May 2012

Loose Ends

Lest we get caught up in the notion that Corona’s removal from office has delivered ‘a new dawn’ for public accountability, let us first attend to a few loose ends.

The Corona impeachment showed us as a nation both how to and how not to go about removing high public officers from their posts. The wrong way was summarised by the presiding officer, the Senate President himself who delivered the coup de grace to the former chief justice. In handing down his verdict, Senate President Enrile stated

I was personally frustrated by the loose and hasty crafting and preparation that characterized the presentation of the charges contained in the Articles of Impeachment. It seemed that the case was being built up only after the charges were actually filed (emphasis mine). The repeated recourse to this Court’s compulsory processes to obtain evidence which normally should have formed the factual basis of the charges in the first place further burdened and, at times, taxed the patience of this Court.

We have witnessed with disdain the indiscriminate, deliberate and illegal machinations of some parties who have been less than forthright with this Court in presenting dubiously procured and misleading documents which were spread to the media obviously to influence this Court’s and the public’s opinion.

And yet, despite these “underhanded tactics” employed by the prosecution, some would say that they were effective nonetheless. As Dean Tony La Viña wrote

(T)he conviction of Mr Corona was arrived at, not principally because of the evidence of the prosecution, but because of evidence that ironically the Corona defense presented…The prosecution however should be credited for presenting enough evidence to compel the defense to take the risks they did in presenting the Ombudsman and Mr Corona.

I would even go further than that by saying that without the intense trial by publicity and public vilification of the character of the former Chief Justice, Mr Corona would not have felt the need to come clean at the Senate. After suffering physically, mentally, emotionally and socially from the vehement campaign to shame him into capitulation, he was pressured to take steps to preserve the dignity of his public “face” that in the end led to his conviction.

The wrong way can be summarised by the phrase: the ends justify the means. Many from the bloc comprised of Enrile and six other independent senator-judges plus a pro-administration one in the person of Ralph Recto who were crucial to secure a conviction expressed concern and apprehension at the way this philosophy appeared to govern the pro-conviction side. Some of them had suffered at the hands of similar biased treatment during their political careers. Still they decided to settle the moral dilemma “in favour of upholding the law and sound public policy”.

What this episode in our history should teach us is that when the facts are presented in a manner so clear and convincing, nothing can prevent the right decision from being rendered even by those who are not allied with your cause. The administration had feared that if it had not acted hastily in passing the impeachment through the lower house that the Supreme Court would have been called on to intervene and prevent the case from prospering.

Such a course of action was resorted to by its enemies in the past. This is why in its estimation, the ends justified the means. But if it had built its case on solid evidence, which is eventually what happened in the course of the trial in a back-to-front sort of way, it would have had nothing to fear. Senate President Enrile reminds us that in the words of Dean La Viña the “Supreme Court cannot intervene because the decision would be based, not an on interpretation of law, but on a finding of fact”.

But if this case shows us how not to prosecute public officials we suspect of wrong-doing, its converse would provide a template for the right way to do it. It is in discussing this converse case that a few loose ends crop up. Let me enumerate them in passing.

The role of whistleblowers

The prosecution procured some evidence from an anonymous source tagged the “small lady” contained in a large brown envelope. Whistleblowers may or may not wish to reveal their identities as some of the information they reveal may have been illegally acquired or illegal to disclose as in this case, but wherever possible, they should be encouraged to come forward. Giving them protection through legislation which is currently pending would help in uncovering corrupt practices in the future.

Once these cases are reported and become part of the public domain, through “barbershop talk” or otherwise, the impeachment case demonstrates that it can then form part of a complaint filed with the office of the Ombudsman. In fact, the Ombudsman does not even need to wait for such complaints from concerned citizens to be filed. It can commence its investigation based on such reports.

The role of ‘freedom of information’

Public access to information particularly the sworn statements of assets, liabilities and net worth (SALNs) of public officials would be vital in mounting a challenge to the truthfulness and accuracy of such declarations. It would also be useful as the government seeks to make its use of resources more transparent to the public. Pending legislation could allow for greater availability and accessibility of such information.

Any private citizen with personal knowledge of certain assets owned by government officials could then compare it with what appears in their SALNs. Likewise, anyone with personal knowledge of transactions engaged in by any agency can compare it with the financial statements and specific records kept by that agency.

Any discrepancy or inconsistency can then be used as prima facie evidence to launch a public inquiry into the anomalous statement or transaction.

The role of the Ombudsman and AMLC

Perceptions of a witch hunt due to the orchestration of various public agencies including the Land Registration Authority, the Bureau of Internal Revenue and the Anti-Money Laundering Council to investigate the assets of the former chief justice and his family could have been avoided, if it had been handled by the Office of the Ombudsman. This office has the power to investigate all public officers, even impeachable ones.

The problem however arises in interpreting bank transactions provided by the AMLC in proving or disproving the entries in the sworn SALNs of public officials. The banks are only required to report transactions or flow of funds into and out of client accounts. What is required are the account balances to compare them with the items in the SALN which are a snapshot of the stocks of assets and liabilities at a given point in time.

On top of this, the AMLC can only provide reports to investigative agencies when the accounts in question are being suspected of being used as a vehicle for money laundering. Proposed amendments to the law governing the agency should allow this to be expanded to cover corrupt practices and tax evasion. Of course, the rights of the suspect will still be protected as a court order will still be required for such information to be handed over.

The role of bank secrecy waivers

We have seen how the veil of bank secrecy was almost lifted during the Corona impeachment trial. I say almost, because neither side chose to present any documentary proof from these accounts despite the execution of an absolute waiver. Given perceived inconsistencies between the SALN law and the Foreign Currency Deposits law, the coverage of the waiver executed by public officials when they file their SALNs became a contestable issue.

A few senator-judges highlighted the need for amending these laws to remove any ambiguity or inconsistency between them. In my view, the economic conditions now prevailing in the country no longer warrant absolute confidentiality for foreign currency deposits. While the impeachment trial was being litigated, the outlook for the country was upgraded to positive by one credit rating agency. The nation has also become a net creditor to the rest of the world. Inflation and interest rates have settled much lower than they were when the country experienced a debt crisis.

The rapid accumulation of foreign reserves from investments, exports and foreign remittances has strengthened the peso and put a lot of pressure on domestic firms who have had to compete with imports that are now cheaper due to the peso’s appreciation and on exporters whose products have become less competitive because of the same. It has also lowered the spending power of families who receive the bulk of their income from overseas remittances. The time has come to review the foreign currency deposit law to see whether the incentives provided there for maintaining local dollar accounts are still required or even desirable.

The role of surveys and public opinion

We have seen how public opinion polls were used to apply pressure on senator-judges to cast a vote that agreed with the majority as next year is an election year. The quasi-political nature of the impeachment trial meant that the sub judice rule was not applied. The prosecution, defence and judges were allowed to air their views, present their evidence to the media even prior to their appointed time in the court even when parties were warned not to parade their evidence outside the court room.

Somehow I feel this lack of restraint will force the Senate to adopt a different set of rules the next time around. Thankfully, only one senator, Vicente Sotto III, who experienced a voter backlash following the previous trial of former president Joseph Estrada, based his verdict on the views held by the majority according to the polls which were taken right after the prosecution had presented its case. The rest followed their conscience based on the evidence.

The subdued reception by Malacañang Palace of the verdict in which it stated that Mr Corona was “merely the public face of the things that ail our justice system” demonstrated that it had been chastened somewhat, and rightly so, by the admonitions of many senator-judges for fomenting public rage against the former chief justice. Luckily in this case, public pressure did not result in self-harm or death as it did with former defence secretary Angelo Reyes.

The role of trust

Finally, I would like to highlight the need for public trust in the system for dispensing justice. Many on the winning side of the argument are claiming that the outcome of the trial has restored a sense of faith in our institutions. That point is debatable, but let us take it at face value and assume that at least for those who are pronouncing it, that it is true.

One thing we should hope for is that the next time around, this renewed sense of public trust will prevent them from exercising underhanded tactics to advance their cause. Let us hope that next time around, they will have enough faith in the system to allow it to follow its procedures, allowing a preliminary investigation and preliminary trial through the responsible committees and agencies tasked with determining if there is probable cause for mounting a case.

If we are now to believe that the country has reached a level of maturity, that it can now trust in its democratic and judicial systems to deliver the right outcome regardless of the personalities involved, be they friend or foe, then perhaps in the future we ought to leave it to those systems to function as they were designed to and not try to over-ride them. None of these systems are perfect, of course. In fact no system based on human agency can be, but if we are to live under the rule of law, then we will have to trust in them.

With the impeachment trial now over, and with elections a little less than a year away, let us hope that all of these loose ends get tidied up.

The best speech: Lito Lapid!

It was the high school graduate, Sen. Lito Lapid, who delivered the best speech at the impeachment trial. Extemporaneous, from the heart and at the same time stinging, Lito Lapid proved that you don’t need a college education or a law degree to tell right from wrong. Best of all, in four short sentences highlighted below, Lapid put crazy ranting Sen. Miriam Santiago, Corona’s pro bono crew, and all those know it all commentators like Fr. Joaquin Bernas in their place.


    Kasamahan kong senador-judge, prosecution, at depensa, sa ating mga kababayang nanunuod at nakikinig sa TV at radio. Inuulit ko magandang hapon po sa inyong lahat.

    Alam niyo po, wala naman akong speech dito, wala po akong dala. Ang mga kasamahan ko dito, pag pinasok sa isip nila, dadalhin sa bibig at maganda na ang sasabihin.

    Bilang high school graduate po, marahil iniisip ng ating mga kababayan: “Anong sasabihin ni Lito Lapid na hindi marunong mag-inggles, na hindi maalam sa batas? Ano kaya ang magiging desisyon?”

    Didisisyunan po ang katas-taasang hukom na isang high school graduate lang at taga-probinsya ng Pampanga.

    Napakinggan ko po ang depensa. Siguro purihin po natin ang depensa. Napakagaling nila sa mga nakakaintindi ng abugasya. Purihin rin po natin ang prosecuton, sa paghanap ng ebidensiya. Nakinig po ako sa bawat ebisensiyang inihain nila dito. Lalung lalo na kay Cong. Farinas. Ang prinisenta niya kahapon ditto, para sakin po, malinaw na malinaw na na si CJ Corona ay lumabag sa batas.

    Siya mismo inamin niya na may $2.4 million at P80 million na bank account. Yun po siguro hindi na kasinungalin yun, yun po ay totoo na.

    Nagpiprisinta po ako dito hindi bilang abugasya. Hindi po ako pwedeng magsalita ng Republic Act dahil hindi maniniwala ang tao sakin. Hindi po ako nagmamarunong dito. Ang ginagamit ko lang po ay konsensya. Representate ako ng masa na hindi nakapag-aral, hindi marunong mag-inggles, walang alam sa batas.

    Kaya noon pong nagsasalita si Chief Justice Corona, nagsusumbong sa taumbayan, awang-awa po ako sa kanya.

    Akala ko totoo ang sinasabi niya. Hindi pala.

    Mas pinaniwalaan ko pa si Cong. Farinas noong nag Powerpoint dito.

    Ngayon ang sinasabi niya, dyan sa isang pizza pie – hindi totoo yan na may 82 akong account. Siguro kung ako ho, ang pagbabasehan ko: Kung isandaang basong tubig nialagay sa apat na drum lang ang kanyang account…

    Naawa po ako sa kanya dahil naiintindihan ko po kung anong damdamin niya at ng kanyang pamilya. Naranasan ko rin po yan.

    At sana sa pagkakataong ito, pasasalamatan ko siya dahil noong pangalawa kong panalo bilang senador, sa kanya ako nanumpa bilang senador.

    Pasensya na po. Pasensya na po. Ang hatol ko sa inyo, guilty.

“In the manner provided by law”

After closing arguments, the fate of Chief Justice Renato C. Corona seems to hang on the meaning of this phrase and on one strategically placed piece of punctuation.

The case can be summed up in one question: did the chief justice obey the constitutional provision which commands that ” A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth”?

The defence claims he did, despite omitting some millions of dollars’ worth of holdings in foreign deposits. They hold that this is consistent with the same constitutional provision which states that “In the case of…the Supreme Court … the declaration shall be disclosed to the public in the manner provided by law”.

So does the phrase “as required by law” or “in the manner provided by law” exempt dollar holdings from being declared?

Two schools of thought seem to emerge. On the one hand, Fr. Joaquin Bernas, Ateneo Law School Dean Emeritus, hints that it does. In an article entitled “The Moment of Truth“, Fr Bernas states

How do I read the limitation that the declaration shall be made “in the manner provided by law”? I take this to mean in the manner provided by law either already existing in 1987 when the Constitution was adopted, or promulgated after 1987.

He goes on to tackle the relevant laws covering the sworn statements of assets, liabilities and net worth both before and after the 1987 Constitution and The Foreign Currency Law which provides for absolute confidentiality to dollar accounts. Based on this thinking, there certainly were legal grounds for the chief justice to leave out his dollar accounts. It may violate some people’s sense of morality regarding public accountability, but that is what the law provides.

On the other hand, there is the view that the presiding officer of the Senate Impeachment Court seemed to hold. A strategically placed comma seems to be all that separate the Chief Justice from an acquittal. When Senate President Enrile read the provision out loud to defence lead counsel Serafin Cuevas, he placed an emphasis on the punctuation. The limiting phrase, “upon assumption of office and as often thereafter as may be required by law” is separated by two commas before and after it.

Had the second comma come before the phrase “as may be required by law” then the corresponding laws that Fr Bernas covered would be pertinent. However, the second comma came after it, which would mean that the fragment “as may be required by law” refers to the frequency of the filing, not the content of the SALN. The latter part of the constitutional provision that states “the declaration shall be disclosed to the public in the manner provided by law” on the other hand refers to the procedure in making the information available for public consumption, not the manner by which the declaration is made.

Can the Chief Justice claim innocence because he filed his statement of assets, liabilities and net worth “in good faith” and “without malice” or that it was not his intent to disobey the constitutional provision since it was based on his personal reading of it? In other words, can he be let off on grounds that the offence he committed did not rise to the level of an impeachable one? Again there seem to be two schools of thought.

Fr Bernas on the one hand maintains that the charge of “high crimes” already covers “culpable violation of the constitution and betrayal of public trust”. Based on the principle of eiusdem generis, a high crime must be “of the same kind” as treason and bribery, “paradigmatic impeachable offenses”. Based on the lighter penalties prescribed for violating the SALN law, the failure of the Chief Justice to file an “accurate and truthful” account of his wealth does not make him guilty of committing a high crime.

On top of that, Fr Bernas subscribes to the notion that a high crime must be “obviously wrong” citing an American constitutional law professor, Charles Lud Black, Jr. whose views on impeachment were influential during the Watergate scandal. Given uncertainty over the meaning of the phrase “in the manner provided by law”, Fr Bernas seems to think that what the Chief Justice did cannot be classed as a high crime.

Senate President Enrile on the other hand seemed to hold an opposing view. Zeroing in on the meaning of “culpable violation”, he drew upon his training in the UP College of Law which told him that for someone to be culpable or guilty of an offense, whether by commission or omission, that person’s intentions are irrelevant.

In civil cases where damages are claimed, a person entrusted with the property of someone else will be liable to provide compensation regardless of his or her motives. The standard applied to determine whether someone is culpable or not, and the extent of the liability depends on the level of care expected of that person. In this particular case, a public official was entrusted by the people with public office. Did that person exercise enough care in executing his duties under the law? That seems to be the burning question in Enrile’s mind.

On top of that Enrile appealed to John Austin’s command theory of law from the 19th century when the transition from natural or divine law based on moral views to constitutional law based on the sovereign people occurred. According to this concept, a rule is legally valid if and only if it is commanded by the sovereign and backed up by threat of sanction.

So, according to the logic of this theory, by including foreign dollars in his sworn SALN, the Chief Justice would not be violating any laws (disobeying the command of the people). The laws on foreign currency deposits do not sanction depositors from declaring their holdings, only banks. On the other hand, failure to render a “truthful and accurate” SALN does come with a penalty for public officials. Would a more judicious and careful public servant therefore err on the side of caution? Would he be negligent in not doing so?

The answer in my view seems quite obvious.

Guilty or not guilty?

Not guilty kasi who will protect me kung matanggal siya?

Not guilty kasi tinulungan niya kami sa kaso.

Not guilty kasi wala naman nagbigay sa amin ng bagong SUV para sumoporta sa guilty.

Not guilty kasi papaano naman ang ambisyon ko maging presidente kung mag succeed ang Daan Matuwid?

Not guilty kasi papaano naman ang ambisyon ko maging bise-presidente kung mag succeed ang Daan Matuwid?

Not guilty kasi si Miriam ako.

Not guilty kasi si Joker ako.

Not guilty kasi si Villarroyo ako.

Not guilty kasi ang sinuman kalaban ni PNoy ay kaibigan ko.

Not guilty kasi mas marami kaming mga walang-hiya kesa sa inyo.

Tamad o tanga?

Corona’s lead defense counsel Serafin Cuevas said that if Corona is convicted it’s possible they will ask the Supreme Court to nullify the impeachment proceedings. Certoriari.

In an interview with dzBB radio he said:

    “Yun pong walang appeal, hindi po kami totohanang sumasakay doon, sapagkat hindi po naman nakalagay sa Konstitusyon iyon. Ang nakalagay lang, the moment the Senate convenes as the impeachment court, they shall continue the trial. Wala naman pong sinasabing their decision shall be final and non-appealable. Wala pong ganoong nakalagay sa Constitution.

Ganun?

Cuevas bases his argument on Art. XI sec. 3 (4) of the Constitution, “Accountability of Public Officers” :

    In case the verified complaint or resolution if impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

Aba eh Cuevas is right! Wala ngang ganun sa sec. 3 (4)….

Kaya lang Art. XI does not end in sec. 3 (4). Art. XI sec. 3 goes all the way in sec. 3 (8). Cuevas should have read up to sec. 3 (6):

    (6) The Senate shall have the sole power to try and decide all cases of impeachment.

Kung binasa niya ito hindi na siya sana magdadakdak tungkol sa certoriari.

What does he not understand in the phrase SOLE POWER TO TRY AND DECIDE ALL CASES OF IMPEACHMENT?

Baka naman tinamad na lang magbasa si Tatang hanggang sa sec. 3(6). Baka nakatulog bago umabot dun sa provision na yun.

Tamad o tanga?