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Friday, September 8, 2017

Andy Bautista exit more likely after Hontiveros kidnapping stunt

By RJ Nieto (Thinking Pinoy"

In yesterday's "The Kidnapper-Senator Risa Hontiveros", I explained how Senator Risa Hontiveros is criminally liable for violating, among others, the law against kidnapping and serious illegal detention. Save for the usual dilatory tactics associated with moneyed defendants, I expect a pretty speedy trial, as the elements of the crime can be very easily proven.

But the ramifications of Hontiveros'audacity extends beyond the confines of the courtroom, as her stupidest move yet come with blowbacks that her tiny brain was unable to foresee.

But before we go to that, let's first discuss the impeachment case against the embattled Comelec chair.

The Andy Bautista Impeachment Case

Two impeachment cases have so far been filed against embattled Comelec Chair Andres "Andy" Bautista. The first one, from Atty. Oliver Lozano, will not go far because he's basically a "serial nuisance filer", as he has filed (usually frivolous) impeachment cases against every president since the 1990s (Star). With that said, I doubt that there'd be a congressman willing to endorse it.

The second one filed yesterday by Rep. Jacinto Paras and Atty. Fernando Topacio, however, was endorsed by House Deputy Speaker Gwen Garcia, Kabayan Party-list Rep. Harry Roque, and Rep. Abraham Tolentino of Cavite (CNN).

Yes, the second one is a go.

The second complaint cited five grounds for impeachment (GMA):

  1. Betrayal of Public Trust for failing to implement the Data Privacy Act of 2012 that led to the Comeleaks incident, the biggest data breach incident in history (NPC), where confidential information about tens of millions of voters were leaked for everyone to see.
  2. Betrayal of Public Trust for declining to assume direct control of the task force created after the Comeleaks incident.
  3. Betrayal of Public Trust for saying the "n" modification is merely cosmetic in nature, effectively attempting to exonerate those responsible for it.
  4. Betrayal of Public Trust for filing incomplete SALNs.
  5. Bribery for receiving commissions from the Divina Law office.

Evaluating the Grounds

The first two grounds have been extensively discussed in a National Privacy Commission press release dated 05 January 2017 (NPC), part of which reads:

"The willful and intentional disregard of his duties as head of agency, which he should know or ought to know, is tantamount to gross negligence. A team of agency making his acts depend on the recommendations of the Executive Director or the Information Technology Department amplifies the want of even slight care…"

The third ground, meanwhile, has been extensively discussed in the 13 May 2016 article "BBM vs Leni: Comelec.Smartmatic gives Sec. Abaya a run for his money".

The fourth ground, or betrayal of public trust when Bautista under declared his assets, is well-ensconced in the "Corona Doctrine", as established when former Chief Justice was removed from office for committing pretty much the same offense.

The fifth ground - bribery through the receipt of commissions from Divina Law - is a bit shaky. I have to see the actual complaint first to see if it has any chance of succeeding.

Hurdling the Lower House

Truth be told, I think that Congress may as well forget about the first, second, third, and fifth ground, as the fourth ground - SALN under declaration - is more than enough to convict Bautista. Surely, P50 million in bank deposits declared in his SALN is way below the P330 million that Bautista's wife Patricia discovered.

And even if Bautista, by some accounting miracle, manages to escape that one, the undeclared real properties are also enough to kick him out.

I have good reason to believe that the impeachment complaint will simply breeze through the House of Representative. While some camps may argue that the supposed "supermajority" is mostly composed of political turncoats, we have to remember that a verified impeachment complaint need only gather the signatures of a third of the Lower House.

That is, it's pretty easy to get 100 signatures from the 290-or-so congressmen, especially since 121 of these congressmen belong to the administration's PDP Laban Party. With 100 signatures, an endorsement by the House Justice Committee would be unnecessary, and the articles of impeachment will be automatically transmitted to the Senate for trial.

The question, however, is whether Andy will be convicted in a Senate impeachment trial, or not.

More on that later.

Comelec commissioners react

Several hours after the endorsement of the impeachment complaint, the Comelec Commissioners released a resolution requesting Bautista to file a leave or resign (CNN). The problem, however, is that Bautista cannot possibly do either.

If Bautista files a leave of absence, the remaining commissioners can do whatever they want without Andy's meddling: they can file a resolution that will finally ban Smartmatic from Philippine soil, or give some attention to Nelly Villafuerte's 2013 complaint against Leni Robredo or even conduct an internal investigation on Andy Bautista's corruption and his alleged connivance with Divina Law.

Meanwhile, if Bautista resigns, then he will lose his partial immunity from suit, exposing him to a barrage of graft cases that he will have to battle for the rest of his life.

But like what I've said in a previous section, the Corona Doctrine virtually ensures impeachment in the Lower House and a conviction in the Senate for Bautista, so it appears that Andy has no way out.

Well, not really.

Risa foils Andys Strategy

Andy's problem, however, is that Senator Risa Hontiveros may have inadvertently ruined his strategy.

My lawyer-friends and I are confident that prosecutors can easily find probable cause for charges of kidnapping with serious illegal detention against Hontiveros, especially since the parents of not one but BOTH of the underage witnesses are demanding custody of their children.

And what comes after probable cause? A warrant of arrest and unfortunately for Hontiveros, kidnapping with serious illegal detention is a non-bailable offense (People vs Trestiza, G.R. No. 193833) so she can't buy her way out of it.

A conviction is not even necessary at this point: all that's needed is detention without bail.

Thus, a kidnapping with serious illegal detention case, if filed against Hontiveros, will land her a spot in the PNP custodial center, beside incarcerated Senators Estrada, Revilla, and de Lima. And just like de Lima, detention will prevent her from participating in Bautista's impeachment trial.

With Hontiveros down, the total number of senator judges will be reduced from 22 to 21, so that a two-thirds majority will be reduced from 15 to just 14.

But recalling the previous section, we already have 14 senators who will almost certainly vote to convict, right? Yes, Andy may still have seven allies, but ail only 21 senator judges, seven acquit votes are not enough: Andy will still get removed from office.

Senator Risa Hontiveros, thank you for you stupidity. (TP)

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