On Sept. 13, 2013, the National Bureau of Investigation (NBI) stirred the proverbial hornet’s nest when it filed plunder charges against Senators Juan Ponce Enrile, Jinggoy Estrada and Ramon Revilla Jr. with the Office of the Ombudsman in connection with the alleged misuse of the Priority Development Assistance Fund (PDAF) by Janet Napoles.
Of course, what followed were discussions on what will happen to the concerned senators if and when charges (indictment) are filed against them with the Sandiganbayan after the requisite preliminary investigation by the Ombudsman.
I asked my son Julo, a second-year law student at the Ateneo, to study the matter and he correctly identified two basic legal issues, namely: (1) whether or not the senators will be preventively suspended from office upon filing of the information against them with the Sandiganbayan and (2) whether their suspension will last for as long as the criminal cases are pending against them. The second is as important as the first considering the length of time it usually takes our courts to decide on cases and that an indefinite suspension may be tantamount to removal from office.
According to my law student, the applicable law is Sec. 5 of the 1991 Anti-Plunder Act (R.A. 7080), which provides that “any public officer against whom any criminal prosecution under a valid information under this Act in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.”
Of course, while the law uses the term “shall” and implies that the suspension is mandatory, there have been Supreme Court cases in the past which interpreted the word “shall” as merely directory or permissive. (e.g., Diokno v. Rehabilitation Finance Corporation, G.R. No. L-4712, July 11, 1952; Alejandro vs. Judge of First Instance, 70 Phil 749 (1940) and Querubin vs. Court of Appeals, 82 Phil 226 (1948)).
Truth to tell, there is actually no Supreme Court case specifically interpreting that the preventive suspension under Section 5 of the Anti-Plunder Act for members of Congress is mandatory upon filing of the information in the Sandiganbayan. Instead, what we have are cases on a related but different law, the Anti-Graft and Corrupt Practices Act (R.A. 3019, as amended).
Section 13 of this law provides, in part, that “any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office.”
In the 1969 case of Lucian v. Provincial Governor, G.R. No. L-30306, the Supreme Court held that the preventive suspension under Sec. 13 is mandatory. According to the high court, the use of the word “shall” is clear, and when the language of the law can be no clearer, then the act of the statute must be exercised and suspension must be carried out.
The Lucian ruling was reiterated in 1993 in Bunye v. Escareal, G.R. No.110216, 226 SCRA 332, where the high court went so far as to say that there were no “ifs and buts” about the mandatory nature of preventive suspension under the Anti-Graft and Corrupt Practices Act.
The question is whether these rulings will be applied to cases falling under the Anti-Plunder Act. This seems to be the views of Senators Drilon and Santiago and correctly so, considering that the provisions of the two laws on suspension are almost identical and taking into account that a plunder case is a more grievous offense than the crimes punishable under Anti-Graft and Corrupt Practices Act.
Parenthetically, whether or not suspension can affect members of Congress is a non-issue, considering that the Anti-Plunder Act refers to “any public official” which obviously includes senators and congressman. In fact, in Santiago v. Sandiganbayan (G.R. No 128055, April 18, 2001), the Supreme Court held that the Sandiganbayan could suspend a sitting senator during the pendency of that senator’s case under the Anti-Graft and Corrupt Practices Act. In that case, the court ruled that in suspending a member of Congress, the Sandiganbayan would merely be adhering to the clear and unequivocal mandate of the law. In the same case, the Supreme Court clarified that preventive suspension in the Anti-Graft and Corrupt Practices Act is distinct from the power of Congress to discipline its own ranks under the Constitution, with the latter not being exclusive in any way.
No indefinite suspension
It seems that the suspension of the concerned senators cannot be indefinite. This is the view of Senate President Drilon and his authority for this proposition appears to be Deloso v. Sandiganbayan, (G.R. No. 86899-903, (1989), where the Supreme Court fixed the period of preventive suspension for elective officials to a maximum of 90 days. This ruling was reiterated in the case of Gonzaga v. Sandiganbayan, (G.R. No. 96131 (1991), because suspension for an indefinite period might undermine the rights of the people who elected the said official.
Will the Senate apply the rulings?
Of course, these are just opinions at the moment. As to whether or not they will be followed by the Senate when the appropriate time comes remains to be seen.
Let’s wait and see!
(The author is a law professor in the Ateneo Law School. He may be contacted through francis.ed.lim@gmail.com.)