President Gloria Macapagal-Arroyo’s case is “THE TEST CASE” for the crime of electoral sabotage.
– Congressman Edcel Lagman, a close Arroyo ally
By Raïssa Robles
History repeats itself.
In 2001, former President Joseph Estrada was charged and arrested for the crime of economic plunder – a law that he voted “Yes” to while still a senator.
Last week, former President Gloria Macapagal-Arroyo was charged and arrested for the crime of electoral sabotage – a new election offense that she and her allies had inserted in Republic Act 9369.
This law is more widely known as the Election Automation Law. As the Philippine President then, Arroyo signed RA 9369 into law on January 23, 2007 – barely four months before the 2007 elections.
She is accused of masterminding the cheating during the 2007 polls, which allegedly benefited her 12 senatorial candidates particularly Juan Miguel Zubiri. If you recall, Zubiri was proclaimed a winning senator in 2007. But last August, he abruptly and tearfully vacated his Senate seat, saying he was the unwitting beneficiary of poll fraud.
Yesterday, I discussed in a piece entitled Gloria Arroyo’s downfall actually started in July how a long chain of events led to the arrest of Arroyo. This started with the claim of one of Arroyo’s staunchest political allies, Zaldy Ampatuan, that his warlord family cheated for Arroyo’s senatorial candidates in 2007.
Other witnesses have since surfaced and as a result, Arroyo is now the first high government official ever to be charged with the crime of electoral sabotage.
Arroyo’s case is “THE TEST CASE” for this capital crime, Arroyo’s long-time political ally Congressman Edcel Lagman confirmed to me in an interview.
I thought of asking Lagman because he was one of the lawmakers who had a direct hand in crafting the Election Automation Law where the crime of electoral sabotage was first introduced.
This offense was only inserted into RA 9369 before this was approved by Congress. In other words, it appeared to be like an afterthought since neither the House version nor the Senate version of the measure contained it.
How this crime got into our statute books
For a bill to become a law, the Constitution merely states that it has to pass “three readings on separate days” – a first reading, a second reading and a third and final reading. The Constitution also mandates Congress to adopt its own rules of proceedings for passing laws.
One of the rules that Congress has adopted is that – in case the House and the Senate pass different versions of the same measure on second reading, members from both chambers have to form a “Conference Committee” to finalize one version of the measure.
This is the version that is approved on third and final reading.
In the case of RA 9369, the new offense of electoral sabotage was only introduced during the Conference Committee whose members were the following:
Congressman Lagman, who was a “conferee”, confirmed this to me. He said he did not recall who had introduced the offense.
You can tell this was inserted by the Conference Committee because the House Journal containing the House deliberations of December 19, 2006 – when the measure was approved – printed the insertions in ALL CAPS. Lagman confirmed to me that those sections printed in ALL CAPS were insertions made at the Conference Committee level.
However, Lagman stressed:
The Conference Committee has the authority to introduce amendments. Once these are affirmed by the respective chambers, that becomes part of the legislation.
The House approved the Conference Committee version of RA 9369 in its entirety on December 19, 2006. The Senate approved the same on December 7, 2006.
President Arroyo enacted it into law on January 23, 2007. It took effect 15 days after publication in a newspaper of general circulation.
The crime of electoral sabotage is in Section 42 of this law.
Why was such a law introduced?
I asked Lagman whether it was correct to say that before RA 9369 was passed, there was no law to punish masterminds of cheating, but merely election officials who cheated for candidates and ballot snatchers.
Your premise is not quite correct. There are three kinds of criminal offenders:
- The principal who could be the mastermind;
- The principal by inducement; and
- The principal by direct participation
There is also the accomplice whose gravity or offense is lighter and is an accessory.
All of these were existing even before the crime of electoral sabotage was introduced.
In this particular case (of RA 9369), there was a new offense introduced into the penal system which is of a wider range.
I asked him – why was this electoral offense introduced?
Because most probably the legislators wanted to include massive poll cheating, instead of isolated poll cheating.
How Lagman feels about Arroyo being charged with a crime she had a hand in putting into law
I asked Lagman – How do you feel that Mrs Arroyo is being charged under a law that she herself signed?
The law is above anybody else.That’s not a right question. No one is above the law, irrespective of whether the law has been signed. What is important is we observe due process in the implementation of the law.
We are not questioning the definition of the offense. Or that there is such an offense as electoral sabotage in our penal system. What we are questioning is the process through which the former president was investigated and the recommendation made by the joint panel of the DOJ (Department of Justice) and Comelec (Commission on Elections). As well as the appreciation of evidence.
According to Comelec, the President did not submit a counter-affidavit. Of course she did not because she was challenging the constitutionality of the joint panel. Her lawyer said – the Comelec as an independent constitutional body cannot be merged with the DOJ which is a highly politicized agency.
At this point, I asked Congressman Lagman whether RA 9369 in fact authorized such a joint panel. And I read out to him Section 43 of this law which amended Section 265 of Batas Pambansa 881 – the mother election law. Section 43 said:
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.
I asked him whether “concurrent with the other prosecuting arms of the government” could refer to the DOJ.
It now appears that there is concurrent jurisdiction between Comelec and DOJ in the investigation of electoral sabotage as an offense. But it is not a go-signal for the Comelec and the DOJ to be formed into a joint panel. That would be influencing the Comelec which is a separate and constitutional body. That is where the infirmity lies.
Where should Arroyo be tried – at a Regional Trial Court (RTC) or the Sandiganbayan?
Arroyo’s lawyer has insisted that Sandiganbayan should be the venue for the case, based on the amended Sandiganbayan law.
In contrast, the Comelec believes that BP 881, the mother election law, should prevail.
BP 881 states:
Section 268.Jurisdiction of courts. -The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases.
I therefore asked Congressman Lagman which law should prevail when it comes to jurisdiction over the crime of electoral sabotage.
According to election laws, election offenses should be tried by the RTC in the area where the offense took place. But according to Sandiganbayan law (Republic Act 8249) – those with above salary grade 27 should be tried by the Sandiganbayan. Which should prevail?
That is now the question before the Supreme Court. Whether the jurisdiction is with the RTC or Sandiganbayan. We would have to refer the matter to the Supreme Court.
What all these mean, in short, is that Arroyo’s case will be precedent-setting, in the same manner that Estrada’s case broke new ground in plunder trials.
There’s one thing that could help the Supreme Court come to a decision.
Congress could disclose to the court the proceedings of the Conference Committee that finalized RA 9369. These proceedings are usually confidential but Congress might be persuaded to share it in order to shed light on how to interpret this very important law.