Last Clear Chance, My Foot! (Enough Senator Santiago, Please)

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 can show 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 observed clearly ahead that Driver ‘A’ was zigzagging.  

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

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

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

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

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

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

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

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

Further the minority said that the law cannot be used as a shield to conceal malfeasance and other misconduct – while the majority position creates an atmosphere of impunity and makes the banking system a safe haven for crooks. 

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

Senator  Santiago would blame the Senate which was acting prudently in announcing 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 deposit instead of blaming the Supreme Court by driving directly into the collission path with the Senate by issuing a TRO on the petition by PSBank.   The SC was the immediate cause of the collision and not the Senate.  It precipitated this ‘constitutional accident’ which Miriam Santiago described as a ‘constitutional crisis.’

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

She cited two cases where the SC subjected two lawyers for administrative discipline because one lawyer knowingly submitted fake documents for the consideration of the court, while the other not knowing it was fake, but submitted it to the court nonetheless.  Both were disciplined but a lesser penalty was imposed on the later. 

A day before, Santiago castigated Prosecutor Neil Tupas, Jr., for citing cases not in “all fours” with the case at bar.   She would want  the cases cited by the prosecution  to be exactly identical with the case at bar, (in all fours)  the impeachment case. But because this is the only case of impeachment against a jurist that had been brought so far to the Senate, it was impractical to cite a case ‘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’  (Salvacion  rape 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 hiding tons 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 Senator Enrile 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 a subpoena on the unverified accounts of Corona. Asking of subpoena on good faith assumption that they could truly exist from the banks is entirely different from submitting ‘fake documents’ to the court by the lawyers cited by Santiago. Nothing was being submitted yet to the court.  As Justice Cuevas said, the evidence will only be considered part of the records of the Senate once it is offered and accepted by the Senate. 

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

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

The request of Congressman Farinas for unverified records of bank accounts of CJ Corona is similar to the right of the Ombudsman to act on unverified and even anonymous complaint of anyone against a public official suspected of graft and corruption.  There is no violation of due process here because the law allows it and the official concerned is free to dispute the records/complaint. This is not equivalent to submitting fake records before the 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 the complainant will be acted upon only if it merits appropriate consideration, or contains 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 the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission. It shall act on complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the 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!