Rays of light
By Solita Collas-Monsod
Philippine Daily Inquirer
First Posted 23:21:00 03/25/2011
Filed Under: Judiciary (system of justice)
THAT FULL-PAGE ad taken out in this newspaper entitled “SO THAT THE PCGG AND OSG (and others) MAY HAVE THE FACTS RIGHT ON WHY THE PRESENTATION OF THEIR TESTIMONIAL EVIDENCE ON THE LUCIO TAN ILL-GOTTEN WEALTH CASE WAS TERMINATED BY THE SANDIGANBAYAN ON APRIL 23,2009” by Estelito P. Mendoza and Associates (lawyers for Lucio Tan) is an indication, from where I sit, that the actions of the new and revitalized Presidential Commission on Good Government may be starting to hit a nerve.
The reader will recall that I wrote last week that the PCGG/OSG had filed a motion with the Sandiganbayan for the justices hearing Civil Case 0005 to inhibit themselves because of their “manifest partiality and bias in favor of the powerful interests impleaded in this case (which) glaring inequity substantially eroded the Republic’s faith that this case would be resolved in accordance with law, justice and equity.”
The powerful interests adverted to is, of course, Lucio Tan who has so far managed to win all the cases filed against him, whether it be government agencies (i.e., the BIR) or his labor unions (the flight attendants’ union did win its case against him in the Supreme Court, won in Tan’s first motion for reconsideration, and then lost the second). For that matter, Tan has somehow managed to get his way with Congress as well. And let’s face it, Presidents, too, although so far P-Noy seems to have been able to resist his blandishments (it is my understanding that P-Noy himself refused any campaign contributions from Tan, but it has also been alleged that the latter managed to course it through some members of the Samar group).
It should not escape anyone’s notice that while the title of the ad refers to the April 23, 2009 open-court order of the Sandiganbayan terminating the prosecution’s presentation of testimonial evidence, what it reproduced is the July 20, 2009 Sandiganbayan resolution denying the motion for reconsideration filed by the PCGG/OSG. That is because the April 23 order was an oral one, and it is clear as a bell that it was done in a rush, with only the weakest attempts at justification, because the anti-graft court, presumably at the urging of Mendoza, was trying to stave off the possibility of Mariano Tanenglian (Lucio Tan’s brother) turning state witness. Whether or not a written order followed the oral one, I do not know. But even if there was one, the fact that Mendoza did not use that but preferred to reproduce a resolution handed down three months later is in itself very telling: they needed additional time to marshal the arguments necessary to justify the order of April 23.
Even then, I still am not buying their position. The partiality was manifest, and the explanatory note of Mendoza and Associates gives it away. Notice, dear reader, what Mendoza says: “The termination was not only justified but belated. The case has been pending since July 17, 1987, or now for nearly TWENTY-FOUR YEARS” (emphasis theirs).
And yet, when the Sandiganbayan talks about the “antecedent facts,” it starts with 2005, rather than 1987. And the reason becomes clear, when one sees the timeline (as provided to me generously by Catalino Generillo, who was hired by Haydee Yorac and whose judgment I will take over that of 10 Agnes Devanaderas).
So why did the Sandiganbayan start with 2005? Well because, dear reader, the delay between 1987 and 2005 was due to the collective efforts of the defendants, including Lucio Tan—dilatory tactics, including motions to dismiss, motions for bill of particulars, motions to suspend proceedings (even before the start of the formal trial). For example, it took Lucio Tan almost three years (March 1990) to file his answer to the initial complaint of the PCGG, and would you believe another nine years to answer the PCGG’s amended complaint? On the other hand, of the 17 postponements requested by the government, as cited by the court, only three are fully attributable to the government per the PCGG tally, while the rest were due to valid reasons, i.e., circumstances beyond its control.
Indeed, if the Sandiganbayan had taken cognizance of those defendant-caused delays, rather than just the prosecution-caused delays, there would clearly be no basis whatsoever to chafe at the delays they attribute to the prosecution, much less to terminate arbitrarily (justification three months later, as noted above) its presentation of evidence, in effect denying the latter the opportunity to fully present its case. How’s that for loading the cards against the good guys?
But lo and behold, it seems that some rays of light are appearing in what was heretofore a very dark horizon. The same day that the full-page Mendoza ad appeared in the Inquirer two days ago, the Sandiganbayan granted, in open court, the government’s motion to adduce additional evidence, and gave it an eight-month window to do so, the clock starting immediately.
Did the court change its mind because of the March 15 PCGG/OSG motion for the justices to inhibit themselves? One cannot tell. But in researching for this column, I came upon a report regarding a 2010 ruling by the Supreme Court (with Martin Villarama as ponente) that the Sandiganbayan (Second Division) committed grave abuse of discretion when it denied a PCGG plea to reopen a case for presentation of additional evidence.
The Villarama decision stated that the Sandiganbayan’s refusal would result in “miscarriage of justice”; and that, aside from this, the Sandiganbayan flouted EO 14, Series of 1986 issued by President Cory Aquino (when her word was law) that technical rules of procedure and evidence shall not be strictly applied to cases involving ill-gotten wealth.
Cheers.
Statement in Response to the Full-Page Advertisements of Atty. Estelito MendozaPosted on April 8, 2011 by The Commission
[Nota bene. The following statement, in response to the full-page advertisements of Atty. Estelito Mendoza, was circulated to certain members of the press. Unfortunately, except for Prof. Solita Collas-Monsod's article (25 March 2011) entitled, Rays of Light, to our knowledge, the following statement was neither covered nor mentioned anywhere else.]
The law firm of Atty. Estelito Mendoza, counsel for Mr. Lucio Tan, took out paid full-page advertisements in The Philippine Star (on 23 March 2011) and Philippine Daily Inquirer (on 24 March 2011), to purportedly explain why the presentation of the Republic’s evidence in the Lucio Tan ill-gotten wealth case was terminated by the Sandiganbayan on April 23, 2009.
The said advertisements were misleading and the facts presented were maliciously slanted to favor Mr. Tan and his co-defendants. It unfairly casts aspersions on both the PCGG and the OSG when both institutions only seek to exhaust all remedies allowed under the Rules of Court to present the government’s case. In taking out the paid advertisements, Atty. Mendoza violated Canon 8 of the Code of Professional Responsibility which requires a lawyer to conduct himself with courtesy, fairness and candor toward his professional colleagues.
The Delay was Not The Fault of the Republic
The July 20, 2009 Sandiganbayan Order which was printed as part of the paid advertisement lists down 17 instances when the government allegedly sought postponement of hearings. However, a closer reading of the 17 cited instances would show that only 3 are fully attributable to the government (15 February 2007, 11 June 2008 and 15 April 2009).
The rest of the postponements mentioned were due to valid reasons such as the sickness (duly supported by medical certificates) of the government’s counsel or witness, or due to the court process server’s failure to serve subpoena on government-proposed witnesses. Clearly, it is unfair to blame the government for the delay mostly caused by circumstances beyond its control.
Mr. Lucio Tan and his Co-Defendants Caused Delays
The complaint for recovery of ill-gotten wealth against Mr. Tan and his co-conspirators was filed on 17 July 1987. The government began its initial presentation of evidence only on May 24, 2006, more than nineteen (19) years later. The delay of nineteen (19) years from the time of the filing of the complaint to the time that the government started presenting its first witness was caused by collective efforts of Mr. Tan and other defendants.The records show that defendants filed motions to dismiss, motions for bill of particulars and on at least two occasions, Atty. Mendoza filed motions to suspend proceedings even before the start of the formal trial.
Timing and Motivation Behind the Advertisements
The paid full-page advertisements clearly violate the sub judice rule which prohibits parties and counsel from publicly discussing matters that are still being considered by the court. Moreover, it came out just as the government had filed separate motions for inhibition of the Justices of the 5th division of the Sandiganbayan for their manifest bias in favor of the Mr. Tan, and for the government to be allowed to present Mr. Tan’s brother, Mr. Mariano Tanenglian as a witness for the government.
In as much as a trial is intended to be a search for the truth, the government wants to present Mr. Tanenglian as a witness and for the court to hear what he has to say. For one reason or another, the previous PCGG and Solicitor General did not want him to testify for the government. We disagree. Mr. Tanenglian has offered his willingness to testify for the Republic, we believe that the court and the Filipino people should hear what he has to say.
Final statement
It is beyond doubt that the full-page advertisements were precisely timed to influence the court as it evaluates the motion for inhibition and the motion to adduce new evidence which includes the testimony of Mr. Tanenglian. It is clearly part of Mr. Tan’s well-funded and orchestrated effort to prevent Mr. Tanenglian from testifying, clearly driven by fear of the truth that he and his associates have successfully hidden from the public eye for the past 24 years. While we cannot guarantee what exactly Mr. Tanenglian will say, the PCGG will fight for his right to testify and narrate the circumstances as to how Mr. Tan has accumulated his present wealth generated as a result of an unholy and corrupt partnership with former President Marcos to the great prejudice of the Filipino people.
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From the jaws of respect and esteem
Calling A Spade...
By Solita Collas-Monsod
Snatching ignominy from the jaws of respect and esteem. That’s what the Supreme Court (SC) did when it engaged in what can be called its questionable (the most generous of descriptions) conduct in the PAL-FASAP case.
It was only three weeks ago when in this column, I took my hat off to the SC for turning down with finality PAL’s second motion for reconsideration, in a resolution issued on Sept. 7, 2011. But before a month was over (Oct. 4), the SC recalled that resolution. Even SC spokesman Midas Marquez regarded the action as unprecedented (he didn’t use the word, but he is quoted as saying that “this is the first time I’ve encountered something like this” -- which is the same thing).
What is “questionable” (I am dying to say “disgraceful,” but one must be discreet) about the recall? Let us count the ways:
First, the SC acted with what can only be called breathtaking speed (or unseemly haste). Only consider: It took nine years from the time the Flight Attendants and Stewards Association of the Philippines (FASAP) filed its first complaint against PAL for illegal dismissal, to the time the Court of Appeals denied FASAP’s motion for reconsideration (the CA had upheld the legality of the retrenchment). It took about 15 months for the SC (Consuelo Ynares Santiago, ponente) to reverse the CA’s ruling; it took another 15 months for the SC (again Santiago, ponente) to deny PAL’s motion for reconsideration, with finality (“no further pleadings will be entertained” are the last words of the SC order). It took almost another two years (Oct. 2009 -- Sept. 2011) for the SC to deny PAL’s second motion for reconsideration.
In sum, it took more than 13 years for FASAP to win its case, during 4-1/2 years of which it was with the SC. And THEN it took less than a month for the SC to essentially undo the 4-1/2 years it spent on the case, taking back FASAP’s victory. Perhaps one should be comforted by the fact that at least the SC took more than the one day that it took to grant then Ombudsman Merceditas Gutierrez’s request for a temporary restraining order -- but that would be very cold comfort.
Second, the SC acted solely on the basis of a letter from PAL counsel Estelito Mendoza even though it has scolded time and again lower court judges for doing the same thing, i.e., for acting on letters instead of formal pleadings.
Third, it accepted in toto, Mendoza’s arguments -- without even asking for comments from the other side (FASAP), thus ignoring standard procedure, if not the most basic rule of fair play. Given the speed with which the SC acted on the Mendoza letter, it is only natural to suspect that an internal investigation was not even conducted to verify Mendoza’s claims. At least, no reference was made to such an investigation in the press conferences/interviews conducted by Midas Marquez, or in any media report I have come across.
From the jaws of respect and esteem
Calling A Spade...
By Solita Collas-Monsod
Snatching ignominy from the jaws of respect and esteem. That’s what the Supreme Court (SC) did when it engaged in what can be called its questionable (the most generous of descriptions) conduct in the PAL-FASAP case.
It was only three weeks ago when in this column, I took my hat off to the SC for turning down with finality PAL’s second motion for reconsideration, in a resolution issued on Sept. 7, 2011. But before a month was over (Oct. 4), the SC recalled that resolution. Even SC spokesman Midas Marquez regarded the action as unprecedented (he didn’t use the word, but he is quoted as saying that “this is the first time I’ve encountered something like this” -- which is the same thing).
What is “questionable” (I am dying to say “disgraceful,” but one must be discreet) about the recall? Let us count the ways:
First, the SC acted with what can only be called breathtaking speed (or unseemly haste). Only consider: It took nine years from the time the Flight Attendants and Stewards Association of the Philippines (FASAP) filed its first complaint against PAL for illegal dismissal, to the time the Court of Appeals denied FASAP’s motion for reconsideration (the CA had upheld the legality of the retrenchment). It took about 15 months for the SC (Consuelo Ynares Santiago, ponente) to reverse the CA’s ruling; it took another 15 months for the SC (again Santiago, ponente) to deny PAL’s motion for reconsideration, with finality (“no further pleadings will be entertained” are the last words of the SC order). It took almost another two years (Oct. 2009 -- Sept. 2011) for the SC to deny PAL’s second motion for reconsideration.
In sum, it took more than 13 years for FASAP to win its case, during 4-1/2 years of which it was with the SC. And THEN it took less than a month for the SC to essentially undo the 4-1/2 years it spent on the case, taking back FASAP’s victory. Perhaps one should be comforted by the fact that at least the SC took more than the one day that it took to grant then Ombudsman Merceditas Gutierrez’s request for a temporary restraining order -- but that would be very cold comfort.
Second, the SC acted solely on the basis of a letter from PAL counsel Estelito Mendoza even though it has scolded time and again lower court judges for doing the same thing, i.e., for acting on letters instead of formal pleadings.
Third, it accepted in toto, Mendoza’s arguments -- without even asking for comments from the other side (FASAP), thus ignoring standard procedure, if not the most basic rule of fair play. Given the speed with which the SC acted on the Mendoza letter, it is only natural to suspect that an internal investigation was not even conducted to verify Mendoza’s claims. At least, no reference was made to such an investigation in the press conferences/interviews conducted by Midas Marquez, or in any media report I have come across.
If the SC had conducted its own internal investigation, and looked at its own rules again, instead of jumping to accommodate Estelito Mendoza (in a manner very similar to the way Agnes Devanadera and the PCGG reacted to Mendoza’s letter against lawyer Catalino Generillo in another, even more important case where Lucio Tan is also involved) then it would have tossed Mendoza’s letter into the wastebasket -- where it belongs.
Again, only consider: The SC en banc issued “Amended rules on Who Shall Resolve Motions for Reconsideration of Decisions or Signed Resolutions in Cases Assigned to the Divisions of the Court” (A.M. No. 99-8-09-SC) on Nov. 17, 2009 and published in a major daily on Nov. 25, 2009.
In essence, these amended rules say that motions for reconsideration (MR) should be acted on by the ponente and the other members of the division, and then goes on to delineate the chain of substitution covering eventualities such as if the ponente is disqualified, or inhibits himself, or is retired in case the ponente is disqualified, and/or if a member retires, or if the ponente and all the members are no longer with the Court, etc. These are set out in the Rules 1 to 7.
But these rules are trumped in the final paragraph of the document, which states: “If there are pleadings, motions or incidents subsequent to the denial with finality of the motion for reconsideration, the case shall be acted upon by the Division which rendered the Decision or signed Resolution.”
Which exactly describes the PAL-FASAP situation: the first motion for reconsideration had already been denied (with finality; no other pleadings will be entertained) on October 2009. So therefore, that last paragraph applies.
AJ Consuelo Ynares-Santiago was with the 3rd Division of the SC when she was the ponente in both the 2008 decision (reversing the CA) and the 2009 decision (denying PAL’s MR). She retired. The PAL’s second MR was assigned to a 3rd Division member, Presbitero Velasco, who inhibited himself. It was then assigned to Arturo Brion, also a member of the 3rd Division. All these were therefore in compliance with the rule regarding what should be done when a pleading is made after an MR is denied with finality.
Brion was subsequently assigned to the 2nd Division, but the internal rules of the SC provide that when a justice is reassigned, all his cases go with him (which makes eminent sense).
Thus, no mistake was made in the process of assigning the second MR, technical or not. The Clerk of Court involved was completely in the right. Which means that there was absolutely no need for the SC to issue its Oct. 4 resolution recalling the decision on the latter. And the SC , as I said, would have known this had it only done a little bit of homework.
The tragic implication is that by recalling the Sept. 27 decision, the SC has in effect granted PAL a third MR -- without PAL even having to ask for it formally. A letter from Mendoza sufficed. That’s the fourth questionable act of the SC, from where I sit.
It certainly looks like the SC clutched at straws (naghanap ng butas) in order to reopen the case. Midas Marquez is quoted as saying that “It is a technicality, but this is a very important case so we want to remove all doubts.” Marquez and the SC may have gotten already what it wants: all doubts may have been removed -- not with regard to the case, but with regard to the SC itself. The cynics are already betting that the fourth SC decision on this case will reverse the other three, saving PAL some P3 billion that it owes the 1,400 workers illegally dismissed 13 years ago. They also bet on how much PAL is willing to spend to save that amount.
I do not share the cynics’ view, although I hope the SC will read and heed what AJ Brion wrote in the Sept. 7 resolution: “...and we are no more than duty bound to finally put an end to the illegality that took place; otherwise the illegally retrenched employees can rightfully claim that this Court has denied them justice.”
If they do so, then respect and esteem will now be snatched from the jaws of ignominy which was snatched from the jaws of respect and esteem.
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