Decision to Honor Debts

an Executive Call

Indubitably, former President Corazon C. Aquino's decision to honor the outstanding debts of the Republic at the time she assumed the presidency was a policy matter well within her prerogative. It was purely an executive call; hence, beyond judicial scrutiny. The Petition has failed to show grave abuse of discretion that would warrant judicial intervention. I agree with the ponencia of the distinguished Mr. Justice Dante O. Tinga: not only was the act of President Aquino impliedly granted via her vast executive powers; it was also explicitly authorized under Section 20[1] of Article VII of the Constitution.

No Evidence Supporting Criminal or

Administrative Charges Against Respondents

For the above reasons, neither can respondents be faulted for drawing up and implementing the Philippine Comprehensive Financing Program for 1992 (Financing Program'). The Program was a product of the 'negotiated-oriented debt strategy adopted by the Aquino government.[2] Likewise, the assailed debt relief agreements were executed pursuant to that constitutional executive policy.

In addition to questioning respondents' authority to execute the subject agreements, petitioners also claim that several foreign loans that were allegedly fraudulent (if not void for being contrary to public policy) were among the public debts assumed by the government and made eligible for restructuring under the Financing Program. Specifically, they contend that those debts included 14 loans assumed by the government, but which the Commission on Audit (COA) had found to have been contracted or guaranteed fraudulently by former President Ferdinand Marcos and/or his cronies.[3]

Allegedly, by borrowing new money to liquidate those fraudulent or 'behest loans, the country's right to repudiate them were thereby waived by respondents. Thus, the filing of administrative and criminal charges against them are being sought by petitioners. Understandably, the ponencia does not address this argument, because the Petition has failed to substantiate the charges.

A proper resolution of these claims obviously necessitates, inter alia, a review of the assailed contracts. Petitioners have failed, however, to furnish this Court certified copies of the questioned debt-relief agreements. Hence, the Court has no valid basis to determine whether among the public debts assumed and refinanced by the government was any of the fraudulently contracted foreign loan. It is a hornbook rule that whoever alleges the fraud or invalidity of a public document has the burden of proving the allegation with clear, convincing and more than merely preponderant evidence.[4] Unfortunately, absolutely no proof has been offered in the present Petition.

At bottom, a determination of the validity of petitioners' allegation requires a review of factual matters. Certiorari seeks only to correct errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction.[5] It has often been repeated that the Supreme Court is not a trier of facts.[6] Since factual bases were needed, petitioners could have initially filed their Petition in the lower courts,[7] which had concurrent jurisdiction over the subject matter and which were better equipped to conduct a firsthand examination of factual evidence in support of their allegations.

Besides, as respondents stated in their Comment, 'most of the loans covered by the agreement have not yet been the subject of judicial scrutiny as to their validity. Until annulled by proper court decree, such debts continue to be outstanding obligations of the Republic.[8] Unless voided by the courts, the loan contracts are presumed valid.[9] Moreover, unless they themselves are proven to have participated in corrupt or unlawful acts in obtaining the loans, respondents should not be held criminally liable for the allegedly fraudulent contracts entered into by their predecessors in office. As it is, the Petition does not even allege that any of them had any role in the execution of any of the 14 loans reported by COA to be fraudulent.

Thus, I believe that under the circumstances, and insofar as it seeks an order from this Court to have respondents investigated for any administrative or criminal culpability in relation to the execution of the questioned contracts, the Petition cannot be granted. As I said earlier, no evidence at all has been proffered to warrant such order.

Let me hasten to state, though, that nothing here should preclude the Department of Justice (DOJ) or the Office of the Ombudsman (OMB) from initiating an investigation regarding the 14 loans reported by the COA to have been fraudulently contracted during the Marcos regime.

Criminal Prosecution Proper

When There Is Sufficient Evidence

Relevantly, may I add that PCGG v. Desierto, [10] which I had the honor of writing for the Court, had directed the OMB to file the necessary criminal charges against Herminio T. Disini in relation to the awarding of the Philippine Nuclear Power Plant (PNPP) project, which is also mentioned in the present case. The Court found that, contrary to the OMB's findings, there was sufficient evidence establishing a probable cause for the filing of charges against Disini, who 'had capitalized, exploited and taken advantage of his close personal relations with the former President x x x [and had] requested and received pecuniary considerations from Westinghouse and Burns & Roe, which were endeavoring to close the PNPP contract with the Philippine government.

Included in the records of that case were Affidavits of key witnesses and various documents supporting the charges of corruption, bribery and other unlawful acts committed during the negotiation for and execution of the PNPP Contract.

The point is that this Court cannot order the prosecution of anyone unless probable cause is shown, as it was in PCGG v. Desierto. [11]

WHEREFORE, I vote to DISMISS the Petition.

ARTEMIO V. PANGANIBAN

Associate Justice