MANILA, Philippines - Lawyers for former president and now Pampanga Rep. Gloria Macapagal Arroyo will question the "propriety" of the joint Department of Justice(DOJ)-Commission on Elections(Comelec) committee's preliminary investigation on allegations of her involvement in electoral sabotage during the 2007 midterm polls.
Speaking to reporters at the sidelines of the preliminary investigation's initial hearing on Thursday, Arroyo's lead counsel, former Justice Secretary Artemio Tuquero, said they will file a motion with the joint DOJ-Comelec investigating committee before November 14, the deadline set for the submission of respondents' counter-affidavits.
"A law enforcement agency who conducted the criminal investigation, gathered evidence, and filed the complaint, cannot proceed with the preliminary investigation. We find it improper of this committee to conduct the preliminary investigation on a complaint based on the report of another team, also under the DOJ and Comelec," Tuquero said.
"I think that will resort to violating my client's right to procedural due process," he added.
Tuquero is referring to one of 2 complaints, that is the subject of the formal probe, which was endorsed to the joint committee by a DOJ-Comelec fact-finding team created for purposes of gathering and evaluating evidence and prepare documentation and complaints to initiate preliminary investigation proceedings.
Tuquero cited Eduardo Cojuangco vs. Presidential Commission on Good Government(PCGG), et al. which states: "In our criminal justice system, the law enforcer who conducted the criminal investigation, gathered the evidence and thereafter filed the complaint for the purpose of preliminary investigation cannot be allowed to conduct the preliminary investigation of his own complaint. It is to say the least arbitrary and unjust."
"One cannot be 'a prosecutor and judge at the same time.' Having gathered the evidence and filed the complaint as a law enforcer, he cannot be expected to handle with impartiality the preliminary investigation of his own complaint, this time as a public prosecutor," said jurisprudence states.
Arroyo's camp said it will give the joint committee a chance to act on their motion, but, in the event that an unfavorable ruling is issued, they have no recourse but to seek redress from the Supreme Court on petition for prohibition to bar the continuation of the proceedings.
Tuquero lamented that the case against his client may already have been prejudged even before the conclusion of the preliminary investigation proceedings to determine the existence of probable cause against respondents.
"Considering the announcements and pronouncements of the head of the DOJ, I think they have already made up their mind. In fact they (Malacañan Palace) have announced that the case will be filed in court before Christmas," he said.
"How sure are they that the evidence is strong enough to establish probable cause unless they have already prejudged the case?" he added.
Committee insists on legitimacy of its authority
The joint committee, through its chairman Prosecutor General Claro Arellano, welcomed the submission of any manifestation from respondents even as it pointed out that its proceedings was "not the proper venue" to question the committee's mandate and authority.
The committee also maintained its constitution is legitimate.
"This is not the proper venue to question or to challenge the propriety of our committee. We maintain the legality of our existence; we were constituted by the proper authorities -- the Secretary of Justice and the Comelec," Arellano said.
In a 5-page joint order dated August 15, 2011 signed by Justice Secretary Leila de Lima and Comelec Chairman Sixto Brillantes, the DOJ and the poll body created the joint preliminary investigation committee and the joint fact-finding team.
The preliminary investigation committee has the following members: Provincial Prosecutor George Dee(DOJ), City Prosecutor Jacinto Ang(DOJ), Atty. Michael Villaret(Comelec) and Atty. Romeo Fortes(Comelec).
The fact-finding team meantime is led by Justice Asec. Zabedin Azis. Its members include representatives from the DOJ, Comelec and the National Bureau of Investigation(NBI), an attached agency of the justice department.
Koko defers to DOJ decision on Arroyo ADO
Sen. Aquilino "Koko" Pimentel III, complainant in the second electoral sabotage complaint, meantime said he would not object should the DOJ decide to grant Arroyo's application for issuance of an allow departure order(ADO) so she may seek further medical treatment abroad for her spinal and parathyroid gland problems.
"If the DOJ thinks there is a valid reason, due to her medical condition, then I will have no problem with that. As long as there is a valid reason," Pimentel said.
The DOJ is evaluating Arroyo's application and will release a decision on Tuesday or Wednesday next week.
Arroyo is covered by an immigration watch list order (WLO) issued by the justice department last October 27 due to the pendency of the electoral sabotage cases. Her husband, Atty. Jose Miguel "Mike" Arroyo, and 38 others are also covered by the order.
Arroyo's lawyers insist that denying her right to travel will constitute a violation of the Constitution.
"If you read the Constitution, the right to travel can only be curtailed or impaired in the interest of national security, public safety and public health. I think the pendency of this [electoral sabotage] case could not be a ground for refusing her [ADO]," Tuquero said.
The justice department, through Secretary Leila De Lima, had repeatedly stated that the issue on Arroyo's application for ADO is a tough balancing act between the latter's rights and the "higher interest of justice." De Lima said that as chief law implementor of government, the DOJ has to ensure that the prosecution of "high-profile" cases and "high crimes" must not be "frustrated" nor "derailed" by a respondent's absence or evasion to face the charges.