Impeachment trial scorecard
On the Supreme Court, Judge Learned Hand quipped “it would be most irksome to be ruled by a bevy of Platonic Guardians … I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”
Rule of law demands not mechanical adherence but active scrutiny of our developing constitutional tradition.
Impeachment is the most political of political exercises and Sen. Antonio Trillanes IV, for example, intends “to use political acceptability as the sole criterion” for his vote.
It falls to each citizen to form a critical opinion of the impeachment’s progress and this outline of prosecution and defense pleadings aims to help one keep score.
DEFINITIONS
Betrayal of public trust: intentionally undefined, catch-all impeachment ground
Culpable violation of the Constitution: willful violation of the Constitution
PART 1
Issue: May impeachment examine doctrines developed in Supreme Court decisions (without changing winners)?
Raul Pangalangan
(Former UP Law Dean)
The people are the Constitution’s ultimate interpreters
Impeachment is their designated check and balance, through elected representatives, to demand accountability and correct a constitutional interpretation that has no resonance
Prosecution
Supreme Court decisions show Chief Justice Renato Corona’ s bias; the Impeachment Court is not asked to reverse them
Fr. Joaquin Bernas
(Ateneo Law Dean Emeritus)
The Supreme Court has power to interpret the Constitution
The people only assert sovereignty in elections and plebiscites, not in survey results and rallies
Defense
Under separation of powers, the Impeachment Court may not
review Supreme Court decisions
PART 2
Issue: May Corona be impeached even though he represents only one Supreme Court vote?
Prosecution
Corona is accountable individually for the votes; a criminal is not
absolved if “fellow conspirators” are not prosecuted
Corona abused broad administrative powers; engineered temporary restraining order (TRO) allowing former President Gloria Macapagal-Arroyo (GMA) to “flee from the country” and suppressed Justice Ma. Lourdes Sereno’s dissenting opinion
Corona presented himself as embodying the judiciary
Defense
Punishing one but not the other for identical acts is not law
Corona is not liable for decisions of a collegial body
PART 3
Preliminary: Verification
CONST. Art. XI, §3(4): “In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House … trial by the Senate shall forthwith proceed.” Verified in Rules of Court means accompanied by affidavit that affiant has read document and allegations are true and correct based on personal knowledge or authentic records.
Prosecution
Legal presumption that members of the House of Representatives perform duties regularly; no House member withdrew his or her signature
Despite hearsay reports, there is no evidence that less than one-third of House members failed to read the complaint
Verification by one person is sufficient
Technicalities are barred; trial proceeds after one-third of House members filed the complaint
Defense
House members publicly admitted that they had no opportunity to read the complaint and were offered “material considerations” to sign it
Verification is a constitutional requirement, not a mere technicality
PART 4
Article 1A: Unconstitutional midnight appointment
GMA appointed the Chief Justice on May 17, 2010, after the elections and 43 days before her term ended
Prosecution
CONST. Art. VII, §17: Beginning two months before the presidential election, the President shall not make appointments
President Diosdado Macapagal nullified his predecessor’s midnight appointments, the Supreme Court upheld because the outgoing President cannot obstruct his successor
Bernas in 2010: “any person who accepted the post of Chief Justice from Mrs. Arroyo would open himself or herself to impeachment”
Defense
CONST. Art. VIII, §4(1): Any Supreme Court vacancy shall be filled within 90 days
The Supreme Court ruled that there was no midnight appointment
Article 1B: Bias Corona voted pro-GMA in 78 percent of decisions according to a Newsbreak study
Prosecution
Although the Supreme Court is collegial, Corona consistently voted pro-GMA (See 15 major cases in sidebar.)
Defense
Corona is only one vote in a collegial body
No rule for a Justice to inhibit against the President who appointed him
In another study of 125 decisions, Corona voted pro-GMA in only 29 percent
PART 5
Article 2: Withheld SALN
CONST. Art. XI, §17: Justices must disclose to the public statements of assets, liabilities and net worth (SALNs) as prescribed by law. (Corona files his SALN with the Supreme Court but does not disclose it.)
Prosecution
Republic Act No. 6713 requires SALNs to be publicly available;
Supreme Court guidelines cannot amend law
Corona did not disclose his SALN when an NGO requested it
SALN excludes high-value properties, including a 300-square-meter unit in the Bellagio in Bonifacio Global City, contrary to anticorruption law
Defense
Republic Act No. 6713 disallows SALNs from being obtained contrary to public policy
Supreme Court 1989 guidelines allow SALNs to be withheld to protect judges from harassment
Corona disclosed the Bellagio penthouse in his SALN; assets are “mostly from his professional toils”
PART 6
Article 3: Lack of integrity
CONST. Art. VIII, §7(3): A judge must have “proven competence, integrity, probity and independence”
Article 3A: Estelito Mendoza letter
Prosecution
The Supreme Court “flip-flopped” on the final decision on Philippine Airlines (PAL) flight attendants; ruled against them after personal letter from Mendoza (alleged lawyer for GMA), with no opportunity for them to comment
Corona is not listed among nonparticipating justices in 2011
PAL resolution
Reasonable suspicion of bias means lack of probity
Defense
Letters treated as official communication are not secret
Corona inhibited himself from PAL case
PAL case is pending, may not be discussed
Article 3B: Wife’s John Hay appointment
Prosecution
Unethical for Corona’s wife to be appointed board member then chair of John Hay Management Corp. (JHMC) by GMA, who wrote letters to support her
Defense
Corona’s wife was appointed to JHMC board in 2001, before Corona was appointed Justice
Wife can pursue own government career
Article 3C: Vizconde massacre case
Prosecution
Unethical for Corona to meet Lauro Vizconde and Vizconde’s known
supporter; illegal under anticorruption laws to discuss confidential details of the Supreme Court case
Defense
Corona met the head of an anticrime NGO, did not know Vizconde would come
They initiated discussion on the case, not Corona
PART 7
Article 4: Ombudsman impeachment restrained
The tribunal restrained the House committee on justice from pursuing the impeachment of former Ombudsman Merceditas Gutierrez
Prosecution
The order was issued within 24 hours over objections of three justices and before, according to Sereno, some justices even received copies of the petition
Defense
Supreme Court rules assign one Justice to prepare a report on the TRO petition and authorize prompt action
Justices deliberated extensively
PART 8
Article 5: Flip-flopping judgments
Prosecution
Corona failed to exercise leadership to stop flip-flopping
The Supreme Court changed the final decision, twice, on conversion of 16 municipalities into cities; the first time was due to personal letters from Mendoza and local executives
The tribunal changed the final decision on the creation of the Dinagat Island province after motions by prospective officials not parties to the case
Defense
Corona voted consistently for conversion
Letters were received before Corona became a justice
The Supreme Court upheld decision after the letters; flip-flops came later
Allowing reconsideration of decisions is uncommon but not unprecedented; justices may change minds
Holding Corona liable is unwarranted review of collegial decisions
The Dinagat Island case is pending, may not be discussed
PART 9
Article 6: Exoneration from plagiarism
Plagiarism found in decision against World War II “comfort women”
Prosecution
Corona formed an ethics committee, chaired by him, to determine the author’s guilt, allegedly to exonerate and preempt impeachment
Supreme Court doctrine: Justices must be impeached; administrative investigation is disallowed if removal is the possible penalty
The court may discipline lower judges only; cases of justices involved acted as bar examiners, one who was punished already retired
Defense
The ethics committee was created under Chief Justice Reynato Puno
The committee only recommends; the Supreme Court may refer a case for impeachment or impose lesser sanctions
The Supreme Court voted to dismiss charges, Corona was only one vote
The Supreme Court may discipline justices, as the Constitution grants it supervision over all courts; the tribunal disciplined justices in the bar exam impropriety and the leak of documents to a litigant
PART 10
Article 7: Issuance of TRO to let GMA travel
GMA, husband challenged prohibition on their travel abroad
Prosecution
Using administrative powers as Chief Justice, Corona engineered the TRO, issued with no hearing, allowing GMA to “flee from the country”
The Supreme Court initially voted that the TRO was not effective due to noncompliance with one condition, according to Sereno’s opinion (supported and contradicted by other justices’ opinions), but Corona caused the Court spokesperson to tell the public that it was in full force
Sereno alleged that Corona suppressed her opinion, which described anomalies in the TRO issuance
The TRO let husband travel but only GMA allegedly needed treatment
Defense
Justices deliberated the TRO extensively and considered previous arguments of the Solicitor General
The Supreme Court voted the TRO effective but would lift it if conditions were unmet within five days
Corona is not liable for collegial decisions
Consolidation of husband’s case was due to the common issue of right to travel
PART 11
Article 8: Lack of financial transparency
Prosecution
Corona refuses to report on special funds’ status and to remit collections of P5.38 billion to Treasury
P559.5 million of funds misstated
Financial reports were belatedly made on the day he was impeached
Defense
Charges attack the Supreme Court’s fiscal autonomy; also raised against Chief Justices Hilario Davide Jr. and Andres Narvasa
Misstated balance before Corona’s appointment
The tribunal made reports to the Department of Budget and Management (DBM), provided vouchers to the Commission on Audit
Questioned collections under Supreme Court control pursuant to the SC-DBM memo need not be remitted
ASSAILED DECISIONS OF CORONA
Corona’s allegedly biased voting seen in:
TRO for GMA travel
Truth Commission to investigate GMA
Midnight appointments
Camarines Sur district creation (allegedly for GMA son candidacy)
People’s initiative to amend Constitution
Proclamation No. 1017 (virtual martial law)
State of rebellion declaration
Airing of “Hello Garci” wiretaps
Gag orders on officials attending congressional hearings
Executive Order No. 464 and executive privilege
Refusal of Secretary Romulo Neri to appear in Senate NBN-ZTE hearings
Executive privilege and Jpepa communications
Disqualification of presidential candidate
Fernando Poe Jr.
Appointments without Commission on
Appointments confirmation
Comelec-Mega Pacific computerization
contract
*(Oscar Franklin B. Tan [[email protected]] is an international corporate lawyer with Jones Day, one of the world’s largest law firms. He was chair of the Philippine Law Journal in 2005, twice won UP Law’s Cortes Prize in constitutional law and was student speaker at his 2007 Harvard Law School graduation.)
