(This is a project for my Legal Writing class. Our instructions were to pretend to be a lawyer-professor with a column on a newspaper of general circulation, and write about our view on the current impeachment process. For fun, I made my persona a novelist instead of a mere columnist, but God knows how difficult it is to be a practicing lawyer and a novelist at once.)
Legal Schizophrenia
Professor CMG Lucero teaches Constitutional Law at the University of X. She is a senior partner at the Lucero and Lucero Law Offices. On her spare time, she puts on the finishing touches on her first novel, A Touch of Red on Robes of Black.
As early as January 18, 2012, I have expressed views in my blawg Closet Fantasies my views on the impeachment. In the entry “Legal Schizophrenia,” I made a comparison between my conflicting thoughts on the impeachment: that of a bohemian artist/novelist vis-à-vis a lawyer-professor hoping to impart on the future generation of lawyers a learned veneration for the sacred institution of law. This paper now seeks to elaborate on a doodle I wrote that day. Now, my artist’s intuition tells me that there might be dubious matters unbecoming his position that the Chief Justice hides; and yet as a law professor, presumption of innocence and good faith are among the first things I impart upon my students. Meanwhile, I made a compromise and an analysis of sorts regarding the impeachment before trial commenced. I also classified the two major views regarding the impeachment: the liberal view and the conservative view.[1] (In a way, the discussion regarding the two views has been moot, considering the performance of the prosecution panel. I will elaborate on this later.)
The “Conservative” and the “Liberal” Views
Most of my esteemed colleagues take what I classify as the “conservative” view on the impeachment. I use the term “conservative” here to refer to “doubtful view of the desirability of altering proven institutions and societal values. Respect for authority, custom, and tradition permeate a conservative value system. In particular, changes in the moral ordering of society are seen as very suspicious and probably harmful.[2]” As it is basically a numbers game, some of us believe it has since become a tool by the executive that already has power of a good number of allies in both Houses of Congress, to gain control of the judiciary. Conspiracy theories abound that once the Chief Justice is successfully removed from office via impeachment, the remaining justices would not dare oppose the administration in any of their decisions and resolutions. This would then lead to an abnormal situation wherein the independence and interdependence of the branches would fall under the whims and caprices of the Chief Executive and his allies (or pork barrel-controlled puppets) in Congress.
Generally, I disagree with the conservative view. I did not consider a so-called “attack” on the Chief Justice as an attack on the institution of the judiciary. I did not think—and I still do not think—that trying the Chief Justice would threaten the autonomy of the Judiciary, as the Chief Justice is not in any way the Supreme Court in the manner that Louis XIV is the State. Putting it candidly, Mr. Justice Corona simply cannot claim the divine right of kings (or chief justices) by saying, “La Cour suprême, c’est moi.” He is simply an officer, albeit a high-ranking one, bound just like anyone else under the rule of law. Granting him due process therefore consists in the obligation to have him tried by a competent court (i.e., the Senate sitting as the impeachment court) for violations alleged to him.
This now leads to a discussion of the “liberal” view—that impeaching the Chief Justice, or any member of the Supreme Court for that matter, would threaten the independence of the judiciary and the interdependence of the tripartite system of government. (Note that the word “liberal” does not make any reference whatsoever to the political party bearing the same name; it is used verba legis.)
I use the term “liberal” to describe what may be briefly summed up in the theory of New Liberalism vis-à-vis social justice, where the good of the community is harmonious with the rights of the individual. Connecting this ideology with the impeachment, it is, in a nutshell, the right of the people, through their representatives, to remove from power he whom they no longer trust, without prejudice to the branches of government. Taking from Raul Pangalangan, former Dean of the University of the Philippines College of Law, in his article “Save the Constitution from the Court[3],” the “courts do not have a monopoly to divine its [the Constitution’s] meanings. Holmes recognized that ‘legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’” The people themselves also have a say on the Constitution! And if it is their will that the Chief Justice, who has been alleged to have committed a multitude of offenses including a culpable violation of the Constitution and a betrayal of public trust, then their representatives in Congress have the duty to see to it that the will of the sovereign Filipino people is followed. Such an act then does not constitute an offense against the independence of the judiciary or even the interdependence of the branches of government. It is merely a manifestation of the system of checks and balances.
A Constitutional Crisis?
As of the time I’m writing, the Supreme Court has just rendered a decision issuing a temporary restraining order on the subpoena regarding the Chief Justice’s dollar accounts, albeit the same body has deferred to issue another TRO on the entire impeachment proceeding[4]. (This latter act would indeed create a constitutional crisis alive and kicking, as the impeachment court is, though sui generis, a coequal branch of government. To put it candidly, it serves as the sovereign people’s court trying the moral fitness of an impeachable officer, spearheaded by the people’s elected representatives. This is also why apart from “removal from office and disqualification to hold any office under the Republic of the Philippines[5],” there is no other sanction for the impeached officer coming from the impeachment court. Regardless of the result of the impeachment, however, the officer may be liable and subject to prosecution, trial and punishment according to law.[6])
Though there is no argument at all about the authority of the Senate sitting as an impeachment court to hear and decide on the case against the Chief Justice, where does the authority of the same body end with regard to existing laws, and especially vis-à-vis the constitutional mandate of the Court to wield the judicial power, defined as “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 on the part of any branch or instrumentality of the Government[7]”? With regard to the temporary restraining order issued by the Supreme Court on the subpoena on the Chief Justice’s dollar accounts on a number of banks, would a constitutional crisis ensue if the Senate as an impeachment court still insist on disclosing said documents, particularly as the impeachment court is on equal footing with the other branches of Government? Where would the power of the impeachment court with regard to the controversial documents end and judicial power on determining grave abuse of discretion amounting to lack or excess of jurisdiction begin? These are questions I hope will, for the duration of the trial, become moot and academic, as a possible showdown between those two bodies are most definitely detrimental to our legal system and country as a whole.
Unread and Unprepared
“Do not be hasty, that is my motto,” said Treebeard in The Lord of the Rings. I must now express utter dissatisfaction with the conduct of the prosecution panel as a whole. It must be remembered now that there have been allegations that the 188 representatives did not fully read the text of the Articles of Impeachment, but rather signed it hastily. It has now been confirmed by no less than Representative Farinas of the prosecution panel.[8] Was such an act done because in the back of their minds, the representatives knew that the burden of prosecuting lay on a select few of their brethren, and that of judgment on their peers in the Senate[9]?
It is also unbecoming for the prosecution that as early as Day 2 of the trial, the prosecution brought out computer-generated documents without any mark of authentication whatsoever. Needless to say, Presiding Officer Senate President Juan Ponce Enrile refused to acknowledge such.[10] Has the prosecution forgotten a cardinal rule
As a law professor it is utterly irresistible for me to draw an analogy between the prosecution panel and law students. Most, if not all, law students prefer to excuse themselves from class lest they face the terror and embarrassment of coming unprepared. Has the prosecution panel forgotten what is like to be a law student fearing shame and humiliation at the prospect of being caught unprepared?
And as if it is a joke, the prosecution panel continued to stage a mediocre performance in the afternoon “Coronavela.” Such is seen when Megaworld witness Noli Hernandez’s testimony backfired on the prosecution’s allegation that the Chief Justice received an enormous discount on his penthouse unit in posh The Bellagio Towers in Taguig City. Instead of presenting evidence for an alleged violation against the Anti-Graft and Corrupt Practices Act[11] (which was not even alleged in any of the Articles of Impeachment), Hernandez’s testimony provided that the forty percent discount would have been available to anyone and everyone at the time it was given.[12] On February 2, 2012, Lead Prosecutor Representative Tupas responded to Senator Escudero’s query that only 24 out of the 45 assets revealed to the media beforehand would be presented in the prosecution’s evidence. (In the first place, why even disclose the information to the media even before the trial commenced? I would discuss this later.) These are but a few of the bloopers of the trial, notwithstanding Senator Santiago’s sky-high blood pressure level or the occasional jokes brought about when Senator Lapid stood up to ask the prosecution questions on February 12.
Media-Savvy Compensation
Which leads me to my next point. I believe that the prosecution has erred in disclosing to the media the 45 alleged assets and properties of the Chief Justice even before the impeachment commenced. While the layman—and even the bohemian in me—sees this as a probable ploy on part of the prosecution to gain public sympathy, it is nevertheless against a strict interpretation of Rule 13.02 of the Code of Professional Responsibility, which states: “A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.” (Emphasis provided.) What is the point of disclosing such to the media? The prosecution knew as much as everybody else that the impeachment trial would be fully covered by the media, and all such allegations would eventually be released.
While the trial itself may not be austerely categorized as “trial by publicity[13],” the prosecution should have, in the
name of professionalism at the very least, refrained from calling a press conference announcing the number of assets the Chief Justice allegedly owns. Absent the showing that such would influence the decisions of the senator-judges, it cannot be held that the Corona impeachment is a trial by publicity. Because even when public opinion holds the Chief Justice in utmost contempt, such cannot directlyinfluence or even coerce the senator judges with regard to their decisions the proceedings. I say directly, because the impeachment, as aforementioned, is a way wherein certain public officers become answerable to the sovereign people through their representatives; the people themselves cannot vote or decide on any impeachment proceeding.
Conclusion: When the Novelist (And Everyone Else) Faces Reality
Among the first things I have learned when I began to study law was to avoid presumption of guilt and bad faith when reasonable doubt and preponderance of evidence. As a humanities enthusiast, where limitless imagination is highly prized and authority is, as a matter of course and principle, critically and creatively questioned, the law requires a strict compliance with the rules, no if’s and but’s. Imagination and speculation may serve a prosecutor or a defense counsel only so much, but it is the establishment of cold, hard facts vis-à-vis positive law that determines the outcome of any judicial proceeding. In the case of Chief Justice Corona, while popular opinion and an unrestrained free spirit tend to believe that there are anomalies, the rule of law, which is supreme over any art, dictates that due process, not unbridled imagination and/or speculation, should prevail. In the immortal words Themistocles to Eurybiades, “Strike, but hear me first![14]” the Chief Justice is entitled to a fair hearing. And this is what he indeed gets, notwithstanding conjectures to the contrary.
A post-script I might also add to this paper. I believe that the Chief Justice, regardless of his guilt or otherwise, is already “damaged goods.” Looking at it from the liberal point of view, the recent move by the defense to have the Supreme Court issue a Temporary Restraining Order on the entire impeachment procedure seems to me a most desperate strategy. Creating a constitutional crisis in order to delay the trial and impede the speedy disposition of justice might be a good tactic. At any rate, if I were the defense, I would have capitalized on the manifest unpreparedness of the prosecution, which seems from many angles wielding fair enough substance but devoid of form. But no amount of technicalities that the defense might provide and use to block evidence, however devoid of form, would save the Chief Justice now. It is my humble opinion that the only honorable recourse for him would be to resign, and spare the nation tedious hours and expenses for Coronavela; and as we do not live in a Confucian society wherein shame is purged by the tonsure or the tantō blade, his mere admission of his sins—whatever they may be—and the return of what is not rightfully his, might be considered enough.
Endnotes
[1] Lucero, Consuelo. Legal Schizophrenia. [Blog]. Retrieved on February 10, 2012 from http://closet-fantasies.blogspot.com/2012/01/legal-schizophrenia.html
[2] Riley, Jim L. Moderate Political Ideologies. Retrieved on February 10, 2012 from http://academic.regis.edu/jriley/libcons.htm
[3] Philippine Daily Inquirer, December 29, 2011
[4] http://newsinfo.inquirer.net/142717/sc-bars-impeachment-court-from-opening-corona-foreign-currency-accounts
[5] Art. XI, Sec. 3(7), 1987 Constitution
[6] Ibid.
[7] Art. VIII, Sec. 1(2), 1987 Constitution
[8] http://www.philstar.com/Article.aspx?publicationSubCategoryId=63&articleId=775420; http://newsinfo.inquirer.net/141409/prosecution-team-member-admits-corona-impeach-complaint-poorly-crafted
[9] Art. XI, Sec 3(1). The House of Representatives shall have the exclusive power to initiate all cases of impeachment. x x x (6) The Senate shall have the sole power to try and decide all cases of impeachment. x x x
[10] I watched the telecast of GMA News TV on January 17, 2012. The impeachment trial formally commenced a day before, on January 16.
[11] RA No. 3019, as amended. Sec. 3 (b) thereof provides: Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law.
[12] http://www.abs-cbnnews.com/business/01/31/12/megaworld-corona-deal-we-uphold-highest-ethical-standard and http://www.abs-cbnnews.com/business/01/31/12/megaworld-corona-deal-we-uphold-highest-ethical-standard. In a nutshell, Hernandez testified that the enormous P10 million discount to the Chief Justice was because of the combination of a discount on punctual payment, a storm that caused water damage to the penthouse unit, and the global financial crisis of 2008 that caused, among others, the prices of real estate property to go down.
[13] In order to warrant a finding of “prejudicial” publicity, there must be an allegation and proof that the judges have been unduly influenced, not simply that they might be, by the “barrage” of publicity. (Martelino vs. Alejandro, G.R. No. L-30894, March 25, 1970)
[14] Justice Isagani A. Cruz. “Due Process of Law,” Constitutional Law. Quezon City: Central Bookstore. 2007.
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