Wednesday, December 14, 2011

Corona Trial 2: Impeachment for Beginners

(Note: the original title of this paper was "Rule of Law 14: Impeachment for Beginners")

Here is a good reading material for people who want to understand about impeachment -- removing a high official in the Executive or Judiciary branches of government via Constitutional and legal process, not by street demonstrations and "people power revolution." I got this from facebook and it has been forwarded and shared by several dozen people already via facebook Notes and other blogs.

The author is a friend in the university way back in the 80s. Atty. Theodore "Ted" Te is a small (he's probably less than 5 feet tall) and boyish looking lawyer with a huge brain; he's frank and articulate. In my post yesterday, Rule of Law 4: Impeaching the SC Chief Justice, Ted wrote,"betrayal of public trust is another question (betrayal of my trust? no, I never trusted him at all, nothing to betray)", and that's what I meant of Ted being frank.

The subject of impeachment is the Supreme Court (SC) Chief Justice Renato Corona; the one who instigated the impeachment -- through his partymates and political allies in the House of Representatives is the President of the country, Benigno "Noynoy" Aquino; and the ultimate judge will be the Senate, to be headed by the Senate President, Juan Ponce Enrile.

This is an interesting photo. From left: CJ Corona, Senate President Enrile, and President Aquino. In the hierarchy of political leadership in the country, they are ranked numbers 5, 3 and 1, respectively. Numbers 2 and 4 are the Vice President and the Speaker of the House of Representatives.

Ted explains here the following:
1. the process of impeachment,
2. the options for the accused, in this case, CJ Corona,
3. implications for the accusers, in this case the House of Representatives and indirectly, President Aquino,
4. the eight (8) charges hurled against the accused,
5. the burdens (evidence and tactics) for the accusers, and
6. pursuing accountability and rule of law.

That is why I consider Ted's paper a brief but good reading material for non-lawyers like me and many other citizens.

On a side note, I checked wikipedia's definition of "rule of law" just a few minutes ago and I was disappointed. Wiki (or the last person who edited and defined the term) wrote,
Rule of law is a legal maxim that suggests that governmental decisions be made by applying known principles.
For me this is wrong. Rule of law applies not only to government but also to non-government contracts and decisions. An example: I borrowed XX thousand pesos from a friend with a promise that I will pay him the full amount within one month, with or without interest. A month has passed and I did not pay him, partially or fully, I broke the law or contract with my friend. I can talk to him and ask for an extension in payment timetable, or he can pressure me through various means (peer and friends' pressure, going to court, etc.) so that I will pay as stipulated in our contract.

Now to Ted's paper.

Hell to the Chief

By Theodore Te
December 14, 2011

In the movie “Gladiator,” Maximus, before leading the armies of Marcus Aurelius to battle, looks to Quintus, his adjutant and gives a simple order, “at my signal, unleash hell.”

On Monday, Dec. 5, 2011, the President gave the signal—when he publicly shamed the Chief Justice raising issues that went to the legality of his appointment as well as the nature of his character at a National Criminal Justice Summit—and his loyal army unleashed hell on the Chief Justice.

One week after, in a stunning demonstration of “all deliberate speed,” 188 members of the House of Representatives, summoned by the Speaker, literally lined up to sign an impeachment complaint which, for many of them, they had yet to read, let alone comprehend.

Having learned apparently from their experience with the impeachment complaint against the former ombudsman, where they had to pass through hoops just to get the votes, the President’s loyalists no longer bothered with debate but simply, by overwhelming force of numbers, got the votes to send the complaint directly to the Senate for trial of the Chief Justice.

Under Article XI, sec. 3(4) of the 1987 Constitution, “(i)n case the verified complaint or resolution of 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.” The House has 285 members, the President only needed 95 but he got 188, which certainly qualifies as overwhelming.

On the very next day, the Articles of Impeachment are transmitted to the Senate which, under the Constitution, will convene itself into an impeachment court to try the Chief Justice. Today, Dec. 14, 2011, (or when this is published), the Senate would have convened itself into an impeachment court already, oaths as senators-judges would have been taken and summons would have already been issued.

Having previously come up with rules to try the former ombudsman and having amended the same in anticipation of the trial of the Chief Justice, the procedures would already be in place. Typically, the Chief Justice would be given ten (10) days to answer and the House prosecutors would be given five (5) days to reply. Thereafter, the trial would start. (A more detailed discussion of the Rules and nuances arising from the Rules in the next post)

Corona's options

What’s probably going to happen next?

From the point of view of the Chief Justice, he has two options.

First, he resigns. And it would be all over but the coronation of the next Chief Justice. Notably, he may resign for two reasons:

(a) because he is guilty, or
(b) though he is innocent, he wants to avoid the embarrassment of being brought to trial.

If it is for the first reason and he says so, he will probably be remembered for his candor and may even be remembered well. If it is for the second, he will be remembered for being perfectly human.

The Palace is banking that Corona will resign for the simple reason that the only ones who win in any impeachment trial would be the television networks, the congressmen/women who want to milk the publicity to further senatorial ambitions and Lito Lapid, because he finally gets to wear a toga.

The Palace, despite the President’s brave words, does not win in an impeachment trial; first, it will take too long, second, it diverts valuable time and resources from other more important matters and third, Corona gets to tell his story and gets to look like an underdog.

So the Palace is most likely praying that he resigns, for whichever reason. If this happens, the Chief Executive wins because he gets Corona out of office, the jury would still be out if the people also do win because a Renato Corona does not a Supreme Court make or unmake.

But the Chief may stay put and call the bluff of the Palace. Essentially, he says, “try me.” If he does so, several permutations are available, each posing varying levels of complication for the Palace.

One would be that he stays put but goes on official leave to attend to his impeachment trial; this is the most preferable scenario for the Palace as a pro-Aquino Justice would take over as the most Senior Associate Justice.

There is, however, no rule that requires the Chief Justice to take a leave simply because he has been impeached and is standing trial. Yet, there is ample precedent to the contrary—Joseph Estrada did not go on leave during his impeachment trial and in the United States, Bill Clinton also did not go on leave during his impeachment trial. This would lead to the second permutation.

On the other hand, he can stay put but does not go on official leave and in fact continues to discharge the duties of his office. Remember, he does not need to attend the proceedings because he can be represented by counsel.

This would be the ultimate nightmare for the Palace as an obviously pissed-off Chief Justice would be in a position to deny every legal remedy that the Palace seeks for so long as he can get seven other votes. If, in the process, he gets to pen some other significant social justice decisions that sound like his Hacienda Luisita dissent that resonates with the people, then he has the perfect foil to the Palace.

Sure, there could be basis to say that the Chief Justice ought to inhibit from cases involving the Palace and Congress, but if you were the Chief Justice and you had just been called every imaginable shade of crook, what’s a few ethical breaches here and there, right?

Should the Chief Justice take the second option, then it would be hell for the Chief—the Chief Executive.

Prosecutors' burdens

From the point of view of the House prosecutors, they have the burden of proof.

In discharging this burden, they need to prove that the Chief Justice either:

(a) betrayed the public trust,
(b) committed culpable violation of the Constitution or
(c) did both.

In proving these, they must prove that the Chief Justice performed acts or omissions in the way they are alleged to have been performed in the Articles of Impeachment relating to the following matters:

1. His track record, “marked by partiality and subservience in cases involving the Arroyo Administration from the time of his appointment as Supreme Court Justice and until his dubious appointment as Midnight Chief Justice to the present.”

2. His failure to disclose to the public his Statement of Assets, Liabilities and Net Worth (SALN) as required by the Constitution;

3. His failure to meet and observe the standard that “a member of the judiciary must be a person of proven competence, integrity, probity and independence.”

4. His blatant disregard of the principle of separation of powers by issuing a “status quo ante” order as against the House of Representatives in the case involving the impeachment of the former Ombudsman.

5. His “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.

6. His arrogance unto “himself, and to a Committee he created, the authority and jurisdiction to improperly investigate” Associate Justice Mariano Del Castillo “for the purpose of exculpating him, such authority and jurisdiction being properly reposed by the Constitution in the House of Representatives through the process of impeachment.

7. His partiality in granting a Temporary Restraining Order in favor of Gloria Arroyo and Mike 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.”

8. His failure and refusal to account for the Judiciary Development Fund and Special Allowance for the Judiciary (SAJ) collections.

What does the House Panel need to remember?

First, under the Constitution, a 2/3 vote of the Senators at the impeachment trial is needed to convict the Chief Justice. Conviction on only one ground is sufficient.

If a conviction is obtained in the first ground, there will be no need to hear the others as the Chief Justice is convicted and he is removed from office. To get a conviction with 23 senators sitting, the House panel would need 15, so all that the Chief Justice needs is to ensure that there are 9 senators who would vote against conviction for each of the eight grounds.

Of course, it is more difficult to convince 15 than to convince 9. So their work is cut out for them.

Second, they need to convince the Senate to agree to a definition of “betrayal of public trust” that is clear, comprehensive enough to apply to all the eight situations alleged, workable and, most importantly, easy to prove. Without this, doubt will persist. Unless the definition is clear and comprehensive enough, the mentality of the Senators will be to doubt and in case of doubt, the House loses.

A strictly legal or technical definition will not work as the Senate of the 15th Congress is composed of 12 non-lawyers and only 11 lawyers, and a highly legal or technical definition will work in favor of the Chief Justice because, again, in case of doubt, the vote will most likely be to acquit.

After all, it is a Chief Justice who is being tried and it is no less than the Head of a separate and co-equal branch of government who is being removed.

Third, the House Panel needs to prove each and every qualifier alleged in their eight grounds. Note that the qualifiers are not idle words, they go into the very element of the alleged offense and distinguish the act from any other act. A failure to prove each and every qualifier might result in a failure to prove the grounds for impeachment.

Many of the qualifiers in the Articles of Impeachment are simply, however, unprovable as they are actually inconsistent; as, for instance, in the fifth ground regarding the League of Cities case where one of the qualifiers is “consistently disregarding the principle of res judicata.“ Note that the ground pertains to only two cases, though involving several flip-flopping decisions. The main difficulty and battle ground for the House Panel here would be to define “consistently disregarding” in relation to only two cases, neither of which is his ponencia. Indeed, there is so much to be said for brevity in stating a case.

Fourth, the House Panel bound itself to prove “intentions” in relation to the specifications of the grounds. Take the sixth and seventh acts, both of which involve proof of a state of mind.

The sixth basis that was cited involves the plagiarism case against Associate Justice Mariano Del Castillo. While the essence of the charge is that the Chief Justice arrogated unto himself and a committee the investigation of the plagiarism allegations against Del Castillo in violation of the House’s supposedly exclusive prerogative to impeach Del Castillo, the addition of the qualifier “for the purpose of exculpating him” binds the House panel to prove a state of mind—an intent to exculpate—changes the essence of the charge.

Instead of simply saying the Chief Justice violated separation of powers, the Articles now add a new element and one that is totally unnecessary to prove the ground. Moreover, the “intent to exculpate” pertains not only to the Chief Justice but also to the Committee; but none of the Committee members are included in the impeachment complaint.

Criminal lawyers know that intent, being a state of mind, is proven only by overt acts and indeed the Constitution prohibits punishment of malevolent thought for so long as the malevolence is not translated into deed. I wonder how the “intent to exculpate” will or can be proven.

The seventh involves the TRO in favor of Mike and Gloria Arroyo. Again, it would have been sufficient to simply allege the betrayal of public trust differently and in relation to abuse of judicial prerogative in terms of prejudgment but the allegation now includes an intent—the intent to afford escape, a corollary to the intent to exculpate.

Not only is it sufficient then to prove that the TRO was issued despite absence of factual ground or urgency and simply allow the inference that the logical result was evasion of prosecution, the allegation of “intent to afford escape” now requires the House Panel to prove this affirmatively.

Fifth, the longer the trial takes, the more difficult it is to demonstrate that the Chief Justice needs to be removed. Thus, it was imperative to assemble the clearest, the strongest and the shortest case possible.

Eight grounds is simply too many. The public will be watching and the public has a notoriously short attention span.

The longer it takes, the easier it will be for doubt to set in that “maybe, the case for removal isn’t that strong after all.”

Sixth, the House panel needs to remember that an act and an omission cannot co-exist; yet, in the eighth ground, the House alleged that the Chief Justice did both—that he failed and refused.

Seventh, good trial work requires trial discipline and trial discipline often imposes a “no publicity” rule. The best weapon a trial lawyer, whether prosecutor or defense, has is surprise. So, the House Panel members need to act counter-intuitively or even counter-instinctively and refuse the siren song of the first available microphone that’s thrust in front of them.

The road to hell

The cliché tells us what the road to hell is strewn with. Unfortunately, good intentions do not always a strong case make.

Unfortunately, as it does not look like the Chief Executive is backing down from this one, we can only hope that the House Panel members apply themselves to this case, disregarding all other considerations (ego and senatorial aspirations, among them) and focusing only on ensuring that, in the trial that is to come, it is accountability that is ensured and not anything else.

See also:
Corona Trial 1: Impeaching the SC Chief Justice, December 13, 2011
Rule of Law 8: Purpose and Supremacy of the Law, June 15, 2010
Rule of Law 9: Laws, Prohibitions and Corruption, June 30, 2010
Rule of Law 10: On Wang-wang and Government Laws, July 04, 2010
Rule of Law 11: RoL Index, October 15, 2010
Rule of Law 12: Gloria Arroyo, Travel Abroad and the SC, November 16, 2011

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