Impeachment Chronicles (Day 1-4)

Impeachment Chronicles

Representative Kaka J. Bag-ao, AKBAYAN Partylist

Updates on 16-19 January 2012 (Day 1-4)

Contact Person: Jan Eugenio, AKBAYAN Policy Affairs Officer, 09088849545

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Defense’s delaying tactics apparent in the first week of the Senate Trial

The information materials on the impeachment process and on the impeachment case against Chief Justice Renato Corona seek to educate the people on the legal processes in and to give updates regarding the trial at the Senate. The ultimate objective of this forum is to assist the people as they participate in this process of making the Supreme Court and its Members accountable to the people, regardless of the outcome of the trial. A recap of the important matters that occurred during the first week of the Senate trial is made below.

Day 1 (16 January 2012):

Exclusive power of the House of Representatives to “initiate” the impeachment case

As expected, the first legal question that the defense team raised at the Senate was on the issue of the verification of the impeachment complaint filed by 188 members of the House of Representatives. Although no motion to dismiss the complaint is allowed at the Senate trial, the defense tried to maneuver around the rule by filing a “motion for a preliminary hearing” (instead of a motion to dismiss) and prayed for the immediate dismissal of the complaint. The defense’s strategy was apparent— to seek an immediate dismissal of the complaint even before the impeachment trial at the Senate has began.

Unfortunately, however, the subject matter of initiation of the impeachment process, including the filing of the complaint, falls under the absolute exclusive power of the House of Representatives. Under the circumstances of this case, the House of Representatives had already passed upon the sufficiency of the complaint in form and substance, and this is deemed to include the aspects of proper verification, favourable resolution and affirmation of at least one-third of all members of the house. The exercise of this power cannot be subject to the scrutiny of the Senate as an impeachment body because the Senate’s power starts with that of “trying and deciding” the impeachment case as already filed before it. And, thus, Senate President Juan Enrile, acting as the Presiding Officer of the impeachment trial, immediately denied the defense’s motion to dismiss (couched as a “motion for preliminary conference”) the impeachment complaint against Chief Justice Corona.

Private Counsels may appear for the prosecution

Early on, the Presiding Officer also settled that the private prosecutors are allowed to appear at the trial provided that “they act under the control and supervision of the panel of prosecutors of the House of Representatives”. However, the presiding officer disallowed the private prosecutors to argue on questions of law. This means that only members of the panel of public prosecutors, the members of the House, may argue during the proceedings. It seems like this ruling is quite contrary to the provision of Article XIII of Senate Resolution 39[1] which expressly allows private counsels for both the defense and prosecution to “appear and be heard upon an impeachment”.

Corona pleaded thru private counsels

Contrary to Corona’s previous statements that he will answer the impeachment complaint squarely and personally appear at the trial to answer the allegations lodged against him, Corona –despite being present at the trial- passed on to his private counsels the actual entering of a plea of “not guilty” in his behalf. Admittedly, though, the rules allow his representatives to act in his behalf.

Day 2 (17 January 2012):

Improper application of the “Doctrine of Privileged Communication”

The Senate, acting as an impeachment Court, voted to deny the prosecution’s motion to issue subpoena ad testificandum to the members of the family of Chief Justice Renato Corona, particularly, his spouse Cristina Corona, his children Carla Corona-Castillo, Francis Corona and Czarina Corona, and his son-in-law Constantino Castillo.

There is no doubt that Chief Justice Corona has the option not to appear before the impeachment court in accordance with his Constitutional right against self-incrimination. In ordinary cases, direct family members also have the option not to testify against one another because their communications are considered confidential. Be that as it may, the prohibition on privileged communications cannot be invoked instantly and in a blanket manner as it may only be invoked when the question being propounded to a witness by the opposing counsel are already incriminating against himself or a member of his/her family. Members of the Congress have clarified this several times in their conduct of investigations in aid of legislation in the past. This means that persons to be summoned by the impeachment court, in this case the members of the family of Chief Justice Corona, cannot refuse the subpoena Viewed in that light, the denial of the subpoena requested by the prosecution can therefore be considered to be premature. Furthermore, it was improper for the Court to also afford the shield of “privileged communication” to the son-in-law of Chief Justice Corona. The law on parental and filial privilege extends only to “children or other direct descendants.”[2] Senator Alan Peter Cayetano was correct in stating that the rule applies only to ascendants or descendants with a common ancestry, not to in-laws.

Impeachment does not take the nature of a criminal proceeding

Although the Presiding Officer agreed that the nature of impeachment proceeding is sui generis (a class of its own)—meaning, it is neither purely political nor criminal in character—he indicated in open court that “it is more akin to a criminal proceeding”.

With due respect to the Presiding Officer, it is opined that the impeachment proceeding is not “more akin to a criminal proceeding”. On the contrary, the proceedings are more political in character. First, the Constitution allocates the power of impeachment to Congress—the right to accuse is exclusively lodged with the House of Representatives, while the sole power to try and decide all cases of impeachment belongs to the Senate—both of which are political branches of the government. Second, the impeachable offenses are political and not necessarily criminal offenses. Hence, among the grounds of impeachment are “other high crimes” or “betrayal of public trust”. Third, the consequences of impeachment are political punishments and not necessarily penal in character. Fourth, the courts have no power to review the decisions of the impeachment body because they are considered as political in nature.[3]

None other than the former Chief Justice Reynato Puno clarified the nature of impeachment proceedings as neither political nor criminal, but sui generis. Not being a purely criminal proceeding, it does not require “proof beyond reasonable doubt” to convict a person impeached. Thus, the senators may use any quantum of evidence except for “proof beyond reasonable doubt” as basis for their vote in any of the articles of impeachment such as “clear and convincing evidence”; “preponderance of evidence”; or “substantial evidence”.

Prosecution has the right to determine the order of presentation of evidence

It is common knowledge in trial practice that the prosecution is given the flexibility in the manner of presenting the evidence, in the same manner that the defense is accorded the same leeway in presenting their defense. It is thus surprising that Corona’s defense counsels were over eager and wanted to dictate the order of presentation of the articles of impeachment. That move was clearly dilatory.

Day 3 (18 January 2012):

Impeachment Court as a Constitutional Body

The Senate properly issued the subpoena to Supreme Court Clerk of Court, Atty. Enriqueta Esguerra-Vidal, as well as the production of the statement of assets, liabilities and net worth (SALN) of Chief Justice Corona.

The Senate sitting as an impeachment court is a Constitutional body created under Article XI for purposes of impeaching a public officer. This does not pertain to the usual legislative functions of the Senate. To effectively comply with this mandate, the Senate has the power to issue subpoena to a person to testify personally (subpoena ad testificandum) or to produce documents (subpoena duces tecum). This would not result in a Constitutional crisis because this is part of the processes the Senate, as an impeachment body, is allowed to issue under the principle of checks and balances.

Senator Judges are allowed to clarify matters

Under the Senate rules, a Senator Judge can put a question to a witness, prosecutor, counsel, and even to the person impeached. Note that each Senator is treated as a Judge in the impeachment trial. He/she has the power to ascertain each fact of the case. The accusations of bias by the defense panel against some of the Senator-Judges who asked questions to clarify some matters are utterly unfounded.

Day 4 (19 January 2012):

Truthful and genuine disclosure

The prosecution started with Article II of the complaint which deals with the non-disclosure of the SALN of Corona. By public disclosure of SALN, the prosecution means the “truthful and genuine” SALN of Corona, not one with hidden or undervalued statements, otherwise, there would be no public disclosure at all as required under the Constitution. Consequently, this article included the investigation of the allegations of ill-gotten wealth and accumulation of other high assets and huge bank accounts.

Again, the defense has thrown a barrage of objections against the presentation of the land titles allegedly owned by Corona and his family. They are expected to continue with their legal maneuverings in the coming days and prevent the presentation of other documents by the prosecution, thereby further delaying the proceedings of the case.

Admittedly, both prosecution and defense panels are still learning the ropes of the conduct of an impeachment proceeding. And, this is quite understandable because the use of the impeachment process is rare as it is important. It is beneficial though that the Senate sitting as an impeachment body is prepared and able to give guidance to the parties, with Senate President Enrile at the helm.


[1] Resolution adopting the Rules of Procedure on Impeachment Trials.

[2] Section 25, Rule 130, Revised Rules of Court.

[3] Justice Reynato Puno’s Concurring and Dissenting Opinion in Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003.

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Dismantling Coronarroyo, Sustaining the Momentum of Change

Dismantling Coronarroyo, Sustaining the Momentum of Change

Speech for the 14th Year Anniversary of Akbayan Citizens Action Party

23 January 2012, Pugad Lawin Hall, Quezon City Sports Club, Quezon City

 

Distinguished and honored guests, friends of Akbayan, my party-mates in Akbayan Kung Hei Fat Choi!

I welcome this invitation to speak before you today as a refreshing break from the intense preparation sessions of our team of lawyers for the prosecution of Articles 3 and 4 of the Articles of Impeachment. Sa totoo lang po ako’y medyo kinakabahan sa bigat ng hamon sa akin at sa laki ng expectations ng mga mamamayan sa aming mga prosecutors sa impeachment trial ni Chief Justice Renato Corona. But since I do not see the now-familiar faces of the Defense Panel – Former Justice Serafin Cuevas, my former teacher Atty. Jack Jimenez in the hall, I do not expect to be interrupted by any objection, technical or otherwise.

Also, before I begin to discuss some serious stuff, I would like to take this opportunity to correct the misimpression being peddled by a certain Professional Heckler. Ang suot ko noong opening ng Impeachment trial ay hindi galling sa alin man branch ng SM. Yan ay isang kasinungalingan. At kung kailangan kong ipa-subpoena sa witness stand si Manay Gina de Venecia at ang iba pang miyembro ng Association of Lady Legislators upang patunayan ito ay gagawin ko. At bago pa man makapag-object si Congressman Walden Bello, na hindi nabigyan ng terno, ay itutuloy ko na po ang aking speech.

The year 2011 will be remembered as the year of reckoning against the corrupt past of Gloria Macapagal Arroyo. “Taon ng pagsingil ng mga mamamayan sa siyam na taong pandarambong at katiwalian ng mga Arroyo.”

We began the year 2011 with a full-court press to dismantle the first line of defense cleverly and maliciously put in place by former president Gloria Macapagal-Arroyo, by impeaching her appointed Ombudsman Merceditas Gutierrez. Merci and her cabal single-handedly frustrated all attempts to make GMA accountable to the various graft and corruption charges against her. It took almost half a year, thanks to the TRO issued by the Supreme Court, for us in the House of Representatives to overwhelmingly impeach her.

Without us firing a single shot in the halls of the Senate, Ombudsman Merceditas Gutierrez succumbed to the tremendous pressure both from the public and from the strength of the Articles of Impeachment against her. Thus GMA’s first line of defense crumbled. And because of this historic victory in our mission to make GMA accountable for her crimes against the Filipino people, she is now facing charges for the anomalies that she and her administration committed in the NBN-ZTE scandal and PCSO fund scam. These are just the first gains that we are reaping from Merci’s impeachment. More are still to come.

At this point let me share to you a personal anecdote, one that is close to Akbayan’s heart. When the Articles of Impeachment against Ombudsman Meceditas were being drafted, one article was considered by many as the weakest – the case of Ensign Phillip Pestaño. In fact, nobody was willing to prosecute the article except for the Akbayan team who insisted on its inclusion. We prepared long and hard to prosecute it in the Senate trial but because of Merci’s resignation, we were denied the opportunity to prove its relevance to the impeachment case. The recent filing of murder charges against the 10  suspects in the murder of Ensign Philip Pestaño by the Office  Ombudsman led by Conchita Carpio Morales is a vindication, not only for us in Akbayan but more importantly for his parents, Ka Pepe and Tita Nene and Philip’s siblings and friends. After more than a decade and a half of constant and unwavering push to make the wheels of justice turn, they will have their day in court and the first step towards achieving justice has been taken.

Akbayan’s critical role in the impeachment of Ombudsman Merceditas Gutierrez cannot be denied. Risa Hontiveros, together with Gen. Danny Lim and Ka Pepe and Nene Pestaño filed the impeachment complaint. Rep. Walden Bello and myself endorsed the complaint and successfully advocated for it in the House Committee on Justice. Akbayan, likewise, took the leadership in the public campaign for Merci’s ouster together with our allies in the Oust Merci Gutierrez Movement (OMG).

With all candor and humility, I claim with pride that we, in Akbayan, were in the frontlines of that battle against the corrupt and inept pawn of GMA and we prevailed.

We have won a battle, we still have a war to win. The next battle has begun and Akbayan’s banner is still waving in the frontlines. In this battle, we stand face-to-face with GMA’s last line of defense, the strongest, brightest and the most loyal among her generals, GMA’s former Chief-of-Staff and now her acting “Secretary of Defense”: Chief Justice Renato Corona.

Much as I want to share with you my thoughts on the merits of the Articles of Impeachment against Chief Justice Renato Corona, I am gagged. Kaya nga po chubby ang cheeks ko.

Let me share with you my thoughts and reflections on the impeachment of the Chief Justice without dealing and arguing on the merits. Kung nakikita nyo po sina Speaker Belmonte, Cong. Jun Abaya, Atty. Ayo Bautista at iba pang miyembro ng prosecution team, paki-distract na lang po sila para di nila marinig ito. Yun pong mga nakikinig nito sa kanilang mga TV at radyo pakihinaan na lang po ang volume dahil secret po ito.

Last January 16 in the morning, a few hours before the impeachment trial in the Senate began, Chief Justice Corona delivered a fiery speech commenting on various points of the Articles of Impeachment and even discussed at length each of the 45 land titles listed and released by the Land Registration Authority. He admitted owning some and denied the others. Nagulat nga ako na inisa-isa nya yun e samantalang may gag din sya. Di ba chubby din ang cheeks nya?

To be honest, I was pleasantly surprised by his show of resolve to argue his own case that I thought he was willing to testify on his own behalf. But this was proven wrong, when his defense objected to the prosecution’s request for the issuance of subpoena for the Chief Justice and his family to testify before the Impeachment Court. Their objection was sustained. I am tempted to present arguments against the ruling here but I am constrained by my cheeks are chubby.

But if the Chief Justice is really serious about defending himself and personally challenge the accusations against him, I challenge him to take the witness stand when the turn of the defense to present evidence comes. It will give him the opportunity to do what he is doing outside the Impeachment Court – rebutting the pieces of evidence and testimony one by one. The witness stand will also give him a bonus. It will also give him the pleasure and opportunity to personally show how inept and inexperienced we, in the prosecution, are.

Let me go to another highlight of his defiant January 16 speech.

In his January 16 speech, Chief Justice Renato Corona bared what is now called “The Conspiracy of 3”. He said it is a conspiracy of three persons: one wants to prevent the distribution of Hda. Luisita, the other one is in a hurry to become vice-president but lost in the election and finally the third, has the ambition to become Chief Justice.

CJ Corona is right. He is right about the existence of a conspiracy but he got his numbers wrongs. It is not a conspiracy of three, neither is it a conspiracy of 188. I daresay it is a “Conspiracy of Millions” – a conspiracy of  Filipinos conspiring to remove him from the post which he abused.

It is not a conspiracy to force the Supreme Court to its knees and follow the will of a dictatorship but rather a conspiracy of millions of people who are desperate to restore the independence of the Supreme Court and free it from any undue influence. It is a conspiracy of Filipinos who are reclaiming the Supreme Court from the clasps of the claws of Corona’s sovereign, Gloria Macapagal Arroyo. This is a conspiracy of the Filipino people intent on reclaiming the Supreme Court from the Coronarroyo Conspiracy.

Chief Justice Corona claims that his impeachment is all about Hda. Luisita. Perhaps, Chief Justice Corona has forgotten that we in Akbayan have been working with the farmworkers of Hacienda Luisita and the Department of Agrarian Reform precisely to make its distribution a reality. Perhaps the Chief Justice does not know that among the ranks of the private prosecutors in his impeachment trials are several lawyers of the Hda. Luisita farmers and farmworkers. In trying to sell his theory, the Chief Justice has conveniently forgotten that the Hda. Luisita case was argued and won by the farmers together with the Department of Agrarian Reform. Masyado pong pilit ang iyong teorya CJ Corona.

Ladies and Gentlemen, in my experience all trials can become dull and boring with very few dramatic and explosive moments that are too far in between. In the absence of drama and explosive action, it is very easy to lose focus on the reasons why there is an Impeachment Trial. In this age of reality shows, I cannot blame the public watching the impeachment trial live on national television to shift their focus and take notice of the different realities happening in the Senate floor. In the eyes of the very critical public it is not only the accussed, the impeached Chief Justice who is on trial, but the prosecutors and the senator-judges, as well.

In the first week of the impeachment trial, the contrast between the defense team, composed mainly of high-caliber and experienced veteran litigation lawyers, and the prosecution team composed mainly of politicians who have spent most of their time in elective public offices and outside the court room gained the attention of the public. We, in the prosecution, became objects of criticism and the harsh Filipino sense of humor especially in cyberspace. I shall offer neither denials nor explanations.

I admit, that in terms of litigation experience, we in the prosecution, especially the public prosecutors are the underdog. In fact most of us in the prosecution team were once students of those in the defense panel. In that respect alone we are oceans apart. Moreover, prosecuting a case with millions of viewers watching your every move and listening to every word you utter is really intimidating.

The defense panel is indeed a Dream Team and their strength lies in their more than 300 years of combined litigation experience. E hindi pa po ako pinanganak Atty. Cuevas na si Justice Cuevas.

However, no amount of trial experience can compensate for the defense’s greatest disadvantage: their client Chief Justice Corona.

Dear friends and comrades, this battle must not only be fought by the prosecutors in the Impeachment Court. The battlefield is not just the plenary hall of the Senate where we have to win hearts and minds of the senator-judges. We also have to wage battle in the public sphere to win the hearts and minds of the people. We need your help in breaking the barriers of legalese and technicalities in the Senate floor and help ordinary people understand the proceedings.

The impeachment process is but a battle that we need to wage to win the war against corruption. For us in Akbayan, our mission goes way beyond this. The present conjuncture provides us with a fertile and favorable political environment to push for the changes that we have been fighting for.

A wave of change is coming. Those who cling to the ways of the past and of the GMA administration, be forewarned. Do not stand in the way.

Kapag Akbayan ang Lumaban, Panalo ang Mamamayan.

Maraming salamat po.

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Legal Notes – Simplifying the Senate Rules on Impeachment Trials

Legal Notes of Representative Kaka J. Bag-ao, AKBAYAN Partylist

 

Simplifying the Senate Rules on Impeachment Trials

What is the nature of the impeachment proceedings before the Senate? How will the trial proceed? What are the salient features of the Senate Rules?

 

The impeachment trial of Supreme Court Chief Justice Renato Corona has already begun and the people are eager to watch, learn and analyze the ongoings. Hence, it is just but fitting that a short rundown of the Senate rules on impeachment trial be made so that the ordinary citizen may be apprised of the rules that govern this all-important proceeding which would ultimately affect the nation and the people’s lives.

I. Impeachment Proceedings as “Sui Generis”

Before tackling the Senate rules, it is important to understand the nature of the impeachment trial for it has significant implications. There are two views.

The first view is that impeachment proceeding is political in nature. Historically, impeachment proceedings in England and the United States, from which several of our Constitutional provisions relating to impeachment were borrowed, had been dominantly political in nature. In fact, Sections 1-3, Article XI of the Philippine Constitution allocates the power of impeachment to Congress—the right to accuse is exclusively lodged before the House of Representatives, while the sole power to try and decide all cases of impeachment belongs to the Senate—both of which are political branches of the government. The framers of the Constitution delegated the power over impeachment trials before a political branch, rather than the judiciary, because they chiefly relate to injuries done to the society itself. The Senate, whose members are elected representatives of the people who act on the basis of political consideration, was deemed as the “most fit depositary of this important trust” because its members are representatives of the people.[1]

Second, the impeachable offenses are political and not necessarily criminal offenses. Thus, among the grounds of impeachment are “other high crimes” or “betrayal of public trust”. The offenses are also prosecuted by members of the House of Representatives, also elected officials of the people. Further, the consequences of impeachment are political punishments and not necessarily penal in character.

Third, the courts have no power to review the decisions of the impeachment body because they are considered as political in nature and, thus, non-justiciable except when there are clear violations of the Constitutional provisions on impeachment. Moreover, it is most likely possible that after the successful impeachment proceedings before the Senate, a separate criminal or administrative case would be filed before the appropriate regular courts. The framers of the Constitution deemed it best to have two separate forums before which these cases can be filed to prevent any form of bias and influence on the separate cases. Lastly, a review by the courts of the decisions of the Senate as an impeachment body would be inconsistent with the principle of Checks and Balances.[2]

The second view, adhered to by some legal scholars like former Justice Isagani Cruz, characterizes the impeachment proceedings as “in a sense judicial and penal in character,” hence, akin to criminal proceedings. It is stated in this view that most of the grounds for impeachment are penal in character, such as treason, bribery, graft and corruption, and if the impeached official is found guilty, he may suffer a penalty of removal from office and disqualification to hold office—some of the penalties adjudged to criminal offenders in ordinary cases.[3]

It is submitted that the correct view of the nature of impeachment proceedings is neither purely political nor criminal in character, rather, it is “sui generis,” which means “a class of its own”. In the words of former Justice Reynato Puno, it is a “commixture of political and judicial components in our reengineered concept of impeachment xxx which has been shaped by our distinct political experience especially in the last fifty years.”[4]

The importance of distinguishing the nature of impeachment proceedings has its bearing on its legal implications. First, the interpretation of the Senate rules on impeachment proceedings should be made in a liberal manner and technicalities should be set aside because it is not purely a criminal proceeding. Second, the Constitutional rights of the accused in ordinary proceedings such as the right to due process and right against self-incrimination still apply. Third and most important, the nature of the impeachment proceedings will determine the required quantum of evidence required for convicting an impeached official.

II. Procedure in the Impeachment Trial

Sections 1-3, Article XI of the Constitution lay down the rules on impeachment proceedings. The Constitution further obliges Congress to promulgate its own rules to effectively carry out the process. Hence, the House of Representatives approved the Rules of Procedure in Impeachment Proceedings on 3 August 2010,[5] while the Senate approved Resolution No. 39 (Resolution Adopting the Rules of Procedure on Impeachment Trials) on 23 March 2011. Since the Articles of Impeachment have already been transmitted to the Senate, there is no longer any need for discussing the House Rules and only the salient features of the Senate Rules will be discussed here.

What is the role and duty of the Senate upon receipt of Articles of Impeachment?

Section 3 (6), Article XI of the Constitution states that “The Senate has the sole power to try and decide all cases of impeachment.” Hence, all questions regarding the interpretation of the meaning of the grounds for impeachment and assessment of the evidence—which are unquestionably political in nature—are not subject to review by the courts except for non-compliance with the procedural requirements of the Constitution.

Once the Senate receives the Articles of Impeachment from the House of Representatives, the Senate President shall inform the House of Representatives that the Senate shall take proper order on the impeachment and ready to receive the prosecutors.

What are the powers of the Senate?

The Senate shall have the following powers:

a. Compel the attendance of witnesses;

b. Enforce obedience to its orders, mandates, writs and judgments;

c. Preserve order;

d. Summarily punish contempt of, and disobedience to its authority, orders, mandates, writs, or judgments; and

e. Make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice;

Who shall preside in impeachment proceedings?

The Senate President shall be the Presiding Officer except when the President is on trial in which case the Chief Justice of the Supreme Court will preside. The Presiding Officer shall have the power to make and issue all orders, mandates, and writs, and to make and enforce such other regulations and orders in the premises.

Can the Presiding Officer rule on any questions on evidence?

Yes, the Senate President, as Presiding Officer, may rule on all questions on the materiality, relevancy, competency or admissibility of evidence and incidental questions. The ruling of the Senate President on these matters shall be considered as the ruling of the Senate as a body unless he shall submit any such question to a vote of the members of the Senate or any member of the Senate shall ask that a formal vote be taken. In this case, a vote shall be taken and a majority vote shall prevail. This was what happened during the impeachment case of former President Joseph Estrada where the senators voted on whether to open the second envelope which allegedly contained the evidence regarding the Velarde account. In the Estrada case, a majority of the senators decided not to open the second envelope which enraged the nation which eventually resulted in EDSA II.

How will the person impeached be notified of the Articles of Impeachment?

A Writ of Summons shall be issued to the person impeached notifying him/her of the Articles of Impeachment, the date and time of his/her appearance before the Senate, and ordering him/her to file his/her Answer within ten (10) days from receipt of the notice. The prosecutors may file a Reply within five (5) days from receipt of the Answer.

On the date and time fixed on the Writ of Summons, the person impeached shall be called to appear and answer the Articles of Impeachment against him.

What happens if the person impeached fails to appear on the date fixed by the Senate?

The trial shall proceed nevertheless upon a plea of not guilty. Note that the rules allow that the person impeached may appear by himself or through an agent or counsel. It is also noted that the person impeached still enjoys the Constitutional right against self-incrimination and right to due process. In any case, the impeachment trial will then proceed.

When will the impeachment trial proceed?

Unless otherwise provided, the trial will start on the day fixed by the Senate, particularly, at 2:00 in the afternoon, and the sessions will continue from day to day (except Saturday, Sundays and nonworking holidays) until final judgment shall be rendered. (In this impeachment trial, the Senate will be conducting hearings from Monday to Thursday only.)

Will the legislative business of the Congress be totally suspended pending the impeachment trial?

No. With respect to the House of Representatives, the ordinary legislative business will continue because only the 11-member panel of prosecutors will be handling the case before the Senate. Notwithstanding the trial, the members of the panel of prosecutors are not prevented from continuing with their legislative advocacies in the House of Representatives. On the other hand, the members of the Senate may continue their legislative affairs in the morning or when the trial is not in session.

How long will it take to finish the trial?

It is estimated that the trial may last from 3 to 5 months, depending on the circumstances of the case, such as when the person impeached will resign from his/her post which may result in the termination of the trial. This was exactly what happened to the impeachment proceedings of former Ombudsman Merceditas Guttierez who resigned at the height of the impeachment proceedings against her. It is also recalled that the impeachment proceedings of former President Joseph Estrada was abandoned in the middle of the trial.

Can the impeachment trial proceed despite the resignation of the person impeached during the trial?

It is submitted that the trial may still proceed for purposes of ferreting the truth and ascertaining accountability. Further, his/her disqualification to hold public office in the future may still be a proper subject for the impeachment body to tackle.

What is the role of the House of Representatives in the Trial?

The members of the House of Representatives shall act as the sole prosecutors in the impeachment trial through a panel of 11 members elected by a majority vote in plenary under the rules adopted by the House of Representatives. Under the Senate Rules, however, it allows for the appearance of private counsels to act as prosecutors provided that they shall be under the control and supervision of the panel of prosecutors of the House of Representatives.

How will the trial proceed?

The case, on each side, will be opened by one person. The final argument on the merits may be made by 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.

How will witnesses be examined?

Witnesses shall be examined by one person on behalf of the party presenting them, and then cross-examined by one person on the other side.

Can a Senator ask a question on the witness?

Yes, a Senator can put a question to a witness, prosecutor, counsel, and even to the person impeached. The Senator may also offer a motion or order, in writing, which shall be submitted to the Presiding Officer.

Can a Senator be called as a witness?

Yes, and he/she shall be sworn and give the testimony standing in his/her place.

May parties or counsels object to any question propounded by a prosecutor, counsel or Senator?

Yes. All motions, objections, requests, or applications whether relating to the procedure of the Senate or relating immediately to the trial made by the parties or counsel shall be argued and addressed to the Presiding Officer.

What happens after the presentation of the final arguments by the prosecutors as well as the counsels of the person impeached?

After the completion of the trial for all of the Articles of Impeachment, the Senators shall vote on the final question on whether or not the impeachment is sustained. The Presiding Officer shall first state the question and, thereafter, each Senator shall rise and answer: “guilty” or “not guilty”. The vote of the Senate President, when acting as the Presiding Officer, shall be taken after all the Senators have stated their votes. Each Senator may explain his/her vote within 2 minutes.

How shall the voting of Senators be made?

On the final question whether the impeachment is sustained, the yeas and the nays shall be taken on each Article of Impeachment separately. If the impeachment shall not be sustained by the vote of two-thirds of all the Members of the Senate, a judgment of acquittal shall be entered. If the person impeached in such Articles of Impeachment shall be convicted upon the vote of two-thirds of all the Members, the Senate shall proceed to pronounce judgment of conviction. Hence, a conviction on any of the Articles of Impeachment shall be enough to convict the impeached officer.

May the Articles of Impeachment be divisible?

No. The judgment shall be made only after all the arguments of both parties have been concluded. Further, the voting of the Senators shall continue until all the Articles of Impeachment have been read and voted thereon by each Senator.

Is a Motion for Reconsideration allowed?

No. A motion to reconsider the vote by which the Articles of Impeachment is sustained or rejected shall not be in order. In fact, the results of the voting of the Senators shall not be reviewable by the courts as the same is considered political matters and beyond the powers of judicial review. The judgment is therefore final and unappealable.

What is the consequence of conviction in any of the articles of impeachment?

The person impeached shall have a judgment which shall not extend further than removal from office and disqualification to hold any public office under the Republic of the Philippines.

May the convicted public officer be pardoned by the President?

No. The Constitution specifically states that impeachment conviction may not be subject to pardon by the President.

After the Senate conviction, may the convicted public officer be prosecuted in ordinary suits?

Yes, the convicted public officer may be prosecuted in ordinary criminal or civil actions in regular courts, as the case may be. When criminally prosecuted, the person cannot plead the defense of double jeopardy.

In case of conviction in ordinary criminal cases, can the convicted person be pardoned by the President?

In this instance, the convict may be pardoned by the President as in ordinary cases. This is what happened to former Joseph Estrada who was subsequently prosecuted and convicted for plunder before the regular courts of justice after the aborted impeachment trial before the Senate. After his conviction, former President Gloria Arroyo granted Joseph Estrada executive clemency and, thus, he was released from jail. Subsequently, Joseph Estrada again ran for President in the 2010 national elections as he was not barred from running because there was no conviction made during the aborted impeachment trial.

III. Other Salient Features and Gray Areas of the Senate Rules

All Proceedings are Public

Since the issue in impeachment proceedings involves national interest owing to the fact that it is the people through their representatives who are to decide in their sovereign capacity, all the proceedings thereon shall be open to the public.

Political Neutrality

Senators, as judges in the whole proceedings, shall observe “political neutrality”—defined as the exercise of a public official’s duty without unfair discrimination and regardless of party affiliation or preference—during the course of the impeachment trial. In line with this, they shall refrain from making any comments and disclosures in public pertaining to the merits of a pending impeachment trial. This “gag order” also applies to the prosecutors, person impeached and to their respective counsels and witnesses. However, being a public issue which concerns national interest, academic discussions on the issue, rules of the impeachment proceedings, issues already presented before the Senate, as well as the political consequences on the impeachment trial may be the subject of public debates. Again, the public has the right to know all proceedings in the impeachment trial.

Evidence Necessary for Conviction

There are four (4) types of quantum of evidence required in arriving at a decision depending on the nature of the proceedings. First, there is “proof beyond reasonable doubt” which is the moral certainty or that degree of proof which produces conviction in our prejudiced mind. This is the evidence required in criminal proceedings, and this is the most difficult to obtain. The second type, “clear and convincing evidence”, is that weight of evidence that is clear, positive, and convincing, going beyond mere preponderance of evidence. The third, “preponderance of evidence”, means the superior weight of evidence as determined by the Court considering all the facts and circumstances of the case including the witnesses’ manner of testifying, the nature of the facts to which they testify and personal credibility. This is the evidence required in civil cases. The last type, “substantial evidence”, refers to such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. This is the evidence required in administrative cases, and is said to be the easiest to obtain.

As discussed above, the nature of impeachment proceedings is neither political nor criminal, and that it is “sui generis”. Not being a purely criminal proceeding, it does not require “proof beyond reasonable doubt” to convict a person impeached. Hence, the senators may use any quantum of evidence except for “proof beyond reasonable doubt” as basis for his vote in any of the articles of impeachment. This is also the view taken by most of the scholars in American jurisprudence in relation to impeachment proceedings.

Basis of Two-Thirds Vote

The Constitution requires that no person shall be convicted without the concurrence of two-thirds of all the members of the Senate. What does the phrase “all the members of the Senate” mean? Is it based on the full membership of the Senate, which is 24, or on the actual incumbent members? This has particular importance only when the number of seats in the Senate is not completely filled as in the present Senate which only has 23 incumbent members. There is no jurisprudence on the matter yet.

*** A lawyer by profession, AKBAYAN Rep. Kaka Bag-ao was the Convenor of the Alternative Legal Group, a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.


[1] Justice Reynato Puno’s Concurring and Dissenting Opinion in Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003,citing Alexander Hamilton and the case of Nixon vs. United States (38 506 US 224 (1993) 122 L ed 1 113 S Ct 732.

[2] Justice Reynato Puno’s Concurring and Dissenting Opinion in Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003,citing the case of Nixon vs. United States (38 506 US 224 (1993) 122 L ed 1 113 S Ct 732.

[3] Tupaz, Antonio, R. Fundamentals of Impeachment. 2001 Edition. Phoenix Press, pp. 19.

[4] Justice Reynato Puno’s Concurring and Dissenting Opinion in Francisco vs. House of Representatives, G.R. No. 160261, November 10, 2003.

[5] The Supreme Court decision in Francisco et al. vs. House of Representatives (GR No. 160261, 10 November 2003), states that Impeachment proceedings are initiated upon filing of the complaint and/or resolution and its referral to the Committee on Justice.

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Legal Notes – Supreme Court Chief Justice Corona Betrayed the Trust Reposed in him by the Filipino People

Legal Notes of Representative Kaka J. Bag-ao, AKBAYAN Partylist

 

Supreme Court Chief Justice Corona Betrayed the Trust Reposed in him by the Filipino People

Did Respondent Corona commit culpable violation of the Constitution and betrayal of public trust?

 

The Constitution expressly provides that Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.”[1] Any act of a public officer which defies the said constitutional mandate and renders the public officer unfit for his or her office is a “betrayal of the public trust”.

The Constitution requires the same accountability to the highest public officials of the land, to wit, the President, Vice-President, Members of the Supreme Court, Members of the Constitutional Commissions and the Ombudsman, and any act of the said public officers which relinquishes the trust of the citizenry is in itself an impeachable offense. Such accountability to the public is required “at all times” and no public officer, including the Chief Justice of the Supreme Court, is immune from such Constitutional mandate.[2] The six (6) exclusive grounds for removal by impeachment are listed and particularly defined below:

1. Culpable Violation of the Constitution – willful and intentional violation of the Constitution and not violation committed unintentionally or involuntarily or in good faith or thru an honest mistake of judgment;[3]

2. Treason – as understood under Article 114 of the Revised Penal Code, is an act committed by any person who, owing allegiance to the Government of the Philippines, levies war against it or adheres to its enemies, giving them aid and comfort;

3. Bribery – as understood under Article 210-211 of the Revised Penal Code, is an act committed by any public officer who shall agree to perform an act, whether or not constituting a crime, or refrain from doing an act which he is officially required to do in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by him personally or though mediation of another, or who shall accept gifts offered to him by reason of his office;

4. Graft and Corruption – as understood under the Anti-Graft and Corrupt Practices Act (RA 3019), is an act which includes receiving any gift in connection with any transaction wherein the public officer in his official capacity has to intervene under the law, or giving any private party any unwarranted benefits through manifest partiality, evident bad faith or gross inexcusable negligence;

5. Other High Crimes – offenses which like treason and bribery, are of so serious and enormous a nature as to strike at the very life or the orderly workings of the government;[4] and

6. Betrayal of Public Trust – catch-all to cover all manner of offenses unbecoming a public functionary but not punishable by the criminal statutes, like inexcusable negligence of duty, tyrannical abuse of authority, breach of official duty by malfeasance or, misfeasance, cronyism, favoritism, obstruction of justice.[5]

Unlike criminal offenses or administrative wrongdoings, there is no exclusive enumeration of acts which would constitute impeachable offenses because some of the impeachable offenses do not have strict definitions. The impeachable offenses of “bribery,” “graft and corruption” and “treason” are clearly defined in criminal law books while the meanings of the terms “high crimes,” “betrayal of public trust”, and “culpable violation of the Constitution,” are not exact and “by their nature, cannot be decided simply by reliance on parsing criminal law books”.[6] Although these three grounds for impeachment may be considered “nebulous”, all are considered to pertain to “fitness for public office”, the determination of which allows the exercise of discretion.[7]

The Constitution gives the exclusive power to determine whether or not a public officer’s acts are impeachable offenses to Congress, with the authority to impeach belonging to the House of Representatives and the authority to convict, if warranted, belonging to the Senate.

It is said that the impeachment proceedings involves a political question. This is so because Congress is not only meant to scrutinize the legality of the assailed acts or conduct of the public officer but to examine the wisdom of these as well, in particular, whether or not these acts render the public officer unfit for office and would cause harm to the social structure.[8] Indeed, the impeachment proceedings involves a question of policy, i.e., those issues which, under the Constitution, are to be decided by the people in their sovereign capacity in regard to which full discretionary authority has been which, under the Constitution, are to be decided by the people in their sovereign capacity in regard to which full discretionary authority has been delegated to either the Legislature or Executive branch of the government. It is concerned with the wisdom, not with the legality, of a particular act or measure.[9]

According to Alexander Hamilton, impeachable offenses must proceed from abuse or violation of some public trust and must “relate chiefly to injuries done immediately to society itself.”[10] These political offenses should be of a nature, which, with peculiar propriety, would cause harm to the social structure.[11] In the end, the test may be whether the public officer’s acts or misconduct necessarily interfere with the performance of his or her official duties or constitute an unacceptable risk to the public so as to constitute an impeachable offense.[12] As such, it can be said that the impeachment proceedings determines the social acceptability of a public officer’s acts and its purpose is to remove seriously unfit public officials to avoid injury to the nation[13] and ,thus, it has been called a “method of national inquest into the conduct of public men.”[14]

Having discussed the basics of Impeachment, the particular eight (8) Articles of Impeachment in the complaint filed against Chief Justice Corona—which used the two (2) grounds of “betrayal of public trust” and “culpable violation of the Constitution”— will be shortly discussed below.

Why is Respondent Corona alleged to have been partial to Gloria Arroyo from the time he was appointed as Justice through his appointment as Chief Justice and up to the present time? May these acts or is his conduct as Supreme Court Chief Justice be considered as betrayal of public trust?

Sec. 15, Article VII of the Constitution clearly prohibits the President from making appointments within 2 months immediately before the next Presidential election as affirmed in the previous case of In Re: Appointments of Valenzuela and Vallarta as RTC Judges.[15] However, in the case of De Castro vs. JBC and President Arroyo[16] which was enunciated in 2010, the Supreme Court oddly reversed the ruling and held that the prohibition does not apply to the Members of the Supreme Court. Despite the obviously negative and confidence-shattering impact of the “midnight-appointment”, respondent Corona accepted his midnight appointment as Chief Justice by then President Gloria Arroyo.

A tabulation of the voting record of respondent Corona will show that he has consistently sided with the Arroyo administration in 15 politically-significant cases[17] involving the Arroyo government’s frontal assaults on constitutional rights prior to his appointment and even during his term as Chief Justice of the Supreme Court. Among others, respondent Corona concurred in the Supreme Court ruling that President Aquino’s order creating the Truth Commission was unconstitutional (Biraogo vs. Philippine Truth Commission) and in the Supreme Court decision stopping the Aquino administration from revoking the appointment of Arroyo’s alleged midnight appointees (Bai Omera D. Dianalan-Lucman vs. Executive Secretary Ochoa). However, in cases involving Arroyo, respondent Corona dissented in the Supreme Court decision declaring Arroyo’s Presidential Proclamation 1017, which put the country under a state of national emergency in 2006, as partly constitutional and partly unconstitutional (David vs. Gloria Macapagal-Arroyo), and in the Supreme Court decision declaring that the tapped conversations between Arroyo and Election Commissioner Garcillano was not prohibited from broadcast (Chavez vs. Gonzales).

Is Corona, as Chief Justice of the Supreme Court and public officer, covered by the requirement of disclosure of his statement of assets, liabilities, and net worth under Sec. 17, Art. XI of the 1987 Constitution? Is his failure to do disclose his SALN a culpable violation of the Constitution and a betrayal of public trust?

Article XI, Section 17 of the Constitution states that “a public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.” This requirement covers Corona. However, respondent Corona failed to disclose to the public his statement of assets, liabilities, and net worth as required by the Constitution in violation of the Anti-Graft and Corrupt Practices Act. Respondent Corona is also suspected of having accumulated ill-gotten wealth, acquiring assets of high values and keeping bank accounts with huge deposits, among others, a 300-square meter apartment in the Fort in Taguig.

What is the standard of competence and conduct applicable to members of the judiciary of the Supreme Court? Did Corona fail to meet this standard?

Is this tantamount to culpable violation of the Constitution and/or betrayal of public trust?

Sec. 7, Art. VIII of the Constitution provides that a member of the Judiciary must be a person of proven competence, integrity, probity, and independence.

Respondent Corona was appointed by Mrs. Arroyo as Chief Justice of the SC. Previously, respondent served Gloria Arroyo as her Chief-of-Staff and Spokesperson when the latter was Vice-President, Presidential Chief-of-Staff, Presidential Spokesman, and Acting Executive Secretary when she was President. In the following instances, respondent Corona failed to meet the standard required of a member of the judiciary.

A. Flip-flopping rulings in the case of FASAP vs. PAL

In several cases, Respondent Corona showed his partiality especially in the flip-flopping of the Corona Court in the case of FASAP vs. PAL –the recall of the 7 September 2011 Decision denying a Second Motion for Reconsideration of the 2008 ruling in favor of FASAP, acting upon a mere letter from PAL’s counsel Atty. Estelito Mendoza (who is a private counsel of Gloria Arroyo) and without requiring a comment from or notice to the other parties. Respondent Corona caused and allowed the violation of the adverse party’s constitutional right to due process under his watch and without any measure of remorse. This betrays respondent Corona’s lack of ethical principles and leadership and has further eroded the faith of the people in the Judiciary.

B. Mrs. Corona’s appointment as Board of Camp John Hay

Respondent Corona also compromised his independence as magistrate when his wife, Cristina Corona, accepted an appointment from then President Gloria Arroyo to the Board of the John Hay Management Corporation (JHMC), a government owned and controlled corporation (GOCC). This, despite the clear directive provided under Sec. 4 of the Code of Judicial Conduct which provides that “Judges shall not allow family, social, or other relationships to influence judicial conduct or judgment.”[18] Several complaints were filed against Mrs. Corona by her fellow JHMC Board members because of acts of misconduct and negligence. However, the complainants were removed by then President Arroyo from office while Mrs. Corona was promoted as OIC Board Chair of JHMC.

C. Discussing privately with litigants in the Vizconde Case

Respondent Corona also failed to maintain the high standard of independence and propriety when he discussed a case pending before the Supreme Court with one of the parties therein, to wit, People of the Philippines vs. Lejano (Vizconde Massacre Case),[19] thereby breaching the rule on confidentiality. Worse, Respondent Corona intrigued against the honor and integrity of a fellow Supreme Court Justice as allegedly lobbying for the acquittal of Hubert Webb, in violation of Sec. 3(k) of the Anti-Graft and Corrupt Practices Act which prohibits any official from divulging valuable information of a confidential character acquired by his office or releasing such information in advance of its authorized release date. In another case, to wit, Inter-petal Recreational Corporation case,[20] Respondent Corona displayed unethical conduct when he met ex parte with the lawyer of a party to the case in connection with a case pending before him.

Did Corona betray the public trust by encroaching upon the powers of Congress, particularly the House of Representatives, in violation of the Principle of Separation of Powers by allowing the issuance of a “Status Quo Ante” order against the House of Representatives in the case concerning the impeachment of then Ombudsman Merceditas Navarro-Gutierrez?

Respondent Corona railroaded the proceedings in the Guttierez case in order to have a Status Quo Ante Order issued in her favor. As stated in Justice Sereno’s dissent, most of the Supreme Court justices received the Petition after the deliberations, while three (3) justices (Velasco, Bersamin and Perez) who voted to issue the Status Quo Ante Order received the petition a day after the status quo ante order had already been granted. The issuance of this TRO violated the principle of separation of powers since the Supreme Court effectively prevented the House from initiating impeachment proceedings which power falls under the latter’s exclusive jurisdiction.

In the cases involving the 16 newly-created cities, and the promotion of Dinagat Island into a province, where he decided in favour of gerry-mandering, did he violate the Principle of Res Judicata? Is this a culpable violation of the Constitution?

Respondent Corona, by allowing the reversals of several supposedly final judgements of the Supreme Court (called “flip-flopping”), violated the principle of the immutability of final judgments. The principle of immutability of final judgments is one of the primordial rules for having a credible and effective system of administration of justice. These reversals were supposedly instigated through personal letters or ex-parte communications addressed to the Respondent Corona, particularly in the following cases: (1) the League of Cities v. COMELEC[21] case involving the creation of 16 new cities; (2) the case of Navarro v. Ermita[22] which involved the promotion of Dinagat Island from municipality to province; and (3) the case of FASAP v. Philippine Airlines, Inc., et al.[23]

Did Corona unjustly arrogate to himself and to a committee he created the authority and jurisdiction to investigate an alleged erring Member of the Supreme Court which power is vested by the Constitution in the House of Representatives via impeachment? Is this a betrayal of public trust?

It was alleged that in the Vinuya vs. Executive Secretary[24] Decision concerning the plight of the surviving Filipino “comfort women” during the Japanese occupation, rampant plagiarism was committed by the ponente, Associate Justice Mariano del Castillo. It appears that, Respondent Corona formed an Ethics Committee for the purpose of determining the culpability of the Supreme Court Justice – an impeachable officer. Very clearly, respondent had no power to do this since under the Constitution, the power to make accountable impeachable officers belonged exclusively to the House of Representatives. Thus, Respondent betrayed the public trust by arrogating unto himself, and to a Committee he created, the authority and jurisdiction to investigate and to subsequently exonerate the said Supreme Court Member.

Did Corona show partiality (i) in granting a Temporary Restraining Order (TRO) in favor of former President Gloria Macapagal-Arroyo and her husband Jose Miguel Arroyo and (ii) in distorting the Supreme Court decision on the effectivity of the TRO despite a clear failure to comply with the conditions of the Supreme Court’s own TRO?

The Supreme Court, under Respondent Corona, immediately acted upon the Petition filed by Mrs. Arroyo and granted her request for a TRO despite the fact that there are clear inconsistencies in the latter’s petition. In view of certain objections against the grant of the TRO, a holding of a hearing within the short period of five (5) days was recommended. Despite this recommendation, Respondent Corona engineered a majority of 8 votes (as against five dissenters) for the immediate grant and issuance of the TRO in favor of Mrs. Arroyo and her husband, in blatant violation of the Supreme Court’s own internal rules.

Further, despite the conditions laid down by the SC for the issuance of the TRO, Respondent allowed its issuance notwithstanding the fact there was non-compliance with an essential pre-condition therein, particularly Condition No. 2, to wit: “The petitioners shall appoint a legal representative common to both of them who will receive subpoena, orders, and other legal processes on their behalf during their absence. xxx.” The Special Power of Attorney dated 15 November 2011 which they issued to their counsel failed to state that their counsel had the power to receive subpoenas, orders and other legal processes. Instead, they only empowered their counsel to “produce summons or receive documentary evidence.” The Supreme Court, by a vote of 7–6, found that there was no compliance with the second condition of the TRO. Consequently, for failure to comply with an essential condition for the TRO, the TRO is not effective. Surprisingly, however, the SC decided that the TRO was effective despite non-compliance with an essential condition of the TRO.

Did Corona, as the Chief Justice of the Supreme Court, fail and refuse to account for the Judiciary Development Fund (JDF) and Special Allowance for the Judiciary (SAJ) collections thereby committing Graft and Corruption? Is this a betrayal of public trust?

Respondent Corona has reportedly failed and refused to report on the status of the JDF Funds and the SAJ collections. Respondent Corona supposedly also failed, as Chief Justice, to account for funds released and spent for unfilled positions in the judiciary and from authorized and funded but not created courts. In particular, the annual audit report of the Supreme Court of the Philippines contained the observation that unremitted funds to the Bureau of Treasury amounted to P5.38 Billion. Further, the Special Allowance for the Judiciary along with the General Fund, and Judiciary Development Fund in the amount of P559.5 Million were misstated resulting from delayed and/or non-preparation of bank reconciliation statements and non-recording /uncorrected reconciling items.

The general grounds for impeaching a public official (as provided under the Constitution) and the specific articles of impeachment will subsequently be discussed more elaborately.

The materials posted here may be summaries of team outputs or of works of other authors (properly recognized) on the matter of Impeachment. The information materials on the impeachment process and on the impeachment case against Chief Justice Renato Corona seek to educate the people on the bases for the complaint and to give updates regarding the trial at the Senate. The ultimate objective of this forum is to assist the people as they participate in this process of making the Supreme Court and its Members accountable to the people, regardless of the outcome of the trial.

*** A lawyer by profession, AKBAYAN Rep. Kaka Bag-ao was the Convenor of the Alternative Law Group (ALG), a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.


[1] Sec. 1, Article XI of the Constitution.

[2] Castillo vs. Bellosillo, 354 SCRA 641.

[3] Deliberations on the 1987 Philippine Constitution

[4] Deliberations on the 1987 Philippine Constitution.

[5] Cruz, Isagani. Philippine Political Law. 1996 Edition. Central Lawbook Publishing Co., pp. 334-336.

[6] Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003, citing Akhil Reed Amar, “On Impeaching Presidents,” Hofstra Law Review, Winter 1999, Vol. 28, No. 2.

[7] Ibid.

[8] Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003, citing Arthur M. Schlesinger, Jr., “Reflections on Impeachment,” The George Washington Law Review, Vol. 67 (1999).

[9] Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003, citing Tañada vs. Cuenco, 103 Phil 1051.

[10] Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003, citing Stephen B. Presser, “Would George Washington Have Wanted Bill Clinton Impeached?”, The George Washington Law Review, Vol. 76, 1999.

[11] Copied verbatim from Supra, Footnote 15

[12] Phrasing copied from Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003.

[13] Footnote No. 20, Justice Vitug’s Separate Opinion in Francisco, Jr. vs. House of Representatives, GR No. 160261, November, 2003

[14] By the framers of the Constitution of the United States of America from which the Philippines modelled its own Constitution and Impeachment Proceedings; As quoted in Justice Vitug’s Separate Opinion in the case Davide Impeachment, citing Michael Nelson, ed., “The Presidency A to Z,” Washington D.C. Congressional Quarterly (1998)

[15] 298 SCRA 408.

[16] GR No. 191002, 191032, 191057, A.M. 10-2-5-SC, GR No. 191149, 191342, 191420, 17 March 2010.

[17] Track Record of Respondent Corona’s Voting Pattern in 10 Cases involving Arroyo

  1. Information Technology v. COMELEC and Mega Pacific (January 13, 2004)
  2. Sanlakas v. Executive Secretary (February 03, 2004)
  3. Tecson v. COMELEC (March 03, 2004)
  4. Pimentel v. Ermita (December 13, 2005)
  5. Senate v. Ermita (April 20, 2006)
  6. Gudani v. Senga (August 15, 2006)
  7. Lambino v. COMELEC (October 25, 2006)
  8. David v. Arroyo (May 03, 2006)
  9. Chavez v. Gonzalez (February 15, 2008)
  10. Neri v. Senate (March 25, 2008)
  11. Akbayan v. Aquino (July 16, 2008)
  12. Benigno Simeon Aquino III v. COMELEC, G.R. No. 189793 (April 7, 2010)
  13. Biraogo vs. Philippine Truth Commission (G.R. No. 192935, December 7, 2010)
  14. Bai Omera D. Dianalan-Lucman vs. Executive Secretary (G.R. No. 193519, October 12, 2010)
  15. Gloria Arroyo vs. Leila de Lima (G.R. No. 199046, November 15, 2011)

[18] Sec. 4, Canon 1, Code of Judicial Conduct.

[19] G.R. No. 176864, December 14, 2010.

[20] G.R. No. 186711.

[21] League of Cities v. COMELEC, supra.

[22] G.R. No. 180050, April 12, 2011.

[23] G.R. No. 178083 in relation to Administrative No. 11-10-1-SC.

[24] G.R. No. 162230, April 28, 2010.

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Legal Notes – Making Sacred Cows Accountable: Impeachment as the most Formidable Weapon in the Arsenal of Democracy

Legal Notes of Representative Kaka J. Bag-ao, AKBAYAN Partylist

Making Sacred Cows Accountable: Impeachment as the most Formidable Weapon in the Arsenal of Democracy

What is an impeachment? Was the Constitutional process fully complied with regards the impeachment complaint filed by the 188 members of the House of Representatives against Supreme Court Chief Justice Renato Corona?

The Philippine democracy, young as it is, has weathered several challenges and has also given rise to a few innovations, so to speak. Among the more important ones is the concept and practice of “people power” which more than 25 years ago helped give back the power to the Filipino people and gave birth to the 1987 Philippine Constitution. Since then, despite certain weaknesses in the fundamental law and unfortunate abuse by officials, both appointed and elected, Philippine democracy has been “tried and tested” and constantly emerged victorious, embattled but reinforced. The cornerstone of this democracy is the fact that the electorate, the Filipino people are always considered to be the ultimate source of power and that public welfare is the be all and end all for all public officials. Thus, breaking the public trust, even by the highest officials of the land had always been met not only by criticism but by reformatory action, which although considered drastic is always within bounds of the law and supported by the people themselves.

We are at such a challenging juncture again, with the three departments of the government being required to step up to defend democratic institutions and more importantly, to draw the lines clearly on accountability and public service vis-à-vis impunity and blind obedience to sacred cows. The people endured almost a decade of discontent and have been ready to put a stop to the abuse of the system but roadblocks have apparently been left within our democratic institutions to deter change and perpetuate impunity. So, the public officials who wield the power must stand up to represent the people and act in their behalf. That, after all, is what we are here for: to represent the people because of the possible triumph of these actions within the bounds of justice and the law and despite the possible risks of taking unpopular actions against the powerful who refuse to be accountable.

That is what the impeachment process is all about, nothing more, nothing less. The House of Representatives is taking part in, leading this affront against a public official to make him answer to the people questions about his loyalties and capability of serving the public. It is not about disrespect for the judiciary, a co-equal branch which has time and again proven to be the most credible and which had held the torch for our nation and people throughout dark times. It is, in fact, about protecting that institution which e all revere and look to for firm guidance and resolute ascendancy. So, let no one be mistaken. We are supporting the efforts to purge the judiciary of powerful officials who denigrate the concept of public trust and we do this with the Constitution as our only non-negotiable guiding force and its provisions on Public Trust and Impeachment as our most formidable weapon. We are not looking for petty, baseless, unnecessary battles. We are fighting for the very reasons why our democracy survived. If the Chief Justice proves himself obedient to his oath and to be subservient only to the public trust, then all the better. After all, our only foe are public officials who refuse to abide by the fundamental law and to serve the people with independence and integrity.

What is impeachment?

Impeachment is a remedy sanctioned by the 1987 Constitution[1] for removing the President, the Vice-President, the Members of the Constitutional Commissions, the Ombudsman, and for purposes of this discussion, the Members of the Supreme Court. As the last bulwark of justice, the Supreme Court exists to administer justice and thus promote the unity of the country, the stability of government, and the well-being of the people.[2]

How is an impeachment initiated?

The House of Representatives shall have the exclusive power to initiate all cases of impeachment based on the following three (3) modes, to wit:

1. A verified complaint for impeachment filed by any Member of the House of Representatives;

2. A verified complaint for impeachment filed by any citizen upon a resolution of endorsement by any Member of the House of Representatives;

In both modes, the complaint shall be included in the Order of Business and referred to the proper committee for a hearing. By a majority vote of all its Members, it shall submit its report to the House. A vote of at least one-third of all the Members of the House may affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution.

3. A verified complaint or resolution of impeachment filed by at least one-third of all the Members of the House.

In the third mode, the complaint or resolution shall constitute the Articles of Impeachment, and the trial by the Senate shall proceed. Unlike the first two (2) modes, there is no need for a plenary discussion of the complaint in the House of Representatives.

The Senate shall have the sole power to try and decide all cases of impeachment. The concurrence of a two-thirds vote of all the Members of the Senate is necessary to convict the respondent. Its judgment shall not extend further than removal from office and disqualification to hold any public office.

Was the initiation of the impeachment process in the House of Representatives railroaded?

No, it was conducted in accordance with the constitution and after compliance with the procedures therein. It should be borne in mind that the impeachment process is a political process. However, it does not necessarily mean that this particular impeachment effort was motivated by partisan politics or by ulterior motives on the part of the legislators who supported it.

The verified impeachment complaint against Chief Justice Corona, which was filed on 12 December 2011, was signed by 188 Members of the House of Representatives who come from different parties, with the common goal of pursuing accountability from our public officers who hold their post in public trust. The concurrence of more than the required one-third vote of all the Members of the House of Representatives automatically constituted the verified complaint as the Articles of Impeachment in accordance with the third mode cited above.

It is to be noted that the complaint against Chief Justice Corona differs from the previous impeachment complaint filed against former Ombudsman Merceditas Guttierez which was filed by Risa Hontiveros and endorsed by Representatives from the Akbayan Partylist. The latter complaint apparently used the second mode of impeachment process, hence the need to duly refer the complaint to the Justice Committee of the House of Representatives for proper deliberations.

It is not true that legislators were forced to assent to this or were lured with pork barrel funds to do so. This impeachment was carefully studied and the legislators supporting it are under the belief that an independent and competent Supreme Court deserves a Chief Justice who is subservient to no one else but the law and the people. To stand by and watch while the final arbiter of the law deteriorates and the Supreme Court loses credibility and integrity would be contrary to our sworn duty as legislators to look after the people’s welfare.

The successful impeachment proceedings at the House show that our Constitution is working and that the system of checks and balances among the three branches of government is in place. The impeachment proceeding was done for the very purpose of protecting our democratic institutions for which purpose, unfortunately, Chief Justice Corona failed to contribute. The impeachment trial at the Senate will help educate our people regarding democracy, the duties of public officials and will show them that there are legal means to remove officials of questionable integrity from office and to seek accountability.

*** A lawyer by profession, AKBAYAN Rep. Kaka Bag-ao was the Convenor of the Alternative Law Group (ALG), a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.


Section 2-3, Article XI, 1987 Constitution.

[2] Preamble, Code of Judicial Conduct.

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SPONSORSHIP SPEECH – HR 1411

SPONSORSHIP SPEECH – HR 1411

Rep. Kaka J. Bag-ao, AKBAYAN Partylist

Committee on Aquaculture and Fisheries Development

November 23, 2011

 

Magandang hapon po sa inyong lahat.

Last May 10, 2011, I delivered a privilege speech on the inadequate protection being given to our fisherfolks.

As I have previously stated in my privilege speech, the Philippines, as an archipelago, has very rich and abundant marine and aquatic resources.  This has made us among the world’s 40 largest fish producing countries, providing a livelihood to more than two million Filipinos. In fact, data shows that fisheries contribute around 4.3 % of our GDP and 18% of the gross-value added. It is also one of the Filipino’s main sources of food, second only to rice.

Despite these crucial factors which highlight the importance of the fishing industry, our fisherfolk sector remains to be one of the poorest among the poor and continues to confront major problems such as the issue of tenurial security.  More than 60% of the people residing in coastal areas are at risk of strong wave surges and typhoons or being claimed by individuals. Traditional routes to fishing grounds, areas for seaweed and fish drying are being privatized and commercialized resulting to displacement of municipal fisherfolks.

The fisherfolks however are not without protection regarding displacement.  Sec. 108 of RA 8850 mandates the government to establish and create fisherfolk settlement areas in coordination with concerned agencies of the government, where certain areas of the public domain, specifically near the fishing grounds, shall be reserved for the settlement of the municipal fisherfolk.

Unfortunately, even after thirteen years from the enactment of the law in 1998, the Department of Agriculture, through the Bureau of Fisheries and Aquatic Resources failed to issue the proper implementing rules to implement the spirit of Section 108.

In my recent consultation with our fisherfolks, I was informed of instances that emphasize the immediate need to implement Section 108 and finally protect them from displacement.  Nanay Rosing from Zambales came home one day and was informed that the land she calls home for her entire life is not hers and was now sold to someone from Quezon City.  Another fisherfolk said that they were removed from their residences near the coast because it was supposedly dangerous without however, providing them a viable settlement where they can continue with their livelihood with similar ease and accessibility.  In fact, this lack of viable settlement and non-implementation of Section 108 may have forced some fisherfolks to set up houses along danger zones.

Mga kasamahan kong mambabatas, our fisherfolks are not asking to be granted new rights. They are merely asking for the implementation of the rights long been granted to them by the Constitution.  Section 7, Article XIII of the 1987 Constitution mandates the State to protect the rights of subsistence fishermen, especially of local communities, to the preferential use of local marine and fishing resources, both inland and offshore.  The right of fisherfolks to land tenure also finds basis not only in RA 8550 or the Fisheries Code of 1998 but also in RA 7160 or the Local Government Code and RA 7279 or the Urban Development and Housing Act. Despite this fact, our fisherfolks are still saddled with problems on land tenure and displacement which should have long been remedied by the aforementioned laws.

Fellow lawmakers, the laws that we enact, how noble they may be, are rendered useless if they will not be implemented. With this hearing, we hope to propose a solution to this vacuum in our system of delivering basic services to our underprivileged sectors.

Maraming salamat!

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Upholding the Rule of Law or the Rule of Men? (on the SC recall of its FASAP decision)

Upholding the Rule of Law or the Rule of Men? (on the SC recall of its FASAP decision)

Legal Notes of Kaka J. Bag-ao

AKBAYAN Representative

          It has been said that the Supreme Court is the last bulwark of constitutional rights and liberties. But, what happens when the Supreme Court itself transgresses these very rights that it is duty-bound to protect?

The Supreme Court is vested with the power to protect the Constitutionally guaranteed rights of the citizens and provide a redress of wrongs for violations of such rights.  However, the recent decision of the Supreme Court to recall the final and executory judgment in the case between the Flight Attendants and Stewards Association of the Philippines (FASAP) and the Philippine Airlines (PAL) has placed the integrity of the High Court in question.

 

Dissecting the FASAP Case 

The FASAP case has been ongoing for more than thirteen years already starting from 1998 when 1,400 flight attendants were retrenched by PAL.  In 2008, the retrenchment was declared illegal by the Supreme Court. PAL’s first Motion for Reconsideration was denied by the Court in 2009 and its Second Motion for Reconsideration was denied with finality last September 2011.

In an unusual turn of events, the Supreme Court issued a Resolution recalling its second Resolution on the basis of letters sent by PAL’s counsel, Estelito Mendoza.

It must be emphasized that this unexpected development is fraught with more procedural irregularities other than the mere recall of an already final and executory Resolution.  As a member of the legal community, this case has far more damaging implications to our judicial system.

Despite its previous pronouncement that no further pleadings will be entertained, the Supreme Court nonetheless accepted the letters of PAL’s counsel and used them as the subject of a separate administrative proceeding.  To note, the main case is under G.R. No. 178083 but the letters were discussed under Administrative No. 11-10-1-SC.  This creates a very dangerous precedent.

First, the Resolution did not state any justifiable reason for the recall. While the Supreme Court, during its presscon, stated that the recall was due to the fact that it was issued by a wrong division, this never appeared in the Resolution recalling the second Resolution. Nevertheless, the flimsy excuse that it was decided by a wrong division cannot be accepted because the decision of a division is a decision or resolution of the Supreme Court itself. Thus, the Resolution, regardless if it was issued by a wrong division, is still a decision of the Supreme Court itself and thus, valid.

In fact, in a different case involving NUWHRAIN-APL-IUF, the employees union of Dusit Hotel Nikko, the Supreme Court was more than willing to brush aside not only a procedural lapse but a violation of the Constitution when the division which resolved the Motion for Reconsideration was made up of only four justices instead of five and that the division reversed a well established doctrine of labor law which falls within the exclusive power of the Court sitting en banc as provided by Section 4, Article VIII of the 1987 Constitution.  Despite these grave violations of the Constitution, the Supreme Court refused and continues to refuse to rectify these irregularities.  Whereas, in the case of PAL where the infraction was insignificant, the Court was quick to act.  Why the double standard?

Second, the recall of the second Resolution in G.R. No 178083 was done under Administrative Matter (AM) No. 11-10-1-SC which is an entirely different proceeding.  The letters sent by PAL’s counsel were seeking for only one request – be advised on the names of the members of the Court who deliberated and voted on the Resolution denying PAL’s Second Motion for Reconsideration.  The letters were bereft of any statement regarding the authority of the division to issue the Resolution.  Thus, being merely an administrative proceeding, the Supreme Court should have acted in its administrative capacity and should have limited the discussion on whether to advise PAL’s counsel on the names of the members of the Court who deliberated and voted on the Resolution. It cannot touch upon the final Resolution in G.R. No 178083 which is an entirely separate case, unless both are consolidated.

Further, the recall of a judgment is no longer an administrative function but an exercise of judicial power which cannot be the subject of a mere administrative proceeding. According to the internal rules of the Supreme Court, administrative matters include disciplinary actions, transfer of judges or cases, amendment or revocation of administrative circulars issued by the Court, policy consideration, matters involving the JBC and PHILJA and other similar acts.  Clearly, the administrative functions are those related to the general supervision and administration of the judiciary.

The recall of Resolutions is not one of the administrative functions of the Court which may be the proper subject of an administrative proceeding.  It is already an exercise of judicial power.  It would have been different if what was involved is merely the transfer of the case from one division to another.  However, in the case of FASAP, there was already a final resolution on the matter, which as previously discussed is considered as a Resolution of the Supreme Court itself, regardless of which division rendered it.  The Supreme Court cannot violate the established rules of procedure just to rectify a previous deviation from its internal rules. In popular parlance, two wrongs don’t make one right.

Third, neither PAL nor the Supreme Court can claim that the alleged deviation from the internal rules of the court with regard to the composition of the division will have dire consequences on the interest of PAL.  It must be emphasized that the Second Motion for Reconsideration which it filed before the Third Division is already a prohibited pleading under Section 2, Rule 52 of the Rules of Court and under a myriad of jurisprudence. Further, the first Resolution explicitly stated that “no further pleadings will be entertained.” Nonetheless, the Supreme Court still entertained PAL’s Second Motion for Reconsideration. With the denial of the Second Motion for Reconsideration, the doubts of FASAP on the Court were quickly eased. However, in less than just a month, the Supreme Court recalled the Resolution and reopened the case again on the basis of letters from PAL’s counsel. This, in effect, is already a Third Motion for Reconsideration on the case. To this we ask, when does a case really end?

Applicable is the landmark case of Tolentino v. Ongsiako, et al (GR No. L-17938, April 30, 1963) which stated that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final and irrevocable at some definite date fixed by law. Interes rei publicae ut finis sit litium.

The recall of the second Resolution is a major setback not only for the retrenched employees but for our judicial system as well.  With this case already forming part of our judicial system, what can stop parties or their lawyers from employing stratagems or maneuverings, in the guise of letters or endless Motions for Reconsiderations, in order to delay the termination of cases? Unless the Supreme Court recognizes that it made a mistake in recalling the second Resolution, nothing will.

Finally, the recall of the Resolution was issued ex-parte or without granting the other party an opportunity to contest the letters filed by PAL’s counsel.  Considering that the previous Resolution already vested rights on the members of FASAP who have long been waiting for justice, fairplay dictates that they should at least have been given a chance to dispute the letters of PAL’s counsel which they were never granted.

 

Rule of Law or Rule of Men?

With the Supreme Court’s controversial recall of the Resolution, one cannot help but ask this question: Are we really governed by the rule of law or the rule of men?

If the rule of law was upheld, fairness and equity dictate that the case should have ended after the denial of the FIRST Motion for Reconsideration in 2008 or more than three years ago.  However, that is not the case. One only needs to consider this fact to answer the question: the employees waited for more than a year before the Court dismissed the Second Motion for Reconsideration while their employer PAL only had to wait for a month to have the same recalled through an unusual power of a mere letter.

After having said this, the answer to the question of whether we are governed by the rule of law or rule of men becomes very much obvious and does not necessitate articulation. Res ipsa loquitur.

Sadly, the words of the second Resolution which stated that “the [Court] is duty-bound to finally put an end to the illegality that took place, otherwise, the illegally retrenched employees can rightfully claim that this Court has denied them justice” are now reduced to empty rhetoric and an eloquent example of irony.

 

*** A lawyer by profession, AKBAYAN Representative Kaka J. Bag-ao was the Convenor of the Alternative Legal Group, a network of NGOs providing legal support to marginalized communities. She was the legal counsel of the Sumilao farmers.
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