Saturday, March 24, 2012


Joaquin G. Bernas, S.J.
Very much at the heart of the current impeachment proceedings is a search for a definition of “betrayal of public trust.” But as Justice Carpio Morales said, in the impeachment case against Chief Justice Davide, defining impeachable offenses is beyond the scope of judicial power. Hence, whether the offenses alleged Chief Justice Corona are impeachable offenses or not, is a difficult question for the impeachment court. How should the impeachment court evaluate those acts?
It should first be noted that betrayal of public trust was added only by the 1987 Constitution. As our constitutional text stands now, we have six impeachable offenses: “culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” Betrayal of public trust is only one of a set joined together by the conjunctive word “or.” Under the eiusdem generis rule, words linked together as belonging to a class are understood to have common characteristics. If we are to discern the meaning of “betrayal of public trust,” therefore, we must see what characteristics its companion offenses have. Let us see what the drafters of the 1987 Constitution said.
Commission Maambong, speaking of “high crimes,” quoted from Enrique Fernando’s which said: “In the United Sates Constitution, the term is high crimes and misdemeanors. The Philippine Constitution speaks only of high crimes. There is support for the view that while there need not be a showing of criminal character of the act imputed, it must be of sufficient seriousness as to justify the belief that there was a grave violation of trust on the official sought to be impeached.” Next Maambong quoted from the Congressional Record on the attempted impeachment of President Quirino: “High crimes refer to those offenses which, like treason and bribery, are indictable offenses and are of such enormous gravity that they strike at the very life or orderly working of the government.”
And from the same Congressional Record he quoted: “Culpable violation of the Constitution means willful and intentional violation of the Constitution and not violation committed unintentionally or involuntarily or in good faith or through honest mistake of judgment.” And again from Fernando: “Culpable violation implies deliberate intent, perhaps even a certain degree of perversity for it is not easy to imagine that individuals in the category of these officials would go so far as to defy knowingly what the Constitution commands.”
On the specific offense of “betrayal of public trust,” Commissioner Romulo said that it could “cover any violation of the oath of office.” But Commissioner de los Reyes, author of the amendment, elaborated: “And so the term ‘betrayal of public trust,’ as explained by Commissioner Romulo is a catchall phrase to include all acts which are not punishable by statute as penal offenses but, nonetheless, render an officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute.”
Commissioner Nolledo added: “I think plain error of judgment , where circumstances may indicate that there is good faith, to my mind, will not constitute betrayal of public trust if that statement will allay the fears of difficulty in interpreting the term.”
For his part, Commissioner Guingona cited the proposal of the UP Law Center Project which specified “Acts which are short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, gross negligence of duty, favoritism, and gross exercise of discretionary powers.”
When we add up all these, what do we get? In all that has been said the common characteristic is gravity or seriousness of the offense. Not every form of deviation from a public officer’s duty is an impeachable public offense. The deviation must be intentional and as serious in gravity as treason or bribery which are the paradigms of impeachable offenses: treason because it strikes at the life of the nation and bribery because it impedes the proper functioning of government.
It was against this background that the 1987 Constitution Commissioners approved “betrayal of public trust” as an impeachable offense. But as Justice Carpio Morales observed, “An examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor.”
Having said all this, are the offenses alleged against Chief justice Corona impeachable offenses. To arrive at a conclusion the impeachment court will have to single out every alleged offense and decide whether the applicable rules on evidence justify the conclusion that they “involve what is thought to be a serious abuse of official power or a stark incompatibility between the offense and the offender’s ability faithfully to execute the duties of his or her office in a manner that will not endanger the office or the nation.” For example, is error in accomplishing the SALN, so muchdiscussed last week and so commonly committed even by high ranking officials, an impeachable offense?
Let us hope that the Holy Season will help the arrive at a fair conclusion!
26 March 2012

Saturday, March 17, 2012


Joaquin G. Bernas, S.J.
Beating a Dead Horse. Monday last week the much awaited presentation of the defense began. The public, I believe, expected a possible dramatic beginning but nothing of that sort happened. Instead the chief defense counsel spent much time in what eventually turned out to be a case of beating a dead horse. He insisted that due process should have characterized the formulation and submission of the articles of impeachment but that no such due process was observed. Never mind that the twenty-six days that preceded his argument had provided every opportunity for due process in the Senate.
Whether or not there was due process in the House will need proof. The problem, however, is that trying to prove absence of due process will have to cope with one of what I would call the “facts of life” that are accepted in House proceedings particularly in the preparation of the records of Congress. According to jurisprudence, when there is conflict between, on the one hand, what is found in the Record and, on the other, some extraneous evidence such as oral testimony or newspaper reports, what is stated in the Record is accepted as truth unless it is reprobated by the House itself. In the current case, the Record of the House says that all 188 members who signed the impeachment complaint appeared one by one before the Secretary General and swore in writing that they had read the complaint and considered its contents as true. The Speaker himself, instead of reprobating it, has affirmed its correctness. That should be the end of it, no matter what the non-signers of the articles of impeachment might say. But that would not be the end of due process because due process should also characterize the Senate trial.
Sidelight about me. An interesting sidelight for me are media reports that I declined to testify in the Corona trial. The report is not entirely accurate because nobody asked me to testify. I only saw my name listed as witness for the defense in media reports. In fact, one of the senior lawyers for the defense told me that they put my name in the list only when they were required to present a list of witnesses. A formality, in other words.
If invited, however, whether for or against, will I testify? My clear preference would be “No.” I prefer being free to write legal opinions which can be for or against either side of the impeachment debate. Testifying as witness for the defense would tag me as being only for the defense. In fact, my views on what are happening in the impeachment trial may be found in my Inquirer Monday columns and in my JGBernasSJBlogs. Some of them do not make everybody happy on either side of the political divide.
Discipline in the House. I am sure people are now wondering what the future of Congressman Toby Tiangco will be after his testimony about the circumstances surrounding the formulation of the articles of impeachment. Will he be disciplined by the House?
Let me just say that the House has the power to suspend or expel a member for “disorderly behavior.” Disorderly behavior is not defined in the Constitution. The House alone determines what behavior can be considered disorderly. The vote needed to suspend or expel a member is two-thirds of all the members.
Was the behavior of Congressman Tiangco disorderly? Your guess of what the House members might think is as good as mine.
Lessons from the ongoing proceeding. Listening to the impeachment proceeding last week and the questioning and cross-examination about the contents of the SALN declaration made by the Chief Justice I came to the conclusion that, if you really want to play it safe, you need the help of a lawyer and an accountant to fill out the form. Or, as one retired public official familiar with both the old and the new SALN law said, those entering public service for the first time now should undergo a seminar on how to accomplish the SALN report! Better yet, let all the confusing requirements be simplified.
Another thing I have learned is that members of the judiciary and of related public offices do not do very badly at all in terms of what they get from government for their work. It may also be noted that, although allowances are given (and, surprise, surprise, rather generously) for official purposes, the law does not require strict accounting for what they receive as allowances. I am speaking, of course, of the higher levels of the judiciary and related offices such as the Electoral Tribunals. I am not sure if what the public is seeing in the impeachment process will encourage more people to join the lower levels of the judiciary where there are many courts which have remained vacant.
19 March 2012

Saturday, March 3, 2012



Last week the prosecution in the impeachment case against Chief Justice Corona dropped five of the eight articles of impeachment. The reason given was that, having already presented evidence on Articles 2, 3 and 7, the prosecution was confident that they had presented enough to get a conviction.
The abandonment of five articles of impeachment will certainly shorten the period of the telenovela trial. But if the prosecution had pursued these articles, they would have involved the recurring and yet unresolved controversy of Senate vs. Supreme Court, with some senators claiming superiority over the Supreme Court.
The abandoned Article I alleged betrayal of public trust manifested through subservience to President Arroyo. But the principal allegation here was that Corona was behaving the way he did because he was enjoying favors from Arroyo, with these favors culminating in a midnight appointment illegitimately extended to him by Arroyo.
Before the appointment of Corona I too had argued against recognizing the power of the President to make appointments during the prohibited two-month period. But the Supreme Court said she could, and it was only after the Court had said so that she did. Article I insists that it was wrong for the Court to appoint him and shameless for Corona to accept the appointment. How would the Senate have resolved this issue?
Article IV attributed betrayal of public trust and culpable violation of the Constitution to Corona because of the Court’s issuance of a status quo order on the impeachment of Ombudsman Gutierrez. But the order was signed by eight justices. Again, this could have involved Senate v. Supreme Court.
Again Article V attributed to Corona the controversial flip-flopping Court decisions creating sixteen cities and the province of Dinagat. But these were collegial decisions of the Court upholding the validity of acts of Congress!
Article VI faulted the Chief Justice for creating a Committee to look into the allegations of plagiarism against Justice Mariano del Castillo. If this had been pursued the Senate would have had to deal with the question whether the Supreme Court is powerless to look into the activities of its members especially if they involve things that might affect the reputation of the Court. Such certainly was the allegation of plagiarism against a Justice.
Finally the prosecution abandoned Article VIII which faulted the Chief Justice for allegedly failing to account for the Judiciary Development Fund and for the Special Allowance for the Judiciary. On the same day that the five Articles were abandoned the Senate President had already ruled that he would recognize the internal privilege of the Supreme Court. Among the privileges referred to would have been also the fiscal autonomy of the Court.
Meanwhile, however, the charge of plagiarism against Justice Mariano del Castillo is still alive in the House of Representatives. (The Senators themselves do not seem too happy about the prospect of having to suffer through another impeachment trial!) But what can be said about plagiarism?
The legal literature on plagiarism is interesting. During this year I directed a thesis on plagiarism as a student’s partial fulfillment of the requirements for a J.D. degree at the Ateneo Law School. My student came up with a classification of plagiarism into judicial, academic, and scientific based on judicial and law journal literature. Let me just summarize some of her conclusions because they will have a bearing if ever the del Castillo case should go to the Senate for trial.
Let me lift portions of my student’s conclusions. After carefully analyzing her sources, she concludes her extensive essay in part thus:
“There is a significant difference in the definition and application of plagiarism between and among the academe, the judiciary, and the sciences. In the academe where original ideas and scholarship are the currency, ideas, words, literature, and other forms of expression are fiercely protected. This is reflected in the objective test popularly employed in the investigation of academic plagiarism. The act of using ideas, words or expression without attribution or improper attribution attracts a charge of plagiarism, regardless of intent. Intent in the field is a consideration that goes only into the determination of the proper penalty, after a finding of plagiarism is made.
In the judiciary, a distinction is made between the judicial and non-judicial functions of judges. In the performance of judicial functions, judges act as agents of the State and enjoy some limited immunity from liability in the absence of patent and gross error attended with malice or bad faith. This is consonant with the public policy consideration of ensuring that judges decide cases before them independently and impartially and without apprehension of ‘personal consequences’ to oneself. Outside of the judicial process, judges acting in their private capacity are subject to charges of plagiarism in failing to properly attribute borrowed ideas, words, and passages.
“In the sciences, plagiarism is an offense defined by the research institution. Intent may or may not be an element of the offense and emphasis is on the seriousness of the assailed act’s deviation from commonly accepted practices in the scientific community.”
I might add that in evaluating the action of Justice del Castillo the Supreme Court followed the norms for judges.
5 March 2012