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September 2012 TO: Committee on Ethics and Ethical Standards Supreme Court of the Republic of the Philippines Padre Faura, Manila THRU: Hon. Maria Lourdes P.A. Sereno Chief Justice and Chairperson of the Committee Supreme Court of the Republic of the Philippines RE: Undeniable Omissions and Factual Misrepresentations In REPUBLIC V. COJUANGCO: The Mainspring of Injustice MADAM CHIEF JUSTICE: Greeting of Peace! As the social development arm of the PHILIPPINE CATHOLIC CHURCH, THE CATHOLIC BISHOPS CONFERENCE OF THE PHILIPPINES-NATIONAL SECRETARIAT FOR SOCIAL ACTION (CBCP-NASSA) is committed to the ongoing formation towards mature social consciousness. Informed by the reality of the sad plight of our countrys 3.5 million coconut farmers, we write to convey our profound concern for their welfare, specifically, their situation made unfortunate by the Courts recent decision in Republic of the Philippines v. Eduardo M. Cojuangco, Jr., et al. Bearing in mind that this case, essentially, involves the recovery of ill-gotten wealthand morally consists in meeting the demands of social justicewe express deep regret for the following premise:
Although E.O. No. 1 and the other issuances dealing with illgotten wealth (i.e. E.O. No. 2, E.O. No. 14, and E.O. No. 14-A) only identified the subject matter of ill-gotten wealth and the persons who could amass ill-gotten wealth and did not include an explicit definition of ill-gotten wealth xxx [Emphasis added.]

Even as we recognize the Supreme Courts jurisdiction over questions of law and respect it to be the final interpreter of the laws of the land, we write cognizant of the duty of every citizen to know the law and that dutys corollary obligation: as when we should assert their existence as an unquestionable fact, notwithstanding the Courts denial. Between one who asserts a negation and another who proves the reality of existence, there should be no dispute. It is troubling that a case for the recovery of ill-gotten wealth would be decided on a palpably erroneous premisewhich has resulted in disastrous consequences for the 20 million Filipinos whose lives and livelihood depend on the coconut industry. The erroneous premise is made egregious by the fact that

 the Courts own decision indicated the source of the crucial definition whose existence it had denied. In ruling that the lifting of nine [Writs of Sequestration] for violation of PCGG Rules did not constitute grave abuse of discretion [Underscoring added], the Court referred to Section 31 of the Rules of the PCGG, promulgated on April 11, 1986but it tragically glossed over Section 1, which states:
Section 1. Definition. [A] Ill-gotten wealth is hereby defined as any asset, property, business enterprise or material possession of persons within the purview of Executive Orders Nos. 1 and 2, acquired by them directly, or indirectly thru dummies, nominees, agents, subordinates and/or business associates by any of the following means or similar schemes: (1) Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury; (2) Through the receipt, directly or indirectly, of any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the official concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the government or any of its subdivisions, agencies or instrumentalities or governmentowned or controlled corporations; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation in any business enterprise or undertaking; (5) Through the establishment of agricultural, industrial or commercial monopolies or other combination and/or by the issuance, promulgation and/or implementation of decrees and orders intended to benefit particular persons or particular interests; and (6) By taking undue advantage of official position, authority, authority, relationship or influence for personal gain or benefit.

Despite Rule 10.2 of Canon 10 of the Code of Professional Responsibility, which states that lawyers shall not knowingly misquote or misrepresent the contents of xxx the text of a decision or authority xxx or knowingly assert as a fact that which has not yet been proved, the Court ignored the above-mentioned section and proceeded to quote, as followsin start contrast to the text of its source:
Republic v. Cojuangco (citing Baseco): In time and unavoidably, the Supreme BASECO v. PCGG a. Sequestration

1 Section 3. Who may issue. A writ of sequestration or a freeze or hold order may be issued by

the Commission upon the authority of at least two Commissioners, based on the affirmation or complaint of an interested party or motu proprio when the Commission has reasonable grounds to believe that the issuance thereof is warranted.


Court elaborated on the meaning and concept of ill-gotten wealth. In Bataan Shipyard & Engineering Co., Inc. v. Presidential Commission on Good Government, or BASECO, for the sake of brevity, the Court held that: xxx until it can be determined, through appropriate judicial proceedings, whether the property was in truth illgotten, i.e., acquired through or as a result of improper or illegal use of or the conversion of funds belonging to the Government or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of official position, authority, relationship, connection or influence, resulting in unjust enrichment of the ostensible owner and grave damage and prejudice to the State. And this, too, is the sense in which the term is commonly understood in other jurisdictions. By the clear terms of the law, the power of the PCGG to sequester property claimed to be "ill-gotten" means to place or cause to be placed under its possession or control said property, or any building or office wherein any such property and any records pertaining thereto may be found, including "business enterprises and entities,"-for the purpose of preventing the destruction, concealment or dissipation of, and otherwise conserving and preserving, the same-until it can be determined, through appropriate judicial proceedings, whether the property was in truth ill-gotten," i.e., acquired through or as a result of improper or illegal use of or the conversion of funds belonging to the Government or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of official position, authority relationship, connection or influence, resulting in unjust enrichment of the ostensible owner and grave damage and prejudice to the State.44 And this, too, is the sense in which the term is commonly understood in other jurisdictions.45 Footnote 44: Except for the statement as to the duration of the writ of sequestration, this is substantially the definition of sequestration set out in Section 1(B) of the Rules and Regulations of the PCGG (Rollo, pp. 195-196). xxx

While one might argue that the portion that the Court had excerpted indicated how property may become ill-gotten, the full quote reveals that such was made in reference to sequestration. In fact, if the Court had not omitted footnote 44, it would have seen clearly that (i) its excerpt was, in fact, a discussion/definition of writ of sequestration that was substantially similar to that defined under Section 1(B) of the PCGG Rules and (ii) the Court would have been one mere subsection closer to the definition of ill-gotten wealth, Section 1(A) of the same PCGG Rules. Bearing in mind that the case was premised on the recovery of ill-gotten wealthand that an erroneous ruling would, to use the Courts definition of higher interests of justice, potentially cause unwarranted and irremediable injury or damage to a fifth of the countrys populationit would have been reasonable to expect and for the Filipino people to demand that extra care would have been taken before making such an assertion. Such diligence would have revealed other sources of the definition of ill-gotten wealth: Section 1(d) of Republic Act No. 7080 (Plunder Law, as amended by R.A. 7659) which contains a substantially similar definition of ill-gotten wealth as Section 1(A) of

 the PCGG Rules or Republic of the Philippines v. Estate of Hans Menzi which adopted Section 1(A) of the PCGG Rules as its crucial basis for deciding against Mr. Eduardo M. Cojuangco, Jr. The fallacy in the Courts decision is borne out by its supervening ruling in 24 January 2012, Philippine Coconut Producers Federation, Inc., et al. v. Republic of the Philippines, where the Court, voting unanimously, upheld and reverted to the definition of ill-gotten wealthwhich it claimed, 10 months earlier, to be nonexistent. The following excerpts from the case of Imelda S. Enriquez v. Judge Anacleto L. Caminade are worth recalling:
Judges are expected to exhibit more than just cursory acquaintance with statutes and procedural laws. In all good faith, they must know the laws and apply them properly. Judicial competence requires no less. Where the legal principle involved is sufficiently basic and elementary, lack of conversance with it constitutes gross ignorance of the law. xxx Judges are not common individuals whose gross errors men forgive and time forgets. For when they display an utter lack of familiarity with the rules, they erode the confidence of the public in the competence of our courts. Such lack is gross ignorance of the law. Verily, failure to follow basic legal commands and rules constitutes gross ignorance of the law, of which no one is excused, and surely not a judge.

We write mindful of the compelling interests of the Rule of Law vis--vis stare decisis, judicial independence, judicial integrity, and Constitutional prescriptions on accountability of public officers. We pray of this Honorable Supreme Court to safeguard its judicial integrity, as observed by Justice Arturo Brion in his Separate Concurring Opinion in A.M. No. 10-7-17-SC: In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. Del Castillo:
xxx it is unthinkable that the Supreme Court can only watch helplesslyfor the reason that the power to act is granted only to Congress under the terms of the Constitutionas its own Members prostitute its integrity as an institution.

We are aware of Rule 13 of the Internal Rules of the Supreme Court that elaborates on the Decision-Making Process of the Courtparticularly, Rule 13, Section 3(c) (re: Actions and decisions, how reached)2 and Rule 13, Section 5 (re:
2 Rule

13, Section 3(C) Decision or Resolution When a case is submitted for decision or resolution, the Member-in-Charge shall have the same placed in the agenda of the Court for deliberation. He or she shall submit to the other Members of the Court, at least seven days in advance, a report that shall contain the facts, the issue or issues involved, the arguments of the contending parties, and the laws and jurisprudence that can aid the Court in deciding or resolving the case. In consultation, the Members of the Court shall agree on the conclusion or

 Ponente or Opinion writer)3but we concede that we are unaware of the full circumstances that led to such a patently erroneous pronouncement. Within these premises, we request that the Ethics Committee investigate this matterconsidering that this error has given rise to the anomalous decision in the case of Republic v. Cojuangcoparticularly, as regards the Ponente and the Member-in-Charge. This request is without prejudice to the possibility that, as Justice Brion wrote:
xxx If, in the exercise of its prerogative as interpreter of the Constitution, it determines that an act complained of falls within the defined grounds for impeachment, then the Court should say so and forthwith forward its recommendations to Congress as the body constitutionally mandated to act in impeachment cases.

We trust that the Court will find in its investigation, the answers that our 3.5 million countrys coconut farmers seek, the mainspring of injusticebe it graft and corruption, gross ignorance of the law, knowingly rendering an unjust decision, betrayal of public trust, or culpable violation of the Constitutionand in such answer, whether or not the Court can, being a court of equity, grant them the relief demanded by genuine social justice. CATHOLIC BISHOPS CONFERENCE OF THE PHILIPPINES- NATIONAL SECRETARIAT FOR SOCIAL ACTION (CBCP-NASSA)

conclusions in the case, unless the said Member requests a continuance and the Court grants it. [Emphasis added.] 3 Section 5. Ponente or Opinion writer. Immediately upon arriving at a conclusion regarding the issue or issues in the case, the Court shall assign a Member to write the opinion of the Court. Should the majority vote on such conclusion be different from or contrary to the conclusion arrived at by the ponente, the writing of the new opinion shall be assigned to a ponente chosen by the majority. [Citation omitted.]