INADMISSIBLE EVIDENCE?

During one of the impeachment sessions last week, Senator-Judge Miriam Defensor Santiago raised the issue of the validity of the how the Ombudsman obtained records of the alleged bank accounts of the Chief Justice.  Specifically, Santiago focused on how the AMLC obtained the evidence for the Ombudsman.

This is a very crucial question because, if the evidence was obtained in a manner contrary to law, whatever evidence was found would be inadmissible evidence “for any purpose in any proceeding.”  The Bill of Rights is categorical about this: “Any evidence obtained in violation of this [privacy of communication] or the preceding section [search and seizure] shall be inadmissible for any purpose in any proceeding.”  Thus, if the investigation should be shown to be illegal, the consequence would be devastating for the prosecution.  Was it legal or was it not?

To answer this question the Senate will have to consider mainly three questions.  (1) Who may investigate the Chief Justice?  (2) What investigation power does the Ombudsman have?  (3) What is the extent of the power of the AMLC to look into bank accounts?

The enquiry into these questions might begin with Article VIII, Section 6 of the Constitution which says: “The Supreme Court shall have administrative supervision over all courts and the personnel thereof.” The Court has jealously guarded its exclusive power over courts.  Thus the Court has said that the Ombudsman may not investigate any judge or court personnel “in the absence of an administrative charge for the same acts before the Supreme Court.”

However, decisions of the Court on this provision of the Constitution have involved only lower court judges or personnel, none of whom was impeachable. The Court has no power to investigate impeachable officers in connection with the impeachment process.  Jurisdiction over such investigation lies elsewhere.

Who then can investigate the Chief Justice in matters involving money and bank deposits?  This brings us to the question of the scope of the powers of investigation of the Ombudsman.

The Ombudsman gets her power first of all from the Article XI, Section 13(1) of the Constitution: The Office of the Ombudsman shall have the power to “Investigate on its own, or on complaint of any person, any act or omission or any public official, employee, office or agency, when such act or omission appears to be illegal,  unjust, improper, or inefficient.”  By Section 13(5),  the Ombudsman may request any government agency for assistance.  These are reproduced in Section 15 of the Ombudsman Act of 1989.

Since, however, what is involved in the Corona case is dollar accounts, we have to look into more specific laws, namely the Foreign Currency Law and the Anti Money Laundering Act (AMLA).

The Bank Secrecy Law before the Foreign Secrecy Law said: “All deposits of whatever nature with banks or banking institutions in the . . . are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment.. . .”

The later Foreign Currency Law, however, is more strict.  It says: “All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private.”  Note that, unlike in the earlier law, the only exception to secrecy is “written permission of the depositor.” 

Incidentally, too, the TRO issued by the Court on enquiry into dollar deposits, to my knowledge, has not been lifted. 

But we should ask whether the required waiver in the SALN form is sufficient “written permission of the depositor.” Is it? 

For its part, the Anti Money Laundering Council  is empowered to enquire into bank deposits.  Section 11 says: “Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense: Provided, That this provision shall not apply to deposits and investments made prior to the effectivity of this Act.”

Note that it creates an exception to secrecy of foreign deposits found in earlier laws.  But it is not an outright grant of authority.  The AMLC can look into bank deposits only “upon order of any competent court in cases of violation of this Act when it has been established that there is probable cause that the deposits or investments involved are in any way related to a money laundering offense.”  Thus, there must be an order of a court and demonstrated probable cause of money laundering.

To get back to the issue raised by Senator Santiago, the Senate will have to decide whether the evidence presented by the Ombudsman was obtained following both the substantive and procedural requirements of the Foreign Currency Law and the AMLA.  Or should the Senate disregard the issue of legality or illegality of the manner in which the evidence was obtained?

21 May 2012

CAGAYAN DE ORO EARTH DAY DOCUMENT Joaquin G. Bernas, S.J. Last April 21 2012, Cagayan de Oro City celebrated Earth Day. Quite obviously it was in the aftermath of the calamity wrought by Typhoon Sendong, last December. What is the situation today? Let me share with you the answer to and reflection on this question given by six prelates of different Christian denominations working in the area. Archbishop Antonio Ledesma, S.J. of Cagayan de Oro passed on the document to me. “More than four months have passed. At present more than 5,000 evacuee families are still living in transitional shelter arrangements in our city as they await the construction of permanent housing units. “The loss of more than a thousand lives and the washed-out destruction of more than 10,000 homes in Cagayan de Oro and Iligan cities are grim reminders of the other side of Earthday: how the earth itself groans and weeps in the face of man’s abuse of the environment. “Sacred Scripture tells us that God created the world in an orderly manner and ‘found it very good.’ (Genesis 1). The integrity of creation was Yaweh’s gift to the first man and woman in Paradise. In its cosmic harmony, nature itself became the first book of revelation of God’s infinite goodness to humankind. “In this light, human beings were given ‘dominion over all other creatures’ – not to abuse nature, but to become stewards of creation. We are also reminded that in our efforts at sustainable development, we should engage in intergenerational justice – namely, that our present generation should not deprive succeeding generations of the bounty of natures nature’s resources. Our Christian faith impels us to uphold the dignity of every human person and the supremacy of the common good over the individual interests of a few.” Obviously the writers of this document are familiar not just with theological teaching but also with the Supreme Court jurisprudence on environmental law. Oposa v. Factoran, Jr. spoke of intergenerational justice and upheld the right of minors to challenge the validity of logging permits. The Court said: “The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. . . The said right implies, among many other things, the judicious management and conservation of the country’s forests. Without such forests, the ecological environmental balance would be irreversibly disrupted.” The writers of the Earthday document continue: “The widespread destruction brought about by typhoon Sendong was due not only to natural causes but also to man-made malpractices -- such as indiscriminate logging in the watershed areas over the past decades, and more recently irresponsible mining practices, whether small-scale or disguisedly large-scale, on the upland and riverside areas of Cagayan de Oro. “Aerial photographs and first-hand reports by residents in the more remote areas attest to the extensive damage already done to the environment. This is brought about by practices such as hydraulic flush mining, dynamiting of hillside, and massive excavations of the topsoil. There are also confirmed reports that the unprocessed soil is then shipped to another country – a stark example of how our country compromises its own territorial integrity, leaving the landscape scarred and depleted.” I do not have the expertise to be able to affirm or challenge the veracity of the reports contained in this Cagayan de Oro Earth Day document. But I have confidence in the integrity of the report of authors of the document based on facts seen by them from actual day to day contact with the people about things happening in their area of pastoral responsibility and not from comfortable corporate offices. It is also noteworthy that they are not asking for a national policy. They are asking for a remedy for what they know first hand about the ecologically threatened areas of Cagayan de Oro. It may be that what they are asking for are of national application. But they do not presume to speak about other areas. Concretely they ask for the following: “1) We call for an independent, multi-sectoral monitoring body to periodically examine the actual state of mining and logging activities in the watershed areas of Cagayan de Oro. This multi-sectoral body should include representatives of civil society organizations, upland and lowland communities. church leaders and academe. “2) We call for a comprehensive scientific study of the river basin and watersheds of the Cagayan de Oro River and adjoining tributaries. In particular we need an impact assessment of mining and logging, including large-scale upland plantations, on environmentally fragile areas within a proximate radius from the city center, the implications of a ridge-river-reef approach in conserving our waterways, and how extractive activities impact on an island ecology. “3) We need to broaden the meaning of “free, prior, and informed consent” to include not only the upland communities but also the downstream communities that will be affected by mining and logging activities . . . “4) The issue of environmenetal governance has to be clarified . . . e.g. in terms of the prior role of the Department of Environment in issuing prior clearances, the collective responsibility of city council and chief executive, and the need for transparency and accountability . . . “5) Finally, we invoke the precautionary principle [in environmental jurisprudence] – that in the face of so many unsolved issues, the more prudent recourse is safety first for the larger community. . .” 30 April 2012

SCARBOROUGH SHOAL Joaquin G. Bernas, S.J. It would be foolhardy for the Philippines to think that it can maintain its claim to the Scarborough Shoal by force of arms. And our people know it. Thus the Philippines has made the only rational choice, namely to seek resolution of the controversy with China through peaceful means. But what is the bone of contention? It is about a group of islands, reefs and rocks and waters possibly rich in natural resources. Jurisdiction over waters is necessarily dependent on jurisdiction over land to which the waters adjoin. This is governed by the 1982 Convention on the Law of the Seas (UNCLOS). Although the Scarborough Shoal is outside the limits set by the Treaty of Paris for Philippine territory, the Philippine has had a long history of activities related to the area. The area’s official Philippine name is Bajo de Masinloc, which in English means “below Masinloc,” Masinloc being a town in Zambales. The waters have been treated as fishing area of Filipino fishermen. The Philippine Air Force, together with United States planes when the US still had bases in the Philippines, used the area for target practice. It has been the practice of the Philippine Navy to chase away foreign fisher vessels intruding into the area. Our Constitution declares that Philippine territory consists of the archipelago and “and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas,” that is, other territories which, depending on available evidence, might belong to the Philippines. The 1973 Constitution referred to these as “other territories belonging to the Philippines by historic right or legal title." The extent of the archipelago can be verified by reference to the lines draw by the Treaty of Paris. But the Constitution does not specify where the “other territories” over which the Philippines has jurisdiction are. Scarborough Shoal lies outside the limits of the Treaty of Paris. The latest move of the Philippines to assert its claim over Scarborough Shoal, among other areas, was the enactment of R.A. 9822, the New Baseline Law. Baselines are lines drawn along the low water mark of an island or group of islands which mark the end of the internal waters and the beginning of the territorial sea. Each country must draw its own baselines following the provisions of the Law of the Sea. R.A. 9522 provides for one baseline around the archipelago and separate baselines for a “regime of islands,” that is, islands other then those within the archipelago. Like the archipelago, islands within a “regime of islands” outside the archipelago have their own “territorial sea, contiguous zone, exclusive economic zone and continental shelf.” R.A. 9522 places the Scarborough Shoal within a Philippine regime of islands. The enactment of RA 9522 was immediately met with protest from China and Vietnam, both of which also claim historic title over the area. At the moment, national interest is focused on the activities of Chinese fishing vessels and patrol planes in the area of the Scarborough Shoal. Although the land area may be relatively insignificant, the waters are not. From the baseline are measured the territorial sea (12 nautical miles outward), the contiguous zone (24 miles from the outward edge of the territorial sea), and the exclusive economic zone (200 miles from the outward edge of the territorial sea). A coastal state has control over fishing, mining, oil exploration, and other economic resources within the exclusive economic zone. These are what the Philippines wants to protect. When one considers the vastness of the territory and the riches that lie within it, it is understandable why states should quarrel over their control. This is where we are today in relation to China. How will the quarrel be resolved? The Philippines has invited China to submit the case to the International Tribunal on the Law of the Sea (ITLOS). The Tribunal is an independent judicial body established by the UNCLOS. It can adjudicate disputes arising from the Law of the Sea. So far it seems that China has rejected submission to the International Tribunal for the Law of the Saw. All is not lost, however. Part XV of the Convention provides for a comprehensive system for the settlement of disputes. It requires parties to settle their disputes by peaceful means. They have a choice of four alternatives. Submission to the International Tribunal on the Law of the Sea, which, it seems, has been rejected by China, is just one of them. There still remain three: the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention. But the parties must agree on the choice of the method of settlement to be used. This is a major challenge to the legal and diplomatic skills of the administration. 23 April 2012

IMPEACHMENT AS DEMONIZING

I
I do not recall it happening to President Estrada when he was undergoing impeachment; nor for that matter was it the case with Mercy Gutierrez. But the demonizing that the Chief Justice has been undergoing is something I would not wish on myself or anybody else for that matter.
Let me say, however, that I believe this would not have happened if he had not been offered and had not accepted the office of Chief Justice. That, it would seem to me, may have been the original sin that triggered it all. But, of course, it was his right to make that choice and there is no turning back now. It was only after he assumed office that the decision was made that he must go. Thus the demonizing started.
The implied go-signal was first given by the President himself when he refused to take his oath before the Chief Justice. It did not take long before 188 Congressmen and Congresswomen quickly came running to answer the call. And even as the impeachment trial was already ongoing, the President continued to convey his clear desire to the body trying the impeachment that Corona must go.
As the impeachment trial proceeded, little by little everything, including the kitchen sink, began to be thrown at him. Media also did its part gobbling every bit of dirt that came from Congress. Surveys showed that the demonization was having an effect on the thinking of the public. The Chief Justice was already being seen as a convict and a lame duck.
Could this outcome have been avoided? Not completely, I believe. But I believe that the deluge could have been mitigated if the process followed had been worked out differently. For instance, a pre-trial could have weeded out allegations which seem to be turning out to be without foundation. The prosecution itself trimmed down the allegation of forty-five pieces of offending properties to twenty-one, but only after the damage to the person had been done. Likewise, the eight articles of impeachment were trimmed down by the prosecution to three with concentration on only one.
The unpreparedness of the prosecution, who often found themselves fumbling and groping and almost crying to be rescued by senators, also had the effect of delaying the chance of the defense to present their answer. This, together with the often and prolonged intervention of the senator judges, and the long Lenten recess, have allowed what are turning out to be false impressions to simmer long in the minds of observers.
How will this end? The spokespersons of the prosecution are saying that the it is all over but the shouting. Others, however, are saying that it is too early to tell.
There are a number of factors that can affect the final outcome. The first of these, of course, is what the defense can do. They have an herculean task to perform and they have only started to do their work. Like the spokespersons of the prosecution, they too seem confident of being able to show that the Chief Justice is not all that bad. Meanwhile, the Palace has decided to let the process run its course without presidential coaching, at least not publicly!
It is good to remember the number of votes needed to determine the final outcome. Only eight favorable votes are needed for the Chief Justice to escape conviction. Sixteen votes are needed to convict. It is not difficult to tell how some of the senators will vote. For the rest, it is a guessing game. What you seem to see may not necessarily be what you will get.
There are a number extraneous factors that can be working in the minds of the senator judges. The obvious one of these is the coming 2013 elections. Some of the senators are re-electionists. You can be sure that they have their ears to the ground.
Another extraneous factor is more delicate. The Senate recess has lasted very long and it also coincided with the season of Lent and Easter. What effect the Holy Season has had, if any, on the impeachment actors, can also affect the impeachment proceeding up to its conclusion. Only the Almighty can measure this one.
* * * *
Ordinations. Over the weekend I took part in two ceremonies which had some similarities. The first was the ordination of seven young Jesuits to the priesthood. The ceremony, as always, was more solemn than the rites you may have witnessed in the Lord of the Rings. There was a presentation of the candidates for ordination to the ordaining Bishop, there was a laying of hands on the ordinands signifying the conferral of the Holy Spirit, there was annointing of the hands, and there was a solemn pronouncement of the mandate -- to serve the people as Christ the model priest served the people. For us older priests attending the ceremony, it was an occasion for assessing our own adherence to old commitments and renewing them.
Being partial to the legal profession myself, I like to think that the other ceremony I attended – Baccalaureate Mass and graduation from the Ateneo Law School -- was also a kind of ordination. Ordination to what? No, not to a life of celibacy, of course. We would not know how to prepare energetic young stallions for that. Rather, ordination to a life of service as servants of the law, of God, and of the people.
16 April 2012

BETRAYAL OF PUBLIC TRUST

BETRAYAL OF PUBLIC TRUST
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

IMPEACHMENT ODDS AND ENDS

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

ABOUT ABANDONED ARTICLES AND PLAGIARISM

ABOUT ABANDONED ARTICLES AND PLAGIARISM

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