Saturday, January 28, 2012


Joaquin G. Bernas, S.J.
When one examines the text of the Constitution on impeachment, one will find that it does not define the nature of impeachment and there is very little in it about the procedural aspects of impeachment. In the process of finding what rules to apply, both House and Senate look largely towards practices in the past. But practices themselves do not yield a complete set of rules even if they might fill some gaps. For this reason, the current impeachment trial has been meeting some bumpy moments.
One key concept that can be a center of controversy is the matter of defining the nature of an impeachment trial. Is it administrative merely, civil, or criminal. On the answer to this question will depend important matters of admissibility of evidence and the quantum of proof needed to convict. But there has been no clear and exclusive characterization of the proceeding. What is often said, almost in exasperation, is that it is sui generis. It has a character all its own. One might say that it has a character that partakes principally of both a civil or a criminal matter. On the basis of that vague characterization the Senate presiding officer must determine which rules of procedure to follow. Thus there can arise a conflict on whether the presiding officer is proceeding too strictly or too liberally. That is not easily resolved. Last Tuesday, for instance, when the prosecution asked the Senate President to be more liberal, the Senate President found himself in a quandary and the prosecutor himself could not say what he meant. The latter eventually retreated saying that he placed matters at the discretion of the wisdom of the Senate President.
Another unclear matter is determining the quantum of proof that is needed to convict. In jurisprudence, there are three levels of proof – substantial evidence, preponderance of evidence, and proof beyond reasonable doubt. Substantial evidence simply means evidence that a reasonable man can rely upon to make his decision. It calls for prudential judgment. Preponderance of evidence means a quantity and quality of evidence that is enough to outweigh the quantity and quality of the evidence for the other side even if neither side is persuasive. Proof beyond reasonable doubt is proof that convinces a judge or jury to exclude all other possibilities.
When in last Tuesday’s session, the presiding officer asked what quantum of evidence was needed to convict Chief Justice Corona, the prosecution chose substantial evidence, the lightest of the proofs needed, The defense, for its part, chose proof beyond reasonable doubt. A senator judge proposed instead proof somewhere in between preponderance of evidence and proof beyond reasonable doubt and called it overwhelming preponderance of evidence.
As can be seen these are measures expressed not in exact mathematical or metaphysical terms. Overwhelming preponderance of evidence is also the term used by Charles L. Black, Jr. in his Impeachment Handbook. But as Luwrence L. Tribe has noticed, “The Senate has not employed any uniform standard of proof, instead leaving each Senator to choose his or her standard.”
Last Tuesday the Senate decided to meet in caucus in the hope of deciding what quantum of proof to use. I believe, however, that whatever the caucus might decide will not make that much difference. When voting time comes, each senator will vote according to his or her lights.
Another issue is the matter of choosing the penalty to impose in case of conviction. The Constitution says “judgment in cases of impeachment shall not extend further than the removal from office and disqualification from holding any other office under the Republic of the Philippines.” This would mean, for instance, that the Senate cannot impose the death penalty. But does the phrase “shall not extend further than removal from office and disqualification from holding any other office” also mean that a less severe penalty than removal or disqualification may be imposed such, for instance, as censure.
The phrase “shall not extend further,” taken literally, can also mean that. However, conceivably the choice of penalties listed in the Constitution is of those which can protect the public from an officer who does not deserve to hold office or who can be a risk to the welfare of the nation. Is “censure” that kind of penalty?
The offenses for which an officer may be convicted on impeachment are “culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” The word “other” modifying “high crimes” indicates that every offense in the list must be a “high crime.” This meaning is dictated by the principle of legal construction that the word “other” makes the meaning of all those enumerated of the same level of gravity. In legal gobbledygook this is the eiusdem generis rule. It would seem to me, therefore, that if the offense proved is only worthy of censure, it would mean that the offense proved is not of the same gravity as the offenses enumerated by the Constitution and that, therefore, the accused, although shamed, must be acquitted.
30 January 2012

Saturday, January 21, 2012


Joaquin G. Bernas, S.J.
On the third day of the impeachment trial of Chief Justice Corona the Supreme Court Clerk of Court, appearing as a witness summoned by the prosecution, found herself trapped between, as it were, the devil and the deep blue sea. Commanded by the Senate jury to produce the SALN of Chief Justice Corona, which she admitted she had brought with her, the Clerk of Court balked and asked for time to get authority from the Court to release the document. She said that by the Rules of Court she could not release it on her own. Who should the Clerk of Court obey, the Supreme Court or the Senate jury?
The story begins with a provision in the Constitution requiring that the statement of assets and liabilities of certain high ranking public officials, including justices of the Supreme Court, “shall be disclosed to the public in the manner provided by law.” The manner provided by law, i.e., by R.A. 6713, is that Supreme Court justices should file their SALN with the Clerk of Court. R.A. 6713, moreover, requires that the SALN should be open for inspection and copying by interested parties.
However, occasioned by the request of a private party litigant for the statement of assets and liabilities of justices of the Supreme Court, the Supreme Court in 1989 issued a Resolution directing that such requests should be granted only for legitimate and justifiable reason. The Court was concerned that the unregulated release of SALN could endanger the independence of the judiciary.
Since then the practice has been that when a request for the SALN of a Supreme Court justice is sought, the matter is included by the Clerk of Court in the agenda for the weekly en banc meeting of the Court. According the Clerk of Court, this has happened only nine or ten times since 1989 and it has never occasioned controversy.
This too is how the subpoena for the SALN of Chief Justice Corona was handled. Unfortunately, however, the Court meets en banc only every Tuesday which meant that the Clerk of Court had to wait for a week. Must the Senate also wait?
Incidentally, this was not a question of who as between the Senate jury and the Supreme Court is superior. After all, the Senate jury is no other than the same Upper House of Congress. The Senate jury is not a distinct body from the Senate but is the same Senate but given non-legislative authority to be exercised occasionally. The three departments of government are coequals working in coordination with each other. When faced with a situation when they seem to appear to be an immovable force pushing against an immovable wall, what is constitutionally demanded of them is to look for ways of working together. This is what happened here. The Clerk of Court surrendered the documents with the assurance that she would face no censure from the Supreme Court.
It is also worth nothing that access to matters of public interest, including government documents, is a right guaranteed by the Bill of Rights. However, jurisprudence says that this right does not mean that everyday is an open house in public offices. The custodian of the document has the inherent power to regulate the manner of access to these documents. But there are instances when the custodian might, for some reason other, deny access to the documents. In such situations the remedy that has been used is to file a petition for mandamus in court. In fact, it is partly for the purpose of facilitating access to documents without the hassle of having to go to court that there is now pending in Congress a Freedom of Information Bill.
But note that the demand for the SALN of Corona already came from a court, that is, from the Senate exercising the powers of an impeachment court. The impeachment court itself should be in a position to determine whether the demand for the SALN and its use would be for a legitimate purpose. The impeachment court said it was and, happily, the Clerk of Court honored the demand of the impeachment court.
The pending request for a TRO. There are still pending in the Supreme Court petitions for a TRO to restrain the Senate from proceeding with the impeachment trial on the ground that the impeachment complaint filed by the House is invalid. The petition is asking for an order which would place the Supreme Court in direct collision with the Senate because the Senate jury already decided last Monday that the complaint was valid. In my view this is a correct decision of the Senate. The core of the issue is whether at least one third of the House verified their complaint. The Record of the House says that every single one of the 188 complainants came before the Secretary General of the House to verify their complaint. The Senate jury, at least out of inter-house courtesy, did not question the veracity of the House Record. It would have been different if at least the Speaker of the House had denied its veracity. I strongly doubt that the Supreme Court, at least out of interdepartmental courtesy, will question the veracity of the House Record – especially since the impeachment trial is already in full gear.
23 January 2012

Saturday, January 14, 2012


Joaquin G. Bernas, S.J.
The impeachment trial of Chief Justice Corona is scheduled to start today. The Constitution tells us that the Senate is the sole judge of all impeachment cases. Yet, even as the Coronal lawyers will go to trial claiming that the articles of impeachment now with the Senate are invalid, lawyers have also gone to the Supreme Court seeking the invalidation of the same articles of impeachment. Will the Supreme Court entertain and decide the challenge?
I do not propose to predict what the Court will do. What I propose to do is to look into the impeachment cases under the 1987 Constitution and try to see to what extent the Supreme Court involved itself in these earlier cases.
The first of these is the impeachment case against Chief Justice Davide and the more recent one is the case against Ombudsman Gutierrez. In between was the impeachment case against President Estrada.
The Supreme Court has pointed out that there are two constitutional truths that need to be balanced. These are the doctrine of separation of powers among the legislative, executive or judicial branches of government and the corollary doctrine of checks and balances. The Court has affirmed that, “Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people.”
The basic facts of the earlier two cases were not disputed. There was a first impeachment complaint filed on June 2, 2003 against Davide. Four months later, or on October 22, 2003, this first complaint was dismissed by the Committee on Justice. The following day, or on October 23, 2003, a second complaint was filed. This second complaint was accompanied by a “Resolution of Endorsement/Impeachment” signed by at least one-third (1/3) of all the Members of the House of Representatives. Thus arose the constitutional issue: Did the second complaint violate Section 5 of Article XI of the Constitution which says that “No impeachment proceeding shall be initiated against the same official more than once within a period of one year.”
The main task of the Court was to determine the meaning of “initiating an impeachment proceeding.” The Court, in the exercise of its power to determine the meaning of the law, said that the initiation of an impeachment proceeding requires at least two steps, the filing of the complaint and its referral to committee. In this case, there was a first complaint filed which was not only referred to the Justice Committee but even dismissed. Clearly what was filed after the dismissal of the first the first step in initiating a prohibited second proceeding within one year. No further action was taken by the House.
The subsequent case was impeachment involving Ombudsman Gutierrez. It was an elaboration on the doctrine formulated in the Davide case. There were two complaints against Gutierrez filed on different dates but these were referred to committee simultaneously. There was thus, according to the Court, the initiation only of a first proceeding – two complaints but one referral. But the case did not go any farther because Gutierrez resigned.
In the case of Estrada, although the impeachment went to Senate trial, it was not settled by the Senate because People Power ensued.
It is noteworthy, however, that in both the Davide and Gutierrez cases the Court clearly asserted that it was within the power of the Court to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the House. The Court said that the power of judicial review of the Philippine Supreme Court was broader than the power of its American counterpart. To the contention that the exercise of judicial review over impeachment proceedings would upset the system of check and balances, the Court gave a motherhood reply, “Verily, the Constitution is to be interpreted as a whole and ‘one section is not to be allowed to defeat another.’ Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.”
In the Davide case, the Court nullified the action of the House of Representatives. Initiatiing a second impeaching proceeding was found to be a violation of the Constitution and therefore a grave abuse of discretion on the part of the House. But in the Gutierrez case, validity of the filing of two complaints was upheld and no other action was found to be a grave abuse of discretion. Neither case, however, reached the Senate.
Now, however, the Corona case is with the Senate. The senators have had their robes tailored. According to the Constitution the Senate, with or without robes, is “the sole judge of all impeachment cases.” Meanwhile a case challenging the validity of the complaint, essentially on the basis of grave abuse of discretion, has been filed with the Supreme Court.
Should the Court now leave the matter to the Senate to decide or should the Court reach out to what is now with the Senate and exercise its power of judicial review? In the event that the Supreme Court should declare the House action unconstitutional and issue a restraining order, what will happen? Should or will the Senate bow? If not, how will the Court, armed with neither money nor guns, implement its decision? Alas, none of the previous cases answers these questions. These are interesting times, indeed!
16 January 2012

Saturday, January 7, 2012


Joaquin G. Bernas, S.J.
The impeachment process is initiated from the filing of a verified complaint. The chances of that complaint reaching trial stage was almost nil under the 1935 Constitution which required the vote of at least two-thirds of all the House members. No impeachment ever reached trial. Under the 1973 Constitution it was almost ridiculous because all that was needed to send it to trial was a vote of one-fifth. But no impeachment took place. The present provision is a compromise: the complaint can go to trial if supported by at least one-third of all the Members of the House. But before it gets there it still has some road to travel.
It starts in the House Committee to which the verified complaint is referred. The initial task of the Committee is to verify whether the complaint is sufficient in both form and substance. The required votes for the determination of form and substance is not specified in the Constitution. Hence, it is all up to the House Rules.
If the Committee finds that the complaint is sufficient in both form and substance, the Rules prescribe that notice be given to the respondent who is given the opportunity to be heard. If after hearing, the Committee finds no “probable cause,” the Committee recommends to the House the dismissal of the complaint. But if the Committee, by a vote of a majority of all its members, as prescribed by the Constitution, finds “probable cause,” it shall so report to the House.
The House in turn can either uphold or override the Resolution of the Committee. In either case, by constitutional rule, the vote needed is one-third of all the Members of the House. According to the Rules, the voting is by roll-call.
It will be noted from what has been said so far that only the complaint is required by the Constitution to be verified. Nothing is said about the verification of the votes of the Members either in Committee or in plenary.
We now come to the constitutional provision which is intended to speed up the process. This was used in the Estrada impeachment case and it is now being used in the Corona case: “In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.”
In the Estrada case, House Speaker Manny Villar, seconds after opening prayer, took a couple of minutes to read a Resolution he had in his hands which contained the signatures of 77 Members, more than what the constitutional provision required. Hence, no referral to Committee was required nor was any further vote needed. The Resolution was sent to the Senate for trial.
In the case of Corona, a Resolution containing the signatures of 188 members was brought to the Senate personally by Committee Chairman Neil Tupas. The manner of collecting the 188 signatures is now the subject of heated exchange.
The sufficiency of the Corona complaint has been challenged before the Supreme Court by some lawyers and, in the Senate itself, by Corona’s lawyers. An important question now before considering the substance of the complaint is: Who has jurisdiction to decide the issue of sufficiency of the complaint, the Court or the Senate?
Two opposing possibilities have arisen. One is that the Senate has jurisdiction because the Constitution says that “the Senate shall have the sole power to try and decide all cases of impeachment.”
On the other hand, the Court in earlier jurisprudence has asserted that it has the power to determine whether the constitutional procedure for impeachment has been followed. Besides, the Constitution has given to the Supreme Court the power to decide whether there has been “a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” Hence, can the Court decide that what happened in the House of Representatives leading to the impeachment constituted grave abuse of discretion amounting to lack or excess of jurisdiction?
We will have to await what lawyers on either side will say about jurisdiction. After the resolution of such issue, the lawyers will have to tackle next the question of sufficiency of the complaint brought to the Senate. One core issue will be the determination of the kind of verification needed.
None of the above issues arose in the Estrada impeachment. These issues, however, have been brought up in the current case and they have to be resolved before trial can proceed.
On the issue of the needed verification, the text of the Constitution as quoted above is not of much help. But the Rules of the House require that at the time of the filing, the complaint must be “verified and sworn to before the Secretary General” by the members filing it. The formula for verification is prescribed by the Rules. Was this followed? Congressional Record for December 12, 2011, has the Secretary General testifying that this was done. It should be easy enough to look into whether the verification papers exist. After all, these are public records.
After all is said and done, the final question will be whether a vote of two-thirds of all the Members of the Senae can be mustered. How many votes constitute 2/3 of the current 23 Senators, 16 or 15? There is jurisprudence to the effect that in constitutionally prescribed arithmetic fractions are ignored. Can this be applied to impeachment?
9 January 2012