Saturday, February 25, 2012


Joaquin G. Bernas, S.J.
Last Saturday we recalled the historic event of the EDSA Revolution. Yes, it was a revolution, although a peaceful one. A revolution takes place when a portion of the populace attempts to wrest power from the legitimate government. If it fails, the leaders go to jail. If it succeeds and maintains its hold on the government, it is a supreme democratic act. EDSA was a supreme democratic act which put an end to the 1973 Constitution.
The heirs of the EDSA event have managed to maintain their hold on government. They have instituted a new Constitution and have held elections and plebiscites under the new Constitution.
The EDSA Revolution, the ratification of the 1987 Constitution, and the elections are the legitimate manifestations of popular sovereignty. They are the product of the people exercising their sovereign power. Our Constitution says “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” “People” in this document refers to those who manifest their will in an election, in a plebiscite for the ratification of the Constitution or in a successful revolution.
There is an ongoing campaign to distort the meaning of popular sovereignty. Popular sovereignty is being interpreted as the currently majoritarian sentiment of the people as evidenced by surveys. Surveys, whether by SWS or by Pulse Asia or by whatever outfit might attempt it, are not manifestations of popular sovereignty. They do not authorize public officials, no matter how highly placed, to disregard the law or the Constitution. Nor does a repeated claim of massive popularity enhance a public officer’s power to a level higher than what is given to him or her by the law and the Constitution. Reliance on popular rallies as power enhancement can merely amount to demagoguery, an effective instrument for dividing the nation and an effective way of frittering away the gains made by the EDSA event.
Earlier I quoted a renowned jurist who 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?” The same jurist also said “I am the king’s good servant, but God’s first.” Today this jurist is revered as a patron of persons holding position of power and responsibility.
Travails of the Impeachment Prosecution. An interesting moment occurred during the impeachment trial last Tuesday after the Senate President said that in our impeachment process the House of Representatives performed the function of a grand jury to ensure that what will be brought to the Senate would be a well prepared case. The fact was, the Senate President said, the case of the Articles of Impeachment prosecution was not well prepared and the prosecution was trying to stitch a case together in the course of the trial with the help of sub poenas
In reply Congressman Fariñas of the House prosecutor team pointed to two kinds of impeachment processes, and correctly. One process is for a situation when an impeachment complaint is filed without the needed support of at least one third of the House. In such a situation the Justice Committee conducts hearings to determine if the case presents probable cause for proceeding with trial. Thereafter the Committee makes a report to the plenary which reviews the matter to determine if indeed there is sufficient cause for bringing it to trial. The vote of one-third of the plenary is needed to affirm the finding of the Committee. This ensures that the time of the Senate will not be wasted in protracted search for evidence.
The second mode of impeachment says: “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.” What this provision seems to imply is that the grand jury role of the House is dispensed with. This seems to be the basis for Congressman Fariñas’ explanation for the imperfection of the Articles of Impeachment. In fact, earlier during the trial Congressman Fariñas had already criticized the Articles of Impeachment. Again he is being proven right.
Problem again arose during the later part of last Tuesday when the prosecution introduced a Vice-President of PAL to prove an allegation that the Chief Justice tended to favor PAL in litigation because of favors he had received from PAL. But the allegation was not found in the Article of Impeachment being discussed. The Senate President barred the testimony of the PAL Vice-President.
It might be worth recalling that the impeachment of former President Estrada reached the Senate via the second mode. But the complaint itself was filed weeks before the complaint was sent to the Senate. Hence the prosecution did have time to prepare for the trial. In the case of the current impeachment trial, however, the complaint of 188 Congressman went up within twenty-four hours of the filing. No wonder the prosecution has been having problems. What these events seem to be telling us is that, whichever method of impeachment may be used, the House somehow should perform some grand jury role.
27 February 2012

Saturday, February 18, 2012


Joaquin G. Bernas, S.J.
Letter of St. James to the President and the Chief Justice: “Among all the parts of the body, the tongue is a whole wicked world in itself: it infects the whole body; catching fire itself from hell, it sets fire to the whole wheel of creation. Wild animals and birds, reptiles and fish can all be tamed by man, and often are; but nobody can tame the tongue – it is a pest that will not keep still, full of deadly poison.” James, 1:5-6.
Trabajo lang. I have written pieces critical of the current administration, as I did of the past administrations from the Marcos days. I will continue to express my opinion on legal matters as I see them.
But I have also heard of intelligent people whom I normally respect saying that my views are not credible because one of my nephews is married to Luli Arroyo. Indeed he happily is.
I will not attribute this ad hominen criticism of me to intellectual bankruptcy, but if my critics have any thing rational against my views, I will welcome them and I may yet be saved from my errant ways. But, please, identify yourself so I will know to whom to bow.
About two years ago I opposed the power of President Arroyo to appoint a Chief Justice during the two-month prohibited election period. I mentioned no names. I learned later that for that I won the ire of the current Chief Justice. She eventually did appoint him. I still believe it was wrong for her to exercise that power. But I am not the Supreme Court.
I also criticized the splitting of a congressional district in Camarines Sur in order to accommodate Arroyo allies. But Congress went ahead and split it and the Supreme Court blessed it. I still believe that the Supreme Court was wrong in upholding Congress. But I am not the Supreme Court.
As lawyer, my measuring rod of public acts is always the Constitution first. I will always measure the acts of those in public office by the standard of constitutional law and not by blood or social relationship. I have even expressed constitutional views different from some members of the Catholic hierarchy and have been pilloried for it. Fortunately my Jesuit superiors and some in the hierarchy support me.
I will sometimes disagree with Supreme Court decisions but will obey them, because a decision of the Supreme Court is law, even if I know that it is only supreme law until reversed by a later Supreme Court!
I ardently supported Cory Aquino in her days, but her son should not be surprised if occasionally I oppose his views and actions. Trabajo lang.
Incidentally I might also compare the style of the current President with the style of former President Arroyo. GMA generally spoke and acted through her subordinates. Thus bullets for her usually had to pass through the breastplate of subordinates first. But President Aquino often speaks and acts for himself. He is also loyal to his subordinates, even when they buy pirated tapes! He thus more readily exposes himself to bullets. Understandably Dr. Lacierda and Nurse Valte of the Palace Clinic sometimes go scampering to give him first aid.
More Generally. Let me now offer some observations on the current impeachment proceeding.
The impeachment body, which we usually refer to as a court, is both a judicial and political (read policy making) body. If it were meant to be a judicial body purely, the responsibility for impeachment would have been entrusted to a body under the judicial department.
As a judicial body in the impeachment process the Senate applies the law. A virtue we expect of a judge is what is usually described as “cold neutrality.” In the current proceeding, I do not think anybody will accuse some members of the Senate of that virtue. But there is a plausible explanation for that.
As asserted in a number of rulings of the presiding officer, the senators are given a wide leeway for asking questions. He recognizes that the senators are also jurors in search of truth. Thus, in all of this, so much depends on the sense of fairness of each individual senator. Incidentally, also of the President.
Indeed, in countries where there is a jury system, there is such a thing as jury misconduct which can cause the reversal of a verdict. The cases on jury misconduct range from intentional disregard of the juror’s oath to unintentional actions by jurors who do not understand jury protocol.
But what do I mean when I say that the impeachment body is also a policy making body? I mean that they also consider what is best for the country. Let me illustrate. Assume that the Senate finds that there is no sufficient ground to convict the accused. Fairness would demand that the accused be acquitted. Let us suppose, however, that the Senate finds sufficient ground for removal of the accused but in its judgment it would be worse for the country if the accused is removed from office. In the exercise of its policy making power it might decide to keep the accused in office.
Will we know the reasons behind the decision of the senators? We might or we might not. As I see it, there is no obligation on the part of the senators to explain their vote. But most of them probably will explain their vote, as they did on the recent TRO issue, because they know that they themselves are on trial before the court of public opinion. Remember that some of them may still have electoral ambitions.
20 February 2012

Saturday, February 11, 2012


Whence did the Senators currently judging the impeachment trial come from? They are the same senators who were elected to the Senate two or four years ago. And what was the extent of the power of the Senate to which they were elected. Their power was only coequal with those of the Executive Department and the Judicial Department. How explain the claim of some senators now that their power while acting as impeachment judge has suddenly skyrocketed to a level higher than that of the Supreme Court? The answer to this question is a mystery to me.
The contention that the senate judging the impeachment trial now is superior to the Supreme Court rests on the assumption that the senate as impeachment judge is different from the senate originally elected. If this is not the senate originally elected, where did it come from? From Mars?
The fact, however, is that the powers being exercised during the impeachment trial are powers given to the Senate originally elected. They are non-legislative powers which are dormant until the Senate is called to be judge in an impeachment trial. If you will look at the constitutional provisions on impeachment, you will not find a reference to a “Senate court” or a “Senate jury.” The only thing you will find is “Senate”, period. The Senate judging the current trial was created by Article VI and not by Article XI.
In other words there is only one Senate which occasionally acts as impeachment court in the same manner that there is only one Supreme Court which occasionally acts as Presidential Electoral Tribunal. The Senate, whether acting as impeachment court or legislative body, is the same Senate that is coequal with and not superior to the other departments. If there must be talk of superiority among the three departments, only the Constitution is superior. All must bow to the Constitution.
Does the fact that the Constitution makes the Senate “the sole judge of all impeachment cases” make it superior to the Supreme Court in everything relating to impeachment? Perhaps we can find an answer to this question by looking at the jurisprudence on the relation of the Supreme Court to other agencies of the government. For instance the Constitution also says, “The House of Representatives shall have the exclusive power to initiate all case of impeachment.” Does the exclusivity of the power of the House of Representatives rule out any role for the Supreme Court? We already saw that in the Davide impeachment case and the Gutierrez case the Supreme Court came in to resolve matters of interpretation of the law on impeachment. Similarly, in the Electoral Tribunal cases, where the Constitution says that the Electoral Tribunal shall be the “sole judge of all election contests,” the Supreme Court has come in to determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Tribunal because the power to make such judgment has been given to the Supreme Court. Again in the participation of the Senate in the formation of the Commission on Appointments where membership is determined by Senate on the basis proportional representation of the various political parties in the Senate, the Supreme Court came in to determine that fractions should be ignored in the allocation of members even if ignoring fractions would result in less than twelve Senator members of the Commission.
What all this means is that the Supreme Court can come in when needed to determine the meaning of the law. This does not mean superiority of the Court over the other departments. All it means is that the Constitution has placed in the Supreme Court the power to determine with finality the meaning of the law. It means the superiority of the Constitution. A fundamental principle of our constitutional system is separation of powers. The legislature enacts the laws, the executive implements them, the judiciary resolves legal controversies by the application of law of whose final meaning the Supreme Court is judge.
This is the law until our constitutional system is revised by the people and not by a few senators led by the President.
It is a dangerous matter when either the legislature or the executive believe that they are superior to the law. Worse yet, if both of them conspire to claim, in word or deed, superiority over the law. Have we begun to see this happening?
The approach, however, might not be as blatant as that. The approach can also be by trying to shame the opponent to submission.
How powerful is the Chief Justice? Another issue which has come up is the extent of the power of the Chief Justice over the other members of the Court. There are implications in some of the articles of impeachment that the Chief Justice has control over the direction of the other members of the Court.
The President has the power of control over the entire executive department. This means that the President can substitute his judgment for the judgment of any executive officer. The Chief Justice has no such power. His vote has only the same weight as the vote of any of the other justices. Influence, perhaps, yes; but control, no.
13 February 2012

Saturday, February 4, 2012


Joaquin G. Bernas, S.J.
Since I was quoted by a prosecutor on my alleged view as to the meaning of “betrayal of public trust” I thought that I might as well put down my view as I expressed it in the 2009 edition of my oft-cited Commentary. I said in part:
“The way the full [1987] provision is worded is significant. It enumerates the grounds for impeachment as ‘culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust.’ The word ‘other’ is significant. Under the eiusdem generis rule, when the law makes an enumeration of specific objects and follows it with ‘other’ unspecified objects, those unspecified objects must be of the same nature as those specified. Thus for ‘graft and corruption’ and ‘betrayal of public trust’ to be grounds for impeachment, their concrete manner of commitment must be of the same severity as ‘treason’ and ‘bribery,’ offenses that strike at the very heart of the life of the nation.”
Grounds for impeachment are found in the United States Constitution, in our 1935, 1973 and 1987 Constitutions. But there are differences in the enumerated grounds.
The enumerated grounds for impeachment common to all of the above Constitutions are treason, bribery, high crimes. Only the 1973 and 1987 Constitutions mention graft and corruption. Betrayal of public trust is found only in the 1987 Constitution.
Our 1935 Constitution basically copied the grounds enumerated in the US Constitution but omitting “misdemeanors.” Likewise the 1973 and 1987 Constitutions have not included “misdemeanors.” The reason for dropping this ground in 1935, according to Delegate Manuel Roxas, was to avoid the risk of molesting high officials with minor offenses.
As to “culpable violation of the Constitution,” a ground not explicitly mentioned in the US Constitution, this is to be taken to mean willful violation and not violations committed unintentionally or involuntarily or in good faith or through an honest mistake of judgment.
“Graft and corruption” as ground for impeachment appears for the first time in the 1973 Constitution and has been included in the 1987 Constitution. But from the reason for the exclusion of “misdemeanor,” graft and corruption must also be understood as signifying more than just minor offenses.
The only ground for impeachment added by the 1987 Constitution is “betrayal of public trust.” What does this means?
The person responsible for the insertion of this provision said that 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.” More generally, another Commissioner said that it could “cover any violation of the oath of office.” , However, the Committee responsible for the article on Accountability of Public Officers accepted the narrower view that betrayal of public trust “implied deliberate intent, perhaps even a certain degree of perversity, for it is not easy to imagine that individuals of the category of these [impeachable] officials would go so far as to defy knowingly what the Constitution commands.” But, again, what it all comes down to is that since “betrayal of public trust” is enumerated as among an exclusive class of offenses, it must also be seen as having the same gravity as the other offenses in the class. In other words, not every violation of public trust is an impeachable offense.
One conclusion I would draw from all these, moreover, is that “high crimes” already covers “culpable violation of the Constitution” and “betrayal of public trust.” As Lawrence Tribe notes, high crimes “will necessarily 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.”
The enumerated impeachable offenses may all be found either in the Penal Code or in special laws. But treason and bribery committed by impeachable officials are paradigms of offenses which endanger the nation – treason, because it is a direct assault on government and the life of the nation, and bribery because it entails abuse of power and corruption of office.
One question that must also be asked is whether there is a difference between the meaning of “Guilty” as found in a judicial decision and “Guilty” as found in an impeachment conviction when they are dealing with offenses of equal gravity.
There is a difference in the result. When a court convicts for treason or bribery it makes a judgment that the person must make amends through loss of life or liberty. When an impeachment court imposes removal from office it makes a judgment that there are compelling reasons for shielding the nation from further harm but leaving retribution to the judgment of a court. For that reason prosecution after conviction on impeachment does not constitute double jeopardy. However, the needed quantum of proof for either criminal conviction or impeachment conviction are not far from each other, if there is a difference at all.
5 February 2012