Has independence been risked by "DOJ-Comelec Panel"?

Has independence been risked 
by "DOJ-Comelec Panel"?


By BERTENI "TOTO" CATALUÑA CAUSING
Editor-in-chief, Dyaryo Magdalo


The pressing public interest on the matter compelled me to come out with this short essay on the issue of whether the so-called "DOJ-Comelec" joint panel constituted by the Department of Justice and the Commission on Elections is constitutional or not.  
Gloria and Mike praying to high heaven

My purpose is to educate the laymen on the basic principles involved, particularly the idea of "independence" of a constitutional body like the Comelec so that they would understand and not entertain speculations when the decisions or rulings when these are issued by the Highest Court of the Land.

In coming out with this, I do not have any intention to influence the ongoing petition filed by the lawyers of former First Gentleman Mike Arroyo challenging the constitutionality of the same panel. After all, who am I to influence the Supreme Court Justices who cannot be influenced after all because they are people with the best-trained legal mind to judge legal or constitutional issues.  Not even the massive "Occupy the Supreme Court" crowd can sway the gods of knowledge about legal principles during the holding of the oral arguments on the issue of whether to reconsider the Temporary Restraining Order (TRO) issued in favor of Gloria Macapagal-Arroyo.

Moreover, in writing this, I am also impelled by the motive to exercise press freedom or freedom of expression.
Our language is truth, our spirit is liberty
But before continuing, please do not believe in what I say here but believe in what you perceived as sound in what I say.

Further, please allow me to state that I feel Chief Justice Renato Corona stays fair as to the legality of DOJ-Comelec panel. My basis is this: ALL 14 SC JUSTICES VOTED TO REJECT THE APPLICATION OF MIKE ARROYO & CO. TO GET A TRO to stop the DOJ-Comelec panel from continuing its investigation into the allegations of involvement of the former first gentleman in electoral sabotage crimes. 

And now, let me state: "The DOJ-Comelec Panel is perfectly legal and it does not violate the principle of independence or the separation of powers that dictates the landscape of our kind of democracy." This is my take, and you may take the other way.

Let me begin by stating that the exclusive power to investigate election offenses is given by the Constitution to the Comelec alone.  Then the Constitution represents the People's Will.  In other words, the powers given to the Comelec are “original” in the sense that these were given by the people to it directly through the Constitution.

And since its powers to investigate election offenses are original as these are given directly by the people, the Comelec can delegate the exercise of those powers to another office or person, just like the way it deputizes teachers, policemen and soldiers during election time to meet its enormous obligations of making elections honest, free and peaceful.

Remember that only those powers that were already delegated are prohibited from being delegated further. This is under the legal principle that says: “Potestas delegata non potest delegari.” (What has been delegated cannot further be delegated.)

The hard and brutal fact for the Comelec is that it has that very big obligation to investigate and prosecute election criminals. Along with this giant work is the reality that it lacks investigating personnel and legal minds who are mostly preoccupied with its own election protest cases, including that one filed by Lito Atienza against Mayor Alfredo S. Lim for the mayoralty of Manila and the one lodged by Peewee Trinidad against Tony Calixto for Pasay’s case.

Against this backdrop is the persistent public clamor to serve justice in the quickest manner.
 
Faced with these problems and the desire to live up to the trust of the public, the Comelec deems it better to use its power to delegate or deputize to make somebody exercise the power to investigate on its behalf with the end view that it will still have the last say whether to approve or reject the result of the investigation works done by other offices. 

Pray for Danny Lim as he fights to cleanse the Customs
Please take note that since it reserves to it the power to have the last say is, to my mind, an indication of the will of the Comelec to be independent when it decides the issue of whether to approve the recommendations of the investigating deputies. My readers may have better arguments to the contrary and I respect that.

Now, we cannot deny that the Comelec knows that with somebody helping it in the work of investigating, it can fulfill better to live up to the trust of the people.
 
The present officials of the Comelec know that in fact, it has been doing the practice of delegating its powers since Marcos time.  It has given a standing authority to all prosecutors all over the country to do the work of investigating and handling of inquest proceedings for those arrested by the police while caught in act of committing vote buying, but retaining for itself that power to decide whether to approve the work of the prosecutors or not. And this act of reserving, in my opinion, is an act of asserting its independence.

This time, however, it is somewhat different.  The Comelec has done what it has not done yet. 

It has now done the act of "WORKING WITH" another office outside its sphere of powers given by the Constitution.

It has formed a panel with the DOJ to form a fact-finding body composed of personnel of the DOJ and the Comelec to do the task of gathering facts for the purpose of knowing whether to charge certain persons, including Gloria and her husband Mike, with having committed the crimes of electoral sabotage during the 2004 and the 2007 elections.

Now, this author is confident to state that this "work with" is still within the prerogatives of the Comelec. 

After all, it is like delegating or deputizing one separate body, this time it is called "the DOJ-Comelec panel," to do the preliminary investigation work. 

Anyway, the power given by the Comelec to the panel is limited to fact-finding and recommending the actions to be taken as a result of the facts found. 

So that as what happened with Gloria, it was the Comelec alone that decided whether to approve the recommendation of the DOJ-Comelec panel to charge or not Gloria Macapagal-Arroyo. 

32 Journalists were collateral damage of electoral sabotage acts.
Recall that the Comelec En Banc voted 5-2 to charge Gloria, Andal Sr. and Lintang Bedol of the crime of electoral sabotage. This is an evidence that the Comelec exercised its independent will on the issue.
 
There is another principle that goes along with. This is the basic principle that says that public service is a public trust. 

In asking help from the DOJ investigators, the Comelec in fact is holding that public trust in high respect because this will enable it to give the service in the fastest way it can. The faster and more quality the service is, the better that the trust is served.
 
Just imagine the enormous manpower and machinery needed to gather evidence all over the country to meet the required tasks of investigating electoral sabotage that involved votes from all over the country. 

By forming a panel with the DOJ that has army of lawyers all over the country, the Comelec can now avail of the legal services of the DOJ and the investigating expertise of the NBI that is under the DOJ.
 
For sure, that DOJ-Comelec panel can help the Comelec fast-track the investigation works against those who stole the People’s Will in all elections past. 

Thus, in my opinion, it is very clear that the independence of the Comelec, or the principle of separation of powers, is still preserved clearly between the powers of the Comelec and the powers of the Executive through the DOJ.

For sure, when the Comelec En Banc votes to approve or disapprove the recommendations of the DOJ-Comelec panel, the DOJ cannot dictate upon its commissioners, two of whom even never voted for the charging of Gloria, Andal Ampatuan Sr. and Lintang Bedol.

After all the bottom line is: 

Electoral sabotage is the HIGHEST FORM of the robbery of the People’s Votes.
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