Tag: corruption

constitutional law, Criminal law, News, The News Media

Pertinent laws on disclosure of the SALN (Statement of Assets, etc)

Pertinent laws on disclosure of the SALN (Statement of Assets, Liabilities, and Networth)

Part One (sowee, because i wake up at the same hour regardless of everything — have been advised by the health consultant to  be asleep by 11am;  can’t always comply but i try, don’t ask why because  you’ll get a bye-bye; ta-tah, i’ll finish this  in the next post)    

 If a reporter asks for access to the SALN (to look at,  or to view and to photocopy at his/her own expense)  of a public official; and is refused, is there anyone liable for such refusal? Who would be liable?

The following are the pertinent provisions:

      The Constitution:

“Art. XI, Section 17. A  public  officer  or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the  public in the manner provided by law” (Underscoring supplied. Article XI, Section  17,  1987 Constitution).

  “(I)n the manner provided by law….” refers to the following requirements laid down by law:

       Republic Act 6713, Code of Conduct and Ethical Standards for Public Officials and Employees:

      “Section 8.  Statements  and  Disclosure. – Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests  including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.” 

        Republic Act 6713, Code of Conduct and Ethical Standards for Public Officials and Employees:

      The Anti-Graft and Corrupt Practices Act of the Philippines, as follows:  

      “Section 7. Statement of Assets and Liabilities. – Every public officer, within thirty days after assuming office and, thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head,  or in the case of a Head of Department or Chief of an independent office, with the Office of the President,  a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year; xxx….”(Section 7, Republic Act 3019, as amended, the Anti-Graft and Corrupt Practices Act of the Philippines, as amended by RA 3047, PD 677 and PD 1288, January 24, 1978) 

[TO BE CONTINUED. zzzzzzz(pretending to sleep for the health consultant)]

Criminal law, Rules of Court

still on the being-reviewed drug case of the Alabang boys

ecstasy2

  

(Photo of ecstasy pills, right-clicked from www.pdea.gov.ph used here for educational and non-commercial purposes)

 

    

   At today’s congressional hearing  (I’ll just discuss in passing the criminal procedure aspect; not the bribery allegations), State Prosecutor Resado was asked how he would have ruled had the Alabang boys not executed a waiver. He said he would have ruled against them and would have filed the drug case in court.

 

      The buy-buy operation by which the Alabang boys were apprehended is a form of a warrantless arrest; valid depending on the circumstances; if the respondents were caught in flagrante delicto or in the act of committing a crime,  then valid. Any search made in relation thereto, or  in relation to the arrest, is a form of a search incident to a lawful arrest. If the arrest were valid, the search incident thereto is valid. State Prosecutor Resado discussed something about the failure to conduct an inventory on site and the chain of custody. I’ll leave the other lawyers to discuss that, not wanting to do free research and opinion for any party. But the ones stated here are what the Rules of Court provide. If in flagrante delicto, valid warrantless arrest. If valid arrest, any search incident to the arrest is valid. The search must be only of the immediate vicinity; there are cases that say that that search must be only within literally the arm’s length of the suspects because the purpose is to prevent the suspect from reaching for any weapon that he/she may use against the law enforcers. I’ll leave  other lawyers to discuss the research on that.

 

       After such warrantless arrest (in flagrante delicto) an inquest, or a kind of “speedy investigation” (my words),   is conducted. It must be  conducted right away. Because the suspects have now been warrantlessly arrested and in detention;  they have to be charged within 12 or 18 or 36 hours depending on the case. If charges are not filed within 12 or 18 or 36 hours depending on the case, then the State has to release them. There’s a constitutional right not to be detained without charges, and the charges have to be filed within those periods. Otherwise, those detaining the suspects would be charged with arbitrary detention, a criminal offense.

 

       Based on “statistical experience” (my words), aecstasymost inquest proceedings are resolved in favor of the State; I’m not saying that’s a rule or it is a practice, I’m just saying that’s based on statistics.

 

(Photo of ecstasy pills, right-clicked from www.pdea.gov.ph used here for educational and non-commercial purposes)

 

 

       The suspects, especially where the anticipated charge is a capital offense, usually ask that a full-blown preliminary investigation be conducted instead of just an inquest. Why? If it’s anticipated to be a capital offense, the suspects are detained and will be detained after the charges are filed and until the trial is over, which is a very long time and may take years and years. Years and years in detention during trial: weigh that against a month or two  of detention during preliminary investigation, at which time you can present more evidence and play with your chances. Which do you choose?

 

       So, the suspects usually take their chances with a full-blown preliminary investigation. They have to execute a waiver of their right not to be detained beyond 12 or 18 or 36 hours and the right to file a case of arbitrary detention. In exchange, they get a full-blown preliminary investigation. There’s a circular that says that a preliminary investigation must be resolved within 90 days.

 

     (that’s the post for today; i won’t give an opinion on the length of time of the detention in this case; yeah, sometimes i choose not to give an opinion.)

 

       

breaking news, The President

Breaking news: DOJ usec and prosecutors take a leave. (the equivalent of the President telling them “just cool your heels, boys”)

photo by DOJ website used here for non-commercial purposes
photo by DOJ website used here for non-commercial purposes

                       DOJ executives starting from Usec Blancaflor (through whose office the draft order of release of the Alabang boys was coursed) and the prosecutors went on leave yesterday upon instruction of the President. Indefinite leave, as it seems.

    Their colleagues and fellow prosecutors in the DOJ, and those who were asked to go on leave themselves, should not fret, should put a smile on their grim and sad faces: the President owes Raul Gonzales her presidency, she won’t let you down, little boy blue, just let the news coverage blow over.

               Malacañang  stops short. See?

            The President has the power to summarily axe non-career government personnel and to transfer those who could not be axed summarily, she has the power to conduct her own silent speedy investigation in a matter of three days to get to the bottom of the bribery allegations and thereafter fire or transfer the concerned personnel, she has the power to give walking papers to the head of any government agency who sits at the top of the giving and taking (and thereafter cause the filing of complaints), yet she leaves the so-called investigation to mere DOJ underlings, the NBI. The NBI being a subordinate agency of the DOJ, cannot be expected to undertake a speedy impartial investigation of its own bosses, (the DOJ bosses), who sign their merit promotions, their paychecks, etc. For that matter, any panel created by the DOJ secretary would be suspect.

 

       Without exercising these options created by the powers vested on the office of the president, the leave of the DOJ execs and prosecutors is perhaps good only until the news coverage of the bribery allegations blows over.

      It’s the equivalent of the  President telling the DOJ execs and prosecutors: “Just cool your heels, boys. Chill.”