Is the Supreme Court Exempt From Silly Midnight Bans?

The ban on midnight appointments in the 1987 Constitution can be found in Art VII Sec. 15 The Executive:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

Nothing would seem to be clearer or more definite, and yet on March 17, 2010 the Philippines Supreme Court ruled that appointments to the Supreme Court are exempt from this ban in a Decision penned by J. Bersamin GRP191002 

The Supreme Court today ruled that the prohibition under Article VII, Section 15 of the Constitution against presidential appointments immediately before the next presidential elections and up to the end of the term of the President does not apply to vacancies in the Supreme Court.

But it required a breath taking somersault and the dusting off of some hitherto unknown "framers' intentions" from the darkened folios and dim recollections of the 1986 Constitutional Commission:

In its March 17 decision, the Court said that “Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.“

Like so many others who have read this SCoRP decision, I'm disgusted with the Corona Supreme Court  for exempting itself from the long-standing Midnight Ban on Election-Period Appointments by the President in a brazen demonstration of SELF-SERVICE that I believe amounts to a grave abuse of juridical and logical discretion. Well so much for stare decisis non movere? So much for Final Arbiter?

Consider this bit of prose in the Bersamin Ponencia GRP191002:

"...that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the President’s power to appoint members of the Supreme Court to ensure its independence from “political vicissitudes” and its “insulation from political pressures,”[33] such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice."

The clause I've highlighted in red in the above paragraph contains a very deceptive and sly piece of reasoning about why the Judicial Department might be exempt from the midnight ban on appointments. It is based on the purely facile observation that the ban is not mentioned in Article VIII on the Judicial Branch of government, but in Article VII on the Executive Branch.  But what could be more obvious?  The 1987 Constitution places the ban on election period appointments in the Executive Branch (1987 Article VII Section 15) for the obvious reason that the appointing power is the Chief Executive. Even more clearly, the ban applies to all presidential appointments to all branches of government, except as noted in the same 1987 provision. 

By their rules shall we bind them

Joaquin Bernas, S.J. worries about a number of things in regards to IMPEACHMENT.

First is whether the impeachment trial is a civil or criminal proceeding. Second is what the Quantum of Evidence and Proof are required to convict. Though Fr. Bernas claims to be exasperated with the term,  I'm quite comfortable with impeachment being a sui generis process, whose nature, practices and rules of procedure are evolving with the institution as the Congress learns how to wield the special Constitutional powers of impeachment granted exclusively and solely to the House and Senate.  The Rules of Senate and House, separately and together with the orders, rulings, proceedings, records, testimonies relating to the Senate Impeachment Court and the trial of the accused Chief Justice Renato Corona are now the body of jurisprudence and official record by which we are giving life to Article XI of the 1987 Constitution on Accountability of Public Officers.

By itself, the text of the 1987 Constitution is necessarily too thin and laconic, to satisfy the intellectual demands of Constitutionalists and ordinary citizens that impeachment be better defined. But look at 1987.XI.Sec3(8):

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

Like a magical link, this provision empowers the House and Senate to literally create whatever RULES on impeachment they need to "effectively carry out the purpose" of impeachment.  The evolution, adoption and utilization of these Rules are a matter of public interest and record and should be open to public debate like any other important matter of public policy.

Fr. Bernas also addressed the matter of what penalties go with conviction by the Senate Impeachment Court. He does not answer a question I still don't have a good answer to: what happens if Accused CJ resigns before a verdict is pronounced. He clearly vacates his post, but is a permanent lifetime ban automatically attached to resignation, or does the Senate have to impose it? How does resignation differ from conviction in regards to subsequent civil and criminal prosecution?

Constitutional Ban on "Midnight Appointments"

The 1987 Constitution expressly commands the President:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

In January, 2010, Constitutionalist Fr. Joaquin Bernas opined that anyone accepting an unconstitutional appointment would be an accomplice in the act and be liable for impeachment, as indeed  Renato Corona has found himself to be, impeached and presently on trial in the Senate, after PGMA appointed him Chief Justice just two days before the 2010 May elections.

Bernas' point is crystal clear: Renato Corona in this case has committed a culpable violation of the Constitution by accepting a clearly unconstitutional appointment from President Gloria Arroyo right smack in the middle of the period during which a Constitutional ban exists on such "midnight appointments."

Keeping An Eye on K+12

Starting with the appointment of De La Salle University's Bro. Armin Luistro as Secretary of Education, the Aquino administration has committed both political capital and vast budgetary resources to the K+12 Basic Education Program.


Integral to K+12 is the introduction and adoption of a largely new K+12 Basic Education Curriculum which the department has to sell to Congress in order to get the requisite multiyear legislative commitment of funding and support as the Department undertakes a most ambitious expansion program from the present ten year basic education cycle to the global standard thirteen year K+12 program.

The Deped affords a glimpse at its upcoming new K+12 Curriculum in this Press Release.

Enjoyable, easily understood lessons using the language spoken at home, less contact time, and interactive.

These are just some of the features of the new curriculum for Grade 1 and first year high school students that the Department of Education will implement starting June 2012 under the K to 12 basic education reform program.

Education Secretary Br. Armin A. Luistro FSC said the new curriculum is centered more on the students rather on the traditional way of teaching which is focused on the teacher. “We are making it a real learning experience for the students, meaning, it will be less on memorization but more encouraging of critical thinking,” he added.

It helps that the new K to 12 curriculum will implement the mother tongue-based multi- lingual education (MTB-MLE) in studying lessons from Kinder up to Grade 3. Studies have shown that students learn better when the language used at home is the same language used in discussing class lessons. DepEd is already piloting MTB-MLE in various schools nationwide using eight major regional dialects.

I'm all for those "enjoyable, easily understood lessons" (especially in algebra and high school chemistry). I'm also full of hope and some apprehension over the "Mother tongue-based multi-lingual education" to be used in Kindergarten to Grade 3. I wonder how this helps in the declared purpose of the K+12 Curriculum to facilitate the beginning of formal Science subject study at Grade 3.

When the Department first removed the Health and Science Subject from the Basic Education Curriculum in Grades One and Two, on of several reasons advanced was this. Many students at Grade 1 & 2 are supposedly unprepared to absorb Science Lessons because of lack of English proficiency. So they suggested that formal Science Subject start at Grade 3 with Science "integrated" with the English Subject. But after ten years, do the outcomes justify continuing the policy of a truncated science curriculum? In my opinion, the answer is NO!  

Expanded Certiorari Power

Consider the opening provision of Article VIII on the Judiciary in the 1987 PH Constitution:

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.

Above provision comes as two separate sentences.  The first vests the Judicial Power in one Supreme Court and in such lower courts as may be established by Law. The second statement appears to be the Constitutional well-spring of the so-called "expanded certiorari power" allegedly vouchsafed to the Judiciary by the 1987 Constitution.

What is most often adduced is that virtually any question involving the Constitution and any instrumentality of the government, can be addressed to the Supreme Court for its Judicial Review and adjudication as the Final Arbiter of the Constitution.  "The Constitution means what the Supreme Court says it means." has become the battlecry of judicial papists who see the Constitution as a secular equivalent of the Catechism to be interpreted by the Supreme Court of wise justices.

The Alpha List

The so called Alpha List of "local employees" giving their salaries and tax withheld is explained by private prosecutor ARTHUR LIM in the video clip shown by Rappler Dot Com. During yesterday's trial session during which the main prosecution witness was Bureau of Internal Revenue Commissioner Kim Jacinto Henares And some Scream Therapy from Senator-Juror Miriam Defensor Santiago

Article Eleven

The historic trial of the Philippines Supreme Court Chief Justice Renato C. Corona is covered under Article Eleven of the 1987 Constitution. This article is all about the Accountability of Public Officers--of which there are exactly thirty-one (31) impeachable officials, namely: President, Vice President, Ombudsman, 15 Supreme Court Justices, 7 Comelec, 3 Civil Service, and 3 Audit Commissioners. For convenience I am quoting in full the first 3 sections of the relevant article 11 of the Constitution:

1987 Constitution Art XI 

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.

Eleven Years Ago Today

ELEVEN YEARS AGO TODAY, on Saturday, 20 January 2001, Hilario Davide, was wearing the robes of the Chief Justice of the Supreme Court when he strode up to the stage at the Edsa Shrine to swear into office as President of the Republic of the Philippines, its grey-garbed Vice President, Gloria Macapagal Arroyo.  But it was without legitimacy that he administered this oath, for contrary to the fiction he had forced upon the Court earlier that day, then President Joseph Estrada was not PERMANENTLY DISABLED, as claimed in a towering lie of a fax sent to the Court on behalf of  Mrs. Arroyo (by her then Chief of Staff Renato C. Corona [sic!] )but watching in disbelief from Malacanang Palace, with a gun to his head held by agents of AFP Chief o Staff Angelo Reyes, their co-conspirator in a coup d'etat that would later be hailed as the Edsa 2 People Power Revolution.

I was in the hooting throng that cheered this event as liberation from a corrupt President Estrada, but we did not know of the fiction by which the Supreme Court Chief Justice was acting in utter violation of the 1987 Constitution, did not know that Joseph Estrada would not leave Malacanang until after this incredible turn of events.  Three months later, and based on an alleged diary kept by then Executive Secretary Edgardo Angara, the Supreme Court would "construe"--actually they would CONSTRUCT--an Erap resignation, in the landmark ruling Estrada v. Arroyo.

But whatever eloquent arguments are to be found in that decision, the simple fact is that to this day, Joseph Estrada denies he ever resigned, and there is no resignation letter to be found. Moreover, just four days previous, on 16 January 2001, a crucial vote at his Senate impeachment trial, the so-called Second Envelope Vote, proved to one and all that he had at least eleven votes to sustain an eventual and near certain ACQUITTAL in that trial. So that since he had submitted entirely to the processes of impeachment by the House and Trial by the Senate, he had every expectation of being found not guilty of all four charges brought against him. WHY THEN WOULD HE RESIGN except for fear of his life and that of his family at the hands of the mutineers led by Gen. Angelo Reyes in conspiracy with Arroyo and Davide?

ELEVEN YEARS AGO TODAY, a date that is hardly mentioned now in the newspapers or by any one at all, because it is in fact the date of a Filthy Family Secret, the Supreme Court of the Philippines had usurped the "sole power of the Senate to TRY and DECIDE all cases of impeachment." This, it did not by some jurisprudential act or decision, but by authorizing Hilario G. Davide Jr. to simply and illegally swear in the Vice President. Instead of carrying out his duty as Presiding Judge of the Senate Impeachment Court, and pretending to be "preventing violence" Davide threw out the Rule of Law, violated the 1987 Constitution, and forever etched his name in history as a villain who destroyed democratic rule and opened the gates to the ruinous nine year reign of Gloria Macapagal Arroyo.

Related: When Last the Military Withdrew Support

Impeachment as Sui Generis Process

The following is a story I have published at Storify based on a Twitter conversation with Teddy Boy Locsin. It covers several different topics related to the ongoing impeachment trial of Chief Justice Renato Corona.

Day Two: Padre Faura Punts, Prosecution Fumbles

Day Two of the impeachment trial of Chief Justice Renato Corona produced a number of interesting developments.

First, away from the Senate, the Supreme Court did not create a Constitutional Crisis some worried about by issuing a TRO nullifying the Impeachment Complaint of the House of Representatives. Instead the High Court deferred any decision on five separate suits urging Padre Faura to do so, notably that of lawyers Homo Adaza and Alan Paguia based on the accusation that there was no proper verification of the complaint transmitted to the Senate for trial. It gave all parties ten days to submit their Comments.

Second, the first hour or so of the resumed trial proper saw the Senate deny the Prosecution's motion to issue subpoenae to Chief Justice Corona, his wife, children and other relatives summoning them to testify at the trial. The ruling of presiding Senator Juan Ponce Enrile was challenged by Sen. Alan Peter Cayetano, but was upheld upon the subsequent vote 14-6.

Third, the question of the role of private prosecutors on the House team was settled.

Fourth, the subject of blaring headlines tomorrow occurred. The House Prosecution turned out to be unready to present admissible evidence on the matter of the Accused's property holdings, the subject matter of the second charge in the impeachment complaint. It was a near complete rout for the Prosecution as JPE would not accept computer generated material from the Prosecution without the requisite evidentiary verifications of the same and instead, mercifully for the abashed House presenter, Rep. Barzaga, allowed for an immediate adjournment of the session to Wednesday. Trying to put the best face on the embarrassing development House Prosecutors called it "a learning experience." The less flattering characterizations are all over Twitter where #CJonTrial is trending.

Day One Ends in Prosecution Win But Will Supreme Court Take Up Corona's Fight?

Day One of the impeachment trial of Chief Justice Renato Corona ended in an unequivocal victory for the House Prosecution team. After hearing both sides address the issue of the validity or nullity of the House impeachment complaint, and even allowing the Defense two turns on the key issues of verification and due process based on notice and hearing for the Accused, Presiding Senator-Juror Juan Ponce Enrile DENIED FOR LACK OF MERIT the Defense's plea for a full blown judiciary-style Preliminary Hearing.  Citing the House's compliance with Article XI of the Constitution ("exclusive power to initiate all cases of impeachment") and its own House Rules for doing so, he rejected Defense counsel and former Supreme Court Justice Serafin Cuevas' arguments based on Supreme Court decisions, such as Art Panganiban's ponencia in the Francisco case.

Discussions on Twitter among my correspondents there have centered on what will happen now at the Supreme Court, where hearings on five petitions for a TRO nullifying the House Impeachment Complaint largely on the same grounds as propounded by Cuevas, such as that by lawyers Homobono Adaza and Alan Paguia, are scheduled to start tomorrow 17 Jan 2001.  The BIG QUESTION is whether the Supreme Court will indeed intervene.

One suggestion comes from @ageofbrillig who opines that the Supreme Court is not likely to intervene before a verdict of conviction is rendered by the Senate weeks or months from now. Another comes from Francis Acero (@FrancisAcero) who opines that the High Court might require the Senate to grant the Defense's motion that a full blown Preliminary Hearing be conducted to establish probable cause and touch other judicial bases before proceeding with trial proper.

I think that both scenarios are unlikely for the following reasons.

In the case of @ageofbrillig's scenario of the Supreme Court waiting for a verdict of conviction, there would be by then a huge preponderance of evidence that the accused Chief Justice Renato Corona is in fact guilty of one or more of the eight charges against him.  Public Opinion will surely have hardened by then and with a two thirds majority of the Senators having to concur in such a verdict of guilt, the Supreme Court would have to wage a  huge political battle to reverse not only perception but solid trial evidence and other process that it may have neither the fortitude nor the public support to carry out.  A verdict of conviction would be politically insuperable for it to overcome. Not only would the Court have to retry FACTS it would have to reverse however many rulings and deliberations and votes the Court will by then have accomplished.

As for the notion of @FrancisAcero that the Supreme Court might in the next week or two decide to overrule Juan Ponce Enrile's ruling today, it might occur to them that they would then be risking the ire not only of a House of Representatives that could turn around and impeach one or more of them, but also that of Enrile and the Senators behind him for dissing the Senate Impeachment Court's first major ruling.

I think the Supreme Court will think twice about doing either of these two things, out of either a natural pusillanimity of unelected judges to take on both Houses of Congress with its hardened politicians as well as the Mass Media and the Public, and/or a growing instinct of self-preservation from a fight that only now involves the Chief Justice anyway.  

On a lighter note, I have received some humorous comments on the graphic shown here that I've adopted from the Bill Clinton Impeachment in the United States because the Chief Justice has been at great pains to paint himself as a victim and a saint--even holding Novena Masses at the Supreme Court itself in violation of Freedom of Religion articles in the Constitution and allowing himself to be photographed receiving Communion from Manila Archbishop Juan Luis Tagle and even weeping in confession to Archbishop Oscar Cruz.   The Church has allowed itself to be used as a prop by the Chief Justice, because I believe it is hoping to stop the Reproductive Health Bill in the Supreme Court if and when Congress passes that controversial measure into law and President Aquino signs it.

The Impeachment of Chief Justice Renato Corona

Impeachment Complaint against Chief Justice Renato C. Corona (full text at Chan Robles Law Library)

The Chief Justice of the Supreme Court of the Philippines, Renato Corona, was impeached by the House of Representatives as authorized by the 1987 Philippine Constitution when 188 Members signed the above Impeachment Complaint against him last December 12, 2011. His trial in the Philippine Senate will commence tomorrow, Monday, January 16, 2012.

Here is a helpful Primer on this historic document and event from Spacelab Infographics.

The Rules of Impeachment in the Philippine Senate were duly adopted last year in preparation for the trial of Ombudsman Merceditas Gutierrez, but she resigned before the trial could begin. A Primer on the Rules has also been released by the Senate.

A flattering short biography or curriculum vitae of the impeached and accused Chief Justice has been published by Ed Malay on Facebook: Renato Corona: A Life of Grit and Determination.

The trial that begins tomorrow is only the third impeachment (including those of President Joseph Estrada in November, 2000 and Ombudsman Merceditas Gutierrez in 2010) against a so-called "Constitutional Officer" of the Republic of the Philippines since 1987, of which there are 31: President, Vice President, Ombudsman, 15 Supreme Court Justices, 7 Commission on Election members, 3 of the Civil Service Commission and 3 from the Commission on Audit.

Here is the full text of the the 1987 Philippine Constitution (also at Chan Robles Law).


ABSCBN News has a fairly comprehensive Summary of the Corona Trial  including the Answer of the accused Chief Justice to the Impeachment Complaint and the answers to the Answer from the House Prosecutors. 

Philippine Commentary Rides Again!

I am dusting off Ye Olde Philippine Commentary after a long period of dormancy because the impeachment of Chief Justice Renato Corona bids me to re-enter the old fray.

Eleven years ago today, on 15 January 2001, the Philippine Daily Inquirer published my weekly Commentary in their Opinion/Editorial section. In it I was analyzing the likely course of then President Joseph Estrada's ongoing Impeachment Trial in the Philippine Senate. In that small essay I noted that since he was on trial for four separate charges brought against him the House of Representatives, there was some combination of Guilty/Not Guilty verdicts that could either convict or acquit him depending on how the 24 Senator-Judges actually voted. After going through the combinatorics, I wrote that if there were ELEVEN Senators  behind him, he could be acquitted of all charges by them, yet each could find him guilty in at least two or three of those charges because in none of them would there be the required 2/3 majority vote to convict.

Little did I know that on the very next day, on 16 January 2001, there would indeed be a crucial vote in the Impeachment Trial, in which what would later be called the Craven Eleven Senators would propose a vote called the Second Envelope Vote, in which it became clear Joseph Estrada would surely be acquitted of all charges and be found Not Guilty by the Senate Impeachment Court. The vote was 11-10 to exclude what was thought to be a piece of evidence that would convict the President in the eyes of the Public (but which would later turn out to be the opposite, though too late!)

Senator Tessie Aquino Oreta would dance an infamous jig for joy whilst then freshman Senator Loren Legarda would weep in front of the cameras. House Prosecutors led by then Congressman, now Senator Joker Arroyo, would walk out of the trial. At the famous Edsa Shrine small groups of anti-Erap demonstrators began to gather and cell phones which had only then began to be used in the Philippines would call out more and more of them until their numbers swelled throughout the night. In the next three days anti-Erap demonstrations would continue 24 hours a day under continuous television and radio coverage, until on 19 January 2001 Armed Forces Chief of Staff Angelo Reyes would walk onto the podium and announce that the AFP had mutinied against the President and were joining calls for him to step down.

We all know what happened next (or perhaps we don't know!) but in any event, on the very next day, on Saturday 20 January 2001, the Presiding Officer of the impeachment trial, then Chief Justice of the Supreme Court Hilario Davide would swear in Vice President Gloria Macapagal Arroyo as President of the Republic of the Philippines!  The full story is told in dozens of posts right here on Philippine Commentary to which I shall have occasion to refer in the coming days.

Suffice it to say, that from that historic event to this very day, everything that has happened has seemed to conspire to produce the event upon whose brink we stand, as the House has impeached Renato Corona, then Chief of Staff of Vice President Arroyo, and whose trial begins on 16 January 2012, the self-same anniversary of the historic Vote on the Second Envelope!

Much has transpired in the intervening eleven years, dominated by the ill-fated Presidency of Gloria Macapagal Arroyo, who today is under arrest for electoral sabotage and is now under "hospital arrest" at the Veterans Memorial Medical Center.

We shall have several opportunities to re-examine all those events of yesteryear, and since. Suffice now only that I welcome back old readers of Philippine Commentary, and greet many new ones who were perhaps too young to have participated in or remember those important events. But all are witness again to another cataclysm in Philippine politics which I am honored to reflect and write upon in the impeachment of Chief Justice Renato Corona.