To suspend or not to suspend them-A A +A
Monday, October 21, 2013
IN ONE of his columns in the Philippine Daily Inquirer, lawyer Francis Lim posed a very intriguing question: can senators and congressmen included in the “Plunder” complaint filed in connection with the Janet Napoles and PDAF controversies be preventively suspended? Note that Senators Juan Ponce Enrile, Jinggoy Estrada, and Ramon “Bong” Revilla are three of the respondents.
Lim noted that if one were to read Section 5 of the Anti-Plunder Act, it would seem so. The law states that any public officer who is charged in court with Plunder under R.A. 7080 shall be suspended from office. He observed that the word “shall” seems to point to the mandatory nature of the suspension. But is it really so?
Answering his own question, Francis Lim referred to a line of Supreme Court decisions where the justices held that the word “shall” in some pieces of legislation does not automatically make compliance mandatory; that there are instances when the word “shall” ought to be interpreted as meaning “may” (in other words not mandatory but simply, directory).
Indeed, the general rule is that the word “shall” in the law is interpreted as a command that must be obeyed and followed, while “may” means there is a choice. There are exceptions, however, as when the law, taken as a whole, actually intends compliance to be directory or discretionary even though the word “shall” is used.
The intriguing issue about the plunder complaint against Enrile, et al. is that no senator has, in our history, ever been charged with plunder and preventively suspended. The issue has never been raised for resolution by the Supreme Court so for the moment your opinion is as good as mine.
There are jurisprudential hints, however. In decisions involving violations of the Anti-Graft and Corrupt Practices Act (R.A. 3019) the Supreme Court has held that the preventive suspension under Section 13 of the law is mandatory. Sec. 13 of R.A. 3019 is strikingly similar to Sec. 5 of the Anti-Plunder Law.
Section 13 provides that “. . . any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office.”
Sec. 5 of the Plunder Law, on the other hand, states that: “Any public officer against whom any criminal prosecution under a valid information under this Act in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.”
Since the penalty of life imprisonment with perpetual disqualification to hold public office in the Anti-Plunder Law is more severe than the penalty under the Anti-Graft and Corrupt Practices Act, there appears to be no reason why the accused in the plunder complaint can escape suspension.
Assuming Senators Enrile, et al. do get suspended, can the Sandiganbayan be convinced to suspend them indefinitely during the pendency of the trial up to conviction? Apparently not. The issue has actually been decided by the Supreme Court in Santiago vs. Sandiganbayan where it held that the suspension cannot be more than 90 days. Beyond that, the rights of citizens who voted them into office may already be affected by the official’s inability to serve their interests while under suspension.
Published in the Sun.Star Bacolod newspaper on October 21, 2013.