Ex-SC justice suggests a way to force action vs graft
Following the call made by President Marcos for the public to report faulty, graft-ridden infrastructure projects, a former Supreme Court (SC) justice is proposing a way for ordinary citizens to directly sue government officials if state prosecutors fail to act within 60 days.
Adolfo Azcuna said the Supreme Court should consider revisiting the writ of qui tam, a legal concept from old English law where a private person can sue on behalf of the government for violations—usually fraud—committed by companies and individuals, and later get a share of the money recovered.
In an interview on Friday, Azcuna said he thought of the writ as a solution that private individuals or civil society groups could use to help curb corruption.
“Our democracy is threatened by corruption by public servants and officials. The government keeps borrowing and borrowing to finance its activities but we are told that most of this mounting debt goes to corruption, as much as 60 percent in the case of the multi-billion flood control projects,” he added.
In the remedy he suggested, a citizen who has evidence of corruption can file a petition for a writ of qui tam by first notifying the secretary of justice of his or her intention and then submitting supporting details.
Miriam’s 2013 bill
“If the secretary does not (take action) in 60 days from receipt of the notice, the private citizen can directly file the suit in court himself or herself. A small percentage of any amount of ill-gotten wealth recovered is to be awarded to the private citizen as part of a favorable judgment,” he said.
The retired magistrate, who was also one of the framers of the 1987 Constitution, said the practice is known in the United States as ex rel litigation, where the citizen is allowed to sue as a relator for and on behalf of the government.
At present, the Constitution recognizes only five types of writs: habeas corpus, mandamus, quo warranto, prohibition, and certiorari.
There were past attempts by legislators to introduce the writ of qui tam into the Philippine legal system. Among them was the late Sen. Miriam Defensor Santiago, who in the 13th and 16th Congresses filed a bill that adopts the provisions in the US False Claims Act.
In her explanatory note for the bill, which she filed in 2013, Santiago said the US law had proven to be an effective tool against all types of financial fraud—including corruption—committed against the government, as it encouraged individuals, including current or former employees, a contractor or a hospital patient, to report wrongdoing.
SC can do it by itself
Azcuna said the writ can be also adopted by the SC in the exercise of its rule-making powers.
“No need for Congress to pass a law to provide for such a writ. The Supreme Court can do it,” he told the Inquirer, explaining the power given to the high tribunal under Article VIII, Section 5 of the Constitution.
“The Supreme Court can call for a national consultative summit on the adoption of remedies to fight corruption, and consult with all public and private sectors concerned before adopting the writ and any other appropriate remedies,” he added.
As for Congress, he said, it could amend the antigraft law to provide for presumptions of ill-gotten wealth in cases “where it is proven that one’s assets exceed one’s lawful income, and rendering the excess subject to interim sequestration until and unless the (public) official proves that (the wealth was) lawfully acquired.”
“This does not violate the presumption of innocence,’’ he added. “It merely shifts the burden of going forward with the evidence once the prosecution proves the discrepancy between assets and earnings.”
