Saturday, December 06, 2008 Sabio, de Borja face off
TWO appellate court lawyers clashed Friday on procedural issues and the legality of the Department of Justice’s (DOJ) fact-finding panel conducting preliminary investigations on the Meralco ownership case.
Cagayan de Oro businessman Francis de Borja and Court of Appeals (CA) Justice Jose Sabio Jr. faced off for the first time since the Supreme Court (SC) transmitted to DOJ its records for the filing of possible charges against individuals who may be involved in the alleged bribery attempt.
The alleged bribe-giver, de Borja was supposed to submit his counter-affidavit on the allegations of Sabio -- the supposed intended recipient of the P10-million bribe -- that the former offered him P10-million in exchange for his inhibition from the Meralco case then pending before his sala at the appellate court.
The submission of his counter-affidavit was in compliance with the resolution of the panel dated November 25 denying their omnibus motion seeking to disqualify the five-man panel of investigators from conducting a preliminary investigation.
But instead of submitting his counter-affidavit, de Borja through his lawyer Marlon Alexandre Cruz, filed a motion for reconsideration of the panel’s order, which Sabio’s lawyer Vicente Chuidian objected to.
Chuidian said de Borja’s refusal to answer Sabio’s allegations in his affidavit and his claims of lack of authority of the panel manifest disrespect to the investigating panel.
“They are disrespectful to the panel. Whether the preliminary injunction is held here or at the Makati Prosecutor’s Office, there is no difference. We are hoping that we could resolve today (Friday) the issue of the panel’s authority so that we can go now to de Borja’s counter-affidavit,” he said.
He pointed out that there should not be any problem for de Borja to submit his counter-affidavit as he was really innocent of the charges. “If he did not offer a bribe, he should just say so instead of resorting to dilatory tactics.”
The alleged bribe offer was made last July 1 when de Borja waited on Sabio to finish his ethics classes at the Ateneo Law School in Makati City, at the height of the controversy involving Meralco and the Government Service Insurance System (GSIS) that sought to wrest control of the power utility firm from the Lopezes.
Chuidian also said that they will file a new complaint implicating Meralco chairman Manuel Lopez, CA Associate Justice Bienvenido Reyes, and dismissed justice Vicente Roxas in the bribery scandal.
De Borja, for his part, insisted that the DOJ’s resolution failed to cite a single case decided by the SC, or a particular provision of law, which directly and specifically upholds the authority of a DOJ undersecretary to conduct preliminary investigation in a criminal complaint.
Cruz pointed out that there is no provision in the Revised Administrative Code or in any other rule of procedure or substantive law that gives the justice secretary the power to conduct preliminary investigations.
“The undisputed fact that the DOJ secretary, including members of the National Prosecution Service, is not a valid reason for the Honorable DOJ panel to conclude that the Secretary of Justice is himself supposedly authorized to conduct the actual preliminary investigation of cases,” Cruz said.
“Clearly, this grievous misjudgment or misapprehension of the so-called power of ‘control and supervision’ of the Secretary of Justice over his subordinates is the primordial reason for the altogether flawed conclusion reached by the DOJ panel in denying the respondent’s Omnibus Motion,” he added.
This argument, however, elicited a strong reaction from Chuidian, who cited that in the Estrada plunder trial, there were DOJ undersecretaries who were also part of the panel.
But Cruz retorted that this was only allowed by the Sandiganbayan “because maybe he did not have a better representation.”
In its assailed resolution, the panel cited the Revised Administrative Code covering the investigative and prosecutorial functions of the National Prosecution Service of the DOJ. Pineda reiterated the authority vested in the Secretary of Justice “to act directly on any matter within the jurisdiction of the Prosecution Staff, the Regional State Prosecution Office or the Office of the Provincial or City Fiscal and to review, modify or revoke any decision or action of the Chief of said staff or office.”
The order also stated that the undersecretaries designated to conduct investigations are mandated by section 10, chapter 2, book IV of the Administrative Code to assist the justice secretary in the implementation of the department’s objectives and to serve as deputy to the secretary in all matters relating to the functions of the DOJ.
“The Secretary of Justice is likewise designated with the power to appoint, whenever the exigencies of the service require, any member of the bar as ‘Special Counsel’ to assist prosecutors in the discharge of the prosecutorial functions,” the DOJ said.
The panel also noted that the omnibus motion is in fact a motion to dismiss, which is a prohibited motion and justifies its dismissal.
In his motion dated October 16, lawyer Cruz sought the disqualification of some members of the DOJ panel of investigators in conducting a preliminary investigation and to refer Sabio’s complaint of bribery to the Makati Prosecutor’s Office.
According to de Borja, with the exception of Chief State Prosecutor Jovencito Zuńo, the two other members of the investigation panel, namely: Pineda, who serves as the panel chairman, and Undersecretary Fidel Exconde, are not qualified to conduct the preliminary investigation.
Citing Rule 112, Section 2 of the Revised Rules on Criminal Procedure, de Borja’s lawyer said the only public officers authorized to conduct preliminary investigations are provincial or city prosecutors and their assistants, judges of municipal trial courts and municipal circuit trial courts, national and regional state prosecutors, and other officers that may be authorized by law.
De Borja also said that as the alleged bribery happened in Makati City, the jurisdiction over the case should be with the Makati Prosecutor’s Office. (ECV/Sunnex)
