Arroyo petition vs DOJ-Comelec poll fraud probe explained

by Ina Reformina, ABS-CBN News

Posted at Nov 11 2011 02:33 PM | Updated as of Nov 11 2011 11:37 PM

MANILA, Philippines - Former First Gentleman Jose Miguel Arroyo filed with the Supreme Court (SC) today a petition that formally questioned the creation of a joint Department of Justice (DOJ)-Commission on Elections (Comelec) body presently conducting preliminary investigation proceedings on electoral sabotage cases against him and his wife, former President and now Pampanga Rep. Gloria Macapagal Arroyo, and a separate joint DOJ-Comelec fact-finding team tasked to gather and evaluate evidence with the end goal of filing charges in connection with alleged poll fraud in the 2004 presidential and 2007 midterm elections.

In a 66-page petition for certiorari and prohibition with a prayer for issuance of a temporary restraining order(TRO) and/or preliminary injunction, Mr. Arroyo asked the high court to nullify Joint DOJ-Comelec Order No. 001-2011 dated August 15, 2011 that created the 2 bodies and their respective proceedings, assailing the order for being "unconstitutional."  

The petition alleged that the creation of the joint committee via the joint order is "at war with the due process and equal protection clause of the Constitution, having been created with the sole end in view of investigating and prosecuting certain persons and incidents only, specifically those involving the 2004 and 2007 elections to the exclusion of others."

Joint order violative of equal protection clause

The petition maintained that this violated Biraogo vs. Truth Commission which held that "[t]he equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play."

The petition pointed out that the assailed joint order bears a striking resemblance with President Benigno Aquino III's expunged Executive Order (EO) No. 1 which created the Truth Commission.

"Truly, one gets the strange feeling that Joint Order 001 is nothing but Executive Order No. 1 'Part Two,' in show business parlance, a badly-written sequel wherein the executive is trying to do a remake of a directive that has flopped, having failed the test of constitutionality," the petition read.

"Insofar as their prosecutor powers are concerned, both respondents DOJ and Comelec are brother and sister, of the same DNA. So why the need to create a special body uniting respondents DOJ and Comelec in a proscribed incestuous marriage, simply for the purpose of giving birth to an information directed solely at petitioner for alleged crimes committed for a narrow period of time?" the petition read.

Mr. Arroyo also told the high court the joint proceedings of the DOJ and Comelec should be immediately enjoined because of pronouncements coming from no less than Pres. Aquino himself that cases should be filed against petitioner, which may not accord Mr. Arroyo due process.

Independence of Comelec "demolished"

The petition argued that the creation of the joint committee "demolishes" the independence of the Comelec since the DOJ is a "political agent of the executive." 

"The Constitution expressly provides that the Comelec, like all other Constitutional Commissions, shall be independent. In the present scheme, however, respondent Comelec has willingly surrendered its independence to the respondent DOJ and must share its exercise of judgment and discretion with the executive branch, through the DOJ," the petition read.

The petition, in stressing that the independence of the poll body has been effectively undermined by the joint order, pointed out that the 7-member joint fact-finding team is chaired by a justice undersecretary and composed of 5 members from the department.

The petition further pointed out that the preliminary investigation committee is likewise chaired by the DOJ's Prosecutor General, and 3 of its 5 members also come from the DOJ.
"The respondent Comelec, as as constitutionally-independent body cannot, even by its own volition, make itself adjunct of the DOJ, an executive department whose head, respondent De Lima, is a qualified political agent -- an alter ego -- of the president, subject to the president's dictates, direction and demands," the petition read.

Concurrent jurisdiction

While conceding that Republic Act No. 9369 (An Act Authorizing the Commission on Elections to Use an Automated Election System) provides for concurrent jurisdiction of the Comelec and DOJ over election offenses, the petition argued that the law's Section 265 on Prosecution did not mean "joint" when it pointed out that the 2 agencies' jurisdiction was "concurrent."

"The joint committee's existence, therefore, has no basis in law and in the rules, hence, should be struck down," the petition read.

"This being so... any information filed by an officer or body having no authority under the law will be defective and will not vest any court with jurisdiction," the petition read.

The petition asked for the conduct of oral arguments at the high court to full ventilate the legal and Constitutional issues presented in the case.

Closure needed, joint probe should result in filing of charges

In creating the joint preliminary investigation committee and joint fact-finding team, the justice department and Comelec had stressed that "closure" must be achieved at the end of the proceedings "for the entire nation" and appropriate charges for violations of the Omnibus Election Code, Revised Penal Code, and other laws must be filed in court against "those responsible for massive vote-rigging in the 2004 and 2007 elections."

"That is and has always been the target of this administration -- to hold people accountable, including the former officials -- former high officials of government... may mga dapat managot at may mga pananagutin," Justice Secretary Leila De Lima said in a previous interview.

The justice chief, together with Comelec chairman Sixto Brillantes, had assured all respondents in the electoral sabotage cases will be accorded due process and that there will be no railroading of proceedings.