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.)