22 November 2011

Is the COMELEC/DOJ panel constitutional?

GMA's attorneys have argued in the press that the COMELEC/DOJ panel is not constitutional because COMELEC must be independent according to the constitution. I thought I would examine this issue and develop an opinion before the Supreme Court ruled. I have not read GMA's briefs or motions nor have I read the government's position. Instead, I am answering the question of whether the COMELEC/DOJ panel is constitutional.


The original law, Batas Pambansa Blg. 881, provided at Section 265:

Section 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.

This provision was subsequently amended by Republic Act No. 9369 to read as follows:

"SEC. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and prosecute the same."

It is on this basis that the government established the so-called "joint panel" to investigate the election sabotage case of GMA. Let us next look at the requirements of COMELEC in the constitution:

Art. IX, Sec 1 of the 1987 Constitution states: "The Constitutional Commissions, which shall be independent, are the ... Commission on Elections[.]" What does that independence mean?

If read in relationship to the other common provisions of the Constitutional Commissions, independence includes:

Commissioners may not hold any other office, manage or control any business or practice any profession. (Section 2, Art IX-A) The salary of the Commissioners cannot be decreased during a commissioner's term of office. (Section 3, Art IX-A) Commissions have the sole and exclusive responsibility for the management of their offices. (Section 4, Art IX-A) Commissions enjoy fiscal autonomy (Section 5, Art IX-A) Commissions have the authority to establish its rules of practice (Section 6, Art IX-A)

It does not appear that working together on a preliminary investigation violates any of the above. Further, COMELEC voted under its ordinary procedure without any member of the Department of Justice to proceed to file and prosecute the case.

The original law BP 881 was passed well before the 1987 Constitution. The 1987 Constitution included under Section 2(6), Art IX-C, the constitutional power of COMELEC to prosecute election crimes, but it did not grant that power to COMELEC to the exclusion of the executive and it did not have the effect of repealing Section 265, BP 881. The original law gave COMELEC exclusive preliminary investigatory jurisdiction for 4 months. The amended law changed the jurisdiction to investigate and prosecute election crimes concurrently to COMELEC and the Executive Branch, which is consistent with the constitution.


Finally, GMA signed R.A. No. 9369 into law in 2007. She ought to be legally estopped from taking the position that it is now unconstitutional. Legal estoppel partakes of the positive rules of judicial procedure based on manifest justice and to a greater or lesser degree, on considerations of orderliness, regularity and expedition of litigation. In other words, a party must not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to or inconsistent with one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by this action.

If GMA were permitted to maintain that a law that she signed into law in 2007 is unconstitutional, she would undermine the very purpose of the office of the President and promote manifest injustice. Under Sec 27(1), Art VI provides the President can veto a bill and return it to Congress. GMA did not do that. If the bill became law over her veto, she could have filed a complaint for declaratory relief seeking to have the law deemed unconstitutional under Rule 63. She did not. Instead, two election cycles have passed since she signed the bill into law and now challenges it when it is being used to prosecute her criminal misconduct during the first of those two elections.

If she admits that it was unconstitutional and she abrogated her duties to veto and subsequently challenge it in court, then she would have to admit that she violated her duty as a public officer. Section 1, Art XI states: "Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives."


For these reasons, Section 265 of B.P. Blg 881 as amended by R.A. No. 9369 which permits the COMELEC to conduct preliminary investigations in cooperation with executive departments, with concurrent powers to investigate and prosecute electoral crimes, does not offend the constitution. The court should make this ruling for the public good as an exception to the prudential doctrine otherwise that GMA is legally estopped from raising the question of R.A. No. 9369's constitutionality.

IV (Update)

I have since learned, by the Supreme Court denying the issuance of the TROs, that GMA is not raising the issue of unconstitutionality but instead her husband and Abalos. Since Mike Arroyo was not subject to the filing of the complaint for election sabotage, his petition should be dismissed since he no longer has standing to challenge the constitutionality of the COMELEC/DOJ joint investigation. What is standing?

"Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Anti-Graft League of the Philippines v. Romero, G.R. No. 97787. August 1, 1996, citing Baker v. Carr, 369 U.S. 186 (1962).

Because it has been four years and two elections since the passage of Republic Act No. 9369 and many years since the passage of B.P. Blg. 881 and the 1987 Constitution that if Mike Arroyo had standing as a taxpayer or voter to challenge the law, he would be barred by the doctrine of laches. That is the doctrine that a claimant may not sit on his rights. One of the reasons for this doctrine is to prevent people from gambling with public resources and when dissatisfied with the results of public processes, challenge some government act that could have been challenged earlier saving the public from committing its resources to the challenged act.

Then the question is whether the petition remaining of Abalos is properly before the Supreme Court? I say no.

"Plainly, the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue." J. M. Tuason & Co. v. Court of Appeals (3 SCRA 696)

To entertain the merits of a petition like Abalos' in the Supreme Court would signal to those wealthy individuals under investigation by prosecutors to make sure to file petitions with the Supreme Court first before criminal charges are filed to avoid having to be subjected to the ordinary course of justice.

For this reason, I would remand the surviving petitions to the Pasay Regional Trial Court for proper disposition in relationship to the actual controversy at issue.


  1. lengthy and technical, but i understood it.

    you can give mirriam defensor a run for her money on being a constitutional expert. :D

  2. really hard to ponder on this matter. As politics is really spanning such morbid stuff. I could say, Gloria Arroyo deserved her sentence, but her health is deteriorating. So she needed help for this.

    thanks for posting. Info cool!

  3. @alex: ay! you didn't compare me to la senadora. lol

    @tim: i have read through GMA's medical doctor certificates that she submitted to the Supreme Court and it says she is going to recover fully in 6 months barring any unforeseen circumstances. her attempt to escape justice is really sad (and amateurish).