Opinion ‘Episode V’ FORMATION GARY OLIVAR AS ANY real Star Wars fan knows, that’s the episode when “the Empire strikes back.” It’s the episode that the embattled Solicitor General Jose Calida may feel he’s trapped in, as the yellow empire built over more than three decades descends on him with a vengeance over his audacious unseating of an improperly seated Chief Justice whom the empire was counting on to carry the yellow banner all the way to 2030. It started with the filing of misconduct charges against Calida over an alleged extramarital affair and related diversion of public funds, which he’s dismissed as a “big fat lie.” If the court agrees with him, there ought to be consequences for the plaintiff, one Jocelyn Niperos, a founder of the oppositionist Silent Majority. Then an adverse CoA ruling was breathlessly reported, stating that Calida received over P7m in excess honoraria and allowances in 2017. The basis for this was a CoA memorandum circular that such allowances should not exceed 50 percent of a government official’s salary. The issue, however, is that such circulars must yield when in conflict with established law. In this case, according to RA 9417 (the “OSG Law”), EO 292 (the Revised Administrative Code), and PD 478, lawyers under the Office of the SolGen are “authorized to receive allowances and honoraria for their legal services to government offices WITHOUT QUALIFICATION, in addition to their regular compensation.” This is why at least two previous SolGens, both under President Aquino, were also charged by CoA with receiving excess allowances: P4.6m to Florin Hilbay for the first half of 2016, and P1m to current SC Justice Francis Jardeleza in 2012. In short, it’s an unsettled and legitimate difference of opinion between auditor and audited—a situation quite familiar to managers in both the private and public sectors. *** What may be more troublesome to Calida are revelations that the familyowned security agency where he retains a majority share was able to bag hundreds of millions of pesos worth of contracts with various government offices. Nobody is claiming that Calida improperly intervened in the awarding of any of those contracts. And Calida points out that what the law requires is for him to divest his shareholdings OR (not “and”) give up management control, following which he chose to take the latter course of action. Unfortunately, the law often isn’t a sufficient guide to action. Public per-
Sereno... From A4
assume jurisdiction and give due course to the instant petition for quo warranto; (b) whether the petition is outrightly dismissible on the ground of prescription; (c) whether respondent is eligible for the position of Chief Justice. Corollary thereto, the ponencia explained the lack of basis for the Associate Justices of the Supreme Court to inhibit because there was no showing as basis to support for compulsory inhibition. As to voluntary inhibition, the mere fact that some of the Associate Justices participated in the hearings of the Committee on Justice determining probable cause for the impeachment of respondent does not make them disqualified to hear the instant petition. Their appearance thereat was in deference to the House of Representatives whose constitutional duty to investigate the impeachment complaint filed against respondent could not be doubted. Their appearance was with the prior consent of the Supreme Court en banc. On the first issue the Court believed Supreme Court has original jurisdiction over an action for quo warranto. To the Court, it is apparent that the instant petition is one of first impression and of paramount importance to the public in the sense that the qualification, eligibility and appointment of an incumbent Chief Justice, the highest official of the Judiciary, are being scrutinized through an action for quo warranto. The Court’s action on the present petition has far-reaching implications, and it is paramount that the Court make definitive pronouncements on the issues herein presented for the guidance of the bench, bar, and the public in future analogous cases.
ception can also loom large, especially so soon after former Tourism Secretary Wando Teo had to leave on account of government contracts awarded to her famous Tulfo brothers. It would be straightforward for Calida to simply divest himself from ownership as well as management of the family business, even if it isn’t strictly required by the law. But how he responds to the optics of the matter is entirely up to him. And of course he should under no circumstances give the yellows the pleasure of seeing him leave office. The pugnacious SolGen, when asked about all of this, replied, “As a lawyer, I’m prepared for such attacks. The question is this: Are they prepared for my counter-attack?” We wish him well as he launches Episode VI: the return of the Jedi.
Unfortunately, the law often isn’t a sufficient guide to action. Public perception can also loom large.
*** Many people weren’t really surprised when the Irish voted last month to repeal the 8th amendment to their constitution, which had provided equal protection to the life of the woman and her unborn baby. From now on, the protection is no longer equal. Irish babies will have to fend for themselves; they’re no longer safe even in their mother’s wombs. This leaves the Philippines as one of only six countries in the world with a total ban on abortion. And since we’re the only large country among the six, this makes us an especially tempting target for the abortionists. One of them is Clara Rita Padilla, a lawyer and founder of a group called EnGendeRights. Let’s meet the other groups who’re pushing abortion together with her: the Phil Task Force CEDAW Inquiry, the Center for Reproductive Rights, and IWRAW-Asia Pacific. “CEDAW” stands for the UN Committee on the Elimination of Discrimination Against Women. In a thought piece for Rappler, Ms Padilla argues for adopting CEDAW’s recommendation in 2015 to amend our Revised Penal Code in order to: “Legalize abortion in cases of rape, incest, threats to the life and/or health of the mother, or serious malformation of the fetus” “Decriminalize all other cases where women undergo abortion” “Adopt necessary procedural rules to guarantee effective access to legal abortion” *** Okay, item one at least appears to be an honest statement of principle, by enumerating specific instances where abortion is deemed justified. In fact, Ms. Padilla admits that our current laws do allow abortion when the mother otherwise risks death or serious disability. But item two is where the dishonesty of her whole case is exposed. Why even bother with itemizing what should be legalized, when in fact her intention is to decriminalize every other kind of abortion as well? Evidently it’s so that she—and CEDAW—can slip in a blanket endorsement of abortion on demand under the cover of smooth and slippery language about favoring only this or that kind of abortion. It’s a time-honored piece of rhetorical trickery resorted to in the absence of anything that is factually, logically, or morally redeemable. Try again, Ms Padilla. It may be true, as you say, that illegal abortion is shameful and can be dangerous to the mother. But if you’re trying to protect unborn babies with no other means to defend themselves, shouldn’t it be that way?
*** A welcome piece of news for local businessmen is the President’s recent signing of the Ease of Doing Business (EODB)/Efficient Government Act, which promises to make government much more user-friendly to businessmen, especially at the LGU level. The new law amends the Anti-Red Tape Act of 2007, perhaps in response to the sting of the country’s recent drop by several notches in a global business competitiveness index. Among the important reforms sought: Mandatory deadlines for government to finish processing transactions: three working days for “simple” transactions; seven for “complex” ones; and twenty working days for “highly technical” transactions. Replacement of the confusing forms required by different agencies, with the implementation of unified business application forms. Establishment of business one-stop shops by LGUs, while barangay clearances and permits will now be issued at the city or town level. Creation of a Central Business Portal to capture all data from business-related transactions, and a Phil Business Databank for the reference of national agencies and local governments. Of course, in this country a law isn’t taken seriously until its implementing rules and regulations are finally issued. Here’s hoping that the IRR in this case will be issued in time for the EODB law Readers can write me at gbolito “go live” no later than next year. var1952@yahoo.com. Moreover, aside from the difference in their origin and nature, quo warranto and impeachment may proceed independently of each other as these remedies are distinct as to (1) jurisdiction (2) grounds, (3) applicable rules pertaining to initiation, filing and dismissal, and (4) limitations. Hence, they can proceed independently and simultaneously. It therefore goes without saying that impeachment is not an exclusive remedy. On the second issue, the Court said that the Petition is not dismissible on the ground of prescription. The Court reasoned citing People v. Bailey, when it ruled that because quo warranto serves to end a continuous usurpation, no statute of limitations applies to the action. Needless to say, no prudent and just court would allow an unqualified person to hold public office, much more the highest position in the Judiciary. In this case, according to Justice Tijam. the Republic cannot be faulted for questioning respondent’s qualification· for office only upon discovery of the cause of ouster. Finally, as to whether respondent is eligible as a candidate and nominee for the position of Chief Justice, the Court ruled in an unqualified negative. On this score the Court reasoned that the Judicial and Bar Council (JBC) cannot waive or bargain away the qualifications under the Constitution. One who fails to file his or her SALN violates the Constitution and the laws; and one who violates the Constitution and the laws cannot rightfully claim to be a person of integrity as such equation is theoretically and practically antithetical, the Court adds. Faithful compliance with the requirement of the filing of SALN is rendered even more exacting when the public official concerned is a member of the Judiciary. Moreover, the Court said the offense is pe-
nal in character and is a clear breach of the ethical standards set for public officials and employees. It disregards the requirement of transparency as a deterrent to graft and corruption. According to the majority opinion, the respondent chronically failed to file her SALNs and thus violated the Constitution, the law and the Code of Judicial Conduct. A member of the Judiciary who commits such violations cannot be deemed to be a person of proven integrity. The Court insisted that JBC required the submission of at least 10 SALNs from those applicants who are incumbent Associate Justices, absent which, the applicant ought not to have been interviewed, much less been considered for nomination. For failing to submit her SALNs means that her integrity was not established at the time of her application; and this, according to the Court, cannot be cured by her nomination and subsequent appointment as Chief Justice. I am particularly aware that the Justices in the majority in this decision have been attacked in social media using memes and other means. I do not share those personal attacks. I continue to respect them, and especially those I personally know and hold in high esteem like Justices Jardeleza and Gesmundo. The arguments of the Sereno majority should rise or fall on its merits. That is why, in the next column, I will write about the dissenting opinions. This approach would allow my readers to compare the arguments of both sides of the case. In a latter column, before I present my analysis of the decision, I will also highlight the arguments of Chief Justice Sereno in her motion for reconsideration. Facebook: tonylavs Twitter: tonylavs
TUESDAY, JUNE 5, 2018
A5
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Next Ombudsman: Non-controversial, non-partisan it was because of their partisan political activities or because of any questionable personal actions they had taken or because of bad professional decisions RUDY they had made, all of the predecesROMERO sors of Conchita Carpio-Morales either AS I contemplate the coming retire- were regarded as unsuitable for the poment of Conchita Carpio-Morales sition of Ombudsman or were regarded from the position of Ombudsman, I with disdain. In contrast, the current Ombudsman find myself thinking about the origin and history of the Ombudsman con- came to her position with no credible cept and this country’s experience opposition from any quarter of Philipwith this embodiment of good govern- pine society. Indeed, her appointment ance. Justice Morales will retire next was greeted with near-universal approbation. That was because Justice month. The concept of a government official Morales possessed all the attributes of vested with the exclusive authority to a Scandinavian-type Ombudsman: no investigate and punish civil servants taint of personal or professional conoriginated in Scandinavia, particularly troversy, an unblemished career record, in Sweden and Norway. Today’s Scan- no active affiliation with any political dinavians are descendants of the once- group and, last but not least, a demonpowerful Vikings, and Viking life strated dedication to duty. It is not an exaggeration to say that placed a high premium on discipline and personal accountability. It is there- the issue of the succession to Conchita fore not surprising that the Ombudsman Carpio-Morales is generating a great deal of apprehenconcept subsisted sion across the naand flourished in tion. International the Scandinavia, institutions and which was the foreign governJustice Morales’ home of the Viments are watchkings. successor must ing the situation During the pewith no less conriod following the be a person in cern than domestic end of the Mar- the Scandinavian groups. That is not cos regime—a surprising, bearregime that had ombudsman mold. ing in mind the seen the misuse present Ombudsand abuse of govman’s six-year reernmental power cord and considrise to unprecedented levels—some people within ering the backgrounds and records of and outside the government thought the individuals whose names are being of the Scandinavian concept of a suf- mentioned in connection with the sucficiently empowered individual whose cession to Justice Morales. To restate what I have already said sole responsibility would be to go after erring civil servants. Thus was the bill above regarding the acceptability seeking the creation of an Office of the of the Ombudsman-to-be, whoever Ombudsman crafted and in due course President Duterte appoints to succeed Justice Morales must be a person in approved by the Congress. The Scandinavian countries’ expe- the Scandinavian Ombudsman mold. rience with the Ombudsman concept The individuals whose names have over the decades has been uninterrupt- been floated thus far need not apply— edly felicitous. That is entirely due to not Justices Teresita de Castro and the fact that the Scandinavian parlia- Samuel Martires (controversial) and ments have invariably selected for the not Silvestre Bello III (controversial position of Ombudsman individuals and partisan) and certainly not any absolutely untainted by controversy PDP-Laban member or Rex Talionis and possessed of universally accepted fraternity member (partisan). The reputations for personal and profes- announcement of the new Ombudsman should be received by the nation with sional integrity. Until Conchita Carpio-Morales came pleasure and without reservation. President Benigno Aquino III’s sealong, this country’s experience was the opposite. The explanation was that lection of Conchita Carpio-Morales as all of Justice Morales’s predecessors Ombudsman is regarded by most Filiwere all individuals widely perceived pinos as an important part of Noynoy’s —this is the operative phrase—to be legacy to the Filipino people. It is my either tainted with controversiality of hope that the same thing will be said one kind or another or lacking in per- about President Duterte’s choice of the sonal or professional integrity. Whether new Ombudsman.
BUSINESS CLASS
In war... From A4
after the stealth fighter jets of regime ally Russia. “He would zip in and grab food from right under the noses of the other cats, just like a Sukhoi jet,” he tells AFP. Syria’s war has killed more than 350,000 people and displaced more than half its prewar human population, as well as many of its domestic animals. After fleeing Aleppo, Jaleel set up his second shelter—named after Ernesto —in early 2017 and housed 18 of the 22 smuggled cats in the animal oasis. “The cats don’t just stay in just one house. They swap with each other and sleep in all of them,” Jaleel says, referring to rows of marble cubes with cat-sized entrances, engraved with names like Pouncer and Rose. Nearby, a grinder churns out streams of bright pink mincemeat that is then scooped out onto plates spread out on the ground for lunchtime. Eyes closed, a cat with a stripy, light ash coat dips its snow-white nose in, nibbling away. But the shelter, financed by online crowdfunding campaigns, does more than provide twice-daily meals: it also serves as an animal clinic with its in-house vet. “We treat all sorts of animals here for free: horses, cows and even chickens,” Jaleel says. During an inventory in January, he and his colleagues discovered they had handed out 7,000 medical prescriptions for free in less than a year.
The war... From A4
*** That President Duterte kissed an overseas Filipino worker on the lips when he met with the Filipino community in Seoul has gone viral. Netizens are lambasting the President for conduct unbecoming. I agree, even as the President insisted he had no malice in mind. Mr. Duterte is seen as a maverick, disregarding protocol. But this is different. *** The proposal of San Miguel to extend the Tarlac-Pangasinan-La Union Expressway to Ilocos Sur or Ilocos Norte is being
‘Really beautiful’ Mohammad Watar was blown away when he brought in his cat for treatment after food poisoning. “There are no vets where I live. I asked people and they pointed me to the sanctuary,” he says. “I was so surprised to find this kind of thing existed during this war we’re all living,” says Watar. “I saw them treating all sorts of animals. It’s really beautiful.” Still, war is never far away: the sanctuary’s main building bears the marks of gun fire. Last month, it canceled a children’s party after a young boy was shot near the shelter, according to its English-language Facebook page. Footage posted online depicted a man in a cat sanctuary t-shirt carrying a child with blood streaming down his calf. Even the shelter’s cats are treated for war wounds, says the centre’s vet, Mohammed Yusuf. “Just like many people are wounded by all the different weapons in the area, animals too suffer the same injuries,” he tells AFP. Some stay under observation at his clinic for weeks, but not all get the treatment they need. “We’re living in a war and facing severe shortages of veterinary medicines for wounds as well as vaccines,” Yusuf says. In a time of death and destruction, the pride of the sanctuary is its ability to carry out sonograms of animal mothers-to-be. “We examine them and diagnose how many foetuses there are and when they are due, and we prepare to welcome the new births,” Yusuf says. AFP welcomed by Ilocanos. It will be a boost to business and tourism. Incidentally, to make Boracay more accessible to mainland Aklan, Ramon Ang is also building a 1.5-kilometer bridge to provide Caticlan Airport immediate access to Boracay. San Miguel also has plans of putting up an 800-room hotel. With this bridge, Ang plans to bring potable water and build a sewerage system so that waste can be taken out of Boracay. *** Public schools opened yesterday with the same problems facing some three million enrollees. Every year, the Department of Education is faced with the same problems every year. Why does it seem that nothing is being done about them?