Abalos seeks redress from Supreme Court

by Ina Reformina, ABS-CBN News

Posted at Nov 15 2011 02:36 AM | Updated as of Nov 15 2011 05:57 PM

Asks SC to nullify creation, actions of DOJ-Comelec joint panels

MANILA, Philippines - Former Commission on Elections (Comelec) chairman Benjamin Abalos has formally sought redress from the Supreme Court (SC) against the joint Department of Justice (DOJ)-Comelec poll fraud investigation that has led to his inclusion in two electoral sabotage complaints lodged before the justice department due to alleged massive cheating in the 2007 mid-term elections.

In a 63-page petition for certiorari and prohibition filed on Monday, Abalos asked the high court to declare null and void the constitution and proceedings of the joint DOJ-Comelec fact-finding and preliminary investigation panels and, in the meantime, pending a decision on the merits of the case, issue a temporary restraining order (TRO) and/or a writ of preliminary injunction.

The petition alleged that joint DOJ-Comelec Order No. 001-2011, creating the joint panels, violates Abalos' constitutional right to equal protection of the law.

"While Joint Order no. 01-2011 does not make any express reference to the previous administration, restricting its investigation to election-related offenses committed during the 2004 and 2007 national elections only -- or during the Arroyo administration -- coupled with public pronouncements of fugitives and perjured witnesses attributing electoral fraud to the previous administration, clearly shows that the intent and objective for creating the Joint DOJ-Comelec panel is to single out officials linked to or identified with the Arroyo administration like herein petitioner Abalos," the petition read.

"Equal protection of the laws demands that all persons belonging to the same class be likewise investigated and prosecuted without regard to time or circumstance," the petition read.

"Right to due process of law violated"

The petition also alleged that the proceedings of the joint fact-finding and preliminary investigation panels are violative of Abalos' right to due process of law since the panels are serving functions of law enforcement, prosecutor, and judge at the same time.

"The joint DOJ-Comelec panel(s) fails to adhere to the requirement of the cold neutrality of an impartial judge as it is the evidence gatherer, prosecutor and judge all at the same time," the petition read.

"[T]he Joint DOJ-Comelec panel(s) gathered the evidence, identified the offenders and their offenses, instituted the criminal complaint and conducted the preliminary investigation of the same complaint which they themselves investigated and filed... the PI (Preliminary Investigation) Committee... cannot be expected to conduct the preliminary investigation with impartiality since its alter ego, the joint Fact-finding Team -- also a creation of the DOJ and Comelec -- already found basis to charge, and in fact, recommended that petitioner Abalos be charged for electoral sabotage," the petition read.

The petition pointed out that the panels, though composed of different members, cannot escape from legal infirmities "since they were both created by and are under the control and supervision of the DOJ and Comelec."

"Case prejudged"

The petition also alleged that pronouncements of Pres. Benigno Aquino III, Justice Secretary Leila De Lima, and Comelec chairman Sixto Brillantes "show prejudgment and manifest bias and partiality."

The following are some of the quotes cited in the petition:

"We will be filing once case after the other. We will start in November."
-Pres. Aquino, September 29, 2011

"[T]hose orders have already been given, the statement has been made, and as public officials, we intend to follow and comply with the order of the President."
-Presidential spokesman Edwin Lacierda, October 14, 2011

"My unsolicited advice, therefore, to him(Abalos) is instead of his nonstop tirades, and even threatening mode, against me and the witnesses, he should by now be preparing for his defense before the Joint DOJ-Comelec panel."
-Sec. De Lima, September 2011

Joint panels "harboring" fugitives from justice

The petition told the high tribunal that the testimonies of ex-provincial election supervisors (PES) Lilian Radam and Yogie Martirizar, who claimed Abalos gave them direct instructions to rig poll results, were "tailor-fit" for the proceedings by the joint panels.

The petition claimed the DOJ already had custody of Radam and Martirizar for more than a month before they were presented in a news conference in September. Their sworn statements were "overhauled," the petition claimed.

The petition also assailed how both were welcomed as possible witnesses in the poll fraud cases since there was a pending warrant of arrest against Radam issued by the Pasay RTC at the time she was reportedly taken into DOJ custody. The case at the trial court is in connection with charges for the same case: electoral fraud.

Martirizar, the petition claimed, was also "in hiding."

"What was the DOJ doing harboring Radam and Martirizar for more than a month before they were presented to the media? Obviously, it was to 'coach' and 'rehearse' Radam and Maritirizar on the 'script' regarding the involvement and participation of targeted personalities in the electoral fraud committed during the 2004 and 2007 national elections," the petition read.

"Legislative and judicial powers encroached"

The powers of the legislative branch was encroached when the DOJ and the Comelec created the joint panels because, in effect, a new public office was created, the petition alleged.

This is violative of the separation of powers, it further claimed.

"The  power granted to the DOJ to investigate the commission of crimes, and the Comelec's constitutional mandate to investigate and prosecute, where appropriate, violations of elections laws, do not include the power to create a new public office in the guise of a joint committee or panel," the petition read.

"That the Joint DOJ-Comelec panel is a new public office is evident from its composition, the creation of its own Rules of Procedures, and the source of funding for its operation," the petition read.

The petition claimed that there has never been any office or entity created between a department (DOJ) of the executive branch and an independent constitutional commission (Comelec).

It further pointed out that judicial powers was encroached when Radam was impleaded as a respondent in one of the two complaints, when she was already an accused for the same exact offense at the Pasay Regional Trial Court.

Independence of the Comelec undermined?

The petition alleged that the Comelec assumed the character of a co-equal agency of the DOJ by participating in the joint probe.

The composition of the PI committee was also described as "skewed" in favor of the DOJ with 3 of the PI committee's 5 members coming from the department.

"Comelec's participation or involvement in the said panel only serves to emasculate its powers and authority, and erode or diminish its autonomy, as an independent constitutional commission," the petition read.

Abalos asked the high court to schedule oral arguments on the case so that the constitutional issues may be debated by parties.

Joint DOJ-Comelec panels maintain legitimacy of constitution, proceedings

The joint poll fraud panels, for their part, maintained the legitimacy and validity of their constitution and respective proceedings.

Preliminary Investigation Committee chairman Prosecutor General Claro Arellano told reporters the creation of the committee was authorized by the Secretary of Justice and the Comelec En Banc, which makes the body a duly-constituted one.

Sec. De Lima had also maintained that while the DOJ and the Comelec recognized the respondents' rights to raise legal questions before the Supreme Court, the actions of both institutions are above-board and valid.