SURPRISE, surprise, the most talkative of President Gloria Macapagal-Arroyo?s many spokespersons is not even a Filipino but an American citizen. Gary Bocobo Olivar, the same spokesman who said Arroyo can appoint a chief justice (CJ) without any list of nominees from the Judicial and Bar Council (JBC)?a violation of the Constitution?uses an American passport, No. 095868747, issued by the Philadelphia Passport Agency, valid from May 23, 2002 to May 22, 2012.
Olivar used that passport when he departed from the Philippines at least 10 times?between Aug. 15, 2004 and Nov. 22, 2009. He used the same passport when he arrived in the Philippines seven times?between Sept. 2, 2004 and Sept. 29, 2007.
Olivar was appointed deputy presidential spokesperson, rank of secretary, in May 2009.
Can Olivar, an American citizen, be legally appointed to an important position in the Philippine government, a Cabinet position no less, and speak for the President? What do our laws say about a situation like this?
According to Article 177 of the Revised Penal Code: ?Usurpation of Official Functions?Any person who shall knowingly and falsely represent himself to be an officer, agent or representative of any department or agency of the Philippine Government or any foreign government, or who, under pretense of official position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government or of any foreign government, or any agency thereof, without being lawfully entitled to do so, shall suffer the penalty of prision correctional in its minimum and medium periods.?
Article 244 of the Revised Penal Code says:
?Unlawful appointments?Any public officer who shall knowingly nominate or appoint to any public office any person lacking the legal qualifications therefor shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos.?
Republic Act 9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003 says:
?Section 5. Civil and Political Rights and Liabilities?Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions?.
?(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath.?
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Still on the premature appointment of a new chief justice: The problem arose because some people want to go against the time-honored tradition of appointing as chief justice the most senior associate justice. At present, that associate justice is Antonio Carpio. But GMA wants to bypass him in retaliation for some decisions he may have made against her administration. Next in line is Associate Justice Renato Corona, GMA?s former chief of staff in Malacañang and who is very loyal to her. GMA wants to appoint him instead, and Corona wants to be CJ.
Actually, Corona can still be chief justice even if Carpio is appointed CJ in May. Carpio will retire long before Corona, who is much younger. When Carpio retires, Corona would be the most senior associate justice and next in line for CJ.
But if Corona is appointed CJ this May, Carpio will retire before Corona, without a chance to be CJ himself. That would be GMA?s vengeance.
However, both the appointing power and the appointee face sanctions for election offenses under the Omnibus Election Code:
?Section 261. Prohibited Acts?The following shall be guilty of an election offense:
?(g) Appointment of new employees, creation of new position, or giving salary increases?During the period of 45 days before a regular election and thirty days before a special election:
?(1) Any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.
?(2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporation.?
The Omnibus Election Code punishes principals, accomplices and accessories (as defined under the Revised Penal Code) committing this election offense. The penalty is not less than one year but not more than six years as well as disqualification to hold office and deprivation of the right of suffrage.
All the Supreme Court justices and members of the legal profession qualified to become the next chief justice are presumed to know these laws.
Thus, anyone who accepts such a midnight appointment, well aware of the nullity thereof, is complicit in the commission of the illegal act and may be deemed to have abandoned his previous office. No defense of good faith can be invoked here.
In addition, any member of the bar or an associate justice who cooperates in the commission of an election offense by accepting an illegal promotion during the election ban, without which acceptance the election offense would not have been accomplished, becomes a principal in the commission of the election offense and stands to suffer, among other penalties, disqualification from holding public office.
