OSG backs Bongbong in seeking Justice Leonen’s inhibition from VP election protest

Mike Navallo, ABS-CBN News

Posted at Nov 09 2020 07:37 PM

OSG backs Bongbong in seeking Justice Leonen’s inhibition from VP election protest 1

MANILA — Hours after defeated 2016 vice presidential candidate Ferdinand “Bongbong” Marcos, Jr. filed a motion seeking to inhibit Supreme Court Associate Justice Marvic Leonen from his election protest against Vice President Leni Robredo, the Office of the Solicitor General (OSG) on Monday filed its own motion raising similar arguments.

In an Omnibus motion, the OSG asked that SC magistrates, sitting as the Presidential Electoral Tribunal, order the reraffle of the case to another justice in charge.

The OSG invoked its mandate as “tribune of the people” to justify siding with Marcos instead of a government body like Comelec. The agency is currently headed by Solicitor General Jose Calida, who serves as the principal law officer and legal defender of the government.

The OSG had previously sided with Marcos over the shading threshold issue, leaving Comelec to defend its own decision to employ 25% threshold.

This prompted lawyer Emil Marañon III, one of Robredo's lawyers, to ask on Twitter what legal standing the SolGen has to seek Leonen's inhibition when it is no longer Comelec’s.

In arguing Leonen's supposed bias against the Marcoses, both Marcos and the OSG cited the same paragraph from Leonen's dissenting opinion in the Marcos burial cases, at one point quoting the same paragraph, underscoring different phrases or sentences.

“Former President Ferdinand E. Marcos presided over a regime that caused untold sufferings for millions of Filipinos. Gross violations of human rights were suffered by thousands. The public coffers contributed to by impoverished Filipinos were raided. Ferdinand E. Marcos stood by as his family, associates and cronies engaged in systematic plunder. The national debt ballooned during his regime,” Leonen was quoted in both motions.

The OSG however went on to cite more instances of Leonen’s supposed “personal biases” and “hatred” against the Marcoses, even going to the extent of citing Leonen’s statements in the plunder case of former President Gloria Macapagal-Arroyo.

Marcos raised as one of his arguments the issue of Leonen's previous appointment as government chief negotiator with the Moro Islamic Liberation Front, and how Marcos supposedly blocked the proposed Bangsamoro Juridical Entity. 

The OSG mentioned this same issue as part of the factual antecedents of the case.

Marcos cited the 2-part article in The Manila Times discussing Leonen's "reflections" which allegedly urged fellow-magistrates to dismiss the PET election protest outright. 

The OSG quoted the 2-part article in full and even justified its consideration despite newspaper articles being generally treated as hearsay in courts because it is not deemed to have come from the personal knowledge of the author.

“At first glance the news articles appear to be mere hearsay but careful perusal discloses and suggests that a certain document denominated as Reflections was indeed circulated, albeit in confidence, among the Members of the Tribunal,” it said.

“Accordingly, with all due respect, it behooves upon the Tribunal to investigate why such news or information started in the first place. And it does not help that there has been no categorical denial from Justice Leonen,” it added.

Both Marcos and the OSG argue that whether the allegations in the newspaper reports are true or not, a tribunal or judge must appear impartial.

Marcos and the OSG also cited the delay in resolving the PET election protest, with the former invoking the New Code of Judicial Conduct and the public policy protecting the sanctity of votes, while the OSG claimed there are lingering doubts on Leonen's impartiality as a result of the delay, apart from the rules of court and other rules.

The OSG’s basis for the doubts are mostly columns from The Manila Times and The Manila Standard.

But both used the same line: “Justice delayed is justice denied.”

Marcos earlier denied having knowledge that the SolGen will "join" his bid for Leonen's inhibition, when asked to comment on The Manila Times article that came out early Monday saying that the two sides will “join forces” to seek Leonen’s inhibition.

The SolGen previously supported Marcos’ view that the PET can annul the elections in three Mindanao provinces and declare failure of elections, without calling for special elections.

The OSG however raised one further argument, accusing Leonen of mishandling a case that actually ended in the acquittal of Imelda Marcos. 

The case involved 33 criminal cases for violation of foreign currency and related laws with respect to dollar bank accounts the Marcoses allegedly kept through dummies in Swiss banks.

Then-Solicitor General Frank Chavez was supposed to complete his testimony as expert witness but due to an absence from a hearing, the defense was able to secure a court declaration of the prosecution’s waiver to present evidence.

Chavez questioned this up to the Supreme Court, but Leonen, as ponente, eventually affirmed Imelda’s acquittal, faulting prosecutors for “fatal errors.”

Despite this, the OSG said Imelda’s rights were violated when an acquital became the subject of a full-blown Supreme Court case. The general rule is that an acquittal is not appealable.

“Clearly, there was absolutely no discussion on the violation of the accused’s basic human right against double jeopardy and/or speedy disposition of her case…,” it said.

“The petition of Chavez was eventually denied but Mrs. Marcos, despite her acquittal, lost as she was constrained to re-litigate for an additional period of more than ten (10) years,” it further argued.

The OSG warned: “A refusal to inhibit, given the political stakes involved, will destroy the reputation of an independent Judiciary.”

But in the same case the OSG cited, the Supreme Court, through Leonen, declared:

“This Court will not require a judge to inhibit himself in the absence of clear and convincing evidence to overcome the presumption that he will dispense justice in accordance with law and evidence.”

The OSG together with lawyer Lorenzo Gadon had previously sought access to Leonen’s statements of assets, liabilities and net worth (SALN) in a bid to file a quo warranto petition against him.

Their move was rejected twice by the Supreme Court. 

Marcos on Monday denied he supports moves to seek Leonen’s ouster from the SC and said he had tried to stop Gadon from pursuing it.

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