Honeyman: People Power and Impeachment

Tuesday, January 3, 2012

UPHOLD the Constitution

The Integrated Bar of the Philippines (IBP) has written again. It has moved from its ‘No to Impeachment’ stance and is now saying ‘Uphold the Constitution, Protect Judicial Independence.’ We agree. The House of Representatives has, however, meticulously upheld the Constitution.

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The IBP complains about the ‘breakneck’ impeachment. In fact, ‘breakneck’ is constitutionally enshrined! Art XI Sec 3(2) states that if the relevant House Committee (on this occasion chaired by Niel C. Tupas Jr) accepts the Impeachment Complaint by a majority vote, then the resolution shall be calendared for consideration by the House within ten session days from receipt. Breakneck indeed!

Sec 3(3) then states a vote of at least one-third of all Members (94 out of 280) are necessary to affirm the resolution of the Committee. In fact, two-thirds (188 members) did so affirm.

The House has upheld the Constitution.

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Protect judicial independence

Yes, in principle, we want Judicial Independence. But a majority of our elected representatives believe that the Chief Justice has abused his power, thereby betraying public trust. The checks and balances of our Constitution do not equate independence with permission to abuse power.

It is now up to Senate to decide whether public trust has been betrayed.

Unanimous stand?

‘The IBP, through its Board of Governors, reiterates its unanimous stand…’

Unanimous amongst the Board of Governors? But not all IBP members, surely. Atty Freddie Venida, an IBP member, criticizes the IBP Board. ‘They were not authorized to adopt such a stand without consulting all IBP members. They don’t speak for all members. They were not elected for the purpose of making political statements.’

IBP Presidents (1995-2006)

Some past IBP National Presidents have issued a manifesto. They express views which are very different from that of the current IBP leadership. Specifically, the Past Presidents see the forthcoming impeachment trial to be healthy for our democracy. They make other telling points which I abridge and paraphrase below:

- Everyone in government is ultimately answerable to the people
- The rule of law or separation of powers does not mean that the Chief Justice should be immune from criticism or impeachment
- The Supreme Court is credible only if it is a court of moral force. Corona should not show subservience to GMA
- The President should speak in the strongest possible terms whenever Supreme Court decisions no longer serve the best interest of the nation. The welfare of the people is the highest law.

The past IBP Presidents also state that the House of Representatives cannot be faulted in relation to the Corona impeachment process. We take this to mean that the past IBP Presidents disagree with the current IBP Board.

Women trial lawyers

This group calls on us to allow each co-equal branch of government to perform their respective mandates under the Constitution. The Women Trial Lawyers states ‘Our legislators sitting as the Impeachment Court must exercise both judiciousness and circumspection – but the clear end in view of achieving the higher public interest.’

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The higher public interest

This reminds me of the events up to and including the impeachment of former US President Bill Clinton in 1998-1999.

The Impeachment Complaint accused Clinton of perjury and obstructing the course of justice in relation to allegations of financial and sexual misconduct. The US Senate voting largely on party lines acquitted Clinton. I believe, however, that it was the ‘higher public interest’ that saved Clinton. Rep. Niel Tupas and his colleagues should recognize that proving one or more of the eight articles of Impeachment against Chief Justice Corona is necessary but not sufficient to cause Corona to be removed.

The Senate will also need to be convinced that the ‘higher public interest’ is best served by a Corona-free Supreme Court if the Impeachment Complaint is to prevail.

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The Supreme Court

It is reported by Jose Midas Marquez, Supreme Court (SC) Spokesman that the first order of business for the SC next year will be to consider various suits filed before it questioning the validity of the impeachment case lodged against Chief Justice Corona.

What for?

The SC has no relevance in this matter which is now exclusively for Senate to decide.

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Plagiarism

Quoting people without attribution is naughty, bad mannered, and, to the harsh ones, constitutes plagiarism.

But for many who have been plagiarized, the main problem arises when they have been quoted out of context so that their words are used in a substantially different way from what they intended. This was the main concern of the American academic whose words of support of women forced into sexual slavery by the Japanese during World War II was used plagiaristically by Associate Justice del Castillo to deny the women’s petition.

I was disappointed to notice that the Integrated Bar of the Philippines (IBP) in its recent open letter ‘No to Impeachment. Defend the Institution’ similarly misquoted former Chief Justice Reynato S. Puno out of context. The IBP, December 2011, says: ‘of the three branches of government, the judiciary is the weakest. It does not have the powerful sword of the President or the awesome pure of Congress. Its only weapon is the passive power of judicial review.’

Puno’s original pronouncement, contained in the Supreme Court Annual Report-2006, was upbeat: ‘The Judiciary may not have the power of the sword, may not have the power of the purse, but it has the power to interpret the Constitution, and the unerring lessons of history tell us that rightly wielded, that power can make a difference for good.’ Puno did not believe he was presiding over the weakest branch of government.

‘Rightly wielded’ is prophetic. Wrongly wielded it allowed Renato Corona to be appointed, unconstitutionally, within two months of the presidential election (10 May 2010). In fact, the position, constitutionally, was not vacated by Chief Justice Puno until his 70th birthday, 17 May 2010, one week after the presidential election.

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The weakest branch of government?

To make the Judicial Branch the weakest branch of government was not the intention of the framers of the 1987 Constitution (approved by the people of the Philippines). Indeed, there are additions made which clarify and strengthen the role of the Judicial branch over and above the 1935 Constitution (approved by Franklin D. Roosevelt) and the 1973 Constitution (approved by Ferdinand E. Marcos).

For example Art VIII Sec 1 of the 1987 Constitution includes the following, not stated in the 1935 and 1973 Constitutions.’

‘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 discretions amounting to lack of excess of jurisdiction on the part of any branch or instrumentality of the Government.’

We read this as a Constitutional directive for the Judicial branch to act as back-stop to prevent either the Executive or the Legislative Branch from abdicating from, or going beyond, its range of authority. This is not the role of the weakest branch of government. Constitutionally, there is no such thing as the weakest branch. A branch becomes weak if it abuses its authority. This is what has happened with the Judicial Branch.

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A case study – PEACe Bonds

The Supreme Court (SC) recently considered a case resulting from a dispute between various banks and the Bureau of Inlternal Revenue (BIR) as to whether the capital gains from recently – matured ten year ‘PEACe bonds’ should or should not be subject to the 20% withholding tax.

BIR deducted the withholding tax but was instructed by the SC, via a Temporary Restraining Order (TRO), to place the disputed amount, P5 billion, in an escrow account to be held by the banks. The BIR did not comply with this instruction.

For me, this is a serious situation and shows that the Judicial Branch is not being shown the respect to which it is constitutionally entitled. More serious is that one of the pillars of justice, the community, is indifferent. We do not care. We do not care that the Judicial Branch is currently being abused by the Executive Branch. This is because we do not respect the Judicial Branch as it is currently operating. This provides circumstantial evidence that supports the impeachment case against Chief Justice Corona. Legal sophists may belittle the unsophisticated opinions of the community, but the impeachment case is about demonstrable lack of public trust in the Judicial Branch. Ultimately, we are the big Boss.

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An international comparison

Three years ago, the streets of Islamabad, Pakistan, were filled with demonstrators complaining about their conditions. Not the usual motley crew of ill-kempt, malodorous leftists, anarchists or radicals. These were dark-suited professionals. In fact, they represented the Judicial Branch of Pakistan’s government. In that country, the Judicial Branch is held in high esteem and respect by public opinion. The demonstration led to the eventual downfall of President Pervez Musharraf. A few months ago, in the Philippines, the Judicial Branch, victim of some Executive Branch sharp practice relating to the 2012 Budget, had what it called a ‘Black Monday’ protest which it copied from its Pakistani counterparts. It is sad that our Judicial Branch is so bereft of original thought that it even has to plagiarize other people’s style of dissent. Unfortunately, the ‘Black Monday’ protest attracted only indifference from the populace. We do not care. We would care, however, if there were a ‘Pink Tuesday’ protest whereby thousands of underpaid school teachers took to the streets. Public opinion is of great importance when evaluating the validity of protest.

Conclusion

Currently, the Judicial Branch of government is the weakest branch. This should not be so. The fact that it is so is because we, the community, has lost respect for its pronouncements. When the SC speaks, we are angry, disputatious, or indifferent. We no longer accept its findings as we did before Renato Corona was appointed. We would like to regain our respect for the Judicial Branch. This can only be done if Corona is removed from office – either by resignation or a successful impeachment.