SUNDRY ISSUES ON IMPEACHMENT
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 28, 2012
Saturday, January 21, 2012
FUROR OVER SALN
FUROR OVER THE CORONA SALN
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
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
SC & IMPEACHMENT
IMPEACHMENT AND THE SUPREME COURT
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
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
IMPEACHMENT FROM START TO FINISH
IMPEACHMENT FROM START TO FINISH
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
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
Saturday, December 31, 2011
QUESTIONS FOR THE SENATE AS JURY
QUICK QUESTIONS FOR THE SENATE AS JURY
Joaquin G. Bernas, S.J.
By constitutional mandate the Senate is the judge in an impeachment case. Let me propose some questions arising from a summary of the charges filed by the House of Representatives. I believe the Senate will ponder these after it has determined that that the complaint was properly verified.
I. RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS TRACK RECORD MARKED BY PARTIALITY AND SUBSERVIENCE IN CASES INVOLVING THE ARROYO ADMINISTRATION FROM THE TIME OF HIS APPOINTMENT AS SUPREME COURT JUSTICE WHICH CONTINUED TO HIS DUBIOUS APPOINTMENT AS A MIDNIGHT CHIEF JUSTICE AND UP TO THE PRESENT.
a. I too opposed the exercise of the appointing power during the two month prohibited period. But the Supreme Court decided otherwise. May the Senate review the Court’s decision?
b. Is it illegitimate to assume that the votes of Corona represented independent judgment?
II. RESPONDENT COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST WHEN HE FAILED TO DISCLOSE TO THE PUBLIC HIS STATEMENT OF ASSETS, LIABILITIES, AND NET WORTH AS REQUIRED UNDERSEC. 17, ART. XI OF THE 1987 CONSTITUTION.
a. The command on making assets and liabilities public is qualified by the clause “in the manner provided by law.” Is there a law providing the manner and did Corona violate it?
b. Alternatively, if there is no law applicable specifically to the judiciary, may Corona follow instead the manner prescribed in Resolutions of the Supreme Court before him? (Which I am told he does regularly.)
c. What evidence will be presented on the alleged illegally acquired property?
III. RESPONDENT COMMITTED CULPABLE VIOLATIONS OF THE CONSTITUTION AND BETRAYED THE PUBLIC TRUST BY FAILING TO MEET AND OBSERVE THE STRINGENT STANDARDS UNDER ART. VIII, SECTION 7 (3) OF THE CONSTITUTION THAT PROVIDES THAT [A] MEMBER OF THE JUDICIARY MUST BE A PERSON OF PROVEN COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE IN ALLOWING THE SUPREME COURT TO ACT ON MERE LETTERS FILED BY A COUNSEL WHICH CAUSED THE ISSUANCE OF FLIP-FLOPPING DECISIONS IN FINAL AND EXECUTORY CASES; IN CREATING AN EXCESSIVE ENTANGLEMENT WITH MRS. ARROYO THROUGH HER APPOINTMENT OF HIS WIFE TO OFFICE; AND IN DISCUSSING WITH LITIGANTS REGARDING CASES PENDING BEFORE THE SUPREME COURT.
a. Is the flip-flopping of the Court in collegial decisions attributable to Corona alone or to a body struggling to arrive at justice? Did Corona himself flip-flop?
b. Is the Court prohibited from modifying prior decisions or doctrines?
c. When and by whom was Mrs. Corona appointed to John Hay Management Corporation? Is a husband obliged to compel his wife to turn down an appointment? Or did he try to dissuade her at all? Or was he overruled by the wife?
d. Can a husband be made answerable for acts of the wife?
e. Will Justice Carpio be asked to testify about the alleged lobbying about pending cases?
IV. RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION WHEN IT BLATANTLY DISREGARDED THE PRINCIPLE OF SEPARATION OF POWERS BY ISSUING A STATUS QUO ANTE ORDER AGAINST THE HOUSE OF REPRESENTATIVES IN THE CASE CONCERNING THE IMPEACHMENT OF THEN OMBUDSMAN MERCEDITAS NAVARRO-GUTIERREZ.
a. What can be made of the fact that the status quo ante order was a resolution of eight justices? How did Corona vote on the later reversal of the status quo ante order?
V. RESPONDENT COMMITTED CULPABLE VIOLATIONS OF THE CONSTITUTION THROUGH WANTON ARBITRARINESS AND PARTIALITY IN CONSISTENTLY DISREGARDING THE PRINCIPLE OF RES JUDICATA AND IN DECIDING IN FAVOR OF GERRY-MANDERING IN THE CASES INVOLVING THE 16 NEWLY-CREATED CITIES, AND THE PROMOTION OF DINAGAT ISLAND INTO A PROVINCE.
a. Were not the League of Cities case and the Dinagat case collegial decisions upholding acts of Congress? Were the laws involved statutory responses of Congress to the people as “master” as against greed of the League of Cities?
b. Was not the FASAP decision also collegial?
c. Is the Supreme Court powerless to look into the activities of its members (e.g, plagiarism) especially if it involves things that might affect the reputation of the Court?
d. Was not the creation of new districts in Camarines Sur done by Congress, the representative of the people?
e. Who decides the application of the principle of proportionality (or “one man, one vote”) in the size of districts?
VII. RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS PARTIALITY IN GRANTING A TEMPORARY RESTRAINING ORDER (TRO) IN FAVOR OF FORMER PRESIDENT GLORIA MACAPAGAL-ARROYO AND HER HUSBAND JOSE MIGUEL ARROYO IN ORDER TO GIVE THEM AN OPPORTUNITY TO ESCAPE PROSECUTION AND TO FRUSTRATE THE ENDS OF JUSTICE, AND IN DISTORTING THE SUPREME COURT DECISION ON THE EFFECTIVITY OF THE TRO IN VIEW OF A CLEAR FAILURE TO COMPLY WITH THE CONDITIONS OF THE SUPREME COURT'S OWN TRO.
a. The constitutionality of the restriction on the right to travel through DOJ Circular on HDOs is pending before the Court with the decision expected after New Year. Should the Senate preempt the SC decision?
b. What is the import, if any, of the existence of a House Bill and a Senate Bill disempowering the DOJ?
c. The continuing effectivity of the TRO has been affirmed by the Supreme Court. What power does the Senate have over it?
VIII. RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED GRAFT AND CORRUPTION WHEN HE FAILED AND REFUSED TOACCOUNT FOR THE JUDICIARY DEVELOPMENT FUND (JDF) AND SPECIAL ALLOWANCE FOR THE JUDICIARY (SAJ) COLLECTIONS.
a. Involved in this is the interpretation of the extent of fiscal autonomy of the Court. What is the jurisprudence on this? Will the Senate apply or depart from existing jurisprudence on the subject?
Joaquin G. Bernas, S.J.
By constitutional mandate the Senate is the judge in an impeachment case. Let me propose some questions arising from a summary of the charges filed by the House of Representatives. I believe the Senate will ponder these after it has determined that that the complaint was properly verified.
I. RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS TRACK RECORD MARKED BY PARTIALITY AND SUBSERVIENCE IN CASES INVOLVING THE ARROYO ADMINISTRATION FROM THE TIME OF HIS APPOINTMENT AS SUPREME COURT JUSTICE WHICH CONTINUED TO HIS DUBIOUS APPOINTMENT AS A MIDNIGHT CHIEF JUSTICE AND UP TO THE PRESENT.
a. I too opposed the exercise of the appointing power during the two month prohibited period. But the Supreme Court decided otherwise. May the Senate review the Court’s decision?
b. Is it illegitimate to assume that the votes of Corona represented independent judgment?
II. RESPONDENT COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST WHEN HE FAILED TO DISCLOSE TO THE PUBLIC HIS STATEMENT OF ASSETS, LIABILITIES, AND NET WORTH AS REQUIRED UNDERSEC. 17, ART. XI OF THE 1987 CONSTITUTION.
a. The command on making assets and liabilities public is qualified by the clause “in the manner provided by law.” Is there a law providing the manner and did Corona violate it?
b. Alternatively, if there is no law applicable specifically to the judiciary, may Corona follow instead the manner prescribed in Resolutions of the Supreme Court before him? (Which I am told he does regularly.)
c. What evidence will be presented on the alleged illegally acquired property?
III. RESPONDENT COMMITTED CULPABLE VIOLATIONS OF THE CONSTITUTION AND BETRAYED THE PUBLIC TRUST BY FAILING TO MEET AND OBSERVE THE STRINGENT STANDARDS UNDER ART. VIII, SECTION 7 (3) OF THE CONSTITUTION THAT PROVIDES THAT [A] MEMBER OF THE JUDICIARY MUST BE A PERSON OF PROVEN COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE IN ALLOWING THE SUPREME COURT TO ACT ON MERE LETTERS FILED BY A COUNSEL WHICH CAUSED THE ISSUANCE OF FLIP-FLOPPING DECISIONS IN FINAL AND EXECUTORY CASES; IN CREATING AN EXCESSIVE ENTANGLEMENT WITH MRS. ARROYO THROUGH HER APPOINTMENT OF HIS WIFE TO OFFICE; AND IN DISCUSSING WITH LITIGANTS REGARDING CASES PENDING BEFORE THE SUPREME COURT.
a. Is the flip-flopping of the Court in collegial decisions attributable to Corona alone or to a body struggling to arrive at justice? Did Corona himself flip-flop?
b. Is the Court prohibited from modifying prior decisions or doctrines?
c. When and by whom was Mrs. Corona appointed to John Hay Management Corporation? Is a husband obliged to compel his wife to turn down an appointment? Or did he try to dissuade her at all? Or was he overruled by the wife?
d. Can a husband be made answerable for acts of the wife?
e. Will Justice Carpio be asked to testify about the alleged lobbying about pending cases?
IV. RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION WHEN IT BLATANTLY DISREGARDED THE PRINCIPLE OF SEPARATION OF POWERS BY ISSUING A STATUS QUO ANTE ORDER AGAINST THE HOUSE OF REPRESENTATIVES IN THE CASE CONCERNING THE IMPEACHMENT OF THEN OMBUDSMAN MERCEDITAS NAVARRO-GUTIERREZ.
a. What can be made of the fact that the status quo ante order was a resolution of eight justices? How did Corona vote on the later reversal of the status quo ante order?
V. RESPONDENT COMMITTED CULPABLE VIOLATIONS OF THE CONSTITUTION THROUGH WANTON ARBITRARINESS AND PARTIALITY IN CONSISTENTLY DISREGARDING THE PRINCIPLE OF RES JUDICATA AND IN DECIDING IN FAVOR OF GERRY-MANDERING IN THE CASES INVOLVING THE 16 NEWLY-CREATED CITIES, AND THE PROMOTION OF DINAGAT ISLAND INTO A PROVINCE.
a. Were not the League of Cities case and the Dinagat case collegial decisions upholding acts of Congress? Were the laws involved statutory responses of Congress to the people as “master” as against greed of the League of Cities?
b. Was not the FASAP decision also collegial?
c. Is the Supreme Court powerless to look into the activities of its members (e.g, plagiarism) especially if it involves things that might affect the reputation of the Court?
d. Was not the creation of new districts in Camarines Sur done by Congress, the representative of the people?
e. Who decides the application of the principle of proportionality (or “one man, one vote”) in the size of districts?
VII. RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS PARTIALITY IN GRANTING A TEMPORARY RESTRAINING ORDER (TRO) IN FAVOR OF FORMER PRESIDENT GLORIA MACAPAGAL-ARROYO AND HER HUSBAND JOSE MIGUEL ARROYO IN ORDER TO GIVE THEM AN OPPORTUNITY TO ESCAPE PROSECUTION AND TO FRUSTRATE THE ENDS OF JUSTICE, AND IN DISTORTING THE SUPREME COURT DECISION ON THE EFFECTIVITY OF THE TRO IN VIEW OF A CLEAR FAILURE TO COMPLY WITH THE CONDITIONS OF THE SUPREME COURT'S OWN TRO.
a. The constitutionality of the restriction on the right to travel through DOJ Circular on HDOs is pending before the Court with the decision expected after New Year. Should the Senate preempt the SC decision?
b. What is the import, if any, of the existence of a House Bill and a Senate Bill disempowering the DOJ?
c. The continuing effectivity of the TRO has been affirmed by the Supreme Court. What power does the Senate have over it?
VIII. RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED GRAFT AND CORRUPTION WHEN HE FAILED AND REFUSED TOACCOUNT FOR THE JUDICIARY DEVELOPMENT FUND (JDF) AND SPECIAL ALLOWANCE FOR THE JUDICIARY (SAJ) COLLECTIONS.
a. Involved in this is the interpretation of the extent of fiscal autonomy of the Court. What is the jurisprudence on this? Will the Senate apply or depart from existing jurisprudence on the subject?
Saturday, December 24, 2011
DEATH OF TRUTH COMMISSION AS ORIGINAL SIN
DEATH OF THE TRUTH COMMISSION AS ORIGINAL SIN
Joaquin G. Bernas, S.J.
Was the invalidation of the Truth Commission really the original sin of the Supreme Court which has impeded the President’s campaign against corruption? I took a second look at the decision. If the President had read it with an open mind, he would have found that his speech writers and advisers may have given him the wrong signal about the impact of the court’s decision.
The fact is that, when the report on the death knell on the Truth Commission was rung by the Supreme Court, there was no lamentation in the Palace. A Palace spokesman simply said in a matter of fact way that the Palace accepted the decision.
My colleagues and I were not surprised by such reaction. One main reason for creating the Truth Commission, after all, was the obvious Palace and public perception that the Office of the Ombudsman could not be relied upon to pursue a campaign of walang corrup, walang mahirap. And so indeed the President’s allies would relently go after the Ombudsman and they could rely on a vast majority in House of Representatives only too ready to satisfy the President’s wishes. With the departure of the former Ombudsman, the urgency of a Truth Commission would disappear.
As a matter of fact, moreover, under the terms of the original Supreme Court decision, the Palace could have rescued the Executive Order by minor amendments to make it conform with what the Court wanted. The Court was not asking for too much. All it was asking for was a textual expression in the law that it would not exclusively target the past administration. The Court’s desire for a clear sign of equal protection did not exclude the possibility of giving priority to what had transpired during GMA’s time
As the Court emphasized: “Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution.” All that was needed was a little tweaking as suggested by the Court itself. (I myself did not think that tweaking would be necessary.)
The Palace, however, believed that it did not need a Truth Commission and therefore chose to let it die. My impression is that the government’s motion for reconsideration was filed half-heartedly. Hence, the defeat was unlamented by the Palace. Why so? Because, aside from the fact that the Palace was looking toward a new Ombudsman, the decision was in fact an affirmation of the legality of the Palace’s determination to pursue a campaign against graft and corruption.
The decision, very importantly, was and is an affirmation of the often ignored portion of Article VII, Section 17 of the Constitution which says that the President “shall ensure that the laws be faithfully executed.” This is the same phrase on which President Cory Aquino relied when she denied the request of former President Marcos to return from his exile. She contended that his return could disturb the legal order of the nation. The Court affirmed her saying that “although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of ‘executive power.’ Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.”
Echoing this earlier decision, the Truth Commission decision said: “Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed.”
The Palace in fact was preparing a new team that would lead the exercise of these vast powers. However, I don’t know what happened to that team after the person who was supposed to lead it was incapacitated by sudden illness.
The Truth Commission was also challenged by the opposition on the ground that it was a usurpation of the powers of the Ombudsman and of the Justice Department. On this point the Court said: “Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices.”
Why is it then that in his recent speeches the President has repeatedly blamed the invalidation of the Truth Commission as a major cause of the government’s failure to succeed in its drive against corruption? It seems that it is because, in spite of the vast powers of government and its single-minded campaign to pin down Gloria Arroyo and CJ Corona, he is seeing that his investigation and prosecution arms, are failing him. He may be seeing this as his own personal failure. Thus, sadly, his lamentation over the death of the Truth Commission sounds like a smoke-screen for personal failure.
26 December 2011
Joaquin G. Bernas, S.J.
Was the invalidation of the Truth Commission really the original sin of the Supreme Court which has impeded the President’s campaign against corruption? I took a second look at the decision. If the President had read it with an open mind, he would have found that his speech writers and advisers may have given him the wrong signal about the impact of the court’s decision.
The fact is that, when the report on the death knell on the Truth Commission was rung by the Supreme Court, there was no lamentation in the Palace. A Palace spokesman simply said in a matter of fact way that the Palace accepted the decision.
My colleagues and I were not surprised by such reaction. One main reason for creating the Truth Commission, after all, was the obvious Palace and public perception that the Office of the Ombudsman could not be relied upon to pursue a campaign of walang corrup, walang mahirap. And so indeed the President’s allies would relently go after the Ombudsman and they could rely on a vast majority in House of Representatives only too ready to satisfy the President’s wishes. With the departure of the former Ombudsman, the urgency of a Truth Commission would disappear.
As a matter of fact, moreover, under the terms of the original Supreme Court decision, the Palace could have rescued the Executive Order by minor amendments to make it conform with what the Court wanted. The Court was not asking for too much. All it was asking for was a textual expression in the law that it would not exclusively target the past administration. The Court’s desire for a clear sign of equal protection did not exclude the possibility of giving priority to what had transpired during GMA’s time
As the Court emphasized: “Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution.” All that was needed was a little tweaking as suggested by the Court itself. (I myself did not think that tweaking would be necessary.)
The Palace, however, believed that it did not need a Truth Commission and therefore chose to let it die. My impression is that the government’s motion for reconsideration was filed half-heartedly. Hence, the defeat was unlamented by the Palace. Why so? Because, aside from the fact that the Palace was looking toward a new Ombudsman, the decision was in fact an affirmation of the legality of the Palace’s determination to pursue a campaign against graft and corruption.
The decision, very importantly, was and is an affirmation of the often ignored portion of Article VII, Section 17 of the Constitution which says that the President “shall ensure that the laws be faithfully executed.” This is the same phrase on which President Cory Aquino relied when she denied the request of former President Marcos to return from his exile. She contended that his return could disturb the legal order of the nation. The Court affirmed her saying that “although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of ‘executive power.’ Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.”
Echoing this earlier decision, the Truth Commission decision said: “Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed.”
The Palace in fact was preparing a new team that would lead the exercise of these vast powers. However, I don’t know what happened to that team after the person who was supposed to lead it was incapacitated by sudden illness.
The Truth Commission was also challenged by the opposition on the ground that it was a usurpation of the powers of the Ombudsman and of the Justice Department. On this point the Court said: “Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices.”
Why is it then that in his recent speeches the President has repeatedly blamed the invalidation of the Truth Commission as a major cause of the government’s failure to succeed in its drive against corruption? It seems that it is because, in spite of the vast powers of government and its single-minded campaign to pin down Gloria Arroyo and CJ Corona, he is seeing that his investigation and prosecution arms, are failing him. He may be seeing this as his own personal failure. Thus, sadly, his lamentation over the death of the Truth Commission sounds like a smoke-screen for personal failure.
26 December 2011
Saturday, December 17, 2011
WHAT TO EXPECT IN CORONA IMPEACHMENT
It has frequently been said that the impeachment process is a numbers game where the vote is along party alignment. This has been verified historically. Partly for this reason no President of the United States or of the Philippines has been convicted on impeachment. To my knowledge, moreover, no Justice of the Supreme Court has been convicted on impeachment. An attempt to impeach Associate Justice Samuel Chase was launched from the White House on the ground that Chase allowed his political leanings to affect his decision. (Incidentally, as in the complaint against Corona, there were also eight counts in the charge against Justice Chase.) The impeachment fizzled out.
The dictum that impeachment is a numbers game is especially true when the partisan alignment in Congress is clear. Thus no one need be surprised at the swift and overwhelming approval of the impeachment complaint against the Chief Justice, especially since, with eight points in the complaint, each member of the House had a smorgasbord to choose from.
It may be too early to evaluate the real consequence on the entire judiciary. Instilling the fear of the Lord is not bad in itself, if the Lord is perceived to be fair. And, indeed, the judiciary as it stands today can stand some shaking. The sentiment is widely accepted that there still are in the judiciary sour apples who, if baked, will not make a tasty apple pie. But it cannot be denied that what is happening now can have or may already be having a chilling effect on the more pusillanimous among the good apples.
Fortunately, the numbers game analogy may not be easy to apply to the Senate composition today. The Senate will try the case. The alignment in the Senate is not easily figured out and there are tried and tested statesmen in the Senate who can influence the novices. We can therefore have a decision that is clearly based on the merits. In fact, part of the reason why the outcome in the House was so swift could be the realization by the members that they were not making the final vote. They could pass the headache on to the Senate. That is where it will be and the Senators are ready with their robes!
The impeachment process is a legitimate tool found in the Constitution. Its general purpose is to rid the government of people who do not deserve to be in high office. For this purpose and in order to avoid a general bloodbath, it is meant to be carefully focused on individuals. From what I have seen in the charges made against the Chief Justice I can find charges that indeed are focused on him alone. But a good number of the charges are based on his vote in majority collegial decisions of the Court. Congress members and the Palace can deny until they are blue in the face that the target is the Supreme Court as a body, but the complaints tell us that some of them are clearly aimed at collegial decisions.
That the target is not just the vote of the Chief Justice but also of the body is also born out by the broad claim made on television by the Chairman of the House Justice Committee that the Congress can discipline justices. Discipline them for treason, bribery, graft and corruption, culpable violation of the Constitution, other high crimes or betrayal of public trust, yes; but not for collegial decisions with which the Congress disagrees.
I shall not attempt to evaluate the merit of each of the eight points in the complaint. That is the heavy responsibility of the Senate. The Senate will evaluate each of them to determine if any or all of them can convincingly fall under the allowable grounds for conviction, namely “treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” It is the Senate, and not the Court, which decides what these grounds for conviction on impeachment mean. The Court itself has said as much in an earlier impeachment case. The Court can only review whether the constitutional procedure has been followed.
In evaluating the charges, will the Senate apply the rule, among others, of eiusdem generis? This rule says that undefined elements in an enumeration must be read as qualified by the defined elements. Concretely this means that, when there is “allegation of graft and corruption or culpable violation of the Constitution or betrayal of public trust,” the allegation cannot be of merely venial offenses but must be of offenses comparable in gravity with “treason, bribery or other high crimes,” offenses which strike at the very life of the nation. This will be for the Senate to decide. Moreover, the Senate also decides the quantum of evidence needed to convict. Impeachment is not a criminal process which needs proof beyond reasonable doubt.
There is another point that must be remembered. Impeachment is not just a legal exercise. It is also a political exercise, that is, a policy exercise. If judgment on impeachment were exclusively a legal exercise, it would have been entrusted to the courts. But since it is also a policy exercise, judgment on impeachment has been given by the Constitution to a policy making body. Hence, when the Senators vote, they will be voting not just on the validity of the charges but also on their perception of what is best for the country. That requires the wisdom of a statesman.
19 December 2011
The dictum that impeachment is a numbers game is especially true when the partisan alignment in Congress is clear. Thus no one need be surprised at the swift and overwhelming approval of the impeachment complaint against the Chief Justice, especially since, with eight points in the complaint, each member of the House had a smorgasbord to choose from.
It may be too early to evaluate the real consequence on the entire judiciary. Instilling the fear of the Lord is not bad in itself, if the Lord is perceived to be fair. And, indeed, the judiciary as it stands today can stand some shaking. The sentiment is widely accepted that there still are in the judiciary sour apples who, if baked, will not make a tasty apple pie. But it cannot be denied that what is happening now can have or may already be having a chilling effect on the more pusillanimous among the good apples.
Fortunately, the numbers game analogy may not be easy to apply to the Senate composition today. The Senate will try the case. The alignment in the Senate is not easily figured out and there are tried and tested statesmen in the Senate who can influence the novices. We can therefore have a decision that is clearly based on the merits. In fact, part of the reason why the outcome in the House was so swift could be the realization by the members that they were not making the final vote. They could pass the headache on to the Senate. That is where it will be and the Senators are ready with their robes!
The impeachment process is a legitimate tool found in the Constitution. Its general purpose is to rid the government of people who do not deserve to be in high office. For this purpose and in order to avoid a general bloodbath, it is meant to be carefully focused on individuals. From what I have seen in the charges made against the Chief Justice I can find charges that indeed are focused on him alone. But a good number of the charges are based on his vote in majority collegial decisions of the Court. Congress members and the Palace can deny until they are blue in the face that the target is the Supreme Court as a body, but the complaints tell us that some of them are clearly aimed at collegial decisions.
That the target is not just the vote of the Chief Justice but also of the body is also born out by the broad claim made on television by the Chairman of the House Justice Committee that the Congress can discipline justices. Discipline them for treason, bribery, graft and corruption, culpable violation of the Constitution, other high crimes or betrayal of public trust, yes; but not for collegial decisions with which the Congress disagrees.
I shall not attempt to evaluate the merit of each of the eight points in the complaint. That is the heavy responsibility of the Senate. The Senate will evaluate each of them to determine if any or all of them can convincingly fall under the allowable grounds for conviction, namely “treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” It is the Senate, and not the Court, which decides what these grounds for conviction on impeachment mean. The Court itself has said as much in an earlier impeachment case. The Court can only review whether the constitutional procedure has been followed.
In evaluating the charges, will the Senate apply the rule, among others, of eiusdem generis? This rule says that undefined elements in an enumeration must be read as qualified by the defined elements. Concretely this means that, when there is “allegation of graft and corruption or culpable violation of the Constitution or betrayal of public trust,” the allegation cannot be of merely venial offenses but must be of offenses comparable in gravity with “treason, bribery or other high crimes,” offenses which strike at the very life of the nation. This will be for the Senate to decide. Moreover, the Senate also decides the quantum of evidence needed to convict. Impeachment is not a criminal process which needs proof beyond reasonable doubt.
There is another point that must be remembered. Impeachment is not just a legal exercise. It is also a political exercise, that is, a policy exercise. If judgment on impeachment were exclusively a legal exercise, it would have been entrusted to the courts. But since it is also a policy exercise, judgment on impeachment has been given by the Constitution to a policy making body. Hence, when the Senators vote, they will be voting not just on the validity of the charges but also on their perception of what is best for the country. That requires the wisdom of a statesman.
19 December 2011
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