Saturday, December 31, 2011

QUESTIONS FOR THE SENATE AS JURY

QUICK QUESTIONS FOR THE SENATE AS JURY
Joaquin G. Bernas, S.J.
By constitutional mandate the Senate is the judge in an impeachment case. Let me propose some questions arising from a summary of the charges filed by the House of Representatives. I believe the Senate will ponder these after it has determined that that the complaint was properly verified.

I. RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS TRACK RECORD MARKED BY PARTIALITY AND SUBSERVIENCE IN CASES INVOLVING THE ARROYO ADMINISTRATION FROM THE TIME OF HIS APPOINTMENT AS SUPREME COURT JUSTICE WHICH CONTINUED TO HIS DUBIOUS APPOINTMENT AS A MIDNIGHT CHIEF JUSTICE AND UP TO THE PRESENT.
a. I too opposed the exercise of the appointing power during the two month prohibited period. But the Supreme Court decided otherwise. May the Senate review the Court’s decision?
b. Is it illegitimate to assume that the votes of Corona represented independent judgment?

II. RESPONDENT COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST WHEN HE FAILED TO DISCLOSE TO THE PUBLIC HIS STATEMENT OF ASSETS, LIABILITIES, AND NET WORTH AS REQUIRED UNDERSEC. 17, ART. XI OF THE 1987 CONSTITUTION.
a. The command on making assets and liabilities public is qualified by the clause “in the manner provided by law.” Is there a law providing the manner and did Corona violate it?
b. Alternatively, if there is no law applicable specifically to the judiciary, may Corona follow instead the manner prescribed in Resolutions of the Supreme Court before him? (Which I am told he does regularly.)
c. What evidence will be presented on the alleged illegally acquired property?

III. RESPONDENT COMMITTED CULPABLE VIOLATIONS OF THE CONSTITUTION AND BETRAYED THE PUBLIC TRUST BY FAILING TO MEET AND OBSERVE THE STRINGENT STANDARDS UNDER ART. VIII, SECTION 7 (3) OF THE CONSTITUTION THAT PROVIDES THAT [A] MEMBER OF THE JUDICIARY MUST BE A PERSON OF PROVEN COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE IN ALLOWING THE SUPREME COURT TO ACT ON MERE LETTERS FILED BY A COUNSEL WHICH CAUSED THE ISSUANCE OF FLIP-FLOPPING DECISIONS IN FINAL AND EXECUTORY CASES; IN CREATING AN EXCESSIVE ENTANGLEMENT WITH MRS. ARROYO THROUGH HER APPOINTMENT OF HIS WIFE TO OFFICE; AND IN DISCUSSING WITH LITIGANTS REGARDING CASES PENDING BEFORE THE SUPREME COURT.
a. Is the flip-flopping of the Court in collegial decisions attributable to Corona alone or to a body struggling to arrive at justice? Did Corona himself flip-flop?
b. Is the Court prohibited from modifying prior decisions or doctrines?
c. When and by whom was Mrs. Corona appointed to John Hay Management Corporation? Is a husband obliged to compel his wife to turn down an appointment? Or did he try to dissuade her at all? Or was he overruled by the wife?
d. Can a husband be made answerable for acts of the wife?
e. Will Justice Carpio be asked to testify about the alleged lobbying about pending cases?

IV. RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION WHEN IT BLATANTLY DISREGARDED THE PRINCIPLE OF SEPARATION OF POWERS BY ISSUING A STATUS QUO ANTE ORDER AGAINST THE HOUSE OF REPRESENTATIVES IN THE CASE CONCERNING THE IMPEACHMENT OF THEN OMBUDSMAN MERCEDITAS NAVARRO-GUTIERREZ.
a. What can be made of the fact that the status quo ante order was a resolution of eight justices? How did Corona vote on the later reversal of the status quo ante order?

V. RESPONDENT COMMITTED CULPABLE VIOLATIONS OF THE CONSTITUTION THROUGH WANTON ARBITRARINESS AND PARTIALITY IN CONSISTENTLY DISREGARDING THE PRINCIPLE OF RES JUDICATA AND IN DECIDING IN FAVOR OF GERRY-MANDERING IN THE CASES INVOLVING THE 16 NEWLY-CREATED CITIES, AND THE PROMOTION OF DINAGAT ISLAND INTO A PROVINCE.
a. Were not the League of Cities case and the Dinagat case collegial decisions upholding acts of Congress? Were the laws involved statutory responses of Congress to the people as “master” as against greed of the League of Cities?
b. Was not the FASAP decision also collegial?
c. Is the Supreme Court powerless to look into the activities of its members (e.g, plagiarism) especially if it involves things that might affect the reputation of the Court?
d. Was not the creation of new districts in Camarines Sur done by Congress, the representative of the people?
e. Who decides the application of the principle of proportionality (or “one man, one vote”) in the size of districts?

VII. RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS PARTIALITY IN GRANTING A TEMPORARY RESTRAINING ORDER (TRO) IN FAVOR OF FORMER PRESIDENT GLORIA MACAPAGAL-ARROYO AND HER HUSBAND JOSE MIGUEL ARROYO IN ORDER TO GIVE THEM AN OPPORTUNITY TO ESCAPE PROSECUTION AND TO FRUSTRATE THE ENDS OF JUSTICE, AND IN DISTORTING THE SUPREME COURT DECISION ON THE EFFECTIVITY OF THE TRO IN VIEW OF A CLEAR FAILURE TO COMPLY WITH THE CONDITIONS OF THE SUPREME COURT'S OWN TRO.
a. The constitutionality of the restriction on the right to travel through DOJ Circular on HDOs is pending before the Court with the decision expected after New Year. Should the Senate preempt the SC decision?
b. What is the import, if any, of the existence of a House Bill and a Senate Bill disempowering the DOJ?
c. The continuing effectivity of the TRO has been affirmed by the Supreme Court. What power does the Senate have over it?

VIII. RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED GRAFT AND CORRUPTION WHEN HE FAILED AND REFUSED TOACCOUNT FOR THE JUDICIARY DEVELOPMENT FUND (JDF) AND SPECIAL ALLOWANCE FOR THE JUDICIARY (SAJ) COLLECTIONS.
a. Involved in this is the interpretation of the extent of fiscal autonomy of the Court. What is the jurisprudence on this? Will the Senate apply or depart from existing jurisprudence on the subject?

Saturday, December 24, 2011

DEATH OF TRUTH COMMISSION AS ORIGINAL SIN

DEATH OF THE TRUTH COMMISSION AS ORIGINAL SIN
Joaquin G. Bernas, S.J.
Was the invalidation of the Truth Commission really the original sin of the Supreme Court which has impeded the President’s campaign against corruption? I took a second look at the decision. If the President had read it with an open mind, he would have found that his speech writers and advisers may have given him the wrong signal about the impact of the court’s decision.
The fact is that, when the report on the death knell on the Truth Commission was rung by the Supreme Court, there was no lamentation in the Palace. A Palace spokesman simply said in a matter of fact way that the Palace accepted the decision.
My colleagues and I were not surprised by such reaction. One main reason for creating the Truth Commission, after all, was the obvious Palace and public perception that the Office of the Ombudsman could not be relied upon to pursue a campaign of walang corrup, walang mahirap. And so indeed the President’s allies would relently go after the Ombudsman and they could rely on a vast majority in House of Representatives only too ready to satisfy the President’s wishes. With the departure of the former Ombudsman, the urgency of a Truth Commission would disappear.
As a matter of fact, moreover, under the terms of the original Supreme Court decision, the Palace could have rescued the Executive Order by minor amendments to make it conform with what the Court wanted. The Court was not asking for too much. All it was asking for was a textual expression in the law that it would not exclusively target the past administration. The Court’s desire for a clear sign of equal protection did not exclude the possibility of giving priority to what had transpired during GMA’s time
As the Court emphasized: “Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution.” All that was needed was a little tweaking as suggested by the Court itself. (I myself did not think that tweaking would be necessary.)
The Palace, however, believed that it did not need a Truth Commission and therefore chose to let it die. My impression is that the government’s motion for reconsideration was filed half-heartedly. Hence, the defeat was unlamented by the Palace. Why so? Because, aside from the fact that the Palace was looking toward a new Ombudsman, the decision was in fact an affirmation of the legality of the Palace’s determination to pursue a campaign against graft and corruption.
The decision, very importantly, was and is an affirmation of the often ignored portion of Article VII, Section 17 of the Constitution which says that the President “shall ensure that the laws be faithfully executed.” This is the same phrase on which President Cory Aquino relied when she denied the request of former President Marcos to return from his exile. She contended that his return could disturb the legal order of the nation. The Court affirmed her saying that “although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of ‘executive power.’ Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.”
Echoing this earlier decision, the Truth Commission decision said: “Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed.”
The Palace in fact was preparing a new team that would lead the exercise of these vast powers. However, I don’t know what happened to that team after the person who was supposed to lead it was incapacitated by sudden illness.
The Truth Commission was also challenged by the opposition on the ground that it was a usurpation of the powers of the Ombudsman and of the Justice Department. On this point the Court said: “Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices.”
Why is it then that in his recent speeches the President has repeatedly blamed the invalidation of the Truth Commission as a major cause of the government’s failure to succeed in its drive against corruption? It seems that it is because, in spite of the vast powers of government and its single-minded campaign to pin down Gloria Arroyo and CJ Corona, he is seeing that his investigation and prosecution arms, are failing him. He may be seeing this as his own personal failure. Thus, sadly, his lamentation over the death of the Truth Commission sounds like a smoke-screen for personal failure.
26 December 2011

Saturday, December 17, 2011

WHAT TO EXPECT IN CORONA IMPEACHMENT

It has frequently been said that the impeachment process is a numbers game where the vote is along party alignment. This has been verified historically. Partly for this reason no President of the United States or of the Philippines has been convicted on impeachment. To my knowledge, moreover, no Justice of the Supreme Court has been convicted on impeachment. An attempt to impeach Associate Justice Samuel Chase was launched from the White House on the ground that Chase allowed his political leanings to affect his decision. (Incidentally, as in the complaint against Corona, there were also eight counts in the charge against Justice Chase.) The impeachment fizzled out.
The dictum that impeachment is a numbers game is especially true when the partisan alignment in Congress is clear. Thus no one need be surprised at the swift and overwhelming approval of the impeachment complaint against the Chief Justice, especially since, with eight points in the complaint, each member of the House had a smorgasbord to choose from.
It may be too early to evaluate the real consequence on the entire judiciary. Instilling the fear of the Lord is not bad in itself, if the Lord is perceived to be fair. And, indeed, the judiciary as it stands today can stand some shaking. The sentiment is widely accepted that there still are in the judiciary sour apples who, if baked, will not make a tasty apple pie. But it cannot be denied that what is happening now can have or may already be having a chilling effect on the more pusillanimous among the good apples.
Fortunately, the numbers game analogy may not be easy to apply to the Senate composition today. The Senate will try the case. The alignment in the Senate is not easily figured out and there are tried and tested statesmen in the Senate who can influence the novices. We can therefore have a decision that is clearly based on the merits. In fact, part of the reason why the outcome in the House was so swift could be the realization by the members that they were not making the final vote. They could pass the headache on to the Senate. That is where it will be and the Senators are ready with their robes!
The impeachment process is a legitimate tool found in the Constitution. Its general purpose is to rid the government of people who do not deserve to be in high office. For this purpose and in order to avoid a general bloodbath, it is meant to be carefully focused on individuals. From what I have seen in the charges made against the Chief Justice I can find charges that indeed are focused on him alone. But a good number of the charges are based on his vote in majority collegial decisions of the Court. Congress members and the Palace can deny until they are blue in the face that the target is the Supreme Court as a body, but the complaints tell us that some of them are clearly aimed at collegial decisions.
That the target is not just the vote of the Chief Justice but also of the body is also born out by the broad claim made on television by the Chairman of the House Justice Committee that the Congress can discipline justices. Discipline them for treason, bribery, graft and corruption, culpable violation of the Constitution, other high crimes or betrayal of public trust, yes; but not for collegial decisions with which the Congress disagrees.
I shall not attempt to evaluate the merit of each of the eight points in the complaint. That is the heavy responsibility of the Senate. The Senate will evaluate each of them to determine if any or all of them can convincingly fall under the allowable grounds for conviction, namely “treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” It is the Senate, and not the Court, which decides what these grounds for conviction on impeachment mean. The Court itself has said as much in an earlier impeachment case. The Court can only review whether the constitutional procedure has been followed.
In evaluating the charges, will the Senate apply the rule, among others, of eiusdem generis? This rule says that undefined elements in an enumeration must be read as qualified by the defined elements. Concretely this means that, when there is “allegation of graft and corruption or culpable violation of the Constitution or betrayal of public trust,” the allegation cannot be of merely venial offenses but must be of offenses comparable in gravity with “treason, bribery or other high crimes,” offenses which strike at the very life of the nation. This will be for the Senate to decide. Moreover, the Senate also decides the quantum of evidence needed to convict. Impeachment is not a criminal process which needs proof beyond reasonable doubt.
There is another point that must be remembered. Impeachment is not just a legal exercise. It is also a political exercise, that is, a policy exercise. If judgment on impeachment were exclusively a legal exercise, it would have been entrusted to the courts. But since it is also a policy exercise, judgment on impeachment has been given by the Constitution to a policy making body. Hence, when the Senators vote, they will be voting not just on the validity of the charges but also on their perception of what is best for the country. That requires the wisdom of a statesman.
19 December 2011

Saturday, December 10, 2011

Sovereignty of the People

SOVEREIGNTY OF THE PEOPLE
Joaquin G. Bernas, S.J.
Appeal has repeatedly been made to the will of the sovereign people as guide. Popular sovereignty in fact is the bedrock upon which a democratic system rests. Our Constitution begins with the assertion that “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”
The sovereign people assert their sovereignty in two distinct processes. The two processes should not be confused.
The first is through their vote in a plebiscite ratifying or amending the Constitution. Through this process the people express in a permanent manner what the powers of government should be, what the limitations are, how the people who are to exercise the powers of sovereignty are to be chosen, and what the extent and limits of their power are. As presently found in the Constitution, powers are divided among three departments. Succinctly this means that the legislature makes the law, the executive implements the law and the Constitution, and the judiciary determines what the law and Constitution mean, thereby achieving orderly checks and balance.
The second is through the sovereign people’s vote in an election. This vote is not an unlimited grant of power. Nor is it a grant of power to navigate outside of the limits of the will of the sovereign people as expressed in the Constitution. To assume that an overwhelming vote of the people in an election or a high approval rating in a periodic survey is an expression of popular revision of what they have expressed in a constitutional plebiscite is an invitation to disaster.
Government officials have only so much authority as is given to them by law and the Constitution and not what they might assume to be given to them by popular rallies. A great lawyer once said to a “reform” minded English monarch, “This country is planted thick with laws from coast to coast. If you cut them down, do you really think that you will be able to withstand the winds that will blow then?” True, the lawyer was beheaded later! But the consequences of his beheading confirmed the correctness of his warning.
In this critical moment of our constitutional history, my hope is that the justices of the Supreme Court, imperfect though they may be, will not capitulate and that others in the judiciary will not tremble in their boots and yield what is constitutionally theirs to the President. If they do, it would be tragic for our nation.
Impeachment. Impeachment is very much in the air. It is a legitimate tool enshrined in the Constitution. But it is a two-edged sword. It can be an instrument of reform but it can also be an instrument of vindictive persecution carried out by blindfolded followers. For this reason the Constitution has surrounded the process with safeguards which limit the number of people subject to impeachment and which makes its success difficult to achieve.
The obvious goal of the current move towards impeachment is to scuttle the membership of the Supreme Court and remove the “obstacles to progress”? The initial target has been revealed, with more expected to follow. But there are fifteen justices of the Supreme Court. I am not surprised if the Palace people do not expect impeachment, a very arduous partisan and political exercise, to achieve a pro-Palace Supreme Court. Not in the near future anyway. Hence, another impatient rallying cry is beginning to be heard: Occupy the Supreme Court!
Roosevelt tried to neutralize a Supreme Court whom he found to be a stumbling block by trying to pack it with people of his choice. He failed. In the end, Roosevelt had to wait until the retirement of the justices he disagreed with. It did not happen during his term. And to date divisions in the U.S. Supreme Court continue. Count the continuing number of cases where the vote is 5-4.
I have been teaching constitutional law long enough to realize that there often are two or more possible sides to a constitutional argument. And the outcome of a constitutional debate often depends upon the modality of constitutional interpretation a justice might use. As one political writer has put it, describing the Supreme Court is like discussing the theories of Karl Marx -- one has to indulge in half-truths correcting each other and exaggerations of important truths. This is because the Supreme Court is not just a court. It is also a political institution. Because the key provisions of the Constitution are couched in grand ambiguities and because the key provisions concern the larger issues of our life, of our liberties, and of our happiness, the Supreme Court, by the exercise of judicial review, wields tremendous political power.
Moreover, the composition of a Court at any given time in history is not just a product of chance. It is the result of a deliberate creation. One only has to look at the confirmation debates and what precedes them in the choice of U.S. Supreme Court justices to see how personal, political and ideological considerations play a determinative role. It is just too bad that we see nothing as thorough in our process of choosing justices. If we did, the Court would now have a different face.
What is now referred to as the Arroyo Court took nine years in the making through a selection process heavily tilted in favor of an incumbent President. That tilted process remains, but I doubt that President Aquino will have time, within constitutional limits, to create an Aquino Court during his term. And since so much depends on the outcome of constitutional debates, what is required of him, if he wants the constitutional upper hand without resorting to bullying, is to build a strong, not necessarily loud, constitutional litigation team.
12 December 2011