Special Issue on Impeachment

Transcription

IBP JOURNAL
Special Issue on Impeachment
(March 2012)
Foreword
Articles
The Nature and Function of Impeachment: A Practical Theory .................................. 1
Florin T. Hilbay
The State of Philippine Impeachment Jurisprudence .................................................... 9
Raoul V. Victorino
Extraordinary Remedy for an Extraordinary Malady ................................................... 14
Teofisto T. Guingona, Jr.
The Doctrine of Separation of Powers Through the Prism
of Impeachment: Context Issues and Lessons Learned ................................................ 21
Sedfrey M. Candelaria
An Essay on the Constitutional Regime of Impeachment:
Sovereign Power vs. Judicial Authority ............................................................................ 40
Merlin M. Magallona
Impeachment and Popular Constitutionalism:
The Surprising Decline of Judicial Power ........................................................................ 45
Raul C. Pangalangan
An Unconstitutional Intrusion .......................................................................................... 69
Manuel N. Camacho
Documents
Statement of the IBP Board of Governors on Impeachment ....................................... 74
Resolution No. 39: Rules of Procedure on Impeachment Trials ................................. 77
Verified Complaint for Impeachment (Articles of Impeachment) ............................. 84
Answer to Verified Complaint for Impeachment ........................................................ 154
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Foreword
As we go to print, the impeachment case against Chief Justice Renato C. Corona
unfolds the prospect that this is the first proceeding of its kind to reach completion, a new
phenomenon taking place in the frame of the Constitution as a politico-legal mechanism.
Without respect as to whether the ending is one of conviction or acquittal, impeachment
has demonstrably becomes a real cleansing process, with all the shades of power struggle,
fulfilling the function of Article XI of the Constitution on “Accountability of Public
Officers” of the highest authority.
The public is thus presented with the spectacle of political power dramatized as
a rule of law in which substance becomes unrecognizable from procedure. In the end,
the sovereign role of the people appears indistinct as a search for truth, clouded by the
dilemma of necessity of the technical rules in that search.
And yet in the impeachment drama, the people occupy the central role as the
unseen dramatis personae and it is to serve this purpose that rules of impeachment trial
make the demand that “[a]t all times while the Senate is sitting upon the trial of an
impeachment, the doors of the Senate shall be open to the public”. Those doors in fact
are wide open through television technology, ushering in the entire Nation to witness the
proceedings. However, the final votes are one thing and public perception quite another.
The rules of the impeachment trial come home to the conclusion that the
impeachment court produces no written instrument of final decision. That finality is
defined in terms of the vote cast by each individual judge on each article of impeachment
separately, who “shall rise in his or her place and answer: guilty or not guilty.” Hence,
it is a finality without the expression of clear and distinct statement of facts and the
law on which it is based. Those elements of traditional decision-making dissolve into
the counting of votes cast by the individual judges. In voting, each judge may take the
opportunity to explain the vote. But the explanation is of no moment, whether it is done
out of reason or emotion.
In all events, the trial submits itself to the absolute standard of conviction or
acquittal on the basis of two-thirds vote of the judges, but this may prove to be subject to
a contingency of judicial intervention which in itself is problematic.
The contributions that make up this Special Issue spell out the general frame
of impeachment as interpreted by the authors, who provide as well the focus on critical
elements of impeachment as a constitutional empowerment or limitation.
It is to be hoped that, with the people, we will be wiser the next time around
in understanding the close correlation of law and political power in their contradictory
dimensions, with special interest in our own involvement. MMM
The Nature and Function of An Impeachment: A Practical Theory
the nature and Function oF impeachment:
a practical theory
Florin T. Hilbay*
The ongoing impeachment trial of Chief Justice Renato Corona presents
an opportunity for a relevant conversation on the character of our public institutions
and the role played by political processes in fulfilling certain normative goals enshrined
in our Constitution. Central to the debates about these institutions and processes
are fundamental questions about the nature and character of an impeachment
proceeding, a meditation on which is no longer a purely abstract activity but an
exercise potent with practical implications. The power of the impeachment court to
subpoena the respondent, the cadence of the proceedings, the flexibility of the Senate
in the reading of the Articles of Impeachment, the relationship between the Senate
as an impeachment court and the Supreme Court, the susceptibility of the Senate to
processes coming from other courts, and the relationship of the impeachment court
with the public are some of the crucial issues the resolution of which is dependent
on one’s understanding of the nature and function of an impeachment proceeding.
An impeachment proceeding is a mechanism of accountability to determine
whether or not certain high-ranking public officials should be removed from office. It is
an extraordinary removal mechanism for several reasons: first, the proceedings are not
lodged in traditional institutions of law but are conducted by elected representatives of
the people; second, not all grounds for removal are defined in criminal statutes but are
instead couched in such broad terms as betrayal of public trust and culpable violation
of the constitution; third, impeachable public officers share an important characteristic:
beyond being protected by a term, they are vulnerable to removal from office only by
way of impeachment. These fundamental characteristics of an impeachment process
are an important source of powerful insights that may serve to clarify and resolve the
issues that presently hound the Senate and the public in the trial of the Chief Justice.
Public officials, whether elected or appointed, are generally entitled to security of
tenure, ensuring that they are able to perform their functions without the contingencies
and hassles occasioned by politics. Those entitled to such security are subject to removal
only through judicial proceedings (as in the case of civil service employees), recall (as in
the case of local officials), and expulsion (as in the case of members of Congress). The
Constitution, however, reserves a special procedure for the removal of a group of public
officers — an impeachment mechanism that begins in the House of Representatives and
ends in the Senate.
It is enticing to think that the purpose of creating the institution of impeachment
is to protect the officeholder by setting up formidable obstacles — a vote of a third
of the members of the House and two-thirds of the members of the Senate. This is
not true upon closer inspection. From what can be gathered from the history of
impeachment attempts under the 1987 Constitution, the ease or difficulty with which
an impeachment is waged is entirely dependent on politics, not on the structure of
*
Assistant Professor of Law, University of the Philippines, College of Law and Director, Institute of Government
and Law Reform, UP Law Center. A.B. (U.S.T.), Ll.B. (Univ. of the Phils.), Ll.M. (Yale Law School).
Special iSSue on impeachment - march 2012
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the Constitution. Attempts to remove Ombudsman Aniano Desierto and President
Gloria Macapagal-Arroyo proved futile not because they were not widely perceived
to be corrupt (which would have made it an unpopular move to send an Article of
Impeachment to the Senate), but because the political configuration at that time allowed
Desierto and Macapagal-Arroyo to avoid public wrath and evade public accountability.
The terminated impeachment of Ombudsman Merceditas Gutierrez and the
botched impeachment of Chief Justice Davide further validate the thesis that it is politics,
more than constitutional structure, that determines the success or failure of any effort to
remove. Gutierrez was effectively immune from impeachment while Macapagal-Arroyo was
in power, but was expeditiously charged once Noynoy Aquino took over. On the other hand,
Davide’s popularity did not insulate him from impeachment, and he would have been forced
to go to trial had his colleagues in the Supreme Court not intervened to stop the proceedings.
The point here is that the voting requirements necessary to impeach and convict
are not meant to make it difficult to remove an impeachable public officer. Instead, the
theory behind these thresholds is to ensure that there is enough sovereign weight attached
to every action of the House and the Senate on matters relating to impeachment, ensuring
a certain degree of clarity and accord in the voice of the representatives of the people on
such important questions.
The emphasis on the sovereign element in understanding the nature of
impeachment is meant to underscore its populist nature, a fundamental fact of practical
significance insofar as the trial of the Chief Justice is concerned. The function of an
impeachment proceeding is to provide the people with an opportunity to impart sovereign
blessing on a limited number of occupants to high government positions. The reason for
this is clear, as I have stated elsewhere:
The theory of the Constitution is, because certain public officials rank so high in
the affairs of the State, it is crucial that the body politic—the people—be able to trust these
officials. Society will not gravely suffer if some paper pushers in the city hall are untrustworthy,
but it definitely will if the Chief Justice or any other impeachable officer is. Trust and
confidence in our leaders affect belief in the rule of law, the operations of the market, hope
in the possibility of progress, and even the value of one’s citizenship. This is why, even if the
president, Chief Justice or Ombudsman are protected by a term of office, that guarantee
can be breached once the people are convinced that their trust has been betrayed. This
also explains why the power to impeach and remove is not lodged in judicial institutions,
whose members are not chosen by the people, but in overtly political organs such as the
House of Representatives and the Senate, whose members are directly voted by the people.
Trust is a precious commodity for the accrual of political capital. This is true for
all social institutions—the worth of private corporations depends largely on the belief
in its capacity to generate wealth; the difference between religion and mythology rests
on what current society believes to be true; heterosexual marriage as the basic unit of
society depends on the belief that such a union is indispensable to social cohesion. This is
just as true for public institutions such as the presidency and the Supreme Court, whose
leaders are designated as impeachable public officers. The idea that a minimum degree
of credibility is required for public institutions to function properly, that this level of
credibility must be maintained to avoid institutional failure, and that the people are the
sole judge of whether the leaders of such institutions should be held accountable for that
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failure—these are but emanations of the larger principle that in a democracy, the people
should be treated as free and self-interested citizens who have the power to assess their
faith in the institutions that govern them and internalize the cost of that trust. While
ordinarily, such investment of faith is deposited during elections, political organizations
have developed practices that allow the people to re-assess and withdraw that trust under
certain conditions. Thus, impeachment is one such way by which ordinary people,
through their representatives, and on grounds that they themselves define, re-evaluate
the terms of contract between them and those privileged few who man the ship of state.
From these premises arise practical answers to questions that have been raised in the
current impeachment proceedings—
1) Defining grounds.—The Constitution provides a list of grounds for
impeachment (culpable violation of the constitution, bribery, graft and corruption,
treason, betrayal of public trust, and other high crimes), that allow us to relate the offenses
with the discussion above. First, we can categorize impeachable offenses as (a) criminal
offenses or acts penalized under the Revised Penal Code and/or special laws, and (b) noncriminal offenses. We then ask the question: is there a primary ground for impeachment
that can subsume all others?
a) If the offenses warranting impeachment are either criminal or non-criminal
in nature, which category is more controlling? Three interpretations are available to
us. First, the specific ground impleaded in the Articles of Impeachment determines the
nature of the proceedings; that is, if the ground alleged is criminal in nature, then the
proceedings should be conducted as if it were a criminal trial or akin to one, whereas
if the ground raised is non-criminal in character then the proceedings should also be
non-criminal. Second, the character of the impeachment proceedings should follow those
grounds that maximize protection of the rights of the public officer. In case of doubt as
to which type of proceeding should control the conduct of an impeachment trial, that
doubt should be resolved in favor of the incumbent public officer. Third, the character of
the proceedings should follow those grounds that are non-criminal because the purpose
of an impeachment is not to send the public officer to jail but to determine whether she
should be removed from office.
The first and second options would be both theoretically and practically difficult
to sustain. Under the Constitution, the only instance when a lawyer is required to preside
over an impeachment proceeding is when the President is on trial. This is because the
Constitution designates the Chief Justice as presiding officer in the trial of a president.
In all other instances, it is the Senate President who is required to preside; and because
there is no requirement that such an officer be a member of the bar, it means that the
trial of all impeachable officers, except the President, may be conducted by someone who
is not a lawyer. We should not be blinded by the contingent fact that in the trial of Chief
Justice Corona, the incumbent Senate President happens to be a lawyer. And while the
legal expertise of Senator Enrile is undeniable, his tendency to allow the defense lawyers
to judicialize, if not criminalize, the proceedings has unnecessarily limited the number of
those who fully understand what is going on to a very small segment of the population.
Furthermore, to characterize the proceedings based on the nature of the offense
alleged in the Articles of Impeachment would lead to a schizophrenic trial, especially
when we consider the fact that the House of Representatives is allowed to allege multiple
offenses in the Articles of Impeachment. It is hard to imagine the Senate adopting the
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rules of criminal procedure for an allegation of bribery and employing less stringent rules
for, say, an allegation of culpable violation of the constitution.
Finally, a variable proceeding is unlikely to happen given that the House has the
more expedient option of filing a complaint based on allegations of culpable violation of
the Constitution or betrayal of public trust, either of which is broad enough to cover the
other impeachable offenses.
b) Is there a fundamental impeachable offense that reflects the nature and function
of an impeachment proceeding, and does such and offense subsume all other grounds?
A review of the grounds enumerated in Article XI, Section 2 of the Constitution leads to
the reasonable conclusion that all offenses constitute a betrayal of public trust. Trust can
be betrayed without the commission of a crime, but no public officer commits bribery,
treason, or other high crimes without betraying public trust. This is so because we do
not expect high-ranking public officers to be criminals. In the same manner, trust can
be betrayed without culpably violating the Constitution, but no public officer culpably
violates the constitution without betraying public trust. This is because we are entitled
to impose on those vested with the most powers under the constitution the expectation
that they will not be at the forefront of undermining that document’s principles. Betrayal
of public trust is therefore not merely a vague catch-all phrase that the House can use
as a ground for demanding the removal of an impeachable officer, but the fundamental
impeachable offense that underpins the very nature of the impeachment process.
In essence, therefore, an impeachment complaint is a charge against a public
officer that by culpably violating the Constitution or committing bribery, graft and
corruption, treason, other high crimes, that officer has betrayed the trust reposed in him
by the public directly through elections or indirectly through an appointment. Every
public officer in the national bureaucracy is subject to removal on grounds defined in
the Constitution or in our various statutes. In this sense, all government employees are
under contract with the government, one that is subject to a resolutory condition. In the
case of an impeachable public officer, that condition is loss of trust. In this context, an
impeachment is a proceeding in which the people, through their representatives, evaluate
the existence or non-existence of the trust originally reposed in the officer charged.
Removal from public office due to loss or betrayal of public trust is not a novel
concept. The vote of no confidence in parliamentary systems, the recall process in local
governments, the termination mechanism for confidential employees, are standard modes
for the removal of employees whose proper functioning requires that their principals
continue to have trust in them. I emphasize this because of the special characteristic of
betrayal of public trust, no confidence, or lack of confidence as grounds for removal.
Ordinarily, specifying a ground for removal presupposes the existence of
incontestable facts that can be used to build up a case against an offender. Betrayal of
trust or loss of confidence, however, presents a complication to this procedure because
questions of trust are matters that belong to the realm of psychology rather than law.
Trustworthiness is a highly subjective concept and does not easily fit the crucible of factfinding. While facts can establish with reasonable certainty whether events occurred or
actions were performed, their role in assessing trustworthiness is a step detached, limited
only to the function of appealing to our good sense that when we make a decision on a
person’s trustworthiness we should at least be informed by what was established. Even
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then, and short of declaring that trust is not a matter of evidence, one must admit that
spaces between facts—impressions and intuitions—are powerful influences that affect our
decisions.
That issues of trustworthiness are not heavily fact-dependent is a reality we deal
with not only in politics but also in economics and in our personal lives—our voting
preferences are not necessarily constrained by facts and may be more influenced by public
relations than anything else; our confidence in listed companies and in the stock exchange
itself, is a function of goodwill and reliance on the assiduousness of regulatory agencies; the
success of friendship, marriage, or any other committed relationship depends, sometimes
almost entirely, on trust even in the face of a contradictory set of facts. The same analysis
applies to our political leaders. Capacity to lead institutions of government is not simply
about having the paper qualifications or even the real ability to lead; it is also, and perhaps
more importantly, about having the political capital to govern.
2) Characterizing the proceedings.—There have been much debate on
whether an impeachment proceeding is political or legal. Those who believe that it is
a legal proceeding emphasize the Constitution’s use of the words “convict” and “trial”
as crucial signposts towards a judicial activity, though participated in by political actors.
On the other hand, those who insist that it is a political activity highlight the fact that
the Constitution designates the House of Representatives to establish probable cause,
while the Senate tries and decides each case. The theory is, because these two state actors
are composed of politicians and are not judicial organs of the State then impeachment
proceedings were intended to be a political exercise. There is merit in either position,
assuming one agrees with the premises. The question is therefore how to place the
premises in proper context so we may arrive at a solidly grounded conclusion.
I start with an argument that many might find counter-intuitive. The trial of the
Chief Justice may be seen to be held in two courts: a public trial before the Senate, heavily
legalized and judicialized, and a trial by publicity before the people, freewheeling and
unconstrained by legalities. In truth, both “trials” collapse into a single political exercise
the sole purpose of which is to determine whether the sovereign guarantee of the people
reposed on institutional managers of the State should be revoked.
The trial conducted on the Senate floor is a legalized proceeding; that is, it is
more like an ordinary trial than a regular session of the Senate—it is a telenovela of a
proceeding, with all the trappings of courtroom drama, complete with the togas, the
funereal cadence, and the almost unbearable jargon. The second trial takes place in the
hearts and minds of the public and is composed of two parts: (1) a battle of the press
conferences among the various members of the prosecution and defense panels, and
(2) a war of words between the President and the Chief Justice. The ultimate goal of
these simultaneous confrontations is to win over the public’s sympathy and influence the
decision of the Senate.
For purposes of understanding the nature of an impeachment, however, the
objective of either trial is to create a feedback mechanism between the judges and their
judges—the senators and a nation of citizens. The determinative insight here consists of
the nexus between the public nature of the trial and the transformation of our politicians
into judges, which together support the premise that ultimately, the goal of impeachment
is to decide whether the option of sovereign removal should be exercised or not.
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It is important to underscore that ordinary trials are public in a very limited
sense. In the ordinary course of a trial, the public has the right to attend, and the media
is allowed to report on the conduct of the proceedings. Even oral arguments before
the Supreme Court are open to the public in this sense. Our courts, however, have
consistently disallowed the live coverage of trials on the ground that it might make the
accused vulnerable to prejudicial publicity, as in the case of former President Estrada’s
trial before the Sandiganbayan. The theory is that potential public reaction to what goes
on in court might unduly influence the justices and compromise their independence. An
impeachment trial, on the other hand, is a public event in a not-so-limited sense; it is in
fact intensely public, as nearly all aspects of the trial are televised and therefore subject to
public scrutiny.
Something must also be said about the Constitution’s decision to lodge the
power to file, try, and decide the case with the legislative department. If the Constitution
expected or intended a judicialized, if not criminalized, proceeding, then there is no worse
venue for doing that than in Congress. But this constitutional design is purposeful and
intended to fit the institutional qualities of the legislature with the normative objective
of an impeachment tribunal. In contrast to a regular court, the defining qualities of
Congress are transparency (the media-savvy nature of its members and the openness
of the institution to media presence), direct accountability (the built-in sensitivity of the
membership of either House to public sentiments), and flexibility (the power of Congress
to perform its tasks, whether in an impeachment proceeding or in drafting ordinary
legislation, is plenary and its proceedings more freewheeling than the highly constrained
procedures of judicial institutions).
In effect, therefore, there is only one trial involved in an impeachment proceeding.
It takes place in the mind of each citizen and is played out simultaneously in press
conferences, in social media networks, in the blogosphere, in the media and in the Senate.
This trial is a political, not legal, affair because it is a matter of social psychology more
than anything else, the goal of which is to present to the public all possible justifications for
the exercise of the sovereign power to remove an impeachable officer. The determinant
of what can and cannot be done at this level, the ultimate constraint on the actions of
the House and the Senate, is not the binding force of precedent, not the linear logic of
syllogisms, but the harsh or generous judgment of a nation of citizens who are watching,
commenting, reacting, and judging the judges themselves. Thus, in the most elementary
sense, an impeachment is political because it is the people who will internalize the costs of
any decision to convict or acquit—they, through the action of their representatives, will
suffer or benefit from the political and economic fallout or windfall from these proceedings.
3) Appreciating the evidence.—One other contentious issue that remains
unresolved is the threshold of evidence required of the Senate to convict or acquit. This
appears to be a crucial point for many who consider the question determinative of the
rights that may be invoked by the respondent, the manner of conducting the proceedings,
and the degree of flexibility the impeachment court has in reading the Articles of
Impeachment, among other concerns.
The reality, however, is that issues arising from the possible misapplication of
whatever threshold of evidence is relevant only in the context of a procedural system
where there exists a remedy of appeal. Proof beyond reasonable doubt, preponderance
of evidence, and substantial evidence, are categories of evidentiary standards that are not
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separate and tight compartments capable of truly objective assessment. They are, for the
most part, but conceptual markers for the degree of caution that should be deployed by
judicial decision-makers whenever they are about to take away life, liberty, or property. In
other words, bright-line distinctions among these categories are possible only at the level
of definition, but not at the level of application, because the weight to be given to a piece
of evidence can be highly subjective and the relevance or materiality of the evidence
can vary depending on the assumptions of the judge. Even then, corrective measures to
remedy misapplication of these standards are only available when there is an appellate
court that can reverse what happened in the trial below. This is where an impeachment
proceeding assumes a unique status.
Part of the sui generis character of an impeachment proceeding is the fact that the
Senate, as the body with sole authority to try and decide cases of this nature, is not part
of the judiciary and functions independently of judicial institutions. It stands alone on
matters such as appreciation of evidence and, more fundamentally, how much evidence
is needed in order to convict or acquit. Put differently, each and every member of the
Senate is given by the Constitution full and final discretionary authority to determine
what kind or quantum of evidence would be needed to satisfy him or her on any decision.
This conclusion is not as radical as it seems, once we accept the idea that the power to
hear and decide cases of impeachment is one that has been textually and demonstrably
committed by the Constitution to the Senate, to paraphrase a famous doctrine in
American constitutional law. If an analogy may help, we could take the example of the
Supreme Court which, considering the hierarchy of courts in the judiciary, makes the
final determination of whether the lower courts were correct in exercising their discretion.
Decision-making ends in the Supreme Court not because it is always correct but because
it has been designated by the Constitution as the body that will have the last say on certain
matters. Insofar as constraint is concerned, we simply assume that the justices, whose
names appear in the decisions they write (whether in ponencias or concurring or dissenting
opinions) care enough about their reputation and the art and responsibility of judging to
decide justly.
This reasoning applies with equal force to the finality of decisions of the Senate in
an impeachment proceeding. There is no higher institution that has the power to review
the individual assessments made by its members on the substantive issue of conviction
or acquittal and, by extension, the technical bases for that decision. Justice Cuevas has
argued that the proceedings are criminal in character, clearly implying that the threshold
for conviction would be proof beyond reasonable doubt. But how does one scrutinize the
vote of each senator, when under the Constitution they are not even required to explain
their decision to convict or acquit? And even if they do, there will be no single written or
articulated majority ponencia that can be subjected to a review process. Instead, what we
have will simply be the articulated or unarticulated votes of all the individual members of
the Senate. Under these conditions, a review process cannot take place without making
interpolations between facts established in evidence and guessing how each member of
the Senate actually understood what was presented before him/her.
This analysis extends to all claims about any specific standard of proof used in
judicial proceedings, whether it is substantive evidence, preponderance of evidence, or
clear and convincing evidence. Members of the prosecution or their supporters who
argue for a “lower” standard of evidence probably do not fully appreciate the dangerous
position they take whenever they refer to any of these judicial standards. Every invocation
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of a standard used by lower courts in the various types of proceedings that come before
them makes the trial before the Senate susceptible to an appeal before the Supreme Court
because they end up tying the hands of the Senate to a standard of discretion which may
be open to “grave abuse.” One may, of course, argue that substantial evidence or clear
and convincing evidence are such minimal evidentiary burdens that give decision-makers
a wide expanse of discretion. This may be true, but also beside the point. Any opening
for review is not only inconsistent with the idea of an impeachment as a public, not a
judicial, inquiry; it is also an impairment of the full powers granted by the Constitution
to the Senate.
Those who worry about the Senate having too much flexibility and discretion
must consider, first, that the same problem exists with all institutions lodged with final
authority, whether it is the President or the Supreme Court; it is therefore no argument at
all to say that the finality of the decision leaves those who bear the brunt of the decision
with no appeal; second, that this is consistent with the theory of impeachment as a form of
sovereign removal. The ultimate check on possible abuse by the Senate of its powers as
an impeachment court is the judgment of the people themselves. Following this view, the
nomenclature of the standard of evidence is no longer material because in the end it is
the senators who will have to justify their decision before the people, one way or another.
Finally, if we have to speak of any standard at all, perhaps we can say that for the
Senators, as judges in an impeachment court, the quantum of evidence sufficient to either
convict or acquit would be whatever is reasonable to them, or what appeals to each and
every member’s sound judgment, insofar as it can be defended before the bar of public
opinion.
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The State of Philippine Impeachment Jurisprudence
the State oF philippine impeachment JuriSprudence
Raoul V. Victorino*
As the impeachment trial of Chief Justice Renato C. Corona unfolds, the nature
of Impeachment as an institutional device for checks and balances will be subject to
debate within and beyond the halls of the Senate sitting as the Impeachment Court.
What standards of evidence should the prosecution meet? Why does the Philippine
Constitution, under Article XI, provide for the impeachment process and why is the
scope of impeachable officers as well as the grounds for impeachment and conviction
narrow and exclusive, beyond the purview of legislation and legislative amendment?
Why does the Constitution provide for the remedy of impeachment in the first place? To
approach these and many other important questions, one ought to turn to the origins of
impeachment, its developments under common law and Philippine law and case law, and
the Supreme Court’s interpretative disposition towards the present constitutional text.
This article is organized into four Parts. In Part I, I briefly discuss a comparative
history of impeachment between and among common law traditions and Philippine
constitutional practice. In Part II, I discuss the nature and purpose of impeachment,
at least as originally conceived under common law traditions. In Part III, I turn to the
Philippine rendition of impeachment in light of Philippine constitutional developments
and constitutional progress. Here I include a discussion of landmark Supreme Court
cases on impeachment. I conclude in Part II.
I. ComparatIve HIstory
Impeachment is of common law origin. The law on Philippine impeachment
was initially transposed from American impeachment law, which, in turn, borrowed
from English law.1 The impeachment process under British parliamentary practice was
designed to provide the House of Commons an institutional measure through which
their members can exercise some form of control over the King’s men. While the King
could not be impeached, it was understood that the king’s men could be. Impeachment
law under the United Kingdom developed as a result and increasingly formed part of, or
became entrenched in, its unwritten constitution. Notably, in the 17th century and under
the reign of became entrenched in, its written constitution. Notably, in the 17th century
and under the reign of James I, impeachment had been resorted to by the House of
Commons not frequently, as over 100 impeachments – under contemporary vernacular
one may refer to these as impeachment complaints – were voted upon by its Members.
In the deliberations leading to the passage of the Constitution of the United States,
the delegates of the Philadelphia Constitutional Convention sought to institutionalize
impeachment as a political weapon against possible abuses of the executive, or executive
tyranny. In designing the US Constitution the Framer wanted to avoid a blending of
*
Dean of Law, Philippine Christian University College of Law; Associate Justice (ret.) of the Sandiganbayan;
former member of the Judicial & Bar Council. Many thanks to Professor Edsel Tupaz for his thoughts and
comments.
1.
Alexander Hamilton, in No. 65 of the Federalist, stated that Great Britain served as “the model from which
[impeachment] has been borrowed.”
9
Raoul V. Victorino
powers between the ministers and the legislature that was characterized of the Parliament
of Great Britain. Impeachment was conceived by the American Framers as the highest
check against the executive, lodged that power in the legislature, and inherently formed
part of a scheme of separation of powers. At this juncture one must note that the famous
case of Marbury v. Madison,2 an 1803 decision of the United States Supreme Court, had
not yet come to pass, thus the notion of ‘judicial review’ as we understand it today had
not, at the time of the Philadelphia Convention, been contemplated.
Impeachment was thus thought to be, at least at the time of Convention, the
principal institutional check (save for periodic elections). Thus, the decision to distinguish
the legislative from the executive inherently implicated an institutional check and balance
between the two, which in the view of the Framers ought to be impeachment. Following
Marbury, American-style judicial review quickly developed and paved the way towards
the tripartite separation of powers between and among the executive, legislative, and the
judiciary, a doctrine that is well known today in constitutional practice here and many
jurisdictions elsewhere. Read in light of the entrenchment of judicial review under Marbury
after the fact, there is no question that the American Framers intended impeachment
to be a political institutional vehicle, unchecked by judicial review. Alexander Hamilton
described the nature of the offenses, as grounds for impeachment and conviction, as
political offenses, to be differentiated from criminal offenses, or “those offenses which
proceed from the misconduct of public men, or, in other words, from the abuse or
violation of some public trust. They are of a nature which may with peculiar propriety
be denominated political, as the relate chiefly to injuries done immediately to the society
itself.”3
American impeachment law is different from Philippine impeachment law in
terms of (1) grounds; (2) impeachable officials; (3) the required number of votes in the
House of Representatives; and (4) the presiding officer in the impeachment trial.
Sections 2 and 3, Article I of the U.S. Constitution state the grounds for
impeachment: “[T]he President, Vice President, and all civil officers of the United States
shall be removed from office on impeachment for, and conviction of, treason, bribery, or
other high crimes and misdemeanors.” Section 2, Article XI of the Philippine Constitution,
on the other hand, states that the “President, the Vice President, the Members of the
Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman
may be removed from office, on impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal
of public trust.” Note that there are only four grounds to impeach a federal official under
the US Constitution, while there are six for its Philippine counterpart. As intimated, in
determining whether grounds for impeachment exist, the Framers of the U.S. Constitution
purposefully avoided a fixed standard. They incorporated the extant English practice
pointing to a general and flexible standard designed to meet future and unforeseeable
events.
Second, the list of Philippine impeachable officials is exclusive. The scope of
impeachable officials in the American version is open-ended, namely, the President,
Vice President, “and all civil officers of the United States.” The Philippine Constitution
10
2.
5 U.S. (1 Cranch) 137 (1803).
3.
THE FEDERALIST No. 65 at 423-24 (Modern Library ed.) (A. Ham-ilton) (emphasis in original).
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on the other hand limits impeachable officers to the President, the Vice President, the
Members of the Supreme Court, the Members of the Constitutional Commissions, the
Ombudsman, and no more.
Third, impeachment in the U.S. Constitution requires a majority vote of the
House, while the Philippine Constitution requires a mere one-third vote of all the Members
of the House to affirm or override a resolution with the Articles of Impeachment of the
Committee on Justice. Both Constitutional require a two-thirds vote of all the members
of the Senate to convict the impeached official.
Fourth, according to the U.S. Constitution, in all cases except where the President
is being tried, the Vice President presides over the Senate proceedings. If the President
is the impeached official, it is the Chief Justice who presides. Under the Philippine
Constitution and, like its American counterpart, the Chief Justice presides when the
President of the Philippines is on trial. However, by Constitutional mandate and by the
Rules of the Senate on Impeachment, when the impeached official is other than the
President, it is the Senate President who president.
II. Nature of ImpeaCHmeNt
At least according to the American Framers, impeachment proceedings therefore
are considered to be “political,” Hamilton’s characterization supports the proposition
that impeachment proceedings are sui generis, that is, of a class of its own, with a political
flavor. To James Wilson, impeachment is “confined to political characters, to political
crimes and misdemeanors, and to political punishment.”4 And, to Justice Joseph Story,
in his Commentaries on the Constitution in 1833, impeachment applied to offenses of
a political character.5 Story notes that the offenses are characteristically “so indefinable
in their actual involutions, that it is almost impossible to provide systematically for them
by positive law. They must be examined upon very broad and comprehensive principles
of public policy and duty. They must be judged by the habits and rules and principles of
diplomacy, or departmental operations and arrangements, of parliamentary practice, of
executive customs and negotiations, of foreign as well as domestic political movements.”6
III. pHIlIppINe ImpeaCHmeNt JurIsprudeNCe
In what follows, I highlight key constitutional doctrine and case law on
impeachment.
The leading case on impeachment is Francisco, et al. v. House Speaker, et. al.7 Among
the issues disposed by the Supreme Court was the definition of “initiation” of the
impeachment proceeding for purposes of determining whether the one-year prohibition
against initiating a second impeachment proceeding could operate. Here the Court held
that the “impeachment proceeding” is not initiated when the complaint is transmitted to
the Senate for trial. Rather, the proceeding is deemed initiated when a verified complaint
4.
James Wilson, Lectures on Law, in 1 THE WORKS OF JAME WILSON 426 (R. McCloskey ed. 1967).
5.
1 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 764, at 559
(5th ed. 1905).
6.
Id.
7.
G.R. No. 160261, November 10, 2003.
11
Raoul V. Victorino
is filled and referred to the Committee on Justice.
Another leading case is Estrada vs. Desierto.8 During the impeachment trial of then
President Joseph Ejercito Estrada, the Senate voted against the opening of the envelope
allegedly containing evidence purporting to show that Estrada held a secret bank account
under an alias. After the members of the House prosecuted panel walked out, the Senate
postponed the trial indefinitely. Immediately nationwide rallies were held, calling for
Estrada’s resignation. Following his resignation, the Senate passed a resolution declaring
the impeachment court functus officio. The Ombudsman then proceeded to file criminal
charges against Estrada. Petitioner Estrada then argued before the Supreme Court that
the Ombudsman should be prohibited from proceeding with the cases on the ground that
the Senate must first convict him in the impeachment case, which certainly conviction
did not occur. The Court held that because the Senate sitting as the Impeachment Court
is now functus officio, it would be untenable for petitioner to first be impeached and then
convicted before he can be criminally prosecuted. To hold otherwise would place a
perpetual bar to his prosecution. The Court also held that Section 3 (7) Article XI of
the Constitution states that judgment in impeachment cases cannot extend further than
removal from office and disqualification to hold any other office and that conviction in the
impeachment proceedings is not a condition sine qua non to prosecution.9
In Office of the Ombudsman vs. Court of Appeals,10 the Court held that the enumeration
of impeachable officers in Section 2 of Article XI of the Constitution is exclusive; only the
following are impeachable officers: the President, the Vice President, the members of the
Supreme Court, the members of the Constitutional Commissions and the Ombudsman.
Under the facts of the case, a Deputy Ombudsman would thus not fall within the scope
of Section 2.11
In Cuenca vs. Fernan,12 the Court held that an impeachable official – in this case,
a Justice of the Supreme Court – cannot be disbarred unless he is first impeached and
convicted by an impeachment court. Since members of the Supreme Court must be
members of the Philippines bar and are removable only by impeachment, to disbar
the Supreme Court justice during his incumbency would circumvent the constitutional
mandate that members of the Supreme Court justice his incumbency would circumvent
the constitutional mandate that members of the Supreme Court may be removed from
office only y impeachment for offenses listed in the Constitution.
In Romulo vs. Yñiguez,13 it was held that the Court cannot compel the Batasang
Pambansa to conduct an impeachment trial. In Romulo, petitioners representing more
than one-fifth of the members of the Batasang Pambansa, filed a resolution calling for
the impeachment of President Ferdinand Marcos as well as a verified complaint. The
resolution and complaint was referred to the Committee on Justice, Human Rights
and Good Government, but the Committee dismissed the case on the ground that the
12
8.
353 SCRA 452; 356 SCRA 108.
9.
Estrada vs. Desierto, 356 SCRA 108.
10.
452 SCRA 714.
11.
See also In re Indorsement from Gonzales, 160 SCRA 771.
12.
160 SCRA 778.
13.
141 SCRA 263.
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complaint was not sufficient in form and substance, and, thereafter, the case was archived.
Petitioners filed a petition to compel the Batasang Pambansa to recall the case from the
archives. The Court in Romulo stated that if it were to compel the legislature to recall
the archived case, the Court would in effect compel the legislature to proceed with the
impeachment, an act which is constitutionally forbidden.
Iv. CoNClusIoN
It remains to be seen how far the Supreme Court can and should exert judicial
review over impeachment cases by virtue of its expanded judicial review powers under
the 1987 Constitution. May the Court review the substance of the decision of the
Senate sitting as in impeachment court under the ground of “grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government”? A reading of case law would be supportive of the proposition that
the Court may intervene in cases of clear procedural error and if that error is a clear
departure from mandatory constitutional text. Cases such as Office of the Ombudsman vs.
Court of Appeals may strike contemporary jurists as somewhat of a clear-cut-case, at least
in hindsight, especially where the Court is tasked to police the scope of impeachable
officials. But the recurring incidence of plurality opinions and majority opinions as the
Francisco and Estrada cases would show, only demonstrates the inherent tension between
the moving boundaries of prudential judicial review and the political question doctrine.
Indeed whenever the Court is called to exercise judicial power over normative controversies
between and among the political departments, its members are likely to be gripped with
differences in idiosyncrasy, ideology, individual judicial and legal training or conditioning,
jurisprudential thought and understanding, and other extraneous factors which constitute
no less than the human condition which any jurist in every society cannot avoid.
•••
•••
13
extraordinary remedy For an extraordinary malady
Teofisto T. Guingona, Jr.*
In a nation where there exists no real justice – one can safely assert that there
exists no complete Governance. No true service to the people.
It pains to listen to laments of lawyers practicing before the courts, from the
lowest forum to the highest tribunal in the Philippines, who repeatedly assert that justice
in the land is only for the rich, that judges can easily be bought, that the legal processes
are often delayed for years and years until witnesses die or documents needed as evidence
get conveniently lost.
Yet we are no longer under martial rule, and a new constitution was crafted in
l987 supposedly to strengthen a new government – including a stronger judiciary. The
Supreme Court was given more authority, like the power of judicial review, except over
controversies involving political issues. It was granted bigger budgets, with more discretion
on how to utilize said funds thru fiscal autonomy – and, under the assumption that those
who occupy the Supreme Court are men and women of proven integrity worthy of the
people’s trust, they were assured of independence under good behavior until retirement.
Despite all this, it seems the assertions of practicing lawyers and some daring
personnel in the judiciary continue to paint a worsening picture of the Supreme Court,
especially when big cases involving millions are involved: to the lowest point where the
clients of these big cases are allegedly visited by inordinate justices to talk and transact
business. Heaven help the nation! For what happens upstairs filters down to the courts
below – like a contagious malady that eventually sickens the entire body. This is tragic
for the nation. It therefore requires an extraordinary remedy to resolve this extraordinary
sickness.
In 2010 we elected a new president whose promised principal mandate during
the campaigns was to rectify the wrongs of the past for a better tomorrow. Early on, he
created a Truth Commission but the same was nullified by the Supreme Court on the
ground that it was unconstitutional. He wanted pertinent cases to be acted on by the
Ombudsman, who hedged, and when threatened with impeachment by the House of
Representatives, was given a stay by the Supreme Court for several months, until the
Ombudsman herself finally resigned when the impeachment proper was resumed. The
President desired that charges be filed against his predecessor, former President Gloria
Arroyo, coupled with a Hold Departure Order, but the Supreme Court issued a TRO
allowing her to leave the country. President Aquino stood firm, and a proper charge was
appropriately filed, with the respondent now confined at the Veteran Memorial Hospital,
under custody.
These circumstances have heightened tensions – and today no less than the Chief
Justice of the Supreme Court has been impeached by the House of Representatives, and
is presently facing trial before the Senate.
Is this good or bad? Will it weaken our democracy – or will it start cleansing the
*
14
Former Vice President of the Republic and Secretary of Foreign Affairs.
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Extraordinary Remedy for an ExtraOrdinary Malady
Judiciary and strengthen it for a stronger Republic? There is supposed to be harmony
between the branches of government, but are not differences, especially honest differences
of opinion concerning plans and policies, the essence of true democracy?
In the United States when Franklin Delano Roosevelt was elected President in
l932, the nation was still in deep depression. Banks were failing, thousands were jobless,
poverty and hunger blighted the land. People looked up at Roosevelt to resolve the malady,
and he aptly responded by a packaged program known as “The New Deal”. A number of
projects in the New Deal required new laws - and Congress fully cooperated by enacting
the needed legislation.
But not from the US Supreme Court. Its Chief Justice then was Charles Hughes
who was the Republican candidate for US President in 1916, subsequently appointed
Chief Justice in 1930 by then President Herbert Hoover. The Chief Justice led the
opposition against some of the vital enactments in the New Deal such as the National
Recovery Administration, the Agricultural Adjustment Act and ten other New Deal laws,
nullifying them, mostly because they were allegedly unconstitutional.
This angered Roosevelt. He told the American people that the U.S. form of
government is like a three horse team provided by the constitution to the American people
so that their field might be plowed properly. He said: “The three horses are of course the
three branches of government – the Congress, the Executive, and the Courts. Two of the
horses are pulling in unison today, the third is not. Those who have intimated that the
President of the United States is trying to drive that team, overlook the simple fact that
the President, as Chief Executive, is himself one of the three horses. It is the American
people themselves who are in the driver’s seat; it is they who want the furrow plowed. It
is the American people themselves who expect the third horse to pull in unison with the
other two.”
It was then US Chief Justice Charles Hughes who declared “The Constitution
is what the Judge says it is.”Wrong, said Roosevelt. The Court is not another superior
legislative body intended by the framers to supplant the wisdom of Congress in the
enactment of laws. He cited an earlier ruling which proclaimed a proper limitation in
considering the validity of legislation: “It is but decent respect due the wisdom, and
integrity, and the patriotism of the legislative body by which any law is passed, in favor of
its validity until its violation of the constitution is proved beyond all reasonable doubt.”
In the wake of the worsening battle between the heads of the two horses of
government, Roosevelt warned the people that unless the Court stops blocking the
required laws, then the depression the government is resolving may linger on or take a
turn for the worse. “We need national laws in the battle to further lift the nation. Local
laws of cities alone will not suffice because the malady we face affects the entire county.”
He noted that six of the nine justices of the U.S. Supreme Court were over seventy years
old, so perhaps the Court needed an infusion of new blood - and if the Court continued
to block his program for rehabilitation, he would propose a bill to reorganize the Court–in
essence to allow the appointment of one new member in the Court for each justice over
seventy years of age.
History however began to favor Roosevelt. Justice Roberts who previously opposed
the minimum wage legislation announced that he had changed his mind and was voting
for it. The Chief Justice himself reversed his stand on the National Labor Relations Act
15
and the Social Security Act and by a vote of 5-4 said Acts were declared constitutional.
Then Justice Van Devanter, perceived as one of the most conservative justices, resigned.
He was replaced by Hugo Black, a firm believer in the New Deal program,. From then
on, the three horses were truly harnessed as a team.
A similar battle with graver issues that led to a bloody civil war arose during the
time of Abraham Lincoln.
The United States in the 1850s was a nation divided by the question of slavery –
where the Northern States generally stood against while the South favored the presence
of slaves in their States. Earlier, in 1820 the US Congress formulated the Missouri
Compromise which recognized the realities for the Northern States to stay free and the
South to have slaves, but with the addition or extension of new territories like California
and New Mexico the vital challenge remained. How were these new states to be treated
– free or sanctioned with slaves? The Missouri Compromise ended and gave way to a
Kansas-Nebraska law which left that issue to the residents of the new states to decide. But
instead of acceptance there arose more questions and more opposition, Slavery continued
to further divide the nation.
In 1856 James Buchanan, a Southern leaning Democrat, became President of
the US. He conceded the existence of a deep division that faced the nation, compounded
by the question of what course to take concerning the new territories. However, he added
that due to vital cases then pending in the courts, this challenge was not a political issue
but a judicial question which legitimately belongs to the Supreme Court of the United
States. And when the Court would decide, he concluded, “I shall cheerfully submit,
whatever this may be.”
Two days after he was sworn into office where he uttered with seeming foresight
that what to do with the new territories was a judicial question, not political, the Supreme
Court thru Chef Justice Roger Taney read a historic but controversial decision in Dred
Scott v. Sanford. According to an acclaimed historian, Doris Kearns Goodman, “Roger
Taney of Maryland was an uncompromising supporter of the South and slavery, and an
implacable foe of racial equality, the Republican Party, and the anti-slavery movement.”
Scott was a Negro Slave from Missouri. Eleven years earlier he sued for freedom
on the grounds that his master, an army doctor, had removed him for several years to
military bases in both the free state of IIinois and the Wisconsin Territory before returning
him to the slave State of Missouri.
The case went thru state and federal courts until it eventually reached the Supreme
Court in l856. In a 7-2 decision the Court ruled that “the blacks are not included, and
were not meant to be included under the word ‘citizens’ in the Constitution.” Therefore
Scott had no standing in Federal Court. Neither the Declaration of Independence nor the
Constitution had been intended to apply to blacks. Blacks were so inferior that they had
no rights which the white man was bound to respect.”The Chief Justice even went further.
He said that Congress exceeded its authority when it forbade slavery in territories as
embodied in such Acts as the Missouri Compromise, for slaves are mere private properties
protected by the Constitution.”
South.
16
“Sheer Blasphemy!” was the cry from the North. “Cheers!” from the emboldened
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In Springfield Illinois, Abraham Lincoln stood to deliver his response- not by
castigating the Court but by exposing flaws thru reason. “The Chief Justice insists at great
length that Negroes were no part of the people who made, or for whom was made the
Declaration of Independence or the Constitution. Yet in at least five states, black voters
acted on the ratification of the Constitution, and were among the ‘We The People’ by
whom the Constitution was ordained and established. The founders did not ‘declare all
men equal in all respects.’ They did not mean to say all men were equal in color, size,
intellect, moral development or social capacity, But they did declare all men equal in
certain inalienable rights, among which are life, liberty, and the pursuit of happiness….
they meant simply to declare the right, so the enforcement of it might follow as fast as
circumstances should permit.”
The battle lines between pro and anti slavery were now more tensely drawn with
dire consequences. It would ultimately flare to Civil War.
But first a personal sequel. Shortly after Chief Justice Taney read the ruling
against Dred Scot, he was sold to a Mr. Taylor Blow, who promptly freed him. He became
a free man, and though he passed away within a year, he left an honorable name in history
who valued freedom, a human being more meaningful than those who consigned him to
slavery.
Abraham Lincoln never changed his stand against slavery, but now that the
Supreme Court had clearly allied itself with the newly installed President, James
Buchanan, he felt that a more dangerous but determined move would be made by them
for slavery to be accepted in other parts of the nation, perhaps across the entire nation
itself, aided by many supporters like Stephen Douglas who was then a Democrat Senator
and Chairman of the Committee on Territories in the Senate.
So Lincoln strengthened his resolve. For ten years he had ably served the nation
as a Representative in his home state. Now, more than ever, with the Dred Scott ruling
serving as a rallying point for pro slavery, Lincoln helped to strengthen the Republican
Party, and when the cry for a national debate between him and Senator Stephen Douglas
was made, he readily accepted. They debated seven times – which served as a big boost
to the entire nation for each debate was fully attended - with national newspapers avidly
covering the great issue of the day.
When Abraham Lincoln decided to join the presidential election in l860, the first
challenge was how to win the nomination of the Republican Party. This was no easy task
since other candidates for nomination were also fierce believers against slavery who had
served as senators and governors like William Seward and Salmon Chase, and Edward
Bates, a widely respected statesman and former congressman. But by antagonizing no
one, thru hard wok in approaching every delegate possible, and sheer luck, he won the
nomination!
In the ensuing presidential contest, the battle was mainly between Democrats and
the adhererents to slavery versus Republicans against slavery, There were four candidates
but Lincoln was the sole Republican while the democrats were split between Stephen
Douglas and John Breckenridge, and the fourth belonged to the Constitutional Union
Party. So Lincoln handily won.
Before he became President, Lincoln had told the nation, quoting the bible that
17
a house divided against itself half free half slave, cannot stand. So his main concern was
not to have either half of the nation fall – but to have one coherent nation rise. All should
rise.
When civil war erupted, his primary aim was to preserve the union, even as the
initial stages of the war indicated that the divided nation was in for a long and bloody
fight. Lincoln’s secondary aim was to issue a Proclamation of Emancipation for the
Negroes, which he kept to himself because he knew it was controversial since it could
further inflame the South not only to break away permanently but also attempt to have
the Federal Supreme Court nullify it.
In one occasion Lincoln as Chief Executive found it necessary to suspend the
writ of habeas corpus to prevent the railroad from Philadelphia to Washington ferrying
union soldiers from being blasted by enemies. At that time the confederate forces were
dangerously getting closer to Washington and unless fresh troops would arrive on time the
city could face disaster. Some arrests were made. One of them, John Merryman, brought
his case to Court and Chief Justice Taney assailed Lincoln, saying that only congress could
suspend the writ. But the railroad was saved and the soldiers were transported without
harm. Washington forces drove the confederate armies away. Lincoln later defended his
suspension of the Writ, and asked for the power to lift the same in emergencies involving
public safety. He got it belatedly thru the Habeas Corpus Act of March 3, l863.
So in the midst of war Lincoln pondered over his Proclamation of Emancipation.
Was it the right thing to do? Yes, he said to himself. It will mean freedom for four million
slaves. But what are the negative consequences? Perhaps he should consult some trusted
friends? So he wrote the draft, showed it to those friends.Then he called a cabinet meeting.
They sat in silence as he read the Proclamation. There were a number of opinions voiced,
but it was the counsel of the Secretary of State William Seward, his former rival for the
presidential nomination of the Republican Party convention, which impressed Lincoln
most. Seward said. “I stand in favor of this proclamation – but the vital key is - when
should it be done? We are now in some sort of stalemate in this war – but let us gain
a real victory in the fields of battle, after which the cry of the Eagle pronouncing the
proclamation will find favor in the hearts of most people”.
That victory came in the battle of Antietam on September l7, l862 –where 6,000
soldiers on both sides perished, an additional l7, 000 wounded, and General Lee of the
confederate army retreated in defeat.
So President Lincoln announced shortly after, that he was going make a vital
proclamation on the first day of the coming year.
True to his word, after the New Year reception at the Presidential Quarters in
Washington, Abraham Lincoln issued the Proclamation of Emancipation, January l, l863
to a nation that waited with bated breath to read a historic document that would usher in
a new birth of freedom. It was the beginning of the end of slavery.
In October of that same year, Chief Justice Roger Taney passéd away. Lincoln
nominated Salmon Chase to replace him. He was sworn into office on December
l5. Within hours after he took office as Chief Justice, John Rock, a black lawyer from
Massachusetts who had wanted to practice practice law before the Supreme more than
a year ago but was denied forthwith because he was black. He wrote Charles Summer.
18
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a respected lawyer, to help him with his plea. Six weeks later, Summer stood before the
Supreme Court as Rock’s sponsor. “May it please the Court, I move that John S. Rock. A
member of the Supreme Court of the State of Massachussetts be admitted to practice as
a member of this Court.” Chief Justice Chase assented, and a proud John Rock took his
oath to become the first black man to practice law before the highest Court of the land.
According to Harper’s Weekly observation “This event represented an extraordinary
reversal of the Dred Scott case.”
Now let us leap back, more than a century ago in the case of Abraham Lincoln
and more than eighty years in the case of Franklin Delano Roosevelt, to our own land
and face anew the similar challenges of divergence and disharmony between The Chief
Executive and the Chief Justice as reflected in the impeachment, now on to its second
week of trial.
The present impeachment is a vital and historic event but nonetheless a passing
one in the life of a nation.
Our nation’s aim is to move ahead into eventual prosperity, not only to fight
corruption but to give our people jobs and justice, strengthen freedom and give us economic
prosperity, harness vacant land for our famers, develop the 200 mile sea economic zone
under the UNCLOS law for our fishermen; teach the workers how to process primary
products; prepare our OFWs for when and how they can return best. It may take time –
but it will come if we sincerely strive for it.
When Roosevelt got elected, he faced the dire challenge not only of lifting the evil
roots of depression but also of formulating new programs for advancing and sustaining
a rehabilitated economy. He promised food on the table for every American family, and
Succeded.
When Abraham Lincoln became President, he faced a divided nation. He
therefore strove to unite the people, preserve the union, and resolve the issue of slavery
even as he bravely endured the fate of an assasin’s bullet.
Even the cry of P-Noy during the campaign “kung walang kurap, walang hirap”
spells out a need to fight not only corruption but also a need for a sincere strife against
dire poverty of many to real prosperity for all. To accomplish this, however, we need the
cooperation of parents, teachers, religious leaders – all who can truly restore values of
honesty, hard work, sincerity and the like, in things that we do – because for years our land
was blighted by despicable corruption that eroded the three branches of government,
the people, young and old, rich and poor, male and female – until many began to accept
corruption as a way of life. No! We must battle poverty as well.
To start moving the nation forward, the onset of impeachment already indicates
a need for reforms, although they can be studied and carried out only after the process of
the present impeachment shall have terminated. I suggest:
1) A law be enacted that the mandated disclosure by public servants of their
Statement of Assets and Liabilities be more comprehensive and made available upon
request, not subject to rules authorizing the keeper to deny disclosure of the document;
2) A review of the Francisco vs. House of Representatives (G.R. No l60381, 10
19
November 2003). That ruling, with due respect, was made premised on the judicial
power of the Court to correct abuses within the branches and instrumentalities of
government. But does the Supreme Court really have judicial power over impeachment
cases? I humbly submit that it does not. The Impeachment Court is a special body, akin
to a people’s court, mandated by the Constitution to try specific persons from removing
said person and disqualifying him from further holding public if convicted after proper
hearing from the Senate of the Republic. It is meant to benefit the people, which is why
the task was entrusted to their duly elected representatives. Impeachment is basically a
political process, mandated by the sovereign Filipino thru his Constitution, to remove
certain persons from office. It is political but non-partisan. It entrusts the initiation to the
House of Representatives to formulate charges only to those specified in the Constitution
and grants to the Senate the sole authority to conduct the trial. What if there are wrongs
and abuses done in the course of the proceedings till the termination of the trial? The
congressmen and senator-judges are answerable to the people in the elections.
3) Since impeachment is more like an administrative proceeding at a higher level,
perhaps the senate rules can specify, for use in the future, that the quantity and quality
of the evidence be substantial for the prosecution and for the defense when the burden
of proof shall have shifted. Finally, to allow private prosecutors duly accredited to speak,
manifest, rebut and argue their cause.
The nation needs many reforms in other areas of governance. But let us pray that
this impeachment process will begin to bring in the necessary opportunities to answer our
quest against the impunity of corruption, to attain the sustained progress against poverty.
Let me repeat what Roosevelt said to the American people “the U.S government
is like a three horse team provided by the constitution to the American people so that their
field might be plowed properly. “The three horses are of course the three branches of
government – the Congress, the Executive, and the Courts. Two of the horses are pulling
in unison today, the third is not. Those who have intimated that the President of the
United States is trying to drive that team, overlook the simple fact that the President, as
Chief Executive, is himself one of the three horses. It is the American people themselves
who are in the driver’s seat; it is they who want the furrow plowed. It is the American
people themselves who expect the third horse to pull in unison with the other two.”
The same is true for the Philippines and the Filipino. All three branches must
work together. For the sake of our nation let us make the present impeachment case
an opportunity thereafter to unite and move forward, to have true justice and real
improvement in our economy. Let us unite and fight for the Filipino!
•••
20
•••
the iBp Journal
The Doctrine of Separation of Powers Through the Prismof Impeachment:
Context Issues and Lessons Learned
the doctrine oF Separation oF powerS
through the priSm oF impeachment:
context iSSueS and leSSonS learned
Sedfrey M. Candelaria*
I.
Introduction
II.
History of Impeachment Cases
(a)
Romulo v. Yñiguez
(b)
In Re: Raul M. Gonzales
(c)
Estrada v. Desierto
(d)
Francisco v. The House of Representatives
(e)
Gutierrez v. The House of Representatives
III.
Social Contract of P-Noy
IV.
The Articles of Impeachment in the CJ Corona Case
V.
(a)
Antecedent Events
(b)
Piercing through the Judicial Robe
Problems of Characterization of the Impeachment Process
(a)
Sui Generis Dilemma
(b)
“Merits” or the “Numbers Game”
(i)
(i)
Senate on Trial
(ii)
VI.
The Public Decides
Lessons to be Learned
(a)
Judicial Review and Restraint Among the Three Branches of Government
(b)
Revisiting Constitutional Reforms
VII.
Conclusion
I.
INtroduCtIoN
The doctrine of separation of powers, derived from the American constitutional
legal framework, has been the foundation of Philippine constitutional structure since
the Commonwealth period. It is presumed that the power balance between the three
branches of government, i.e., Executive, Legislature and the Judiciary, is constantly
*
Member, Integrated Bar of the Philippines, Rizal Chapter
21
maintained through the healthy allocation of functions, on one hand, and the existence
of accountability mechanisms, on the other hand.
This article aims to inquire into the manner by which an accountability
mechanism, such as impeachment, could arguably be a potent tool to test the limits of
the independence of each branch of the government. The double-edged function of
impeachment is better demonstrated by the current drama unfolding before us—the
impeachment of Chief Justice Renato C. Corona.
In an attempt to understand the legal niceties of the impeachment process, the
public may be invited, at least momentarily, to transcend the procedural intricacies that the
public prosecutors and defense grapple with each hearing day, and, instead, examine the
end game and the bigger picture which the process either seeks to project or, subliminally,
aim to achieve. What is the real context of the current political exercise? What are the
implications for constitutional reform?
The article reviews the development of recent jurisprudence in impeachment
cases in Section 2 then proceeds to put into context the CJ Corona impeachment initiative
of the P-Noy Administration in Section 3. In Section 4, the writer cursorily examines
the Articles of Impeachment in the CJ Corona case. Section 5 raises some issues on the
characterization of impeachment which would bear upon the decision-making process
of the Senate in particular and the public at large. Section 6 identifies some lessons
to be learned from the impeachment process in relation to the more strategic task of
strengthening institutions within the context of nation-building.
II.
HIstory of ImpeaCHmeNt Cases
(a)
Romulo v. Yñiguez1
On August 13, 1985, more than one-fifth (1/5) of all members of the Batasan
signed Resolution No. 644 calling for the impeachment of President Marcos together
with a verified complaint for impeachment. The Committee on Justice, Human Rights
and Good Government found the complaint not sufficient in form and substance and
dismissed all the charges contained in the complaint. Attempts by the petitioners, mostly
opposition members in the Batasan, to recall from the archives Resolution No. 644 and
the verified complaint were disapproved by the Batasan.
On August 17, 1985, in G.R. No. L-71688, IBP members Arturo M. De Castro
and Perfecto L. Cagampang, filed a petition to annul the Resolution of the Committee
on Justice, Human Rights and Good Government but the Supreme Court held in a
Resolution dated September 3, 1985 that the action of the Committee involves a political
question.2 The Court further noted that the petition failed to allege that the Batasan had
22
1.
141 SCRA 263, G.R. No. L-71908, February 4, 1986, En Banc, Patajo, J. [hereinafter Romulo].
2.
Romulo, citing Resolution dated September 3, 1985; see p. 268.
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violated any provision of the Constitution.3 It emphasized:
.... The fact that the Committee on Justice dismissed the petition on the
same day it was filed after deliberating on it for several hours as reported
in the newspapers, radio and television (which must have been the bases
of petitioners’ claim that the Committee had acted with undue haste
in unceremoniously dismissing the complaint for impeachment) does
not provide basis for concluding that there had been a violation of any
provision of the Constitution which would justify the Court’s intervention
to ensure proper observance of constitutional norms and conduct.4
Finally, the Court maintained that “(t)he interpretation and application of
(impeachment) rules are beyond the powers of the Court to review.”5 It declined to issue
a writ of mandamus against the Batasan in deference to the doctrine of separation of
powers.6
The present petitioners, Romulo, et. al., alleged that Sections 4, 5, 6 and 8 of
the Rules of Procedure in Impeachment Proceedings are unconstitutional principally
because these rules “empowered a smaller body to supplant and overrule the complaint
to impeach endorsed by the requisitive 1/5 of all the members of the Batasan Pambansa
and that said questioned provisions derail the impeachment proceedings at various stages
by vesting the Committee on Justice, the power to impeach or not to impeach, when such
prerogative belongs solely to Batasan Pambansa as a collective body.”7
The Supreme Court noted that petitioners are seeking relief “in order that the
impeachment trial can be conducted forthwith by the Batasan as a body.”8 Answering in
the negative, the Court found no inconsistency in the Rules in relation to the Constitution.”9
(b)
In Re Raul M. Gonzales10
A letter-complaint against Justice Marcelo B. Fernan dated December 14, 1987
was filed by Concerned Employees of the Supreme Court before the Tanodbayan/
Special Prosecutor Raul M. Gonzales. The latter endorsed the letter to the Supreme
Court on March 16, 1988.
The letter contained, among others, charges for disbarment of Justice Fernan.
On February 17, 1988, the Court resolved to dismiss the charges for utter lack of merit
3.
Romulo, p. 269.
4.
Romulo, ibid.
5.
Romulo, ibid.
6.
Romulo, ibid.
7.
Romulo, p. 271.
8.
Romulo, pp. 272-73, citing Prayer of the Petition, subpar. (ii) of Par. 2.
9.
Romulo, p. 276.
10.
160 SCRA 771, Admin. Matter No. 88-4-5433, April 15, 1988, Per Curiam [hereinafter Gonzales].
23
and required complainant to show cause why he should not be administratively dealt with
for making unfounded serious accusations against Justice Fernan.
In dismissing the charges against a sitting magistrate, the Supreme Court reasoned
out in the following manner:
It is important to underscore the rule of constitutional law here involved.
The principle may be succinctly formulated in the following terms: A
public officer who under the Constitution is required to be a Member of
the Philippine Bar as a qualification for the office held by him and who
may be removed from office only by impeachment, cannot be charged
with disbarment during the incumbency of such public officer. Further,
such public officer, during his incumbency, cannot be charged criminally
before the Sandiganbayan or any court with any offense which carries
with it the penalty of removal from office, or any penalty service of
which would amount to removal from office.11
The Court emphasized the underlying rule behind the strict constitutional route
under Sections 2 and 3 of Article XI of the 1987 Constitution:
The above rule rests on the fundamental principles of judicial
independence and separation of powers x x x. Without the protection
of this rule, Members of the Supreme Court would be vulnerable to all
manner of charges which might be brought against him by unsuccessful
litigants or their lawyers or by other parties who, for any number of
reasons might seek to affect the exercise of judicial authority by the
Court.12
(c)
Estrada v. Desierto13
On October 5, 2000, Senator Teofisto Guingona, Jr. accused President Estrada
of receiving P220 million in jueteng money from Governor Singson from November
1998 to August 2000 and that the President took from Governor Singson P70 million on
excise tax on cigarettes intended for Ilocos Sur. A joint investigation was conducted by
the Senate Blue Ribbon Committee and the Committee on Justice. On the part of the
House of Representatives, a similar investigation was conducted by the Committee on
Public Order and Security. Other representatives moved to impeach the President.
On November 13, 2000, House Speaker Villar, presiding over a tumultuous
session, transmitted the Articles of Impeachment signed by 115 representatives to the
Senate. Supreme Court Chief Justice Hilario G. Davide, Jr. presided over the trial.
The testimony of Clarissa Ocampo revealed that she was one foot away from
the President when he affixed the signature “Jose Velarde” on documents involving a
24
11.
Gonzales, p. 774.
12.
Gonzales, p. 777.
13.
G.R. Nos. 146710-15 and 146738, March 2, 2001, Puno, J. [hereinafter Estrada].
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P500 million investment agreement with Ocampo’s bank on February 4, 2000. Further
revelations by other witnesses led to an intensified trial.
On January 16, 2001, on an 11-10 vote, the senator-judges ruled against the
opening of the second envelope which allegedly contained evidence showing the President
held P3.3 billion in a secret bank account under the name “Jose Velarde.” This triggered
a walkout by the public and private prosecutors and spontaneous outburst of anger by
the public.
On January 17, 2001 the public prosecutors tendered collective resignation and
withdrew their appearance with the impeachment court. Senator Raul Roco moved for
the indefinite postponement of the impeachment proceedings until resolution of the issue
of resignation of the public prosecutors.
Meanwhile, mass action against the Estrada Administration led to the change in
power in favor of Vice President Gloria Macapagal-Arroyo.
On February 7, the Senate passed Resolution No. 83 declaring that the
Impeachment Court is functus officio and has been terminated.
Former President Estrada later faced criminal charges before the Office of the
Ombudsman. He instituted the present suits principally to enjoin the Ombudsman from
resolving the criminal cases.
The Supreme Court addressed, among others, the issue of “Whether conviction in
the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada.”14
The Court ruled that “since the Impeachment Court is now functus officio, it is
untenable for petitioner to demand that he should first be impeached and then convicted
before he can be prosecuted. The plea if granted, would put a perpetual bar against his
prosecution.”15
(d)
Francisco v. The House of Representatives, et. al.16
On July 22, 2002, the House of Representatives adopted a Resolution (H.R.
No. 260), sponsored by Representative Felix William D. Fuentebella, which directed the
Committee on Justice to conduct an investigation, in aid of legislation, on the manner
of disbursements and expenditures by the Chief Justice of the Supreme Court of the
Judiciary Development Fund (JDF).17 This would later on trigger on June 2, 2003 the
filing of an impeachment complaint against Chief Justice Hilario G. Davide, Jr. and seven
Associate Justices.18
14.
Estrada, p. 11.
15..
Estrada, p. 38.
16..
G.R. Nos. 160261, 1060262, 160263, 160277, 160292, 160295, 160310. 160318, 160342, 160343, 160360,
160365, 160370, 160376, 160392, 160397, 160403, 160405; November 10, 2003, Carpio Morales, J. [herein
after Francisco].
17.
Francisco, p. 70.
18.
Francisco, ibid.
25
On October 13, 2003, the House Committee on Justice ruled that the impeachment
complaint was sufficient in form but voted to dismiss it on October 22, 2003 for being
insufficient in substance.19 The Committee Report was not sent to the House in plenary
in accordance with Section 3(2) of Article XI of the Constitution.20
Later, a second impeachment complaint was filed four months and three weeks
since the filing of the first complaint on June 2, 2003 by Representative Gilberto C.
Teodoro and Felix William B. Fuentebella against Chief Justice Davide, Jr. founded on
the alleged results of the legislative inquiry initiated by the Resolution No. 60.21 This
second impeachment 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.22
The Supreme Court’s exercise of its power of judicial review was pleaded by
petitioners in determining the validity of the filing of a second impeachment allegedly in
violation of the “one impeachment in one year” rule under Section 3(5) of Article XI of
the Constitution.23
Of special interest is the argument raised by the legislators on the need for judicial
restraint in addressing issues confronting the Impeachment Court. The Supreme Court
categorically declared that “the power of judicial review includes the power of review
over justiciable issues in impeachment proceedings.”24
Speaker de Venecia raised the fear that judicial review of impeachment might
also lead to embarrassing conflicts between Congress and the Judiciary.25 But according
to the Supreme Court “a constitutional crisis is not a reason for this Court to refrain from
upholding the Constitution in all impeachment cases.”26
The Court proceeded to inquire into the validity of Sections 16 and 17 of Rule
V of the House Impeachment Rules in relation to Section 3(5) of Article XI of the
Constitution on the meaning of the term “initiate.”27
Citing the Constitutional Commission proceedings, the Court found that “the
word ‘initiate’ in Article XI (3) and (5) of the Constitution means to file the complaint
and take initial action on it.”28 Amicus curiae Father Joaquin G. Bernas, S.J., explained:
... that when Section 3(5) says, ‘No impeachment proceeding shall be
initiated against the same official more than once within a period of one
26
19.
Francisco, ibid.
20.
Francisco, p.11.
21.
Francisco, ibid.
22.
Francisco, ibid.
23.
Francisco, p.51.
24.
Francisco, ibid.
25.
Francisco, p.55.
26.
Francisco, p.56.
27.
Francisco, p.57.
28.
Francisco, ibid.
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year,’ it means that no second verified complaint may be accepted and
referred to the Committee on Justice for action.29
Thus, Sections 16 and 17 of Rule V of the House Impeachment Rules, providing a
different meaning to the term “initiate,” ran afoul the constitutional standard.30 Initiation
takes place by the act of filing of the impeachment complaint and referral to the House
Committee on Justice.31 Considering that the first impeachment complaint was filed on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the
second impeachment complaint on October 23, 2003 violates the Constitution.32
(e)
Gutierrez v. The House of Representatives33
On July 22, 2010, Rissa Hontiveros-Baraquel, et. al. filed an impeachment
complaint against Ombudsman Merceditas N. Gutierrez upon endorsement of Party List
Representatives Arlene Bag-ao and Walden Bello.
On July 27, 2010, the complaint was transmitted to House Speaker Belmonte.
On August 3, 2010, Renato Reyes, et. al. filed another impeachment complaint
against the Ombudsman with a resolution of endorsement by another group of Party List
Representatives. On even date, the House of Representatives provisionally adopted the
Rule of Procedure in Impeachment Proceedings of the 14th Congress.
On August 10, 2010, the two complaints were included in the Order of Business
for the following day, August 11, 2010.
On August 11, 2010, the House of Representatives simultaneously referred both
complaints to the Committee of Justice.
On September 1, 2010, the Committee on Justice found both complaints sufficient
in form and considered these as having been referred to it at exactly the same time.
Meanwhile, the Rules of Procedure in Impeachment Proceedings of the 15th
Congress was published on September 2, 2010.
On September 7, 2010, Ombudsman Gutierrez applied for injunctive reliefs with
the Supreme Court. A status quo ante order (SQAO) was issued by the Court en banc.
In exercising its power of judicial review, the Court noted that “ [t]he unusual act
of simultaneously referring to public respondent (Committee on Justice) two impeachment
29.
Francisco, p. 61.
30.
Francisco, p. 62.
31.
Francisco, p. 68.
32.
Francisco, ibid.
33.
G.R. No. 193459, February 15, 2011, Carpio Morales, J. [hereinafter Gutierrez].
27
complaints presents a novel situation to invoke judicial power.”34
The Court was asked by the Ombudsman to look into the narration of facts
constitutive of the offenses in relation to her submission disclaiming the allegations in the
complaints. To this the Court reiterated the Francisco ruling that such determination is a
“purely political question.”35
On the matter of provisional adoption of the Rules of Impeachment of the
14 Congress, to meet the exigency of early filing, the Court found no grave abuse of
discretion on the part of the House of Representatives.36
th
Neither would the absence of publication in the Official Gazette or newspaper
of general circulation amount to a violation of due process in light of the “discretion of
Congress to determine on how to promulgate its Impeachment Rules.”37
Finally, the Court found nothing objectionable to the simultaneous referral of
multiple complaints filed. Applying the Francisco ruling, the Court said that “referring the
complaint to the proper committee ignites the impeachment proceeding.”38
Ombudsman Gutierrez would resign her post even before the impeachment
could proceed after the Court’s ruling.
This survey of recent rulings of the Supreme Court on impeachment cases
has so far indicated that the Court will readily review questions of law arising from
impeachment proceedings. However, there is no indication concretely of a matter which
has been raised from the impeachment trial itself that has been ruled upon by the Court
except for the fact of declaring that the impeachment trial has been rendered functus officio
in the Estrada case, including the possibility of prosecution of the respondent thereafter.
The all-embracing provision of Article VIII, Section 1 of the Constitution on the power
of the Supreme Court to declare an act of the Impeachment Court as in grave abuse of
discretion amounting to lack or excess of jurisdiction remains to be tested.
III.
soCIal CoNtraCt of p-Noy39
During his campaign in the 2010 elections, then presidential aspirant Noynoy
Aquino made a Social Contract with the Filipino People, a sixteen-point agenda that lays
down his vision of government in the different priority areas of development.
28
34.
Gutierrez, p. 9.
35.
Gutierrez, p. 15.
36.
Gutierrez, p. 20.
37.
Gutierrez, p. 16-17.
38.
Gutierrez, p. 28.
39.
Benigno S. Aquino III, A Social Contract with the Filipino People, platform of GoverNmeNt <http://
www.gov.ph/the-republic/the-president/benigno-simeon-cojuangco-aquino-iii/platform-of-government/>
(last accessed February 8, 2012).
the iBp Journal
The Social Contract expressed that the Filipino people cry out for change because
its national leadership is in dire need of transformational change arguing that
its legitimacy is under question; it persecutes those who expose the truth
about its illegitimacy and corruption; it stays in power by corrupting
individuals and institutions; it confuses the people with half-truths and
outright lies; it rewards, rather than punishes, wrongdoing; it offers no
lasting solutions for the many problems of the country; it weakens the
democratic institutions that hold our leaders accountable; it hinders
our local governments from delivering basic services; it has no vision
of governance beyond political survival and self-enrichment; our moral
faculties as a people have been paralyzed.40
Then Aquino defined and shared his collective vision for the Philippines, i.e., a
country where there is
a re-awakened sense of right and wrong, through the living examples of
our highest leaders;… a collective belief that doing the right thing does
not only make sense morally, but translates into economic value as well;
and public institutions rebuilt on the strong solidarity of our society and
its communities.41
Anchored on this vision, P-Noy articulated that our collective mission is to “start
to make these changes first in ourselves—by doing the right things, by giving value to
excellence and integrity and rejecting mediocrity and dishonesty, and by giving priority
to others over ourselves.”42
Committed to transformational leadership, P-Noy, together with his “bosses,”
will endeavor to be “the President who is the nation’s first and most determined fighter of
corruption,”43 who will ensure “a truly impartial system of institutions that deliver equal
justice to rich or poor”44 and institute “a discerning selection of presidential appointees
based on integrity, competence and performance in serving the public good.”45
P-Noy’s all-out support for the impeachment of Chief Justice Corona is heavily
anchored on this social contract. The manner of pursuing it, however, is an acid test for
this government as we are now seeing it unfold before us in the impeachment process.
Constitutional wisdom and jurisprudence dictate that while government has every right
and duty to pursue a novel and legitimate purpose, the procedural safeguards must be
equally in place, lest the whole good intent or purpose would be rendered for naught.
40.
Ibid.
41.
Ibid.
42.
Ibid.
43.
Ibid.
44.
Ibid.
45.
Ibid.
29
IV.
tHe artICles of ImpeaCHmeNt IN tHe CJ CoroNa Case
(a)
Antecedent Events
Early Career
Prior to his appointment as Associate Justice of the Supreme Court on April
9, 2002, Corona was a member of the Cabinet of Presidents Fidel Ramos and Gloria
Macapagal - Arroyo. He served as Assistant Executive Secretary for Legal Affairs, then
Deputy Executive Secretary and, finally, as Presidential Legal Counsel of President
Ramos. After FVR’s term ended, then Vice President Arroyo appointed him as Chief
of Staff and Spokesperson. When she assumed the presidency, Corona became her
Presidential Chief of Staff and Spokesperson, and later, as Acting Executive Secretary.
CJ Appointment
On May 12, 2010, then Justice Corona was appointed by President Arroyo as the
23 Chief Justice of the Philippines. Critics of the Arroyo Administration considered the
act as a “midnight appointment” because it was made two days after the 2010 elections
and a month before President Arroyo’s term expired.
rd
In De Castro v. JBC, and consolidated petitions,46 the Supreme Court rendered a
judgment upholding the constitutionality of the appointment.
In opposition to Chief Justice Corona’s appointment, then President-elect
Benigno Simeon Aquino III refused to be sworn in office by Chief Justice Corona and,
instead, chose Justice Conchita Carpio-Morales to administer his oath of office on June
30, 2010 at the Quirino Grandstand.
Ombudsman
On September 14, 2010, the Supreme Court issued in Gutierrez v. The House of
Representatives (G.R. No. 193459, February 15, 2011), a status quo ante order (SQAO)
pending a determination of the constitutionality of the two impeachment cases against
her. Later, on February 15, 2011, the Court dismissed the petition of the Ombudsman and
declared that the House Resolutions of the Committee on Justice are not unconstitutional
and the SQAO was lifted accordingly.
Truth Commission
On December 7, 2010, in Biraogo v. The Truth Commission (G.R. No. 192935 and
193036, December 7, 2010), the Supreme Court declared unconstitutional President
Aquino’s Executive Order No. 1 creating a Truth Commission for violating the equal
protection clause in as much as it singled out investigation of graft and corruption in
the Arroyo administration. President Aquino in his later speeches questioned the Court
46.
30
G.R. Nos. 191002, 191032, and 191057; A.M. No. 10-2-5-SC; G.R. Nos. 191149, 191342, and 191420,
March 17, 2010, Bersamin, J.
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decision junking the Truth Commission he created to investigate the alleged corruption
in the Arroyo Administration.
President Arroyo’s Travel
In the case of Gloria Macapagal-Arroyo v. Leila de Lima (G.R. 199034 and 199046,
November 15, 2011), the Supreme Court issued a temporary restraining order (TRO)
enjoining respondents from enforcing or implementing DOJ Circular No. 4 and Watchlist
Order Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September 6, 2011
and 2011-573 dated October 27, 2011 against the former President. President Aquino
criticized the High Court for insisting on its order to allow the former President to travel
abroad despite the alleged failure on the part of the latter to comply with the three
conditions imposed by the Supreme Court.
This Court decision prompted concerted efforts in the House of Representatives,
through the Liberal Party members and their allies, to initiate moves to impeach Corona.
Luisita Factor
Then on November 22, 2011, in the case of Hacienda Luisita, Inc. v. PARC (G.R. No.
171101, November 22, 2011), the Supreme Court issued a Resolution which ordered the
distribution of 4,915.7466 hectares of agrarian land to farmer beneficiaries of Hacienda
Luisita, the sugar estate owned by the relatives of President Aquino. The Court was
unanimous in its decision with 14 of 15 justices voting for the distribution of lands.
The Court also reiterated its July ruling ordering the Hacienda Luisita Inc. (HLI)
to pay the 6,296 farmers a total of P1.33 billion. Just compensation for the landowners
will be assessed by the Department of Agrarian Reform (DAR) and the Land Bank of
the Philippines to be reckoned from November 21, 1989, the date of the issuance of the
original resolution that was questioned by HLI. The Department of Agrarian Reform
was ordered to submit a compliance report after six months from finality of judgment, as
well as to submit quarterly reports on the execution of the judgment.
Face to Face Encounter
On the occasion of the First National Criminal Justice Summit held on December
3, 2011 at Manila Hotel, President Aquino publicly expressed his frustration at Corona’s
loyalty to former President Arroyo. President Aquino cited 19 cases involving former
President Arroyo wherein Corona voted in her favor. Again, P-Noy questioned the Court
for the junking of the Truth Commission and for allowing Arroyo to leave the country.
He again impugned the legitimacy of Corona’s appointment as Chief Justice.
Last Straw and the Tyranny of Numbers
During the December 12, 2011 flag ceremony with the Supreme Court
employees, CJ Corona delivered a speech entitled, “We Stand Together,” wherein he
31
revealed a clandestine attempt to unseat him by any means and warned the move could
“destroy our democracy.”
Hours after CJ Corona’s speech, 188 members of the House of Representatives
signed the 57-page Articles of Impeachment against CJ Corona, more than one-third (1/3)
of the constitutional requirement to impeach the Chief Justice without going through the
plenary debates. A handful of members of the House of Representatives complained of
the hasty initiation of the impeachment and the fact that there was inadequate time to
read the contents of the lengthy Articles of Impeachment.
Enter the Senate: The Impeachment Court
The Articles of Impeachment of CJ Corona was formally transmitted to the
Senate on December 13, 2011, with Iloilo Representative Niel Tupas and Mindoro
Representative Rey Umali personally delivering it to the office of the Senate Secretary.
In a caucus later that day, the senators agreed to convene the Senate as an
impeachment court to try CJ Corona, designated the Senate Legal Counsel as the
impeachment court spokesperson, and agreed to hold the impeachment trial in the
afternoon starting on January 16, 2012 when legislative work begins.
(b)
Piercing through the Judicial Robe: The Articles of Impeachment
There are eight (8) grounds for impeachment in the CJ Corona case as follows:
Article 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 and until his
dubious appointment as a midnight Chief Justice to the present.
Article 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 under Sec. 17,
Art. XI of the 1987 Constitution.
Article III
Respondent committed culpable violations of the Constitution and/or
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
32
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act on mere letters filed by a counsel which caused the issuance of flipflopping 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.
Article IV
Respondent betrayed the public trust and/or committed culpable
violation of the Constitution when he 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.
Article V
Respondent betrayed the public trust through wanton arbitrariness and
partiality in consistently disregarding the principle of res judicata in
the cases involving the 16 newly-created cities, and the promotion of
Dinagat Island into a province.
Article VI
Respondent betrayed the public trust by arrogating unto himself, and
to a committee he created, the authority and jurisdiction to improperly
investigate a justice of the Supreme Court for the purpose of exculpating
him. Such authority and jurisdiction is properly reposed by the
Constitution in the House of Representatives via impeachment.
Article 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.
Article VIII
Respondent betrayed the public trust and/or committed graft and
corruption when he failed and refused to account for the judiciary
development fund (JDF) and Special Allowance for the Judiciary (SAJ)
collections.
These grounds may be classified in matrix form thus:
33
Betrayal oF
puBlic truSt
Article 1
• Partiality and
subservience in
cases involving
the Arroyo
Administration.
Article 2
Collegial
Collegial
Article 6
• Improper
investigation
of Justice del
Castillo involving
plagiarism in
the Vinuya case
in violation of
the jurisdiction
of the House of
Representatives.
Collegial
(a) issuing a TRO in
favor of PGMA and
husband in order to
give them opportunity
to escape prosecution;
and,
• Failed and
refused to
account
for JDF
and SAJ.
Collegial
• Failure to be a person
of proven competence,
integrity, probity, and
independence by:
(a) allowing the
Supreme Court to
act on mere letters
filed by a counsel
which caused flipflopping decisions
Collegial
(b) creating an excessive Personal
entanglement with
Mrs. Arroyo through
her appointment of
his wife to office
(c) discussing pending
cases with litigants.
Article 7
• Partiality in
• Failure to disclose to the
public his SALN.
GRAFT AND
CORRUPTION/
BETRAYAL OF
PUBLIC TRUST
Article 8
Personal
Article 3
Article 5
• Arbitrariness and
partiality in the
League of Cities
case and the
Dinagat case.
CULPABLE VIOLATION OF THE
CONSTITUTION/ BETRAYAL OF
PUBLIC TRUST
Article 4
Collegial
• He blatantly disregarded
the principle of
separation of powers
by issuing a “status quo
ante” order in the case of
Ombudsman Gutierrez.
Personal
Collegial
(b) distorting the
decision on the
effectivity of the
TRO.
It is instructive to note that of the eight (8) major grounds for impeachment,
majority would entail examination of collegial decisions of a co-equal branch of
government, such as, Articles 1, 3, 4, 5, 6, 7 and 8. Only Article 2 (SALN) and part of
Article 3 (wife’s appointment and discussion of cases with litigants) are personal to the
Chief Justice.
34
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In so far as the collegial decisions are concerned, there is a direct bearing on
the doctrine of separation of powers and the independence of the Judiciary. More
specifically, the impeachment complaint suggests a scrutiny of how individual justices
vote on issues before the Supreme Court, including an inference that there is manifest
partiality in collegial votes over particular cases. This strikes at the core of judicial power
and decision-making of the High Court. Already, it is of interest to surmise how far the
impeachment court will inquire, upon the initiative of the prosecution, into the personal
motivations of the Justices in voting on legal issues arising from certain cases. The
sanctity of judicial deliberations will be the subject of investigation by the public. Even
the possibility of sitting Justices being called to explain their decisions is not far fetched
as the application of the impeachment rules progresses in the CJ Corona trial. Previous
case law on impeachment does not shed much light on this issue. Obviously, the table has
now been turned around and the Congress has aimed its arrows on the weakest branch
of the Government.
V.
problems of CHaraCterIzatIoN of tHe ImpeaCHmeNt proCess
(a)
Sui Generis Dilemma
Under Rule VII of the Rules of Procedure in Impeachment Proceedings of the
15th Congress of the House of Representatives “(t)he Rules of Criminal Procedure under
the Rules of Court shall, as far as practicable, apply to impeachment proceedings before
the House.”
In the case of the Senate, Section 6 of Resolution No. 39 on the Rules of
Procedure on Impeachment Trials provides that “the Revised Rules of Court shall apply
suppletorily whenever applicable.”
References to the Rules of Court have not been of much help in legally
characterizing the nature of impeachment proceedings. The fact that elements of due
process of law are evident in the impeachment rules is enough notice that the impeachment
process partakes of a legal character. However, the political nature of impeachment is
manifest in the repository of such duty or function, i.e., Congress, whose members are
elected and act based on political considerations.
The discretion given to the impeachment court in the application of the Rules of
Court makes it doubly difficult to arrive at an understanding of the quantum of evidence
required to convict an impeachable officer unlike in settled processes, such as, criminal,
civil or administrative proceedings. On a minimum, a respondent in impeachment trial
has the fundamental guarantees under the Bill of Rights to rely upon, e.g. due process,
right to privacy, right against self-incrimination, etc.
(b)
“Merits” or the “Numbers Game”
35
(i) Senate on Trial
Section III of Resolution No. 39 of the Senate Rules of Procedure on Impeachment
Trial mandates that:
“Senators shall observe political neutrality during the course of the
impeachment trial.. ‘Political neutrality’ shall be defined as the exercise
of a public officer’s duty without unfair discrimination regardless of
party affiliation or preference.”
This solemn demand on every Senator puts the entire Senate on “public trial”
as it conducts the impeachment trial. It remains to be seen how some Senators who have
been either politically associated with former President Arroyo or opposed to the latter
will maintain their neutrality in the course of the trial. As of this writing, some senators
could not resist coming to the rescue of the party-litigants using the judge’s privilege of
clarifying certain matters with witnesses. Any veiled attempt at undermining political
neutrality will diminish the Senate’s credibility before the public.
(ii) The Public Decides
The Senate verdict in impeachment trials is judged by public opinion in the end.
This is, perhaps, one reason why party-litigants have painstakingly elaborated on their
points outside the impeachment court through spokespersons. It is a sad commentary
that some spokespersons have engaged in “pre-emptive strikes” before their designated
counsels have even presented their evidence.
Shaping public opinion toward accepting the verdict of the impeachment court
(or even opposing it) is the ultimate burden on the tri-media. If the trend of some media
outfit is any indication, it is unlikely that the “public jurors” would realize the context and
the bigger picture of the impeachment trial.
While the Senate, sitting as Impeachment Court, is the final arbiter judicially in
the impeachment trial, the ex post ratification or non-ratification by the public at large of
a conviction or acquittal is the ultimate verdict. One hopes that the lessons of the past
impeachment processes will guide the public that the primordial condition for a truly
functioning democracy is respect for the rule of law and the letter of the Constitution.
VI.
lessoNs to be learNed
(a)
Judicial Review and Restraint Among the Branches of Government
The series of events leading to the impeachment of CJ Corona reveals a creeping
breach of the corollary principle of check and balance within the broader context of the
separation of powers. Two distinct examples suggest this trend.
36
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First is the public pronouncement of the Secretary of Justice, presumably echoing
Malacañang’s position, not to abide by the TRO issued by the Supreme Court against
the implementation of DOJ Circular No. 4 and the Watchlist Orders against former
President Arroyo.
The second occasion was the direct affront on the person of the Chief Justice
during the First National Criminal Justice Summit by P-Noy himself.
These two circumstances are demonstrative of a school of thought in crisis or
emergency situations known as “extra-legal measures model.”47 It has been argued along
this line that as a rule “(p)ublic officials ought to obey the law, even when they disagree
with specific legal commands,” but “there may be extreme exigencies where officials may
regard strict obedience to legal authority as irrational or immoral because of a contextual
rebalancing of values.”48 Consequently, “(i)t is up to society as a whole, ‘the people,’
to decide how to respond ex post to extra-legal actions taken by government officials in
response to extreme exigencies.”49
It is easy to locate the present Administration’s tirade on the Judiciary in P-Noy’s
Social Contract reminiscent, perhaps, of Lincoln’s challenge to the Supreme Court’s
Dred Scott decision50 and Franklin Roosevelt in his proposed speech exhorting Congress to
disregard Supreme Court decisions invalidating New Deal legislation.51
The Articles of Impeachment clearly reflect the Executive’s stand, particularly
on the questioned decisions of the Supreme Court either on account of the alleged flipflopping or apparent favor extended to former President Arroyo.
It has been pointed out by some commentators that what apparently colors
P-Noy’s motivation in his campaign against the Judiciary is the Hacienda Luisita decision
which ironically is in all scores with the Administration’s platform on social justice.
However, non-deference to Supreme Court judgments goes against the timehonored feature of separation of powers. Chief Justice Hughes once announced that
“(t)he Constitution is what the Supreme Court says it is.”52 It will be detrimental to the
power balance among the three branches of our government if nonjudicial officials fail
to “subjugate their own constitutional judgments to the (from their perspective) erroneous
47.
Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007), p. 134.
48.
Ibid, pp. 134-136.
49.
Ibid, p. 137.
50.
Ibid, p. 135, citing Dred Scott v. Sandford, 60 U.S. (19 How) 393 (1857).
51.
Larry Alexander and Frederick Schaver, “On Extrajudicial Constitutional Interpretation,” 110 Harvard law
revIew 7, 1359, 1360 (May 1997), citing Franklin Roosevelt, Draft Speech on the Gold Clause Cases (February
19, 1935) in F.D.R.: His Personal Letters, 1928-1945, at 459-460 (Elliot Roosevelt, ed., 1950).
52.
Ibid, Alexander and Schaver, p. 1387, citing Charles Evans Hughes, Speech at Elmira, New York (May 3, 1907),
quoted in John Bartloett, Familiar Quotations 700 (Emily Morison Beck, ed., 15th ed., 1980).
37
judgments” of the Supreme Court.53
By design our constitutional structure is best appreciated in the following manner:
It is but the recognition that at times good institutional design requires
norms that compel decisionmakers to defer to the judgments of others
with which they disagree. Some call this positivism. Others call it
formalism. We call it law.54
(b)
Revisiting Constitutional Reforms
An important issue cutting across the Articles of Impeachment of CJ Corona is
his appointment by former President Arroyo.
At the outset, the constitutionality of Corona’s appointment as Chief Justice has
been settled in De Castro v. JBC.55 But the underlying reason given by proponents of the
impeachment against the Chief Justice is the fact that he accepted the appointment from
the former President with whom he has been closely associated with even when he was
with the Executive Branch.
The matter of appointment to judicial office is one which is allocated between
the Judicial and Bar Council and the President. It is necessarily a political act which the
President may exercise alone in the end. Once appointed, a Justice joins a collegial body
whose function transcends the individual nature of his or her appointment. Unless and
until a new model for appointing judicial officials has been proposed and crafted with
amendment of the Constitution in mind, the same desire by any sitting President to have
a “friendly and cooperative Supreme Court” of his choice is a dream devoutly to be
wished and realized.
Another set of constitutional reform measures which may be pursued is the legal
characterization of the impeachment trial. Already we are encountering intermittent
queries each time the trial progresses which could simply be addressed by a definitive
characterization of the applicable rules in impeachment proceedings.
VII.
CoNClusIoN
Building a nation is a task that draws lessons not just from past mistakes, but from
a realization that some pre-eminent principles have been ratified by the sovereign people
to ensure stability of institutions and consistency in purpose or design. Human frailty as
it is contributes to interpretations and application of these principles without the benefit
of enlightened discernment.
38
53.
Ibid, p. 1387).
54.
Ibid.
55.
Supra, note 46.
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Much would be at stake in the days to come as the impeachment trial continues.
As we move to remedy the weaknesses of our institutions, it is the desire of every citizen
to see this through to its most logical conclusion with due regard to the most fundamental
guarantees of fair play and respect for the integrity of a person. Only then could we be
proud of a process intended to be the bedrock of democracy in our homeland.
•••
•••
39
Merlin M. Magallona
an eSSay on
the conStitutional regime oF impeachment:
Sovereign power vS. Judicial authority
Merlin M. Magallona*
Impeachment is Judicial Function of Congress
In providing for the regime of impeachment, the Constitution breaks the
fundamental principle and structure of government characterized by the separation of
powers: it spells out the extraordinary power of Congress over impeachment as a judicial
function, in deliberate departure from the legislative function that characterizes the longestablished nature of Congress. Certainly, in the exercise of power over impeachment
Congress does not perform legislative function; it is not engage in law-making. Rather,
it makes a judgment of conviction or acquittal on specified charges against officials
of high authority through the Senate as a court of justice, Through the Senate as the
Impeachment Court, Congress tries and decides impeachment cases as its sole and exclusive
authority.
Necessarily, the judicial function of Congress with respect to impeachment
pertains to its own nature as endowed by the Constitution, which means it is allocated
by the Constitution to Congress as a political body, a judicial function emanating from
the sovereign power of the people. In this sense, impeachment as a judicial function
of Congress is derived from the necessity to protect the people or the State from the
delinquencies in high offices. The Constitutional grant of this power is not extended
to other branches or departments by direct exercise nor by implication from their own
authority, to the end that Congressional authority over impeachment may be nullified or
duplicated.
The foregoing considerations manifest the constitutional intent that impeachment
transcends the separation of powers and is over and above the legislative, executive and
judicial functions of the departments of government.
Exclusivity of Impeachment Power in Congress
By explicit provisions, together with their necessary implications, the Constitution
precludes any department or branch of the Government other than Congress from the
exercise of impeachment power. It is only through the House of Representatives that
impeachment may be initiated, as a result of which the charges in the form of Articles of
Impeachment shall be transmitted to the Senate. Upon that transmission, the Constitution
mandates that “the trial by the Senate shall forthwith proceed”. (Sec. 3(4), Art. XI) The
*
40
Professorial Lecturer and Former Dean, UP College of Law; Editor-in-Chief, IBP Journal.
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Sovereign Power vs. Judicial Authority
fundamental law also makes it clear that “[t]he Senate shall have the sole power to try and
decide all cases of impeachment”. (Sec. 3(6), Art. XI; Emphasis added.)
The exclusivity of Congressional power extends to the making of rules of law that
will govern impeachment. The Constitution says: “The Congress shall promulgate its rules
on impeachment to effectively carry out the purpose of this section [on impeachment]”.
(Sec. 3(8), Art. XI; Emphasis added.)
Reasonably flowing from the foregoing Constitutional status of Congressional
power over impeachment are the following implications bearing upon the integrity of
impeachment proceedings.
It is the intendment of the Constitution to enforce the accountability of high public
officials to the people by means of an extraordinary power of impeachment entrusted
to Congress and to Congress alone. Hence, the Constitution as a special allocation of
responsibility, assigns to Congress the duty to enforce this accountability on behalf of
the people as an expression of the principle of republicanism by which the Constitution
characterizes the Philippine State in Section 1, Article II. The exclusivity of power over
impeachment on the part of Congress serves as the exclusivity of its own responsibility;
it must make an accounting to the people as to how it discharges this responsibility. In
Article XI of the Constitution on “Accountability of Public Officers”, there is a special
area which defines the accountability of Congress to the people in enforcing the
accountability of high public officials. This feature of double accountability realizes its
significance in the dynamics of the relation of Congress with the Judicial Department. In
promulgating the law on impeachment, the Constitution confines this to Section 3, Article
XI, which exclusively defines the scope of both power and accountability of Congress in
the enforcement of that law. The exercise of that power by Congress is inseparable from
its own accountability.
The principle of exclusivity as mandated by the Constitution necessarily implies
independence from the other departments or branches of Government, particularly in
the light of the fact that the high officials subject to impeachment are heads of such
departments. This pertains, for example, to the President and the Vice President in the
Executive Department and the Chief Justice and all the other Members of the Supreme
Court, who are all impeachable under the Constitution by express provision.
In realizing its constitutional obligation, Congress is empowered to enact what
the fundamental law describes as “its rules on impeachment” intended to implement the
constitutional law on impeachment; this pertains specially to the “rules of the impeachment
court”. The Constitution must be read as requiring Congress the promulgation of rules
peculiar to impeachment as a judicial function of a political branch of the Government.
How that judicial function operates is to be determined by Congress itself by reducing them
into rules of procedure, not by extending the rules of court of the Judicial Department
to govern its impeachment proceedings. In brief, the determination of its own rules is a
constitutional duty, to be promulgated in terms consistent with or that serve the peculiar
nature and function of impeachment.
41
Merlin M. Magallona
Hence, the problems arising from the applicability of rules in the on-going
impeachment proceedings against Chief Justice Corona are rooted in the inadequacy of
the rules as promulgated by the Senate, which should form the legal basis of rulings to
be made by the Senate President as Presiding Officer of the Impeachment Court, in the
course of the trial. The same rules are binding on the prosecutors and the respondents.
The nature of the rules peculiar to impeachment is of such specificity that
precludes speculations as to whether impeachment is a criminal or civil action, or “akin
to a criminal case”. As to whether the impeachment trial is “judicialized” or not may
elicit a positive response owing to the judicial function that the Senate performs, but its
judicialization is not in the concept of justice as administered by the Judicial Department
but in the context of impeachment in all its peculiarities that are built into the rules of the
Senate as the Impeachment Court .
Legislative Power of Impeachment vs. Judicial Review
In regard to the impeachment trial of Chief Justice Corona, pending in the
Supreme Court are petitions raising the constitutionality or validity questions of the
impeachment complaint filed in the House of Representatives. The urgency of these
petitions lies in the request for the issuance of a temporary restraining order (TRO) to
restrain the Senate as the Impeachment Court from proceeding with the trial on the
ground that the said complaint was not validly filed. The joinder of the issue came when
the Senate recently ruled that the complaint was validly filed. However, the clash between
the Impeachment Court and the Supreme Court was averted when the Supreme Court
refrained from issuing a TRO that could have stopped the impeachment trial.
But the action of the Supreme Court was in the exercise of discretion, not by
reason of constitutional or legal limitation. On account of the core principle imbedded
in the jurisprudence of the Supreme Court that impeachment proceedings are well within
the scope of judicial review, a TRO still hangs as a sword of Damocles and it continues
to bedevil the Impeachment Court that, in reality as in metaphor, it proves to be lethal
when it does not fall. In the course of the current proceedings, the respondent Chief
Justice may claim some attack on his constitutional rights and, in response to the ruling
of the Presiding Officer of the Impeachment Court, as a last resort, he may petition the
Supreme Court for a certiorari or prohibition with the inevitable prayer for a TRO to be
issued. This may occasion the sword of Damocles to fall. And, indeed, the sword fell on
the House of Representatives when its Committee of Justice was in deliberation over the
impeachment complaint filed against Ombudsman Gutierrez.
The issuance of the TRO as a sharper edge of judicial review in the hands of the
Supreme Court does not respect the extraordinary character of the impeachment power;
there is no such thing as Internal Rules of the Supreme Court dealing with its authority
to particularly review the exercise of Congressional power over impeachment. In his
answer to the Articles of Impeachment, Chief Justice Corona in regard to the issuance of
the TRO in the Gutierrez case clearly implies that the issuance of the TRO when prayed
for in an appropriate petition is treated in the same manner under the Internal Rules of
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Sovereign Power vs. Judicial Authority
the Court as in other cases of the kind. (See pp. 45-46, Answer to Verified Complaint for
Impeachment).
In Francisco vs. House of Representatives (G.R. No. 160261, 10 November 2003), the
sweeping abstraction and generality of the Supreme Court’s discourse on judicial review
overlooks the constitutional fact that Congress in the exercise of impeachment power
performs a judicial function and hence it is not bothered by the resulting perplexity that
its assumed authority to review the proceedings of the Impeachment Court gives rise to
two judicial bodies exercising contradictory judicial authority in the same jurisdictional
space.
Francisco appears to be a definitive statement of the Supreme Court on the
general jurisprudence of judicial review; it argues that judicial review is inherent in judicial
authority and it is an integral element of the constitutional system of checks and balances.
“Finally,” the Court declares, “there exists no constitutional basis for the contention that
the exercise of judicial review over impeachment proceedings would upset the system of
checks and balances”. This fails to give room to the imminence of constitutional crisis
out of the abstraction and generality by which judicial review is presented in its absolute
supremacy.
As to the notion that judicial review of impeachment proceedings would not
upset the system of checks and balances, the concrete and practical consequence of
judicial intervention is the nullification of the impeachment power of Congress. As shown
in the Gutierrez case, it does not only upset the system of checks and balances: it annuls
the entire constitutional grant of impeachment power to Congress, leaving the exercise
of impeachment power as a matter of judicial grace and discretion of the judiciary. The
more serious dilemma is created by the constitutional reality that the Members of the
Supreme Court are specified by the Constitution as subject to the impeachment power of
Congress which the Supreme Court may in its discretion cancel out by its supremacy in
judicial function.
Moreover, when Francisco points out, as provided by the Constitution, that “judicial
power shall be vested in one Supreme Court and in such lower courts as may be provided
by law,” to establish the view that the Supreme Court is the final arbiter of all questions
of constitutionality, is not this conclusion in complete disregard of the interpretation that
by the mandate of the Constitution Congress is in the exercise of judicial function as well?
If judicial review may intervene at any stage of the impeachment, beginning
with the proceedings in the House of Representatives, easily this leads to the conclusion
that the Supreme Court, the Members of which are appointive and are constitutionally
subject to impeachment themselves, may “review, revise, reverse, modify, or affirm” the
decision of the Senate as Impeachment Court or determine that it has committed a
“grave abuse of discretion amounting to lack or excess of jurisdiction,” and accordingly
would arrive at the finality of its own impeachment decision. This amounts to a seizure
of power that makes the Supreme Court the real Impeachment Court — a shift of
fulcrum alien to the nature of impeachment that the Constitution allocates to the political
43
Merlin M. Magallona
department of Government that is representative of the people. These are considerations
beyond the system of checks and balances imagined by Francisco, the system that stands
the danger of a violent imbalance of the entire constitutional system itself in impeachment
cases. This thesis is strengthened by the fact that while Congress is a political department,
the Constitution vests it with judicial function in one particular and special constitutional
area in which it enjoys exclusive jurisdiction. Impeachment constitutes one grand
departure from the fundamentals of separation of powers in our constitutional system.
This leads me to propose that by reason of the assumption that both the Supreme Court
and the Congress are charged by the Constitution of authority judicial in nature, the
seeming contradiction in the exercise of judicial function by two departments of the
Government may be resolved by two categories of judicial function, general as it pertains
to the Supreme Court and special with respect to Congress. In impeachment, the judicial
function of Congress is lex specialis. To the Supreme Court belongs the judicial function
as lex generalis, precluding its exercise in impeachment.
This thesis reveals the inadequacy of the present rules of the Senate as an
Impeachment Court. What appears as a prominent feature of the present rules governing
the impeachment trial is the authority of the Senate President as the Presiding Officer
to make rulings as the issues unfold in the course of the proceedings; what appears to be
lacking is the legal basis of these rulings. It is proposed that in the future a set of Rules
of the Impeachment Court be prepared to be annexed to the present Senate rules and
integrally to provide a clear legal basis of the rulings of the Presiding Officer; this would
avoid the assumption that the application of the existing Rules of Court is to be extended
to the conduct of impeachment trial. Having imbued Congress with a judicial function, it
is reasonable to interpret the Constitution to the effect that impeachment is constituted as
lex specialis, requiring its own rules of procedure as a necessary feature of judicial function
applied in impeachment. Existing rules of procedure, especially of evidence, may be
readjusted or retooled in consideration of the special character of impeachment. Above
all, a set of Rules of the Impeachment Court may resolve the confusion as what rules to
apply or how they are to be applied, and thus lending coherence and consistency to the
rulings of the Presiding Officer in impeachment trial.
•••
44
•••
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Impeachment and Popular Constitutionalism: The Surprising Decline of the Judicial Power
impeachment and popular conStitutionaliSm:
the SurpriSing decline oF the Judicial power
Raul C. Pangalangan*
[We have] inflate[d] constitutional law, its grandiose puffing as law
imagined to be “higher” - because “better” - than ordinary law made
by ordinary people. ... [W]e constitutional lawyers have fed on disdain
for the political energy of ordinary people. [We have fostered a “chronic
fetishism of the Constitution”, the] extravagant if not obsessive reverence
for the icons, liturgies and orthodoxies of our Constitutionalism to
which quasi-supernatural powers, beyond human agency, are commonly
attributed.1
[A] society so riven that the spirit of moderation is gone, no Court can
save; [] a society where that spirit flourishes no Court need save; [] a
society which evades its responsibility by thrusting upon the Courts the
nurture of that spirit, that spirit will in the end perish.2
This paper confronts the showdown between the political branches and the
judiciary as the setting for the clash between two distinct traditions in constitutional law.
It attempts to shift the debate away from conspiratorial explanations, the sort that sees
legal cases as plot-driven “whodunits” fixated on “Who-bought-whose-loyalty-with-howmuch?”. Rather here we look at the law from a loftier perch as the arena within which
competing powers vie for legitimacy in the hearts and minds of the Filipino people.
In the Philippines, the erstwhile dominant tradition is “counter-majoritarianism”,
that exalts judicial supremacy as the foundation of the rule of law and views the courts as
the supreme expositors of the constitutional text. The other now tradition – just nascent
in the Philippines though already common elsewhere – is “popular constitutionalism”,
that recognizes the people as the true authors, interpreters and implementers of the
constitution. These two strands are recognizable in Filipino constitutional rhetoric
deployed in on-going impeachment trial of Supreme Court Chief Justice Renato C.
Corona.
Counter-majoritarianism. In this tradition, “the Constitution is what the judges say
it is”3. In Philippine law, the classic rhetoric is traced all the way back to Justice Jose P.
Laurel, who exalts the counter-majoritarian nature of adjudication.
*
Professor of Law and former Law Dean, Univ. of the Philippines. A.B. cum laude, LL.B., Univ. of the
Philippines; LL.M., S.J.D., Harvard. He won the Laylin Prize for best paper in international law for his
LL.M. thesis (1986) and the Sumner Prize for best dissertation relating to international peace for his S.J.D.
dissertation (1990).
1.
rICHard parker, Here tHe people rule: a CoNstItutIoNal populIst maNIfesto, 64 (1999).
2.
Pratap Bhanu Mehta, The Rise of Judicial Sovereignty, 18 JourNal of demoCraCy 70 (2007), citing Learned Hand,
The Contribution of an Independent Judiciary to Civilization.
3.
Charles Evans Hughes, speech before the Chamber of Commerce, Elmira, New York, May 3, 1907. Addresses
and Papers of Charles Evans Hughes, Governor of New York, 1906–1908, p. 139 (1908).
45
Raul C. Pangalangan
[W]hen the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not
in reality nullify or invalidate an act of the legislature, but only asserts
the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is
involved in what is termed “judicial supremacy” which properly is the
power of judicial review under the Constitution.4
In times of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the
integral or constituent units thereof. 5
In American law, the power of judicial review is traced to Marbury v. Madison
authored by Chief Justice John Marshall, himself significantly a midnight appointee.
The Government of the United States has been emphatically termed a
government of laws, and not of men.
….
It is emphatically the province and duty of the Judicial Department to
say what the law is.6
The principle of judicial supremacy was applied specifically to impeachments
in Francisco v. House of Representatives in which the Supreme Court nullified the articles of
impeachment against then Chief Justice Hilario G. Davide Jr. 7
The exercise of judicial restraint over justiciable issues is not an option
before this Court. Adjudication may not be declined, ….. Nor can
jurisdiction be renounced as there is no other tribunal to which the
controversy may be referred. Otherwise, this Court would be shirking
from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More
than being clothed with authority thus, this Court is duty-bound to take
cognizance of the instant petitions. In the august words of amicus curiae
Father Bernas, “jurisdiction is not just a power; it is a solemn duty which
may not be renounced. To renounce it, even if it is vexatious, would be a
dereliction of duty.”
….
We will not be true to our trust as the last bulwark against government
abuses if we refuse to exercise this new power or if we wield it with timidity.
To be sure, it is this exceeding timidity to unsheathe the judicial sword that
has increasingly emboldened other branches of government to denigrate,
46
4.
Angara v. Electoral Comm’n, 63 Phil 139 (1936) (Laurel, J.)
5.
Angara v. Electoral Comm’n, 63 Phil 139 (1936) (Laurel, J.)
6.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
7.
Francisco v. House of Rep., G.R. No. 160261, Nov. 10, 2003.
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if not defy, orders of our courts.8
Popular Constitutionalism. The populist backlash was first expressed by Alexander
Bickel in The Least Dangerous Branch.
The root difficulty in that judicial review is a counter-majoritarian force
in our system…When the Supreme Court declares unconstitutional a
legislative act or the action of an elected executive, it thwarts the will of
representatives of the actual people of the here and now…That, without
mystic overtones, is what actually happens…It is the reason the charge
can be made that judicial review is undemocratic.9
That critique was expressed in Philippine law by Laurel and more recently by Chief
Justice Artemio V. Panganiban.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not “the chief palladium of constitutional liberty .
. . the people who are authors of this blessing must also be its guardians . . . their eyes must
be ever ready to mark, their voice to pronounce . . . aggression on the authority
of their constitution.” In the Last and ultimate analysis, then, must the success of
our government in the unfolding years to come be tested in the crucible of Filipino
minds and hearts than in consultation rooms and court chambers.10 (emphases supplied)
As to whether [Philippine ratification of the WTO Agreement] was wise,
beneficial or viable is outside the realm of judicial inquiry …. That is a matter
between the elected policy makers and the people. As to whether the nation should join
the worldwide march toward trade liberalization and economic globalization is a
matter that our people should determine in electing their policy makers. …. …
Let the people, through their duly authorized elected officers, make their free
choice.11 (emphasis supplied)
The populist approach was applied specifically to impeachment cases in Gutierrez v. House
of Representatives, in which the Supreme Court – after President Gloria Macapagal-Arroyo’s
term was over and President Benigno C. Aquino III had assumed office – backtracked
a bit and finessed its formula in Francisco, supra. In Gutierrez, the Court confined judicial
review to explicitly political issues.
It is not for this Court to tell a co-equal branch of government how to promulgate when the
Constitution itself has not prescribed a specific method of promulgation. The Court is
in no position to dictate a mode of promulgation beyond the dictates of the
8.
Francisco v. House of Rep., G.R. No. 160261, Nov. 10, 2003 (citing Perfecto v. Meer, 85 Phil 552, 553 (1950);
Estrada v. Desierto, 356 SCRA 108, 155-156 (2001), Vide Abbas v. Senate Electoral Tribunal, 166 SCRA 651
(1988), Vargas v. Rilloraza, et al., 80 Phil. 297, 315-316 (1948), Planas v. COMELEC, 49 SCRA 105 (1973)
(Concepcion, J., concurring)).
9.
alexaNder bICkel, tHe least daNGerous braNCH: tHe supreme Court at tHe bar of polItICs (1962).
10.
Angara v. Electoral Comm’n, G.R. No. 45081, July 15, 1936.
11.
Tanada v. Angara, G.R. No. 118295, May 2, 1997 (Panganiban, J.).
47
Raul C. Pangalangan
Constitution.
….
It bears stressing that, unlike the process of inquiry in aid of legislation where the
rights of witnesses are involved, impeachment is primarily for the protection of the people
as a body politic, and not for the punishment of the offender.12 (emphasis supplied)
The political character of impeachments derives from the open-ended nature of several
impeachable offenses.
Clearly, the framers of the Constitution recognized that an
impeachment proceeding covers non-criminal offenses. They included
betrayal of public trust as a catchall provision to cover non-criminal
acts. The framers of the Constitution intended to leave it to the
members of the House of Representatives to determine what would
constitute betrayal of public trust as a ground for impeachment.13
I.
The Supreme Court’s TRO on the Department of Justice’s Watch
List Order
The tipping point toward the impeachment of Chief Justice Renato Corona was the Temporary Restraining
Order issued by the Supreme Court to allow former President Gloria Macapagal Arroyo (GMA) to leave
the Philippines pending criminal investigations for corruption and election fraud. The Department of
Justice (DOJ) issued at least three Watch List Orders14 (WLO) against GMA and her husband. The
last WLO dated October 11 was issued in connection with electoral sabotage in the 2007 elections,
where GMA allegedly gave orders to Governor Datu Andal Ampatuan to manipulate and sweep the
senatorial elections in Maguindanao in favor of her candidates. At that time, the case was still undergoing
preliminary investigation conducted jointly by the Commission on Elections and the Department of Justice.
GMA applied for permission to seek medical treatment abroad for her “urgent” and “life-threatening”
hypoparathyroidism and metabolic bone disease15 She impugned DOJ Department Circular No. 4116
which gave the DOJ Secretary authority to issue WLOs,17 as a violation of her constitutional right to
travel. Ironically, that DOJ Circular was issued by GMA’s own Secretary of Justice as her alter ego. The
Supreme Court issued the TRO,18 an act subsequently included as part of article VII of the Articles of
Impeachment19 against the Chief Justice.
48
12.
Gutierrez v. House of Representatives, G.R. No. 193459, February 15, 2011.
13.
Gutierrez v. House of Representatives, G.R. No. 193459, February 15, 2011. (Carpio, J., concurring).
14.
Dep’t of Justice Watchlist Order Nos. ASM-11-237 (Aug. 9, 2011), 2011-422 (Sept. 6, 2011) and 2011-573
(Oct. 27, 2011).
15.
Macapagal-Arroyo v. De Lima (Temp. Restraining Order), G.R. No. 199034, Nov. 15, 2011 (Reyes, J.,
dissenting) (referring to the Medical Certificates of Gloria Macapagal Arroyo issued by Dr. Juliet Gope-Cervantes
(Oct. 1, 2011), Dr. Roberto Mirasol (Oct. 22, 2011), and Dr. Mario R. Ver (Oct. 24, 2011)).
16.
Dep’t of Justice Circular No. 41 (June 7, 2010). This is the “Consolidated Rules and Regulations Governing
The Issuances and Implementing of Hold Departure Orders, Watchlist Orders, and Allow Departure
Orders.”
17.
Id. at § 2.
18.
Macapagal-Arroyo v. De Lima (Temp. Restraining Ord.), G.R. No. 199034, Nov. 15, 2011.
19.
[Corona] betrayed the public trust through his partiality in granting a Temporary Restraining Order in favor
of former President [GMA] 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. Arts. of Impeachment, art. VII (alleged in In re Impeachment of C.J. Corona, Dec. 12, 2011).
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The “Ramona” referred to in the sub-title below refers to a showbiz murder suspect who, during the same
week as the drama over the TRO, surreptitiously left for abroad to evade the preliminary investigation of
the crime.
“Who’s to blame if Gloria does a Ramona?”20
Secretary Leila de Lima rightly says: “To have [our legal system] depend on faith
and on the goodwill of the defendant/respondent is to make our criminal justice system
the laughing stock of the entire world.”
The Department of Justice has denied former President Gloria Arroyo’s request
for an Allow Departure Order to seek medical care abroad. There are two tests to
determine its validity: first, whether the DOJ meets the requirements of its own circular
on departure restrictions and, second, whether the DOJ circular respects the right to
travel under the Bill of Rights.
The DOJ rules say that an Allow Departure Order must be based on “some
exceptional reason.”21 To the Secretary’s credit, her order actually takes Arroyo’s word on
her medical condition and travel plans, and yet concludes: it’s not the life-and-death case
that qualifies as an “exceptional reason.”
One, there are “discrepancies” in Arroyo’s versions of her medical condition.
Initially, her doctor certifies that she has “metabolic bone disease.” The day after, a second
doctor says that the “she may require a bone biopsy” to determine if she has that disease.
Another two days later, her third doctor’s medical abstract doesn’t mention the disease at
all. Four days later, her doctors brief Health Secretary Enrique Ona without mentioning
the disease at all, and instead spoke of another problem, hypoparathyroidism.
On the other hand, if there were any life-threatening moments, it was during
the three major operations Arroyo already had, and Arroyo’s own Filipino doctors have
declared them largely a success.
Finally, Gloria’s itinerary includes non-medical meetings: in New York with the
Clinton Global Initiative and in Geneva with the International Commission against the
Death Penalty. The DOJ asks: How can someone so sick have the energy for such meetings
--“unless of course the medical treatment … is not entirely necessary and urgent”? Stated
plainly, you saw her photo with the neck braces and other contraptions? So she will shake
hands with Bill Clinton wearing that brace?
In summary, one doctor says she has the disease, the next says she still needs to be
tested, and later maybe not anymore or maybe for something else. At best, she needs to
be tested and that test is conducted regularly in the country.
Two, Arroyo’s travel plans belie her intent to skedaddle Philippine jurisdiction.
20.
Raul Pangalangan, Opinion: Passion for Reason, Who’s to blame if Gloria does a Ramona?, pHIl. daIly INquIrer,
Nov. 10, 2011, at A14, available at http://opinion.inquirer.net/17027/who’s-to-blame-if-gloria-does-a-ramona
(last visited Feb. 18, 2012).
21.
Dep’t of Justice Circular No. 41, § 7.
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Raul C. Pangalangan
Even for medical care, she fails to specify the countries and merely lists Italy, Austria,
Singapore, Germany and Spain as her options, in the words of the DOJ, an “ambivalence
in her country of choice of medical consultation and treatment.” To top it all, these 5
states are non-ambivalent on only one thing: they are non-extradition states! Once she
gets out, there’s no forcing her back.
This brings us to the second test of validity, namely, the constitutional right to
travel. The Bill of Rights says: “Neither shall the right to travel be impaired except in the
interest of national security, public safety or public health, as may be provided by law.”22
To start with, the Supreme Court itself has ruled that the right to travel is
not absolute. The SC has upheld the power of the Presidential Commission on Good
Government to issue hold-departure orders against “persons [who are] known or
suspected to be involved” as Marcos cronies. Yet that power was not explicitly granted in
the PCGG’s charter, and was merely implied from its power “to conduct investigation[s]”
and “restrain any [act] that may render moot and academic, or frustrate or otherwise
make ineffectual [its] efforts.”23
In another case,24 the SC also upheld the power of the Secretary of Labor to issue
a deployment ban. The power to regulate the exit of our migrant workers is encompassing,
to the chagrin of legitimate OFWs who simply want to earn an honest living including
overseas Filipino professionals who are harassed at the airport with queues and inutile
paperwork each time they visit family. Yet the Court, citing “public safety”, has upheld
the DOLE’s powers.
There is an impression held by many – including myself initially – that these
departure restrictions may be issued only by courts. Not so, as both cases demonstrate.
Both departure constraints were issued merely by executive agencies, not by courts.
Neither the constitution nor the Supreme Court requires a judicially issued order.
So all that we now need is a statutory anchor for the exercise of the DOJ’s rulemaking power. That law is the Administrative Code which defines the powers of the
DOJ, and the interest involved is “public safety”, as the SC’s DOLE decision has broadly
construed it.
The statutory basis lies in the DOJ’s power to prosecute crime and punish
criminals, which includes keeping those under investigation within reach of Philippine
courts. It is a mere extension of its prosecutorial power to subpoena under pain of
contempt.
If Arroyo goes to a non-extradition state and insists on staying for as long as she
claims is medically necessary, Philippine courts become powerless to bring her before the
bar of justice. Since all complaints against her are non-bailable, her promise to return,
says the DOJ, “without any form of guarantee whatsoever is practically worthless.” “The
attainment of justice cannot depend on such flimsy guarantees”, “her mere say-so that
50
22.
CoNst. art. III, § 6.
23.
Exec. Order No. 1, § 3 (1986).
24.
Phil. Ass’n of Service Exporters v. Drilon, G.R. No. 81958, June 30, 1988 (upholding the validity of Dep’t
of Labor & Employment Order No. 1 (1988), which governed the temporary suspension of deployment of
Filipino domestic workers).
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she will return, when the temptation to simply escape” stares us in the face.
In the public debate, it’s as if we are torn between two extremes: the legalistic,
wherein we take Arroyo’s word without inquiring into her truthfulness, and the common
sense, wherein we recall all the times she cried wolf and evaded justice. That is a false
dilemma. There is enough law to vindicate common sense. All that’s needed is the audacity
to vindicate justice.
II.
The devil quoting scripture: Lest we forget …
The Supreme Court issued a TRO lifting the travel ban against the Arroyos, “mindful of the underlying
issues in the cases – the right to life (which is the highest right under the Constitution) and its supporting
rights, including the right to travel.”
On the night of November 15, 2011, the nation was riveted on Philippine-style reality TV, as GMA,
wearing a neckbrace and aboard an ambulance, showed up at the Ninoy Aquino International Airport on
the strength of the TRO. The Arroyos had already booked several flights throughout the day, seemingly in
anticipation of the favorable resolution of the Court. However, Justice Secretary Leila de Lima insisted
on maintaining the status quo since she hadn’t yet been served the Court’s TRO. Accordingly, Immigration
Commissioner Ricardo David blocked the Arroyos’ flight.
Henceforth, GMA’s lawyers decried this as human rights violations, and in their oral arguments before the
SC, argued that “the right to life [was] paramount to the right to travel.”25 De Lima’s critics claim she
let down the rule of law. This essay argues that, on the contrary, the clash among the “great powers of
government” is resolved politically by the sovereign people, and that when the Executive clashes with an SC
TRO, it basically calls the bluff on who enjoys greater trust from the Filipino people.
Arroyo’s pleas political, not human rights issue26
It would be the supreme irony to allow GMA to invoke our most sacred human
rights protections to escape justice. That would be her supreme, final perversion of our
democratic institutions. While countless voices have correctly quoted human rights law,
our democracy must recognize GMA’s pleas as a political, not human rights, issue.
Our Bill of Rights is our democracy’s greatest triumph. It is “countermajoritarian”; it empowers the weakest member of our society to stand against the most
powerful members. Wind and sunshine may enter the humblest hovel, but the king must
first knock at the door. The Bill of Rights is applied by courts with very strict scrutiny
in favor of the disadvantaged for whom “those political processes ordinarily to be relied
upon to protect minorities”27 historically do not work: from the Maguindanao massacre
victims to millions of starving children who might be fed and clothed with the money
from the fertilizer and ZTE scams.
25.
Edu Punay, Evelyn Macairan, Delon Porcalla, DOJ violated my constitutional right to travel, GMA tells SC, Philstar.
com (Nov. 23, 2011), http://www.philstar.com/Article.aspx?articleId=751148&publicationSubCategory
Id=63 (last visited Feb. 18, 2012) .
26.
Raul Pangalangan, Commentary, Arroyo’s pleas political, not human rights issue, pHIl. daIly INquIrer, Nov. 18,
2011, at A1 available at http://opinion.inquirer.net/17515/arroyo’s-pleas-political-not-human-rights-issue
27.
United States v. Carolene Products, 304 U.S. 144, April 25, 1938 (Stone, J.) at n. 4.
51
Raul C. Pangalangan
That is why we must pierce legal rhetoric to see what is really at stake. One,
Gloria Arroyo has been portrayed as the victim boxed into a corner and fighting for
her survival. Lest we forget, the supposed underdog here is a former president and now
member of the Philippine Congress, with loyal allies and appointees in high places, with a
formidable war chest at her disposal, much of it our own money, the criminal complaints
say. She is not a political nobody by any stretch of the imagination.
Two, if there was any legal sleight of hand, it lies in the TRO which consolidated
the separate cases of Gloria Macapagal-Arroyo and Jose Miguel Arroyo. Discussing this
case with some law school classmates, it was asked: How did Mike get to benefit from
Gloria’s medical emergency?
Gloria and Mike filed two separate SC petitions to challenge their respective
watchlist orders. Consolidating the two petitions looks procedurally innocuous. After all,
since both cases deal with the same issues (the invalidity of the watchlist order) and ask for
the same remedies (the issuance of an allow departure order), why not indeed hear them
together? Going by newspaper accounts, only Gloria but not Mike has invoked a medical
emergency to be allowed to travel. And yet when the ban on Gloria’s travel was lifted,
Mike likewise became free to leave by virtue of the consolidation.
Three, the Arroyo camp makes it appear that all that is at stake now is a mere
temporary restraining order, emphasis on temporary. They are correct, but only if we
look merely at the surface. After all, the issue is the validity of the watchlist powers of the
Department of Justice, and the TRO does not purport to settle that question on the merits
and with finality. The TRO is an interim measure taken while the merits are still pending.
It is merely preliminary and provisional in character.
But lest we forget, if she doesn’t return, all the pending cases are effectively
frustrated. Her own versions of her health condition raise many questions. Her list
of destinations are non-extradition states. And finally, even if she finds herself in an
extradition state, she can still claim asylum as a refugee, or at the very least, invoke the
state’s duty of “non-refoulement”, to not return a person to the country of origin where
she faces the risk of persecution. When she applies for asylum, videotapes of the airport
drama of Tuesday night will be Exhibit A.
Secretary Leila de Lima’s insistence that the TRO is held in abeyance pending
reconsideration can be seen as reflecting its true nature as potentially the permanent
disposition of the Arroyo charges, or an attempt to buy time while the DOJ actually files
at least one case against Arroyo and secures a judicially ordered hold-departure order or,
lastly, an outright defiance of the Supreme Court.
In case of the last, various voices have warned us that to defy the Supreme Court
is to imperil the rule of law that we regained at Edsa 1. By defying the Court, de Lima
calls the bluff, as if to say: The Court is damaged goods. It is they who jeopardize our rule
of law by lending their imprimatur to impunity.
I would be the first to call for the rule of law, but the image of GMA the human
rights victim gives pause. As the Inquirer’s editorial called for, this issue needs a political,
not a strictly legal, solution. We must stop looking at the neckbrace and wheelchair in a
vacuum and allow our democracy’s checks and balances to play out at the very highest
52
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level.
It has been said that the Supreme Court can withstand defiance, but it cannot
withstand ridicule, and the Arroyo Court has clearly dissipated its reservoir of public
trust. The ultimate guardian of our constitution is “We the People.” What de Lima is
really doing is, beyond the Constitution’s explicit text, asking people to recognize that this
is really a political issue. President Aquino seems willing to be judged by history alongside
Arroyo and the Arroyo Court. Perhaps we should let him.
The textbooks say that to condone a Secretary of Justice ignoring a Supreme
Court order is to go down a slippery slope. However, history has shown that when the
referee is punching alongside a boxer, the Filipino people have been ready to throw away
the rulebook and reclaim their ultimate authority at EDSA. Faced with GMA as human
rights victim, this is not the best time to demonstrate our commitment to rule of law, to
grant a reviled former president her fundamental right to travel, but the worst time, to
allow her to escape with impunity in a final, irreparable mockery of the rule of law.
Whereas in 2006 a respected Supreme Court deployed its powers to check a
dubious President in Professor Randolf David v. Arroyo,28 today should we not allow a legitimate
President to deploy an extraordinary power to check a dubious Supreme Court? The
President’s greatest and perhaps most desperate check on the judiciary is to ignore it. In
a famous fictional account, President Andrew Jackson ordered: “John Marshall has made
his decision, now let him enforce it!”29 It is said that the judiciary wields neither purse nor
sword, and its sole means of enforcing decisions lies in its moral authority. Perhaps we
should allow the President to confront a Court that has lost it.
III.
Impeachment as the Political Check on the Judiciary
On December 5, President Noynoy Aquino fired his opening salvo during the Supreme Court-organized
First National Criminal Justice Summit. The Chief Justice was literally a few steps away from the
podium as the President disparaged the unconstitutional decisions made by the Supreme Court in favor of
their “patron,” alluding to GMA.
Ten days later, this tension was formalized in the Articles of Impeachment against the Chief Justice.
Within a few hours, 188 congressmen signed a resolution signed the 57-page resolution impeaching the
Chief Justice. While initiated and then later confirmed by chairman of the justice committee,30 the manner
of initiating the impeachment would later be questioned by Corona’s lawyers during the Senate trial.
This essay situates this clash in the context of history, and sees it not as an isolated moment of discord but
rather as the recalibration of the separation of powers, as the Executive flexed those muscles that have been
atrophied by the expanded judicial powers under the post-Marcos Constitution of 1987.
“Save the Constitution from the Court …”31
28.
David v. Macapagal Arroyo, G.R. No. 171396, May 3, 2006.
29.
paul boller & JoHN GeorGe, tHey Never saId It: a book of fake quotes, mIsquotes & mIsleadING
attrIbutIoNs 53 (1989).
30.
Cynthia Balana & Gil Cabacungan Jr., 188 solons impeach CJ Corona, Inquirer.net (Dec. 13, 2011), http://
newsinfo.inquirer.net/109793/188-solons-impeach-cj-corona (last visited Feb. 18, 2012).
31.
Raul Pangalangan, Opinion: Passion for Reason, Save the Constitution from the Court, pHIl. daIly INquIrer, Dec.
15, 2011, at A14, available at http://opinion.inquirer.net/19229/‘save-the-constitution-from-the-court…’
53
Raul C. Pangalangan
“We have, therefore, reached the point as a nation where we must take action to
save the Constitution from the Court and the Court from itself. …. We want a Supreme
Court which will do justice under the Constitution and not over it.”
These words were uttered not by President Noynoy Aquino in 2011, but by U.S.
President Franklin Delano Roosevelt (FDR) in a fireside radio broadcast in 1937.32 The
alarmists amongst us don’t remember much, and that is why their logic is bizarre. The
Supreme Court hurriedly issues a TRO that would let Arroyo evade Philippine justice,
and they chant “Hallelujah, the rule of law has triumphed!” The Congress hurriedly uses
its constitutional power to impeach, and they cry “bully” and “dictatorship.” We forget
our history.
One. It is not true that this is all “unprecedented.” There has been an earlier
showdown under the 1987 Constitution between Malacanang and the Supreme Court
where the court was seen as an obstruction to the Palace’s chosen policies. It was President
Fidel Ramos versus the Narvasa Supreme Court.
Ramos wanted to liberalize telecommunications in the country but the old PLDT
monopoly stood in the way. The Court reversed itself only after the ponente of the promonopoly decision was forced to resign by an expose charging that it wasn’t he who wrote
the verdict. And the proof ? A foreign English professor said the writing style wasn’t the
justice’s usual! Now you tell me. Will that the kind of flimsy evidence thrive had they gone
through a proper impeachment? Would today’s critics prefer the stealth and subterfuge of
that attack, and the injustice of that forced resignation?
Two. President Aquino certainly isn’t wanting for precedent in his public
harangues. Last year, Barack Obama himself denounced the U.S. Supreme Court in the
presence of several justices for their ruling in Citizens United v. Federal Election Commission,33
that “open[ed] the floodgates” for corporate spending in electoral campaigns. Chief
Justice John Roberts said he found it all “very troubling,” lamenting the lack of “courtesy
and respect.” President Aquino’s in-your-face lambasting might be a bit too forward for
our tastes, but would you prefer the facelessness of the phantom enemy that the Narvasa
Court had to battle?
Three. Will this lead to a court subservient to Aquino? Not necessarily so, and
P-Noy can take a leaf from FDR on this. That same argument was made as well against
FDR’s “court packing” plan when a conservative U.S. Supreme Court blocked New Deal
legislation, America’s response to the Great Depression: welfare state benefits, minimum
wage, maternity leave, overtime pay etc. It was juristic heresy at that time. Thus FDR’s
plan where, as allowed by their Constitution, he would appoint an additional justice for
every old (and old-thinking) judge who would remain in office after the age of 70. (The
Congress scuttled the plan but the court soon changed its tune.)
“If … it is charged that I wish to place on the bench spineless puppets who would
disregard the law … decide specific cases as I wished them to be decided, I make this
54
32.
President Franklin Roosevelt, Fireside Chat on Reorganization of the Judiciary, Radio Broadcast (May 9,
1937) (transcript available at http://www.pbs.org/wnet/supremecourt/capitalism/sources_document4.html
(last visited Feb. 19, 2012)).
33.
558 U.S. 08-205 (2010) (Roberts, C.J.).
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answer: that no president fit for his office would appoint, and no Senate of honorable
men fit for their office would confirm, that kind of [judge].”34
“But if . . . the charge is made that I would appoint [judges] who understand
modern conditions, . . . who will act as justices and not as legislators … then I [and] the
vast majority of the American people favor doing just that thing - now.”35
He concludes: “This … is no attack on the Court; it seeks to restore the Court to
its rightful and historic place in our system of constitutional government . . .”36
The face-off we now see recalibrates our separation of powers and restores the
executive’s proper place as the source of leadership. Since 1986, the fall of the dictatorship
has fostered a knee-jerk bias against executive power and in favor of judicial checks and
balances. But this has led to government by stalemate, the primacy of procedure over
results, where due process is misunderstood as endless process.
This is the best time to correct that. Cory didn’t want to; it was too soon after
Marcos. Fidel Ramos preferred to do it behind-the-scenes, efficiently but not institutionally.
Erap took to rhetoric, called them “hoodlums in robes” but didn’t stay long enough to
disrobe them. Gloria Arroyo alone had the gumption to flex executive muscle upfront;
alas she possessed Machiavellian virtù but not true virtue. And comes now Noynoy, riding
the crest of popularity for his anti-corruption campaign.
The real lesson here is that “We, the People” own this Constitution. The courts
do not hold a monopoly over the power to divine its meanings. Holmes recognized that
“legislatures are ultimate guardians of the liberties and welfare of the people in quite
as great a degree as the courts.”37 Justice (later C.J.) Reynato Puno would say on the
impeachment of C.J. Hilario Davide Jr.: “The President and Congress also have an
obligation to interpret the Constitution.... courts listen to the voice of the President and
Congress but their voice does not silence the judiciary.”38
Presidents have an equal duty to develop our constitutional traditions. Abraham
Lincoln defied the US court’s ruling in the infamous Dred Scott case39 that upheld slavery,
and how! He emancipated the slaves and fought a civil war. The incivility between our
political and the judicial branches is no great shakes by that standard, but I sure hope it
would yield as liberating a legacy.
IV.
Impeachment as a political check on judicial abuse
Two constitutional powers overlap in impeachments. On one hand is the Supreme Court’s power to review
“[a]ll cases in which the constitutionality or validity of any … law, … is in question.” 40 On the other
34.
Id.
35.
Id.
36.
Id.
37.
Missouri Kansas & Texas Railway Co. v. Clay May, 194 U.S. 267 (1904) (Holmes, J.)
38.
See Oscar Franklin Tan, It is Emphatically the Province and Duty of Congress to Say What Congress Is, 79 pHIl. L. J. 39
(2004).
39.
Dred Scott v. Sandford, 60 U.S. 393 (1857) (Taney, C.J.).
40.
CoNst. art. VIII, §§ 1 & 5(2)(a).
55
Raul C. Pangalangan
hand is the Congress’ power to discipline Supreme Court justices through impeachment. It is initiated by
the House and tried and decided by the Senate,41 on only six grounds, among them “culpable violation of
the Constitution” and “betrayal of public trust.”42
In CJ Corona’s impeachment, the Senate as the impeachment court is called upon to pass judgment over
the decisions issued by the Supreme Court itself, putting constitutionalists in a quandary on who exactly is
the true guardian of the constitution. The Senate’s “sole power” to remove by impeachment flies in the face
of settled doctrines rooted in counter-majoritarianism. This essay explains that there is actually a contrary
theory that celebrates rather than deprecates the role of popular power in constitutional law.
Anti-Democratic Constitutionalism43
We need to respond to the fear of “lynch-mob populism,” the fear that impeaching
the Chief Justice today will weaken the constitutional protection for our rights in the
future. We need to confront the underlying theory for this anxiety, especially since, in the
words of an American jurist, “the validity of a doctrine [should] not depend on whose
ox it gores.”44
That fear is anchored on the principle of “judicial supremacy,” the theory that
the courts are “the surest expositors” of the Constitution, in contrast to common people
who are caricatured as “creatures without reason, ever in thrall to irrational emotions.”45
Its critics call it an “anti-populist constitutionalism” that conveniently forgets that
revolutions are fought by the common folk (as ordinary Filipinos did at Edsa), who then
adopt constitutions by which they are governed. The anti-populists tend “to dwarf the
political capacity of the people, and to deaden [their] sense of moral responsibility.”46 We
have “inflate[d] constitutional law, its grandiose puffing as law imagined to be ‘higher’because ‘better’-than ordinary law made by ordinary people. ... [W]e constitutional
lawyers have fed on disdain for the political energy of ordinary people.”47 The result is a
“chronic fetishism of the Constitution” – the “extravagant if not obsessive reverence for
the icons, liturgies and orthodoxies of our Constitutionalism to which quasi-supernatural
powers, beyond human agency, are commonly attributed.”48
In the impeachment of CJ Renato Corona, for instance, it has been asked: How
can we accuse him of being a “midnight Chief Justice” when the Supreme Court itself
has spoken? Wouldn’t the Congress thus arrogate unto itself the power to override the
Supreme Court?
This was ably answered by my former student, Joel Butuyan, in an essay widely
circulated in the Web. Calling it the “Let It Be” argument, he says that this account will
56
41.
Const. art. XI, § 3.
42.
CoNst. art. XI, § 2.
43.
Raul Pangalangan, Opinion: Passion for Reason, Anti-Democratic Constitutionalism, pHIl. daIly INquIrer, Jan.
12, 2012, at A14, available at http://opinion.inquirer.net/21017/anti-democratic-constitutionalism.
44.
Wells v. Simonds Abrasive Co., 345 U.S. 514, 525 (May 18, 1953) (Jackson, J., dissenting).
45.
larry kramer, tHe people tHemselves: popular CoNstItutIoNalIsm & JudICIal revIew 239 (2004).
46.
James bradley tHayer, JoHN marsHall 107 (1901).
47.
rICHard parker, Here tHe people rule: a CoNstItutIoNal populIst maNIfesto, 64 (1999).
48.
Id. at 79.
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“completely strip the Impeachment Court of any role in deciding constitutional issues.”
How can that be, Joel asks, when the Constitution itself considers it impeachable to
commit a “culpable violation of the Constitution?” “This is nothing less than the power
to determine the constitutionality of an SC Justice’s action(s)’,” Joel concludes.
The anti-impeachment rejoinder goes: So we have judicial review over the SC
exercised by a political agency half of whose members are non-lawyers? My answer is:
No, this is not judicial review. What the Senate is doing is express its disagreement with
judicial doctrine – not to overturn a decided case but to remove a person, by telling the
courts that their reading of the Constitution is out of sync with that of the sovereign people.
Impeachment is the only democratic safeguard when the Court’s verdicts collide with the
people’s sense of justice. Judicial review is power to review a decision. Impeachment is
power over the person who makes that decision. It is an extraordinary remedy, for sure,
but that is why it is hedged in with heavy-duty institutional safeguards.
This big constitutional theory doesn’t quite settle the real fear of a politicized
impeachment, namely, the unfairness of being tried in the court of public opinion. Just
because it is political doesn’t necessarily make it unfair. To start with, we start from slightly
different premises. Of our “Senator-Judges,” we cannot exact the “cold neutrality of an
impartial judge.” They are political creatures who are called upon to feel the pulse of the
public. The impeachable offenses are themselves intrinsically political or open-ended and
subjective: “culpable violation of the Constitution [and] other high crimes, or betrayal of
public trust.”
To that extent, the Senators will have to be attuned to their voters’ sense, for
instance, of whether their trust had been betrayed. What does fairness mean in a highly
politicized trial before an elected Senate? How do we reconcile politics with due process?
Politics lies in the “who,” as in, who decides whether to impeach, i.e., who gives the answer
to the questions. Due process lies in who asks the questions and what questions are asked.
The people’s answer must be heard. Impeachment is a democratic check on our
highest officials. But what questions they answer—that is governed by the Constitution.
The people are not asked: Is it good for us to get rid of the Chief Justice? Rather they are
asked: Did the Chief Justice commit impeachable offenses?
This constraint applies to the Senators as well. I have often heard the reply: I will
decide on the basis of the evidence. Sure, but evidence of what? It must be evidence solely
of the facts constituting the offense charged – and even that is subject to each Senator’s
intuitive appreciation of the evidence.
An author explains: “[Judicial s]upremacy is an ideological tenet whose whole
purpose is to persuade ordinary citizens that, whatever they may think about the Justices’
constitutional rulings, it is not their place to gainsay the court. It is a device to deflect and
dampen the energy of popular constitutionalism. [H]istory has repeatedly demonstrated
how irresistible political pressures will be brought to bear against a Supreme Court that
goes ‘too far.’ The object of judicial supremacy is to make this breaking point as distant
as possible.”49 The impeachment trial signals the Supreme Court that, with their TRO on
the DOJ’s watchlist order, they had gone “too far” and reached precisely that breaking
point.
49.
kramer, supra at 233.
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V.
Strict Legality versus Popular Acceptance of Verdict
When the Corona impeachment trial began, the Senate acting as the impeachment court denied the Defence’s
motions to dismiss the complaint because of the manner in which it was initiated. The Prosecution
also announced rather belatedly that, in the sequence of presenting evidence, they will start not with
impeachment Article I (on the midnight appointment of the Chief Justice) 50 but rather with Article II (on
non- and incomplete filing of his Statement of Assets, Liabilities and Net Worth, and ill-gotten wealth). 51
The first days of the impeachment trial showcased the gap between the lawyers’ insistence on technicality
as due process and the public’s preference for truth-seeking as fairness.
The metaphor “ultimate fac” derives from a prosecuting counsel arguing a point on the law of evidence,
and distinguish the evidentiary fact from the ultimate fact – and repeatedly pronouncing it Filipino-style
as “fack.”
The lawyers’ “ultimate fac”52
If the legal minutiae have begun to test everybody’s patience, it is because the
lawyers fail to see that it is the Filipino public they have to woo. That is not surprising.
One titan of the law, Joseph Story, had long ago likened the law to “a jealous
mistress, [who] requires a long and constant courtship … not to be won by trifling favors,
but by lavish homage.”53 Another, Oliver Wendell Holmes Jr., pursued the metaphor: “a
mistress only to be wooed with sustained and lonely passion, only to be won by straining
all the faculties by which man is likest to a god.”54
If I suddenly recall these classic quotes, it is not because the impeachment lawyers
have displayed godlike virtuosity but rather because I have often heard them say “ultimate
fac.” Each time the imagination runs amok.
Senators Miriam Defensor-Santiago and Gregorio Honasan have provoked a
deep debate on the constitutional nature of the impeachment process. Is it a criminal
proceeding that demands the strictest safeguards for the rights of the accused, including
the highest standard of “proof beyond a reasonable doubt”? Or is it a mere administrative
process where the rules are relaxed and the evidentiary standard is merely “substantive
evidence”?
I agree that the issue is important, but I feel that, whichever way it goes, it will not
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50.
“[Corona] 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 and until his
dubious appointment as a midnight Chief Justice to the present.” Arts. of Impeachment, art. I (alleged in In re
Impeachment of C.J. Corona, Dec. 12, 2011).
51.
“[Corona] 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 under Sec. 17, Art. XI of
the 1987 Constitution.” Arts. of Impeachment, art. II (alleged in In re Impeachment of C.J. Corona, Dec. 12,
2011).
52.
Raul Pangalangan, Opinion: Passion for Reason, The lawyers’ “ultimate fac”, pHIl. daIly INquIrer, Jan. 26,
2012, at A14, available at http://opinion.inquirer.net/21847/the-lawyers’-‘ultimate-fac’.
53.
JosepH story, tHe mIsCellaNeous wrItINGs of JosepH story 523 (1852).
54.
olIver weNdell Holmes, Jr., The Law, Address Before the Suffolk Bar Ass’n Dinner (Feb. 5, 1885), in tHe
esseNtIal Holmes 221 (Richard Posner ed., 1992).
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make much of a difference. In the end, each Senator-Judge will be applying the legal tests
according to their own lights, hopefully illumined by the public’s. Consider the following.
First, Senator Honasan asked an apparently simple but very loaded question: Does
the person being impeached enjoy the right to be “presumed innocent until the contrary
is proved”? The answer from both sides was a categorical “Yes.” But that question was
actually tricky because the constitution limits the right solely to “criminal prosecutions.”
Yet when the question was posed, could anyone have answered “No, it doesn’t apply”?
For the defense, of course, it is in their interest to invoke the presumption of innocence.
But for the prosecution, it was simply inconceivable for Congressman Niel Tupas to
have disavowed the presumption, first as a matter of law (in which case we stretch the
constitutional text to cover non-criminal trials as well) but even more as a matter of public
opinion. My former student Niel had no choice but to say “Yes, it applies.” In the end,
the presumption can be invoked just the same, whether impeachment is criminal or not.
The big debate didn’t settle this question. Common-sense and fairness did, as I assume
Senator Honasan intended.
Second, several of the articles of impeachment rest on pure questions of law that
will not rise or fall on the basis of evidentiary tests. Was Renato Corona a midnight Chief
Justice? To imply that all must be considered under a standard of evidence obscures the
key questions that demand little evidence, only a judgment as to law.
Just to show you how useless the criminal versus administrative debate is, let me
ask you: Does one need to feel betrayed “beyond a reasonable doubt?” It’s simply absurd
to talk about the breach of public trust in this context.
Third, the big debate doesn’t determine the “appreciation” of the evidence.
It can’t tell us what truth the Senator-Judges will read from the evidence. How much
evidence establishes truth beyond a reasonable doubt, that is to say, with moral certainty
about the truth or falsity of an allegation? Every Senator-Judge will have his or her own
threshold of moral certainty. Some are easily convinced, others not. Some are instinctively
distrustful (“diskumpyado”), others more sanguine and unsuspecting. In other words, we
repose too much trust in the power of words to confine and “cabin” what is essentially
the intuitive judgment of human beings. At a more theoretical level, that in fact was the
central insight of Holmes’ “Legal Realism”: “Certainty is an illusion and repose is not the
destiny of man.”
Finally, contrast the questioning by the parties’ counsels and that by the nonlawyer Senators. In addition to Senator Honasan’s which I had earlier discussed, recall
how Senator Ralph Recto grilled Bureau of Internal Revenue chief Kim Henares. Until
then, for over an hour, the private prosecutor wasted everybody’s time on a detailed
questioning to prove facts already admitted by the defense (and for which further proof
was utterly superfluous), or about points on which Henares couldn’t conceivably testify
(“beyond her competence”). Yet it was Senator Recto who elicited from Henares not just
the key facts so that CJ Corona’s tax returns can be examined by the Senate, but likewise
the nuance that CJ Corona might have made tax payments not reflected in the BIR
records.
It is time to do what the Senate and the opposing camps should have done at
the outset: sit down and hold the equivalent of a “pre-trial” to streamline the flow of the
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Raul C. Pangalangan
trial. Mercifully but not surprisingly, it was Maid Miriam who has come to the rescue, and
called on both parties to put their cards on the table for all to see.
Had this been done sooner, we could have precluded the pathetic scene last week,
when the prosecution wanted to open the trial with the second article of impeachment
(corruption) while the defense had its guns ready to defend on the first (midnight CJ).
We could have saved ourselves that excruciating hour wait for CJ Corona’s tax returns,
in the first place uncontested by opposing counsel. We could have saved ourselves the
exasperation of watching documents “marked in evidence”, akin to watching grass grow.
For the lawyers, the ultimate fact is that it the Filipino people that they are wooing.
That is apparently lost to some prosecution counsel who act like being boring is actually
a seduction strategy.
VI.
Truth-seeking versus other protected values
The impeachment trial took shape as a battle over subpoenas, and the Senate as impeachment court denied
the Prosecution’s several pleas for compulsory process to seek the truth.
Early on, the Senate refused to compel CJ Corona, his wife, and his family from testifying based on the
constitutional right against self-incrimination, and the rules on disqualification by reason of marriage,55
the privileged communication between husband and wife,56 and the privilege not to testify against one’s
parents or children and other direct ascendants or descendants.57
The Senate also refused to subpoena four of the Supreme Court justices to testify on Article III58 out
of respect for the “confidentiality of court sessions.”59 In this regard, the Senate resolved that it is “not
insulated from the principle of separation of powers” whether performing its legislative or its impeachment
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55.
Disqualification by reason of marriage. — During their marriage, neither the husband nor the wife may
testify for or against the other without the consent of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime committed by one against the other or the latter’s
direct descendants or ascendants.
rules of Court, Rule 130, § 22.
56..
Disqualification by reason of privileged communication. — The following persons cannot testify as to matters
learned in confidence in the following cases:
(a)The husband or the wife, during or after the marriage, cannot be examined without the
consent of the other as to any communication received in confidence by one from the other during the
marriage except in a civil case by one against the other, or in a criminal case for a crime committed by
one against the other or the latter’s direct descendants or ascendants.
57.
“Parental and filial privilege. — No person may be compelled to testify against his parents, other direct
ascendants, children or other direct descendants.” rules of Court, Rule 130, § 25.
58.
[Corona] 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.
Arts. of Impeachment, art. II (alleged in In re Impeachment of C.J. Corona, Dec. 12, 2011).
59.
The four Justices are: Assoc. Justice Presbitero Velasco, Assoc. Justice Martin Villarama Jr., Assoc. Justice
Bienvenido Reyes, and Assoc. Justice Ma. Lourdes Sereno.
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functions.60
However, when the Senate subpoenaed the bank records of the Corona spouses, the Supreme Court issued
a TRO to prevent disclosure of their dollar accounts, citing Republic Act No. 6426 which declares foreign
currency deposits as absolutely confidential nature.61. It was feared that a constitutional crisis has thus
been triggered, but the Senate voted to respect the TRO, with 13 voting to respect and 10 voting to defy.
As regards the peso accounts, however, the Senate categorically denied the defense’s Motion to Quash. One
of the exemptions in the Law on Secrecy of Banking Deposits is in cases of impeachment.62 This essay
reminds the reader that the rules of evidence, while they aim at truth-seeking, actually balance the pursuit
of the truth with countervailing values, e.g., stability of marriage and family, of the banking system and
of inter-branch courtesy vis-à-vis checks-and-balances.
Rules are not made to be broken63
The brawl over impeachment court subpoenas is no simple black-and-white battle
of the forces of light versus the forces of darkness, of the anti-Corona versus the proCorona camps, where each side single-mindedly throws everything including the kitchen
sink against the enemy and runs roughshod over respected rules in the legal equivalent of
ubusan ng lahi. Remember this: This historic impeachment will reinforce or destroy rules
that will bind us long after Chief Justice Renato Corona’s tenure ends.
We love the stance of the partisan or advocate who wants the quick score for his
client right here, right now. But the Senate sits as judge. Not for it the narrow and shortterm agenda of the partisan, but the high moral road, broad-minded and with depth
of conscience. For them, the battle over subpoenas shouldn’t be a barren contest over
technicalities.
Rules of evidence are not just about finding the truth. They actually balance the
pursuit of the truth against other values: husband-wife and parent-child confidentiality;
bank secrecy and the reliability of our banking system; the separation of powers scheme
in our system of government. Whoever says “the truth must out whatever the cost” still
needs to explain what outweighs that cost: the erosion of family and love, the risk of a
60.
See generally Disqualification by reason of privileged communication. — The following persons cannot
testify as to matters learned in confidence in the following cases:
(e) A public officer cannot be examined during his term of office or afterwards, as to
communications made to him in official confidence, when the court finds that the public interest would
suffer by the disclosure.
61.
Secrecy of foreign currency deposits. – All foreign currency deposits authorized under this Act, as amended by
PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as
and considered of an absolutely confidential nature and, except upon the written permission of the
depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any
person, government official, bureau or office whether judicial or administrative or legislative, or any
other entity whether public or private; Provided, however, That said foreign currency deposits shall be exempt
from attachment, garnishment, or any other order or process of any court, legislative body, government
agency or any administrative body whatsoever.
Rep. Act No. 6426, § 8 (Apr. 4, 1974), amended by Pres. Dec. No. 1035, further amended by Pres. Dec. No. 1246 (Nov.
21, 1977). This is the “Foreign Currency Deposit Act of the Philippines.”
62.
Rep. Act No. 1405, §§ 2-3.
63.
Raul Pangalangan, Opinion: Passion for Reason, Rules are not made to be broken, pHIl. daIly INquIrer, Feb. 9,
2012, at A14, available at http://opinion.inquirer.net/22745/rules-are-not-made-to-be-broken.
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Raul C. Pangalangan
bank run, or the short-circuiting of constitutional checks-and-balances.
In traditional constitutional law, we call this the logic of “pre-commitment.” We
bind ourselves in advance to certain rules so that, faced with the temptings of the moment,
of “hydraulic pressures” that bear on the here and now, we do not lose sight of larger
principles, distant yes, but more enduring. In the classic words of Benjamin Cardozo,
we have constitutions precisely to protect us “against the assaults of opportunism, the
expediency of the passing hour,… the derision of those who have no patience with
general principles.”
Even the great Cardozo would salute the Senate on this point. Remember Day
1 of the trial. The Senate denied the prosecution’s motion to compel the Chief Justice
and his family to testify. The CJ was protected by his constitutional right against selfincrimination, the principle that eschews the sheer cruelty of being forced to testify against
oneself, one that Torquemada’s Inquisition and the Stalinist show trials routinely flouted.
His wife was shielded by “marital privilege” because, among other grounds, forcing
spouses to testify against one another strains the family, a “basic [] social institution” that
forms the “foundation of the nation.” How else can husband and wife freely confide in
another if their pillow talk can be subpoenaed? The children were also accorded their
“filial privilege” which accepts the reality that loved ones tend to cover for one another,
and the “incentive to perjure” is inimical to truth-seeking.
Twice this week, the Senate confronted more such dilemmas. On Monday, it was
good news for the prosecution: the Senate will compel the banks to disclose information
about the Corona bank accounts. On Wednesday, it was the defense’s turn to hear good
news: the Senate rejected the prosecution’s request to compel sitting Supreme Court
justices to testify and open the SC’s confidential records.
Both times, the Senate performed a delicate-balancing act. In its Monday ruling,
the Senate carefully said it wouldn’t allow a fishing expedition and would subpoena
only those documents strictly related to the SALNs, the core of the second article of
impeachment.
But most important of all, the Senate went to great lengths to assure the public
not to worry about the secrecy of their bank deposits. This is a principle not to be taken
lightly. The Bank Secrecy Law long ago encouraged people to put their savings in banks
where they can be lent to investors to generate more wealth for the country. Otherwise,
they will lie idle inside a wooden baûl, sterile, attractive only to thieves, and vulnerable to
fire. We the public all have a stake in bank confidentiality.
Unfortunately for the Chief Justice, the Bank Secrecy Law lists several exceptions,
and one of them significantly is “”in cases of impeachment.” Thus the Senate’s wording:
“[N]ondisclosure of information … is still the general rule [and there is a subpoena only
because of the] impeachment proceedings and for no other reason.” To use a metaphor
from the Erap Impeachment, the second envelope must be opened.
62
On the other had, the Senate also refused to subpoena the SC justices and their
records. The Senate order was cleverly written. It affirmed several times that it respects
the judiciary, that it will scrupulously stick to its own turf and won’t venture into the
Court’s, and won’t pull rank despite its extraordinary perch as “the sole power to try and
decide all cases of impeachment.”
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So you think the Senate was being so deferential to the Supreme Court? Not
quite. They were actually telling the SC that it expects the same deference in return now
that the Chief Justice and PS Bank have asked the Court to step in. After all, if their
friendly justices really wish to testify, no order from the Senate is needed. And as Senate
President Juan Ponce Enrile himself suggested, whatever facts these justices will recount
on the witness stand are already available in the public documents. Denying the subpoena
presents no practical setback to the prosecution, but it offers a principled jab should the
SC be minded to circle the wagons around its Chief (pardon the mixed metaphor).
The Senate decision not to issue subpoenas to the Court is a classic pre-emptive
strike. The Supreme Court should read between the lines of the Senate order and, having
done that, see the writing on the wall.
VII.
The Francisco Ruling: The Desperate Effort to Pretend “It Ain’t
There”
One of the impeachment charges that goes into the heart of the judicial function is judicial “flip-flopping”,
or the recent tendency of the Supreme Court to re-open cases that have been settled through final verdicts and
to decide them afresh. To start with, it disturbs the principle of stare decisis,64 by which current magistrates
ought to respect the precedents established by prior decisions
In this cases, stare decisis binds us to respect the 2003 Supreme Court decision that actually nullified the
impeachment of Chief Justice Hilario Davide Jr., for being in violation of the constitutional bar on a
second impeachment within the same year.65
Today the anti-Corona camp argues that the Senate’s “sole power to try and decide all cases of impeachment”
prevails over the Court’s power of judicial review. This article argues that, in order to do that, we will have
to reverse the SC ruling in the Davide case, instead of merely “distinguishing” it from the Corona case
by engaging in technical hair-splitting that is grossly out of character for a Prosecution that has taken the
moral high ground in invoking grand normative claims on truth and honesty.
Flip-flopping on judicial restraint66
Listening to the crescendo calling on the Supreme Court to defer to the Senate
on impeachment matters, it seems it is not just Chief Justice Renato Corona who can be
charged with flip-flopping on judicial decisions. What the anti-Corona camp forgets is
that the controlling rule here is the decision where the Supreme Court actually stepped in
and altogether stopped the 2003 impeachment of Chief Justice Hilario G. Davide. They
are asking the Court to abandon settled doctrine and adopt judicial restraint. I agree that
they must, but they must do so frankly.
Instead today the anti-Corona forces go into all sorts of intellectual contortions to
distinguish the Davide and Corona cases, arguing as lawyers are wont that the two cases
are not “on all fours” with one another. Their distinctions are too forced (“pilit”) and
sound hollow. What they should do is to boldly confront the rule laid down for Davide,
64.
From the Latin maxim stare decisis et non quieta movere, which means “to stand by decisions and not disturb the
undisturbed.”
65.
Francisco v. House of Reps., G.R. No. 160261, Nov. 10, 2003.
66.
Raul Pangalangan, Opinion: Passion for Reason, Flip-flopping on judicial restraint, pHIl. daIly INquIrer, Feb. 16,
2012, at A14, available at http://opinion.inquirer.net/23191/flip-flopping-on-judicial-restraint.
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Raul C. Pangalangan
rather than pretend that they can be reconciled without having to reverse the earlier
ruling in the Davide case.
Anything less would be less than candid about what we’re actually doing here,
which is to correct the doctrinal fallacy of judicial overreach and to restore the political
branches of government to their role as the voice of the sovereign people. Anything less
would repeat precisely the tendency to flip-flop on legal doctrines depending on whose ox
is gored, to treat laws as inert weapons to hurl at the enemy of the moment, rather than
as a structure for moral judgments that can acquire a life of their own. Anything less will
in fact erode the rule of law, because we adopt one rule to favor a chief justice that we like
and swing to the opposite rule to nail a chief justice we dislike. “Weather-weather lang”
is understandable among politicians but not among lawyers serious about their discipline.
In the Davide case, the House invoked its “exclusive power to initiate all cases of
impeachment.” In the Corona case, the Senate says it is the “sole power to try and decide
all cases of impeachment.”
In 2003, the House argued “that impeachment is a political action which cannot
assume a judicial character. Hence, any question, issue or incident arising at any stage of
the impeachment proceeding is beyond the reach of judicial review.”
Supporting that position, Sen. Nene Pimentel contended before the Court that
the Senate’s “sole power to try” impeachment cases (1) entirely excludes the application
of judicial review over it; and (2) necessarily includes the Senate’s power to determine
constitutional questions relative to impeachment proceedings.”
How can we miss the resemblance to arguments we hear today? Yet in 2003
the Court, speaking through Justice (and now Ombudsman) Conchita Carpio-Morales,
roundly rejected these views.
“[T]hey call upon this Court to exercise judicial statesmanship [saying]
that ‘whenever possible, the Court should defer to the judgment of the
people expressed legislatively, recognizing full well the perils of judicial
willfulness and pride. … But did not the people also express their will
when they instituted th[ose] safeguards in the Constitution? This shows
that the Constitution did not intend to leave the matter of impeachment
to the sole discretion of Congress. Instead, it provided for certain welldefined limits … through the power of judicial review’.”
The Court did not stop there. Not only was intervention their power, it was their bounden
duty! “The exercise of judicial restraint over justiciable issues is not an option before
this Court. Adjudication may not be declined ….. Nor can jurisdiction be renounced as
there is no other tribunal to which the controversy may be referred. Otherwise, this Court
would be shirking from its duty.”
Some people said the Judiciary should shy away and avoid a constitutional crisis.
Did that stop the Court? Absolutely not! “Such an argument, however, is specious, to say
the least. [T]he possibility of the occurrence of a constitutional crisis is not a reason for
this Court to refrain from upholding the Constitution in all impeachment cases. Justices
cannot abandon their constitutional duties just because their action may start, if not
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precipitate, a crisis.”
I had earlier quoted the author Raoul Berger on this point, and I quote him
again. He asked: Is Congress the “final judge of the boundaries of its own powers [as if]
Congress was left free to rampage at will?”67
“It is hardly likely that the Framers, so devoted to ‘checks and balances’
… would reject a crucial check at the nerve center of the separation
of powers. They scarcely contemplated that their wise precautions must
crumble when Congress dons its judicial hat, that then Congress would
be free to shake the other branches to their foundations … [T]here is
no place in our constitutional system for the exercise of arbitrary power.
The Sole Power to try affords no more exemption from that doctrine
than does the sole power to legislate ….”68
In the Davide case in 2003, I was amicus counsel together with Sen. Jovito R. Salonga,
and we both called on the Court to rein in its power of judicial review. That was some
eight years ago, and maybe the time wasn’t ripe for it. Today the timing is perfect to push
for judicial restraint. The Judiciary has lost its sheen, while a popular president bent on
fighting corruption gets solid public approval ratings certified by SWS.
The Davide case gave supreme power to the courts and, in the classic critique, “dwarf[ed]
the political capacity of the people, and deaden[ed their] sense of moral responsibility.”
Today the impeachment trial gives impetus to the new approach that is called abroad
as “popular constitutionalism” that exalts the power of the people to give life to their
constitution.
VIII.
Conclusion: The Episodic Use of Legal Argument:
Consequentialism as a Threat to the Rule of Law
This series of essays argue against the episodic use of legal argument, that is to
say, the tendency toward manipulating legal arguments with an eye solely on immediate
consequences oblivious to their long-term doctrinal implications. To use the quintessential
example, in Francisco, the Supreme Court raised the bar to impeachment to protect a
worthy beneficiary, Chief Justice Hilario G. Davide Jr., yet once raised, that bar remained
and protected the unworthy President Gloria Macapagal-Arroyo and insulated her from
impeachment despite her dubious claim to power.
It is commonly thought that the rule of law is imperiled by the clash between
institutions, e.g., between the Senate and the Supreme Court. That is correct but
incomplete. It is endangered as well by the erosion of the intellectual scaffolding that
holds together the rule of law.
The episodic use of legal argument is perfectly understandable for what we call
counsels de parte. The client engages their professional services precisely to win the battle
in the here and now; indeed, the attorney-client relationship requires them to enlist singlemindedly every weapon in their arsenal. But it is difficult to accept when done by public
interest counsel – and for that matter, by courts themselves – who are beholden to causes
67.
berGer, at 122.
68.
berGer, at 125.
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Raul C. Pangalangan
larger than the specific case itself, and for whom a case is but one battle in a protracted
war for a kind of justice too important to be left to the lawyers.
APPENDIX
Francisco v. House of Representatives
(excerpts)
[I]t is the position of [the House] that impeachment is a political action which cannot
assume a judicial character. Hence, any question, issue or incident arising at any stage
of the impeachment proceeding is beyond the reach of judicial review.
For his part, intervenor Senator [Nene] Pimentel contends that the Senate’s “sole power
to try” impeachment cases (1) entirely excludes the application of judicial review over
it; and (2) necessarily includes the Senate’s power to determine constitutional questions
relative to impeachment proceedings.
[They both] rely heavily on American authorities [in that] it runs counter to the
framers’ decision to allocate to different fora the powers to try impeachments and to try
crimes; it disturbs the system of checks and balances, under which impeachment is the
only legislative check on the judiciary; and it would create a lack of finality and difficulty
in fashioning relief.
The major difference between the judicial power of the Philippine Supreme Court and
that of the U.S. Supreme Court is that while the power of judicial review is only impliedly
granted to the U.S. Supreme Court and is discretionary in nature, [it is] expressly provided
for in the Constitution, is not just a power but also a duty, and [] was given an expanded
definition to include the power to correct any grave abuse of discretion on the part of
any government branch or instrumentality.
…. Thus, they call upon this Court to exercise judicial statesmanship on the principle
that “whenever possible, the Court should defer to the judgment of the people expressed
legislatively, recognizing full well the perils of judicial willfulness and pride.”
But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave
the matter of impeachment to the sole discretion of Congress. Instead, it provided
for certain well-defined limits, “judicially discoverable standards” for determining the
validity of the exercise of such discretion, through the power of judicial review.
….
The exercise of judicial restraint over justiciable issues is not an option before this
Court. Adjudication may not be declined, ….. Nor can jurisdiction be renounced
as there is no other tribunal to which the controversy may be referred. Otherwise,
this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the
Constitution. More than being clothed with authority thus, this Court is dutybound to take cognizance of the instant petitions. In the august words of amicus curiae
Father Bernas, “jurisdiction is not just a power; it is a solemn duty which may not be
renounced. To renounce it, even if it is vexatious, would be a dereliction of duty.”
Even in cases where it is an interested party, the Court under our system of government
cannot inhibit itself and must rule upon the challenge because no other office has the
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authority to do so. On the occasion that this Court had been an interested party to the
controversy before it, it has acted upon the matter “not with officiousness but in the
discharge of an unavoidable duty and, as always, with detachment and fairness.”
[The House also] raises another argument for judicial restraint the possibility that
“judicial review of impeachments might also lead to embarrassing conflicts between
the Congress and the [J]udiciary.” They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and abroad if the
judiciary countermanded the vote of Congress to remove an impeachable official.
….
Such an argument, however, is specious, to say the least. [T]he possibility of the
occurrence of a constitutional crisis is not a reason for this Court to refrain from
upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.
….
We will not be true to our trust as the last bulwark against government abuses if we
refuse to exercise this new power or if we wield it with timidity. To be sure, it is this
exceeding timidity to unsheathe the judicial sword that has increasingly emboldened
other branches of government to denigrate, if not defy, orders of our courts.
Conclusion
Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action
of any kind and form .... When the present petitions were knocking so to speak at the
doorsteps of this Court, the same clamor for non-interference was made through what
are now the arguments of “lack of jurisdiction,” “non-justiciability,” and “judicial selfrestraint” aimed at halting the Court from any move that may have a bearing on the
impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of
the constitutionality of initiating the impeachment complaint against Chief Justice
Davide is concerned. ….
It is suggested that by our taking cognizance of the issue of constitutionality of the
impeachment proceedings against the Chief Justice, the members of this Court have
actually closed ranks to protect a brethren. That the members’ interests in ruling on
said issue is as much at stake as is that of the Chief Justice. Nothing could be farther
from the truth.
….
Why can [the SC] not now be trusted to wield judicial power in these petitions just
because it is the highest ranking magistrate who is involved when it is an incontrovertible
fact that the fundamental issue is not him but the validity of a government branch’s
official act as tested by the limits set by the Constitution? Of course, there are rules on
the inhibition of any member of the judiciary from taking part in a case in specified
instances. But to disqualify this entire institution now from the suit at bar is to regard
the Supreme Court as likely incapable of impartiality when one of its members is a
party to a case, which is simply a non sequitur.
….
The Chief Justice is not above the law and neither is any other member of this Court.
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Raul C. Pangalangan
But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individual’s rights irrespective of his
station in life.
Separate concurring opinion of (then Justice, later CJ) Artemio Panganiban.
I must admit that I was initially tempted to adopt the view of Amici Jovito R. Salonga
and Raul C. Pangalangan. They maintain that although the Court had jurisdiction
over the subject matter and although the second Impeachment Complaint was
unconstitutional, the Court should nonetheless “use its power with care and only as a
last resort” and allow the House [itself] to correct its constitutional errors; or, failing in
that, give the Senate the opportunity to invalidate the second Complaint.
This Salonga-Pangalangan thesis, which is being espoused by some of my colleagues
in their Separate Opinions, has some advantages. While it preserves the availability
of judicial review as a “last resort” to prevent or cure constitutional abuse, it observes,
at the same time, interdepartmental courtesy by allowing the seamless exercise of the
congressional power of impeachment. In this sense, it also enriches the doctrine of
primary jurisdiction by enabling Congress to exercise fully its “exclusive” authority to
initiate, try and decide impeachment cases. In short, it gives Congress the primary
jurisdiction; and the Court, “appellate” certiorari power, over the case.
…
In normal times, the Salonga-Pangalangan formula would, perhaps, be ideal. However,
the present situation is not ideal. Far from it. The past several weeks have seen the
deep polarization of our country. Our national leaders -- from the President, the Senate
President and the Speaker of the House -- down to the last judicial employee have
been preoccupied with this problem. There have been reported rumblings of military
destabilization and civil unrest, capped by an aborted siege of the control tower of the
Ninoy Aquino International Airport on November 8, 2003.
A needless trial in the Senate would not only dislocate that chamber’s legislative
calendar and divide the nation’s focus; but also unnecessarily bring anxiety, loss of
time and irreparable injury on the part of the Chief Justice, who would not be able
to attend to his normal judicial duties. The transmittal of the second Impeachment
Complaint to the Senate would unfairly brand him as the first Supreme Court justice to
be impeached!
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An Unconstitutional Intrusion
an unconStitutional intruSion
Manuel N. Camacho*
When the Supreme Court, upon petition by Philippine Savings Bank, issued a
temporary restraining order (TRO) against the Senate impeachment court’s subpoena on
the dollar accounts of impeached Chief Justice Renato Corona, a flurry of debates was
ignited among lawyers and an unfortunate precedent was set in impeachment trials.
As a courtesy to what it considers a co-equal branch of government, the Senate
impeachment court narrowly voted to respect the TRO. But is the Senate impeachment
court really co-equal with the Supreme Court?
There is compelling reason to believe that it is not.
Relevant constitutional provisions tell us that, when sitting as impeachment court,
the Senate no longer exercises ordinary legislative functions. Lawyers and pundits love to
say that impeachment is “sui generis,” meaning exceptionally unique, a class of its own.
And they are correct in saying so. There is no question that impeachment is a process
unlike any other, and here lies the foundation of the argument that it is not an ordinary
legislative function. In fact, when the Senate exercises its functions as impeachment
tribunal, it is not co-equal anymore with the other branches of government; it becomes
superior to them.
It is significant that the Constitutional provisions on accountability of public
officials (which include the provisions on impeachment) are in a separate Article (Article
XI), distinct and isolated from Article VI which refers to the Legislative Department.
While provisions for check and balance among the three branches of government
are found in several provisions of the Constitution, clauses pertaining to check and balance
are visibly absent in Article XI when Congress acts on an impeachment case.
Among the safeguards for check and balance found in the Constitution is the
availability of presidential veto of a law passed by Congress1 or any particular item or
items in an appropriation, revenue, or tariff bill.2 The Supreme Court on the other hand
*
Practising lawyer; former Professional Lecturer, U.P. College of Law
1.
1987 Constitution. Article VI Section 27 (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the
same with his objections to the House where it originated, which shall enter the objections at large in its Journal
and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise
be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In
all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members vot
ing for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as
if he had signed it.
2.
Id. Article VI Section 27 (2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.
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Manuel N. Camacho
is empowered to review laws passed by Congress.3 But the Constitution is markedly silent
on the matter of check and balance when Congress acts in impeachment cases.
It is evident that the framers of our Constitution wanted to isolate the legislative
from the executive and the judicial branches when legislature exercises its unique functions
in cases of impeachment. This is commonsensical and consistent with the constitutional
provisions on the impeachability of the heads of the executive and the judicial branches.
As Congress is empowered to initiate complaints and to try and decide
impeachment cases involving all impeachable public officials including the chief justice
of the Supreme Court, the Senate impeachment court is obviously a higher court than
the Supreme Court.
It is noteworthy that the Chief Executive cannot grant reprieves, commutations,
and pardons, or remit fines and forfeitures in cases of conviction in impeachment cases.4
This shows yet again that Congress, when exercising its extraordinary functions in
impeachment cases, is above the doctrine of co-equality of branches.
An examination of Art XI Section 3 Paragraph 6 of the Constitution will show
that the grant of power to the Senate impeachment court is absolute and makes no room
for intervention, intrusion, or obstruction by the other branches of government. The
provision states:
“The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath
or affirmation. When the President of the Philippines is on trial, the Chief
Justice of the Supreme Court shall preside, but shall not vote. No person
shall be convicted without the concurrence of two-thirds of all the Members
of the Senate.”
The wording of the provision quoted above is plain, unmistakable, and easily
understandable. Lawyers love to opine that in such cases, there is no room for interpretation
but only application. Again, they are correct.
The use of the word “sole” prohibits interference by any other entity when the
Senate tries and decides an impeachment case. Consequently, the Supreme Court has no
authority to interfere in any matter relating to the impeachment trial.
While it is true that the Court may review any act of any branch or instrumentality of
3.
Id. Article VIII Section 5. The Supreme Court shall have the following powers:
xxx
Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
All cases in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
4.
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Id. Article VII Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by
final judgment.
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the government when there is grave abuse of discretion, impeachment is not an ordinary
function or process.
Impeachment is an assertion of the people’s supreme right to confront and demand
accounting from a public official. This is why impeachment is solely the prerogative of the
people’s representatives in Congress5 and judicial review is constitutionally not available to
defeat it.
Furthermore, allowing judicial review in impeachment would place the judiciary
above the two other branches of government, for there would now be no check and
balance on the judicial branch.
As aptly stated by U.S. Chief Justice Rehnquist in Nixon vs. United States, et al. (506
U.S. 224 [1993] No. 91-740, United States Supreme Court, argued October 14,
1992, decided January 13, 1993)
“x x x judicial review would be inconsistent with the Framers’ insistence
that our system be one of checks and balances. In our constitutional system,
impeachment was designed to be the only check on the Judicial Branch by
the Legislature.
xxx
Judicial involvement in impeachment proceedings, even if only for purposes of
judicial review, is counterintuitive because it would eviscerate the ‘important
constitutional check’ placed on the Judiciary by the Framers.”
The Nixon case is quoted because of lack of persuasive local jurisprudence on
the matter, but these very same words that Chief Justice Rehnquist used in the
Nixon decision apply squarely in the Philippine legal setting, for the wording of
our impeachment clause is almost exactly like its American counterpart.
The question that necessarily follows is: What is the legal nature and status of the
TRO that the Supreme Court issued against the Senate’s subpoena on CJ Corona’s dollar
accounts?
The author believes that the TRO is unenforceable, as it is an unconstitutional
encroachment on the power of the Senate impeachment court. Consequently, it was
erroneous for the Senate to recognize the TRO on the basis of mistaken courtesy.
It was as if the Senate simply gave up its power and handed the same to the
Court. This is not what the people intended when they drafted the Constitution. The
people did not give limited powers to the Senate as impeachment court. Article XI Section
6 paragraph 3 in fact gives plenary power to the Senate when sitting as impeachment
tribunal.
5.
Id. Article XI Section 3 (8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section.
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Manuel N. Camacho
What this necessarily means is that the Senate impeachment court has the power
and authority to formulate its own rules of procedure in impeachment; adopt its own
principles of law which promotes the standards of justice and equity that it deems proper
in impeachment; interpret any law which may be involved in the charges against the
impeached official; and do any other thing, matter, process, or action that may assist in its
function as impeachment court.
Ordinarily, only the courts can interpret laws, but the Senate’s power to try and
decide an impeachment case necessarily includes not only the power to determine the
facts but also the power to interpret laws related to the charges. Without the power to
interpret such laws, the Senate impeachment court’s constitutionally-vested power to try
and decide a case is negated.
Thus, the Senate is in fact empowered to look into the Foreign Currency Deposit
Act (RA 6426) and interpret its provisions, including the contested secrecy clause in
Section 8, in relation to the alleged dollar accounts of CJ Corona. In the process, the
Senate may disregard any contrary interpretation that the Supreme Court may have
made of said clause, for as previously discussed, the Supreme Court has no authority to
interfere---whether by TRO or by any other interlocutory order or process---when the
Senate sits as impeachment tribunal.
The Senate, in preparation for the impeachment of former Ombudsman
Merceditas Gutierrez, drafted and adopted its own rules of procedure in impeachment.
These same rules apply in the on-going impeachment of CJ Corona.
Article IV of the Senate Rules of Procedure on Impeachment Trials is noteworthy.
It states:
IV. The Presiding Officer shall have the power to make and issue, by himself
or by the Secretary of the Senate, all orders, mandates, and writs authorized
by these Rules or by the Senate, and to make and enforce such other regulations
and orders in the premises as the Senate may authorize or provide.
Reinforcing the above provision is Article V of the same rules, which states:
V. The Senate shall have power to compel the attendance of witnesses, to
enforce obedience to its orders, mandates, writs, and judgments, to preserve
order, and to punish in a summary way contempt of, and disobedience to,
its authority, orders, mandates, writs, or judgments, and to make all lawful
orders, rules, and regulations which it may deem essential or conducive to the
ends of justice. And the Sergeant-at-Arms of the Senate, under the direction
of the President of the Senate, may employ such aid and assistance as may be
necessary to enforce, execute, and carry into effect the lawful orders, mandates,
and writs of the Senate.
Significantly, Articles IV and V could mean that the Senate may compel even
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Supreme Court justices to testify on the relevant charges against their colleague CJ
Corona.
Another significant portion of the Senate rules of impeachment is Article XIV,
which states:
All motions, objections, requests, or applications whether relating to the
procedure of the Senate or relating immediately to the trial (including
questions with respect to admission of evidence or other questions arising
during the trial) made by the parties or their counsel shall be addressed to the
Presiding Officer only, and if he, or any Senator, shall require it, they shall
be committed to writing, and read at the Secretary’s table.
The above rule is significant in view of the TRO issued by the Supreme Court
upon petition by Philippine Savings Bank (where CJ Corona’s dollars are deposited).
In asking the Court to issue the TRO, the bank defied the Constitution as well
as the Senate impeachment rules. The proper procedure would have been for the bank
to ask the impeachment court, more particularly the presiding officer, to reconsider the
subpoena on CJ Corona’s dollar accounts.
As we have seen earlier, the Senate impeachment court has the power to compel
the attendance of witnesses, to enforce obedience to its orders, and to punish for contempt
in case of disobedience. Had the Senate been more aware and vigilant of its powers
under the Constitution and under its own rules of impeachment, the TRO would not
have amounted to anything more than a piece of paper.
As it is now, a regrettable precedent was set in impeachment; now anyone can
ask the Supreme Court for a TRO to stop a particular process in the impeachment trial.
And in issuing the TRO, the Supreme Court can simply cite the CJ Corona-PSBank case
and the Senate’s compliance to the TRO as proof of the availability of judicial review in
impeachment.
Author’s Note: The points raised in this article are found in the Comment in Intervention that the
author filed before the Supreme Court in the case of PSBank, et al. vs. Senate Impeachment Court, et al.
(G.R. 200238).
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DOCUMENTS
Statement of the IBP Board of Governors on the Impeachment
uphold the conStitution, protect the rule oF law
The IBP, through its Board of Governors, reiterates its unanimous
stand that the breakneck impeachment of the Chief Justice by the House of
Representatives thwarts the Constitution and the Rule of Law.
With all due respect, the House, in exercising its sole constitutional prerogative
of impeachment, failed to faithfully comply with the required processes prescribed by the
Constitution and its own rules on impeachment. As a result, the impeachment complaint
has become a congressional faux pas in form and substance.
First: Based on public admissions, the complainants signed the 57page complaint without reading and appreciating its contents and supporting documents, thereby violating the Constitution itself. Under the Constitution, an impeachment may only be initiated by a verified complaint, which means that its
signatories must form their own belief as to its truthfulness based on actual reading and appreciation of its contents and supporting documents. But the complaint, as shown by admissions,
was presented during a brief caucus as a done deal. No individual copies were distributed;
no discussions held. Only a brief power point summary was dished out. The signatories
then lined up and took their turns in signing the lone copy, without reading and evaluating
the contents and documents. After gathering 188 signatures in blitz, the complaint was
whizzed to the Senate without any discussion.
Second: In instantly signing and elevating the complaint for Senate
trial without reading its contents and subjecting it to any discussion, the
complainants violated due process and their own duty to make a determination of its sufficiency in form and substance and the existence of probable cause. While 188 legislators constitute more than 1/3 of the House, such number
merely dispenses with the required referral of the impeachment complaint to the Justice
Committee but NOT their solemn duty to make their own determination of the sufficiency of the complaint and probable cause as to warrant Senate trial. Such preliminary
determination by the complainants strikes at the heart of due process; it cannot be satisfied
without actual reading and appreciation, if not discussion, of the complaint and supporting documents.
Third: The impeachment complaint also failed to comply with the
prescribed processes in verifying its due execution. The blitzkrieg filing of the
complaint shackled the House Sec-Gen from faithfully complying with the processes of
verification, which would require the 188 signatories of the complaint to individually appear, raise their right hand and declare under oath its due execution and their own belief
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Uphold the Constitution, Protect the Rule of Law
on the correctness of the allegations based on reading and appreciation of the documents, and, thereafter, affix their signatures (for the second time) as proof of verification.
The verification process of 188 declarants cannot be dispensed with or cramped in blitz.
The complaint itself does not bear the certificate of acknowledgement by the House SecGen as proof of his faithful compliance with the verification process.
But far more telling and serious are the defects in the substance of
the impeachment complaint.
First: The grounds invoked in the impeachment complaint subvert
the constitutional guarantees of separation of powers and judicial independence, the first principles of the Rule of Law. The Chief Justice is impeached for
grounds involving collegial resolutions of the entire Court in cases elevated for review. The
complaint even includes a number of SC rulings still pending reconsideration, which
clearly reeks of undue interference in the disposition of pending cases. Even the other
grounds on the SALN and JDF collections also tread on collegial practices involving
assertions of judicial autonomy, which neither the COA nor the Ombudsman has disallowed.
By indicting the Chief Justice for alleged political bias over collegial decisions and
without any allegation of financial or illegal consideration involved, then the House – a full-bloodied political assembly – has just elevated its status, without rewriting the Constitution, into a
higher judicial body, a super Supreme Court, overturning judicial decisions for alleged “political bias” and enforcing sanction via impeachment. Thus, on trial is not only Chief Justice
Renato Corona but the constitutionally-protected power of judicial review, the very weapon
designed to check potential excesses or hegemony by Congress and the President in the
exercise of their legislative and governing powers.
While the President may have valid issues against the Chief Justice and the Supreme Court, the resort to blitzkrieg impeachment for imputed “political bias” erodes,
rather than strengthens, the Rule of Law. If the Chief Justice can be validly impeached for
collegial decisions (including pending cases) for “political bias” and hauled to the Senate to
undergo the rigors of political trial, all by a mere stroke of 1/3 signatures of the House gathered in
blitz, then the Supreme Court will never be the same again, its judicial independence defanged, and its magistrates – including their decisions -- now at the mercy of the political
bidding, if not power plays, of the ruling House majority and the President. The chilling
effect and damage to judicial independence would be like typhoon Sendong – devastating,
long-term, and incalculable.
Second: The impeachment complaint also trifles with and violates
the constitutional guarantee of equal protection of the law and due process,
the first principles in our Bill of Rights. The complaint clearly and repeatedly
delves on collegial decisions and collegial practices of the Supreme Court. Yet, only one
of its members, who happens to be the Chief Justice, is being singled out, even if he
neither penned the assailed decisions nor changed his position (flip-flop) on the merits of
the cases. If the impeachment seeks to enforce public accountability over decisions of the
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Documents
Court now assailed as unconstitutional, why charge and indict only the Chief Justice and
exclude the others?
Jurisprudence proclaims that selective prosecution smacks of persecution, which cannot
be sustained without thrashing the constitutional guarantees of equal application of the
law and substantive due process. If the Chief Justice of the land can be singled out for liability over collegial decisions and brazenly denied the constitutional guarantees to equal
protection of the law and due process, what more for ordinary members of the judiciary
and citizens of the land? Has not the barefaced disregard of well-entrenched constitutional guarantees transmogrified the impeachment process from being an avatar of public
accountability into a political goblin for partisan ends?
Thus, for the guidance of the bar and the public, the IBP, through its
Board of Governors, stands firm on its position that the impeachment complaint runs afoul with the Constitution in form and substance. But in defining
its course of action, the IBP has also resolved to refrain from intervening as counsel or litigant in the Senate impeachment trial or in the certiorari proceedings before the Supreme
Court (even if it did so in the impeachment case of then Chief Justice Hilario Davide). In
refusing to intervene as litigant or counsel in the pending proceedings, the IBP is giving
premium to the need to maintain its institutional independence and integrity and avoid
being drawn into divisive political alignments.
But the IBP cannot also afford to stay in the comfort zones of non-involvement
while the independence of the judiciary is being torpedoed by a misguided and defective congressional action that threatens to shake the foundations of our democracy. As
sentinel of law and democracy, the IBP is duty bound to engage the people and other
stakeholders of the justice system to rally and defend the judicial independence of the
Supreme Court, the bedrock of the Rule of Law.
To fulfil this duty, the Board has resolved to establish -- a) an IBP Impeachment
Communications Group manned by volunteer lawyers to inform the public on the breakneck
impeachment and its adverse impact on the constitutional guarantees of separation of
powers, judicial independence and the Rule of Law; and b) an IBP Impeachment Watch to
closely monitor the developments on the impeachment case before the Supreme Court
and the Senate.
Finally, we call on our people and the stakeholders of the justice system to pay the price of vigilance. On trial now is not only the judicial independence of the Supreme Court. It is our own commitment to the supremacy of the Constitution, the Rule of Law and political democracy.
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Rules of Procedure on Impeachment Trials
Republic of the Philippines
Congress of the Philippines
Senate
Pasay City
Fifteenth Congress
First Regular Session
——•••——
RESOLUTION NO. 39
reSolution adopting the ruleS oF procedure
on impeachment trialS
Resolved by the Senate, To adopt, as it hereby adopts, the following:
RULES OF PROCEDURE ON IMPEACHMENT TRIALS
I.
When the Senate receives articles of impeachment pursuant to Article XI,
Sections 2 and 3of the Constitution, the President of the Senate shall inform the House
of Representatives that the Senate shall take proper order on the subject of impeachment
and shall be ready to receive the prosecutors on such time and date as the Senate may
specify.
II.
When the President of the Philippines is on trial, the Chief Justice of the Supreme
Court shall preside but shall not vote. Notice shall be given to him by the President of the
Senate of the time and place fixed for the consideration of the articles of impeachment,
with a request to attend. The Chief Justice shall be administered the oath or affirmation,
prescribed under these Rules, by the President of the Senate and shall preside over
the Senate during the consideration of said articles and upon the trial of the person
impeached.
The President of the Senate shall preside in all other cases of impeachment
and, for that purpose, placed under the prescribed oath or affirmation by any person
authorized by law to administer an oath.
III.
Before proceeding to the consideration of the articles of impeachment, the
Presiding Officer shall administer the prescribed oath or affirmation to the Members of
the Senate then present and to the other Members of the Senate as they shall appear,
whose duty it shall be to take the same.
Upon presentation of the articles to the Senate, the Senate shall specify the date
and time for the consideration of such articles. Unless the Senate provides otherwise, it
shall continue in session from day to day (except Saturdays, Sundays, and nonworking
holidays) until final judgment shall be rendered, and so much longer as may, in its
judgment, be necessary.
Senators shall observe political neutrality during the course of the impeachment
trial. “Political neutrality” shall be defined as exercise of public official’s duty without
unfair discrimination and regardless of party affiliation or preference.
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IV.
The Presiding Officer shall have the power to make and issue, by himself or by
the Secretary of the Senate, all orders, mandates, and writs authorized by these Rules or
by the Senate, and to make and enforce such other regulations and orders in the premises
as the Senate may authorize or provide.
V.
The Senate shall have power to compel the attendance of witnesses, to enforce
obedience to its orders, mandates, writs, and judgments, to preserve order, and to punish
in a summary way contempts of, and disobedience to, its authority, orders, mandates,
writs, or judgments, and to make all lawful orders, rules, and regulations which it may
deem essential or conducive to the ends of justice. And the Sergeant-at-Arms of the
Senate, under the direction of the President of the Senate, may employ such aid and
assistance as may be necessary to enforce, execute, and carry into effect the lawful orders,
mandates, and writs of the Senate.
VI.
The President of the Senate or the Chief Justice when presiding on the trial may
rule on all questions of evidence including, but not limited to, questions of materiality,
relevancy, competency or admissibility of evidence and incidental questions, which ruling
shall stand as the judgment of the Senate, unless a Member of the Senate shall ask that a
formal vote be taken thereon, in which case it shall be submitted to the Senate for decision
after one contrary view is expressed; or the Presiding Officer may at his/her option, in
the first instance, submit any such question to a vote of the Members of the Senate. The
motion for a vote and the contrary opinion shall not take more than two (2) minutes each,
with a one minute rebuttal allowed for the proponent of the motion. The provisions of
the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever
applicable.
VII.
Upon the presentation of articles of impeachment and the organization of
the Senate as hereinbefore provided, a writ of summons shall be issued to the person
impeached, reciting or incorporating said articles, and notifying him/her to appear
before the Senate upon a day and at a place to be fixed by the Senate and named in such
writ, and to file his/her Answer to said articles of impeachment within a non-extendible
period of ten (10) days from receipt thereof; to which the prosecutors may Reply within a
non-extendible period of five (5) days therefrom; and to stand to and abide by the orders
and judgments of the Senate.
Such writ shall be served by such officer or person named in the order thereof,
not later than three (3) days prior to the day fixed for such appearance of the person
impeached, either by the delivery of an attested copy thereof to the person impeached,
or if personal service cannot be done, service of the writ may be made by leaving a copy
with a person of sufficient age and discretion at his/her last known address or at his/her
office or place of business; and if the service of such writ shall fail the proceedings shall
not thereby abate, but further service may be made in such manner as the Senate shall
direct. If the person impeached, after service, shall fail to appear, either in person or by
counsel, on the day so fixed or, appearing, shall fail to file his answer to such articles of
impeachment, the trial shall proceed nevertheless as upon a plea of not guilty. If a plea
of guilty shall be entered, judgment may be entered thereon without further proceedings.
VIII. At the date and time designated by the Senate for the return of the summons
against the person impeached, the Secretary of the Senate shall administer the following
oath or affirmation to the returning officer: “I, __________________, do solemnly swear
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(or affirm) that the return made by me upon the process issued on the _______ day of
______________, by the Senate of the Philippines, against ________ __________ was
truly made, and that I have performed such service as therein described: (So help me
God).” Which oath or affirmation shall be entered at large on the records.
IX.
The person impeached shall then be called to appear and answer the articles
of impeachment against him/her. If he/she appears, or any person for him/her, the
appearance shall be recorded, stating particularly if by himself/herself, or by agent or
counsel, naming the person appearing and the capacity in which he/she appears. If he/
she does not appear, either personally or by agent or counsel, the same shall be recorded.
X.
At 2 o’clock in the afternoon, or at such other hour as the Senate may order, of
the day appointed for the trial of an impeachment, the legislative business of the Senate,
if there be any, shall be suspended, and the Secretary of the Senate shall give notice to
the House of Representatives that the Senate is ready to proceed upon the impeachment
trial of ________ _________, in the Senate Chamber.
XI.
Unless otherwise fixed by the Senate, the hour of the day at which the Senate
shall sit upon the trial of an impeachment shall be 2 o’clock in the afternoon; and when
the hour shall arrive, the Presiding Officer upon such trial shall cause proclamation to be
made, and the business of the trial shall proceed. The adjournment of the Senate sitting
in said trial shall not operate as an adjournment of the Senate as a legislative body.
XII.
The Secretary of the Senate shall record the proceedings in cases of impeachment
as in the case of legislative proceedings, and the same shall be reported in the same
manner as the legislative proceedings of the Senate.
XIII. Counsel for the parties shall be admitted to appear and be heard upon an
impeachment: Provided, That counsel for the prosecutors shall be under the control and
supervision of the panel of prosecutors of the House of Representatives.
XIV. All motions, objections, requests, or applications whether relating to the procedure
of the Senate or relating immediately to the trial (including questions with respect to
admission of evidence or other questions arising during the trial) made by the parties or
their counsel shall be addressed to the Presiding Officer only, and if he, or any Senator,
shall require it, they shall be committed to writing, and read at the Secretary’s table.
XV.
Witnesses shall be examined by one person on behalf of the party producing
them, and then cross-examined by one person on the other side.
XVI. If a Senator is called as a witness, he/she shall be sworn, and give his/her
testimony standing in his/her place.
XVII. If a Senator wishes to put a question to a witness, he/she shall do so within two
(2) minutes. A Senator may likewise put a question to a prosecutor or counsel. He/she
may also offer a motion or order, in writing, which shall be submitted to the Presiding
Officer.
XVIII. At all times while the Senate is sitting upon the trial of an impeachment the doors
of the Senate shall be open to the public. Silence shall be observed by the visitors at all
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times, on pain of eviction from the trial venue.
The Presiding Officer and the Members of the Senate shall refrain from
making any comments and disclosures in public pertaining to the merits of a pending
impeachment trial.
The same shall likewise apply to the prosecutors, to the person impeached, and
to their respective counsel and witnesses.
XIX. All preliminary or interlocutory questions, and all motions, shall be argued for not
exceeding one hour on each side, unless the Senate otherwise orders.
XX. The case, on each side, shall be opened by one person. The final argument on the
merits may be made by two (2) persons on each side (unless otherwise ordered by the
Senate upon application for that purpose), and the argument shall be opened and closed
on the part of the House of Representatives.
XXI. The trial of all the articles of impeachment shall be completed before the Senators
vote on the final question on whether or not the impeachment is sustained. On the final
question whether the impeachment is sustained, the vote shall be taken on each article
of impeachment separately; and if the impeachment shall not, upon any of the articles
presented, be sustained by the votes of two-thirds of all the Members, a judgment of
acquittal shall be entered; but if the person impeached in such articles of impeachment
shall be convicted upon any of said articles by the votes of two-thirds of all the Members,
the Senate shall proceed to pronounce judgment of conviction, and a certified copy of
such judgment shall be deposited in the Office of the Secretary of the Senate. A motion
to reconsider the vote by which any article of impeachment is sustained or rejected shall
not be in order.
Form of putting the question on each article of impeachment.
The Presiding Officer shall first state the question. Thereafter, each Senator, as
his/her name is called, shall rise in his/her place and answer: guilty or not guilty. The
vote of the President of the Senate on each article of impeachment, when acting as the
presiding officer, shall be last taken after all the Senators have stated their votes. If he/she
so wishes, a Senator may explain his/her vote for not more than two (2) minutes.
XXII. All the orders and decisions may be acted upon without objection, or, if objection
is heard, the orders and decisions shall be voted on without debate by yeas and nays, which
shall be entered on the record, subject, however, to the operation of Rule VI, and in that
case no Member shall speak more than once on one question, and for not more than
ten (10) minutes on an interlocutory question, and for not more than fifteen (15) minutes
on the final question, unless by consent of the Senate, to be had without debate; but a
motion to adjourn may be decided without the yeas and nays, unless they be demanded
by one-fifth of the Members present. The fifteen minutes herein allowed shall be for the
whole deliberation on the final question, and not on the final question on each article of
impeachment.
XXIII. Witnesses shall be sworn in the following form: “You _______________, do swear
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(or affirm, as the case may be) that the evidence you shall give in the case now pending
between the Philippines and ________ _________, shall be the truth, the whole truth,
and nothing but the truth: (so help you God).”
Which oath or affirmation shall be administered by the Secretary of the Senate,
or any other duly authorized person.
Form of a subpoena to be issued on the application of the prosecutors
of the impeachment, or of the party impeached, or of his/her counsel.
To ________ __________,
Greetings:
You are hereby commanded to appear before the Senate of the Philippines, on the
_______ day of ___________, at the Senate Chamber in ____________________,
then and there to testify your knowledge in the case which is before the Senate in which
the House of Representatives has impeached ___________, and to bring with you the
following ___________, it being necessary to use the same as testimony.
Fail not.
Witness _______ ________, and Presiding Officer of the said Senate at
______________, Philippines, this ___ day of _______, in the year of our Lord
___________________.
Presiding Officer of the Senate
Form of direction for the service of said subpoena.
The Senate of the Philippines )
To ________ __________,
Greetings:
You are hereby commanded to serve and return the within subpoena according
to law. Dated at ___________, this ______ day of ______, in the year of our Lord
______________.
Secretary of the Senate
Form of oath to be administered to the Members of the Senate and the
Presiding Officer sitting in the trial of impeachments.
“I solemnly swear (or affirm, as the case may be) that in all things appertaining to
the trial of the impeachment of ______ ______, now pending, I will do impartial justice
according to the Constitution and laws of the Philippines: (So help me God).”
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Form of summons to be issued and served upon the person impeached.
REPUBLIC OF THE PHILIPPINES ) S.S.
To ________ __________,
Greetings:
Whereas the House of Representatives of the Philippines did, on the ____ day
of ________, present to the Senate articles of impeachment against you, the said ______
______, in the words following:
[Here insert the articles]
And demand that you, the said ________ ________, should be put to answer the
accusations as set forth in said articles, and that such proceedings, examinations, trials,
and judgments might be thereupon had as are agreeable to law and justice.
You, the said ________ ________, are therefore hereby summoned to be and
appear before the Senate of the Philippines, at their Chamber in _______________, on
the ____ day of __________________, at ____ o’clock ____, then and there to answer
to the said articles of impeachment, and then and there to abide by, obey, and perform
such orders, directions, and judgments as the Senate of the Philippines shall make in the
premises according to the Constitution and laws of the Philippines.
Hereof you are not to fail.
_______________, Philippines, this ___ day of _______, in the year of our Lord
___________________.
Form of Order to be indorsed on said writ of summons.
REPUBLIC OF THE PHILIPPINES ) S.S.
To ________ __________,
Greetings:
You are hereby commanded to deliver to and leave with ________ __________,
if conveniently to be found, or if not, to leave at his usual place of abode, or at his usual
place of business in some conspicuous place, a true and attested copy of the within writ
of summons, together with a like copy of this order; and in whichsoever way you perform
the service, let it be done at least ____ days before the appearance day mentioned in the
said writ of summons.
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Fail not, and make return of this writ of summons and order, with your
proceedings thereon endorsed, on or before the appearance day mentioned in the said
writ of summons.
_______________, this ___ day of _______, in the year of our Lord ___________________.
All process shall be served by the Sergeant-at-Arms of the Senate, unless otherwise
ordered by the Senate.
XXIV. If the Senate shall, at any time, fail to sit for the consideration of articles of
impeachment on the day or hour fixed therefor, the Senate may, by an order to be adopted
without debate, fix a day and hour for resuming such consideration.
XXV. These Rules shall take effect immediately upon publication in two (2) newspapers
of general circulation and shall remain in force until amended or repealed. A copy of
these Rules shall be posted on the official website of the Senate of the Philippines.
Adopted,
JUAN PONCE ENRILE
President of the Senate
This Resolution was adopted by the Senate on March 23, 2011.
EMMA LIRIO-REYES
Secretary of the Senate
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veriFied complaint For impeachment
(articleS oF impeachment)
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Verified Complaint for Impeachment
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editor’S note
Forming part of the Verified Complaint for Impeachment are:
1. The Signatures of 188 Complainants who are
Members of the House of Representatives; and
2. Annexes “A” to “Y”.
Both the Signatures and Annexes are omitted from the
present publication.
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Answer to Verified Complaint for Impeachment
anSwer to veriFied complaint For impeachment
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editor’S note
Concerning the Answer of Chief Justice Corona, his counsels filed a pleading
entitled “Erratum” with the Senate Impeachment Court on 29 December 2011.
Paragraph 3 of this pleading states:
“Hence, 2nd, 3rd and 4th sentences of the same paragraph
[referring to paragraph 15 of the Answer] should read:
“The article pointed out that Justice Antonio Carpio who
served as GMA’s Chief Presidential Legal Adviser cast 9 antiadministration votes as against 11 pro-administration votes. Justice
Arturo Brion, who served as GMA’s Labor Secretary cast 2 proadministration votes against 0 anti-administration votes or around
100% pro-GMA votes. Actually, CJ Corona in this study cast 14
pro-administration votes against 5 anti-administration votes or around
only 74% pro-GMA votes.”
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Special Issue on Impeachment

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