of just the ordered 200M. no wonder the prez is keen on a new CJ in the Sereno mold.
right after the corona conviction, my kneejerk reaction to carpio as the next cj was a big no. following the president’s logic, that corona was gma’s man, carpio would only be the president’s man. but then, again, following that logic, anyone aquino appoints would be aquino’s man. surely there’s something not right about that.
googled it and found this from todd e. pettys, university of iowa college of law:
After identifying the original rationales for our longstanding tradition of permitting the President and Senate to decide which of the Court’s nine members will serve as Chief Justice, I argue that those rationales are anachronistic, that the tradition creates unnecessary conflicts of interest and separation-of-powers concerns, and that the Court’s members should be permitted to decide for themselves which of them will serve as Chief Justice.
way to go. or we’ll never have a truly independent judiciary.