Three possible scenarios for looming showdown
Week 4 of Chief Justice Renato Corona’s impeachment trial featured the testimonies of Internal Revenue Commissioner Kim Henares on income tax returns (this time, of Corona family members) and of several bank officials on the Corona spouses’ bank accounts.
This evidence pertained to Articles 2.2 and 2.3 on non- or under-reporting of Corona’s statements of assets, liabilities and net worth (SALNs). Earlier, the Senate disallowed evidence on Article 2.4 on ill-gotten wealth, which it deemed to have been inadequately drafted.
But this wasn’t a total setback for the prosecutors.
One, they can still ferret out those assets that were omitted from or underdeclared in the SALNs. Thus, the earlier witnesses who testified on titles to real estate, condominium penthouses and country club shares.
Two, they can still prove ill-gotten wealth but via a roundabout way—by comparing the Corona assets with the reported income and, if the assets were manifestly disproportionate to that income, apply the legal presumption that these constitute “ill-gotten wealth.”
This presumption is not “conclusive.” It’s just a “disputable” presumption that merely shifts to Corona the burden of explaining how he acquired that wealth.
Third, the prosecutors’ next problem was that when they requested a subpoena for Corona’s bank information, they attached copies of a confidential bank document. They used a document that had been allegedly illegally leaked, in violation of the Bank Secrecy Law.
‘Small lady’
They said it was an anonymous “small lady” who passed the document to them—a situation that presents the damned-if-you-do, damned-if-you-don’t-dilemma.
Without the attachment, the defense would have shouted “fishing expedition!” But with the attachment, the defense shouts “ill-gotten evidence!”
At this stage, suffice it to say that the defective document itself is not needed as evidence, and the Bangko Sentral is right in investigating the breach of bank secrecy.
Given the raging debate on bank secrecy, the Senate allowed the prosecution to begin presenting evidence on Article 3, which accuses Corona of betrayal of public trust for, among others, flip-flopping decisions, and conferring or otherwise communicating ex parte with litigants.
They began with the president of the union of Philippine Airlines flight attendants and stewards, whose case was affected by the flip-flopping. There were preliminary issues raised by the senator-judges on how much of the flip-flopping can be blamed on the Chief Justice.
Exception to rule
On Monday the past week, the Senate compelled the banks to disclose information on the Corona bank accounts. It confronted the public interest in the confidentiality of bank deposits by which the state encourages us to place our savings in banks.
On the other hand, the Bank Secrecy Law itself exempts impeachment proceedings from the gag rule. Accordingly, the Senate granted the subpoena, provided the prosecution specified the document they wanted and showed its relevance to the SALNs.
The Senate also assured the public that the secrecy of bank deposits remained in force, and that impeachment-related disclosure was just the exception to that rule.
One of the banks subpoenaed, Philippine Savings Bank (PSBank), sent its president to assert the primacy of bank secrecy. The impeachment court still compelled him to testify on the peso deposits, but in the meantime, PSBank asked the Supreme Court to enforce the secrecy of foreign currency deposits.
‘Acquittal via TRO’
The Chief Justice likewise asked the high court to step in, but raised, not just bank secrecy, but fundamentally the validity of his impeachment itself.
He said the House hastily filed the impeachment complaint without proper hearings and declared that it should not be limited to non-filing of SALNs but must be widened to also include underdeclaration and ill-gotten wealth.
That is a broad-gauged attack that Rep. Sonny Angara calls “acquittal via TRO (temporary restraining order).”
The Senate also refused to subpoena the Supreme Court justices and the confidential records of their deliberations.
Interdepartmental courtesy
It affirmed the separation of powers and interdepartmental courtesy, while affirming itself as “the sole power to try and decide all cases of impeachment.”
Indeed, during the testimony of the bank officials, Senate President Juan Ponce Enrile, in deference to the Supreme Court, limited the testimony to exclude foreign currency deposits.
It was the turn of the Supreme Court to be asked to give the same courtesy and respect to the Senate as an impeachment court. But on Thursday afternoon, the high court did not oblige, and issued a TRO stopping the Senate from compelling evidence on foreign currency deposits.
Outright defiance
There are three scenarios for the showdown.
The first is outright defiance. The Senate can completely ignore the high court’s TRO and compel the banks to disclose information on Corona’s foreign currency deposits. The bank officials will be torn between obeying the Senate under pain of contempt, or respecting the high court and refusing to disclose.
If the bankers defy the Senate, they will be detained by the Senate’s sergeant at arms. They will then file for habeas corpus before the regular courts, possibly even the Supreme Court, no less.
Will any court ignore a Supreme Court order? The downward spiral toward a constitutional crisis escalates.
If the bankers respect the Senate and disclose the secret bank details, the depositor will sue them criminally.
The prosecuting officer can either uphold the Senate order (citing several exceptions to bank secrecy) and drop the charges, or defer to the TRO and charge them criminally, saying that the bankers had thus prematurely disclosed confidential information. This can go either way.
Outright surrender
The second scenario is outright surrender. This would mean that, having gone through the hoops of complying with the TRO and assuming that the high court makes the TRO permanent, the Senate would meekly comply.
The prosecutors could actually provide the face-saving exit, saying that they would not insist on the evidence on the dollar deposits and conclude that they have enough evidence to make the charges stick. (Conversely, if the high court, emboldened by this trial balloon, expands the TRO to stop the trial altogether, perhaps we revert to the first scenario.)
The third scenario is for the Senate to comply with the TRO in the meantime. The senators will respect the TRO, halt the subpoena on foreign currency deposits, and explain to the Supreme Court why it has no jurisdiction to interfere in the Senate’s discharge of its role as the “sole power” to try impeachment cases.
By doing so, the Senate will be respecting the high court’s power “to settle actual controversies involving rights which are legally demandable and enforceable”—and that includes the statutory right to bank secrecy.
Moreover, it will be respecting the high court’s review powers over any “grave abuse of discretion” by any instrumentality of government.
This pays due homage to the fact that the high court could have actually done worse, and didn’t.
Worst-case scenario
One, it acted merely on the PS Bank petition, and deferred acting on Corona’s. It finessed its action to avoid the appearance of thumbing its nose at the Senate. Two, in the range of worst-case scenarios, it could’ve broadened its TRO to stop not just the presentation of bank evidence but the impeachment trial itself.
The anti-Corona camp has argued—rightly—that it doesn’t make a difference that the high court acted merely on the PSBank plea and solely on bank confidentiality. After all, the same issue lies at the heart of both the PSBank and Corona petitions, namely, the larger issue of the separation of powers.
It is the essence that matters, not the side issues.
Davide case
The real problem of the Senate here is actually the Supreme Court’s decision stopping the impeachment of Chief Justice Hilario Davide Jr. in 2003.
In that case, the high court went all-out to block Davide’s impeachment, citing the most sacred incantations on judicial review.
It said: “This Court [will] not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. … It is suggested [we] have actually closed ranks to protect a brethren. … Why can [the Court] not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branch’s official act as tested by the limits set by the Constitution?”
It concluded: “The Chief Justice is not above the law and neither is any other member of this court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individual’s rights irrespective of his station in life.”
Limits on Congress
The author Raoul Berger says: “It was never intended that Congress should be the final judge of the boundaries of its own powers [as if] Congress was left free to rampage at will. … ‘Limits’ on Congress determined by Congress itself would be no limits at all.”
He concludes: “[T]here is no place in our constitutional system for the exercise of arbitrary power. The sole power to try affords no more exemption from that doctrine than does the sole power to legislate …”
In the Davide impeachment, this author, together with former Sen. Jovito Salonga, called on the Supreme Court to avoid a rush to judgment and rely on the political branches to find the “fitting remedy for evil counsels.”
Today the time is ripe for judicial restraint.
