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The tale of two envoys

 

Two Ambassadors figured in the news recently. The first is the Ambassador of the Czech Republic to the country. Josef Rychtar, who claims that MRT General Manager Vitangcol and others attempted to extract a 30 Million dollar bribe from a Czech company for the supply of additional rolling cars for the MRT. This supposed bribery became even more controversial because earlier reports claimed that Presidential sister Balsy Cruz was part of the company that attempted to extort the bribe. The Ambassador has since clarified that Balsy was not involved although he stood firm about Vitangcol and Company.

The other is Italian Ambassador to Turkmenistan Daniele Bosio. He was nabbed by police authorities in Laguna allegedly for child trafficking, In both these cases, issues of immunity have arisen. In the case of Rychtar, the issue is if he can be summoned to appear before a Committee of Congress investigating the bribery try; while in the case of Bosio, it is whether he can be investigated, prosecuted and convicting for child trafficking.

A diplomat’s sovereign immunity from local jurisdiction has been amongst the earliest cornerstone of diplomacy. While this immunity is now codified in the Vienna Convention of Diplomatic Relations, which the Philippines has ratified, it has also been recognized under customary international law. This means that this immunity is not just a matter of treaty obligation. It is recognized and complied even by countries that have not ratified the Convention. This is because without this immunity, Ambassadors, who serve as alter-ego’s of sovereigns and heads of states, will not be able to perform their functions in the territory of receiving states. More often than not, Ambassadors function to protect the interest of their states in the receiving state and even to gather information which otherwise would be considered as espionage.

This immunity exists immediately upon a diplomat’s presentation of his credentials in his station and subsists for a reasonable time upon expiration of his tour of duty. This immunity is accorded him while he is posted in his station and subsists for all of his official acts even after he leaves his post.

Under the current state of international law, the Czech Ambassador’s immunity includes the immunity to heed a subpoena that may be issued for him to appear before any committee hearing of Congress. And when he does appear, which is a waiver of his immunity, it will include additionally, immunity for all matters that he states in the official proceedings, including prosecution for false testimony, unless he again waives his sovereign immunity. The latter though, being contrary to human experience, would be highly unlikely.

Ambassador Bosio himself would be entitled to full immunity from local jurisdiction had he been apprehended in his station in Turkmenistan, or when he was officially en route to his official post. But because he was apprehended in the company of very young boys while vacationing in the Philippines, his predicament has figured repeatedly in many bar exam questions in political law: he is not entitled and should not be accorded immunity from our power to investigate, prosecute him and punish him for child trafficking.

The rationale for Bosio’s predicament is immunity is not indispensible to a vacationing envoy since he is not in the discharge of his official functions.

But beyond the issue of immunity for both envoys, there is also the issue of how our officials have been responding to the issues created by these envoys.

In the case of Rychtar, Presidential bad mouth Lacierda has shown his usual foul character by bashing the credibility of the Ambassador saying that the enjoy was merely” sour grapping since the Czechs lost the bid” for additional rolling cars to a Chinese company. Huh? As my students would say: WTF!

All Ambassadors because of their immunities and function are normally the best civil servants of the sending state. Their characters hence are beyond question, Furthermore, the fact that the Philippines as the receiving state had consented to the appointment of Rychter through an agreement (not wrong spelling) means that we have recognized that he is fit for the post which commands utmost respect in all civilized societies. By bashing the character of the Czech envoy, Lacierda shows anew his ignorance of international law and highlights what many foreign investors have been complaining about this country: rampant systemic corruption conducted with impunity.

Any sane spokesperson would not question the character of an Ambassador. instead, where there is an allegation of bribery, a responsible competent authority would promise a transparent and earnest investigation of the matter. This is how a state inspires confidence amongst foreign investors. Lacierda’s ways is why we might be hailed to court for the third time by a foreign investor. The first two instances, ironically, also involved allegations of bribery: the T3 controversy with Fraport and the Belgian dredging contract in Laguna Lake.

Anent Bosio, while I commend our authorities for upholding our sovereignty when they arrested the Italian envoy for child trafficking, I’m afraid it’s too early to tell if they will continue to do so. Chances are, in the same manner that the murderers behind the Ampatuan massacre, and the suspects behind the killings of Gerry Ortega and the many murdered journalists continue to roam free, my bet is that his Excellency Mr. Bosio may soon be allowed to roam free again. Hopefully though, he would no longer be in pursuit of Filipino boys.

 

What happens now to JPE et al?

Now that the Ombudsman has found probable cause against three senators, Janet Napoles and Dennis Cunanan for plunder and violations of the anti-graft law, what happens next? Will they immediately be put behind bars and tried in the same manner that former President Erap Estrada was?

Not quite.

All indicted accused have the statutory right to move for reconsideration on the finding of probable cause. There is probable cause when on the basis of the evidence, the Prosecutor or the Ombudsman concludes that there is likelihood that a crime was committed and that the respondents are probably liable for these crimes. It’s a very low standard because ultimately, the determination of guilt beyond reasonable doubt is a judicial function. Nonetheless, when the indictment is for a capital offense where bail is not a matter of right when the evidence of the accused is strong, a finding of probable cause is almost always a guarantee of the temporary deprivation of the right to liberty.

So, because of their right to move for reconsideration, no information is immediately forthcoming. Consequently, there will also be no warrant of arrest that will be issued soon.

I was correct in my assessment that the finding itself of probable cause will be marred with delay. The Ombudsman resolution came eight months after newspaper reported the details of the scam. This is still relatively quick given that the Ombudsman, unlike the regular Prosecutors, do not comply with the requirement that they conclude their preliminary investigations on or before 90 days from submission of the case. Clearly, it was the public indignation of the PDAF scam that compelled the Ombudsman to act more quickly than usual.

Outside of the motion for reconsideration, the accused may also proceed to the Court of Appeals to challenge the determination of probable cause. Although this is no longer a statutory right, it is nonetheless a constitutional right since the 1987 Constitution provides that judicial power includes the power to annul acts of government which are done in utter grave abuse of discretion amounting to lack of or in excess of jurisdiction. There is grave abuse of discretion where there is a violation of the Constitution or any existing law. Already, Senator Bong Revilla has a pending petition describing the Ombudsman’s refusal to act on his complaints against Luy et al as acts indicating grave abuse of discretion The Supreme Court has already scheduled his petition for oral arguments.

It is only after the resolution of the motion for reconsideration and if the higher courts do not restrain the Ombudsman that the information is filed with the Sandiganbayan. Unless the information is filed, the special anti-graft court cannot issue warrants of arrest.

Is it for certain that the accused will be apprehended and detained?

Yes, insofar as their actual arrest is the manner by which the Court can acquire jurisdiction over their persons. Fortunately for the respondents, they can now invoke the new rules of the Supreme Court on the speedy grant of bail to secure provisional release even for capital offenses. Under A.M. No. 12-11-2- or the SC “GUIDELINES FOR DECONGESTING HOLDING JAILS BY ENFORCING THE RIGHTS OF ACCUSED PERSONS TO BAIL AND TO SPEEDY TRIAL”, the respondents, when they are charged in court can file a petition for bail. The procedure now is on the basis of affidavits or direct testimonies, the prosecutor has the burden to prove that the evidence of guilt is strong. Thereafter the Judge, including the Sandiganbayan, only has 48 hours to summarize the evidence presented and determine whether or not the evidence of guilt is strong. If so, the accused will be denied bail. Otherwise, he will be allowed to post bail to secure his provisional liberty.

This new guidelines is long delayed. The predisposition of Courts is to allow the prosecution to prove that the evidence of guilt is strong in a manner that would reproduce the evidence presented for bail as evidence on the merits. In this manner, the accused is for all intents and purposes, denied the right to bail because the determination of guilt is made part and parcel of the presentation of the evidence on the merits.

Senator Juan Ponce Enrile as an octogenarian will probably be given special consideration given his age. So will the two incumbent senators. While pickpockets and others committing petty crimes have to endure torturous conditions in our local jails, the three senators, because of precedents—will inevitably detained in special detention facilities. Already, Janet Lim Napoles is on hospital arrest. I foresee that Enrile and the two other senators may also seek hospital or house arrest. Note that being an octogenarian will not exempt Enrile from criminal prosecution or from being arrested. This is how the Sandiganbayan can acquire jurisdiction over his person. But when he is convicted, the Sandiganbayan has the option of recommending his release on humanitarian grounds.

What happens to Ruby Tuason and Cunanan? To begin with, I’m surprised that they were even indicted. Under the Witness Protection Law, those admitted into the program should not be included in the charge sheet. Perhaps the Ombudsman will later move that they be dropped. Otherwise, it could already be an indication that the Ombudsman does not consider their testimonies to be indispensable in proving the averments in the Information. Personally, I hope this is in fact the case. Let Tuason be the queen of socialites in jail.

 

(View from Malcolm, Manila Standard Today, 4 April 2014)

 

 

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