Sparing politicos from liability

Saturday, July 16, 2011

FORMER Lapu-Lapu City mayor Arturo Radaza did not get a six-month suspension for the purchase of 470 overpriced computers during his term because he was reelected.

The Aguinaldo Doctrine made him immune to administrative liability.

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That piece of jurisprudence was set in 1992, when the Supreme Court (SC), resolving the case of Aguinaldo vs. Santos, declared that the administrative liability of elected officials becomes moot upon reelection.

“This is because reelection operates as a condonation by the electorate of the misconduct committed by an elective official during his previous term,” the SC explained in the 1999 Cebu case of Garcia vs. Mojica.

The doctrine, however, does not apply to criminal cases.

Forgiveness

“When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people,” the SC ruled in Pascual vs. the Provincial Board of Nueva Ecija.

In many instances, it is the expediency by which a case is uncovered and investigated, or the lack of it, that gives elected officials charged with administrative offenses the opportunity to cite the liability-erasing doctrine.

In Radaza’s case, Lapu-Lapu City businessman Efrain Pelaez Jr. of the Coralpoint Educational Foundation lodged his complaint on Sept. 19, 2007, four months after Radaza was reelected as mayor.

The transaction, however, happened in March 2005. 

And while the Commission on Audit immediately spotted that the computer units did not conform to the specifications, resident auditors didn’t issue an audit observation memorandum until Aug. 16, 2006.

They also did not issue a notice of disallowance to stop payment.

On Jan. 31, 2008, they issued an inspection report that said “the defects and deficiencies have been satisfactorily rectified,” without specifying how and what. 

And while an argument can be made that the condonation set forth in the Aguinaldo Doctrine could not apply because the electorate, at the time of the polls, was not aware of Radaza’s expensive computers, arguing the lack of prior knowledge was tried in the Garcia case and it failed.

According to the SC, voters are presumed to know the character of the one they elect. This “conclusive presumption,” said the court, is sufficient and prior knowledge of individual acts of malfeasance is not necessary.

Despite this, the Office of the Ombudsman-Visayas upgraded Pelaez’s complaint into a formal criminal and administrative case on Dec. 4, 2007, and subpoenaed the respondents to answer.

Radaza remains among those impleaded.

On Aug. 28, 2009, Graft Investigator Portia Pacquiao-Suson ended her investigation after receiving and reviewing the answers and controverting evidences of 22 individual respondents, and recommended the six-month suspension.
Radaza was excluded.

It would take close to three years before the investigation moved again.

While Suson‘s recommendation was immediately endorsed by acting director now Regional Trial Court Judge Samuel Malzarte and Deputy Ombudsman Pelagio Apostol for approval by then tandobayan Merceditas Gutierrez, it sat at the central office.

Takeover

The case only moved when Orlando Casimiro took over, following Gutierrez’s resignation.

By this time, Radaza had not only completed his term as mayor, but he also got elected as congressman representing Lapu-Lapu’s lone district.

Anti-graft office insiders, however, reason that no amount of expediency on their part can thwart incidents of malversation if the crime is timed on the eve of the official’s term of office.

They cited the Asean summit lamppost controversy, which also implicated Radaza.

They pointed out how the contracts to supply and install the lampposts were executed in September 2006, or eight months before elections.

Atty. Miguel Silos of the Villaraza Cruz Marcelo and Angangco Law Offices, the law office of former tanodbayan Simeon Marcelo, warned against the Aguinaldo Doctrine and how it could “perpetuate misdeeds by public officers” in a 2009 paper titled “A Re-
Examination of the Doctrine of Condonation of Public Offices” for the Philippine Law Journal. 

Stricter

It urged the SC to “take a long and hard look at the doctrine, this time in its entirety” when the issue next presents itself.

“Its exception and rationales should be carefully considered since such exceptions may be more fitting to a particular set of facts instead of an automatic application of the rule,” Silos wrote.

He pointed out how the Constitution, as it evolved, became “more and more strict to the adherence of good conduct.” 

“The 1987 Charter makes plain that corruption, irresponsibility and even inefficiency are not to be tolerated and those who offend against these provisions must be removed from their positions as servants of the public,” he said.

He said the enforcement of a doctrine of condonation must take into account the fundamental thought contained in the charter.

“The constitutional mandate and the doctrine of condonation appear to directly oppose each other. If an officer’s failure to maintain honest, integrity and efficiency in the government is condoned, the State would then fail in its duty to serve the people and to maintain the public service free from such corrupt and inefficient people,” he said.