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.

Doy Santos aka The Cusp

Doy Santos is an international development consultant who shuttles between Australia and the Philippines. He maintains a blog called The Cusp: A discussion of new thinking, new schools of thought and fresh ideas on public policy (www.thecusponline.org) and tweets as @thecusponline. He holds a Master in Development Economics from the University of the Philippines and an MS in Public Policy from Carnegie Mellon University.

  • UPnnGrd

    Ellen Tordesillas writes again about a soon-to-be-loose end.

    GuLLOO soon to be –loose– granted bail????   What’s with deLima making U-turn??

  • UPnnGrd

     That is true!!!   That is why the interpretation of the 1987 Constitution is left to People Power, hindi ba?   O… wait…   when folks are parsing a comma here or a semi-colon there,  the interpretation is to be decided by…   O, wait….  PersiNoy’s words come back.   The citizens of Pilipinas do not need to consult any lawyer or judge or anyone….   because the decider the Persi-Dent the PersiNoynoy already knows kung ano ang batas dapat sa Pilipinas.    That is why in PersiNoynoy’s mind, there are no loose items… despite what Ellen Tordesillas suggests.

    But wait!!!!   Surely…. surely  Secretary deLIMA knows enough law to correct MDS.  And surely, secretary deLIMA would be ordered to write a scholarly  (not political but a scholarly) article on errors in MDS’s rantings.   Right?

    • baycas

      Nadale ni Enrile si Cuevas nang ipinalutang niya ang AUSTINIAN Theory of Law na inaral ng lahat ng abogado.

      Ang batas ay may TATLONG KATANGIAN:

      1. It is a type of command.
      2. It is laid down by a political sovereign.
      3. It is enforceable by sanction.

      Ang batas ay utos. Ito’y ibinalangkas ng kapangyarihan ng soberenya. Ipinatutupad ang batas sa lahat ng nasasakupan at ang paglabag nito ay may kaparusahan.

      Sundin ang batas kungdi may parusa. ‘Yan ang takot natin sa pagsuway.

      Dalawang batas: FCD Law at SALN Law

      Ang FCD Law ang ipinairal ni Corona upang itago ang yaman gayong puwede naman niyang ilantad ito nang walang parusa.

      Walang takot niyang ginawa ito.

      Sa pagtago niya ng kaniyang yaman, sinuway naman niya ang SALN Law.

      Walang takot rin niyang ginawa ito.

      Nakapagtataka ito sa isang masunuring mamamayan.

      Kaduda-duda ito sa isang abogado.

      Hindi natin maubos-isipin na nagawa ito ng isang Punong Mahistrado.

      Ano kaya ngayon ang ituturo niya sa mga estudyante kapag nag-ikot na siya sa mga paaralan?

      Maging matapang sa pagsuway sa batas kaya?

      • UPnnGrd

        Jaywalking lang ata, hindi ba?

        Kung hindi jaywalking…  eh bakit hindi kasuhan ni PersiNoynoy si Corona para ma-ikulong?   Puwede ngang malambot si PersiNoynoy…   o puwede din naman,  medyo natatakot baka in Pilipinas court of law, “ex post facto”:  o “rules of evidence”  o  KKK’s get into play at “NOT GUILTY” si Corona.

        At bakit hindi kumpiskahin iyong dollar accounts ni Corona….   hindi ba ill-gotten iyong dollar accounts ni Corona?

        • Hintay ka lang, UP n. Huwag mainip.

          • UPnnGrd

            Sana nga, kumpiskahin iyong  ill-gotten kayamanan  bilis-bilisan!!!    Ang sabi ni barbero,  baka  iyong mga dollar-accounts eh siguro,  co-mingled ang “contributions” from Philip Morris o from Marubeni o from German or Chinese companies.

  • baycas

    hi50 says:
    May 31, 2012 at 3:44 pm

    Now that the Corona impeachment trial is over, has anyone kept track of the Latin phrases that were thrown around (by MDS)?

    EIUSDEM or EJUSDEM GENERIS

    I already made my explanation in raissarobles.com/2012/03/26/coronas-daughter-bought-california-and-the-fort-properties-22-days-of-each-other/ at Comment No. 428 entitled “The RULE of Law”.

    It was a bit disappointing that MDS was not corrected in her view of “betrayal of public trust” parroting Fr. Bernas’ assertion that only a high crime constitutes an impeachable offense.

    The Constitutional Framers never meant it that way for they inserted “betrayal of public trust” as the sixth and last ground for impeachment.

    Interpretation of the plain language of the text (the letter of the law) must be done ahead of the “ejusdem generis” rule. That’s the rule.

    Fr. Bernas (and, MDS) was betrayed by a punctuation mark “comma” and a word “or”.

    The “comma” set “betrayal of public trust” apart from the first five impeachable offenses which are all high crimes.

    While the conjunctive word “or” set “betrayal of public trust” as an alternative impeachable offense same as the first five impeachable offenses. “Betrayal of public trust” is never a high crime BUT may be chosen as a ground for impeachment when the situation calls for it.

    Further statutory construction will easily bear me out on this explanation.

    However, what I find to be a blessing for us is the fact that the true intention of an impeachment prevailed. The next Latin word will make us understand…

    QUASI

    MDS said impeachment is quasi-judicial and quasi-political. “Kung wari judicial at kung wari political.

    Wrong. Impeachment may be quasi-judicial because Rules of Court are suppletorily applied but NEVER quasi-political because impeachment IS political!

    One of her colleagues represented the political side of impeachment while MDS the judicial side as she bragged too much about it…with the “preponderance of evidence, blah, blah, blah”.

    One of her colleagues even said, “Hindi na ako magmamarunong-marunong…”

    Yes, he need not pretend great knowledge in judicial proceedings for impeachment as a political process will prevail…and, true enough, had prevailed.

    This goes to show that Latin phrases or words are really for the erudite; but used inappropriately, the erudition is replaced by idiocy.

    • GabbyD

      i’m not even sure what a “high crime” is.

      • UPnnGrd

        An elementary-school graduate and a Georgetown University graduate would agree—  “tax evasion”  is an example of a high crime.   (Failing to provide child support?  I don’t know how Pilipinas laws classify that.)

        And now my fearless forecast —  Corona will not go to jail.   And Malakanyang will stop chasing the dude  because  Malakanyang would not want to keep people thinking about what Ellen Tordesillas has alluded to —–> tax evasion and unexplained wealth.

      • UPnnGrd

        A lawyer JCC did some thing serious enough that JCC was suspended ( or maybe he got disbarred… but I think JCC was suspended).

        “High crime”, one would think, means that Malakanyang will go through the Pilipinas Courts so that Corona gets disbarred, right?

        ( ** Now, me? I think “ex post facto” covers Corona.  That’s what I think. **  Which is why I believe  that Malakanyang will not pursue disbarrment because it will be hilariously embarassing if Corona gets found to be… well…. NOT GUILTY under Pilipinas court-of-law. )

  • UPnnGrd

    Ellen Tordesillas also kind of cite “unexplained wealth”  among Malakanyang/ in Malakanyang  as a loose end.    In article, these sentences:
    Kaya sinabi niya na hindi ngayon ang tamang panahon para ipatupad
    niya ang kanyang pangako noong kampanya na mapirma siya ng waiver o
    pahintulot para makita ng iba ang laman ng kanyang mga bank accounts.

    Kailangan mabigyan niya ang kanyang mga opsiyal ng tamang panahon para ayusin ang kanilang kayamanan.

    • Manuelbuencamino

      Kuro-kuro.

  • UPnnGrd

    The Inquirer mentions  Judge Carpio as a “loose end”.

    http://opinion.inquirer.net/29745/a-pyrrhic-victory-for-aquino

    • Manuelbuencamino

      Tiglao. Pweh. 

  • GabbyD

    Another change:

    what we really learned here is that we need to know how SC justices understand the trade-offs and contradictions surrounding the law. 

    it would be great if we could have a public vetting. either the president sends his list to congress, and congress interviews; OR congress interviews a few and sends its top two choices to the president. 

  • GabbyD

    Here’s something you missed.

    some people MAY not have declared dollars also. but, for fear of being charged, will continue to not report it.

    my suggestion: a one time SALN amnesty for all elected and appointed officials, cabinet secretary level and below. 

  • Manuelbuencamino

    Doy,

    The propaganda campaign was not one-sided. The defense accused the Palace of offering P100M bribes to senator judges. It was headline news and pro Corona commentators played it up. The defense asked two senator judges to inhibit. Again that was big news. The INC held a rally for Corona. A number of Catholic bishops were very vocal in their support for Corona. There were daily masses and a novena and inter-faith prayers at the SC grounds. Corona used the IBP, judges and fiscals associations, and other judiciary employees associations to advance his cause. He went on a media blitz granting lengthy one on one interviews to three TV stations over one weekend. He even played the class war game by portraying himself as the champion of the Hacienda Luisita farmers. All were carried prominently in media and played up by pro Corona commentators.  Pnoy was portrayed a would-be dictator. The House, the Ombudsman, the AMLA, the BIR, the LRA were all called tools of the president etc. These accusations were likewise given full coverage. But what caught everyone’s attention was the anti-Corona propaganda. 
    Why? 
    If you look back at the way the whole thing was covered in media, (the tit for tat between Corona and his adversaries was given equal coverage and commentary)  you will see that Corona did not lose the propaganda battle for lack of trying.  He lost it because his adversaries were far superior at it. On another matter…An impeachment is a political process because everyone involved, from the House to the Senate, are elected officials. When elected officials are asked to sit as prosecutors and judges the process will be political. It’s just the nature of the beast. Consequently the trial will be a media circus. Because it is the nature of that beast. That’s why imposing the sub judice rule on an impeachment is an oxymoron. An impeachment is quasi-judicial only in terms of form –  it has prosecutors, defense lawyers, judges, and rules of procedure (created by the politicians themselves). In fact, the Senate does not even have to adopt the rules of court or rules of evidence for trial if it does not want to. It can write its own rules because it has the sole power to try and decide impeachment cases. Thus you cannot sub judice an impeachment because it is a political process.An impeachment court is more like a people’s court than a court of law because the people’s representatives are both prosecutors and judges. If you want to ensure that impeachments are fair, that they do not degenerate into kangaroo courts, then you have to strike at the source: the electorate. They are the ones who elect the judges in impeachment trials. Teach them to be very careful about whom they vote into office.

    • I never said it was one-sided. I said in fact that both sides including judges were airing their views during the process. Even if the sub judice rule is not applicable, I think perhaps it would have been better for the prosecution to present its evidence before the court first before commenting on it before the media, out of respect for the judges who are as you said politicians and are sensitive to the electorate.

      This is important because as we have seen, some of the evidence, namely the numbers and figures quoted when placed under scrutiny turned out to be deceiving. It’s only but fair that both sides are able to talk to the media, but to do it in a more responsible manner is all I was hoping for.

      • And if only to ensure that the evidence is examined by the court, as per what happened, public opinion turned against the prosecution when their evidence was suppressed or found to be faulty. I think it would be in their best interests next time to reserve comment until after they have presented the evidence in court.

        • Manuelbuencamino

          But framing the coming evidence is important in a political process. Both sides did it to condition the court’s appreciation of evidence and rebuttal.

          My point is it is a mistake to label an impeachment process as quasi-judicial. It is a political process.

          • Yes, I agree it is partly political which is why the elected senators made the rules. The problem was that both sides flouted the rules.  And which is why in the future, the elected senators will probably review the rules based on this case.

          • Manuelbuencamino

            They can and maybe should. But I would be against muzzling the press. Because an intrepid reporter can uncover evidence on his own and he should not be prohibited from publishing his findings.

          • UPnnGrd

            and again,  Pilipinas libel laws kick back into view.    Evidence or lack of it is incidental …  law or lack of it  does not protect,  not in Pilipinas.   Just go back to this reporter with pictures and all of a congressman in motel —  LIBEL!!!   JAIL!!!.

            Now, PersiNoynoy did better after a picture of a BFF in a business-invasion event —   meaning the picture source was not sent to jail.

      • Manuelbuencamino

        If you are referring to the dollar transactions…Corona did not debunk those transactions. As Lito Lapid explained:
        “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…”

  • UPnnGrd

    That is one way to view the past days —  that Malakanyang has been chastened somewhat.

    But I see it differently.  I think it is the reverse,  namely that (i) Malakanyang has been encouraged and that (ii) Malakanyang in particular and Yellow Army in general are gleeful at the successful demonstration of power. 

    Next event worth paying attention to is the selection of Chief Justice along with appointment of new supreme court judge.   To remember —  Noynoy Aquino already had been having family concils inside H/L  (last December/January)  on who to be next Chief Justice.

    • What a grim thought you have, UP n. You never have positive attitude towards this new government, always harping on doom scenarios that you’re hoping will happen as if you haven’t had enough of the ills of the previous administration. 

      Don’t count on that too much else you’ll die of frustration at the end of Noynoy’s term.

      • UPnnGrd

        I was asked about Persinoy just last night by this  Arrnn-eeooww Grad  ( now a USA citizen for more than 7 years (He also 8-plus years working at the World Bank/ Washington DC )  .  Explicitly, he asked if, in addition to being child of a former president, if  there were scandals or anything memorable associated with NoyNoy while as Senator or as Congressman or Noynoy as an Arrneoww a college-student.  “Nope!!” I replied.

        this Arrneow friend of mine knows more about McCain, Jeb Bush, Blago and USA events than Trillanes or Merceditas, so I made brief mention of another Arrneow-alumnus — Corona, ex-CJ.