On the Appointment of Chief Justice by the President

NOTE: The following article was written by Prof. Alan F. Paguia on a topic that has been active on Twitter and social media ever since Chief Justice of the supreme Court Renato J. Corona was appointed by Gloria Macapagal Arroyo to that position and subsequently removed by impeachment and trial in the House and Senate of the Congress of the Philippines. -- DJB

Presidential appointment of the Chief Justice is unconstitutional

by Alan F. Paguia

Professor of Constitutional Law
Pamantasan ng Lungsod ng Maynila
Chief Justice Claudio Teehankee Professorial Chair in Constitutional Law and Human Rights Ateneo Law School alanpaguia@yahoo.com
August 21, 2012

Does President Benigno Simeon Cojuangco Aquino III have constitutional authority to appoint the Chief Justice of the Supreme Court?

It is respectfully submitted the proper answer is NO. The Law

1. The 1987 Philippine Constitution materially provides that:

“The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.” (Sec. 4 (1), ART. VIII)
“The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.” (Sec. 9, ibid. Underscoring supplied.)
“The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive department, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for, by law, and those whom he may be authorised by law to appoint. The Congress may, by law vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress, whether voluntary or involuntary, but such appointments shall be effective only until after disapproval by the Commission on Appointments or until the next adjournment of the Congress.” (Sec. 16, ART VII)

Comments

2. The law is clear. The appointing power of the President vis-à-vis the Supreme Court is categorically LIMITED to the MEMBERS.

3. There are 15 MEMBERS who may sit altogether en banc or in divisions of 3, 5, or 7 MEMBERS. One of the fifteen is designated as Chief Justice and the rest are designated as Associate Justices. The Chief, as leader, is not necessarily superior to the Associates. Such leadership is dictated by the logical requirements of administrative order and convenience in collegial bodies. Thus, he is known as primus inter pares, or first among equals.

4. When a MEMBER - whether Chief or Associate Justice - dies, retires, resigns, is permanently incapacitated, or is removed by conviction in a valid impeachment proceeding, a VACANCY naturally arises in the 15-MEMBER Court.

5. Who has the authority to appoint the person who shall fill up such vacancy? The President. According to the Constitution, the “Members of the Supreme Court (and judges of lower courts) shall be appointed by the President.”

6. When Chief Justice Renato C. Corona was removed through impeachment proceedings, he VACATED two (2) positions – as:
(a) Member, and as (b) Chief Justice.

7. With respect to the VACANCY pertaining to the position of Member, it is CLEAR that the same shall be filled by the APPOINTEE of the President. This is expressly provided by Sec. 9, ART. VIII

8. With respect to the VACANCY pertaining to the position of Chief Justice, it is NOT CLEAR whether the same shall be filled by the APPOINTEE of the President. The Constitution is SILENT as to how such VACANCY shall be filled.

9. The rule is - where the law is NOT CLEAR, it must be CONSTRUED and APPLIED accordingly.

10. Considering that the position of Chief Justice refers to the leadership of a co-equal branch of the tripartite system of government, it ought to follow that a reasonable CONSTRUCTION must observe the principle of SEPARATION OF POWERS between the legislative, executive, and judicial branches. Their INSTITUTIONAL INDEPENDENCE with respect to each other must be maintained in order to keep the principle of CHECKS AND BALANCE alive and effective.

11. It thus becomes significant to observe how the Constitution determines the leadership of the two Houses of Congress – the Senate and the House of Representatives. The first has the Senate President; the second has the Speaker of the House. These two leaders are:
(a) NOT APPOINTEES of the Chief Executive.
(b) ELECTED by their colleagues from among themselves. (c) CHOSEN to strengthen their respective INSTITUTIONAL INDEPENDENCE.

12. Thus, it would not seem reasonable to have the leadership of the Supreme Court be determined differently. In other words, the logic of the Constitution would appear to indicate that the Chief Justice MUST:
(a) NOT BE AN APPOINTEE of the Chief Executive.
(b) BE ELECTED by the 15 Magistrates from among themselves. (c) BE CHOSEN to strengthen the High Court’s INSTITUTIONAL
INDEPENDENCE.
(d) NOT BE SUBJECT to any sense of POLITICAL DEBT OF
GRATITUDE.

13. To rule otherwise would:
(a) WEAKEN the High Court’s INSTITUTIONAL INDEPENDENCE. (b) SUBJECT the Chief Justice to a sense of POLITICAL DEBT OF GRATITUDE.

14. The Constitution of the United States of America materially provides that the President “shall nominate, and by and with the Advise and Consent of the Senate, shall appoint... Judges of the Supreme Court...” (Clause 2, Sec. 2, ART. II). Does the 1987 Philippine Constitution have a substantially identical equivalent provision? NO. The Philippine President’s power to appoint the Members of the Supreme Court does not require the approval of the Philippine Senate. Thus, while the US President’s power to appoint is subject to the check and balance by the US Senate, the Philippine President’s power to appoint is NOT subject to the check and balance by the Philippine Senate. In other words, such power to appoint on the part of the Philippine President - while apparently limited to the shortlist of nominees screened by the Judicial and Bar Council - appears to be ABSOLUTE, that is, NOT subject to any legal restriction. The constitutional objection is, therefore, grounded upon the UTTER DISREGARD for the principle of checks and balance, which is the indispensable twin of the principle of separation of powers.

15. May tradition be properly invoked to justify the presidential, albeit unconstitutional, practice of appointing the Chief Justice of the Supreme Court? NO. The Constitution and the laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary (Art. 7, CIVIL CODE).

16. Even the Magistrates of the Supreme Court seem inclined to take the view that the Chief Justice ought to be elected from among themselves. Why? Because if they truly believe it is the President who has the authority to appoint the Chief Justice, they should have – to be consistent - asked the President to appoint the Acting Chief Justice to fill up in the meantime the vacancy created by the removal of Chief Justice Corona. They did not. Instead, they elected from among themselves Associate Justice Antonio Carpio as such Acting Chief Justice. And President Aquino did not object.

Conclusion

17. Whoever shall be appointed Chief Justice by President Aquino would be working under a dark constitutional cloud of doubt. The same may be said of the rest of the Magistrates who, with their silence on the matter, would appear to leave to the present and future generations of Filipino legal scholars a legacy of dubious acquiescence.

The Verdict of Juan Ponce Enrile Convicting Chief Justice Corona

Following is the verdict pronounced by Senate President Juan Ponce Enrile, Presiding Officer of the Senate sitting as an Impeachment Court during the trial of Chief Justice Renato C. Corona, who had been impeached for various offenses against the 1987 Constitution by the House of Representatives on December 12, 2011, led by House Speaker Sonny Belmonte. I had the great privilege of interviewing JPE immediately after the trial and recorded our short meeting in the video above as well as his signing of the historic judgment of the Senate rendered on Tuesday 29 May 2012.

The Presiding Officer.
Thank you.
Magandang hapon po sa inyong lahat.  Unang-una, gusto kong pasalamatan ang aking mga Kasama sa Senado na ngayon ay ginagampanan ang katungkulan bilang Hukom dito sa paglilitis na ito sa Kataas-taasang Mahistrado ng Kataas-taasang Hukuman sa ating bansa, na siyang tinatawag na guardian ng ating Saligang Batas at ang kalayaan ng ating mamamayang Pilipino.
                Gusto ko ring pasalamatan ang mga abogado ng dalawang panig na nandito ngayon, the Prosecution Panel, as well as the Defense Panel, for their untiring effort in participating, in ferreting out the truth in this trial in order to arrive at a just resolution of the case before us. In the entire course of this Impeachment Trial, I have faced many difficult challenges to my own and the Court’s collective wisdom, our sense of justice and fairness, the delicate balancing act that we must perform to ensure that we do not stray from the strictures of the Constitution, the laws and our rules. This trial began and unfolded against the backdrop of a highly charged and emotional atmosphere, acrimonious debates in and out of the confines of this Court and a deep political fissure which threatened the stability of our democratic institutions.
 But the impact of the many events that transpired since December 12 last year to this very day, taken together, cannot compare to the sense of heaviness that I feel at this very moment. The culmination of this national drama is at hand.  And the time has come for me to render judgment on the person before whom I took my oath of office as a Senator of this Republic, no less than the Chief Justice of the Supreme Court Renato C. Corona.  The Respondent Chief Justice and his family understandably feel deeply hurt, pained and aggrieved.
                As a lawyer, I must confess that I was personally frustrated, really frustrated by the loose and hasty crafting and preparation that characterized the presentation of the charges contained in the Articles of Impeachment.  It seems that the case was being built up only after the charges were actually filed.  The repeated recourse to this Court’s compulsory processes to obtain evidence which normally should have formed the factual basis of the charges in the first place further burdened and, at times, taxed the patience of this Court.
                We have witnessed with disdain the indiscriminate, deliberate and illegal machinations of some parties who have been less than forthright with this Court and its Members in presenting dubiously procured and misleading documents which were spread to the media obviously to influence this Court and the public’s opinion.
                The letter of the Land Registration Authority which contained, as an attachment, a list of 45 properties supposedly owned by the Respondent Chief Justice was fed to the media even before we could begin the actual trial of the case.
                                Even before the Honorable Ombudsman Conchita Carpio-Morales was called to testify before this Court, her letter to the Chief Justice requiring him to explain in 72 hours an alleged aggregate amount of $10 million in several dollar accounts was leaked to the media right before the resumption of this trial last May 7.
                We have sternly cautioned against any unethical and unprofessional conduct; the penchant to engage in trial by publicity; to use the media to disseminate and advance so-called information or evidence to provoke and disrespect this Court and its Members; and to irresponsibly hurl disparaging insinuations and accusations.  We have tried to impress upon everyone who may be similarly motivated and inclined to test our will that this Court means serious business and would not succumb to or allow such under- handed tactics and gimmickry to deter this Court from our task.
                Prudence and justice dictate that in determining the guilt or innocence of the Chief Justice, we must try our best to confine ourselves to the pieces of testimonial and documentary evidence that have been presented to this Court to pass upon their relevance and to measure and weigh their value in the light of the charges before us.
                After all the accusations levelled against the Chief Justice, eight (8) charges in all, comprising the Articles of Impeachment, the Prosecution chose to present evidence only on three (3) articles, namely, Article II, Article III and Article VII, and then abruptly rested its case. I always believed that of these three, the case for the Prosecution and the Defense will rise or fall on Article II which is now the subject of our vote.
                This Court, at one point, had extensive discussions and differences of opinion, to be sure, regarding the charge contained in Paragraph 2.4 of Article II that the Chief Justice was “suspected and accused of having accumulated ill-gotten wealth, acquiring assets of high values and keeping bank accounts with huge deposits.”  We ruled to disallow the introduction of evidence in support of Paragraph 2.4 which, to this day, I strongly maintain, as I am sure my colleagues in this Court strongly maintain, was an invalid charge, it being based on mere suspicion on so-called “reports” rather than on factual allegations.
                The Defense and the Chief Justice himself, unhappily, somehow revived this issue of the nature of his assets by introducing evidence to prove that his income and assets were legitimate and by testimony to show how he and his wife have saved and invested these savings in foreign currency over so many decades.  At this moment, I wish to reiterate, for the record, that the Chief Justice does not stand accused of having amassed any illegal wealth before this Impeachment Court.
                Paragraph 2.2 of Article II of the Articles of Impeachment accuses the Respondent Chief Justice of failing to disclose to the public his Statement of Assets, Liabilities and Net Worth as required by the Constitution. I submit that the Chief Justice had justifiable and legal grounds to rely on the Supreme Court’s procedural and policy guidelines governing such disclosure as embodied in a resolution promulgated way back in 1989 when the Respondent was not yet a member of the Supreme Court. Under the said guidelines, the Clerk of Court of the Supreme Court, who is the repository of the SALNs submitted by all the members of that High Court, may furnish copies of the SALNs in his or her custody to any person upon request and upon a showing that there is a legitimate reason for the same.
                The Constitution in Article XI, Section 17 states that, “In the case of the President, the Vice- President,…the Members of the Supreme Court, the Constitutional Commissions 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.”
                RA 6713, known as the Code of Conduct and Ethical Standards for Public Officials and Employees, recognizes the public’s right to information on the assets, liabilities and net worth, financial and business interests  of public servants.  But, it likewise declares it unlawful for any person—and I would like to quote the provision: “To obtain or use the same for purposes contrary to morals or public policy or for any commercial purpose other than by news and communications media for dissemination to the general public.”
                Whether, the said guidelines violate the letter and spirit of Republic Act 6713 and the principle of public accountability is not, I repeat, is not for this Court to pass upon.  I grant that the Chief Justice believed in good faith that after periodically filing his sworn Statements of Assets, Liabilities and Net Worth, the guidelines issued by the Supreme Court were sufficient to allow the Clerk of Court to comply with the Constitution and the law.
                We cannot ignore the fact that the failure or refusal, particularly of public officials in high government positions, to provide the public or the media with copies of the SALNs continues to be a raging issue to this day. In fact, some, if not most of the members of the Prosecution panel itself, the Members of the Supreme Court, Members of the Congress and other high officials of the government have been challenged by media organizations and others to make their SALNs available to the public and to the media.
                Paragraph 2.3 of Article II further accuses the Respondent Chief Justice, based on reports, of not including some properties in his declaration of his assets, liabilities and net worth in violation of the Anti- Graft and Corrupt Practices Act.  The Prosecution, based on the list it procured from the Land Registration Authority, claims that the Chief Justice owned and failed to fully disclose in his SALN 45 real estate assets.  Based on the evidence, I am convinced that the Defense has presented credible evidence to refute this charge and to explain the exclusion in the Respondent Chief Justice’s SALN of certain properties which have either been sold or legally transferred; properties which are actually owned by his children and/or third parties; and properties which were never owned by the Respondent Chief Justice in the first place.
                I am likewise convinced that the Defense has sufficiently established that there was no ill-intention on the part of the Respondent Chief Justice to understate or misrepresent the value of his real properties.
                Proceeding now to the most significant charge involving the nondisclosure of the Respondent Chief Justice’s cash assets, the Ombudsman, at the instance of the Defense, testified with a presentation of a report from the Anti-Money Laundering Council (AMLC) showing 82 bank accounts allegedly belonging to the Respondent.  She further testified that based on her analysis of the report aided by the Commission on Audit, the Chief Justice had cash assets in the examined bank accounts of anywhere from $10 million to $12 million. Even if we grant the existence of these 82 accounts, the amount of deposits corresponding to each of these could not just easily, fairly or logically be summed up to arrive at exactly how much cash assets or deposits in actuality and in totality the Respondent Chief Justice had or has at any given point of time.  Hence, the Ombudsman’s reference to the transactional balance of about $12 million should not mislead this Court in its appreciation of the facts.
                Regrettably, both the Prosecution and the Defense panels decided not to present the concerned bank officers or the AMLC to ascertain the veracity of the data allegedly provided by the AMLC to the Office of the Ombudsman despite the Respondent’s submission to this Court of a written waiver to cause the opening of all his bank accounts. Laudable as this belated act on the part of the Respondent Chief Justice may be, it would have served him better if he had just presented bank documents as evidence to either confirm or refute the documents showing his bank transactions as presented by the Ombudsman.
                It has not escaped this Presiding Officer that initially, last May 22nd to be exact, before he walked out of this Court, the Chief Justice signed the said waiver in open court but made the release of the same conditional, that is, after all the 188 signatories to the Articles of Impeachment and Senator-Judge Franklin Drilon have signed a similar waiver.  It was only during the hearing last May 25 that the Chief Justice decided finally to submit a waiver to this Court without any preconditions.
                Moreover, even as the Chief Justice had full access to his own bank accounts and all the opportunity to introduce evidence to disprove the data, findings and analyses presented by the Ombudsman or the report of the AMLC, the Defense did not introduce any such evidence. As it is, the Impeachment Court could only rely on the documents supplied by the Ombudsman which showed the Respondent’s bank transactions but which do not show the actual bank balances of Respondent’s bank accounts.
                Instead, the Defense presented the Chief Justice himself as its last witness and pleaded for the Court’s permission to allow the Respondent Chief Justice to deliver an opening statement.  This Court out of courtesy to the Chief Justice, as the highest magistrate of the land, decided to extend that courtesy to him its understanding, and to exercise  utmost liberality in granting the request for him to speak before us.
                The long narration where the Chief Justice touched on a wide range of issues, assertions of facts, accusations, opinions and personal sentiments where the Respondent said he found necessary to narrate in order to clear his and his family’s name, was later adopted by the Defense as the direct testimony of the Respondent Chief Justice.  The Prosecution, on the other hand, waived its rights to cross-examine the Chief Justice provided the Defense would not conduct any further direct examination. Nevertheless, the Respondent Chief Justice testified and admitted, in answer to questions from a Member of this Court, that he had around P80 million in three (3) peso accounts and $2.4 million in four (4) US dollar accounts, but that he had purposely not declared these assets for two reasons: One, that his peso accounts represented commingled funds; and two, that he was not required to report or declare his foreign currency deposits in his SALN because they were, according to him, absolutely confidential under RA 6426.
                Ladies and gentlemen of this Court, aking mga kababayan, I disagree on both counts. If, indeed, any of the Respondent’s cash deposits were commingled with the funds belonging to other parties such as the Basa-Guidote Enterprise Inc. or his children, the Respondent was still duty- bound under our laws to declare these deposits in his SALN, they being admittedly under his name by his own very declaration.
                The evidence is devoid of any indication that the Chief Justice was holding these funds in trust for or that they were actually beneficially owned by anyone other than himself or his wife. Assuming that any part of such deposits in truth belong to third parties, the Respondent could have indicated such third party funds as corresponding liabilities in his SALN.  That would have reflected his true and real net worth.
                With all due respect, I believe that the Respondent Chief Justice’s reliance on the absolute confidentiality accorded to foreign currency deposits under Section 8 of Republic Act No. 6426 is grossly misplaced. The Constitution, in Article XI, Section 17, provides that, and I would like to quote it: “A public officer or employee shall, upon assumption of office and as often as may be required by law, submit a declaration under oath of his assets, liabilities and net worth.”  The oath required him to tell the truth and nothing but the truth.  So help him, God.
                Are we now to say that this constitutional command, mandatory  as it is, is limited to public officials, assets or deposits in local currency?  If so, would we not be saying, in effect, that the Constitution allows something less than a full, honest and complete disclosure under the first sentence of Section 17 of Article XI?
                It bears noting that the prescribed form of the SALN quite simply requires public officers and employees to declare their assets, real and personal, the latter to include cash and bank deposits, bonds and others.  It does not require the public officer or employee to indicate whether or not he or she has foreign currency notes or deposits.  Neither does it require details such as account numbers, account names, bank identities, nor any branch addresses.  All that it requires is a declaration under oath of the total amount of funds deposited in any bank account or accounts maintained by the public official or employee concerned.
                Surely, the Chief Justice knows the equivalent value in local currency of his foreign currency deposits to be able to declare the same as part of his assets, especially since the aggregate amount of this foreign currency deposits by his own account under oath amounts to US$2.4 million. The nondisclosure of these deposits in both local and foreign currency would naturally result in a corresponding distortion of the Chief Justice’s real net worth.
                Consistent with the position taken by this Court in the case filed by the Philippine Savings Bank before the Supreme Court last February, pursuant to which the Supreme Court issued a Temporary Restraining Order, I maintain that the constitutional principle of public accountability under Article XI of the Constitution overrides the absolute confidentiality of foreign currency deposits.  The provision of RA 6426 cannot be interpreted as an exception to the unequivocal command and tenor of Article XI, Section 17 of the 1987 Constitution.  And I regret that the highest magistrate of the land no less would think otherwise.
                Section 8 of RA 6426 provides that, “except with the written permission of the depositor” —I would repeat—”except with the written permission of the depositor”—and I quote, “in no instance shall foreign currency deposits can be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative or any other entity whether public or private.”
                Any other interpretation of this provision would be unwarranted and the term “any person” would not include the depositor. The so-called conflict of laws between RA Nos. 6713 and 6426 is more illusory than real to me. Section 8 of RA No. 6426 merely prohibits the examination, inquiry or looking into a foreign currency deposit account by an entity or person other than the depositor himself, because that depositor knows his deposit and he can reveal it, if he wants to, without any penalty or punitive sanction against him, unlike others who would reveal it.  But there is nothing in RA No. 6426 which prohibits the depositor from making a declaration on his own of such foreign currency funds, especially in this case where the Constitution mandates the depositor who is a public officer to declare, under the Constitution itself, all assets owned by him or his family under oath.
                Some have raised the question: Why should the Chief Justice be held accountable for an offense which many, if not most others in government are guilty of, perhaps even more guilty than he is?  They say that  hardly anyone declares his true net worth anyway.
                Here lies what many have posited as a moral dilemma.  I believe it is our duty to resolve this “dilemma” in favor of upholding the law and sound public policy in this country.  If we were to agree with the Respondent Chief Justice of the Supreme Court that he was correct in not disclosing the value of his foreign currency deposits because they are absolutely confidential, can we ever expect any SALN to be filed by public officials, no matter how high and no matter how low, from hereon to be more accurate and true than they are today?  I do not think so.
                I am not oblivious to the possible political repercussions of the final verdict we are called upon to render today.  I am deeply concerned that the people may just so easily ignore, may forget, if not completely miss out, the hard lessons we all must learn from this episode, instead of grow and mature as citizens of a democratic nation.
                Those whose intentions and motivations may be farthest from the lofty ideals of truth and justice are wont to feast upon this man’s downfall should this Court render a guilty verdict, as I think it would. I am quite equally aware of the tremendous pressures weighing heavily upon each and all of the Members of this Court as we had to come to a decision on this case, one way or the other. But to render a just verdict according to my best lights and my own conscience is a sacred duty that I have taken on myself that I have sworn to perform.
                As one who has been through many personal upheavals through all of my 88 years, I, too, have been judged, often unfairly and harshly. But I have constantly held that those who face the judgment of imperfect and fallible mortals like us have recourse to the judgment of history, and, ultimately of God. And so, with full trust that the Almighty will see us through the aftermath of this chapter in our nation’s history, I vote to hold the Chief Justice of the Supreme Court, Renato C. Corona, guilty as charged under Article II, paragraph 2.3 and that his deliberate act of excluding substantial assets from his sworn Statement of Assets, Liabilities and Net Worth constitutes in my humble view as a member of this Court, a culpable violation of the Constitution of the Republic of the Philippines.
                Thank you. 

Noli Me Tangere: The Opera Kicks Off Dulaang UP Season

Dulaang UP opens its 37th season with the restaging ofNoli Me Tangere: The Opera, the critically-acclaimed operatic retellingby National Artist Felipe Padilla de Leon of Jose Rizal’sNoli Me Tangere with libretto by fellow National Artist Guillermo Tolentino.This restaging is also part of the celebration of the birth centennial of Padilla de Leon.Touted by critics as the musical treat of 2011, the production had a successful, sold-out four-week run last November.

Noli Me Tangere: The Opera is directed by DUP Artistic Director Alexander Cortez (Cayabyab/ Asensio’s Spoliarium, Lumbera/Letaba’s Hibik at Himagsik nina Victoria Lactao, Quintos/De Guzman’s Atang: A Play with Music, Quintos/ Africa’s St. Louis Loves dem Filipinos: The Musical). It is a testament to the ingenuity of the Filipino artist. With two pianos providing the accompaniment to the performances of some of the country’s finest classically-trained singers, the production welds energy and fresh insight together with tradition to breathe life into Rizal’s timeless opus through the transcending power of music.

Under the vocal coaching and music supervision of Camille Lopez Molina,young opera singers Myramae Meneses, Ivan Nery, Antonio Ferrer, Elainne Vibal, Frederick Hipol, Mark Queddeng, and veterans Jonathan Velasco, Pablo Molina, Jean Judith Javier, Joy Abalon-Tamayo, Cynthia Guico, Greg De Leon and Tanya Corcuera among many others from UP and other music conservatories interpret memorable songs from the opera. Child actors/singers Matthew Anenias and Jhizelei Deocareza play the roles of Basilio and Crispin, respectively. Critics lauded the performances of the cast. Amadís Ma. Guerrero of the Philippine Daily Inquirer described Ferrer (Ibarra) and Vibal (Maria Clara) as, “an appealing couple, visually and vocally.” He also considered Hipol’s Elias as “convincing” and Javier’s Sisa as “spellbinding”.

Among the songs included are Maria Clara’s Kay Tamis ng Buhay, Maria Clara and Ibarra’s duet Sa Lupang Pangako, Sisa’s haunting aria Awit ng Gabi, and Ibarra’s Aking Isinangguni to name but a few. Talented actors from the Dulaang UP ensemble complete the cast. Accompanists are pianists Noel dela Rosa, Daphne Jocson, Jesper Mercado and flutist Dante Lipana.

Production designer Gino Gonzales puts to good use Philippine indigenous materials for the sets and the inabel cloth from the Ilocos region for the costumes. Lighting designer Jon Jon Villareal, sound designer Jethro Joaquin, and choreographer Dexter Santos collaborate to create an all-Filipino ambience fitting for the production. Winter David provides the video support with special props designed and executed by John Gaerlan. Pow Santillan renders the graphics design with photos by Jojit Lorenzo and Dino Dimar.

Noli Me Tangere: The Opera is made possible by the UP Office of the President, UP Diliman Office of the Chancellor, Office of the Dean College of Arts and Letters, UP Office for Initiatives in Culture and the Arts, Day by Day Christian Ministries, Ms. Irene M. Araneta, Dr. Joven Cuanang and NCCA Chairman Jun de Leon.

Noli Me Tangere: The Opera runs fromJuly 18-22,25-29; August 1 & 2, 8-12 (Wednesday to Friday, 7pm; Saturday and Sunday, 10 am and 3pm. Due to the UPCAT exams on Aug 4 & 5, there will be no performances from Aug 3 -5. Noli resumes Aug 8)at the Wilfrido Ma. Guerrero Theater, Palma Hall, University of the Philippines Diliman. For sponsorship and ticket inquiries, please contact the Dulaang UP Office at 926-1349, 981-8500 local 2449 or 433-7840.

Meta Mon Apton! (Noli Me Tangere!)

REMBRANDT's famous painting portrays the moment Jesus Christ utters that famous phrase in the Gospel of John 20:17 and is the very moment of Christianity's birth, for it is His first appearance in the canonical Gospels (Matthew, Mark, Luke and John)--after the Resurrection. Mary Magdalene is the first human being to see Him alive after the Crucifixion. Here it is from the Latin Vulgate Bible:

15. dicit ei Iesus mulier quid ploras quem quaeris illa existimans quia hortulanus esset dicit ei domine si tu sustulisti eum dicito mihi ubi posuisti eum et ego eum tollam
16. dicit ei Iesus Maria conversa illa dicit ei rabboni quod dicitur magister
17. dicit ei Iesus noli me tangere nondum enim ascendi ad Patrem meum vade autem ad fratres meos et dic eis ascendo ad Patrem meum et Patrem vestrum et Deum meum et Deum vestrum
18. venit Maria Magdalene adnuntians discipulis quia vidi Dominum et haec dixit mihi

The King James Version (1611) has it in English:

15. Jesus saith unto her, Woman, why weepest thou? whom seekest thou? She, supposing him to be the gardener, saith unto him, Sir, if thou have borne him hence, tell me where thou hast laid him, and I will take him away.
16. Jesus saith unto her, Mary. She turned herself, and saith unto him, Rabboni; which is to say, Master.
17. Jesus saith unto her, Touch me not; for I am not yet ascended to my Father: but go to my brethren, and say unto them, I ascend unto my Father, and your Father; and to my God, and your God.
18. Mary Magdalene came and told the disciples that she had seen the LORD, and that he had spoken these things unto her.

Now of course, it is always a surprise, especially for incredulous Catolicos cerrados to discover that the original Gospels were written in Greek but that circumstance and its implications would be tangential to my purpose today, which is actually to give some background for some younger relatives of mine, on the Noli Me Tangere of José Rizál, which they are studying this year in high school.

Why did Rizál choose this title, which was quite famous in his day in the 19th century and even before that? Wikipedia traces the phrase in many other historical and rhetorical contexts. But in his Dedication of the novel, Rizal gives a clue regarding his own usage of it. Here is and English Translation of the Dedication of the Noli Me Tangere, from the 1956 Unexpurgated Noli Me Tangere by Jorge Cleofas Bocobo:

To My Country
The story of human sufferings records a cancer of such malignant character that the slightest contact irritates it and stirs up therein the most acute pains. Now then; whenever in the midst of modern civilizations I wished to evoke thee, either to cherish the remembrances or to compare thee with other countries, thy beloved image appeared before me with a similar social cancer.


Wishing thy health which is ours, and in search of the best treatment, I shall do for thee which the ancients did for their sick: they exposed them on the steps of the temple, in order that every person who had just invoked the Divinity might propose a remedy for them.


And for this purpose, I shall try faithfully to reproduce thy condition without fear or favor; I shall raise a part of the veil that covers the malady, sacrificing all for the sake of truth, even personal pride, for, being the son, I also suffer from thy defects and weaknesses.


The Author, Europe, 1886

It has been suggested that the title dovetails quite well with the sentiments expressed above and stated methodology of the novel, which is to expose the malady so that every person with a conscience might propose some remedy.

Aside from the above interpretation, often seen in Rizal Day essays in December, just before we execute and murder the author for the Nth time, I suppose Rizál also had a flare for the psychological in titling his novel, for who can resist a package that says "DO NOT OPEN!"I guess that would be my translation of "Noli Me Tangere!"

But the Greek, sounds more defiant to me: "Meta mon apton!" which somehow sounds to me more like "Touch me and I'll kick you in the ass!"

FIFTY YEARS OF THE RIZAL LAW: Paradoxically, the Roman Catholic Church, which did indeed get its frailocratic theocracy's comeuppance from Rizal, BANNED his novels for over half a century. I am not completely sure in fact, whether they've actually been removed officially from the Index Prohibitorum Librorum of the Catholic Church. I still remember the admonition of my sainted mother to me as a young boy that it was a mortal sin to read the Noli and the Fili, followed with the delicious intimation that she and her sisters, my Catolico cerrado aunts, had secretly read them anyway, despite similar warnings of "Verboten" from the St. Scholastica nuns. Actually it's too bad they made it mandatory in 1956 for Filipinos to read the novel, a legal curricular requirement that was probably the end of much interest in them by the young! The Rizal Law is now in its 50th year:

Republic Act No. 1425 THE RIZAL LAW
June 12, 1956

An Act to Include in the Curricula of All Public and Private Schools, Colleges and Universities courses on the Life Works and Writings of JOSE RIZAL, particularly his novels NOLI ME TANGERE and EL FILIBUSTERISMO, Authorizing the Printing and Distribution Thereof, and for Other Purposes.

Whereas, today, more than other period of our history, there is a need for a re-dedication to the ideals of freedom and nationalism for which our heroes lived and died.

Whereas, it is meet that in honoring them, particularly the national hero and patriot, Jose Rizal, we remember with special fondness and devotion their lives and works that have shaped the national character;

Whereas, the life, works and writings of Jose Rizal particularly his novels Noli Me Tangere and El Filibusterismo, are a constant and inspiring source of patriotism with which the minds of the youth, especially during their formative and decisive years in school, should be suffused.

Whereas, all educational institutions are under the supervision of, and subject to regulation by the State, and all schools are enjoined to develop moral character, personal discipline, civic conscience, and to teach the duties of citizenship; Now therefore,

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled

SEC.1
Courses on the life, works and writings of Jose Rizal, particularly his novels Noli Me Tangere and El Filibusterismo, shall be included in the curricula of all schools, colleges and universities, public or private; Provided, That in the collegiate courses, the original or unexpurgated editions of the Noli Me Tangere and El Filibusterismo or their English translations shall be used as basic texts.

The Board of National Education is hereby authorized and directed to adopt forthwith measures to implement and carry out the provisions of this Section, including the writing and printing of appropriate primers, readers and textbooks. The Board shall, within sixty (60) days from the effectivity of this Act promulgate rules and regulations, including those of a disciplinary nature, to carry out and enforce the regulations of this Act. The Board shall promulgate rules and regulations providing for the exemption of students for reason of religious belief stated in a sworn written statement, from the requirement of the provision contained in the second part of the first paragraph of this section; but not from taking the course provided for in the first part of said paragraph. Said rules and regulations shall take effect thirty (30) days after their publication in the Official Gazette.

SEC.2
It shall be obligatory on all schools, colleges and universities to keep in their libraries an adequate number of copies of the original and unexpurgated editions of the Noli Me Tangere and El Filibusterismo, as well as Rizal’s other works and biography. The said unexpurgated editions of the Noli Me Tangere and El Filibusterismo or their translations in English as well as other writings of Rizal shall be included in the list of approved books for required reading in all public or private schools, colleges and universities.

The Board of National Education shall determine the adequacy of the number of books, depending upon the enrollment of the school, college or university.

SEC.3
The Board of National education shall cause the translation of the Noli Me Tangere and El Filibusterismo, as well as other writings of Jose Rizal into English, Tagalog and the principal Philippine dialects; cause them to be printed in cheap, popular editions; and cause them to be distributed, free of charge, to persons desiring to read them, through the Purok organizations and the Barrio Councils throughout the country.

SEC.4
Nothing in this Act shall be construed as amending or repealing section nine hundred twenty-seven of the Administrative Code, prohibiting the discussion of religious doctrines by public school teachers and other persons engaged in any public school.

SEC.5
The sum of three hundred thousand pesos is hereby authorized to be appropriated out of any fund not otherwise appropriated in the National Treasury to carry out the purposes of this Act.

SEC.6
This Act shall take effect upon its approval.

I think the Rizal Law should be repealed when Glorial Macapagal Arroyo finally declares Martial Law. Let it be again FORBIDDEN to think, to expose, to propose remedies. Let us return to theocracy and cant, to Talibanism and authoritarianism. Let us descend once more into Oblivion! But...

META MON APTON!

Maybe that's the message Jesus wanted to send the Sanhedrin and the Romans too. Touch me not or I'll destabilize you and take over your Empire.

---

UPDATES:

Why Do Loan Sharks Love The Teachers? In this Inquirer news story, the Deped is warning some of its own employees against acting as loan collection agents for money lending agencies. Well, It's no secret really, that the nearly half million government employees of the Department of Education are among the most debt-ridden sectors of society. But that is not necessarily because they aren't paid enough. Although no one is going get rich being a public school teacher, their soaring levels of indebtedness are at least partly due to the overly generous and accomodating ways of the folks lending them money. And why is that? Well take a look again at how the DepEd budget is divvied up. Notice that 100-Billion Peso Chunk of Change called "Salaries"? That is 100 Billion Pesos in cold hard cash that gets doled out as Blue Chip Government Checks every week, year in and year out since Mahoma lived and died and probably till he comes back! As a loan shark, you've gotta respect such a cash flow.

By the way, I cannot overemphasize a perhaps obscure connection. But how that 100 billion pesos in Salaries is actually spent is determined principally by the Curriculum which has Five Subjects: Math, Science, English, Pilipino and Classrooms-for-the-Students -- err --- Makabayan (Values Education).

What I'm really trying to say here is that there is PLENTY OF MONEY for school buildings, computers and textbooks, except we are currently spending it on a congested curriculum with too many unnecessary subjects and too many teachers in them, teaching an unconstitutional curriculum full of religious mumbo jumbo and post-modern psychobabble. I say, the facilities and instructional materials that the 20 million basic education sector needs are tied up in the government employee salaries that also end up as indentured servants of the corrupt electoral system.,

Rizalist and I

With apologies to JORGE LUIS BORGES.

Philippine Commentary is now a podcast.
Dean Jorge Bocobo.

(BTW here is the original post of this item.)

Strong Words from Juan Ponce Enrile to Justice Serafin Cuevas

At the end of a long colloquy between presiding Senator Juror Juan Ponce Enrile and Lead Defense Counsel Justice Serafin Cuevas, the above statement was made by the Presiding Officer, in effect over ruling the Defense Motion and position on PROBABLE CAUSE in the impeachment case presently being tried by the Senate Impeachment Court.

Juan Ponce Enrile read substantial portions of Article 11 of the 1987 Constitution while Justice Cuevas relied on the Supreme Court's FRANCISCO DECISION

But here is the whole remarkable colloquy:

Corona Claims Hacienda Luisita Decision is Reason for Impeachment Against Him

Suggesting he singlehandedly prevented the payment of TEN BILLION PESOS to the owners of Hacienda Luisita, the Chief Justice Renato Corona claims in this part of an exclusive interview with Arnold Clavio just this morning, that this is the root and reason for the impeachment move against him.

Corona Wanted To Prove Justice Sereno a Liar in the Impeachment Court

The impeached Chief Justice Renato Corona had some remarks about Justice Maria Lourdes Sereno during his interview with GMANews' Arnold Clavio broadcast on television this morning.  I shall leave it to the readers of Philippine Commentary to decide what to make out of all these remarkable statements.    

Chief Justice Corona Says Associate Justice Antonio Carpio Wants His Job

In an exclusive interview broadcast on GMANews this morning, the impeached Chief Justice of the Supreme Court of the Philippines went on the offensive as the Senate Impeachment Court decided to accept certain potentially damaging pieces of evidence against him.  But he had some interesting things to say about his fellow Justice on the High Court, Antonio Carpio.  Corona claims Carpio wants to be Chief Justice and broadly hints the latter is behind "black propaganda" against him. (Corona spoke to Arnold Clavio of GMANews directly to the Public, in an apparent nod that the Court of Public Opinion is also trying his case!))



The cutting remarks of the Chief Justice against Justice Carpio give us a RARE GLIMPSE into Supreme Court in-fighting.

Impeached Chief Justice Renato Corona Speaks Out (on TV!)

The impeached Chief Justice Renato Corona on trial in the Senate Impeachment Court, has given an exclusive interview to Arnold Clavio of GMANews television, aired earlier today by the nationwide network. In the following segment, listen to the Chief Justice explaining WHY he and his wife Christina suddenly closed several bank accounts in the Philippine Savings Bank on December 12, 2011, the day the House of Representatives impeached him.

The Oath of the Senator Judges

Senate Resolution 39 prescribes the OATH or AFFIRMATION taken by Senators-Judges when the Senate is sitting as an Impeachment Court:

“I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of ______ ______, now pending, I will do impartial justice according to the Constitution and laws of the Philippines: (So help me God).”

This oath certainly does not create any impression in me that Miriam Defensor Santiago, after having sworn the same, could be excused for culpable violations of the Code of Judicial Conduct Rule 3.04.  

"Gago!"

MIRIAM DEFENSOR SANTIAGO today hurled this peculiarly Pinoy insult at the House Prosecution Panel today at the trial of the impeached Chief Justice Renato Corona. This was in the midst of a long harangue and lecture, complete with obscure judicial citations. But take a look at the Code of Judicial Conduct:

RULE 3.04 - A judge should be patient, attentive, and courteous to lawyers, especially the inexperienced, to litigants, witnesses, and others appearing before the court. A judge should avoid unconsciously falling into the attitude of mind that the litigants are made for the courts, instead of the courts for the litigants.

Was Miriam patient, attentive and courteous when she called the House panel "GAGO?" I think it's a culpable violation on national television. Boooooo! Miriam. What private prosecutor Aguirre did was certainly contemptuous as JPE and the Senate Impeachment Court ruled, but what Miriam did was contemptibly unethical.

Hasn't the Senate just demonstrated the same self-preserving bullshit that the Supreme Court just did unto their subpoena?

Enrile on Impeachment: A Line in the Sand?

Below is  Juan Ponce Enrile's Opinion on Impeachment delivered in the course of heated debates over a Supreme Court TRO on a subpoena by the Senate Court to the Philippine Savings to produce bank records of what have turned out to be foreign currency deposits (dollar accounts) of the accused Chief Justice Renato C. Corona:
(via @rapplerdotcom):

"May I now state the position of this humble presiding officer. And this position is subject to the opinion of the court, of the Senate sitting as an impeachment court.

"In the humble view of the presiding officer, the Senate as an impeachment court must at all times observe the rule of law.

"It cannot transgress any of the applicable provisions of the bill of rights. It must be guided by the presumption of innocence, before the pronouncement of guilt. It must at all times observe the principle of procedural and substantial due process.

"It cannot use its power to issue compulsory process or processes to compel any witness to appear and testify and in testifying is forced to commit a crime. It cannot compel a witness to testify against himself.

"It cannot arbitrarily declare a person guilty of contempt and deprive of that person his or her liberty.

"It cannot violate the laws passed by Congress of which it is an integral part.

"That is the humble position of this presiding officer of this Senate sitting as an impeachment court.

"Now, as far as the subpoena duces tecum involved, which was issued by this presiding officer upon the behest of the prosecution, this presiding officer assumes full responsibility for issuing that subpoena. And is ready to defend his position in any court of law if there is a need for that.

"I will not pass the buck to the Senate sitting as an impeachment court. It was my decision as the presiding officer and I am personally bound to assume the consequences of my action as a presiding officer.

"Having said that, I do not wish to delve on the issue [on the] exercise to issue compulsory processes by this court in this particular instance involving Republic Acts 1405 and 6426.

"I do not want to make any pronouncement on that because precisely this court, through this presiding officer, exercised the discretion to heed the request of the prosecution to issue a subpoena duces tecum to help them obtain the evidence they wanted in the face of proscriptions by laws of the land passed by Congress.

"And that is the subject matter now of the case before the Supreme Court filed by a private party asserting its rights under the laws of this country and under the Constitution to be protected from any liability, and that is the reason for which the Supreme Court issued a TRO.

"And that is the reason why this court, or a majority of this court, yesterday ruled, in an open, uninfluenced voting that the court must respect the order of the Supreme Court to issue its temporary restraining order.

"Whether or not in the end this court abused its discretion or committed a grave abuse of discretion amounting to lack of or excess of jurisdiction will be decided...by the Supreme Court being the highest court of the land and the final arbiter and interpreter of the Constitution of this country.

"For no one else was given by the sovereign people in their Constitution the power to make a final determination or interpretation of what the Constitution ought to be or what a law ought to be except the Supreme Court.

"Not the executive. Not congress. But only the Supreme Court.

"And so it is my bounded duty as the presiding officer of this impeachment court to respect the authority, the power of the Supreme Court to review acts of this impeachment court, in interlocutory matters, meaning, matters bearing on the manner which this court will conduct the trial of this particular impeachment case.

"But it is my humble view that the Supreme Court, in spite of the fact that it has the power of judicial review, cannot assume jurisdiction over the power, the sole power of this Senate sitting as an impeachment court to try and decide this impeachment case.

"That is the position of this humble presiding officer."

As the Senate President says at the outset, this opinion is yet to be discussed by the Senate Court. Doubtless it will be debated at length and modified somewhat, but I expect its most durable features to survive into the Majority view.

The most important of these may be the distinction JPE draws between a POWER and a JURISDICTION, between the Supreme Court's power of Judicial Review and the Senate's sole power as Impeachment Court to TRY and DECIDE all cases of impeachment and the JURISDICTION in which each power is applicable under the 1987 Constitution.

In particular, JPE believes the Supreme Court may exercise judicial review over INTERLOCUTORY MATTERS, by which he means the "manner" by which the Senate Impeachment Court conducts the trial, but draws a Line in the Sand beyond which not even the Supreme Court may cross: it may not take jurisdiction over "the power, the sole power of the Senate to try and decide this case." which is explicitly stated in the 1987 Constitution's Article 11 Section 3.6-8:

(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 Supreme Court's judicial powers are in the 1987 Constitution Article VIII, in particular, for the purposes of this discussion:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.  Judicial power includes [1] the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and [2] to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Above is a much quoted and discussed provision of 1987. So Manolo Quezon's recent links to the sponsorship speech of Justice Roberto Concepcion before the 1986 Constitutional Commission is worth reviewing.  In that speech, one discovers the intent of the Framers of 1987 to give the courts of justice an EXPANDED CERTIORARI POWER, a special power of judicial review not given even to the United States Supreme Court.

Notice that Judicial Power includes two DUTIES of the courts of justice:

(1) to settle actual controversies involving rights which are legally demandable and enforceable.
(2) to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The first duty is "conventional" and is the usual definition of what Judiciaries do, such as those in the Western traditions of America and England from which our own justice system is largely derived.  Courts of justice SETTLE cases of controversy among persons based on the laws.

The second duty is the much ballyhooed EXPANDED CERTIORARI POWER granted in 1987, which obliges courts of justice, as their duty, to determine the existence of something called grave abuse of discretion by "any branch or instrumentality of the Government" in a quantity or degree that "amounts" to a violation of JURISDICTION.

Now look at the very last point Enrile makes:

"But it is my humble view that the Supreme Court, in spite of the fact that it has the power of judicial review, cannot assume jurisdiction over the power, the sole power of this Senate sitting as an impeachment court to try and decide this impeachment case.

 If the Supreme Court is supreme, why can it not assume jurisdiction over the Corona Trial? Because it would be grave abuse of its discretion! ("except for interlocutory matters--so ordered!"-JPE)

I think it is a line in the sand.

((February 14 Valentines Day was Juan Ponce Enrile's 88th birthday. Happy Birthday!))

Enrile Doctrine on Supreme Court and Senate Impeachment Court

Senate President JUAN PONCE ENRILE speaks on the central and most germane topic of the Supreme Court and the Senate Impeachment Court here in Rappler Dot Com. Since everything that comes before is a gimme,  the take away line for me is at the end where JPE says in the clearest possible way.

Look at the very last declarative sentence in JPE peroration on Impeachment:

JPE: "But it is my humble view that the Supreme Court, in spite of the fact that it has the power of judicial review, cannot assume jurisdiction over the power, the sole power of this Senate sitting as an impeachment court to try and decide this impeachment case."

In other words, the Senate Impeachment Court will obey the Law and the laws (of course!) But it will NOT surrender the "JURISDICTION over the sole power" given to it by the 1987 Constitution in Article XI Sec 3.6  to TRY and DECIDE all cases of impeachment (now and until the Constitution is amended!)

This means to me that IF the Supreme Court should attempt to "assume JURISDICTION over the power, the solve power of this Senate sitting as an impeachment court" then the Supreme Court itself could be deemed to be in GRAVE ABUSE of its DISCRETION  amounting to what JPE and SIC and the People would deem to be an UTTER LACK of JURISDICTION under the 1987 Constitution!

Therefore, the Supreme Court CAN be found guilty of Grave Abuse of Discretion amounting to lack of jurisdiction should it try to assume the Senate's sole power over impeachment cases under the Constitution under the very Article VIII that it currently uses against the political departments. Everyone should read the EXACT TEXT and not what others say the Constitution says:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. 

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The Senate Impeachment Court can make such a finding of Grave Abuse against the Supreme Court itself because it is indubitably a "Court of Justice" as the entirety of the Enrile Doctrine definitely proclaims and upholds.

JPE's lasting contribution to impeachment-related jurisprudence is the establishment of the principle that even Article VIII Section 1 can be made to apply to the grave abuses of discretion by the Supreme Court itself, at least under the auspices of a competent, coordinate, Constitutional Court, like the Senate Impeachment Court! (So ordered!)

Carpio's Dissent on Supreme Court TRO for PSBank

Below is the dissent of Justice Antonio Carpio  in the suit of Philippine Savings Bank (PSBank) for certiorari and prohibition against the Senate Impeachment Court's subpoena for bank records covering foreign currency deposits of the accused Chief Justice Renato Corona. The voting in the Supreme Court was 8-5 in favor of granting the TRO, which was announced during the Senate impeachment trial last Thursday. In Monday's Senate caucus, the Senator-Judges voted 13-10 to submit to the Supreme Court's TRO of Corona's foreign currency deposits.   

EN BANC

G.R. No. 200238 - PHILIPPINE SAVINGS BANK and PASCUAL M. GARCIA III, as representative of Philippine Savings Bank and in his personal capacity, Petitioners, - versus – SENATE IMPEACHMENT COURT, consisting of the Senators of the Republic of the Philippines, acting as Senator Judges, namely: Juan Ponce Enrile, Jinggoy Ejercito Estrada, Vicente C. Sotto III, Alan Peter S. Cayetano, Edgardo J. Angara, Joker P. Arroyo, Pia S. Cayetano, Franklin M. Drilon, Francis G. Escudero,Teofisto Guingona III, Gregorio B. Honasan II, Panfilo M. Lacson, Manuel M. Lapid, Loren B. Legarda, Ferdinand R. Marcos, Jr., Sergio R. Osmena III, Kiko Pangilinan, Aquilino Pimentel III, Ralph G. Recto, Ramon Revilla, Jr., Antonio F.Trillanes IV, Manny Villar, and the Honorable Members of the Prosecution Panel of the House of Representatives, Respondents.

Promulgated:

February 9, 2012

x-----------------------------------------------------------------------------------------x

DISSENTING OPINION

CARPIO, J.:

I dissent because the majority ruling makes a mockery of all existing laws designed to insure transparency and good governance in public service.

The majority ruling in effect advises all government officials and employees that they can legally evade reporting their actual assets in their Statement of Assets, Liabilities and Net Worth, which is required by the Constitution¹ and RA Nos. 3019² and 6713,³ by simply opening foreign currency deposit accounts with local banks. The majority holds that under Section 8 of RA No. 6426,⁴ foreign currency deposits of government officials and employees are absolutely confidential, even in impeachment or bribery cases filed against them. The majority declares that foreign currency deposit accounts can be opened in any judicial, administrative, legislative, or impeachment inquiry only if the account owner himself consents in writing to open his account to his prosecutors or investigators.

The world will now know that Philippine foreign currency deposit accounts provide a much better safe haven for ill-gotten wealth than Swiss bank accounts. Former President Ferdinand Marcos was wrong in depositing hundreds of millions of U.S. dollars in Swiss bank accounts.⁵ Had he deposited, even in his own name, the money in foreign currency accounts with local banks under RA No. 6426, as amended by his three Presidential Decrees,⁶ he would have gotten away with his loot under this ruling of the majority.

Is this the intention of Section 8 of RA No. 6426 when it mandates the secrecy of foreign currency deposits? The answer is clearly no. Section 8 was inserted by PD No. 1246, whose last two Whereas clauses provide:

Whereas, in order to insure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines, certain incentives were provided for under the two Systems such as confidentiality of deposits subject to certain exceptions and tax exemptions on the interest income of depositors who are non-residents and are not engaged in trade or business in the Philippines;

Whereas, making absolute the protective cloak of confidentiality over such foreign currency deposits, exempting such deposits from tax, and guaranteeing the vested rights of depositors would better encourage the inflow of foreign currency deposits into the banking institutions authorized to accept such deposits in the Philippines thereby placing such institutions more in a position to properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country. (Emphasis supplied)

Thus, PD No. 1246 expressly declares that the secrecy of foreign currency deposits under Section 8 of RA No. 6426 is intended to protect “depositors who are non-residents” because the purpose of the secrecy is to “encourage the inflow of foreign currency deposits” to Philippine banks from such “depositors who are non-residents.”

This express intent of PD No. 1246 was affirmed by the Supreme Court in several cases. In Salvacion v. Central Bank,⁷ decided in 1997, this Court ruled:

In his Comment, the Solicitor General correctly opined, thus:

x x x

It is evident from the above [Whereas clauses] that the Offshore Banking system and the Foreign Currency Deposit System were designed to draw deposits from foreign lenders and investors (Vide second whereas of PD No. 1034; third whereas of PD No. 1035). It is these deposits that are induced by the two laws and given protection and incentives by them. (Emphasis supplied)

In Salvacion, the Court emphatically stressed that the deposits protected under the Foreign Currency Deposit System are “deposits from foreign lenders and investors.”

Likewise, in China Banking Corporation v. Court of Appeals,⁸ decided in 2006, the Court declared:

It must be remembered that under the whereas clause of Presidential Decree No. 1246 which amended Sec. 8 of Republic Act No. 6426, the Foreign Currency Deposit System including the Offshore Banking System under Presidential Decree 1034 were intended to draw deposits fromforeign lenders and investors, and we quote:

Whereas, in order to assure the development and speedy growth of the Foreign Currency Deposit System and the Offshore Banking System in the Philippines, certain incentives were provided for under the two Systems such as confidentiality of deposits subject to certain exceptions and tax exemptions on the interest income of depositors who are nonresidents and are not engaged in trade or business in the Philippines;

Whereas, making absolute the protective cloak of confidentiality over such foreign currency deposits, exempting such deposits from tax, and guaranteeing the vested rights of depositors would better encourage the inflow of foreign currency deposits into the banking institutions authorized to accept such deposits in the Philippines thereby placing such institutions more in a position to properly channel the same to loans and investments in the Philippines, thus directly contributing to the economic development of the country. (Emphasis supplied)

Thus, in China Banking Corporation, the Court again stressed that “the Foreign Currency Deposit System including the Offshore Banking System under Presidential Decree 1034 were intended to draw deposits from foreign lenders and investors.”

Even GSIS v. Court of Appeals,⁹ decided in 2011, which the majority cites in its ruling, also declared that “Republic Act No. 6426 was intended to encourage deposits from foreign lenders and investors.” Clearly, the secrecy of foreign currency deposits in Section 8 of RA No. 6426, a special law, applies only to “foreign depositors and investors.”

What secrecy then applies to Philippine citizens who hold foreign currency deposits with local banks? Such deposits of Philippine citizens are governed by RA No. 1405,¹⁰ the general law on secrecy of bank deposits, which provides:

Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (Emphasis supplied)

Under Section 2 of RA No. 1405, “all deposits of whatever nature with banks xxx may be examined, inquired or looked into xxx in cases of impeachment.” Thus, there is no question that the impeachment court can pry open the foreign currency accounts of impeachable officers.

There is even a more compelling legal ground why the foreign currency accounts in question are not confidential. Section 8 of RA No. 6713, as amended, mandates the disclosure of the assets of government officials and employees who “have an obligation” to disclose their assets. Moreover, Section 8 expressly states that “the public has the right to know the assets” of government officials and employees. Section 8 of RA No. 6713 provides:

Sec. 8. Statements and Disclosure. Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, the assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age and living in their households. (Emphasis supplied)

Thus, government officials and employees have the “obligation” to disclose their assets to the public, and the public has “the right to know” the assets of government officials and employees. This “obligation” of government officials and employees to disclose all their assets is absolute and has no exception. The right of the public to know the assets of government officials and employees is also absolute and has no exception.

What the majority has ruled is that government officials and employees have no obligation to disclose their foreign currency accounts, and that the public has no right to know such foreign currency accounts. This completely violates Section 8 of RA No. 6713. The majority ruling invents an exception that is not found in Section 8 of RA 6713. This exception renders Section 8 of RA 6713 useless. Government officials and employees can simply open foreign currency accounts and deposit all their cash in such accounts. Then they no longer have the “obligation” to disclose their cash assets, and the public no longer has “the right to know” such assets.

Section 8 of RA No. 6713¹¹ is a much later law than Section 8 of RA No. 6426.¹² The repealing clause of RA No. 6713 states that “all laws, decrees and orders or parts thereof inconsistent herewith, are deemed repealed or modified accordingly, unless the same provide for a heavier penalty.”¹³ Since there is an irreconcilable inconsistency between Section 8 of RA No. 6713 and Section 8 of RA No. 6426, the later law, which is RA No. 6713, prevails. In short, the government officials and employees’ “obligation” to disclose their assets, and the people’s “right to know” such assets, as expressly mandated by Section 8 of RA No. 6713, prevails over the secrecy of foreign currency deposits under Section 8 of RA No. 6426, granting that such secrecy applies to Philippine citizens.

Incidentally, Chief Justice Renato C. Corona has publicly admitted that he owns the foreign currency accounts in question. ThePhilippine Star news report entitled “Disclosure in Due Time, Says CJ”, written by Perseus Escheminada on 11 February 2012, states in part:

MANILA, Philippines - Chief Justice Renato Corona yesterday admitted having dollar accounts and vowed to disclose them in due time.

Corona belied insinuations that his bid in the Supreme Court to stop the subpoena of the Senate impeachment court on his foreign currency accounts in Philippine Savings Bank (PSBank) was a sign of guilt or obvious move to conceal the truth.

“I will make the disclosure in due time,” the Chief Justice told The STAR in a text message.

He explained that he filed an urgent petition seeking the issuance of a temporary restraining order (TRO) on the impeachment trial, including the subpoena on his dollar accounts, because his rights were being violated in the proceedings.

Corona said he just wanted legal issues to be resolved first before the disclosure of his dollar accounts.

With this admission that he owns the foreign currency accounts in question, Chief Justice Corona has the “obligation” to disclose these foreign currency assets to the people, who have “the right to know” his assets.

The Constitution mandates that “public officers and employees must at all times be accountable to the people.”¹⁴ A government official or employee who refuses to be accountable to the people by not disclosing assets he admittedly owns, despite his “obligation” to so disclose to the people, who have “the right to know” his assets, puts himself beyond accountability to the people.

Accordingly, since the foreign currency accounts in question are not covered by Section 8 of RA No. 6426, and petitioners will not suffer grave and irreparable injury, I vote to DENY petitioners’ prayer for a Temporary Restraining Order.