POPULAR SOVEREIGNTY REAL AND BOGUS
Joaquin G. Bernas, S.J.
Last Saturday we recalled the historic event of the EDSA Revolution. Yes, it was a revolution, although a peaceful one. A revolution takes place when a portion of the populace attempts to wrest power from the legitimate government. If it fails, the leaders go to jail. If it succeeds and maintains its hold on the government, it is a supreme democratic act. EDSA was a supreme democratic act which put an end to the 1973 Constitution.
The heirs of the EDSA event have managed to maintain their hold on government. They have instituted a new Constitution and have held elections and plebiscites under the new Constitution.
The EDSA Revolution, the ratification of the 1987 Constitution, and the elections are the legitimate manifestations of popular sovereignty. They are the product of the people exercising their sovereign power. Our Constitution says “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” “People” in this document refers to those who manifest their will in an election, in a plebiscite for the ratification of the Constitution or in a successful revolution.
There is an ongoing campaign to distort the meaning of popular sovereignty. Popular sovereignty is being interpreted as the currently majoritarian sentiment of the people as evidenced by surveys. Surveys, whether by SWS or by Pulse Asia or by whatever outfit might attempt it, are not manifestations of popular sovereignty. They do not authorize public officials, no matter how highly placed, to disregard the law or the Constitution. Nor does a repeated claim of massive popularity enhance a public officer’s power to a level higher than what is given to him or her by the law and the Constitution. Reliance on popular rallies as power enhancement can merely amount to demagoguery, an effective instrument for dividing the nation and an effective way of frittering away the gains made by the EDSA event.
Earlier I quoted a renowned jurist who once said to a “reform” minded English monarch, “This country is planted thick with laws from coast to coast. If you cut them down, do you really think that you will be able to withstand the winds that will blow then?” The same jurist also said “I am the king’s good servant, but God’s first.” Today this jurist is revered as a patron of persons holding position of power and responsibility.
Travails of the Impeachment Prosecution. An interesting moment occurred during the impeachment trial last Tuesday after the Senate President said that in our impeachment process the House of Representatives performed the function of a grand jury to ensure that what will be brought to the Senate would be a well prepared case. The fact was, the Senate President said, the case of the Articles of Impeachment prosecution was not well prepared and the prosecution was trying to stitch a case together in the course of the trial with the help of sub poenas
In reply Congressman Fariñas of the House prosecutor team pointed to two kinds of impeachment processes, and correctly. One process is for a situation when an impeachment complaint is filed without the needed support of at least one third of the House. In such a situation the Justice Committee conducts hearings to determine if the case presents probable cause for proceeding with trial. Thereafter the Committee makes a report to the plenary which reviews the matter to determine if indeed there is sufficient cause for bringing it to trial. The vote of one-third of the plenary is needed to affirm the finding of the Committee. This ensures that the time of the Senate will not be wasted in protracted search for evidence.
The second mode of impeachment says: “In case the verified complaint or resolution of impeachment is filed by at least one-third of all the members of the House, the same shall constitute the Articles of Impeachment and trial by the Senate shall forthwith proceed.” What this provision seems to imply is that the grand jury role of the House is dispensed with. This seems to be the basis for Congressman Fariñas’ explanation for the imperfection of the Articles of Impeachment. In fact, earlier during the trial Congressman Fariñas had already criticized the Articles of Impeachment. Again he is being proven right.
Problem again arose during the later part of last Tuesday when the prosecution introduced a Vice-President of PAL to prove an allegation that the Chief Justice tended to favor PAL in litigation because of favors he had received from PAL. But the allegation was not found in the Article of Impeachment being discussed. The Senate President barred the testimony of the PAL Vice-President.
It might be worth recalling that the impeachment of former President Estrada reached the Senate via the second mode. But the complaint itself was filed weeks before the complaint was sent to the Senate. Hence the prosecution did have time to prepare for the trial. In the case of the current impeachment trial, however, the complaint of 188 Congressman went up within twenty-four hours of the filing. No wonder the prosecution has been having problems. What these events seem to be telling us is that, whichever method of impeachment may be used, the House somehow should perform some grand jury role.
27 February 2012
Saturday, February 25, 2012
Saturday, February 18, 2012
CALLING A SPADE A DIRTY SHOVEL
CALLING A SPADE A DIRTY SHOVEL
Joaquin G. Bernas, S.J.
Letter of St. James to the President and the Chief Justice: “Among all the parts of the body, the tongue is a whole wicked world in itself: it infects the whole body; catching fire itself from hell, it sets fire to the whole wheel of creation. Wild animals and birds, reptiles and fish can all be tamed by man, and often are; but nobody can tame the tongue – it is a pest that will not keep still, full of deadly poison.” James, 1:5-6.
Trabajo lang. I have written pieces critical of the current administration, as I did of the past administrations from the Marcos days. I will continue to express my opinion on legal matters as I see them.
But I have also heard of intelligent people whom I normally respect saying that my views are not credible because one of my nephews is married to Luli Arroyo. Indeed he happily is.
I will not attribute this ad hominen criticism of me to intellectual bankruptcy, but if my critics have any thing rational against my views, I will welcome them and I may yet be saved from my errant ways. But, please, identify yourself so I will know to whom to bow.
About two years ago I opposed the power of President Arroyo to appoint a Chief Justice during the two-month prohibited election period. I mentioned no names. I learned later that for that I won the ire of the current Chief Justice. She eventually did appoint him. I still believe it was wrong for her to exercise that power. But I am not the Supreme Court.
I also criticized the splitting of a congressional district in Camarines Sur in order to accommodate Arroyo allies. But Congress went ahead and split it and the Supreme Court blessed it. I still believe that the Supreme Court was wrong in upholding Congress. But I am not the Supreme Court.
As lawyer, my measuring rod of public acts is always the Constitution first. I will always measure the acts of those in public office by the standard of constitutional law and not by blood or social relationship. I have even expressed constitutional views different from some members of the Catholic hierarchy and have been pilloried for it. Fortunately my Jesuit superiors and some in the hierarchy support me.
I will sometimes disagree with Supreme Court decisions but will obey them, because a decision of the Supreme Court is law, even if I know that it is only supreme law until reversed by a later Supreme Court!
I ardently supported Cory Aquino in her days, but her son should not be surprised if occasionally I oppose his views and actions. Trabajo lang.
Incidentally I might also compare the style of the current President with the style of former President Arroyo. GMA generally spoke and acted through her subordinates. Thus bullets for her usually had to pass through the breastplate of subordinates first. But President Aquino often speaks and acts for himself. He is also loyal to his subordinates, even when they buy pirated tapes! He thus more readily exposes himself to bullets. Understandably Dr. Lacierda and Nurse Valte of the Palace Clinic sometimes go scampering to give him first aid.
More Generally. Let me now offer some observations on the current impeachment proceeding.
The impeachment body, which we usually refer to as a court, is both a judicial and political (read policy making) body. If it were meant to be a judicial body purely, the responsibility for impeachment would have been entrusted to a body under the judicial department.
As a judicial body in the impeachment process the Senate applies the law. A virtue we expect of a judge is what is usually described as “cold neutrality.” In the current proceeding, I do not think anybody will accuse some members of the Senate of that virtue. But there is a plausible explanation for that.
As asserted in a number of rulings of the presiding officer, the senators are given a wide leeway for asking questions. He recognizes that the senators are also jurors in search of truth. Thus, in all of this, so much depends on the sense of fairness of each individual senator. Incidentally, also of the President.
Indeed, in countries where there is a jury system, there is such a thing as jury misconduct which can cause the reversal of a verdict. The cases on jury misconduct range from intentional disregard of the juror’s oath to unintentional actions by jurors who do not understand jury protocol.
But what do I mean when I say that the impeachment body is also a policy making body? I mean that they also consider what is best for the country. Let me illustrate. Assume that the Senate finds that there is no sufficient ground to convict the accused. Fairness would demand that the accused be acquitted. Let us suppose, however, that the Senate finds sufficient ground for removal of the accused but in its judgment it would be worse for the country if the accused is removed from office. In the exercise of its policy making power it might decide to keep the accused in office.
Will we know the reasons behind the decision of the senators? We might or we might not. As I see it, there is no obligation on the part of the senators to explain their vote. But most of them probably will explain their vote, as they did on the recent TRO issue, because they know that they themselves are on trial before the court of public opinion. Remember that some of them may still have electoral ambitions.
20 February 2012
Joaquin G. Bernas, S.J.
Letter of St. James to the President and the Chief Justice: “Among all the parts of the body, the tongue is a whole wicked world in itself: it infects the whole body; catching fire itself from hell, it sets fire to the whole wheel of creation. Wild animals and birds, reptiles and fish can all be tamed by man, and often are; but nobody can tame the tongue – it is a pest that will not keep still, full of deadly poison.” James, 1:5-6.
Trabajo lang. I have written pieces critical of the current administration, as I did of the past administrations from the Marcos days. I will continue to express my opinion on legal matters as I see them.
But I have also heard of intelligent people whom I normally respect saying that my views are not credible because one of my nephews is married to Luli Arroyo. Indeed he happily is.
I will not attribute this ad hominen criticism of me to intellectual bankruptcy, but if my critics have any thing rational against my views, I will welcome them and I may yet be saved from my errant ways. But, please, identify yourself so I will know to whom to bow.
About two years ago I opposed the power of President Arroyo to appoint a Chief Justice during the two-month prohibited election period. I mentioned no names. I learned later that for that I won the ire of the current Chief Justice. She eventually did appoint him. I still believe it was wrong for her to exercise that power. But I am not the Supreme Court.
I also criticized the splitting of a congressional district in Camarines Sur in order to accommodate Arroyo allies. But Congress went ahead and split it and the Supreme Court blessed it. I still believe that the Supreme Court was wrong in upholding Congress. But I am not the Supreme Court.
As lawyer, my measuring rod of public acts is always the Constitution first. I will always measure the acts of those in public office by the standard of constitutional law and not by blood or social relationship. I have even expressed constitutional views different from some members of the Catholic hierarchy and have been pilloried for it. Fortunately my Jesuit superiors and some in the hierarchy support me.
I will sometimes disagree with Supreme Court decisions but will obey them, because a decision of the Supreme Court is law, even if I know that it is only supreme law until reversed by a later Supreme Court!
I ardently supported Cory Aquino in her days, but her son should not be surprised if occasionally I oppose his views and actions. Trabajo lang.
Incidentally I might also compare the style of the current President with the style of former President Arroyo. GMA generally spoke and acted through her subordinates. Thus bullets for her usually had to pass through the breastplate of subordinates first. But President Aquino often speaks and acts for himself. He is also loyal to his subordinates, even when they buy pirated tapes! He thus more readily exposes himself to bullets. Understandably Dr. Lacierda and Nurse Valte of the Palace Clinic sometimes go scampering to give him first aid.
More Generally. Let me now offer some observations on the current impeachment proceeding.
The impeachment body, which we usually refer to as a court, is both a judicial and political (read policy making) body. If it were meant to be a judicial body purely, the responsibility for impeachment would have been entrusted to a body under the judicial department.
As a judicial body in the impeachment process the Senate applies the law. A virtue we expect of a judge is what is usually described as “cold neutrality.” In the current proceeding, I do not think anybody will accuse some members of the Senate of that virtue. But there is a plausible explanation for that.
As asserted in a number of rulings of the presiding officer, the senators are given a wide leeway for asking questions. He recognizes that the senators are also jurors in search of truth. Thus, in all of this, so much depends on the sense of fairness of each individual senator. Incidentally, also of the President.
Indeed, in countries where there is a jury system, there is such a thing as jury misconduct which can cause the reversal of a verdict. The cases on jury misconduct range from intentional disregard of the juror’s oath to unintentional actions by jurors who do not understand jury protocol.
But what do I mean when I say that the impeachment body is also a policy making body? I mean that they also consider what is best for the country. Let me illustrate. Assume that the Senate finds that there is no sufficient ground to convict the accused. Fairness would demand that the accused be acquitted. Let us suppose, however, that the Senate finds sufficient ground for removal of the accused but in its judgment it would be worse for the country if the accused is removed from office. In the exercise of its policy making power it might decide to keep the accused in office.
Will we know the reasons behind the decision of the senators? We might or we might not. As I see it, there is no obligation on the part of the senators to explain their vote. But most of them probably will explain their vote, as they did on the recent TRO issue, because they know that they themselves are on trial before the court of public opinion. Remember that some of them may still have electoral ambitions.
20 February 2012
Saturday, February 11, 2012
AQUESTION OF POWER
Whence did the Senators currently judging the impeachment trial come from? They are the same senators who were elected to the Senate two or four years ago. And what was the extent of the power of the Senate to which they were elected. Their power was only coequal with those of the Executive Department and the Judicial Department. How explain the claim of some senators now that their power while acting as impeachment judge has suddenly skyrocketed to a level higher than that of the Supreme Court? The answer to this question is a mystery to me.
The contention that the senate judging the impeachment trial now is superior to the Supreme Court rests on the assumption that the senate as impeachment judge is different from the senate originally elected. If this is not the senate originally elected, where did it come from? From Mars?
The fact, however, is that the powers being exercised during the impeachment trial are powers given to the Senate originally elected. They are non-legislative powers which are dormant until the Senate is called to be judge in an impeachment trial. If you will look at the constitutional provisions on impeachment, you will not find a reference to a “Senate court” or a “Senate jury.” The only thing you will find is “Senate”, period. The Senate judging the current trial was created by Article VI and not by Article XI.
In other words there is only one Senate which occasionally acts as impeachment court in the same manner that there is only one Supreme Court which occasionally acts as Presidential Electoral Tribunal. The Senate, whether acting as impeachment court or legislative body, is the same Senate that is coequal with and not superior to the other departments. If there must be talk of superiority among the three departments, only the Constitution is superior. All must bow to the Constitution.
Does the fact that the Constitution makes the Senate “the sole judge of all impeachment cases” make it superior to the Supreme Court in everything relating to impeachment? Perhaps we can find an answer to this question by looking at the jurisprudence on the relation of the Supreme Court to other agencies of the government. For instance the Constitution also says, “The House of Representatives shall have the exclusive power to initiate all case of impeachment.” Does the exclusivity of the power of the House of Representatives rule out any role for the Supreme Court? We already saw that in the Davide impeachment case and the Gutierrez case the Supreme Court came in to resolve matters of interpretation of the law on impeachment. Similarly, in the Electoral Tribunal cases, where the Constitution says that the Electoral Tribunal shall be the “sole judge of all election contests,” the Supreme Court has come in to determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Tribunal because the power to make such judgment has been given to the Supreme Court. Again in the participation of the Senate in the formation of the Commission on Appointments where membership is determined by Senate on the basis proportional representation of the various political parties in the Senate, the Supreme Court came in to determine that fractions should be ignored in the allocation of members even if ignoring fractions would result in less than twelve Senator members of the Commission.
What all this means is that the Supreme Court can come in when needed to determine the meaning of the law. This does not mean superiority of the Court over the other departments. All it means is that the Constitution has placed in the Supreme Court the power to determine with finality the meaning of the law. It means the superiority of the Constitution. A fundamental principle of our constitutional system is separation of powers. The legislature enacts the laws, the executive implements them, the judiciary resolves legal controversies by the application of law of whose final meaning the Supreme Court is judge.
This is the law until our constitutional system is revised by the people and not by a few senators led by the President.
It is a dangerous matter when either the legislature or the executive believe that they are superior to the law. Worse yet, if both of them conspire to claim, in word or deed, superiority over the law. Have we begun to see this happening?
The approach, however, might not be as blatant as that. The approach can also be by trying to shame the opponent to submission.
How powerful is the Chief Justice? Another issue which has come up is the extent of the power of the Chief Justice over the other members of the Court. There are implications in some of the articles of impeachment that the Chief Justice has control over the direction of the other members of the Court.
The President has the power of control over the entire executive department. This means that the President can substitute his judgment for the judgment of any executive officer. The Chief Justice has no such power. His vote has only the same weight as the vote of any of the other justices. Influence, perhaps, yes; but control, no.
13 February 2012
The contention that the senate judging the impeachment trial now is superior to the Supreme Court rests on the assumption that the senate as impeachment judge is different from the senate originally elected. If this is not the senate originally elected, where did it come from? From Mars?
The fact, however, is that the powers being exercised during the impeachment trial are powers given to the Senate originally elected. They are non-legislative powers which are dormant until the Senate is called to be judge in an impeachment trial. If you will look at the constitutional provisions on impeachment, you will not find a reference to a “Senate court” or a “Senate jury.” The only thing you will find is “Senate”, period. The Senate judging the current trial was created by Article VI and not by Article XI.
In other words there is only one Senate which occasionally acts as impeachment court in the same manner that there is only one Supreme Court which occasionally acts as Presidential Electoral Tribunal. The Senate, whether acting as impeachment court or legislative body, is the same Senate that is coequal with and not superior to the other departments. If there must be talk of superiority among the three departments, only the Constitution is superior. All must bow to the Constitution.
Does the fact that the Constitution makes the Senate “the sole judge of all impeachment cases” make it superior to the Supreme Court in everything relating to impeachment? Perhaps we can find an answer to this question by looking at the jurisprudence on the relation of the Supreme Court to other agencies of the government. For instance the Constitution also says, “The House of Representatives shall have the exclusive power to initiate all case of impeachment.” Does the exclusivity of the power of the House of Representatives rule out any role for the Supreme Court? We already saw that in the Davide impeachment case and the Gutierrez case the Supreme Court came in to resolve matters of interpretation of the law on impeachment. Similarly, in the Electoral Tribunal cases, where the Constitution says that the Electoral Tribunal shall be the “sole judge of all election contests,” the Supreme Court has come in to determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Tribunal because the power to make such judgment has been given to the Supreme Court. Again in the participation of the Senate in the formation of the Commission on Appointments where membership is determined by Senate on the basis proportional representation of the various political parties in the Senate, the Supreme Court came in to determine that fractions should be ignored in the allocation of members even if ignoring fractions would result in less than twelve Senator members of the Commission.
What all this means is that the Supreme Court can come in when needed to determine the meaning of the law. This does not mean superiority of the Court over the other departments. All it means is that the Constitution has placed in the Supreme Court the power to determine with finality the meaning of the law. It means the superiority of the Constitution. A fundamental principle of our constitutional system is separation of powers. The legislature enacts the laws, the executive implements them, the judiciary resolves legal controversies by the application of law of whose final meaning the Supreme Court is judge.
This is the law until our constitutional system is revised by the people and not by a few senators led by the President.
It is a dangerous matter when either the legislature or the executive believe that they are superior to the law. Worse yet, if both of them conspire to claim, in word or deed, superiority over the law. Have we begun to see this happening?
The approach, however, might not be as blatant as that. The approach can also be by trying to shame the opponent to submission.
How powerful is the Chief Justice? Another issue which has come up is the extent of the power of the Chief Justice over the other members of the Court. There are implications in some of the articles of impeachment that the Chief Justice has control over the direction of the other members of the Court.
The President has the power of control over the entire executive department. This means that the President can substitute his judgment for the judgment of any executive officer. The Chief Justice has no such power. His vote has only the same weight as the vote of any of the other justices. Influence, perhaps, yes; but control, no.
13 February 2012
Saturday, February 4, 2012
IMPEACHABLE OFFENSES
IMPEACHABLE OFFENSES
Joaquin G. Bernas, S.J.
Since I was quoted by a prosecutor on my alleged view as to the meaning of “betrayal of public trust” I thought that I might as well put down my view as I expressed it in the 2009 edition of my oft-cited Commentary. I said in part:
“The way the full [1987] provision is worded is significant. It enumerates the grounds for impeachment as ‘culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust.’ The word ‘other’ is significant. Under the eiusdem generis rule, when the law makes an enumeration of specific objects and follows it with ‘other’ unspecified objects, those unspecified objects must be of the same nature as those specified. Thus for ‘graft and corruption’ and ‘betrayal of public trust’ to be grounds for impeachment, their concrete manner of commitment must be of the same severity as ‘treason’ and ‘bribery,’ offenses that strike at the very heart of the life of the nation.”
Grounds for impeachment are found in the United States Constitution, in our 1935, 1973 and 1987 Constitutions. But there are differences in the enumerated grounds.
The enumerated grounds for impeachment common to all of the above Constitutions are treason, bribery, high crimes. Only the 1973 and 1987 Constitutions mention graft and corruption. Betrayal of public trust is found only in the 1987 Constitution.
Our 1935 Constitution basically copied the grounds enumerated in the US Constitution but omitting “misdemeanors.” Likewise the 1973 and 1987 Constitutions have not included “misdemeanors.” The reason for dropping this ground in 1935, according to Delegate Manuel Roxas, was to avoid the risk of molesting high officials with minor offenses.
As to “culpable violation of the Constitution,” a ground not explicitly mentioned in the US Constitution, this is to be taken to mean willful violation and not violations committed unintentionally or involuntarily or in good faith or through an honest mistake of judgment.
“Graft and corruption” as ground for impeachment appears for the first time in the 1973 Constitution and has been included in the 1987 Constitution. But from the reason for the exclusion of “misdemeanor,” graft and corruption must also be understood as signifying more than just minor offenses.
The only ground for impeachment added by the 1987 Constitution is “betrayal of public trust.” What does this means?
The person responsible for the insertion of this provision said that it includes “betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute.” More generally, another Commissioner said that it could “cover any violation of the oath of office.” , However, the Committee responsible for the article on Accountability of Public Officers accepted the narrower view that betrayal of public trust “implied deliberate intent, perhaps even a certain degree of perversity, for it is not easy to imagine that individuals of the category of these [impeachable] officials would go so far as to defy knowingly what the Constitution commands.” But, again, what it all comes down to is that since “betrayal of public trust” is enumerated as among an exclusive class of offenses, it must also be seen as having the same gravity as the other offenses in the class. In other words, not every violation of public trust is an impeachable offense.
One conclusion I would draw from all these, moreover, is that “high crimes” already covers “culpable violation of the Constitution” and “betrayal of public trust.” As Lawrence Tribe notes, high crimes “will necessarily involve what is thought to be a serious abuse of official power or a stark incompatibility between the offense and the offender’s ability faithfully to execute the duties of his or her office in a manner that will not endanger the office or the nation.”
The enumerated impeachable offenses may all be found either in the Penal Code or in special laws. But treason and bribery committed by impeachable officials are paradigms of offenses which endanger the nation – treason, because it is a direct assault on government and the life of the nation, and bribery because it entails abuse of power and corruption of office.
One question that must also be asked is whether there is a difference between the meaning of “Guilty” as found in a judicial decision and “Guilty” as found in an impeachment conviction when they are dealing with offenses of equal gravity.
There is a difference in the result. When a court convicts for treason or bribery it makes a judgment that the person must make amends through loss of life or liberty. When an impeachment court imposes removal from office it makes a judgment that there are compelling reasons for shielding the nation from further harm but leaving retribution to the judgment of a court. For that reason prosecution after conviction on impeachment does not constitute double jeopardy. However, the needed quantum of proof for either criminal conviction or impeachment conviction are not far from each other, if there is a difference at all.
5 February 2012
Joaquin G. Bernas, S.J.
Since I was quoted by a prosecutor on my alleged view as to the meaning of “betrayal of public trust” I thought that I might as well put down my view as I expressed it in the 2009 edition of my oft-cited Commentary. I said in part:
“The way the full [1987] provision is worded is significant. It enumerates the grounds for impeachment as ‘culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust.’ The word ‘other’ is significant. Under the eiusdem generis rule, when the law makes an enumeration of specific objects and follows it with ‘other’ unspecified objects, those unspecified objects must be of the same nature as those specified. Thus for ‘graft and corruption’ and ‘betrayal of public trust’ to be grounds for impeachment, their concrete manner of commitment must be of the same severity as ‘treason’ and ‘bribery,’ offenses that strike at the very heart of the life of the nation.”
Grounds for impeachment are found in the United States Constitution, in our 1935, 1973 and 1987 Constitutions. But there are differences in the enumerated grounds.
The enumerated grounds for impeachment common to all of the above Constitutions are treason, bribery, high crimes. Only the 1973 and 1987 Constitutions mention graft and corruption. Betrayal of public trust is found only in the 1987 Constitution.
Our 1935 Constitution basically copied the grounds enumerated in the US Constitution but omitting “misdemeanors.” Likewise the 1973 and 1987 Constitutions have not included “misdemeanors.” The reason for dropping this ground in 1935, according to Delegate Manuel Roxas, was to avoid the risk of molesting high officials with minor offenses.
As to “culpable violation of the Constitution,” a ground not explicitly mentioned in the US Constitution, this is to be taken to mean willful violation and not violations committed unintentionally or involuntarily or in good faith or through an honest mistake of judgment.
“Graft and corruption” as ground for impeachment appears for the first time in the 1973 Constitution and has been included in the 1987 Constitution. But from the reason for the exclusion of “misdemeanor,” graft and corruption must also be understood as signifying more than just minor offenses.
The only ground for impeachment added by the 1987 Constitution is “betrayal of public trust.” What does this means?
The person responsible for the insertion of this provision said that it includes “betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute.” More generally, another Commissioner said that it could “cover any violation of the oath of office.” , However, the Committee responsible for the article on Accountability of Public Officers accepted the narrower view that betrayal of public trust “implied deliberate intent, perhaps even a certain degree of perversity, for it is not easy to imagine that individuals of the category of these [impeachable] officials would go so far as to defy knowingly what the Constitution commands.” But, again, what it all comes down to is that since “betrayal of public trust” is enumerated as among an exclusive class of offenses, it must also be seen as having the same gravity as the other offenses in the class. In other words, not every violation of public trust is an impeachable offense.
One conclusion I would draw from all these, moreover, is that “high crimes” already covers “culpable violation of the Constitution” and “betrayal of public trust.” As Lawrence Tribe notes, high crimes “will necessarily involve what is thought to be a serious abuse of official power or a stark incompatibility between the offense and the offender’s ability faithfully to execute the duties of his or her office in a manner that will not endanger the office or the nation.”
The enumerated impeachable offenses may all be found either in the Penal Code or in special laws. But treason and bribery committed by impeachable officials are paradigms of offenses which endanger the nation – treason, because it is a direct assault on government and the life of the nation, and bribery because it entails abuse of power and corruption of office.
One question that must also be asked is whether there is a difference between the meaning of “Guilty” as found in a judicial decision and “Guilty” as found in an impeachment conviction when they are dealing with offenses of equal gravity.
There is a difference in the result. When a court convicts for treason or bribery it makes a judgment that the person must make amends through loss of life or liberty. When an impeachment court imposes removal from office it makes a judgment that there are compelling reasons for shielding the nation from further harm but leaving retribution to the judgment of a court. For that reason prosecution after conviction on impeachment does not constitute double jeopardy. However, the needed quantum of proof for either criminal conviction or impeachment conviction are not far from each other, if there is a difference at all.
5 February 2012
Saturday, January 28, 2012
SUNDRY IMPEACHMENT ISSUES
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
Joaquin G. Bernas, S.J.
When one examines the text of the Constitution on impeachment, one will find that it does not define the nature of impeachment and there is very little in it about the procedural aspects of impeachment. In the process of finding what rules to apply, both House and Senate look largely towards practices in the past. But practices themselves do not yield a complete set of rules even if they might fill some gaps. For this reason, the current impeachment trial has been meeting some bumpy moments.
One key concept that can be a center of controversy is the matter of defining the nature of an impeachment trial. Is it administrative merely, civil, or criminal. On the answer to this question will depend important matters of admissibility of evidence and the quantum of proof needed to convict. But there has been no clear and exclusive characterization of the proceeding. What is often said, almost in exasperation, is that it is sui generis. It has a character all its own. One might say that it has a character that partakes principally of both a civil or a criminal matter. On the basis of that vague characterization the Senate presiding officer must determine which rules of procedure to follow. Thus there can arise a conflict on whether the presiding officer is proceeding too strictly or too liberally. That is not easily resolved. Last Tuesday, for instance, when the prosecution asked the Senate President to be more liberal, the Senate President found himself in a quandary and the prosecutor himself could not say what he meant. The latter eventually retreated saying that he placed matters at the discretion of the wisdom of the Senate President.
Another unclear matter is determining the quantum of proof that is needed to convict. In jurisprudence, there are three levels of proof – substantial evidence, preponderance of evidence, and proof beyond reasonable doubt. Substantial evidence simply means evidence that a reasonable man can rely upon to make his decision. It calls for prudential judgment. Preponderance of evidence means a quantity and quality of evidence that is enough to outweigh the quantity and quality of the evidence for the other side even if neither side is persuasive. Proof beyond reasonable doubt is proof that convinces a judge or jury to exclude all other possibilities.
When in last Tuesday’s session, the presiding officer asked what quantum of evidence was needed to convict Chief Justice Corona, the prosecution chose substantial evidence, the lightest of the proofs needed, The defense, for its part, chose proof beyond reasonable doubt. A senator judge proposed instead proof somewhere in between preponderance of evidence and proof beyond reasonable doubt and called it overwhelming preponderance of evidence.
As can be seen these are measures expressed not in exact mathematical or metaphysical terms. Overwhelming preponderance of evidence is also the term used by Charles L. Black, Jr. in his Impeachment Handbook. But as Luwrence L. Tribe has noticed, “The Senate has not employed any uniform standard of proof, instead leaving each Senator to choose his or her standard.”
Last Tuesday the Senate decided to meet in caucus in the hope of deciding what quantum of proof to use. I believe, however, that whatever the caucus might decide will not make that much difference. When voting time comes, each senator will vote according to his or her lights.
Another issue is the matter of choosing the penalty to impose in case of conviction. The Constitution says “judgment in cases of impeachment shall not extend further than the removal from office and disqualification from holding any other office under the Republic of the Philippines.” This would mean, for instance, that the Senate cannot impose the death penalty. But does the phrase “shall not extend further than removal from office and disqualification from holding any other office” also mean that a less severe penalty than removal or disqualification may be imposed such, for instance, as censure.
The phrase “shall not extend further,” taken literally, can also mean that. However, conceivably the choice of penalties listed in the Constitution is of those which can protect the public from an officer who does not deserve to hold office or who can be a risk to the welfare of the nation. Is “censure” that kind of penalty?
The offenses for which an officer may be convicted on impeachment are “culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” The word “other” modifying “high crimes” indicates that every offense in the list must be a “high crime.” This meaning is dictated by the principle of legal construction that the word “other” makes the meaning of all those enumerated of the same level of gravity. In legal gobbledygook this is the eiusdem generis rule. It would seem to me, therefore, that if the offense proved is only worthy of censure, it would mean that the offense proved is not of the same gravity as the offenses enumerated by the Constitution and that, therefore, the accused, although shamed, must be acquitted.
30 January 2012
Saturday, January 21, 2012
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
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