Thursday, September 13, 2007

What Is Fair Has Just Priority Over What Is Good

OR: The True Limits of Supreme Court Power

"The Constitution means what the Supreme Court says the Constitution means."

In my opinion, the above statement is true, but only within the well defined judicial domain of the Supreme Court, which is admittedly a vast archipelago of awesome powers defined in so many more words in the 1987 Constitution Article on the Judicial Branch of the government.

Unfortunately, many people erroneously believe that the Supreme Court can decide ALL cases involving Constitutional issues. But there are significant exceptions to the jurisdiction of the Supreme Court, legal cases over which the Supreme Court has no jurisdiction -- not even judicial review, namely, those cases involving the removal by impeachment of Constitutional Officers, mentioned in Article XI of the 1987 Philippine Constitution on the Accountability of Public Officers:
Section 1. 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.

Section 2. 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. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(6) 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.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.
The Constitution clearly provides that no Constitutional Officer may be removed by impeachment except by the lawful action of the Congress first by the House to initiate, next by the Senate which has "the SOLE power to TRY and DECIDE all cases of impeachment" .

This sounds like the JUDICIAL FUNCTION associated with the lawful and orderly removal of ANY Constitutional officer actually resides entirely and exclusively in the Senate constituted as a very special body called a Senate Impeachment Court. So that that if we were seeking a place in the Constitution where the wall of Separation of Powers between the Legislature and Judiciary would be self-evident, like a geological formation, we have found it in the assignment of impeachment cases entirely to the Political department of the government, specifically the Philippine Senate.

Whenever the Senate is constituted as a SPECIAL IMPEACHMENT COURT, it outranks and out-rules even the Supreme Court itself in jurisdiction over the case(s) before it. The VERDICT of the Senate in all cases of impeachment is FINAL and EXECUTORY and cannot be appealed, not even to the Supreme Court.

Should Ben Abalos, for example, be impeached in the House for breach of public trust in matters like the ZTE National Broadband Network scandal, and the Automated Election Counting Machines bid-rigging scandal, and then tried and convicted or acquitted in the Senate trial, such decision could not then be appealed, not even to the Supreme Court.

Unlike the molasses-like pace at which Justice is usually dispensed by the Supreme Court, impeachment cases would have the satisfactory conclusion of being final, and not subject to appeals and judicial cases with a nearly infinite half-life in our Judicial System.

For some reason not found in the Constitution, the Senate Impeachment Trial of then President Joseph Estrada which began in the first week of December, 2000, abruptly ended on 20 January 2001, becoming largely moot and academic upon the swearing in on that date of then Vice President Gloria Macapagal Arroyo, by the Chief Justice of the Supreme Court Hilario G. Davide Jr., under the watchful eyes and guns of General Angelo T. Reyes, Chief of Staff of the AFP who had just declared a mutiny with his entire General Staff the day before. Edsa Dos was a military backed coup d'etat that succeeded but was not recognized as such by the Supreme Court, which has instead elevated to Constitutional hallowed ground the idea that the Philippine Military may, from time to time , legally "withdraw support" for the Commander in Chief, as it pleases the Chief of Staff and whoever might support him or her,

REGIME CHANGE occurred in the Philippines not as the result of a Presidential election but a physical and legal event which occurred on Saturday, 20 January 2001, slightly past noontime, at a religious shrine along EDSA near a famous shopping mall. Aside from the newly sworn in President were her conspirators--the Chief of Staff of the Armed Forces of the Philippines and the Chief Justice of the Supreme Court -- who effected an admittedly peaceful but utterly illegal REGIME CHANGE -- thus giving the crowd Barrabas but making of Joseph Estrada, the most implausible but recognizably Filipino Hesu Kristo.

Now it is a curious and beguiling fact that both Chief Justice and AFP Chief were there upon the invitation of the Vice President, who had claimed in a faxed letter to the Supreme Court less than an hour before swearing in at the Edsa Shrine, that the President Joseph Estrada was permanently incapacitated. Permanent incapacity was a perfectly valid reason for the Chief Justice to swear in the Vice President as President, and it helped that the AFP Chief had mutinied the day previous and defected. It is just as good as if Erap had voluntarily resigned, or had died, or had been impeached, convicted and removed from office.

However, three months later, in March, 2001, the Supreme Court corrected itself, and ruled that Erap was not permanently incapacitated at all on 20 January 2001, but could be construed and deemed to have validly and voluntarily resigned, ( illogically after knowing for sure he would be acquitted at impeachment trial. "Voluntariness" is of course the essence of a valid resignation, otherwise we would call it a forced resignation, tantamount to an illegal ouster.

So I think future scholars cannot skirt the observation of Alan Paguia that because Erap was not in fact permanently incapacitated when GMA was sworn in by Davide, the assumption to power was void ab initio. Moreover, it seems patently derelict of duty and a gross violation of the explicit provisions of the Constitution for the Supreme Court to have "decided" that they could authorize the Chief Justice to swear in the Vice President as President in the middle of the Senate Impeachment Trial -- no matter how many people were on the streets.

One does not have to be a Constitutional expert or even a lawyer to comprehend the telling dishonesty in this. After all, it could not have escaped the judicial and physical notice of the Justices that the President was then under Senate Impeachment Trial and that the Senate had the sole power to decide Erap's fate.
They did not even bother to pick up the telephone to call the Palace and ask IF the President was indeed permanently incapacitated.

The Supreme Court USURPED the sole power of the Senate to decide the Impeachment case against then President Joseph Estrada in a clear and culpable violation of the above quoted passages of the Constitution on the Accountability of Public Officers. By swearing in the Vice President as President, the Senate Impeachment trial became moot and academic.

I guess I belong to the school of thought that regards every democratic Constitution, such as the 1987 Philippine Constitution, as a highly special piece of English Composition that also happens to be a duly ratified Social Contract which is presently in force and binds all citizens, corporations, organizations and institutions to a set of rights and duties, powers and entitlements, freedoms and responsibilities that may not be shirked, at least in moral theory if not in actual practice!

Some people have the mystical view that the Constitution is such a complex legal document that only the Supreme Court can interpret its ultimate meaning, but I think if Erap's trial should have taught us anything, the Supreme Court actually has ZERO jurisdiction in impeachment cases. That is a clear intention of the Separation of Powers, to give the Senate the sole power to decide impeachment cases even against the Chief Justice himself.

I cannot fail to sympathize with those whose basic take on the Rule of Law is that it is a tool for punishing the wicked and corrupt in government, such as plundering, gambling, womanizing dipsomaniac Presidents. Punishing the wicked, or to be less melodramatic, punishing the lawbreakers, is always a GOOD thing to do, based purely on moral principles that are independent of any law or religion.

But this generalized "doing of Good" cannot be allowed to occur upon the whims and initiatives of individual citizens or groups of citizens, otherwise we would have chaos, which is why Law is always paired with Order. In particular we have laws that dictate the rules and the DUE PROCESS regarding who, what, when, where and how certain things may be accomplished so that disputes between men and institutions may be settled in a FAIR way.

Justice is a combination of what is FAIR (in the sense that the Law is faithfully obeyed as a well ordered Social Contract binding upon all citizens and institutions exercising their rights and duties under the Constitution); and what is GOOD (in the sense of being the "moral" or the "right" thing to do based on the actual circumstances of the case.)

But is it possible for there to be a conflict between doing what is FAIR and doing what is GOOD?

I believe there is! Suppose a certain Mr. Big is a jueteng and drug lord doing a brisk daily business. But in order to convict him for his criminal wrongdoing, the police apprehend and torture him into signing a confession. Although it would be GOOD for the Justice system to convict Mr. Big and put him behind bars forever, it would not however be FAIR.

Thus, for any Justice system to be just, it must not only do GOOD, it must do so in a FAIR way, so much so that if it cannot convict the accused fairly, then society must forego doing the good and must acquit the accused.

I believe that Erap's case falls into this class of UNJUST operations of the Justice system whose Letter and Spirit are enshrined in the Constitution.

Erap's "constructive resignation" is analogous to a confession extracted by torture, and his plunder trial the subsequent prosecution of our hypothetical Mr. Big, the Jueteng Lord.

We may grant that it would be GOOD to punish Erap for any plunder he may actually have committed, but because the process was NOT FAIR it cannot possibly be JUST. It was not fair for example that Erap never got a chance to present his Defense in the Impeachment Trial before Joker Arroyo and the House Prosecutors resigned en masse on 16 January 2001.

All of this Constitutional and moral gerrymandering was the Supreme Court's doing in January and March of 2001, making a mockery of the saying that "The Constitution means what the Supreme Court says it means"--- because the statement is only true as long as what the Supreme Court SAYS and what its Justices DO never violate the Constitution's explicit provisions and intent.

The Case of Joseph Estrada has dealt Constitutionalism in the Philippines a damaging blow. It is the victory not of Justice but of Judicial Activism run amuck in the Supreme Court's vain attempt to do the Good even if it is not FAIR. Justice Cecilia Munoz Palma was one of the voices warning Davide against what he was about to do on 20 January 2001. But being the compleat moralist, and not acting with the impartiality of a cold, neutral Judge, Davide succumbed to his own autocratic demiurge.

Constitutionalism as a form of Law and Order is founded upon the notions of a divided government with a clear separation of powers. It is not possible to accept violations of this separation, even as aberrations, because they normally lead to situations in which perhaps the Law and its Supreme Court, or its Senate are put to absurdity and obloquy. To wit,


Where CONSTRUCTIVE RESIGNATION is analogous to a FORCED CONFESSION under TORTURE, the forthcoming ABSOLUTE PARDON is being forced down Erap's throat. If eventually blessed by the Almighty Supreme Court, this will be tantamount to killing two rights with one wrong: a repeal of the "Fifth Amendment" or the Right against Self-incrimination as well as the Right to the Presumption of Innocence. It will render all attempts to appeal a case lost in the lower courts (like the Sandiganbayan Special Court To Convict Erap) squelchable by an absolute pardon. Thereby a forced confession and outright admission of guilt may be extracted by an act of "Executive Clemency." Such a version of "absolute pardon" would be another abominable invention of our Supreme Court, with due respect.

But the fact claimed by Serge Apostol that "pardon" is a privilege of the Chief Executive and need not be applied for by an accused on trial for a capital crime is not effective against the fact that a pardon may not be granted in any case except when the sentence of guilt is FINAL and EXECUTORY.

When and if Erap files an appeal of his Plunder case before the Supreme Court, he will be claiming his Right to a continued Presumption of Innocence until the Supreme Court itself finds him guilty beyond a reasonable doubt of plunder, given all the circumstances that led from him being the most honestly elected democratic leader of the Filipinos to a Plunder convict upon whom pardon is so urgently being offered.

I foresee a final, most absurd contradiction about to arise in the Appeal of Erap's plunder conviction before the very Supreme Court that created this Constitutional Brain Twister.

ON ERAP'S SANDIGANBAYAN SENTENCE: (Updated 9/14/07)Father Joaquin Bernas, S.J. says It's enough to make a grown man cry
in reference to the Sentence imposed:
Bernas: "No matter how you look at it, the sentence is enough to make a grown man cry.

It says: “Accordingly, accused former President Joseph Ejercito Estrada is hereby sentenced to suffer the penalty of reclusion perpetua and the accessory penalties of civil interdiction during the period of sentence and perpetual absolute disqualification.

“The period within which accused former President Joseph Ejercito Estrada has been under detention shall be credited to him in full as long as he agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners.

“Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the government of the following:

1. The total amount of Five Hundred Forty-Five Million Two Hundred Ninety-One Thousand Pesos (P545,291,000.00), with interest and income earned, inclusive of the amount of Two Hundred Million Pesos (P200,000,000.00), deposited in the name and account of the Erap Muslim Youth Foundation.

2. The amount of One Hundred Eighty Nine Million Pesos (P189,000,000.00), inclusive of interests and income earned, deposited in the Jose Velarde account.

3. The real property consisting of a house and lot dubbed as the “Boracay Mansion” located at No. 100 11th Street, New Manila, Quezon City.”

Fr. Bernas then explains:

Forfeitures are easily understood.

Made less than a person

But what does reclusion perpetua mean?

It means imprisonment for at least thirty years, unless a person “by reason of his conduct or some other serious cause shall be considered by the Chief Executive as worthy of pardon.”

Moreover, in the case of Estrada, his years of confinement since his arrest in 2001 would be deducted from the thirty years.

Over and above imprisonment, reclusion perpetua also carries with it the accessory penalties of “civil interdiction” and “perpetual absolute disqualification.”

During the period of sentence, a person under civil interdiction is deprived “of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos.”

In effect, he is made less than a person.

Perpetual absolute disqualification for public office means deprivation of the public offices and employment which the offender may have held even if conferred by popular election, deprivation of the right to vote in any election for any popular office or to be elected to such office, loss of all rights to retirement pay or other pension for any office formerly held.

This sounds harsh!

Fr. Bernas also explains the bidnez of pardon, which I've also addressed. The most important precept is the first sentence in the quote below:

But pardon may come only after final conviction.

Incidentally, Estrada has already said that he will not accept pardon. It is worth noting, however, that only conditional pardon requires acceptance.

An absolute pardon becomes effective even if not accepted.

The nation waited for more than six years for the Sandiganbayan to pronounce its verdict. It will have to wait a little longer for the Supreme Court’s final verdict.

And, of course, today’s decision may be reversed by the Supreme Court.

The fact that this conviction by the Sandiganbayan Court can still be reversed by the Supreme Court means that this conviction is not FINAL. Pardon can not yet be offered and or granted, whether conditional or absolute.


Tongue's Wrath said...

I couldn't agree more, Dean. We must not just let this monumental blunder pass unchecked although I have doubts if it could even be corrected. The self-appointed moral police in Davide's court took it upon themselves and deemed a legal president involuntarily resigned or, by their semantic creativity, "constructively".

I am not comfortable though with your analogy that it was a confession extracted by torture but I can understand cuz it simply has no historical parallel. Even in our professional lives, it is inconcievable how one can fire the boss, much less force him to resign unless your actions are attended by blackmail and/or fraud.

You described Davide as dishonest, I say you're too damn polite (being #1 blog makes us more sensitive of others, eh?) in describing this crook! What I prefer to call this is vigilante justice - works fast but outside the boundaries of law.

I, too, WAS confused as to Paguia's "constitutional clock" theory but it became clear to me now after Erap's promulgation finally completed the chronologically-distorted timeline reached its conclusion. It's like entering the theater while the movie is nearing climax then you watch again from the beginning up to the point when you entered. Like how Estrada was removed first, then jailed, tried and convicted.

About Erap's presumption of innocence when he takes his case to the SC, well, I've pretty much discussed this with you in Ellen's at the time of Daniel Smith's hearing, I also read over at MLQ3's, Bencard's reply when you asked him the question just recently.

Nice piece, this!


Hey, this is taking too long, sorry.

DJB Rizalist said...

Why thank you for the compliment, Tongues Wrath.

BTW, I was only making an analogy between
"constructive resignation" and
a confession extracted by torture" in order to illustrate how ILLEGITIMATE it is even in a morally intuitive sense.

I didn't mean that one was literally equivalent to the other.

Tongue's Wrath said...

Got it. BTW, have you seen any blog that discusses the technical merits of the decision? I've started doing one hoping to be very objective and totally taking out the politics factor to see if the judges, at the very least, did a decent job.

I think I can't finish it though. Five MS Word pages and not even half through.

I would prefer to compare with a non-lawyer's views cuz lawyers' ethics will get in the way of an all-out dissection of the verdict. Thanks.

DJB Rizalist said...

Tongues Wrath,
You should go ahead and just publish what you have at Tongue In, Anew, to which I just put a link on the Philippine Commentary blogroll.