DR. ELLEN CARAG: A Loving Wife, A Superior Mother, A Community Leader, An Excellent Counselor and A Freedom Fighter

Two weeks ago, Tina Manglapus Maynigo, Ria Manglapus and I traveled to Stafford, Virginia amidst heavy traffic to attend the "Healing Mass" for a longtime friend Dr. Ellen Carag.  During the Mass, she offered prayers for my recently departed sister Mila Maynigo Denton Goldberg who died on May 26, 2014. 

Ellen was diagnosed with pancreatic cancer.  She was convinced as I was that she would live much longer. Tina and I know of friends who indeed enjoyed years more and were able to do the things that they always wanted to do.  There are also enough "precedents" showing the miraculous recovery of seemingly incurable sick people performed not only by Jesus but also by Saints and priests.

After the Mass, Ellen asked us (including Tina and Ria) to join her for a picture-taking. She wanted me to sit beside her as she was telling me about her foundation which is now led by her daughter Abigail.  We did not get to discuss the details but she requested me to help. Deferring further discussions until we attend the next Healing Mass which was to be held on her birthday, July 17, 2014, we said goodbye.
 
Two days ago we heard the sad news that she passed away joining our Lord in Heaven. Last night, Tina, and I joined other friends of Ellen to say prayers (Rosary and Novena) for her soul. It was held at the residence of Judy Francia Reyes and Wally Reyes. Judy led the prayers. Like the late Ellen, Judy offered prayers for my sister Mila and requested others to do the same. I really appreciated the gesture.

There are many reasons why Ellen Carag will forever be immortalized not only in our conscious minds but also in our endearing hearts. First, with some assistance from her husband Vic, she raised great, beautiful, and smart children. Second, she was a loyal, strong, and courageous supportive wife. Third, she was a freedom fighter risking her life for her children's future and her countrymen who were suffering from the evils of a dictatorship. Fourth, she was an effective community leader who cared for others especially the elderly, the uninsured, and those who have less in life.

Major Vic Carag was one of the first three military officers who defected from the Marcos dictatorship. I remember him standing before the halls of Congress as he and the other two announced their defection to join the Movement for a Free Philippines led by Former Senator and Foreign Affairs Secretary Raul S. Manglapus. This was in 1984 when Marcos was still in full control of the military and the country.  In 1986 then General Fidel Ramos and Defense Secretary Enrile defected because Marcos and General Ver already ordered their men to go after the former. They had no choice. The people at EDSA saved them.

Major Carag and company defected because they believed in the cause of freedom and democracy. Vic, more particularly, sourced his moral courage, strong convictions, and fearless commitment from his loving wife, Ellen. We saw this in the challenges and uncertainties facing the day-to-day lives of exiles in the United States during that period. Unperturbed, Ellen led the way; her family followed, and undoubtedly earned a resounding victory.  In this victory, she carried her community.

I always knew that Dr. Ellen Carag cared for people. You could see it in her undying devotion to her husband Vic, her children, patients, relatives, and to the community she lived in.

I was not surprised that she started the ASSOCIATION OF AMERICAN COUNSELORS ON ETHNIC ELDERCARE SERVICES (AACEES), INC. She was always a passionate advocate for services benefiting the elderly, especially Filipino veterans of  World War II.

Instead of flowers, Tina and I will be sending a donation to AACEES.

DR. ELLEN CARAG: A Loving Wife, A Superior Mother, An Effective Doctor, An Excellent Counselor, A Community Leader, and A Freedom Fighter with Strong Moral Convictions.  She helped move not only human hearts but human minds; not only human minds but communities; not only communities but a whole nation.

REST IN PEACE!

Porking the DAP

My favorite law professor Justice Solidum once told our class, “The law is what the Supreme Court says is the law. In this class, I am the Supreme Court. Whatever I say is final and non-appealable.”

In a recent decision, the Supreme Court declared “the following acts and practices under the Disbursement Acceleration Program (DAP), National Budget Circular N0. 541 and related issuances UNCONSTITUTIONAL for being in violation of Section 25 (5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:

(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as saving prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Act;

(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and

(c) The funding of projects, activities and programs that were not covered in the General Appropriations Act.”

The Court further declared as “VOID the use of unprogrammed funds despite the despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General Appropriations Acts.”

The voting was unanimous (13-0) with 1 abstention.  Unless the Court reverses itself upon a motion for reconsideration by the respondents, it is now the law of the land. The Supreme Court says so!

Will a motion for reconsideration prosper?  The stated Constitutional and legal basis for DAP are Section 25 (5), Article VI of the 1987 Constitution; Section 49, Chapter 5, Book VI of the 1987 Administrative Code (Executive Order No. 292), Authority to Use Savings for Certain Purposes; Section 38, Chapter 5, Book VI of the 1987 Administrative Code (Executive Order No. 292) Suspension of Expenditure of Appropriations; and the General Provisions on the Use of Savings, General Appropriations Acts for Fiscal Years 2011, 2012, & 2013.

Some legal experts claim that the Justices in their judicial analysis and decision ignored Section 49 of the Administrative Code. Because if they did consider it, they would have realized that PNoy and Secretary Abad were in fact, empowered and therefore justified in conceiving DAP.

Prominent in the discussions by the Justices and other Constitutional experts is the rule on accountability.  Former Chief Justice Art Panganiban explained it simply for laymen:

“As a rule, an unconstitutional “act or practice” is void and cannot give rise to any right or obligation. However, the Court held that the exception to this rule, the old “doctrine of operative fact,” should be applied “in the implementation of the DAP.” (p.87) 

Under this doctrine, acts done in good faith pursuant to a law or executive act that is later declared unconstitutional would remain valid and enforceable. It also applies when the nullification of such acts would result in an injustice. In short, unconstitutionality has prospective effects only. 

Example: A bridge is constructed from illegally augmented funds. The government officials who supervised in good faith the construction cannot be forced to reimburse the government. Neither may injustice be heaped on suppliers of construction materials by refusing to pay them.”

Of course, it is a different story if lawmakers who were allotted DAP funds for projects that they themselves are empowered to identify, use it instead for their personal gain.  It would be like the Pork Barrel Scam all over again.

In fact, per news reports, “principal whistle-blowers Benhur Luy and Merlina Suñas are ready to execute affidavits detailing their knowledge of how five senators’ DAP allotments ended up in the fake nongovernment organizations (NGOs) of alleged pork barrel scam mastermind Janet Lim-Napoles.”

Their lawyer, Raji Mendoza said that “The affidavits will show that the same methods in the pork barrel scam was also used in the DAP funds of the senators,”

The five Senators that they allege to be involved are: Senators Jinggoy Estrada, Bong Revilla, Juan Ponce Enrile, Ferdinand Marcos, Jr. and Tito Sotto.  As expected, they are denying everything even alleging that their signatures were forged.

The Ombudsman, the Department of Justice (DOJ), and the National Bureau of Investigation (NBI) have supposedly started an investigation regarding the misappropriation of DAP funds.

Being a lifetime member of the Integrated Bar of the Philippines (IBP), I am very glad to know of the growing independence of the Supreme Court.  I always had the impression based on what my lawyer-friends tell me that we had a very corrupt judiciary – from the lowest to the highest courts.  But the impression is changing at least in the highest tribunal. 

It would even be better if the current Supreme Court not only shows independence but also a greater sense of wisdom and justice by DISMISSING Sandiganbayan Justice Gregory Ong.  Per investigation ordered by the Supreme Court, Ong was found guilty of accepting a bribe to acquit Napoles in a case involving substandard Kevlar helmets for the military.

People, including my barber, do not understand the hesitance!

Pork Barrel Scam and Philippine Presidential Politics 2016

Pork Barrel Scam

Senators Jinggoy Estrada and Bong Revilla, as well as Janet Napoles have been charged with Plunder before the Sandiganbayan.



Sandiganbayan has issued Warrants of Arrest to the three; correspondingly, they have been arrested and now detained.

Revilla complained of heat, and is not appreciative of rats and cockroaches keeping him company in his jail room.  Estrada registered no complaints so far.

The Ombudsman has filed the criminal information for Plunder against Senator Enrile before the Sandiganbayan but the latter has not issued a Warrant of Arrest.  If ever arrested, it looks like due consideration will be given to his age and health.

The Special Prosecutors tried to amend the criminal information filed against the above accused, allegedly for clarity – meaning the public officials were the principals with the private individuals conspiring with them.  But some think that this was being done to portray Napoles as being “not the most guilty” and could therefore become a “state witness” if need be.



The Special Prosecutors withdrew the proposed amendments.  Otherwise, it would have the consequence of also withdrawing the warrants, the arrests, and correspondingly, the need to release the accused Plunderers.  This would further delay the trial.

I told my barber that whether the criminal information against each of the accused is amended or not, makes no difference.  There was conspiracy to commit Plunder through the acts defined by law.  Napoles and the Senators are alleged to have been co-principals by direct participation fulfilling their respective roles in the commission of the crime. 

The next move is to get the Senators suspended as mandated by law. It should happen very soon!



My barber is suggesting that forfeiture proceedings will have to start soon too!  These accused Plunderers are holding and/or hiding so much of the people’s money.

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Philippine Presidential Politics



Vice President Binay is definitely running for President. Bong Revilla said he might while Senator Cayetano has been talking and acting like he is already running. Senator Jinggoy Estrada is considering to run for Vice-President under Binay.

The Liberal Party is pushing for DILG Secretary Mar Roxas to run under its banner.



I told my barber that eventually, it would still be PNoy’s choice.  Whoever he anoints becomes the next President of the Philippines.  The question is, who?

In the 2013 Senatorial, Congressional, and Local elections, the Filipino people gave Team PNoy or the “Daang Matuwid” Program a mandate by trouncing the opposition.  Based on the results, Team PNoy obtained its greatest mandate in the following 4 regions as ranked:

1.             Visayan Island
2.             Bicol
3.             Mindanao
4.             Central Luzon

My post election analysis was that the Visayan region deserves to be source of the next President.  Since 1898, the Philippines has had only 3 Presidents coming from the Visayas - Osmeña, Roxas, and Garcia. The rest came from Luzon. In fact, Garcia was really a natural born Ilocano because his parents were from the province of Abra. 


It should be time for a President from the Visayas.  He and the people in the region will definitely push for the “Daan Matuwid” Agenda.  Mar Roxas who is from Capiz is the favorite but Grace Poe who was born in Iloilo is the underdog.



If none emerges from the Visayas by the time PNoy has to anoint, he could choose somebody from Bicol.  Among the personalities that could be considered in any of the top two positions are Senator Chiz Escudero, Congresswoman Robredo, and DOJ Secretary Leila de Lima.  No President has ever come from the region historically.



Mindanao could also provide PNoy a couple of choices namely:  Senators Teofisto Guingona, Jr. and Aquilino Pimentel III.  



Except for Bam Aquino, I currently do not see anybody emerging from Central Luzon. Besides, right now I do not recommend anybody from there.



There are reservations with respect to the inexperience of Senator Poe, Representative Robredo, and Secretary de Lima.  Wasn’t the opponent of Ferdinand Marcos an inexperienced plain housewife named Cory Aquino? 



An idea came up only recently.  PNoy could run as the Vice-Presidential teammate of his anointed Presidential candidate.  This could guarantee victory for both, continuity of the “Daan Matuwid” agenda, and a virtual co-presidency.



If there is no legal impediment to this idea, why not?


Ombudsman Morales vs. Enrile’s Mendoza

My barber, who jokingly calls me a “Legal Tiger”, asked for my take on the ensuing legal battle between Ombudsman Conchita Carpio Morales and Senator Enrile’s defense counsel Estelito Mendoza regarding the Pork Barrel Scam case.

Issues:

1.             Probable Cause by Executive or Prosecutorial Determination to file Criminal Information;

2.             Probable Cause by Judicial Determination to issue Warrant of Arrest; and

3.             Judicial Determination to grant bail due to weakness of evidence proving guilt.

On No. 1 – Executive or Prosecutorial Determination

Philippine Jurisprudence is well settled in defining Probable Cause as “such reasons, supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper.”

After conducting a preliminary investigation, and cautiously as well as prudentially considering all the facts and circumstances, the Ombudsman filed a Criminal Information indicting Senator Enrile, among others, with PLUNDER.  In short, Ombudsman Morales found that the facts are sufficient to engender a well-founded belief that a crime has been committed and that Enrile is probably guilty thereof.

Estelito Mendoza, who was a Justice Secretary when Marcos was a dictator and when Enrile was Marcos’ Defense Secretary and Martial Law Administrator, could not counter this one.

On No 2 – Judicial Determination of Probable Cause

Philippine Jurisprudence also points to the view that Courts of Law such as the Sandiganbayan are precluded from disturbing the findings of public prosecutors such as the Ombudsman and the Department of Justice (DOJ) on the existence or nonexistence of probable cause for filing criminal information, unless such findings are tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction.

The Ombudsman, in the performance of her duties, carefully studied and reviewed the findings of the National Bureau of Investigation (NBI), the DOJ, the sworn statements of the witnesses including whistleblowers who had personal and direct knowledge of the surrounding facts and scheme, the supporting documents, electronic records, business records, and other supporting evidence, prior to coming up with her own findings and conclusion.

The Ombudsman’s move is definitely NOT tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction.  I do not see how the Sandiganbayan could stop the issuance of the Warrant of Arrest accordingly.

I suspect that Enrile and Mendoza expect the issuance of the warrant. That is why they are focusing on being able to obtain bail.

On No. 3 – Judicial Determination to Grant Bail

One of the country’s best legal minds, Estelito Mendoza chose a better battlefield – the right to obtain bail questioning the assertion that evidence of guilt is strong.  The basis is Article III, section 13 of the 1987 Constitution which provides:

“All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.”

In Mendoza’s view, “Enrile’s role is merely to recommend the projects to be funded under the PDAF appropriation. It is the Executive Department, through various implementing agencies, together with their partner-organizations, that should be held accountable for the PDAF’s use, and the implementation of projects funded by the PDAF, including the liquidation of the PDAF used for the projects,”

“The evidence shows that Enrile was not entrusted with any PDAF allocation, nor tasked to handle the PDAF, or to participate in the implementation of any government project funded by it,” he added.

The paper trail supported by documentary evidence, those who were direct participants and witnesses to the scheme including the whistleblowers, and other findings contradict Mendoza’s view.

The Supreme Court itself took cognizance of the lawmakers’ role in the Pork Barrel process in its decision declaring its unconstitutionality. It said,

“In view of the constitutional violations discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which authorized legislators—whether individually or collectively organized into committees---to intervene, assume or participate in any of the various post-enactment stages of the budget execution, such as but not limited to the areas of project identification, modification and revision of project identification, fund release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which conferred personal, lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine; (d) all informal practices of similar import and effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of jurisdiction.”

There was never any doubt about the significant role of legislators like Senator Enrile in the Pork Barrel Scheme. It could not have happened without their knowledge and consent. In fact, it occurred several times in so many years!

Legal Eagle Mendoza also claims that the evidence presented by the prosecution is Hearsay – hence inadmissible referring to Ben Luy’s business ledger and computer files. He “stressed that a prime facie case rests on the prosecution's presenting evidence that will withstand the test of admissibility.”

Section 43, Rule 130 – Exceptions to Hearsay Rule, Revised Rules on Evidence, Rules of Court; Section 1, Rule 8 – Business Records as Exception to the Hearsay Rule, Rules on Electronic Evidence; and Section 1, Rule 9 – Method of Proof, may enlighten us.

Rule 130 – Section 43. Entries in the course of business. — Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.

Rule 8 – Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or å person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule or hearsay evidence. 

Rule 9 – Section 1. Affidavit of evidence. – All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. 

The business records, ledger, accounting books, entries, and computer/electronic files administered, maintained, and stored in the regular course of business by Ben Luy and others in their capacity as Finance Officer and employees are admissible according to the above-mentioned rules.  In fact, they “may be received as prima facie evidence.”

The criminal information filed against Senator Enrile cited “the sworn statements of Luy and his co-whistleblowers Marina Sula and Merlina Suñas who detailed the sequence of events, the 2007 – 2009 Commission on Audit (COA) Report documenting the results of the special audit undertaken on PDAF disbursements, and the reports on the field verification which secured sworn statements of local government officials and the purported beneficiaries which turned out to be non-existent, which pieces of evidence remained uncontroverted by mere denials or dovetailed with the affidavits of some respondents.”

Relevance, Personal Knowledge, and Not Subject to Rule of Exclusion – the Ombudsman’s evidence certainly complies with., adheres to, and definitely can withstand the “test of admissibility”.