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Wednesday, October 29, 2014

PCGG legally does not exist Part II


By Rod Kapunan
No constitution in the civilized world would dare give a government agency a continuing power and immunity to exact revenge against its political enemies.   It is not so much that the rights of the accused to be presumed innocent is being violated, but on the serious aspect that such could result in the imprescriptibility of the crimes against whom the PCGG accused of having acquired ill-gotten wealth by filing them say 20 or even 50 years thereafter, while keeping possession and dissipating those properties it sequestered.     
Notably, all crimes listed in the Revised Penal Code and special laws imposing penalties provide a prescriptive period.  If the accused is not charged within the prescribed period for the alleged crime he committed, he can raise “estoppel by laches” as his defense,  or if a case has already been filed but  there was undue delay in  the litigation  not attributable to him,  he acquires the right to have the case dismissed  for violation of his right to speedy trial, which  is  guaranteed by Section 16, Article III of the Bill of Rights of the Constitution.    Otherwise, the accused could be hounded by the PCGG for the rest of his life, and could possibly give rise to another lunatic criminal theory of charging the descendants for having inherited the alleged crimes, which is exactly what these people are doing. 
Aside from the fact that under the barbaric PCGG rule, the accused is presumed guilty, and it is for the latter to prove his innocence, Proclamation No. 1 empowered it to commit a continuing banditry much that it has the sole power to determine properties it wants to confiscate, detain, and dispose with no time limitation of its confiscatory power.  This is apparent because the intention of Section 26, Article XVIII giving it 18 months was meant to allow them to finish all those cases they already filed; or to file them within the period mandated them.  They cannot indefinitely exercise such power like what they did in raiding the house of Rep. Imelda R. Marcos. 
The subsequent laws extending beyond the 18-month period the life of the PCGG was in violation of the Constitution.  ENACTED LAWS COLLATERALLY EXTENDING THEIR LIFE LIKE GIVING IT A NEW NAME called the Committee on Privatization and Asset Privatization Trust CANNOT BE LEGALLY DONE BECAUSE SALONGA AND HIS GANG THEMSELVES SOUGHT THE COVER OF THE CONSTITUTION TO CARRY OUT THEIR CRIMINAL REVENGE, AND WAS ONLY GIVEN UP TO 18 MONTHS TO LEGALLY EXIST, WHICH  CANNOT BE EXTENDED WITHOUT AMENDING IT.    
In other words, all laws passed after August 2, 1989 or 18 months after February 2, 1987, or the date the 1987 Constitution took effect, refers only to cases which remained pending but subject to compliance to the conditions set by the Constitution.   Specifically, the 3rd sentence of the second paragraph of Section 26 states, to quote: “For orders issued before the ratification of this Constitution, the corresponding judicial action or proceedings shall be filed within six months from its ratification.”   However, the 4th sentence of the same paragraph states that, “For those issued after such ratification, the judicial action or proceedings shall be commenced within six months after the issuance thereof.” 
To make ourselves clear, the PCGG was given six (6) months to file cases for those properties it grabbed from the date the court issued an order if those alleged ill-gotten wealth was discovered before the 1987 Constitution was ratified, or that judicial action or proceedings must be commenced within six (6) months from the issuance of such order.  Otherwise, the last paragraph of Section 26 would apply, to quote: “The sequestration or freeze order is deemed automatically lifted if no judicial action or proceedings is commenced as herein provided.”
Nonetheless, even if we take it that the 18-month grace period is confusing the conditions set in the second paragraph, what is important and controlling is that trial must have been commenced within six (6) months after the sequestration or freeze order was issued.  Beyond six (6) months after the ratification of the Constitution, no sequestration or freeze order can be issued.  That means, no case can be filed by the PCGG or any of those agencies fronting it against those personalities singled out in that bail of attainder law, notwithstanding that there is no such crime as ill-gotten wealth that exist in our penal laws, but only a term used by Salonga to shortcircuit the rights of the accused not to be deprived of their properties without due process of law. 
If the government feels it discovered an alleged ill-gotten wealth of the Marcoses thereafter, it has the recourse to go to the regular courts, but could no longer be initiated by the PCGG.   It will now have to go through the regular prosecuting arm of the government, minus the power to sequester or freeze those alleged ill-gotten wealth, and the owners to be specifically charged to legally validate their application for a writ of preliminary attachment with the accused having all the rights to raise his defense under the normal system of criminal procedure, including the defense of prescription.       
In other words, laws legislated after August 2, 1989 collaterally giving an extended life to the PCGG, like Executive Order No. 149 issued on December 28, 1993 transferring the Sequestered Asset Disposition Authority (SADA) from the Office of the President to the PCGG; and Executive Order No. 643 issued on July 27, 2007 placing the PCGG under the administrative supervision of the Department of Justice are all null and void for strictly speaking, the PCGG had long ceased to exist as a legal entity.   All acts of the PCGG undertaken in the name of those laws, like their latest act of raiding the house Congresswoman Imelda Marcos, are illegal for which they can be validly sued for trespassing and for robbery.   
Specifically, R.A. No. 7181, an act extending the life of the Committee on Privatization and the Asset Privatization Trust dated January 17, 1992; Republic Act No, 7661, an act Amending R.A. No. 7181 dated December 23, 1993; R.A. No. 7886 or an act extending the term of the Committee on Privatization and the Asset Privatization Trust, amending for the purpose R.A. No. 7661 dated February 20, 1995; and R.A. No. 10368. or An Act Providing For Reparation And Recognition Of Victims Of Human Rights Violations During The Marcos Regime, approved on February 25, 2013 are illegal and unconstitutional. 
The persistence of the PCGG in citing those laws as basis to allow them to continue their criminal activities of depriving people of their properties is self-serving.  The Constitution already made it clear that the infamous legal life of the PCGG ended on August 2, 1989.   The constitutional commissioners had to cut short its life because its existence would run afoul with the universally-adhered principles on the rights of the accused that was reincorporated in Article III or Bill of Rights. 

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