Essential generals

To win the war on corruption, President Aquino needs – aside from the Cabinet Cluster on Good Governance and Anti-Corruption – the help of six other government entities. Two are in the Executive Department and are thus subject to his direct control: the Department of Justice and the Office of the Solicitor General. Four are constitutionally independent and are not subject to his control, the Office of the Ombudsman (OMB), the Commission on Audit (COA), the Sandiganbayan (SBN) and, most important, the Supreme Court (SC). The heads of these agencies are the essential “generals” of the anti-graft war.

DoJ and OMB. The DoJ is already an integral part of the above-mentioned Cabinet Cluster (which the President chairs), but I still separately mention it because it leads the investigation and prosecution arms of P-Noy’s government. And because I believe Justice Secretary Leila de Lima is the spark plug of the administration’s anti-graft engine. However, while the DoJ can investigate corrupt officials, it has no jurisdiction to prosecute them. That power exclusively belongs to the OMB. The DoJ can recommend, but it is the OMB that prosecutes grafters.

After an acrimonious struggle in Congress, Merceditas Gutierrez suddenly surrendered and gave P-Noy the opportunity to name a new ombudsman. In a sense, the ombudsman is more powerful than a single SC justice; the former decides alone while the latter acts collegially, needing the support of a majority of his/her colleagues. So too, the OMB alone can suspend or fire public officials, an act that the Court can do only collegially.

Apart from the OMB, the war on corruption requires speedy and judicious decisions from the SBN. The OMB can investigate and prosecute, but the SBN decides. Moreover, although the SBN’s judgments of conviction are appealable to the SC, its judgments of acquittal are unappealable and immediately executory.

SBN and SC. The State may challenge SBN acquittals in the SC only by certiorari, i.e., by showing grave abuse of discretion, quite a difficult task. The SC rarely corrects the SBN’s “errors of judgment,” especially when the issue is one of fact and not of law. For example, whether the accused committed the acts constituting the offense is a question of fact, while the issue of whether an indictment is valid is one of law.

P-Noy will be able to name a new SBN head when Presiding Justice Edilberto G. Sandoval retires on June 20. Though he wields only one vote, the presiding justice has moral ascendancy, and – using tested leadership norms – can influence the speedy and judicious trials of graft cases.

Of course, the ultimate decision maker in corruption cases is the SC. Unfortunately for P-Noy, he can appoint – in the normal course – only four new justices during his term. One he did already – Justice Maria Lourdes P. A. Sereno – and two more he can name after Justices Antonio Eduardo B. Nachura and Conchita Carpio Morales retire on the June 13 and 19 respectively.

His fourth opportunity will come on May 14, 2014 when Justice Roberto A. Abad turns 70. His appointees cannot numerically dominate the Court. Neither will he be able to name a new SC head because Chief Justice Renato C. Corona will reach 70 years only on Oct. 15, 2018, way beyond P-Noy’s six-year term which ends on June 30, 2016.

COA and OSG. The COA is also a major player in the fight against corruption. Duty-bound “to examine, audit, and settle all accounts” of the government including the judiciary, the COA can prevent the misuse of government funds, and can provide evidence on their wrong use. P-Noy has recently named a new COA chair (Ma. Gracia Pulido-Tan) and one new commissioner (Heidi L. Mendoza) thereby adding new generals of his choice to the anti-graft war.

Finally, the OSG is the legal counsel of the Republic of the Philippines. It takes over all criminal cases on appeal to the SC. However, during trials in the SBN, the lawyer of the “People of the Philippines” is the OMB. But the OSG takes over when these cases reach the SC.

Asked to comment on the appointment of Jose Anselmo I. Cadiz as solicitor general, I rated him very good. I thought he could be another Cesar Bengzon (who later became a well-loved chief justice) or Ambrosio Padilla or Lorenzo Tañada who all fought and won the legal battles of the Republic in the old days.

I first met Cadiz in 2003 when he delivered his inaugural address as president of the Integrated Bar of the Philippines. I was impressed by his psychedelic choice of heroes – from John Kennedy to Ho Chi Minh to Nelson Mandela to Jose Abad Santos. When I became chief justice, I passed on to him a huge portrait of Ho Chi Minh, which was given me by the Vietnamese chief justice.

Thus far, his record as the Republic’s counsel is checkered by some lost causes like the SC’s voiding of the Truth Commission and of the clause protecting investors from regulatory risks, as well as the SBN’s rebuff of his intervention in the Garcia plea bargain. For better coordination, the OSG I think should be added to the Anti-Corruption Cabinet Cluster.

In sum, this month marks a turning point in the war on corruption because P-Noy will be able to name the heads of the OMB and the SBN, in addition to those of the DoJ, OSG and COA whom he had already chosen. But he will not be able to appoint a new SC chief or a majority of the SC justices. To win the grand war of his presidency, he needs to adjust his battle plans (of enlisting generals of his choice) to this reality.

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