"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.

Cuevas' Curve Ball on Correcting SALNs

During his cross examination of BIR Commissioner KIM HENARES, the venerable Defense Counsel, JUSTICE SERAFIN CUEVAS (he in the perpetual white suit), gave the very strong impression (which I got myself from not knowing any better) that the matter of correcting errors on a SALN is no big deal and that the accused Chief Justice ought to have the chance to do so. Being the experienced trial lawyer that he is, Justice Cuevas exact words are no doubt defensible--that he meant no intentional misdirection. But the truth, the whole truth about this matter is best found in Supreme Court Decisions like G.R.176058, PAGC v. Pleyto (March, 2011)  Abscbn News Jojo Malig analyses a Supreme Court decision in the light of the Defense counsel's statements in Court.

   Other cases wherein the Supreme Court rejected the notion that Section 10 of RA 6713 allows SALNs to be corrected are G.R. Nos. 190580-81 promulgated February 21, 2011 by the high tribunal's Second Division. 

The erring official, a treasurer of Parañaque City, claimed that he was entitled to be informed of any error in his SALN and should have been given the opportunity to correct it. 

"True, Section 10 of R.A. 6713 provides that when the head of office finds the SALN of a subordinate incomplete or not in the proper form such head of office must call the subordinate’s attention to such omission and give him the chance to rectify the same. But this procedure is an internal office matter," the Supreme Court said.
"The notice and correction referred to in Section 10 are intended merely to ensure that SALNs are 'submitted on time, are complete, and are in proper form.' Obviously, these refer to formal defects in the SALNs," it added.
The court ruling said the charges against the Parañaque official are for falsification of the assets side of his SALNs and for declaring a false net worth.
"These are substantive, not formal defects," the court said. "It would be absurd to require such heads to run a check on the truth of what the SALNs state and require their subordinates to correct whatever lies these contain. The responsibility for truth in those SALNs belongs to the subordinates who prepared them, not to the heads of their offices."

The Decision was penned by J. Roberto Abad and certified by RENATO CORONA less than a year ago!

Popular Constitutionalism Versus Judicial Supremacy

Above is my reading and recording of an article in the Yale Law School Legal Scholarship Repository written by Robert Post and Reva Siegel on the ideas of Stanford Law School Dean Larry Kramer addressing the topic in our post title on Philippine Commentary today.

Related to these considerations are the following links due to Manolo Quezon (@mlq3 on Twitter):

First is the Sponsorship Speech by former Justice Roberto Concepcion of Article VIII (The Judicial Department)  of the 1987 Constitution.  Second is the debate on whether impeachment ought to be given to the Supreme Court or the Senate in 1986 Constitutional Commission.

Protestant Constitutionalism Versus Catholic Constitutionalism

The concept of Protestant Constitutionalism is due to Sanford Levinson writing in his 1988 book Constitutional Faith, in which he distinguishes it--lo and behold--from Catholic Constitutionalism as described by Jack Balkin:

Constitutional catholicism stands for the view that a certain group of professional or learned authorities has the last word on interpretation, while protestantism, as we have seen, invites all believers to offer their views on the meaning of scripture. Sandy gives both positions their due, but he is essentially a constitutional protestant. Just as protestant believers must figure out what the Bible means for themselves in order to achieve salvation, so too individual members of the political community must decide for themselves what the Constitution means in order to go forward with the constitutional project.

Read More about this here.

On Grave Abuse of Discretion and Betrayal of Public Trust

In trying to answer this question, we must look at two particular articles of the 1987 Constitution.

The judicial power is mentioned in 1987 Constitution Article VIII Section 1 

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.

On the other hand, impeachment power is found in  1987 Constitution Article XI Section 2:

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.

Lately, I've been thinking a lot about the two phrases "grave abuse of discretion" and "betrayal of public trust" and the 1987 provisions quoted above. I think they are central to the current struggles involving all three branches of the the Government.

Notice that Betrayal of Public Trust is listed as an impeachable offense in 1987 Article Eleven on Accountability of Public Officers. Meanwhile,  Grave Abuse of Discretion is an offense whose existence is now the duty of the courts of justice to determine, under 1987 Article Eight on The Judicial Department.

Under the 1987 Constitution, the Impeachment Power is vested in the Congress (from initiation of a Case of Impeachment to its final and executory judgment after trial and decision by the Senate Impeachment Court).

Meanwhile the Judicial Power  is vested "one Supreme Court" and "in such lower courts as may be established by law." Significantly, Art.VIII Sec. 1.2 defines the Judicial Power as composed of two DUTIES of the COURTS OF JUSTICE: (1) to settle actual controversies involving rights that are legally demandable and enforceable -- which is the traditional role of judiciaries in free democratic countries. and (2) to determine the existence of "grave abuse of discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of government."

Above second duty of the "courts of justice" under the 1987 Constitution is often referred to as the EXPANDED CERTIORARI POWER of the Philippine Judiciary. The landmark Supreme Court Decision Francisco Jr. v. House (2003) quotes former Chief Justice Reynato Puno's description of this 1987 innovation:

          In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power.  For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts “x x x 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.”  This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also Xeroxed from the US Constitution or any foreign state constitution.  The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine.  Led by the eminent former Chief Justice Roberto Concepcion,  the CONCOM expanded and sharpened the checking powers of the judiciary vis-a-vis the Executive and the Legislative departments of government. In cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is now beyond dubiety that the government can no longer invoke the political question defense.

It is very clear from Puno that Expanded Certiorari Power has become the Superman Suit of the Supreme Court, into which it changes from time to time, not to exercise judicial supremacy, but according to Justice Tinga in Francisco v. House:

      The term “judicial supremacy” was previously used in relation to the Supreme Court’s power of judicial review,[43] yet the phrase wrongly connotes the bugaboo of a judiciary supreme to all other branches of the government. When the Supreme Court mediates to allocate constitutional boundaries or invalidates the acts of a coordinate body, what it is upholding is not its own supremacy, but the supremacy of the Constitution.[44]  When this supremacy is invoked, it compels the errant branches of government to obey not the Supreme Court, but the Constitution.

Supreme Court Covers Dollar Accounts of Chief Justice Corona

YESTERDAY, a local commercial bank (PS Bank) was granted by the Supreme Court a Temporary Restraining Order (8-5 majority Corona & Velasco abstaining, valid until lifted) to stop the Senate from enforcing subpoenas upon it that would've forced the bank to divulge foreign currency bank accounts of accused Chief Justice Renato Corona to the Prosecution of the Senate Impeachment Trial.   The bank's prayer was immediately heard by the Supreme Court and speedily granted, perhaps because it was solidly based on R.A. 6426 which covers such foreign currency deposits, in particular:

Section 8. Secrecy of foreign currency deposits. – All foreign currency deposits authorized under this Act, as amended by PD No. 1035, as well as foreign currency deposits authorized under PD No. 1034, are hereby declared as and considered of an absolutely confidential nature and, except upon the written permission of the depositor, in no instance shall foreign currency deposits be examined, inquired or looked into by any person, government official, bureau or office whether judicial or administrative or legislative, or any other entity whether public or private; Provided, however, That said foreign currency deposits shall be exempt from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. (As amended by PD No. 1035, and further amended by PD No. 1246, prom. Nov. 21, 1977.)

Along with PSBank, the accused Chief Justice Renato Corona also filed with the High Court, an urgent motion for certiorari and prohibition against the Impeachment Complaint and Senate Impeachment Trial itself, for among other things, denying him Due Process. This was according to Serafin Cuevas in court yesterday, describing the nature of the suit filed by the Defense on behalf of the Accused earlier this week (Monday) with the Supreme Court.

Although the PSBank prayer was immediately granted protecting his dollar accounts, the Supreme Court has given the Parties ten days to comment on Corona's prayer to nullify the impeachment complaint and void the trial proceedings to date.

The Senate Impeachment Court proceeded with testimony and evidence yesterday on the PESO ACCOUNTS of the Accused Chief Justice, which are covered by R.A. 1405 with its significant exemption for cases of impeachment:

Sec. 2. 1 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.

At one important point, indeed, the Senate President Juan Ponce Enrile himself elicited from the Witness PSBank President confirmation of the existence of ten bank accounts owned by Renato Corona by asking ten times in a row, "Does account number so-and-so exist in your records? (Yes or No)" I do believe some of these accounts are subject of the Supreme Court's TRO covering foreign deposit accounts of the Chief Justice.

SOME PEOPLE ARE ASKING what in the world is the Chief Justice of the Supreme Court doing with five secret dollar bank accounts?  that he is now running to his own collegial buddies at Padre Faura to keep absolutely secret from the prying eyes of that rights-trampling crowd at the Senate Impeachment Trial?

The New Code of Judicial Conduct and Corona's Pro Bono Lawyers

The New Code of Judicial Conduct  (as well as the old one, of course) contains a number of provisions that certainly call into question the propriety of the impeached Chief Justice Renato Corona accepting the free legal services of top-ranked lawyer luminaries and their Law Firms to defend him. The controversy has arisen in the Impeachment Trial proper after Rep. Rudy Farinas called attention to it this week.

For example in Section 3 of Canon 4 (Propriety) we find the following provision:

SEC. 3. Judges shall, in their personal relations with individual members of the legal profession who practice regularly in their court, avoid situations which might reasonably give rise to the suspicion or appearance of favoritism or partiality.

It would appear to be common knowledge that the law firms of Serafin Cuevas and others who've flocked to aid the impeached Chief Justice, also have many active high profile high pay off legal cases active in the Supreme Court.   As such, the privileged relationship between the Accused and his counsels represents just the sort of "personal relations" banned in the above provision, for certainly the arrangements have given rise to suspicions that those lawyers and their law firms stand to gain a good deal by their largesse.  Both they and their beneficiary however, are culpable under the present Code of Judicial Conduct and surely the previous ones too.

And again in Section 13 of the same Canon 4:

SEC. 13. Judges and members of their families shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties.

The services being rendered by the Defense have famously been delivered "pro bono".  Speaking at Kapihan last Monday, former Senator Rene Saguisag said of this matter:

“And here (Corona) is not the only one complicit, but also all his lawyers serving pro bono,” Saguisag added.  During President Clinton’s impeachment trial,” Saguisag continued, “the Clinton couple paid for their legal bills from the proceeds of their respective autobiographies. They really had high-powered lawyers who were not serving for nothing, unlike Corona who is being defended by a battery of high-powered lawyers who were serving for nothing, and therefore were violating with Corona Rule 504 of the Code of Judicial Conduct.

AM 11-10-1-SC Letters of Estelito Mendoza GR 178083

Here is that Supreme Court Minute Resolution which was the subject of testimony in the Corona Trial today: AM 11-10-1-SC Letters of Estelito Mendoza

Please take notice that the Court en banc issued a Resolution dated OCTOBER 4, 2011, which reads as follows:
"A.M. No. 11-10-1-SC (Re: Letters of Atty. Estelito P. Mendoza re: G.R. No. 178083 - Flight Attendants and Stewards Association of the Philippines (FASAP) v. Philippine Airlines, Inc. (PAL), Patria Chiong et al.

RESOLUTION 

Pursuant to Section 3 (m) and (n),^[1] Rule II of the Internal Rules of the Supreme Court, the Court En Banc resolves to accept G.R. No. 178083 (Flight Attendants and Stewards Association of the Philippines [FASAP] v. Philippine Airlines. Inc. [PAL], Patria Chiong et al.) and to take cognizance thereof.
The Court En Banc further resolves to recall the resolution dated September 7, 2011 issued by the Second Division in this case.
The Court furthermore resolves to re-raffle this case to a new Member-In-Charge. (Carpio, Velasco. Jr., Leonardo De Castro and Del Castillo, JJ., no part. Brion, J., no part insofar as the re-raffle is concerned.)^[2]
 

Very truly yours,

(Sgd.) ENRIQUETA E. VIDAL
Clerk of Court

---

^[1] SEC. 3. Court en banc matters and cases. - The Court en banc shall act on the following matters and cases:

xxxxxxxxx 

(m) subject to Section 11(b) of this rule, other Division cases that, in the opinion of at least three (3) Members of the Division who are voting and present, are appropriate for transfer to the Court en banc; 
(n) cases that the Court en banc deems of sufficient importance to merit its attention:

^[2] Justice Brion will participate in the proceedings of this case subsequent to the re-raffle to a new Member-In-Charge.

In this summary flip flopping fashion, a fourteen year old case which had been won by the plaintiff--a Philippine Airlines Union (FASAP)--and which had survived several Motions for Reconsideration, was instead reversed, re-raffled and is still pending in the Supreme Court, allegedly because of direction action taken by the accused Chief Justice Renato Corona.

Double Jeopardy and Impeachment

JOAQUIN BERNAS in his PDI Commentary today addresses a question I've been discussing in Social Media recently:

One question that must also be asked is whether there is a difference between the meaning of “Guilty” as found in a judicial decision and “Guilty” as found in an impeachment conviction when they are dealing with offenses of equal gravity. 

There is a difference in the result. When a court convicts for treason or bribery, it makes a judgment that the person must make amends through loss of life or liberty. When an impeachment court imposes removal from office, it makes a judgment that there are compelling reasons for shielding the nation from further harm but leaving retribution to the judgment of a court. For that reason, prosecution after conviction on impeachment does not constitute double jeopardy. However, the needed quantum of proof for either criminal conviction or impeachment conviction are not far from each other, if there is a difference at all.

I am puzzled and nonplussed by the concluding statement of Fr. Bernas. for if there were no difference at all in the quanta of proof to convict on impeachment trial AND to convict on criminal trial, why should judgment be limited to removal from public office and not proceed to criminal fine or imprisonment?

I agree of course that it is NOT double jeopardy for impeached Constitutional officers to be tried possibly twice for the same offense: once in the Senate, and upon removal through the regular Courts. But I also don't agree that there ought to be a double burden of criminal prosecution on the state.

It would seem only most reasonable to conclude that the quantum of evidence for conviction upon impeachment trial ought not to rise to the level of technicality and compliance that a later criminal procedure will surely impose any way.

I suppose one important point to uphold is that conviction upon impeachment is not guarantee of conviction upon any subsequent criminal action that might ensue.

High Crimes

1987 Art XI Section 2 names the impeachable offenses:

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.

The second week of trial in the impeachment case of Chief Justice Renato Corona ended on a sour note for the Prosecution, as several Senator Judges (Jinggoy, Recto, Chiz) rose up to question the impeachability of offenses Corona is being accused of, or at least what they may amount to if the process of presenting evidence cannot be made more efficient and convincing.

Defense Counsel Justice Serafin Cuevas put a really fine point on it by saying that there were were no criminal or administrative sanctions for unintentional inaccuracies in ones Statement of Assets, Liabilities and Net Worth.