J.A.B. Bulao & Associates

LEGAL NOTE 0058: OMBUDSMAN GUTIERREZ RESIGNS.

I am not protecting Gloria Macapagal-Arroyo’

Gutierrez quits; ‘On with antigraft drive’—Aquino

By Leila B. Salaverria, Philip Tubeza
Philippine Daily Inquirer
First Posted 00:41:00 04/30/2011

Filed Under: Good news, Judiciary (system of justice), Impeachment, Graft & Corruption, Benigno Aquino III

MANILA,Philippines—After months of tough talk, Ombudsman Merceditas Gutierrez quit her post on Friday, saying the time spent removing her from office would be better used to solve the country’s problems.

Up to the end, Gutierrez continued to deny that she had been protecting former President Gloria Macapagal-Arroyo—one of the persistent allegations leveled at her by her critics.

President Benigno Aquino III, who had made no secret of his conviction that Gutierrez should go, received her in Malacañang when she came Friday morning to submit her resignation letter.

“I repeated to her that this fight was not personal. I have a commitment to the public to uphold the Constitution to which I subscribed,” the President said in a press conference later in the day.

He said he thanked Gutierrez for her decision and also acceded to her request that she retain her security detail.

A top member of the once-ruling Lakas-Kampi, who spoke on condition of anonymity because of the delicate nature of the issue, said Gutierrez quit her post because of mental anguish and lack of support from Arroyo.

Her resignation takes effect on May 6, three days shy of the opening of Congress and the start of her impeachment trial at the Senate.

Cordial meeting

Gutierrez’s office phoned the President’s private secretary at around 7 on Thursday night to seek an appointment and was told he would be free at 10 a.m. Friday., a source privy to the matter said.

The Ombudsman arrived in Malacañang at 10:20 a.m. and proceeded to Mr. Aquino’s office at the Guest House.

“It was a very cordial meeting. As the President said, this wasn’t a personal fight,” the source said, adding that Gutierrez left at around 10:55 a.m.

The Inquirer first got confirmation on Gutierrez’s resignation from Interior Secretary Jesse Robredo at noon Friday.

Robredo said in a text message that Gutierrez “personally submitted her resignation, which the President accepted.”

“She’s on her way now to formally inform her staff and then announce it to the media. Thereafter, the President will make a statement,” Robredo said.

At his press conference, Mr. Aquino said Gutierrez “personally submitted to me her resignation as our country’s Ombudsman, effective May 6.”

“Her action has spared the country a long and divisive impeachment process that would have distracted our lawmakers from dealing with the many problems that we face today. It also paves the way for the appointment of a new Ombudsman,” he said.

The President said he was happy with Gutierrez’s “unexpected” resignation as it removed one stumbling block in his administration’s campaign to go after grafters, particularly persons “of higher priority.”

“How can one not be happy when she did that? How can one not be glad now that there is one less worry to spend time on?” he said.

He added that Congress would now also have more time to tackle the administration’s priority bills.

Loyalty to the people

In her own press conference where she read a prepared statement, Gutierrez said “it is my fervent hope that the misconception bred that having been appointed to public office by former President Gloria Macapagal-Arroyo, I owed my allegiance to her and am accountable only to her, and not to the Filipino people and the Constitution, be discarded and laid to rest.”

“While I acknowledge with deep gratitude the opportunity given me by … Arroyo, my undivided loyalty always was, is and will forever remain, to the Constitution and the Filipino people,” she said.

She added that while the Office of the Ombudsman had been accused of delay and inaction, it was only because it chose to accord due process to public officials facing complaints.

Gutierrez did not take questions from reporters. No one from the Office of the Ombudsman joined her at the table during her press conference, but employees packed the room where it was held and clapped loudly when she came in.

According to Gutierrez, leaving before the end of her term in 2012 is an “abhorrent” thought.

She said she had not succumbed to pressure, been cowed into submission, or been influenced by anything other than truth and justice.

“I wanted to face my accusers whatever the personal agony it would have involved. But the interests of my family, my office and, more importantly, the nation, must always come before any personal considerations,” she said.

Last thing nation needs

Gutierrez said the country needed a full-time Ombudsman and a full-time Congress.

As it is, she said, the impeachment proceedings had also consumed the legislative branches and even the President.

“At a time when the present administration is in its infancy and beset with more urgent problems, the last thing that the nation needs is for the House and the Senate to be embroiled in a long-drawn-out impeachment proceeding against a single public official,” she said.

“The President needs an Ombudsman in whom he has complete trust and confidence. To carry on my battle to cleanse my name before the Senate would detract from the time which could otherwise be devoted to legislative work which would address the needs of millions of Filipino people.”

Gutierrez further said that in resigning, she hoped that the country would focus on solving problems rather than spend resources to remove her from office.

“I shall leave this office with regret at not completing my term, but with gratitude for the privilege of serving as Ombudsman for the past five years,” she said.

She thanked her colleagues who, she said, had worked hard to build up the institution, and added: “And to my detractors, I bear them no rancor because I have learned to make myself believe that we all love our country and our people no matter how our judgments might differ.”

Aquino’s kind words

Gutierrez thanked the President “for graciously accommodating me on very short notice, and for all the kind words he said to me.”

She said she would turn over the day-to-day affairs of the Office of the Ombudsman to Overall Deputy Ombudsman Orlando Casimiro.

After she left, Gutierrez’s spokesperson Tomas Syquia said reports that former employees of the Office of the Ombudsman would testify at her impeachment trial had nothing to do with her decision to quit.

Syquia said Gutierrez had been mulling over the idea of resigning as early as two weeks ago, and reflected on the matter during the Holy Week.

“It was not a sudden decision,” he told reporters.

Syquia said Gutierrez did not consult with Arroyo over her decision. Instead, she talked with her family, key officials of the Office of the Ombudsman, her legal team and her trusted advisers.

She received no pressure from anyone to resign, he said.

He also said that if suits would be filed against Gutierrez, she would face these as a private citizen.

Search for replacement

The President thanked the House of Representatives, which had voted to impeach Gutierrez, and urged the Judicial and Bar Council “to begin the search for a new Ombudsman.”

“With the support of the public, we can now proceed more decisively in making government officials more accountable to their bosses: the Filipino people,” he said.

Mr. Aquino said that he was still consulting his legal advisers as to whether the new Ombudsman should serve out the remainder of Gutierrez’s term or be given a full term in office.

Asked if Gutierrez was now off the hook, Mr. Aquino said: “I’m not saying Merceditas is the least priority, but there are people who have higher priority.

“Unfortunately, one of the problems of our country is that it takes six years to adjudicate a case. I have five years and two months to go … I cannot [charge] everybody … There has to be a prioritization. I want to be realistic.”

On Gutierrez’s security detail, Mr. Aquino said: “She asked about her security and I said that was not a problem. The people protecting her will continue doing it …

“I think that as the Ombudsman, you go after many powerful people. Maybe she really went after some who want to take revenge. That would not be right.”

Arroyo spokesperson Elena Bautista-Horn said in a text message to reporters that she respected Gutierrez’s decision.

“All of us are aware of the tremendous pressures she was subjected to throughout her trial by publicity over the past year. We can imagine how this affected, not only the Ombudsman, but also her family, her friends and the very office she holds. And so we respect her decision to spare them and herself further punishment,” Horn said. With reports from Gil C. Cabacungan Jr. and Marlon Ramos

LEGAL NOTE 0057: ONLY THE PUBLIC PROSECUTOR HAS CONTROL OVER PROSECUTION OF CRIMES. STATE MUST BE REPRESENTED BY OSG IN LITIGATION.

SOURCE: BUREAU OF CUSTOMS VS. PETER SHERMAN, MICHAEL WHELAN, TEODORO B. LINGAN, ATTY. OFELIA B. CAJIGAL and the COURT OF TAX APPEALS (G.R. NO. 190487, 13 APRIL 2011, CARPIO MORALES, J.) SUBJECT: CRIMES MUST BE PROSECUTED BY PUBLIC PROSECUTOR. (BRIEF TITLE: BUREAU OF CUSTOMS VS. SHERMAN ET AL.)

DIGEST: 

MARK SENSING CAUSED IMPORTATION OF BET SLIPS AND THERMAL PAPERS FOR PCSO BUT DID NOT PAY TAXES. BUREAU OF CUSTOMS FILED A CRIMINAL CASE AGAINST OFFICERS OF MARK SENSING. THE FISCAL FILED INFORMATION AT CTA. DOJ REVERSED FISCAL’S RESOLUTION. CTA WITHDREW INFORMATION UPON MOTION OF THE FISCAL. CUSTOMS LAWYER FILED A MOTION FOR RECON. CTA NOTED SUCH MOTION WITHOUT ACTION. CUSTOMS LAWYER FILED PETITION FOR CERTIORARI BEFORE THE SC.

 ISSUE: DID CTA COMMIT GRAVE ABUSE OF DISCRETION?

 RULING. NO. PETITION MUST BE DISMISSED BECAUSE THE MOTION OF CUSTOMS DOES NOT BEAR THE IMPRIMATUR OF THE PUBLIC PROSECUTOR. ALSO, CUSTOMS IS NOT REPRESENTED BY THE OSG.

 SAID THE COURT:

 Parenthetically, petitioner is not represented by the Office of the Solicitor General (OSG) in instituting the present petition, which contravenes established doctrine^[1][20] that “the OSG shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation, or matter requiring the services of lawyers.”^[2][21]

 IN FINE, as petitioner’s motion for reconsideration of the challenged CTA Resolution did not bear the imprimatur of the public prosecutor to which the control of the prosecution of the case belongs, the present petition fails. 

TO WHOM DOES PROSECUTION OF CRIMES PERTAIN?

It is well-settled that prosecution of crimes pertains to the executive department of the government whose principal power and responsibility is to insure that laws are faithfully executed. Corollary to this power is the right to prosecute violators.^[3][18]

CAN LAWYERS IN GOVERNMENT AGENCIES PROSECUTE CRIMES?

 YES, BUT THEY MUST BE DESIGNATED AS SPECIAL PROSECUTORS. THEIR ROLE IS MERELY TO ASSIST. THE PUBLIC PROSECUTOR MUST STILL HAVE CONTROL OVER THE CASE.

 All criminal actions commenced by complaint or information are prosecuted under the direction and control of public prosecutors.^[4][19]  In the prosecution of special laws, the exigencies of public service sometimes require the designation of special prosecutors from different government agencies to assist the public prosecutor.  The designation does not, however, detract from the public prosecutor having control and supervision over the case.

LEGAL NOTE 0056: AN ALTERNATIVE VIEW  OF THE COJUANGCO COCO-LEVY FUND SMC CASE.

Outlook
‘Biggest what of the century’?

By Rigoberto D. Tiglao
Philippine Daily Inquirer
First Posted 00:43:00 04/28/2011

“BIGGEST JOKE of the century,” according to a recent banner headline in this newspaper for an article on the Supreme Court’s decision that Marcos’ ally Eduardo Cojuangco’s purchase of 20 percent of San Miguel Corp. shares in 1983 was legal and therefore wasn’t ill-gotten wealth.

The phrase was really an uncalled-for hyperbole made by senior associate justice Conchita Carpio-Morales in her dissenting opinion: “The argument that Cojuangco was not a subordinate or close associate of the Marcoses is the biggest joke to hit the century.”

Justice Carpio-Morales may have thought she was being clever in using that phrase. However, she in effect portrayed her nine Supreme Court colleagues, who voted for Cojuangco’s position, as gullible fools. Quite unfairly, as none of her colleagues in the Court argued that Cojuangco was not Marcos’ close associate. Not even the tycoon in fact, as he publicly had said that he was proud that he was at Marcos’ side to the dictator’s very end. What he had been denying is that his purchase of San Miguel shares violated Philippine laws.

Read the Supreme Court’s 25,000-word decision (available at its website), and rather than the biggest joke, it points out the biggest government boo-boo of the century.

Rewind to the 1980s. Other than Marcos wealth, one of the biggest cases the late President Corazon Aquino’s Presidential Commission on Good Government vowed to pursue was the alleged ill-gotten wealth of her cousin Eduardo Cojuangco, the overlord of the coconut industry during Marcos’ time.

Cojuangco owes the Ayalas big-time for acquiring the country’s biggest industrial firm. A squabble at that time broke out between cousins Jaime Zobel de Ayala and Enrique Zobel, who jointly led Ayala Corp., which had the controlling shares in San Miguel. Jaime backed Andres Soriano’s management of the firm, even if his shares were miniscule compared to Ayala Corp.’s. For some reason, Enrique hated Soriano’s guts, and wanted to take over, even publicly accusing him of mismanaging the company.

The clan’s matriarch Mercedes Zobel McMicking got mad over her nephews’ bickering and ordered them to get Ayala Corp. out of San Miguel altogether. Ever the clever businessmen looking for the best deal though, they offered the shares to Cojuangco, sold them as a controlling block, and therefore at a high premium over its market value, thus generating a windfall for the clan.

And this was the clever Cojuangco. To raise the money to purchase the shares, he was “widely believed” to have contracted loans from the United Coconut Planters Bank (UCPB), the capital of which were generated from a Marcos-imposed coconut levy. Cojuangco was then president of UCPB, now Senate President Juan Ponce Enrile, its chairman.

However, the PCGG’s lawyers in the nearly two decades that the case ran failed to submit to the Sandiganbayan and to the Supreme Court bank documents to show that Cojuangco indeed took out loans from UCPB to fund his San Miguel purchase. It was an inexplicable omission, as the PCGG had taken full control of the bank during Aquino’s revolutionary government.

“The Republic adduced no evidence on the significant particulars of the supposed loan, like the amount, the actual borrower, the approving official, etc.,” the Court decision said. The Court even noted that the PCGG counsels were reminded several times in the pre-trial stages by the Sandiganbayan to produce the documents and the witnesses to show that Cojuangco borrowed the funds from UCPB. They never did. It was as if you were accused of defaulting on a loan, but the bank can’t even produce the documents that you borrowed from it.

In his dissenting opinion, Associate Justice Arturo Brion was in fact so mad at the PCGG lawyers’ incompetence that he recommended a full-blown investigation and their prosecution: “The government lost because of the acts of its counsel that amounted to no less than giving the claim away through omission, inaction or precipitate and ill-considered action that, at the very least, should be considered gross negligence of counsel in handling the government’s case.”

The shares Cojuangco bought from the Ayala Corp. was worth $49 million in 1983. They are now worth more than $2 billion, or P90 billion.

It’s the biggest case of a government’s incompetence. The Republic lost P90 billion because the Aquino-era PCGG and its lawyers were so stupid or so incompetent. Or did they, as a conspiracy-theorist friend tells me, deliberately lose the case for the presidential cousin, who reciprocated by running for president in 1992, dividing the Marcos loyalist forces and effectively foiling Imelda Marcos’ bid for the presidency at that time?

The case was primarily prepared and pursued by the PCGG during President Cory’s term, and it was headed by elders of unquestioned integrity, consecutively: Jovito Salonga, Ramon Diaz, Mateo Amando Caparas and David Castro.

That P90 billion certainly dwarfs the P900 million involved in the plunder charge against former President Estrada (for which he was convicted), the P300 million in the case against Maj. Gen. Carlos Garcia, and even the P530 million in that ridiculous case—obviously in aid of senatorial ambitions—recently filed by a Cory-era official against former President Gloria Arroyo involving funds for OFWs’ health insurance.

With Congress’ penchant for investigating alleged plunder cases, shouldn’t they investigate this biggest government blunder of the century?

It’s also a cautionary tale. Integrity and a crusading attitude can take things only up to a point. Competence and intelligence are as important. Or are the integrity and crusading spirit mere put-ons? Somehow, this reminds me of a more contemporary situation.