Sunday, May 07, 2006

THREATS TO ARREST BATASAN 5: The Executive's Continuing Disrespect forthe Judiciary

May 7 Statement

The recent rulings of the Supreme Court on EO 464, CPR andProclamation 1017 highlighted the "three tendencies" that definesPres. Gloria Arroyo's presidency:

Firstly, the fact that all three of her major policy actions weredeclared by the Supreme Court unconstitutional in whole or in part,showed that the Executive department has the tendency to violate theConstitution. The fact that the Supreme Court decisions in the CPRand EO 464 issues were unanimous with not one Associate Justicedissenting, showed that the Pres. Arroyo's actions were clearly andundoubtedly unconstitutional. The lopsided 11-3 decision onProclamation 1017 further affirmed that the presidential actionsshould have been perceived as unconstitutional by Pres. Arroyo and herlegal advisers long before they promulgated these policies.

Secondly, the decisions show the tendency of the Executive to usurplegislative power through executive orders while attacking thelegislative functions of Congress. The Calibrated PreemptiveResponse (CPR) policy was found unconstitutional because it seeks toamend a law by replacing "maximum tolerance" with the CPR. EO 464 wasfound unconstitutional for violating Congress' constitutional functionto conduct inquiry in aid of legislation. Proclamation 1017'sprovisions on take over of businesses without a law, the presidentialpower to issue laws in the guise of "decrees" and its definition ofterrorism as a crime even if Congress has yet to approve the bill wereall considered ultra vires, beyond the powers of the president, as itencroaches on the law making powers of Congress.

Thirdly, the decisions showed the tendency of the Executive to use public office to politically persecute dissenters and members of theopposition. The series of unconstitutional acts showed malice as itis incomprehensible that Pres. Arroyo with her coterie of legaladvisers could have made such blatantly substantial mistakes, not oncebut thrice. As aptly stated by the Court, the executive hascontinuously tested the limits of the Constitution by expanding herpowers and playing with fire—fire that may burn down the country inthe end if left unchecked. By willfully using government office andresources to prosecute her personal opponents, Pres. Arroyo hascommitted culpable violation of the Constitution, another impeachableoffense.

Attack against the Judiciary

There is now a new tendency exhibited by the executive through itsJustice Secretary and the Philippine National Police: disrespect forthe judiciary and adverse judicial decisions.

Rather than admitting defeat or mistakes in the preparation of theircases, the statements of executive officials like Sec. Raul Gonzalez,showed total disrespect for the judiciary. The Justice Secretary haslost all the major cases he has presided over including thoseinvolving the Batasan 5 and even the TRO against the peoplesinitiative in his native island of Panay. He, together with Gen.Vidal Querol, has consistently vowed to disobey the Supreme Courtruling on PP 1017 by maintaining that they will continue to prosecuteProf. Randy David and the Batasan 5.

DOJ and PNP personnel involved in any attempt to arrest members ofthe Batasan 5 despite the decisions of the Supreme Court and that ofthe Makati Regional Trial Court quashing the criminal complaints filedagainst them, are criminally liable under Article 231 and Article 241of the Revised Penal Code, for openly disobeying the orders of theConstitution and decisions of the judiciary:

Art. 231. Open disobedience. - Any judicial or executive officer who shall openly refuse to execute the judgment, decision or orderof any superior authority made within the scope of the jurisdictionof the latter and issued with all the legal formalities, shall sufferthe penalties of arresto mayor in its medium period to prisioncorreccional in its minimum period, temporary special disqualificationin its maximum period and a fine not

Art. 241. Usurpation of judicial functions. - The penalty of arresto mayor in its medium period to prision correccional in its minimumperiod shall be imposed upon any officer of the executive branch of the Government who … shall obstruct the execution of any order ordecision rendered by any judge within his jurisdiction The DOJ may use court processes such as motions for reconsiderationor appeal if they do not agree to a court decision, but may notblatantly disregard such decisions. It must be noted that convictionunder this provisions results in the disqualification from holdingelective or appointive public office.

Batasan Five Cannot be Arrested: There is no Case and No Warrant

The Art. III, Sec. 2 of the Constitution states that:

Sec. 2 The right of the people to be secure …against unreasonable searches and seizures of whatever nature and for whatever purposeshall be inviolable, and no warrant of arrest shall issue except uponprobable cause to be determined by the judge…

Since the Constitution requires a warrant, any arrest of the Batasan5 will only come "upon the filing of an Information in a RegionalTrial Court" as provided under Rule 112 Section 6 of the RevisedRules on Criminal Procedure.

Since the Makati RTC has dismissed the amended complaint filed by theDepartment of Justice, no warrant of arrest shall issue and thereforethe threats of Sec. Gonzalez to arrest the Batasan 5 has no legal orfactual basis. If arrested, the government may again court reversalfrom the Supreme Court for another violation of the Constitution,thereby increasing the government's losing streak.

Sec. Gonzalez cannot arrest the Batasan Five without warrant since Rule 113 Section 5 on Warrantless Arrest of the Revised Rules onCriminal Procedure provides:

Sec. 5 Arrest without warrant: when lawful—A peace officer or aprivate person may, without warrant, arrest a person:

(a) when, in his presence, the person to be arrested is actuallycommitting or attempting to commit an offense;

(b) When an offense has just been committed and he has probable causeto believe based on personal knowledge of facts or circumstances thatthe person to be arrested has committed it; x x x

Sec. Gonzalez or any of the officers cannot claim to have personalknowledge or even a reasonable ground to believe that a crime has beencommitted and that any of the Batasan 5 have committed it.Definitely, no PNP or DOJ personnel can claim that the Batasan 5 havecommitted crimes in their presence.

Protective Custody Continues

Even if the Batasan 5 leaves the premises of the House ofRepresentatives, the protective custody continues and police attemptsto arrest them will not only make the PNP liable under currentcriminal laws but also for contempt of Congress. Resolution 1169expressly provides that the protective custody continues 'until awarrant of arrest' is issued. Statements by Speaker Jose de Venecia and the House leadership highlights the scope of the protection—until and unless a warrant is issued, the protective custody for the Batasan5 remains. PNP and DOJ personnel executing an unlawful warrantlessarrest will not only violate the Supreme Court decision onProclamation 1017 but will open them to criminal and administrativeliability.

Government repression against dissenters and its correspondingleniency to its allies charged with corruption or human rightsviolations show a pattern of political persecution which is notcongruent with Section 18 (1) Article III of the Constitution whichprovides that: " No person shall be detained solely by reason of hispolitical beliefs and aspirations". It is also violative ofanti-graft laws and the Revised Penal Code.

Political Persecution

Executive officials are criminally and administratively liable iftheir actions were intended for 'political persecution' of dissenters. Sec. 4 of RA 6713 requires that :Sec. 4 (A) Every public officials shall observe the followingstandards of personal conduct in the discharge and execution ofofficial duties: x x x

[ b ] Professionalism—Public officials shall perform and dischargetheir duties with the highest degree of excellence, professionalism,intelligence and skill. …they shall discourage wrong perceptions oftheir role as dispensers or peddlers of undue patronage.

[ c ] They must act with justness and sincerity and shall notdiscriminate against anyone… They shall at all times respect therights of others and shall refrain from doing acts contrary to law…

[ d ] Political neutrality—Public officials shall provide services toeveryone without unfair discrimination and regardless of partyaffiliation or preferences.

[g ] Public officials shall commit themselves to the democratic wayof life and values, maintain principles of public accountability, andmanifest by deeds the supremacy of civilian authority over themilitary. They shall at all times uphold the Constitution and putloyalty to country above loyalty to persons or party.

The fact that Sec. Gonzalez admits that he did not order theinvestigation of Jocelyn Bolante because there is 'no pendingcomplaint against him before me " at the DOJ, while at the same timeinvestigating a student that heckled Pres. Arroyo in Cavite is proofof the political bias exhibited by the executive department,considering that there is actually no pending case against thatstudent. The executive's undue interest in investigating andarresting the Batasan 5, even prejudging their guilt before apreliminary investigation is completed, while showing a complete lackof interest in AFP Generals reportedly involved in election fraud isone more proof of such bias, a prohibited act under Philippine laws.

Conclusion

The Supreme Court has declared as unconstitutional warrantless arrestconducted during Proclamation 1017. There is no judicial order orwarrant ordering the arrest and detention of the Batasan 5 and Rep.Crispin Beltran. In fact, information filed against them by the DOJhave been dismissed by both the Quezon City and now, the MakatiRegional Trial Courts.

The Constitution and the Rules of Court prohibit their arrest andcontinued detention. There is, therefore, no legal or factual basisfor their arrest or detention. The continued harassment of thepolitical opposition is an impeachable offense against Pres. Arroyo.Pres. Arroyo's subordinates are themselves criminally, civilly andadministratively liable under various Philippine laws.

Pres. Arroyo and her subordinates are liable, most especially, for agrave and serious offense against the Filipino people—betrayal ofpublic trust, for which they will ultimately be held accountable.

Reference Person : Atty. Neri Javier Colmenares, Spokesperson
Date : 7 May 2006

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