WHEN JUSTICES FLIP-FLOP Tuesdays are en banc meeting days on the Court. The fifteen Justices gather in their conference room for what is usually a routine discussion, both of cases and a long list of administrative matters. Litigants and lawyers who have access to the Court know when their cases are up for decision and keep their antenna tuned to what happens in these meetings. But it is in the days and hours leading up to the en banc when the lobby heats up, especially in cases that involve huge amounts of money, as the Justices prepare to cast their votes. Such was one Tuesday in December 2008, when the Court was scheduled to decide on a fourteen-year-old land case that involved a powerful interest and billions of pesos. This case illustrates how vested interests in the country can influence the Court. It also shows how big land disputes can take murky twists and turns once they are in the courts. Being contested was a sprawling thirty-four-hectare property in Quezon City beside the upmarket Ayala Heights gated village, the members-only Capitol Hills Golf and Country Club, with an eighteen-hole course and upscale Megaworld townhouses. A tall forbidding wall with a sign-—MANOTOK COMPOUND NO (123 ]{ { ‘Shadow of Doubt: Probing the Supreme Court TRESPASSING BEWARE OF FAKE TITLES THIS PROPERTY IS NOT FOR SALE—meets entrants. Security is tight and the atmosphere is partly desolate because of the rundown unoccupied five-door apartments and houses that badly need sprucing up. But the mahogany trees and lush greenery give the place serenity. The entire compound, which is walled, has only one road. The family matriarch lives here with a brother and some nieces and nephews. That a huge swath of prime property still stands not fully developed shows the character of the Manotok matriarch. To her, land was for the family—and no one else—to take care of, to live on, and to earn from. Business ventures with real estate developers were something new. But the Quezon City property has been under litigation. Three families have been claiming ownership of the P3.4-billion prime property, each with a title to show. What originally started out as a battle between the Manotoks and the Barques tumed into a three-comered fight when the Manahans entered the picture much later, in 2006, when they went to court. The conflict started when a fire razed portions of the Quezon City Hall, burning land records in the Register of Deeds. As Justice Dante Tinga later wrote in the Court’s decision, the fire “attained notoriety” due to the controversies it spawned. A number of land cases brought about by conflicting claims had been dealt with by the Court but Manotok v. Barque, Tinga said, was the “most heated, if not the most contentious of those cases.” It also caught the attention of the media since it was about land scam on a large scale. Immediately after the fire, the Manotoks, some of whom still live on the property, applied for a reconstitution of their title. It took three years before they got their reconstituted title. However, eight years after the fire, another family, the Barques, surfaced at the Land Registration Authority to have their title to the Manotok property reconstituted. The Barques showed documents such as a duplicate copy of the title, real estate tax receipts, tax declarations and a subdivision plan covering the property. The LRA then asked the Land Management Bureau's chief of the geodetic surveys division for a certified copy of the subdivision plan. The LMB found the property plan to be “spurious.” The LRA reconstituting officer handling the Barques’ application junked it but the family persisted; they went up to the LRA head and asked for a review of their case. [124]When Justices Flip-Flop (Land management in the Philippines can be complex, as the function falls under different government offices. The LMB, an agency of the Department of Environment and Natural Resources, administers, surveys, and disposes of alienable and disposable lands. The LRA, which is an agency of the justice department, issues certificates of title. The DENR has acknowledged that, generally, land administration in the country is weak and inefficient. Studies have shown that a large proportion of the records has been destroyed by theft, fire, water damage or simply misplaced; many of the remaining records are in fragile condition and some have been illegally altered.) It was during the review that the LRA sided with the Barques, saying their reconstituting officer erred. The Barques then went to the Court of Appeals to seek the reconstitution of their title. The Manotoks opposed the ruling in the LRA but the agency stood pat. Dissatisfied, the Manotoks then went to the Court of Appeals and filed a petition for certiorari—a review. They lost in the first round when the First Division of the CA, to whom the case was raffled, dismissed their petition on technical and procedural grounds. The Manotoks won on their motion for reconsideration (MR). It was the turn of the Barques to file an MR. After a back-and-forth of petitions over three years, the CA decided in favor of the Barques. Aggrieved, the Manotoks then ran to the Supreme Court. The Court in 2005, through its First Division, upheld the CA and stripped the Manotoks of their claim. The Manotoks’ first MR was denied and the Barques, quick to the draw, asked the First Division to issue a writ of possession. Victory was near and ownership of the contested land was just a document away. It was a case the Manotoks fought hard for and were not going to give up on. To lose it meant, in the dissenting opinion of Justice Antonio Carpio, “depriving” them of their “immensely valuable property... without due process of law.” The majority of the First Division members—then Chief Justice Hilario Davide, and Justices Leonardo Quisumbing and Adolfo Azcuna—joined Justice Consuelo Ynares-Santiago in her decision (4-1). Carpio’s was the lone dissent. Originally, the case was raffled off to Carpio but he lost, turning his decision into a dissenting opinion. At first, two of his colleagues, Quisumbing and [125]‘Shadow of Doubt: Probing the Supreme Court Azcuna, were with him but later sided with Davide and Ynares-Santiago. The Manotoks' counsel, former Supreme Court Justice Florentino Feliciano, then asked the Court, in an urgent motion, to move the case to the en banc. This came after the First Division's decision became “final and executory,” meaning there was no more hurdle since no appeal was filed during the required period. He asked the Court to defer the implementation of the “entry of judgment”—the official act that recorded the finality of the 2005 decision. The Barques cried foul and said Feliciano's letter was “contemptuous.” Theirs tured out to be a short-lived victory. The Court granted Feliciano's plea—he plucked the Manotoks from the jaws of defeat—and held oral arguments in 2007. It apparently helped that Feliciano was once part of the brethren. Davide had retired by the time Feliciano asked for the en banc to take up the case and Artemio Panganiban had succeeded him as Chief Justice. “It was my normal practice to put on the en banc calendar letters I receive concerning pending cases,” Panganiban said. But even before Feliciano wrote Panganiban about elevating the case to the en banc, Carpio, disturbed by what he saw as a wrong decision, discussed it with the new Chief Justice. “Tony (Carpio) came to me and complained. The case has far-reaching importance in the Torrens system of titling land, And I thought that the en banc should really handle the case rightfully,” Panganiban ‘ecalled. “The First Division decision modified, ifnotreversed, existing jurisprudence. Inder the Constitution, only the en banc is authorized to do that. So the en banc took the case,” he explained. Carpio would later write forcefully in 2008, in his separate opinion, on the grave insecurity caused by the First Division decision: “It cancels a Torrens title without any proceeding in a trial court directly attacking the title as required by law... Every landowner holding a Torrens title will now have to camp in the corridors of the courts, or constantly watch in the balcony of his house, just to avoid losing his titled land. The Decision... by destroying the stability of land titles, will usher in an era of land disputes, which before the advent of the Torrens system were often violent and bloody.” “Section 48 of the Property Registration Decree is the cornerstone of our land [126]When Justices Flip-Flop registration system providing stability to land titles. Without Section 48, our land registration will crumble. Section 48 guarantees every landowner with a Torrens title that his title can never be cancelled unless the validity of his title is first directly assailed in court... The Decision of the First Division erases this guarantee. In one stroke, the Decision of the First Division has overturned a century of jurisprudence fortifying a guarantee essential to the stability of our land registration system.” ORAL ARGUMENT Some facts surfaced in the oral argument: * The Manotoks first declared the property for tax purposes in 1933; since then, they had been paying taxes. * The Barques first declared the property for tax purposes in 1996 and paid taxes for the years 1993-1995, * The Barques did not file any eviction case versus the Manotoks to recover the property; the Manotoks built houses on the property in the 1970s. * Jose Flaminiano, who argued for the Barques, did not know some of the vital case facts. Justice Presbitero Velasco, at one point, was incredulous. Justice Velasco:... In the petition for reconstitution filed by the Barques with the LRA... attaching three copies of the alleged lost titles and an affidavit containing six requirements as prescribed by law. Isn't that correct? Flaminiano: Frankly, I have not seen the petition for reconstitution filed by the Barques because I was not the counsel at the time. Velasco: You never read the petition for reconstitution filed by the Barques with the LRA? Flaminano: I read it but I cannot recall exactly the allegations of the petition. (127)| Shadow of Doubt: Probing the Supreme Court Velasco: You did not read the appeal filed by the Barques with the LRA administrator? Flaminiano: I read that but I could not guess now considering that that took place... In 2008, with a better handle on the case and backed by a clarifying oral argument, the Court threw away the decision of its First Division, penned by Ynares-Santiago. In a new ruling that was close to splitting the Court (8-6), Justice Dante Tinga directed the Court of Appeals to wrap up proceedings on the case with a deadline: three months after its resolution was issued. Tinga said that neither the appellate court nor the LRA could order the cancellation of a land title because jurisdiction falls under the regional trial courts or RTC. But, in the interest of speedy justice, he made a one-time exception to the rule that trial must start at the RTC. He declared it pro hac vice, which means that it was not to serve as a precedent. After the CA received all the evidence, the case would return to the Supreme Court for a final verdict. Most Justices were for the reversal of the First Division’s decision but they differed on whether to remand the case to the CA or the RTC. En banc deliberations were intense, especially on the issues of forgery and jurisdiction. Eventually, seven Justices voted with Tinga, defeating Ynares-Santiago. “In a tactical move, (Justice Antonio) Carpio sided with me, to defeat Ynares- Santiago,” Tinga said. (He retired from the Court in 2009.) Looking back, Tinga said he didn’t want to make a conclusion on the forgeries because “it was a question of fact.” He thought that the “most fair way” to decide the case was to “give everybody an opportunity to settle the issues” including the latecomers, the Manahans. Justices Carpio and Renato Corona wrote separate opinions to stress certain arguments: Carpio maintained that the RTC had jurisdiction on the case. Corona argued for the creation of a special division in the Court of Appeals to hear the case. The en banc ruling was an indictment of Ynares-Santiago’s decision. The Court could not brush aside the glaring forgeries in the title of the Barques. Ynares-Santiago dissented, sticking to her arguments. But she reversed herself, disregarding an argument she made in a 2003 land case, Heirs of Santiago v. Heirs of Santiago. Carpio pointed this out in his dissent. Ynares-Santiago, in her past decision, (128)When Justices Flip-Flop invoked Section 48 of the Property Registration Decree—which provides that a certificate of title cannot be altered or canceled except in a direct proceeding, referring to a trial. In Manotok v. Barque, no such attack on the title took place in a trial court. Tinga had to explain the “procedural unorthodoxies” the case went through, primarily the Court en banc’s move to take up the case “when an entry of judgment had already been made in favor of the Barques.” He wrote in the decision: “There are good reasons for the Court to act in a such a rare manner... Most urgently, the Court had felt that the previous ruling... warranted either affirmation or modification by the Court acting en banc.” “It has been argued that the 2005 Decision of the First Division is inconsistent with precedents of the Court, and leaving that decision alone without the imprimatur of the Court en banc would lead to undue confusion within the bar and bench, with lawyers, academics and judges quibbling over whether the earlier ruling of the Division constitutes the current standard with respect to administrative reconstitution of titles. Our land registration system is too vital to be stymied by such esoteric wrangling, and the administrators and courts which implement that system do not deserve needless hassle.” CLOSE LOBBY Up to the morning of the voting, the lobby was intense. Television evangelist Mariano “Mike” Velarde, who had told some people on the Court that he owned the disputed land, sent an emissary to one of the Justices. But Velarde didn’t get his way. In the end, even this Justice voted with the majority. Religion and business bound Velarde and Teresita Barque Hernandez, who represented the Barque heirs in the case. Velarde was the influential head of El Shaddai, the biggest Catholic charismatic group in the country, of which Hernandez was an active member. Both Velarde and Hernandez were in the real estate business; the difference was one of scale. Velarde's Amvel Land Development Corp. owned, among others, condominiums on a thirteen-hectare property in Parafiaque, and nearby swaths of land that came under scrutiny after it was reported that government paid a bloated amount of P1.2 billion when it acquired the right-of-way from (129]‘Shadow of Doubt: Probing the Supreme Court - the company for major road projects. Velarde also owned a commercial TV and radio station with shares valued at P74.5 million as of 2007. When Velarde tured seventy, the P1-billion El Shaddai House of Prayer was completed, a mammoth church sitting on a hectare of land in Amvel City in Parafiaque. Hernandez's property business was much smaller. She was the majority shareholder of St. Bernadette Realty—with P140,000 worth of shares—which focused on urban poor housing projects such as in Binangonan, Rizal. St. Bernadette Realty was formed in 2003, many years after Hemandez made a claim for the Manotok estate. The lobby with the Court started many years earlier. Velarde looked for common friends with the Justices. If there was none, a person close to Velarde befriended the Justices. Both these tactics came into play as early as in 2004, when the case was stil] with the First Division. Common friends acting as emissaries of Velarde approached some of the Justices. But it was a Velarde associate who was most effective in forging riendships with some Justices. It is unclear if favors were given or friendships vere simply invoked. Panganiban would recall that this Velarde associate asked to see him. He was already Chief Justice at the time. “I refused the visit of his lobbyist... I don't know how far Velarde lobbied. Velarde presided over a televised weekly gathering of his El Shaddai faithful, which claimed a membership of seven million. He used his clout well, deftly mixing religion, business, and politics. He endorsed candidates as well as Justices and made his real estate business thrive. Justice Ruben Reyes, who voted for the Barques in 2008, was endorsed by Velarde to the Court of Appeals and the Supreme Court. When he was vying to be part of the Court, Reyes, a Protestant, would attend El Shaddai masses. His colleagues in the appellate court saw him on TV with Velarde. Hernandez ran a small real estate company with an office in a nondescript building in Pasig’s inner city. She said that all Velarde did was to pray over her motion for reconsideration filed with the Supreme Court. “He helps me,” she said, “but he didn’t buy the land from me. With Brother Mike, we just prayed over...” Velarde seemed surprised when asked in an interview about the Barque case. He knew her and “I gave inspiration and comfort to her,” he said with a smile, explaining that that was part of his ministry. [130]‘When Justices Flip-Flop Hernandez, who started out as a real estate agent, had been “selling” parts of the contested property to raise funds for her legal fees. The buyers, she pointed out, knew that ownership had yet to be resolved by the courts. It was a gamble they made, an investment in case the Barques won. KOKOY ROMUALDEZ Benjamin “Kokoy” Romualdez has had a lucky streak with his cases in the Supreme Court. The brother of the former First Lady Imelda Romualdez Marcos came home to the Philippines in 2000, after fourteen years of self-exile in the US. A wealthy man—the Presidential Commission on Good Government listed about 60 corporations where the silver-haired Marcos in-law allegedly acquired shares of stocks illegally—he stayed in the background and kept a low profile. His sons, however, took on prominent and influential posts in government and the private sector. After a long absence, in a surprising twist, the Romualdezes became close allies of President Arroyo. Benjamin Philip Romualdez, president of the Chamber of Mines, becam a leading advocate of generating foreign investments for the country’ mining industry. Confident and articulate, the Oxford-educated Romualde: scion worked closely with President Arroyo and her team to promote the multibillion-dollar potential of mining in the Philippines. Philip became president of Benguet Corporation, a century-old gold and copper mining company. Philip married Sandy Prieto whose family owns the Inquirer, the leading national broadsheet in the country. The Prietos are not solely in the media business: they are also engaged in property development and own leading doughnut and pizza chains. Ferdinand Martin Romualdez, younger than Philip by two years, became a congressman representing the first district of Leyte, their home province, running under the ruling coalition. He jumped ship from the moribund Kilusang Bagong Lipunan of the Marcoses and rose in his new party. The President appointed him senior vice president for finance of the merged Lakas-Kampi-Christian Muslim Democratic Party, the latest configuration of Arroyo-allied political parties. Martin and First Son Mikey Arroyo, also a member of Congress, were known to be buddies. They were often together in the House, arriving at committee hearings together. Both of them gathered signatures for the [131]. 4 "* d Shadow of Doubt: Probing the Supreme Court resolution proposing that the House convene into a constituent assembly to amend the Constitution and shift to a parliamentary form of government and, thereby, extend their terms and that of the President. Two generations of Romualdezes threw their full support behind President Arroyo in 2004—Kokoy Romualdez and his brother, Alfredo, and Kokoy’s sons. Arroyo won in Leyte and enjoyed a wide margin over her movie-star rival Femando Poe Jr. While Kokoy was away, however, the government went after him with a flurry of cases. In two of these, the Supreme Court did a somersault—in his favor. Reversals of decisions usually happen when there is new and compelling information that merits a change in position, or when a decision made by a division is reviewed by the en banc, This brings more minds to the case and can lead to a change in the way the Court sees things. “The general rule is judicial stability,” former Chief Justice Panganiban pointed out. “Hence, a reversal can be justified only by changed environmental facts or change in judicial philosophy of a court or because of a changed membership.” Sometimes, however, reversals simply take place without much apparent reason, thus casting a cloud of doubt on the Court. “I am always pained when the Court reverses itself because of caprice, when there is really no changed circumstance or philosophy, the change being to accommodate a party, especially a powerful player,” Panganiban said. The Ombudsman filed twenty-three criminal cases against Kokoy Romualdez for failing to file his statements of assets and liabilities (SAL) while he was in government, as Leyte governor, ambassador and technical assistant in the Department of Foreign Affairs. This covered a period of twenty-three years, from 1962 to 1985. Romualdez elevated the case to the « Supreme Court and argued that the Ombudsman erred in asking the Sandiganbayan to convict him for violating the anti-graft law which requires government officials to file their SALs. Romualdez maintained that the offense for which he was charged had already prescribed, or lapsed because of the passage of time. No charges were filed within the fifteen- year period provided by the anti-graft and corrupt practices act. This case landed in the First Division which, in 2005, decided in favor of the Ombudsman. Ynares-Santiago penned the decision dismissing Romualdez’s petition, giving no weight to Romualdez’s argument. The ground [132]EEN EA When Justices Flip-Flop of prescription of the offense, Ynares-Santiago wrote, “must be settled in a full-blown trial... As a rule, the Court shall not unduly interfere in the Ombudsman’s exercise of his investigatory and prosecutory powers... without good and compelling reasons to indicate otherwise.” This gave the go-signal to the Sandiganbayan to proceed with the trial of Romualdez. Yet, ten months later, deciding on Romualdez’s motion for reconsideration, Ynares-Santiago and two other Division justices—Leonardo Quisumbing and Adolf Azcuna—reversed themselves. Chief Justice Hilario Davide Jr., who voted with the majority in 2005, had retired by then. Carpio was the lone dissenter. This time Ynares-Santiago, who penned the decision, dwelt mainly on the issue of prescription. The Court dismissed the graft charges and ruled that the prescriptive period of Romualdez’s offenses began to run from the discovery of the offense in 1987 when the government filed cases versus Romualdez. “The applicable ten-and-fifteen-year prescriptive periods... were not interrupted by any event from the time they began to run in May 1987. A a consequence, the alleged offenses committed by [Romualdez] for the year 1962-1982 prescribed in ten years..... On the other hand, the alleged offenses committed by the petitioner for the years 1983-1985 prescribed in fifteen years...” Ynares-Santiago wrote. Thus, the Court said that Romualdez’s alleged offenses had already prescribed when the Office of the Special Prosecutor began its preliminary investigation in 2004. Simeon Marcelo, the Ombudsman who ran after Romualdez, was surprised by the reversal. He and his team had put a lot of hours into the case. Marcelo, known for his thorough work, was determined to go after the big fish to show that the law could be applied evenly. “There was nothing new in the second MR, no new facts or information,” he said in an interview. “They (the Justices) just changed their minds.” In his dissent, Carpio quoted extensively from the 2005 decision affirming the criminal charges against Romualdez. He called attention to the Court's about-face decision: “In his [Romualdez’s] motion for reconsideration, petitioner reiterated his claim of prescription. Finding merit in petitioner's contention this time around, the majority opinion grants reconsideration and dismisses the criminal cases.” He continued: [133]sen & Shadow of Doubt: Probing the Supreme Court “The majority opinion allows the prescriptive period to run during petitioner's absence from this jurisdiction from 1986 to April 2000 or for a period of nearly fourteen years. 1 cannot subscribe to such view.” He cites the Revised Penal Code which provides that the term of prescription “should not run when the offender is absent from the Philippines.” “To allow an accused to prevent his prosecution by simply leaving this jurisdiction unjustifiably tilts the balance of criminal justice in favor of the accused to the detriment of the State’s ability to investigate and prosecute crimes. In this age of cheap and accessible global travel, this Court should not encourage individuals facing investigation or prosecution for violation of special laws to leave Philippine jurisdiction to sit-out abroad the prescriptive period.” What caused the turnaround? Court insiders say there was a lobby by people close to the Romualdezes. Azcuna, who joined Ynares-Santiago in the majority decision, was once associated with Kokoy Romualdez. He was an original incorporator of Trans Middle East (Phils.) Equities (TMEE) and was, at one time, its chairman. The Presidential Commission on Good Government said the company was bought by Romualdez using dummies. TMEE was used as corporate vehicle by Kokoy Romualdez to get into yanking, the fuel for his businesses. It had interests in PCI Bank, where Martin sed to sit on its board, representing TMEE. This issue dogged Azcuna when he was nominated to the Supreme Court in 2002. “I refuted the charge that I fronted for Mr. Romualdez during the public hearing of the Judicial and Bar Council... The JBC sustained my statements because it nominated me unanimously or nearly so at that,” Azcuna wrote Newsbreak in October 2006. He was fourth on the JBC shortlist of five. Azcuna also said that he was never Romualdez’s lawyer. “I do not know him personally and J never handled his cases.” During his retirement from the Court in early 2009, the Romualdez brothers, Philip and Martin, were among the dinner guests at the Manila Hotel. PROHIBITED PLEADING Another Kokoy Romualdez case on the Court went through a similar reversal but, this time, on a second motion for reconsideration or MR. Unlike the non- filing-of-SAL case, this one was brought to the en banc, The Court had no clear explanation for why it was an en banc case when the SAL case, which [134]When Justices Flip-Flop dealt with a similar issue, was handled by a division. The en banc stood by its decision in the first MR which was to let the Sandiganbayan prosecute Romualdez for receiving double compensation while he was in government, violating the anti-graft law. During the Marcos years, he was both Leyte governor and ambassador to countries such as the US, China and Saudi Arabia. The total amount the government paid him was over P5 million. But after Romualdez’s second MR-actually a prohibited pleading—the Court trashed its earlier decision. The rules of civil procedure are explicit: “No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.” However, this has been observed in the breach, as experience on the Court shows. Work on the case began when Justice Arturo Brion, then new on the Court, received People of the Philippines v. Benjamin “Kokoy” Romualdez as part of his load. It was passed on to him by a Justice who had just retired. Usually, newly appointed Justices inherit the workload of the Justice they replace, and if it’s a light one, senior Justices get to unload some of their work as well to the most junior member. It was a potentially controversial case because it involved a politically well-connected individual with immense but questionable wealth. Brion penned the decision declaring that the Sandiganbayan had erred in dismissing the charges versus Romualdez. The anti-graft court curious! | argued that Romualdez had actually fulfilled his tasks in his concurrent posi thus “to receive compensation for actual services rendered would not coml within the ambit of improper or illegal use of funds...” It also added a tame argument that the accused “may have been inefficient as a public officer by virtue of his holding of two concurrent positions, but such inefficiency is not enough to hold him criminally liable.” Brion found this logic unacceptable and gave the anti-graft court a scolding. He wrote, “The Sandiganbayan grossly and egregiously erred in the considerations it made and in the conclusions it arrived at...to the point of acting outside its jurisdiction through the grave abuse of discretion... Its errors are so patent and gross as to amount to action outside the contemplation of law.” Brion did not deal with the issue of prescription Romualdez raised: that any criminal liability had been “extinguished by prescription” since he had been out of the country for an extended period. During this time, charges against him were brought to court. This was the core issue in his SAL case. (135]ae ee ew Shadow of Doubt: Probing the Supreme Court In Brion’s view, the issue of prescription was not within the Court's jurisdiction, at least for the moment, because the “Sandiganbayan's ruling at this point was not the subject of the petition.” Alll the Justices agreed with Brion’s thoughtful decision, a feat for a junior Justice. Barely four months on the Court and he got a unanimous vote. Immediately, Romualdez asked the Court to reconsider its decision. But this was swiftly denied. Then came the second MR. A number of Supreme Court decisions allow prohibited pleadings in certain instances: when it is based on a different ground and is not a mere reiteration of the points raised in the first MR; where there are “extraordinary persuasive reasons;” or “in the interest of justice.” The last exception gives the Justices a wide latitude. In this case, Romualdez used the same argument that the charges against him had already prescribed. This time, when the en banc deliberated, the majority made prescription the foremost issue and annulled its previous decision. Brion, the original ponente, lost. Justice Dante Tinga wrote the majority decision (8-4) and hewed to the ruling in the Romualdez v. Marcelo or SAL case. “The matter of prescription is front and foremost before us. It has been raised that following our ruling in Romualdez v. Marcelo, the criminal charges against [Romualdez] have been extinguished by prescription. The Court agrees.” The decision pointed out that Romualdez had been charged with violations of the Anti-Graft and Corrupt Practices Act, committed from 1976 to February 1986. The criminal cases were filed with the Sandiganbayan in November 2001, after a preliminary investigation that began in June 2001. “The time span that elapsed from the alleged commission of the offense up to the filing of the cases is clearly beyond the. fifteen-year prescriptive period,” Tinga wrote, referring to a provision in the Anti-Graft and Corrupt Practices Act. Then the decision, as if in a moment of epiphany, realized that the Justices did not address the issue of prescription. “Unfortunately, such argument [prescription] had not received serious consideration from this Court,” Tinga wrote. But, he said, the arguments raised after the promulgation of the decision “highlighted the matter of prescription as well as the precedent set in Marcelo.” That Tinga did not disagree with Brion on the prescription issue early on and allowed it to be sidelined in the Court’s first decision raised questions. It was as if Tinga’s attention was caught only when he went over the second 1136]When Justices Flip-Flop MR. “As it turned out, Brion glossed over the issue of prescription,” Tinga said in an interview. “The second MR provided the forum to revisit Romualdez v. Marcelo.” Those who joined Tinga and reversed themselves were Chief Justice Reynato Puno and Justices Renato Corona, Presbitero Velasco, Eduardo Antonio Nachura, Consuelo Ynares-Santiago, Alicia Martinez, and Lucas Bersamin. Just as in the SAL case, there was a “campaign within the Court” for Romualdez, insiders say. Buzz like this hardly escapes the antennae of Justices. Lobbying, for some, came from the private sector—persons close to Romualdez—and it was subtle. “Nothing was directly said about the case but the strong signals were there,” one Court source said. Apart from Brion, Justices Antonio Carpio, Conchita Carpio-Morales, and Minita Chico-Nazario dissented. Justices Teresita de Castro and Diosdado Peralta, both former Sandiganbayan justices, did not take part because they had participated in hearing the case at the Sandiganbayan; it was Peralta who wrote the decision then. But de Castro and Peralta merely wrote “no part” in the decision without explaining why. It is common on the Court for Justices to take this path of least resistance. ‘They either ignore or forget what the Constitution says: “Any member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor.” Brion stood by his position that they had no jurisdiction to rule on the prescription issue and added an argument: he took on the Court for violating its own rules. By acting on a second MR, Brion said in his dissent that the majority “has not shown any valid reason for admitting a prohibited second motion for reconsideration... The majority may have even placed at risk the integrity of this Court.” He continued in a pungent tone: “Given... the lack of clear standards and the resulting exception at will situation, the litigating public may ask: is the Court’s declaration of the suspension of the rules an infallible... determination that a litigant has to live with simply because the Highest Court in the land said so?” “But for now, in the absence of any clearcut exception to the prohibition against a second motion for reconsideration, the guardians can only police [137] a—— ae Se Shadow of Doubt: Probing the Supreme Court themselves and tell the litigating public: trust us.” “We cannot blame an adversely affected litigant who asks: why was Benjamin ‘Kokoy’ Romualdez given an exceptional treatment when I was not?” Tinga believed that rules should not be ironclad. “For every rule, there's an exception. That's how the Court works.” The thinking among outsiders is that the Justices can always justify their moves because, after all, they're supreme. There could be no adjective higher than “supreme” and the Court enjoys that extraordinary privilege. Supreme Court Justices, after all, are stars, marqueed names in the judiciary. Tinga defended the Court and explained the nuance: “We're supreme because our decisions are final, not because we're infallible.” For his part, Carpio covered a different ground for his dissent—the issue of prescription—and basically reiterated his arguments in the SAL case of Romualdez: “A person who commits a crime cannot simply flee from this jurisdiction, wait out for the prescriptive period to expire, then come back to move for the dismissal of the charge against him on the ground of prescription... To allow such a loophole will make a mockery of our criminal laws.” He cited the Revised Penal Code which provides that the term of prescription “shall not run when the offender is absent from the Philippine archipelago.... More befitting in this case is the rule that where an interpretation of law would endanger or sacrifice great public interest, such interpretation should be avoided.” THE BATANGAS PORT Justice Angelina Sandoval-Gutierrez had already retired from the Supreme Court when a decision she wrote on a land case was overturned. It was then a division case and other members, Chief Justice Puno, Justices Corona, Azcuna and Cancio Garcia all agreed with her. What surprised her was that those who originally voted for the decision— Puno and Corona—flip-flopped. By that time, it had become an en banc case. Azcuna and Garcia had already retired. The facts of the case remained the same except that the entire Court pored over it. Justices are staunchly protective of the decisions they arrive at, which are what they will be known for and remembered by. Thus, they don't take attacks on their decisions lightly. Moreover, they see it as an affront when their decisions are nullified. [138]When Justices Flip-Flop Sandoval-Gutierrez, who was known for her empathy for the weak, decided in favor of the hundreds of small and medium-size landowners of Batangas, her home province. This, however, wasn't the final outcome. The story traced its roots to the time when the Philippine Ports Authority, in 1999, had to expropriate 1.2 million square meters of land from more than 200 Batangas residents to be used to expand the port in the city, envisioned to be the one of the biggest in the country. The vast area of land, adjacent to the bustling port, was mainly used for agriculture. But because it was near the port, a center of commerce, the landowners considered the location of the land premium. The Batangas city port, facing the bay, was the second largest revenue eamer in the country, next to Manila. Traffic was busy, with berths for foreign cargo and roll-on roll-off vehicles. The expansion area, the expropriated land, was fenced off. The PPA took control of the lots but hauled the landowners to court because they refused the government's offer of P400 per square meter. The majority asked for much more—P8,000 per square meter. The trial court in Batangas appointed a three-person commission—t) provincial engineer, assessor, and treasurer—to determine the land value. The arrived at the amount of P4,800 per square meter “because the lands are agricultural in nature and are not being used for commercial or industrial purposes.” During the hearing, PPA representatives did not show up and only the landowners presented their evidence. That same day in August 2000, the trial court fixed the market value at P5,500 per square meter and ordered the PPA. to pay up. The trial court based this figure on the amount that one group of landowners argued for. There were three groups represented by various lawyers. The trial court order meant the government had to fork out P14 billion to start its port expansion. The case was brought up to the appellate court; it scored the PPA for being negligent. In its decision, the Court of Appeals showed a PPA utterly remiss in its duty and dismissive of the legal process. “... the PPA did not even attach any document why the just compensation for the properties should be lower and failed to present evidence that the lands involved are agricultural in nature or are not being used for commercial or industrial purposes in the face of the testimony by... witnesses.” [133] | . |pags Se 2 "3 ‘Shadow of Doubt: Probing the Supreme Court The Bureau of Internal Revenue, the CA decision said, had promulgated in 1997 a zonal valuation for Batangas which classified the properties in question as “industrial and agricultural.” The CA went with the trial court's order; the landowners won this round. The PPA then elevated its case to the Supreme Court. In 2007, Sandoval- Gutierrez affirmed the appellate court's ruling and directed the trial court to implement its “final and executory order” requiring the PPA to pay P5,500 per square meter to the landowners. The Office of the Solicitor General, the government counsel, apparently complained to Chief Justice Puno. The decision would cost the government billions of pesos when, in its valuation, the land could be had for P1 billion. It was then that Puno had the case elevated to the en banc. As a rule, cases which deal with constitutional issues, “novel questions of law,” those involving decisions of the Commission on Elections, Ombudsman, Commission on Audit, and “where a doctrine or principle laid down by the Court En Banc or in division may be modified or reversed” are taken up by the entire Court. The reality is that bringing the case to the en banc is, in great vart, the Chief Justice's call. As it turned out, the landowners further splintered, with some willing to settle for P500 per square meter, a price lower than what the trial court fixed. Thus, a total of seven cases, all on this land expropriation, were before the Court. They were consolidated and assigned to Justice Presbitero Velasco. The en banc held an oral argument that lasted for at least six hours during which the PPA showed aerial photographs of the area which consisted of agricultural lands, including “fish ponds and swampy areas.” Counsel for the landowners argued, among others, that nearby properties, outside the expropriated area, fetched a price of P5,000 plus per square meter. They presented assessments of private appraisers which pegged the price per square meter anywhere from P5,500 to P6,000, as well as the BIR zonal value which was not far from the private appraisers’ reports. In June 2009, the verdict came out, with the landowners suffering a crushing defeat. The Court decided that the value of their land was P425 per square meter, a precipitous fall from the P5,500 price set by the trial court and affirmed by Sandoval-Gutierrez in an earlier Supreme Court decision. In a 129-page decision, the majority determined fair market value based on the “character of the property at the time of the taking” which was in 2001 and “not the potential...” At the time, they were neither classified as [140]When Justices Flip-Flop industrial nor commercial, the Court said. The Bureau of Internal Revenue had also assigned the value of P400 per square meter to lots located in certain villages. Moreover, the tax declarations showed that most of the land was agricultural. The Court said that the lands were “undeveloped and vacant, except for the fishponds.” Velasco emphasized in the majority decision that the billions of pesos to be paid the landowners was taxpayers’ money and that the port expansion was an important government undertaking. He placed the decision in the context of public good. RICKY RAZON But the landowners saw the decision as one that favored a close ally of President Arroyo, a big businessman who was the country's largest port operator. Pegging the land value at a much reduced price meant a lower cost for would-be bidders for the port's privatization. Their suspicion was fueled by talk in Batangas, early on in President Arroyo's term, that Enrique Razon, Jr. was interested in developing the port. Razon chaired the International Container Terminal Services (ICTSI), a multibillion peso company that operates ports not only in the Philippines but in eleven countries including China, Japan, Brazil, Poland, and Indonesia. In 2001, Arroyo sent Justice Secretary Hernando Perez, a Batanguejio, to persuade the landowners to settle for a lower price. Nothing came of that meeting. At about this time, the talk on Razon began and then persisted. Many years later, in 2009, the PPA announced that ICTSI was one of two companies that signified its intention to bid for the privatization of the port. The other was Asian Terminals Inc., which was operating the first phase of the Batangas port. . Some of the landowners believed that Razon would likely win the bid because of his ties to the Arroyos. Razon had done favors for the First Couple, from handpicking a lawyer for the First Gentleman Miguel “Mike” Arroyo when he had to face the Senate on the issue of his bank accounts—the First Gentleman was accused by Sen. Panfilo Lacson of siphoning off hundreds of millions in campaign funds to a bank account he kept under the name of Jose Pidal—and donating to the Arroyo campaign. He was known as the President's go-to guy when she needed to fix relations with senators and key politicians. 141] c a ‘| { t ! | a 4 « ‘Shadow of Doubt: Probing the Supreme Court UNSETTLING QUESTIONS When reversals happen for some reason other than the entry of new legal issues and facts, the Court’s credibility is put at risk. . Through the years, it has become obvious that Justices flip-flop because they do not study the case—for lack of time or neglect—and completely rely on the ponente. When an MR comes their way and litigants, through emissaries, call the Justices’ attention or lobby with them, they then take a closer look at the case. This appears to be common. They've been approached. This is the shorthand explanation for this phenomenon. The reputation of the ponente who reverses a decision matters most, because there have been instances where the merits of a case did not guide the Justices, who apparently acquiesced to powerful vested interests, Doubts about reversals are calmed when the ponente is a respected Justice. In the Batangas port case, some Justices who voted with Velasco said that they threshed out the issues presented by both sides, aided well by the oral argument. En banc decisions are usually regarded as better thought out, since these have benefited from the exchanges of fifteen Justices. /These cases are merely a sampling of the Court's flip-flops, done for reasons noble and otherwise: to right a wrong (Manotok v. Barque) and to [scommodate a person of influence (Benjamin Romualdez v. Simeon Marcelo; cople of the Philippines v. Benjamin “Kokoy” Romualdez). The Batangas tandowners case (Spouses Ernesto Curata and Lourdes Curata et al. v. Philippine Ports Authority), more than anything else, leaves unsettling questions. [142]