Some questions regarding certain questions

Buencamino is a fellow of Action for Economic Reforms. This piece was first published in Interaksyon.com on January 5, 2012.


“[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”
– Thomas Jefferson

 

Chief Justice Corona argues that the Senate must first determine if the impeachment complaint has been properly verified before trial begins. What does this mean in practical terms? The impeachment trial will be delayed because the Senate will have to subpoena all 188 congressmen who signed the impeachment complaint and question them individually as to whether or not they read each and every word of the complaint before they signed it. Furthermore, if Corona can prove that some congressmen signed without reading the complaint they can be charged with perjury.

Corona also raised the House rule that says only congressmen can act as prosecutors in an impeachment trial. The answer of Congress to Corona’s contention is the trial will be under Senate rules and they allow private prosecutors. So there will be a debate and that will also delay the trial.

If Corona, as he claims, is raring to defend himself against baseless and biased charges, why is he raising all sorts of procedural questions that will not only delay the trial but could also result in a dismissal of the complaint on procedural grounds? He will not have a chance to clear his and his wife’s name. So what is the logic behind his legal maneuvers?

Meanwhile Fr. Joaquin Bernas, a man generally recognized as an expert on the constitution, asked in his weekly Inquirer column last Monday a series of questions he believes “the Senate will ponder.” Note that Bernas said “will” instead of “should”. That means he is also an expert in the occult art of prediction.

At any rate, the questions propounded by Bernas on each of the charges against Corona seem like they are meant to sway public opinion into looking at the impeachment from Corona’s eyes. They are a recital of Corona’s denials in the form of questions.

 

1. On the first charge that Corona betrayed public trust because of his partiality and subservience to Gloria Arroyo from the time of his appointment to the Court to his midnight appointment as Chief Justice and up to the present, Bernas asked,

 “a. I too opposed the exercise of the appointing power during the two-month prohibited period.  But the Supreme Court decided otherwise. May the Senate review the Court’s decision?”

Is looking into Corona’s behavior, that it is partial and subservient, the same as reviewing the Court’s decision?

More importantly, if Bernas opposed Corona’s appointment in the first place and was disappointed with the Court’s decision upholding the appointment, then shouldn’t he be asking what went wrong with the way the Ateneo educated Corona? Shouldn’t he be asking Corona, “Rene, paano mo nagawang tanggapin yang appointment na alam natin dalawa ay hindi tama, hindi ka ba namin tinuruan ng kahit kaunting delicadeza sa Ateneo?

 “b. Is it illegitimate to assume that the votes of Corona represented independent judgment?”

Not if one believes that Gloria Arroyo had no self-serving motives appointing Corona and Merceditas Gutierrez. But Bernas could have added another question, “Is it illegitimate to assume that the votes of Corona represented partiality and subservience?” That way hindi naman magmumukhang “leading question” yun tanong niya.

 

2. On the second charge regarding Corona’s non-disclosure of assets, liabilities and net worth, Bernas had three questions:

 “a. The command on making assets and liabilities public is qualified by the clause “in the manner provided by law.” Is there a law providing the manner and did Corona violate it?”

The question I want Bernas to ask is, “is there a law that prohibits Corona from making a voluntary disclosure?”

 “b.  Alternatively, if there is no law applicable specifically to the Judiciary, may Corona follow instead the manner prescribed in Resolutions of the Supreme Court before him? (Which I am told he does regularly.)”

Again I would ask, “but why choose opacity over transparency?”

c. “What evidence will be presented on the alleged illegally acquired property?”

Wait and see na lang poh.

 

3. Maraming isyus sa third charge so I will quote it in full.

 “Respondent committed culpable violations of the Constitution and betrayed the public trust by failing to meet and observe the stringent standards under Article VIII, Sec. 7 (3) of the Constitution, which provides that [a] member of the Judiciary must be a person of proven competence, integrity, probity, and independence in allowing the Supreme Court to act on mere letters filed by a counsel which caused the issuance of flip-flopping decisions in final and executory cases; in creating an excessive entanglement with Mrs. Arroyo through her appointment of his wife to office; and in discussing with litigants regarding cases pending before the Supreme Court.”

Bernas asked:

 “a. Is the flip-flopping of the Court in collegial decisions attributable to Corona alone or to a body struggling to arrive at justice? Did Corona himself flip-flop?”

First, Corona’s answer to the charge of flip-flopping is to say that flip-flopping means to reverse a decision and then to reverse the reversal by going back to the original decision. Corona admits he may have flipped but he denies he ever flopped. The question Bernas should be asking is, “what was the trigger of the flips, flops, and flip-flops, was it actual law or calls and letters from persons interested in the case?”

 “b. Is the Court prohibited from modifying prior decisions or doctrines?”

No, but should the Court make it a habit to reverse decisions that it already proclaimed as final?

 “c. When and by whom was Mrs. Corona appointed to John Hay Management Corp.? Is a husband obliged to compel his wife to turn down an appointment? Or did he try to dissuade her at all? Or was he overruled by the wife?”

The thing is the Judicial and Bar Council wrote a letter to Corona pointing out that his wife was also an appointee of Gloria Arroyo and that the situation was not kosher. Corona replied that his wife would resign. Instead of asking cute questions, Bernas should have pointed out that Corona had two options: he could have turned down the appointment so that his wife could continue being employed by John Hay or he could have told his wife to resign before, not after, he accepted his nomination and subsequent appointment as chief justice. Either way the JBC letter would not have been necessary.

Bernas could have also asked if it was alright for Corona to accept Gloria Arroyo’s financial assistance for his back operation.

 “d. Can a husband be made answerable for acts of the wife?”

According to the New Code of Judicial Ethics, a husband who is a member of the Court is answerable.

 “e. Will Justice Carpio be asked to testify about the alleged lobbying about pending cases?”

Why single out Carpio, why not ask all the justices, specially Corona, to testify about their own experiences discussing pending cases with interested parties?

 

4. Bernas wrote,“The fourth charge concerns the status quo ante order that blocked the impeachment of Ombudsman Merceditas Gutierrez and which the court eventually reversed.”

He asked,

 “a. What can be made of the fact that the status quo ante order was a resolution of eight justices? How did Corona vote on the later reversal of the status quo ante order?”

First, the fact that it was a resolution of eight justices only goes to show that Corona is not the only justice who is partial and subservient to Gloria Arroyo. Second, Corona called for a vote despite the fact that no other justices except for him and the justice in charge had seen or read the petition of Gutierrez. Finally, Bernas should not have even asked how Corona voted on the reversal because Corona’s vote is on record. Corona concurred with Justice Brion’s dissent.

 

5. Bernas asked five questions regarding the fifth charge: “Respondent committed culpable violations of the Constitution through wanton arbitrariness and partiality in consistently disregarding the principle of res judicata and in deciding in favor of gerry-mandering in the cases involving the 16 newly created cities, and the promotion of Dinagat Island into a province.”

 “a. Were not the League of Cities case and the Dinagat case collegial decisions upholding acts of Congress? Were the laws involved statutory responses of Congress to the people as “master” as against the greed of the League of Cities?”

First the Court declared the creation of 16 cities unconstitutional and void.  Then the Court affirmed its judgment when it denied a second motion for reconsideration. Then the judgment became final. Then the Court said it was not that final after all so it granted a motion for reconsideration on a decision it said was final and it “reversed the reversal of the reversal of the original decision.” The question then is how did Corona vote on all those?

 “b. Was not the Fasap (Flight Attendants and Stewards Association of the Philippines) decision also collegial?”

Yes it was a collegial response to a letter from Atty. Estelito Mendoza, the lawyer of PAL. Corona claims he recused himself from the case. However the question is to whom did Estelito Mendoza address his letter and what did Corona do about it?

 “c. Is the Supreme Court powerless to look into the activities of its members (e.g., plagiarism) especially if it involves things that might affect the reputation of the Court?”

How can the Court’s Ethics Committee conduct an impartial investigation when its members were parties to the plagiarized decision penned by Justice Mariano del Castillo? Besides, did the Corona initiate an Ethics Committee investigation in order to influence or preempt a looming impeachment complaint against the plagiarizing justice?

 “d. Was not the creation of new districts in Camarines Sur done by Congress, the representative of the people?”

The creation of a new congressional district paved the way for Dato Arroyo to run for a seat in Congress. So the question Bernas should be asking is, why did Corona participate in the case, when he, at the time, was being considered as Chief Justice and it was a case of personal interest to the appointing power, Gloria Arroyo?

 “e. Who decides the application of the principle of proportionality (or “one man, one vote”) in the size of districts?”

What does Bernas not understand in the constitutional provision that says, “Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative”?

 

6.  “Respondent betrayed the public trust through his partiality in granting a temporary restraining order (TRO) in favor of former President Gloria Macapagal-Arroyo and her husband Jose Miguel Arroyo in order to give them an opportunity to escape prosecution and to frustrate the ends of justice, and in distorting the Supreme Court decision on the effectivity of the TRO in view of a clear failure to comply with the conditions of the Supreme Court’s own TRO.”

Bernas asks:

a. The constitutionality of the restriction on the right to travel through a Department of Justice circular on hold-departure orders is pending before the Court with the decision expected after New Year. Should the Senate preempt the Supreme Court decision?”

The question is a diversion. The issue is Corona’s behavior. The Senate is being asked to judge whether or not Corona acted in violation of his sworn duty to be impartial. Bernas should have asked, did Corona behave properly?

 “b. What is the import, if any, of the existence of a House bill and a Senate bill disempowering the DOJ?”

Another diversion. The existence of bills in Congress have no bearing on the charge that Corona behaved improperly, that he facilitated the flight of the Arroyos. Did Corona behave properly? That is the question.

 “c. The continuing effectivity of the TRO has been affirmed by the Supreme Court. What power does the Senate have over it?”

Again a diversion. The charge is Corona maneuvered the granting of the TRO to enable the Arroyos to flee. Did he?

 

7. This charge has to do with Corona’s failure and refusal to account for the Judiciary Development Fund (JDF) and Special Allowance for the Judiciary (SAJ) collections.

Bernas asked,

 “a. Involved in this is the interpretation of the extent of fiscal autonomy of the Court. What is the jurisprudence on this? Will the Senate apply or depart from existing jurisprudence on the subject?”

First, the jurisprudence is self-serving because the Court granted itself an exemption from giving an accounting of the JDF and SAJ. Second, on the day of his impeachment, Corona submitted the accounting that he had refused to submit all along. Bernas should have asked, what made Corona suddenly abandon the principle of fiscal autonomy and all the existing jurisprudence regarding an accounting of the JDF and SAJ?

The Senator judges will be bamboozled by all sorts of legalese from Corona’s lawyers and supporters like Bernas. Senator judges who are not lawyers will do well to heed Thomas Jefferson’s quote above.

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