Saturday, November 08, 2008 CA delays action on plea vs Bolante's arrest
THE Court of Appeals (CA) on Friday did not immediately act on the petition for the issuance of a writ of habeas corpus filed by a son of former agriculture undersecretary Jocelyn "Joc-Joc" Bolante seeking to compel the Senate to release his father from its custody.
The CA Second Division, however, directed respondent Senate sergeant-at-arms Jose Balajadia to show cause within five days from receipt of notice why the writ of habeas corpus should not be granted.
It also required petitioner Owen Vincent Bolante to secure a certification from his father’s attending physicians as to whether he can be brought out of the hospital without danger to his health and to submit it to the court within five days.
Last November 3, Owen filed a petition challenging the validity of the arrest warrant issued by the Senate against Bolante, who is presently confined at St. Luke Medical Center following his arrival from the US last week.
Bolante is now under the custody of the Senate Sergeant-At-Arms while still confined at the hospital. Balajadia was named as lone respondent in the suit.
Owen, through lawyer Noel Malaya, said his father's arrest and detention is unlawful, claiming the arrest order issued by the 13th Congress dated December 12, 2005 is already functus officio or can no longer be enforced as the body who issued it has been dissolved following the 2007 senatorial elections.
Likewise, the inquiry "in aid of legislation" that gave rise to the issuance of such arrest order has long been completed and terminated, and the 13th Senate has already turned over its findings and evidence to the Office of the Ombudsman for the filing of proper charges, Bolante's son said.
"It is thus the height of absurdity that Mr. Bolante herein has been arrested by virtue of an arrest order issued by a body that has long been dissolved to compel him to attend an investigation that has long been completed," said petitioner.
Bolante, tagged as the architect of the P728 million fertilizer fund scam, fled to the US at the height of the investigation mounted in 2005 by the Senate committees on agriculture and food, and blue Rribbon. However, he was deported last Tuesday after the US government turned down his plea for political asylum.
The money from the agriculture fund was originally intended for the procurement of fertilizer, equipment, and other farm implements but was allegedly misused to bankroll the candidacy of administration bets in the 2004 elections.
But Owen said the warrant of arrest issued against his father is constitutionally infirm and invalid, arguing that the Senate or any of its committees may order the arrest of a person found in contempt only in accordance with its duly published rules of procedure.
He added: "It is an injustice of the highest degree that Mr. Bolante is being detained for not appearing in an investigation that could not be conducted in any case because the members of the Senate are enjoying their vacations."
Owen said that there is no way the Senate could validly conduct inquiries in aid of legislation as it has not published the Senate rules pursuant to the requirements of Section 21, Article VI of the Constitution and which was declared mandatory by the Supreme Court in the recent case of Neri vs Senate.
Under the constitutional provision, it is incumbent upon the Senate to publish its rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice.
The Senate has only published the rules on October 31.
Assuming that the Senate would reopen its investigation in aid of legislation into the fertilizer fund scam, petitioner said it has absolutely no legal power to order the arrest of detainee for his non-appearance in an investigation that has yet to commence, said petitioner.
Last week, Bolante failed to secure a restraining order from the SC to stop the serving of the arrest warrant issued by the Senate as the magistrates were already in recess and would not be back until November 10.
However, due to the filing of the habeas corpus petition at the CA by his son, Bolante decided the next day to withdraw the petition that he filed at the high court back in 2006. (ECV/Sunnex)
