Motion to Dismiss in the Impeachment Case Against Marvin Lagonera

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Ateneo Student Judicial Court Ateneo de Manila University - Loyola Schools

Barangay Loyola Heights, Quezon City

SITTING AS THE IMPEACHMENT COURT

IN THE MATTER OF THE IMPEACHMENT OF MARVIN LAGONERA AS SECRETARY-TREASURER OF THE SCHOOL OF SOCIAL SCIENCES SCHOOL BOARD, CHIEF PROSECUTOR CLYDE MARAMBA, PROSECUTORS BEATRIZ BEATO, ROBERT MARI IBAY, JULIA DARYL LENARZ, MAGDALENA MARIE PINEDA, JIEGO MICHAEL TANCHANCO, CRISTINE MARIE VILLARUEL, SPECIAL PROSECUTOR JAYVY GAMBOA, AND DEPUTY CLERK OF COURT PATRICK JOSEPH NG

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MOTION TO DISMISS

Marvin Lagonera (Mr. Lagonera), Secretary-Treasurer of the School of Social

Sciences School Board of the Sanggunian ng mga Mag-aaral ng Paaralang Loyola ng

Pamantasang Ateneo de Manila (Sanggunian), by counsels, without waiving my right to

file the appropriate legal remedy to answer, among others, the accusations stated in the

complaints filed against me, respectfully states:

1. That the complaints do not constitute impeachable offenses; 2. That the complaint asserting the claims states no cause of action; 3. That the Court has no jurisdiction over the subject matter of the claims; 4. That the complaints are defective for its failure to seek adequate reliefs;

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5. That the question of constitutionality asserted by the complaints raises prejudicial questions which must first be resolved in a separate suit;

6. That as Secretary-Treasurer acted in good faith pursuant to Resolution No. 1 which is attended by the presumption of regularity, and is thus not a ground for impeachment;

7. That the matter of appointments raised by the complaints are political questions and are thus outside the jurisdiction of the Student Judicial Court.

Each ground will be covered through each accusation: ARGUMENTS: On the charge of Usurpation

The Prosecution charges Mr. Lagonera with the usurpation of the Chairmanship

of the School of Social Sciences School Board for assuming the position “without the

clear approval of a constituency” and “without legal basis and with disregard to the

Declaratory Relief”. The Prosecution charges that Mr. Lagonera, through online posts,

official actions and correspondence, represented himself as the Acting Chairperson of

the SOSS School Board. It went on to state that “the role of the Chairperson is to

maintain the autonomy of the School Board and not to assume anonymous autocratic

power over proceedings that affect the entire SOSS Sanggunian constituency” and that

Mr. Lagonera’s has “illegally taken the authority of the Chairperson position and

erroneously used this power in actions that are unconstitutional in nature”. ” It is on this

basis that they accuse Mr. Lagonera of committing impeachable acts under Article II,

Section 2 (c) of the 2005 LS Undergraduate Constitution.

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In Codilla, et. al. v. Martinez, et. al1 the Supreme Court had the opportunity to

expound on a case involving the alleged usurpation of the office of the City Mayor by a

Councilor who was only third in the line of succession, after the Mayor, Vice-Mayor, and

another Councilor were unable to discharge their duties for a certain time. The

petitioners in the abovecited case were policemen separated from the service via an

official act of the Councilor as Acting Mayor. The Councilor also appointed several

policemen to replace the separated petitioners. The petitioners questioned their

separation from service and the subsequent appointment of the other policemen,

arguing that the Councilor usurped the office of Acting Mayor. In Codilla, the Court

affirmed the trial court’s decision to affirm the Councilor’s decision, to wit:

“One peculiar thing that appears dominant in the present case is the fact that the official who assumed the office was acting mayor of Tagum, Davao, by designation made by the ranking municipal councilor is Jose L. Martinez who was only then the third ranking councilor of the municipality for which reason petitioners argued from the very start that their separation was illegal because the designation of Martinez as acting mayor was not made in accordance with the provisions of Section 2195 of the Revised Administrative Code and Section 21 (a) of the Revised Election Code under which such designation should be made by the provincial governor with the consent of the provincial board. Nevertheless, the trial court did not consider the designation of Martinez as acting mayor entirely void, or one that would make him a usurper, but at the most a de facto officer whose acts may be given validity in the eye of the law. Thus, the trial court said: “Although his designation was irregular, still he was acting under a color of authority, as distinguished from a usurper who is “one who neither has title nor color of right of an office.” The acts of Jose L. Martinez are therefore official acts of a de facto officer. If they are made within the scope of the authority vested by the law in the office of the mayor of Tagum, such acts of a de facto office are here present.

The Supreme Court further defined what constitutes de facto and de jure officers

as compared to mere usurpers, to wit:

An officer de facto is to be distinguished from an officer de jure, and is one who has the reputation or appearance of being the officer he assumes to be but who, in fact, under the law, has no right or title to the office he assumes to hold. He is distinguished from

                                                                                                               1 G.R. No. L-14569, November 23, 1960 2 G.R. No. L-65439, November 13, 1985

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a mere usurper or intruder by the fact that the former holds by some color of right or title while the latter intrudes upon the offices and assumes factions without either legal title or color of right to such office (McQuillin, Municipal Corporations, Vol. 3, 3rd ed., pp. 376-377). To constitute a de facto officer, there must be an office having a de facto existence, or at least one recognized by law and the claimant must be in actual possession of the office under color of title or authority. State vs. Babb, 124 W. Va. 427, 20 S.E. (2d) 683. (McQuillin, Municipal Corporations, supra footnote No. 11, p. 383)

It is therefore clear that Mr. Lagonera, in his best judgment and interpretation of

the provision that the Secretary-Treasurer shall assume the responsibilities of the

Chairperson in case of absence or vacancy, acted as de facto Chair. He was not a

stranger or outsider as he was the duly elected officer whose office is immediately

below of the unfilled Chairpersonship. Article VIII, Sections B and C of the 2005

Undergraduate Constitution states:

Section 2. Powers and Responsibilities B. Chairperson (a) To be the Chairperson and Chief Executive Officer of the School Board; (b) To be the official spokesperson of the School Board (c) To coordinate with the Central Board on behalf of the School Board; (d) To maintain the autonomy of the School Board; (e) To chair the meetings of the School Board; and (f) To perform such other functions as the School Board Executive Committee may so direct.

C. Secretary-Treasurer

(a) To assume the responsibilities of the Chairperson if the Chairperson is absent, or incapacitated; (b) To automatically assume the Chairpersonship in the event that such office is permanently vacated; (c) To be the Chief Administrative Officer of the School Board, keeping records of the School Board’s proceedings, and correspondence and be responsible for furnishing copies to the Sanggunian Secretary-General where appropriate; (d) To be the School Board’s budget officer and disburser of funds; and (e) To perform such other functions the Board or President may so direct.

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It is clear in the aforequoted provision that while the matter of vacancy--

previously ruled by this Honorable Court in an earlier Declaratory Relief--is discussed in

Section 2 (c), the same also provides that the Secretary-Treasurer is to assume the

responsibilities the Chairperson in case of absence or vacancy. To date, this Honorable

Court has not passed on an interpretation of Section 2 (c), paragraph a. Based on the

Articles of Impeachment, subsequent described by the Prosecution as positive acts of

usurpation included Mr. Lagonera introducing himself as “Acting Chairperson”.

Qualifying his statement that he was in an acting capacity shows no intent on the

defendant’s part to commit any misrepresentation. Mr. Lagonera acted in good faith and

in the exercise of political wisdom and discretion. To recapitulate, Mr. Lagonera made

such statements in his capacity as duly elected Secretary-Treasurer in accordance to

his interpretation of an existing provision. No usurpation as defined by the Supreme

Court of this land existed in fact or in law. Additionally as a matter of procedure, the

Prosecution failed to seek the proper relief. It unduly burdened this Honorable Court by

lodging an impeachment complaint when the appropriate remedy should have been a

quo warranto proceeding. In this light, the charge of usurping the office of SOSS

Chairperson must fail.

On the charge of Illegal Appointments

The Prosecution charges Mr. Lagonera violated the 2005 Constitution “by

appointing officers to SOSS School Board positions without due respect for the student

body’s right to vote” and that these appointments were “conducted without following the

proper procedure for appointing. They also state that the burden of proof lies with Mr.

Lagonera “as the highest official in the SOSS School Board to whom all evidence and

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relevant statements point to as responsible for these illegal appointments constituting a

‘willful violation of the Constitution’. It then lists 27 SOSS School Board positions, which

includes the appointments of two (2) Central Board Representatives, two (2) Executive

Officers, and 23 Course and Block Representatives. It hinges the charges on their

observation that Article VIII, Section 2 (c) of the Undergraduate Constitution does

not “state that it is within the power of the Secretary Treasurer to fill the vacant positions

in the School Board via appointment”. The abovementioned Article reads:

“C. Secretary-Treasurer (a) To assume the responsibilities of the Chairperson if the Chairperson is absent, or incapacitated; (b) To automatically assume the Chairpersonship in the event that such office is permanently vacated; (c) To be the Chief Administrative Officer of the School Board, keeping records of the School Board’s proceedings, and correspondence and be responsible for furnishing copies to the Sanggunian Secretary-General where appropriate; (d) To be the School Board’s budget officer and disburser of funds; and (e) To perform such other functions the School Board or President may so direct.”

The Prosecution further argues that this Honorable Court “was not consulted in

any manner concerning the review, or approval of the appointed officers within the

SOSS Sanggunian School Board” based on Article XIII 8 (e) of the LS Undergraduate

Constitution, which reads:

“Power and Responsibilities of the Student Judicial Court: (e) To review and approve or reject appointments by the members of the Sanggunian, who must meet the qualifications written in the Constitution”.

Ultimately, the Prosecution argues that these appointments constitute a breach

of Article XV Section 4 (a) of the LS Undergraduate Constitution which states that:

“Vacancies that occur in the School Board before the election of Freshmen shall be filled via special elections to be held simultaneously with the Freshman Year Officers Election”

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The Prosecution imputes that “although it is not explicitly stated how vacancies

are to be treated after the election of Freshmen, it is non sequitur that Mr. Lagonera can

appoint to his own ruling -- unless there was a directive from the President or an (sic)

unanimous decision resulting (sic) from voting to do so by the Executive Committees

Chairperson, Secretary-Treasurer, and Elected Executive Officers”. The Prosecution

states that “it has not found any evidence of a directive from the President of the

Sanggunian, Dan Remo, concerning these appointments nor has it found any evidence

of any voting within the Executive Committee on the same matter”. The Prosecution

then attest that the Court should then impeach Mr. Lagonera, and that his appointments

be rendered invalid “for the sole reason that these students did not undergo proper

procedures in attaining their respective position (sic) and that it is the responsibility of

this court to ‘review and approve or reject appointments by the members of the

Sanggunian, who must meet the qualifications written in the Constitution”. Assuming

arguendo that the appointments made by Mr. Lagonera cannot be supported by any

extant provision in the constitution, the same is not an impeachable offense. At most,

such appointments as void ab initio. Again, the Prosecution duly unburdened this

Honorable Court for initiating an action with an improper relief.

As a matter of impressing upon the Court that the appointments were not done

with an intent to violate the Undergraduate Constitution, and that the appointments are

not in direct violation of the abovecited stipulations on the limitations imposed upon the

power of appointments, the accused would like to cite the ruling of the Supreme Court

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on ad interim appointments in Pamantasang Lungsod ng Maynila v. Intermediate

Appellate Court (1985)2:

“The term [ad interim] is defined by Black to mean ‘in the meantime’ or for the time being. Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black’s Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use in the context of Philippine Law. In referring to Dr. Esteban’s appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University with the power of appointment is unable to act”

It can thus be inferred from the ruling of the Supreme Court in Pamantasan that

even in the extreme case that another body is the one vested with the power to appoint,

it does not necessarily follow that the executive of an institution would not be given the

authority to appoint ad interim officers. The Pamantasan case clearly shows that as long

as a body vested with the original power to appoint is unable to act, in this impeachment

case, the Chairperson, who shall serve as the School Board’s Chief Executive power,

Mr. Lagonera’s appointments, based on the statutory grant given to him to assume the

responsibilities of the Chairperson if the Chairperson is absent or incapacitated, or in

other words as long as the Chairperson is unable to act, then Mr. Lagonera can make

ad interim appointments. The Prosecution also erroneously seeks to impress the Court

that appointments made by any executive must first go through the Student Judicial

Court as stated in its Powers and Responsibilities under the Undergraduate Constitution.

One need not cite authorities to say that this is a grave misunderstanding of basic

syntax on the part of the Prosecution, as this particular power of review is discretionary

                                                                                                               2 G.R. No. L-65439, November 13, 1985

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upon the Court and is not a duty that can be imputed to Mr. Lagonera. The charges of

illegal appointments, must therefore fail.

On the charge of Graft and Corruption

Among the allegations of the Prosecution in complaints filed before the Courts is

violation of the 2005 Constitution of the Undergraduate Students of the Ateneo de

Manila Loyola Schools by “committing an act of graft and corruption by showing

preference towards members of the Christian Union for Socialist and Democratic

Advancement (CRUSADA) in the appointment for Committee Chairpersonship.”

In substantiating this claim, the Prosecution solely relies on Republic Act No.

3019 or the Anti-Graft and Corrupt Practices Act. Fundamentally, the Prosecution

committed grave abuse of discretion by anchoring its complaint on a special

penal statute that finds no application anent the facts and circumstances of the

case at bar. Moreover, the Prosecution failed to substantially identify any injury

that could have given rise to an actionable cause. Proceeding from this argument,

the allegations in the complaint do not constitute a cause of action nor a proper case

cognizable by the Student Judicial Court. In view thereof, the charge for graft and

corruption must fail.

First, the complaint erroneously classified defendant as an “Elected Public Officer”

and hence within the ambit of said act. The Prosecution anchors the culpability of

defendant on the premise that he committed acts or omissions as an Elected Public

Officer. The Prosecution quotes in full Section 2 (b) of RA 3019, to wit:

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(b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph. However, the Prosecution intentionally omitted the more crucial preceding

paragraph in the same section which reads:

(a) "Government" includes the national government, the local governments, the government-owned and government-controlled corporations, and all other instrumentalities or agencies of the Republic of the Philippines and their branches. (emphasis supplied)

In doing so, the Prosecution maliciously attempted to impress the Court with

the fact that defendant Lagonera falls under the class of persons defined in the

statute. Clearly, the law refers to officers of the Government of the Philippines and not

of private bodies such as the Sanggunian. It is a basic rule in statutory construction that

“the Legislature in enacting a law is supposed and presumed not to insert any section or

provision which is unnecessary and a mere surplusage; that all provisions contained in

a law should be given effect, and that contradictions are to be avoided.”3 As such, the

wrongful omission of paragraph A in the definition should already alert the Court as to

the intent behind the complaint. The definition provided by the Revised Penal Code, a

law of general application, as to who are public officers reads:

Art. 203. Who are public officers. — For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, of shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. (emphasis supplied)

                                                                                                               3 Magpayo vs. Republic, G.R. No. L-5387

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In his annotations on the Revised Penal Code, Prof. Luis B. Reyes4 cites the

case of Maniego vs. People5 to demonstrate the limited applicability of the aforequoted

provision. If, according to jurisprudence, a government laborer is already outside the

definition of “public officers”, what more of Mr. Lagonera who holds office in the

governing body of a private institution?

Practitioners in the legal profession in this jurisdiction are mandated to “not

knowingly misquote or misrepresent the contents of paper, the language or the

argument of opposing counsel, or the text of a decision or authority, or knowingly cite as

law a provision already rendered inoperative by repeal or amendment, or assert as a

fact that which has not been proved.”6 Moreover, the use of non-legal sources to exact

the definition of terms used in specific legal contexts should be frowned upon. The

same sense of professional responsibility should also be expected from members of the

Prosecution who perform analogous tasks as members of the Bar.

Second, the substantive allegations manifest that defendant Lagonera is guilty of

acts under Section 3 (e) of RA 3019:

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. As argued hereinbefore, a charge anchored on this definition which identifies the

“Government” as defined as the injured party must fail. Assuming arguendo that this

                                                                                                               4 The Revised Penal Code Book Two. (Rex Bookstore, Eighteenth Ed., 2012) 374. 5 88 Phil. 494 6 Rule 10.02, Canon 10 of the Code of Professional Responsibility

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provision finds application in cases cognizable by the Student Judicial Court, the facts

alleged in the complaint are not sufficient to constitute an actionable cause for acts of

graft and corruption.

Specifically, the complaint states that defendant Lagonera approached Ms. Fiona

Lazaro with the intention to appoint her as Committee Head under the condition she

must join CRUSADA. It was noted and manifested, however, that Mr. Lagonera

withdrew such condition precedent. From this core allegation, the Prosecution went on

to conclude that the mere offer initially made by defendant Lagonera already caused

material injury by impeding “other political parties in fielding their own candidate for

Committee Chairpersonship.” Moreover, the complaint also stated that the act

“encroached on the right of the SOSS constituency to elect representatives tasked to

protect their own interests.” Ultimately, such acts allegedly constituted manifest partiality

in favor of Lagonera’s political party. It is worth noting, however, that Ms. Lazaro’s

appointment pushed through even without assenting to the supposed condition that she

must be a member of CRUSADA.

The provision cited by the Prosecution clearly requires causation of injury in

order that a cause of action against an officer may arise. The statement of facts clearly

state that Lagonera made a retraction of the offer. Because of this subsequent act, any

allegation of injury on the part of other political parties is mere conjecture and

speculation. The Prosecution did not sufficiently show any vested right violated by the

acts of Mr. Lagonera. If at all, this is a case which at the most constitutes damnum

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absque injuria, or damage without injury. The Philippine Supreme Court discusses this

concept in the case of Custodio vs. CA7:

There is a material distinction between damages and injury. Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. These situations are often called damnum absque injuria. In order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff - a concurrence of injury to the plaintiff and legal responsibility by the person causing it. (emphasis supplied) To reiterate, the purported injured party--other Political Parties--do not have a

vested legal right conferred by any substantive law insofar as the appointment to

Committee Chairmanship is concerned. The Supreme Court held repeatedly that in

such cases, no relief may be granted and that the charges against the defendant must

fail. Without the element of injury, there can be no valid cause of action. In a long line of

cases, the Supreme Court enumerated the elements of a cause of action. In Soloil vs.

Philippine Coconut Authority8, for instance, it was reaffirmed that:

The essential elements of a cause of action are:

(1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief.

                                                                                                               7 G.R. No. 116110 8 G.R. No. 174806

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If one is even to indulge the Prosecution that Mr. Lagonera acted in bad faith, it is

evident in the seminal case of Vinzons-Chato vs. Fortune Tobacco 9 wherein the

Supreme Court ratiocinated that when an officer “owing a duty to the public” acts in bad

faith in the performance of such duty, the complaining party must still prove that he

suffered a particular or special injury, otherwise the suit must fail:

An individual can never be suffered to sue for an injury which, technically, is one to the public only; he must show a wrong which he specially suffers, and damage alone does not constitute a wrong. A contrary precept (that an individual, in the absence of a special and peculiar injury, can still institute an action against a public officer on account of an improper performance or non-performance of a duty owing to the public generally) will lead to a deluge of suits, for if one man might have an action, all men might have the like—the complaining individual has no better right than anybody else. If such were the case, no one will serve a public office.

It is a perplexing fact that the Prosecution invokes a non-existent right when it is

not even the real party-in-interest to begin with. Sound public policy dictates that any

judicial body must practice caution when entertaining suits that allege injury arising from

the performance of duty of persons in authority. As regards that charge that the SOSS

constituency also suffered injury, the supervening facts would show that no such injury

was ever incurred. There is no showing that there is proximate causation between the

act of Mr. Lagonera and the supposed injury to the student body.

Third, the question of appointments is one that involves a question of wisdom

and not a question of law. Mr. Lagonera’s act of initially offering a Committee

Chairmanship on the condition that Ms. Lazaro be a member of his political party--which

he later retracted--was a purely political act. The allegation that “Mr. Lagonera’s act of

requesting [her] to be a member of CRUSADA to hold the position is undeniably without

legal basis” as a source of culpability reeks of a futile attempt to impute upon Mr.

                                                                                                               9 G.R. No. 141309

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Lagonera a wanton disregard for purportedly existing legal parameters. To repeat the

argument in the previous paragraphs, there was no source of legal duties and rights to

begin with. As such, Mr. Lagonera merely acted on his discretion as an officer.

Part of the exercise of discretion of officers is making appointments. No less than

the Supreme Court states in Luego vs. Civil Service Commission10 that:

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualification required by the law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide.

Moreover, in Cortez vs. Civil Service Commission11, the Court reiterated:

We agree that many factors are taken into account in evaluating the qualifications of prospective appointees and the formal examinations, work experience and educational attainment are only some of them. Such abstract criteria as loyalty, cordiality, initiative, resourcefulness, discipline, and other personality traits are also properly considered. When making this evaluation, the appointing authority should be given the widest possible leeway and cannot be controlled by the Commission. The Commission cannot, even for the best of motives, substitute its own discretion for that of the appointing authority in derogation of the latter's prerogative. Mr. Lagonera, in pursuance of his exercise of discretion both as SOSS

Secretary-Treasurer and a bona fide member of his political party, only thought it best to

consider appointing people whom he deem best qualified for the task. The Student

Judicial Court must restrain itself from passing upon this issue as it is clearly a non-

justiciable political question. Without jurisdiction nor a cause of action, there is no issue

to litigate. In light of these, a dismissal of the charge of graft and corruption is the only

proper recourse for the Honorable Court.

                                                                                                               10 143 SCRA 327 11 G.R. No. 92673

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On the Charge of Illegally Creating a Committee System

The prosecution charges defendant Lagonera with the offense of usurping the

legal and executive powers of the School of Social Sciences Sanggunian Executive

Committee provided in Article VIII Section 2(a) of the 2005 Constitution of the

Undergraduate Students of the Ateneo de Manila Loyola Schools, to wit:

To formulate and implement policies, stands, resolutions, and programs concerning their constituency.

The prosecution argues that the institution of a committee system, guided by

School of Social Sciences Sanggunian School Board Resolution No. 1 prevents the duly

elected officers of the School of Social Sciences Sanggunian from executing their

mandate and responsibilities. The Prosecution concludes that the assailed Statute is not

only unconstitutional, but also “inefficient”. The facts charged do not constitute an

impeachable offense. Moreso, the questions of constitutionality presented raise

prejudicial questions that should be resolved in a suit separate from an

impeachment complaint. Even assuming arguendo, that the court does indeed

find the assailed Resolution No. 1 as unconstitutional, it cannot impeach Mr.

Lagonera for he acted in good faith in executing a resolution attended to by the

presumption of regularity. As long as the validity of a law has not been passed upon,

the acts of an officer discharging authority under the assailed Resolution cannot be

treated ipso facto illegal. Assuming arguendo that the Honorable Court passes on the

constitutionality of Resolution No. 1 and declares it illegal, Mr. Lagonera’s acts cannot

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make him liable. This is enshrined in the doctrine of operative fact. As enunciated in the

fairly recent case of Chavez vs. JBC (2012)12, the Supreme Court ratiocinated:

The doctrine of operative fact, as an exception to the general rule, only applies

as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an

undue burden on those who have relied on the invalid law.

Considering this, we pray that the Court dismiss the charge of illegally creating a

committee system.

First, the prosecution assails the constitutionality of School of Social Sciences

Sanggunian Resolution No. 1, introduced by Mr. Lagonera, on the basis that it contains

definitions that oppose provisions of the 2005 Constitution of the Undergraduate

Students of the Ateneo de Manila University Loyola Schools. They submit that the

definition of an "Executive Committee" prescribed in Article II (A) of Resolution No. 1

which reads to wit:

[The Executive Committee] Shall be composed of Chairperson, Secretary-Treasurer, Executive Officers and Central Board Officers as mandated by the 2005 Constitution of the Undergraduate Students of the Ateneo de Manila University Loyola Schools

is contrary to the definition stated for in Article VIII Section 1 of the aforementioned

Constitution which provides that:

Each School Board shall be composed of a Chairperson, Secretary-Treasurer, and one Executive Officer from each year level who will collectively form the School Board's Executive Committee

                                                                                                               12 G.R. No. 202242, July 17, 2012

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Moreover, the prosecution argues that Resolution No. 1 does not have a

"separability clause" protecting the other sections of the same Resolution from being

rendered invalid in the case that any other clause is deemed unconstitutional, thereby

rendering the entire resolution invalid.

On the onset, the prosecution’s charges are attended by procedural and

substantive infirmities; First, the question of constitutionality of the aforementioned

Resolution does not belong in an impeachment complaint. It is an issue that must

be resolved in a separate suit. The Prosecution committed a fatal procedural error when

it prayed that this Court both declare Resolution No. 1 unconstitutional and to impeach

Mr. Lagonera in the same petition.

Second, even assuming arguendo, that Resolution No. 1 is deemed

unconstitutional, Mr. Lagonera should not be faulted for acting in good faith in

executing a resolution attended to by the presumption of regularity, and is thus

not liable for impeachment. The Supreme Court held in People v. Vera (1937)13, to

wit:

“This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. ‘The question of the validity of every statute is first determined by the legislative department of the government itself.” (US vs Ten Yu (1912), 24 Phil.,1, 10; Case vs. Board of Health and Heise (1913), 24 Phil., 250, 276; US vs. Joson (1913), 26 Phil.,1.) And a statute finally comes before the courts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath to support the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective Chief Executive. It

                                                                                                               13 G.R. No. L-45685, Nov. 16, 1937

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follows, therefore, that the courts will not set aside a law as violative of the Constitution except in a clear case. This is a proposition too plain to require a citation of authorities”.

Furthermore, the Prosecution hinges their argument that Mr. Lagonera should be

impeached for instituting what they argue are unconstitutional committees. This kind of

assertion does not have any basis on logic or established doctrines of the law. It does

not necessarily follow that an act that is declared unconstitutional would render its

legislators liable for impeachment. Mr. Lagonera’s subsequent actions based on

Resolution No. 1 cannot be imputed as impeachable offenses as these are covered by

the doctrine of operative facts. It imposes an undue burden on Mr. Lagonera as the

Prosecution quite fallaciously imputes that he should be impeached for his

implementation of the Committee System, which was done in good faith and is

governed by the operative fact doctrine. The Supreme Court defined the operative fact

doctrine in De Agbayani v. Philippine National Bank (1971)14 as “a legislative or

executive act, prior to its being declared as unconstitutional by the courts, is valid and

must be complied with”. The Supreme Court likewise held in City of Makati v. Civil

Service Commission (xxxx)15 that:

“Moreover, we certainly cannot nullify the City Government’s order of suspension, as we have no reason to do so, much less retroactively apply such nullification to deprive the private respondent of a compelling and valid reason for not filing the leave application. For as we have held, a void act though in law [is] a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions done in reliance thereof. Consequently, the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. it would indeed be ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a formal leave application”

Furthermore, in Yap v. Thenamaris Ship’s Management (2011)16 it was held that:

                                                                                                               14 G.R. No. L-23127, April 29, 1971 15 G.R. No. 131392, February 6, 2002 16 G.R. No. 179532, May 30, 2011

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“As a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it afford no protection; it creates no office; it is inoperative as if it has not been passed at all. The general rule is supported by Article 7 of the Civil Code, which provides:

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse or custom or practice to the contrary.

The doctrine of operative fact serves as an exception to the aforementioned general rule. In Planters Products, Inc. v. Fertiphil Corporation, we held:

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.”

Third, not content with asserting that Resolution No. 1 is unconstitutional, the

prosecution argues that the very process Mr. Lagonera undertook in introducing the

committee system was irregular. They aver that Mr. Lagonera began actively recruiting

committee heads and members even before the School of Social Sciences Sanggunian

School Board approved the committee system during its planning and evaluation

seminar. They assert further that the very approval of the committee system through a

vote by the School Board convened in the planning seminar was in effect a "mere

formality." This argument disregards in toto the principle of the separation of powers - it

is not in the prosecution's purview to charge that a vote undertaken to approve a

resolution is unwise.

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Finally, Mr. Lagonera is charged with usurping the powers of the members of the

executive committee through the implementation of a committee system. They argue

that through the appointment of various committee heads and volunteers, Mr. Lagonera

materially prevented the elected officers of the School of Social Sciences Sanggunian

from executing their mandate by sowing confusion in the delegation of duties. This

charge has little basis in law and in fact. Title V, Sections 33 to 35 of The Sanggunian

Code of Internal Procedures, the primary document that interprets and implements

the 2005 Constitution of the Undergraduate students of the Ateneo de Manila University

Loyola Schools provides for the creation of committee systems, to wit:

“Section 33. Committee Duties and Responsibilities. To facilitate efficient and expedient action on School concerns, the Board shall be divided into various standing committees grouped based on projects of the Board. Committees shall act as the executive implementing body of projects of the Board. Section 34. The standing committees will be formed under the discretion of the School Board. Section 35. Committee Officer in Charge: The committee officer-in-charge shall have the following powers and responsibilties: a. Calling for an presiding over meetings whenever deemed necessary. b. Setting the agenda for committee meetings.

c. Transmitting at least 1 Committee Situation Report to the Plenary every two weeks.

d. Check attendance of members. e. Student attendance reports and other documents to the Secretary-

Treasurer as soon as they are available. f. Any other function the School Board may direct.” Further, the prosecution failed to provide this court with adequate evidence

supporting the fact that Mr. Lagonera conspired to intentionally rob the School of Social

Sciences Sanggunian School Board of power. Instead they provide the court with

testimonies that purport that executive officers were unable to join in the planning and

execution stages of several projects. The inability of these elected officials to assert

their mandate by failing to participate actively in the affairs of their school board could

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hardly be attributed to Mr. Lagonera. In the first place, no one has a vested legal right in

the appointive positions. No one had a vested right in the appointment to the

committees. As in the other charges brought against the accused, the Prosecutors rely

on imaginary injury suffered by unspecified parties and speculative causes of action. In

Maxey vs. Court of Appeals17, the Supreme Court defined a vested right as:

property which has become fixed and established, and is no longer open to doubt or controversy; an immediately fixed right of present or future enjoyment as distinguished from an expectant or contingent right

Further, in Engaño vs. Court of Appeals:

A public office is not a property within the context of the due process guarantee of the Constitution. There is no such thing as a vested interest in a public office, let alone an absolute right to hold it. Except constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in a public office or its salary. Applying this principle by analogy, other political parties cannot bring about a suit

claiming damage suffered from not being appointed in a position which they--nor

anyone else--had any vested right it.

On the charge of Falsification of Minutes of the Meeting

The allegation that defendant Lagonera failed in competently fulfilling his official

duty provided in Article VIII Section 2(c) and (d) of the 2005 Constitution of the

Undergraduate Students of the Ateneo de Manila Loyola Schools , to wit:

To be the Chief Administrative Officer of the School Board, keeping records of the School Board's proceedings, and correspondence and be responsible for furnishing copies to the Sanggunian Secretary-General where appropriate;

                                                                                                               17 G.R. No. L-45870, May 11, 1984

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lacks basis in fact, established principles of law, and logic. The arguments

forwarded in the Articles of Impeachment rely mainly on hearsay and on flimsy legal

argumentation anchored on speculation and conjecture.

The statement of facts in the Articles of Impeachment narrate that Mr. Lagonera

manifested “inability to submit documents on time” and built on the “quantity and nature

of the conflicts” purportedly present in the submitted files of herein defendant are to

conclude that there is “valid reason to suspect the falsification of documents with clear

motive.” It went on to state that “most if not all the revisions in Mr. Lagonera’s files

concerns issues that the Prosecution had found worthy of investigation such as the

actual voting of the SOSS Executive Committee and the appointment of people to the

vacant positions in the SOSS Sanggunian.” It is on this basis that they accuse Mr.

Lagonera of committing impeachable acts under Article II, Section 19 of the 2005 LS

Undergraduate Constitution, specifically items (d) and (e) for fraud and mismanagement,

respectively.

First, the facts alleged are insufficient to constitute an act of falsification. In our

jurisprudence, the Revised Penal Code provides for different types of falsification and

their respective elements, depending on the class of documents alleged to have been

falsified. The minutes of the meeting in question in the present case are clearly of a

private character. They are not official documents issued by the Government of

Philippines nor private documents notarized to convert them as admissible public

documents.18 Falsification in itself bears a specific legal meaning, and the acts imputed

to Mr. Lagonera do not satisfy the elements of falsification of private documents.

                                                                                                               18 Reyes, p. 229.

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The Supreme Court of the Philippines makes the distinction between falsification

of private documents on the one hand and public documents on the other in the case of

People vs. Po Giok To19:

The distinction made by the law between falsification by private persons, first, of public documents, and secondly of private documents, is clear; the first is committed by the mere performance of any of the acts of falsification enumerated in Art. 171; while the second is committed not only by the performance of any of the acts of falsification enumerated in Art. 171; but it must likewise be shown that such act of falsification was committed to the damage of a third party or with intent to cause such damage. The reason for the distinction is given in a decision of the Supreme Court of Spain dated December 23, 1885, cited by this Court in the case of People vs. Pacana, 47 Phil. 48; i.e., that in the falsification of public or official documents, whether by public officials or by private persons, it is unnecessary that there be present the idea of gain or the intent to injure a third person, for the reason that, in contradiction to private documents, the principal thing punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed. Our own commentators on the Revised Penal Code are also agreed on this distinction.

Stated otherwise, the elements of falsification of private documents are as follows, as

enunciated in Latulanon vs. People20:

(1) that the offender committed any of the acts of falsification, except those in paragraph 7, Article 17121; (2) that the falsification was committed in any private document; and (3)

                                                                                                               19 G.R. No. L-7236, April 30, 1955 20 G.R. No. 139857, September 15, 2006 21 Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister. — The penalty of prision mayor and a fine not to exceed P5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:

211. Counterfeiting or imitating any handwriting, signature or rubric; 212. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; 213. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; 214. Making untruthful statements in a narration of facts; 215. Altering true dates; 216. Making any alteration or intercalation in a genuine document which changes its meaning; 217. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original; or 218. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

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that the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage In other words, to constitute falsification of private documents, it must be

clearly established that the accused acted with intent to cause damage or has

caused damaged to third persons. Otherwise, the elements of the offense alleged are

insufficient to bring about a cause of action.

The Prosecution argues that by virtue of the purported falsification done by Mr.

Lagonera, he in effect “encroached upon the student right to have a transparent

Sanggunian”, citing the analogous duty of the Central Board to “publicize the agenda

and submit budgets upon request of any constituent”. Such is in conjunction with the

interpretation of the Prosecution that the documents should be easily accessible to the

constituency. We need not go far to debunk the self-defeating logic of the Prosecution

as stated in the Articles of Impeachment. They already qualified “easily accessible” as

being available “upon request of any constituent”. Nowhere in the charges was it

alleged that a specific constituent was prejudiced or injured or denied of their right to

information when it was requested from Mr. Lagonera. No parties were named nor a

specific instance was cited. In this vein, the third element that would be necessary to                                                                                                                                                                                                                                                                                                                                                                      21Art. 172. Falsification by private individual and use of falsified documents. — The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon:

211. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and 212. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.chanrobles virtual law library 21Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article, or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree.

21 21

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constitute falsification--the intent or causation of damage to a party--is absent. There is

no telling that had a constituent requested for the said documents, Mr. Lagonera would

have denied it. To rule on the basis of hypotheticals will be dangerous, as it will reduce

the Honorable Court to speculating on possibilities. In other words, since no intent nor

actual damage was caused, it cannot be inferred nor concluded that Mr. Lagonera

committed falsification of a private document according to its legal definition. On a

marginal note, accused wishes to submit that the Prosecution has no color of right to

interpret what is “easily accessible”, as such is within the province of judicial review

lodged solely before this Honorable Court.

Second, the defendant acted in accordance with the Sanggunian Code of

Internal Procedures, specifically Title III, Section 24 which reads:

Minutes of the Meeting. The Secretary-Treasurer together with his/her deputies is tasked to prepare the minutes of all the meetings of the School Board and ExeCom. He/she is required to transmit a soft copy of the minutes to the e-group of the ExeCom 2 days after the meeting in PDF file. The Secretary-Treasurer is tasked to submit a soft copy of the approved minutes to the Secretary-General for compilation. A hard copy of the minutes shall be kept at the Sanggunian Room. He/she is also tasked to send soft copies of the approved minutes to all members of the Board within 2 school days after its approval. Other Protocols regarding minutes, attendance reports and status reports from the Code of Internal Procedures of the Sanggunian Secretary General will also be followed.

From this provision it can be gleaned that the primary authority to take charge of the

minutes is lodged with the Secretary-Treasurer. The minutes submitted by Mr. Lagonera,

by virtue of his office is clothed with the presumption of regularity. It is then peculiar for

the Prosecution to give credence to the minutes submitted by Ms. Lazaro rather than Mr.

Lagonera’s. At best, the authority granted to Ms. Lazaro as assigned scribe is a

delegation of authority. It is a principle in political law that delegated authority cannot

exceed the delegating power. In case of conflict between the files submitted by Mr.

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Lagonera and Ms. Lazaro, the Secretary-Treasurer’s copy should bear more weight. As

Mr. Lagonera enjoys the presumption of regularity of official, the onus probandi lies in

the Prosecution, which in this case they failed to discharge factually as will be argued

further.

Third, allegations are inferred from circumstantial evidence. Among the pieces of

evidence where the Prosecution anchors its charge on is the inconsistency in the

timestamps submitted by Mr. Lagonera and the assigned scribe Ms. Lazaro. In the

Articles of Impeachment, the Prosecution infer malice on the part of Mr. Lagonera from

the recovered minutes of the budget proposal when they were granted access to the

SoSS Sanggunian Officials Facebook group. The evidentiary weight of timestamps

should be scrutinized. The defendant invites the Honorable Court to take judicial notice

of the fact that timestamps are not determinative of the fact that a file was manipulated

on the date reflected in said timestamp. It may be possible that the act of opening the

document at a later time would effectively alter the timestamp. In Kenexa Brassing Inc.

vs. Taleo Corporation22, it was stated that:

Timestamps can be easily modified, even accidently. A user can modify the time stamp on a source code file by simply changing the system time on a development computer and making a trivial modification to the file.

Additionally, U.S. vs. Gray23 lays down the following opinion:

As discussed below, the court finds that the timestamp evidence is not material; thus it is not necessary to decide the other issues presented by the parties-whether the government possessed the evidence, whether the defense could have obtained the data through reasonable diligence, and whether the defense had the data in time to make use of it at trial.

                                                                                                               22 751 F. Supp. 2d 735 - Dist. Court, D. Delaware 2010 23 731 F. Supp. 2d 810 - Dist. Court, ND Indiana 2010

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The Prosecution admits that the documents merely suggest conflicts between the

proceedings recorded and the submitted documentation. Something is amiss in the

argumentation of the Prosecution, as they combine hearsay and circumstantial

evidence with a clearly erroneous application of the term “falsification”. Aside from

failing to discharge with clarity their act of privileging Ms. Lazaro’s testimony over the

presumption of regularity enjoyed by the accused, the Prosecution likewise encroached

on the accused constitutional right to be presumed innocent by imputing an unspecified

“clear motive” as well as questionable acts. In a final attempt to discredit Mr. Lagonera,

they impute mismanagement on the basis of the same cause of action. This reeks of

legal absurdity and renders the complaint defective. It is a basic principle in remedial

law that one cannot split a cause of action. In view of the foregoing, the defendant

respectfully submits that the facts alleged are insufficient to constitute probable cause

and a cause of action, thus meriting the dismissal of the complaint for falsification.

RELIEF

WHEREFORE, Secretary-Treasurer Marvin Lagonera respectfully prays that this

Honorable Student Judicial Court dismiss the charges against him under the Articles of

Impeachment with prejudice, in view of the prosecution’s failures and oversights in

relation thereto.

Secretary-Treasurer Marvin Lagonera further prays for such other relief as may

be just and equitable under the premises.

Quezon City, 9 December 2013

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Respectfully Submitted by Counsel for Secretary-Treasurer Marvin Lagonera

(sgd.) ANDRE MIKO ALAZAS

II AB-MA Political Science, Major in Global Politics Lead Counsel

[email protected]

Quezon City, 9 December 2013

Copies furnished: Clyde Maramba Chief Prosecutor Student Judicial Court Ateneo de Manila University – Loyola Schools Loyola Heights, Quezon City