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7/30/2019 Neutral View

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Last Clear Chance, My Foot! (Enough SenatorSantiago, Please)February 15, 2012 Last clear chance is a doctrine in torts law wherein a plaintiff can recover

damages from defendant even if the plaintiff was the one negligent if he canshow that the defendant had the last clear opportunity to avoid the accident.

Example: Driver ‘A’ was drunk and was zigzagging on the road. Driver ‘B’was on the same road driving opposite the drunk driver and had observedclearly ahead that Driver ‘A’ was zigzagging.

Driver ‘B’ could have avoided the collision between his car and the car of thedrunk driver by swerving on the safe side of the road and stop his car butinstead he drove casually and collided with the car of the drunken driver.

The law will allow the drunken driver (Driver ‘A’) to recover his damagesfrom Driver ‘B’ due to the collision because of the doctrine of “last clearchance.”

Can that tort law principle be exported as a constitutional law doctrine? Anylaw student you ask will tell you No! because it is not a constitutional lawprinciple but a tort law principle.

But even assuming the principle of “last clear chance” will apply, theSupreme Court has the last clear chance to avoid this ‘constitutionalaccident.’ It was in this case, Driver ‘B’ and not Driver ‘A’.

The Senate had already subpoenaed the bank to bring all the records of CJCorona’s peso and dollar deposits.

The Supreme Court was aware of the alleged ‘illegality’ of the Senate’spursuit of the dollar accounts of CJ Corona. This ‘illegality’ was equivalent tothe drunk driver ‘A’ zigzagging on the road. The Court instead of avoidingthe collision by stopping its car on the safe side of the road had choseninstead to drive directly into the collision path with Driver ’A', the Senate, byentertaining the TRO petition by the bank. This ‘constitutional accident’ wasthe fault of the Supreme Court.

So Santiago was wrong on her analogy of the the doctrine of ‘last clearchance.’

But this is not all. The minority in the Supreme Court said, the law onsecrecy on foreign currency deposit was meant to encourage foreigninvestors to put their money in Philippine Banks and CJ Corona was not aforeign investor and clearly the chief justice was not a member of the classwhich the law seeks to protect.



Further the minority said that the law cannot be used as a shield to concealmalfeasance and other misconduct – while the majority position creates anatmosphere of impunity and makes the banking system a safe haven forcrooks.

Along the foregoing view, the Senate was the equivalent of Driver ‘B’ whoseeing Driver ‘A’ zigzagging on the road, opted to avoid the errant car byswerving on the safe side of the road, but Driver ‘A’ represented by theSupreme Court, purposely rammed its car on driver ‘B’ with its car filled withconstitutional arrogance and perversion of the laws of the land.

Senator Santiago would blame the Senate which was acting prudently inannouncing to the whole world that the Senate will open the dollar account of CJ Corona as an exception to the law on secrecy of foreign currency depositinstead of blaming the Supreme Court by driving directly into the collissionpath with the Senate by issuing a TRO on the petition by PSBank. The SCwas the immediate cause of the collision and not the Senate. It precipitatedthis ‘constitutional accident’ which Miriam Santiago described as a’constitutional crisis.’

Let us by the way, observed how Senator Santiago went on a tantrum spreeon Valentine’s Day. She insulted again the prosecution, especially ProsecutorRudy Farinas for foisting fraud on the court in submitting unverified bankrecords of CJ Corona.

She cited two cases where the SC subjected two lawyers for administrativediscipline because one lawyer knowingly submitted fake documents for theconsideration of the court, while the other not knowing it was fake, but

submitted it to the court nonetheless. Both were disciplined but a lesserpenalty was imposed on the later.

A day before, Santiago castigated Prosecutor Neil Tupas, Jr., for citing casesnot in “all fours” with the case at bar. She would want the cases cited bythe prosecution to be exactly identical with the case at bar, (in all fours) theimpeachment case. But because this is the only case of impeachment againsta jurist that had been brought so far to the Senate, it was impractical to cite acase ‘in all fours’ with this case. The prosecution was arguing by parity of reasoning that if the SC can provide an exemption from the coverage of absolute secrecy of foreign deposits ‘in the interest of justice’ (Salvacionrape case) the impeachment court can do so by considering the dollar

deposits of Corona as an exception to the absolute secrecy of dollar deposits.Senator Peter Cayetano made a succinct analogy: ‘corrupt officials hidingtons of money in midst of poverty of the people are considered mass rapists.’( or words to that effect).

The Senate agreed with the position of the prosecution and thus SenatorEnrile issued the subpoena for the alleged dollar accounts of CJ Corona.

Now where is the ‘in all fours’ principle which Senator Santiago wants to



devote supreme fealty with? The prosecution was simply asking for asubpoena on the unverified accounts of Corona. Asking of subpoena on goodfaith assumption that they could truly exist from the banks is entirelydifferent from submitting ‘fake documents’ to the court by the lawyers citedby Santiago. Nothing was being submitted yet to the court. As Justice Cuevassaid, the evidence will only be considered part of the records of the Senateonce it is offered and accepted by the Senate.

Anyway, this is one of those Santiago’s patented tirades in the Senate. I washoping she chokes from her acerbic language she spews to some honorablemembers of the prosecution, especially Congressman Rudy Farinas who triedhis best to observe decorum and politeness on the floor.

Regrettably, Santiago does not belong in the Senate. She belongs in thegutter of vicious politics she abhors, which paradoxically enough, she appearsto be its undisputed champion!

The request of Congressman Farinas for unverified records of bank accountsof CJ Corona is similar to the right of the Ombudsman to act on unverified andeven anonymous complaint of anyone against a public official suspected of graft and corruption. There is no violation of due process here because thelaw allows it and the official concerned is free to dispute therecords/complaint. This is not equivalent to submitting fake records beforethe Senate and could not be considered as foisting fraud before the court.

The ombudsman handbook provides:

Can an anonymous complaint be acted upon by the Ombudsman?

Yes. However, a complaint which does not disclose the identity of thecomplainant will be acted upon only if it merits appropriate consideration, orcontains sufficient leads or particulars to enable the taking of further action

Basis: Sec. 26, par. 2) Ombudsman Act of 1989, RA 6770: “The Office of theOmbudsman shall receive complaints from any source in whatever formconcerning an official act or omission. It shall act on complaint immediatelyand if it finds the same entirely baseless, it shall dismiss the same and informthe complainant of such dismissal citing the reasons therefore.”

There is too much rhetoric in the Senate to regale and mislead the public.Last clear chance my foot… Enough Senator Santiago, Please!

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