ORLGINAL Republic of the Philippines HOUSE OF REPRESENTATIVES Quezon City JACINTO V, PARAS AND IMPEACHMENT CASE FERDINAND S. TOPACIO, No. Complainants, SE OF EGPRESEMTATIOGS 1 © i VED ~versus- | HON. JUAN ANDRES D. BAUTISTA, Respondent. ‘VERIFIED COMPLAINT FOR IMPEACHMENT COMPLAINANTS, assisted by counsel, unto this hor House of Representatives, respectfully aver: THAT - PREFATORY 1, Enshrined in the Constitution is the principle that a public office is a public trust and that public officers must always be accountable for the faithful discharge of their office. 2. The Constitution likewise provides that certain public officials in order to be accountable for their wrongdoings, may be removed by impeachment. Alexander Hamilton in Federalist No. 65 described the subject of impeachment as those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself, (Constitutional Grounds for Presidential Impeachment. Report by the Staff of the Tmneachment Inquiry, Committee on the Judiciary, House of Representatives (93"4 Congress, 2"4 session, Feb. 1974), p. 13) 3. The fundamental law authorizes the impeachment of the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman. And these officials may be impeached upon the following grounds of culpable violation of the Constitution, treason, bribery, graft and ThinkingPinoycorruption, other high crimes and betrayal of public trust. Culpable violation of the Constitution pertains to a willful violation of the Constitution and excludes acts committed unintentionally or through an honest mistake of judgment. (Carmelo V. Sison, et al., Impeachment Q & 4, 2000 Ed, p. 2) Treason end bribery should be understood in ce with their meanings in the Revised Penal Code. Treason is committed in times of war by levying war against the Philippines or adhering to the enemy, giving them aid and comfort. Bribery is committed by a public officer who (1) receives a gift in connection with the performance of his official duties in order to perform an act whether constituting a crime or not, or (2) accepts gifts offered to him ‘by reason of his office, or (3) being a public officer entrusted with law enforcement, refrains from arresting or prosecuting an offender who has committed a crime punishable by life imprisonment or death, in vonsideration of a gift or present. (id. at 3) Graft and corruption, on the other hand, refers to those acts enumerated in the Anti-Graft and Corrupt Practices Act, including receiving any gift in connection with any transaction wherein the public officer in his official capacity has to intervene under the law, or giving any private party any unwarranted benefits through manifest partiality, evident bad faith or gross inexcusable negligence. (4.) The terms “other high crimes” and “betrayal of public trust” have not been given any definitive meaning in law and jurisprudence, (1d.) 4- Quoting from the Report of the Special Committee on the impeachment of President Quirino, the eminent constitutionalist Fr, Joaquin Bernas explained that “high crimes” refer to those offenses which, like treason and bribery, are indictable offenses and are of such enormous gravity that they strike at the very life or orderly working of the government. (Joaquin G, Bernas, 8.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2009 Ed., p. 1152-1153)'The phrase “betrayal of public trust” was intended as a catch-all phrase to cover any violation of the oath of office. Commissioner de Tos Reyes, who had been responsible for the insertion of the phrase, said that it referred to all acts, even if not punishable by statute as penal offenses, which would render the officer unfit to continue in office. He enumerated betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, ete. to. the prejudice of public interest and which tead to bring the office into ThinkingPinoydisrepute. To which Commissioner Romulo —_ added obstruction of justice. (Id. at 1153) 5. in the leading case of Francisco, Jr. y. House [415 SCRA 44 2003)], the Supreme Court pronounced that: “The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a dctenmination of what constitutes an impeachable offense, Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislature. Such an inteat is clear from the deliberations of the Constitutional Commission. Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the iamers could find no better way to approximate the boundaries of betrayal of public trust and cther high erimes than by alluding to both positive and negative examples of both, without arriving at their clear ext definition o: even a standard therefor, Clearly, the issue calls upon this court to decide a non-justicizhle political question which is beyond the scope of its judicial power under Section 1, Article VIII,” 6. Iu the deliberations of the 1986 Constitutional Commission of Committee Report No. 17 of the Committee on Accountability of Pablic Officers (Resolution Proposing to Incorporate in the 1986 Constitution an Article on Accountability of Public Officers), the netare of an impeachment proceeding was exhaustively discussed: “MR. MAAMBONG. xxz J will start by asking the Committee this question: What is really the thinking of the Committee as far as impeachment proceedings are concemed? Are impeachment proceedings ccitpinal in nature or not? In order to answer this very dleatly, I would like to indicate the following: In the case of State v, Letse, 70 Nebraska 92, which is 2 United States case, the Supreme Court ruled that the proceeding is likened to a proceeding by indictment in a court of eriminal jurisdiction, its in its nature highly penal and is governed by rules cf lav applicable to criminal prosecution. On the ether hand, I would like to indicate this to the Committee thet in the case of official misconduct, we have here statements which 1 think the Committee should somment on, Offical misconduct is supposed to fall infa throe categories: One, exceeding the constitutional bounds of the powers of the office in derogation of the Powers of another branch of government; two, behaving in a manner Srossly incompatible with the proper function and purpose of the office; ThinkingPinoyand, three, employing the power of the office for an improper purpose or personal gain. The provision which we have here says: impeachment and the criminal law serve fundamentally different purpose. Impeachment is the first step in a remedial process. The process is not personal punishmen:. Its function is primarily to maintain constitational government, The general applicability of the criminal law also makes it inappropriate as the standard. In an impeachment proceeding, a President is called to account for abusing powors which only # President possesses. Impeachable conduct may include the serious iailure to discharge the affirmative duties imposed on the President by the Coustitution. Unlike a criminal case, the cause for removal may be based on his entire course of conduct in office, It may be a course of conduct more than individual acts that hes a tendency to subvert constitutional government. (Power of Impeachment ~ Guide to Congrass, p. 149) For purposes of proper elucidation, what is the thinking now of the Commitice as far as this impeachment procedure is concerned? Is this a crimine] proceeding? Ifso, we have to use the principle of criminal law, MR. ROMULO, Yes. Firstly, we agree with the quotation that the Commissioner has just read. Insofar as we are concerned, the procedure is analogous to a criminal trial but it is not « criminal prosecution per se. The goal of an impeachment is merely to remove the fellow from office for the crimes indicated. However, Section 3(6) of this proposed Article itself — and this is really very close to the provision of the 1935 Constitution — says: Judgment in cases of impeachment shell not extend further than the removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government of the Philippines, but the party convieted shel] nevertheless be liable and subject to prosecution, ‘tial and punishment according tolaw. In essence, | think that answers the Commissioner's question. He is then subject to a separate prosecution, whether civilly or criminally, for the acts that he had committed. MR. MAAMBONG. May I proceed now to two very short questions considering that we have already identified the problem and the answer is itis nota purely criminal prosecution in terms of procedure, We have here 4 statement in the bouk of Simpson which reads: A person subject to impeachment by Congress is entitled to dua process of law although presently there is little judicial authority. it can be suggested that he is also entitied to his privilege against self-incrimination, right to counsel, right to be informed of the nature and the cause of the accusation ThinkingPinoyagainst him, and the right to be confronted with adversary witnesses.’ (Treaties on Federal Impeach-nent, p. 27) Would this statement be applicable to an impeachment proceeding? MR. ROMULO, As the provisions now read, | think the Senate, as well as the House, will set up its own rules. I do not know whether or not we have to adhere to that because what the Commissioner has read, strictly spealcing, is a criminel proceeding. But the President like any citizen is entitled to the bill of rights, like confrontation of witnesses, notice of the charges and so on. I think those are fimdamental and ho is entitled to them. MR. MAAMBONG. Let us go to a bottom-line question then. When the Senate acting as a body will now try the impeachment case, will it conduct the proceeding using principles of criminal procedure? MR. ROMULO. I Go not think, strictly speaking, that it need be criminal procedures. ‘The important thing, 1 believe, is that the involved party should know the charges. He must have the opportunity to answer tho charges and the proceedings must be, in total, fair and impartial, I do not think we have to go to the minutiae of a criminal proceeding because that is not the Intention. This is not a criminal proceeding per se. MR. MAAMBONG. In the matter of resentation, for example, of. evidence, when it comes to treason and bribery, would the rules on criminal procedure be applied, considering that I am now particularizing on the ground which is punishable by the Revised Penal Ccde, like treason or bribery? MR. ROMULO. Yes, but we will notice that, strictly speaking, for the crime of treason under the Revised Penal Code, he is answerable for the crime somewhere else. So my conclusion is that obviously, it is in the criminal court where we will apply all the minutiae of evidence and proceedings and all these due processes. But we can be more liberal when it comes to the impeachment proceedings, for instance, in the Senate, because we are after the removal of that fellow, and conviction in that case really amounts to this removal from office. The courts of Justice will take care of the criminal and civil aspects, MR. MAAMBONG. Last point, just to enrich the records. I would like the Cominittee to comment on the quotation from Philippine Constitution by Fonmer Chief Justice Fernando, wherein he said: Jn the United States Constitution, the term is high crime and misdemeanors. The Philippine Constitution speaks only of high crimes, ‘There 1s support for the view that while thers need not be a showing of the criminal character of the act imputed, it must be of sufficient seriousness es to justify the belief that there was a grave violation of the trust imposed on the official sought to be impeached. (pp. 460-461)Would the Committee agree to this statement? MR. ROMULO. Yes, Let me say that essentially, impeachment is a political act.” 7. Bautista culpably violated the Constitution and/or betrayed the public trust when he failed to truthfully, accurately, or completely disclose to the public his statement of assets, liabilities and net worth as required under section 17, Article XI of the 1987 Constitution, Anti- Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards Act; he betrayed the public trust when he neglected his duties and responsibilities as head of agency, particularly in collecting and further processing of personal data, which led to unnecessary exposure of personal and sensitive information of millions of Filipinos, and obstructed justice when he cleared Smartmatic and Comelee IT specialists of any wrongdoing for the so-called script tweak during the consolidation/canvassing of results in the May 2016 election, among others. NATURE OF THE COMPLAINT 8. This is a verified complaint for the impeachment of incumbent Comelee Chairman Juan Andres D. Bautista upon the grounds mentioned below. This complaint is filed pursuant to sections 2, 3, Article XI of the 1987 Constitution. 9. This complaint is endorsed by Rep. Harry Roque, Jr. as evidenced by a copy of the Resolution of Endorsement hereto attached as ANNEX “A”, PARTIES 10. The parties in this complaint are: Complainants Jacinto V. Paras and Ferdinand S. Topacio (Complainants’, for brevity) are both of legal age, married, Filipinos, with postal address at c/o Atty. Manuelito R. Luna Law Office, Room 412 FEMII Bldg. Annex, A. Soriano, Jr. Avelue, 1002 Intramuros, Manila, where they may be served. with the processes of the honorable House of Representatives. Respondent Comelec Chairman Juan Andres D. Bautista (“Bautista’, for brevity) may be served with summons and other processes of the honorable House. of Representatives at the ThinkingPinoyOffice of the Chairman, Commission on Elections, 8 Floor Palacio del Gobernador, 1002 Intramuros, Manila. STATEMENT OF RELEVANT FACTS ui. On April 28, 2015, Bautista was appointed Comelec Chairman by President Benigno Simeon C. Aquino III, and thereafter confirmed by the Commission on Appointments. Unless sooner remove from public office, Bautista will be serving until February 2, 2922. 12. The relevant facts may be stated, thus: “On May 2, 2017, Comelee Chairman Juan Andres D. Bautista filed his Statement of Assets, Liabilities and Net Worth (SALN) as of December 31, 2017. In the said SALN, he declared assets consisting of various real properties and personal properties totaling to Php241,800,000.00, as well as lisbilities totaling to Php65,500,000.00. He declared a net worth (Total Assets less Total Liabilities) of Php176,300,000.00. Except for his business interest in the XMA Corp. - 2 holding company with offices at 32 12% Street, Quezon City — he has not declared any interest in other corporations or businesses, here and abroad. Bautista’s SALN shows thet his spouse is Patricia C, Bautista and Andres Xavier C. Bautista, Jose Mateo C. Bautista, Juan Alvaro C. Bautista and Rafael Jacobo C. Bautista, are his children,” (Certified copy of the SALN is hereto attached as ANNEX “B”) “Sometime between 20 and 27 March 2016, or before the May 2016 election, a massive personal data breach involving the Commiscion on Elections sebsite and/or data processing system transpired, and which catastrophic event was investigated molu propio by the National Privacy Commission (NPC) composed of Commissioner Raymund E, Liboro and deputy commissioners Ixy D. Patdu and Damian Domingo O. Mapa. Based on the hearings conducted, the preliminary findings were: 1. That COMELEC published a notification, which was different from the one submitted to the NPC. 2. That the NPC issued a Compliance Order dated 21 June 2016, 3. That COMELEC officials so named in the case may have violated several provisions of the Data Privacy Act: a. There are facts that tend to show that the personal data in COMELEC. database was accessed due to lack of foresight, lack of skill or an inexcusable lack of precaution. ThinkingPinoyb. There are facts that tend to show that COMELEC, as personal information controller, failed to implement reasonable and appropriate measures to protect personal data against human dangers, such as, but not limited to, unlawiul access, fraudulent misuse, unlawful destruction, alteration, and contamination; COMELEC failed to implement stricter security measures, which include: i, Removal of variables from the database that were not necessary for the COMELEC to achieve the intended purposes of the Precinct Finder and Post Finder applications; in cther words, the Drivacy and seeurity poliey did not adhere to the principles of transparency, legitimate purpose, and proportionality. 4, Adata classification process that would have allowed COMELEC to implement greater security measures; COMELEC knew or ought to have known that pursuant to Section 11 of the Data Privacy Act of 2012, data collected should be accurate, relevant, adequate and not excessive in relation to the purposes for which they are collected and processed, and retained only if necessary for the fulfillment of the pmnposes for which the data was obtained, iit, A process for identifying and accessing reasonably foreseeable vulnerabilities in its computer networks, and for taking preventive, corrective and mitigating action against data breaches. 'w. The Head of Agency is responsible for complying with socurity airangements, adhering to the most appropriate standard recognized by the information and communications technology industry. There should have been adherence to the minimus standards provided in the issuances from tho Department of Science and Technology's ICTO. ¢. There was no designaticn of an individual accountable for the organization’s compliance with the Data Privaey Act of 2012, either hy appointing a data protection officer, or by designating another employee oF official to take over that role, d. There is reason to probe further and investigate whether there is substantial evidence of the commission of a crime, and to determine the recommendation of criminal prosecution for the above-named respondents for violating Section 26 of the Data Privacy Act of 2012, nominated as “Accessing Personal Information and Sensitive Personal Information due to Negligence.” 1. There Is evidence that shows that COMELEC had been informed formally and informally that COMELEC website was not as secure as perceived. il. COMELEC did not approve requests for additional personnel, ii, There is a lack of a clear data governance policy in the processing of personal data, ThinkingPinoyiv. The website vulnerabilities and failure to monitor regularly for security breached allowed unlawful acces to COMELEC database, e. While COMELEC designeted Commissioner Parreno and Lim as “Champion” and “Vice-Champion”, respectively, for “Technological Capacity, it was not made clear at the hearings that these designations carry no duty of ditect of direct supervision over the personnel of the ITD. f. According to the COMELEC website as of June 2016, the ITD reports directly to COMELEC Executive Director Tolentino. 4, There is thus @ need to investigate the above-named respondents jointly and severally as responsible cfficials of COMELEC, acting as a Personal Information Controller. Partienlarly, there is a noed to ‘investigate the personal liability of the named respondents for Violation of Sections 1, 20, 21, 22 and 26 of the Data Privacy Act of 2012. 5. There is a need to investigate Chairman Bautista for having violated Section 22 of the Data Privacy Act of 2012. After affording the respondents’ due process, the NPC concluded that: “It is quite clear from the foregoing that there was very little to no awareness on the part of COMELEC Chairman Bautista regarding his accountability toward handling personal data, There is no documentation that shows that there were continuous efforts to increase the level of protection of personal data that was in COMELEC custody, or what other steps were taken to achieve adherence to data protection standards, as required by the Data Privacy Act Of 2012. COMELEC Chairman Bautista’s abdication of his responsibility comes into further, stark relief when placed in contrast with efforts from other personal data controllers similarly placed, As early as 2013, there were policies, initiatives, and programs for data protection in the public and private sector in response to the Data Privacy Act of 2012. COMELEC’s failure cannot pass liability. The failure of COMELEC Chairman Bautista to recognize these duties ang responsibilities under the Data Privacy Act of 2012 is an inexcusable neglect of duty punishable under Section 26 of the Data Privacy Act of 2012. Indeed, COMELEC Chairman Bautista’s acts were to be measured by standards to which ather public officers are hold, thore is ground lo eousider him culpable for several administrative offenses, xxxx COMELEC Chairman Bautista’s indifference was Manifest with his failure to consider the security implications of his programs; ITD only became relevant in his mind when considering praise given to the Department ‘or Its work on the website. The acts of COMELEC Chairman Bautista partake that of an administrative offense of gross negligence xox ThinkingPinoysoon Considering the negligence on display, the personal liability upon the Mead pf Agency imposed under Section 22 of the Data Privacy Act of 2012, and the consequent aceess to personal and sensitive information arising from the negligence of COMELEC Chairman Bautista, there is basis to hold him liable for the data breah under Section 26 of tha Data Privacy Act of 2012. NPC thus held, inter alia, that: a. The respondent Commission on Elections, as personal information controller, violated Sections 11, 20, and 21 of Kepublic Act No. 10173 (the Data Privacy Act of 2012). b. The respondent, J. ANDRES D, BAUTISTA, has violated the provisions of Section 11, 20, 21 and 22 in relation to Section 26 of Republic Act No. 1017 (the Data Privacy Act of 2012). NPC further forwards the Decision and a copy of the pettinent case records to the Secretary of Justice, recommending the prosecution of respondent J, ANDRES D. BAUTISTA for the crime of Accessing Personal Information Due to Negligence under Section 26 of the Data Privacy Act , and for its further ua.” (Certified copy of the Decision is hereto attached as ANNEX 5) ‘That is not all. Bautista obstructed justice when he cleared Smartmatie and Comelee ITD perscnnel whom the Department of Justice (DOJ) later indicted for changing the script of the transparency server in the 2016 elections. The DOs resolution which wes simed by Undersecretary Deo Mareo ordered charged in court for violating Sections 4(a)Q,(3) and (4) of Republic Act No. 10175, or the Cybercrime Prevention Act, Smartmatic technical support team bead Marlon Garcia and his subordinates Neil Baniqued and Mauricio Herrera as well as Comelec Information Technology experts Rouie Penalba, Nelson Herrera and Frances Mae Gonzales. Respondents were able to access the transparency server to change the seme without notifying the Comelee en bane “It mast be noted that the Comelee IT personnel assigned at the PPORY center had no anthority to allow any Smartmatie personnel to tweak the script of the transparency server as a result of which, the hash codes failed to match,” it stated, “The DOJ indicated that Marlon Garcia himself, admitted that he made the change in the script of the transparency server as advised ky Mauricio Herrera.” “Rouie Penalba, along with Fences Mae Gonzale and Nelson Herrera, as Comelee representatives assigned to the PPCRV Center and holding Ys of the 10 ThinkingPinoypassword to access the system, acquiesced to the access or interference effected by the Smartmatic personnel, beyond their authority,” the DOJ indicated.” “Bautista's alleged receipt of referral fees from the Divina Law Office, the counsel of Smartmatic, as revealed by the Comelec chairman’s wife Patricia Bautista, is constitutive of betrayal of public trast and/or graft and corruption warranting his impeachment. Moreover, Bautista’s assets, account deposits and business interests worth hundreds of millions, as revealed hy his wife, and which he did not disclose to the public or in his SALN as of December 31, 2016 is presumed illegally acanired, and, hence, his non-disclosure thereof is constitutive of betrayal of public trust.” Doubtless, Bautista has commited impeachable offenses and should be held to account by the House of Representatives in accordance with the Constitution and its rules, 13. This verified complaint for the impeachment of respondent Bautista ie anchored on the following GROUNDS: DISCUSSION First Ground: RESPONDENT BETRAYED THE PUBLIC ‘TRUST FOR NEGLECTING HIS DUTIES AND RESPON- SIBILITIES AS HEAD OF AGENCY, IN THAT HE FAILED TO ADOPT SAFEGUARDS AS MANDATED UNDER RA 10173, OR THE DATA PRIVACY ACT OF 2012, THAT COULD HAVE PREVENTED THE DATA BREACH OR HACKING OF THE COMELEC WEBSITE, TO THE GREAT PREJUDICE AND DAMAGE OF MILLIONS OF FILIPINOS 14. Bautista betrayed the public trust when he neglected his duties and responsibilities as head of agency, in that he miserably failed to adopt adequate safeguards as mandated under Republic Act No. 10173 or the “Data Privacy Act of 2012”, that could have prevented the data breach or hacking of the Comelec website, to the great prejudice and damage of millions of Filipinos. 15. “His lackadaisical attitude towards complying with relevant Jaws fosters a suspicion of a complete abandon of the functions and duties of a head of agency. Further, even the National Privacy Commission has aired its complaint of the difficulty as well as slow pace in obtaining documents from the Commission relevant to theit investigation. "(www.gmanetwok.com/nows/story/571138/news/nation/comel ce-commissioners-score-poll-chief-bautista-forfailure-of-leadership; visited on 4/42/2017 at 9:12PM) ThinkingPinoy16. “It need not be stressed that “personal data handling is a public trust and carries with it burden of accountability, and no amount of ignorance or legal naivete can erase that accountability,” {see Janvic Mateo's report entitled: “Agencies reminded to appoint data protection officers,” Philippine Star, 1/15/2016)] 17. “The Data Privacy Act of 2012 is about making sure those we entrust wiih our personal data are usually trustworthy by compelling them to do everything they can to protect such data.” (Id.) 48. Among the findings of the National Privacy Commission. (NPC) was that the COMELEC failed to appoint a Data Protection Officer (DPO) who would be accountable for data privacy as required bylaw. DPOs are individuals or groups of people who are accountable for the organization's compliance with the privacy law. The DPO is focused on protecting data from the time that it was collected up to storage, sharing and even destruction. {see Janvic Mateo's report entitled: “Agencies reminded to appoint data protection officers,” Philippine Star, 2/15/2016) 19. NPC commissioner Reymund Liboro warned that agencies not complying with the provision of the Data Privacy Act of 2012 on the appointment of DPO, could not escape liability. Chapter 8 of the Jaw or the Act Protecting Individual Personal Information and Communications Systems in the Government and the Private Sector and which also created the NPC, states the penalties for those violating the law. (Id) 20. “The DPO is essentially tasked to champion people’s privacy rights from within his or her organization. In so doing, the DPO is able to minimize the risks of privacy breaches, address underlying problems and reduce the damage arising from breaches if and when they do occur”. (1d.) 21. Suffice it to-say thal the massive data breach is very serious privacy violation the implicetions of which may be beyond quantification and arguably long-lasting. Hence, Bautista’s neglect of his duties and responsibilities irrefutably constitutes a betrayal of public trust, Unless he is impeached, the dictum “public office is a public trust; public officers and employees must at all times be aeconntable to the people, serve them with utmost responsibility, ThinkingPinoyintegrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives,” will be meaningless. 22. In his Concurring and Dissenting Opinion in Francisco v. House, Justice Puno traced the historical roots of impeachment which appear to have been lost in the mist of time, viz: ‘Some trace them to the Athenian Constitution. It is written that Athenian public officials were hailed to law courts known es “heliaea” upon leaving office. Tho citizens wore then given the right to charge the said officials before they were allowed to how out of office. Undoubtedly, however, the modern concept of impeachment is part of the British leeacy to the world, especially to the United States. It was originally conceived as a checking mechanism on executive excuses. It was then the on! way t hold royal officials accountable. The records reveal that the first English impeachments took place in the reign of Edward IT (1327-137). It was during his kingship that the two houses of Lords and Commons acquired some legislative powers. But it was during the reign of Henry 1V (1399-1413) that the procedure was firmly established whereby the House cof Commons initiated impeachment proceedings while the House of Lords triod the impeachment cases. Impeachment in England covered not only public officials but private individuals as well, There was hardly any Imitation to the imposable punishment, Impeachment in England skyrocketed during the period of institutional strifes and was most intense Prior to the Protestant Revolution. Its use declined when political reforms were instituted. Legal scholars are united in the view that English impeachment partekes of a political proceeding and impeachable offenses are political crimes. The history of impeachment in colonial America is scant and hardly instructive, In the royal colonies, governors were appointed by the Crown wile in the propriety colonies, they weze named by the proprietor. Their tenure was uncertain. They were dismissed for disobedience or inefficiency or political patronage. Judges were either commissioned in England or in some instances appointed by the governor. They enjoyed no security of office. The first constitution relied heavily on common law traditions and the experience of colonial government. In each state, the Constitution provided for a Chief Executive, a legislature, and a judiciary. Almost all of the Constitutions provided for impeachment. There were differences in the impeachment process in the varions states. Hven the grounds for impoachment and their penalties were dissimilar. In most states, the lower house of the legislature was empowered to initiate the impeachment proceedings. In some states, the trial of impeachment cases was given to the upper house of the legislature; in others, it was entrusted to a combination of these fora. In the national level, the 1781 Artides of Confederation did not contain any provision on impeachment. ‘Then came the Philadelphia Constitutional Convention of 1787. In crafting the provisions on impeachment, the delegates were again guided 13 ThinkingPinoyby their colonial heritage, the early state constitutions, and common law traditions, especielly the British legacy. The records show that Edmund Randolph of the State of Virginia presented to the Convention what came to be known as the Virginia Plan of structure of government. It was largely the handiwork of James Madison, Father of the American Constitution. It called for a strong national government composed of an executive, a bicameral legislature and a judiciary. The Virginia Plan vested jurisdiction in the judiciary over impeachment of national officers. Charles Pinckney of South Carolina offered a different plan, He lodged the power of impeachment in the lower house of the legislature but the right to try was given to the federal judiciary. Much of the impeachment debates, however, centered on the accountability of the president and how he should be impeached. A Committee called Committee on Detail recommended that the House of Representatives be given the sole power of impeachment. It also suggested that the Suoreme Court should be granted original jurisdiction to try cases of impeachment. The matter was farther referred to a Committee of Eleven chaired by David Brearley of New Hampshire. It suggested that the Senate should have the power to try all impeachments, witha 2/3 vote to convict. The vice president was to be ex-officio president of the Senate, except when the president was tried, in which event the Chief Justice was to preside. Gouveneur Morris explained that “a conclusive reason for making the Senate instead of the Supreme Court the judge of impeachments, was that the latter was to try the President after the trial of the impeachment, James Madison insisted on the Supreme Court and not the Senate as the impeachment court for it would make the President “improperly dependent.” Madison’s stand was decisively rejected. xxx Prof. Gerhardt points out that there are cight differences between the impeachment power provided in the US Constitution and the British Practice: First, the Founders limited impeachment only to [t]he President, Vice President and all civil Officers of the United States.” Whereas at the time of the founding of the Republic, anyone (except for a member of the royal family) could be impeached in England. Second, the delegates to the Constitutional Convention narrowed the range of impeachable offenses for public officeholders to “Treason, Bribery, or other high Crimes and Misdemeanors,” although the English Parliament always had refused to constrain its jurisdiction over impeachments by restrictively defining impeackable offenses. Third, whereas the English Honse of Lords could convict upon a bare majority, Lie delegates to the ‘Constitutional Convention agreed that in an impeachment trial held in the Senate, “no Person shell be convicted [and removed from office] without the concurrence of two-thirds of the Members Preseat.” Fourth, the House of Lords could order any punishment upon convietion, but the delegates limited the punishments in the federal impeachment process “to removal from Office, and disqualification to hold and enjoy any Office of Honcr, Trust, or Profit under the United States.” Fifth, the King could parden any person aiter an impeachment conviction, but the delegates expressly prohibited the President from exercising such power in the u ThinkingPinoyConstitution. Sixth, the Founders provided that the President could be impeached, whereas the King of England could not be impeached. Seventh, impeachment proceedings in England were considered to be criminal, but the Constitution separates criminal and impeachment proceedings. Lastly, the British provided for the removal of their judges by several means, whereas the Constitution provides impeachment as the sole political means of judicial removal xxx” (quoted in Jose Midas P, Marquez The Constitutional Philosophy of Philippine Jurieprudenes (209) at 315-918] Second Ground: RESPONDENT BETRAYED THE PUBLIC TRUST FOR NEGLECTING HIS DUTIES AND RESPONSIBILITIES AS HEAD OF AGENCY, IN THAT HE FAILED TO PROMPTLY ACT ON THE HACKING OF THE COMELEC WEBSITE ASWELL AS DECLINED TO ASSUME DIRECE CONTROL AND SUPERVISION OF THE TASK FORCE CREATED AFTER THE INCIDENT 23. Without a peradventure of doubt, Bautista betrayed the public trust for neglecting his duties and responsibilities as head of agency, in that he failed to urgently act on the hacking of the COMELEC website as well as declined to assume direct control and supervision of the Task Force created after the incident. 24. He need be told that the hacking of the COMELEC website before the 2016 National and Local Elections — wherein which the personal data of millions of voters were breached - was a scrious privacy violation or personal data breach requiring swift and decisive actions. Had he acted with utmost urgency, the damage could have been minimized. 25. As head of agency, it was incumbent upon him to assume direct control and supervision of the Task Force created to investigate the said incident. Definitely, he could not decline on the plain expediency that “he has limited information technology knowledge’, since it is within his regular functions to direct and supervise operations and administration of the poll body, including that of the Information Technology Department. So even without being prodded by his fellow Commission Members, much less tasked to do so, he nonetheless duty-bound to be steadfast in accepting such responsibility. There are no ifs and buts in this. According to Rawls, the delegation of important trusts affecting the higher interests of 15 ThinkingPinoysociety is always from various causes liable to abuse. The fondness frequently felt for the inordinate extension of power, the influence of party and of prejudice, the seductions of foreign states, or the baser appetite for illegitimate emoluments are sometimes productions of what are not unaptly termed ‘political offenses’ (Federalist, No. 5), which would be difficult to take cognizance of in the ordinary course of judicial proceeding. The involutions and varieties of vice are too many artful to be anticipated by positive law. [quoted in Dennis B. Funs, ‘The Law on the Adininistrative Accountability of Public Officers (9010) at 883] 26. Doubtless his gross neglect of duty constitutes betrayal of public trust for which he should be impeached. The report of the Committee on the Judiciary, investigating the then U.S. Attorney General (4 session, 67 Congress, House Report No. 1372. January 25, 1923) is instructive: “Tt was strongly intimated if not directly contended by several members of the committee that the Attorney General could not be impeached except for an indic-able offense. I think this view is absolutely incorrect. Impeachment is an extraordinary remedy born in the parliamentary procedure of England, and the principles which govern it have long been enyoloped in clouds of uncertainty. The practice of impeachment began in the reign of Edward the Third of England, and statutes for prosecutions for offenses of this character were first enacted in the reign of Henry the Fourth. (Id. at 884) Third Ground: RESPONDENT BETRAYED THE PUBLIC TRUST FOR OBSTRUCTING JUSTICE, HEAVING SAID PENDING INVESTIGATION THAT THE SCRIPT TWEAK WaS MERELY COSMETIC WHICH WAS IN EFFECT AN EXONERATION OF THOSE RESPONSIBLE FOR IT 27. Bautista obstructed justice for saying that the script tweak Was merely a cosmetic change which was in effect an exoneration of Smartmatic and Comelec IT specialists pending investigation, 28. Such action constitutes betrayal of public trast. The holding of the Supreme Court in Francisco, Jr. v. House, supru, is in point, viz: “The first issue goas irto the merits cf the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would requize this Court to make a determination of whet constitutes an impeachable offense, Such a 16 ThinkingPinoydetermination is a purely political question which the Constitution has left to the sound discretion of the legislature. Such an intent is clear from the deliberations of the Constitutional Commission. Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betraval of public trust, elude a precise definition, In fact, an examination of the records of the 1986 Constitutional Commission shows that the rs_coul i_no_better_way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor. Clearly, the issue calls upon this court to deride a nan-justiciable political question which is beyond the scope of its judicial power under Section 1, Article VIII.” 29. Obviously, Bautista is unworthy and undeserving of the office of Chairman, Commission on Elections, and should be impeached. No less than six Commissioners of the Commission had denounced his ‘failed leadership’ and other transgressions. Fourth Ground: RESPONDENT BETRAYED THE PUBLIC TRUST FOR FAILING TO DISCLOSE TO THE PUBLIC HIS STATEMENT OF ASSETS, LIABILITIES AND NET WORTH AS REQUIRED BY THE CONSTITUTION AND THE LAWS 30. Bautista betrayed the public trust when he failed to disclose to the public his Statement of Assets, Liabilities, and Net Worth as vequired under sec. 17, Art. XI of the 1987 Constitution, Anti-Gratt and Corrupt Practices Act (R.A. 3019), and Code of Conduct and Ethical Standards. 31. One of the reporters Nikko Dizon of the Philippine Daily Inquirer who was present in the said press conference reported on August 7, 2017 that Patricia Bautista, stated that she had discovered several passbooks as well as bank and real property documents under her husband’s name and some of his relatives that were not included in his 2016 statement of assets, liabilities and net worth (SALN}. Bautista declared a net worth of P176.3 million only in his SALN. (A video of the media interview is hereto attached as ANNEX “D”,) 32. Patricia Paz “Tish” Bautista suspected that her husband, Comelee chief Juan Andres D. Bautista might have amassed nearly W ThinkingPinoyPhpi,000,000,000.00 worth of illegally-acquired assets while serving as PCGG chairman and later, as chairman of the Comelec. Upon discovery, she submitted an affidavit on Aug. 1, five days after she sought an audience with President Duterte in Malacafiang to tell him about her discovery. In her affidavit, Patricia alleged, among others, that she was disclosing “certain information and documents that would show that Andy (Bautista’s nickname) might have had, or currently has, misdealing and corrupt practices while in government service,” “I understand that since Andy holds the position of Comelec chair, he is liable to be impeached should there exist valid and sufficient grounds to hold him in trial for an impeachable offense under Sec. 2, Article XI of the 1987 Philippine Constitution.” 33. Bautista was appointed to the Comelec by then President Benigno Aquino [II in May 2015. In 2010, Aquino II named him chair of the Presidential Commission on Good Government. Nikko Dizon further reported that Patricia mentioned other pieces of information which she disclosed to Mr. Duterte and the NBI, which were not in Bautista’s SALN. They are as follows, to wit: +35 Luzon Development Bank (LDB) passbooks with a total balance of P329,220,962 + A foreign currency account with Rizal Commercial Banking Corp. RCBC) with $12,778.30, or P640,959-53 (at P50.16 [as of Aug. 4] to $1.00) * An RCBC peso account with P257,931.60 + An HSBC account with HK$948,358.97 or P6.10 million (at P6.43 to HK$1.00) +A condominium unit in One Bonifacio High Strect at Bonifacio Global City (BGC) in Taguig City + A.condo unit in The District in San Francisco, California 34. Patricia said that except for two adjoining condo units in Pacific Plaza Towers at BGC in Taguig City, the family home, she was not aware of the 13 other real properties listed in her husband's SALN. ThinkingPinoy35. She also said that she discovered investments abroad “in the form of his interests in corporations and loan agreements” that were not declared in his SALN to wit: + Zauman Enterprises Ltd., a company established in the British Virgin Islands on Sept. 29, 2010; a trustee company that Sautista set up with Bank of Singapore. + Mantova International Itd., established in Brunei Darussalam on April 26, 2011. + Mega Achieve Inc, established in Anguilla, a British overseas ierritory in the Caribbean, on July 15, 2014. 36. Sec. 17, Art. XJ of the 1987 Constitution provides that: “A public officer or employee shell, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Cominissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in Uic manner provided by law.” 37. It is crystal clear that Bautista illegally acquired these assets es they are disproportionate to his salary as a public official: besides, his non-reporiing of the same in his SALN further lends credence to the allegations that they are ill-gotten. 38. Patricia’s disclosures may be verified from the National Bureau of Investigation (NBD, Anti-Money Laundering Council (AMLC), Bureau of Internal Revenue, Register of Deeds, as well as other government offices through compulsory processes to be issued by the House of Representatives. 39- Copies of other documents are hereto collectively marked as ANNEX “E”, 19 ThinkingPinoyBAUTISTA, BY HIS OWN ADMISSION, HAD RECEIVED REFERRAL FEES FROM. THE SMARTMATIC, THE LARGEST TECH- NOLOGY PROVIDER OF THE COMELEC, THROUGH THE DIVINA LAW OFFICE 40. Bautista, by his own admission, had received referral fees from the Smartmatic, the largest technology provider of the Comelec, through the Divina Law Office. 41. Such receipt of referral fees is tantamount to indirect bribery under the Revised Penal Code and constitutes a violation of See. 3(b), (©), RA go1g. (Copy of the Affidavit of Patricia Bautista hereto altached as ANNEX “E-2”, is made an integral part hereof by way of reference.) 42. In conclusion, complainants wouLd like to quote from Sir Walter Raleigh who, in his seminal work “The Mutability of Human Affairs, 1616, wrote: “For ihere is no man so assured of his honor, of his riches, health, or life but that he may be deprived of either, or all, the very next hour or day to come.” WUEREFORE, premises considered, it is respectfully prayed that this complaint be given due course and that respondent Comelec Chairman Juan Andres D. Bautista be impeached by the House of Representatives and tried by the Senate sitting as an impeachment court, Quezon City, August 23, 2017. 20 ThinkingPinoyAssisted hy: Zo i Sass Api MANCELATO R. LUNA COunsel for the Complainants Rm. 412 FEMI] Bldg. Annex A. Soriano, Jr. Avenue, 1002 Intramuros, Manila TBP No. 755876; Issued on Oct, 10, 2016 (for 2017) at Zambasulta Chapter, Z.C. PTR No. 1407297; Issued on Jan. 10, 2017 at ZC. MCLE No. V-0008706 attymanuelito_luna@yahoo.com VERIFICATION We, JACINTO V. PARAS and FERDINAND S. TOPACIO, both of legal age, married, Filipinos, with postal address at ¢/o Atty Manuelito R. Luna Law Office, Rm. 412 FEMI Bldg. Annex, A. Soriano, Jr. Avenue, 1002 Intramuros, Manila, after having been sworn to an oath in accordance with law, do hereby depose and state: That we are the Complainants in the above-entitled Verified Complaint for inpeachment; ‘Thal we have caused the preparation of the said complaint; That we have read and understood the same, and the allegations thereof are true of our knowledge and belief and on the basis of our reading and appreciation of documents and other records pertinent thereto. IN WITNESS WHEREOF, we have hereunto set our hands this 23"' day of August, 2017 at Quezon City. a ThinkingPinoyVERIFICATION We, JACINTO V. PARAS and FERDINAND S$. TOPACIO, both of legal age, married, Filipinos, with postal address at c/o Atty. Manuelito R, Luna Law Office, Rm. 412 FEMII Bldg. Annex, A. Soriano, Jr. Avenue, 1002 Intramuros, Manila, after having been sworn to an cath in accordance with law, do hereby depose and state: That we are the Complainants in the above-entitled Verified Complaint for Impeachment; That we have caused the preparation of the said complaint: That we have read and understoad the same, and the allegations thereof are true of our knowledge and _ belief and on the basis of our reading and appreciation of documents and other records pertinent thereto. IN WITNESS WHEREOE, we have hereunto set cur hands this 23" day of August, 2017 at Quezon City. eh a OV. PARRS C L/ é G SUBSCRIBED AND August, 2017 at Quezon City. ThinkingPinoySUBSCRIBED AND SWORN to before me this 23" day of August, 2017 at Quezon City. ThinkingPinoy 22