Thin line between law and politics

Impeached Chief Justice Renato Corona’s come-back at the Senate yesterday was definitely a rebound from that monumental walk-out blunder last Tuesday. His announcement that he was finally opening his dollar accounts up for public scrutiny, although practically useless to the Impeachment Court, was a brilliant political stroke that undoubtedly earned for him some vital political capital. The chief magistrate is definitely a cunning politician.

But beyond the effect of his Senate appearance on the court of public opinion, what I find very interesting was the manner with which he defended his failure to declare his multi-million wealth in his Statement of Assets, Liabilities, and Net Worth (SALN). It has an important implication on the conduct of the impeachment trial itself.

Recall that in several TV interviews prior to his appearance at his trial, the Chief Justice had said that the declarations he had made in his SALN, which states that he is worth three and a half million pesos, match everything he owns. The testimony of the Ombudsman, however, had cornered him into admitting that he actually has around eighty million pesos and more than two million dollars in several bank deposits that he had not declared. Article II of the Impeachment Complaint accuses the Chief Justice of gross misdeclaration of his SALN.

The Chief Justice justifies the non-declaration of his peso deposits by claiming that these are co-mingled funds that belong to his immediate relatives. As for his dollar deposits, he claims that the Foreign Currency Deposits Act (FCDA), a Marcos-era law, requires “absolute confidentiality” of dollar deposits; hence, he could not declare his dollar savings, which he said is an accumulation of the returns of his dollar investments since the 1960s when he was still in college (note that it was illegal for Filipinos to engage in dollar trading during those times).

In short, the Chief Justice is saying that the constitutional provision on declaration of assets by public officials is limited by a statute requiring “absolute confidentiality” of dollar deposits. A bewildered Senator Francis Pangilinan asked if he meant that the FCDA trumps this constitutional provision, and the Chief Justice implied that it does. The provision has the qualifier “as may be provided by law,” said the Chief Justice, and that law refers to the FCDA.  I have no formal legal training whatsoever, but I find this interpretation extremely peculiar for three reasons.

Firstly, the said constitutional provision (Article II, Section 17) mentions the phrase “as may be provided by law” only twice: In reference to the frequency of the filing of the SALN, and the manner with which the SALN is to be disclosed to the public. The FCDA concerns neither of these.

Secondly, the FCDA’s “absolute confidentiality” clause applies only to bank officials who must not divulge any information on foreign currency deposits of their clients. The clients themselves, however, are free to divulge these information, which is exactly why the Chief Justice was able to waive his bank secrecy rights last Friday.

Thirdly, the Constitution does not speak of any exception to the assets and liabilities that public officials are required to disclose. Indeed, any exemption would defeat the purpose of the SALN itself, as activist Red Tani has suggested. Moreover, relevant laws would show that the SALN is supposed to contain “all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like (Section 8, RA6713).” No exceptions whatsoever.

These mind-boggling peculiarities aside, the Senate would now have to decide whether the impeached Chief Justice culpably violated the Constitution by failing to declare his multi-million assets in his SALN. To do so, the Senate would have to determine whether the Chief Justice’s counter-intuitive interpretation of the supposed conflict between the FCDA and the constitutional provision on the SALN is correct or not.

This is tricky, because the supposed conflict between the two laws is a strictly legal issue that only the Supreme Court has the competence and the power to resolve. As columnist Frederico Pascual tweeted, the Senate’s mandate is to merely decide the impeachment case against the Chief Justice, not to interpret the laws.

This is of great interest for students of politics and Law for it shows how the sui generis impeachment process traverses a very thin line between the political and legal realms. So how should the Senate navigate this line?

My take— and this is of course not an expert opinion– is that the Senate, if it chooses to, can determine what the correct interpretation should be for the purpose of arriving at a decision. This doesn’t mean that the Senate would be usurping the function of the Supreme Court, since its primary intent is to merely exercise its mandate– to arrive at a decision– rather than to interpret the laws. Obviously, the Senate’s interpretation would not form part of precedence. It can be validated or disproved by a Supreme Court decision.

Which begs the question, if the Supreme Court ultimately rejects the Senate’s interpretation, would it render the Senate’s decision invalid?  Again, this exposes the thin line between the political and legal realms. I think a Supreme Court rejection would only affect the legal question of how to reconcile the FCDA with the constitutional provision on the SALN, but not the decision of the Senate Impeachment Court, which concerns a purely political question.

Beyond legalese.

How then should the senator-judges decide if the Chief Justice’s interpretation of the laws is correct or not? Indeed, how should the Senate decide the case in general? These questions must be asked because it seems that quite a number of Chief Justice Corona’s supporters believe that he should be acquitted on the basis of technical legalese.

They cite, for instance, the “fruit of the poisonous tree” doctrine to condemn the presentation of “illegally-obtained” evidence against the Chief Justtice. But, as lawyer Butch Dado had blogged, this doctrine should not apply on impeachment cases since “the potential damage to our political institutions and processes by the imposition of fruit of the poisonous tree rule outweighs any possible abridgement of personal privacy rights” of the accused.

Alexander Hamilton once described the impeachment process as “a method of national inquest into the conduct of public men.” The idea is that, through the senators, the people are supposed to judge the moral fitness of their government’s high officials. For the purpose of procedural considerations, judicial rules apply, but only to a certain extent. These judicial rules must not get in the way of removing an obviously erring official.

The senator-judges should decide on the basis of the public’s basic sense of right and wrong. Is it right for a chief magistrate to recklessly assume that his supposed bank secrecy rights are more important than the constitutionally-mandated value of transparency? Is it right for the Chief Justice to use the letter of the law to circumvent the spirit of the law? Is it right to entrust the Supreme Court to a man who had lied several times before and during his three-hour monologue at the Senate? How high should the bar of integrity and honesty imposed on the head of the judiciary be?

Ultimately, the impeachment process is a policy-making process that must resolve the question of whether or not it is in the interest of the nation for the impeached official to remain in his office.

 ELSEWHERE: Speaking of technical legalese, a lawyer-blogger has correctly pointed out that the Impeachment Court should disregard Corona’s interpretation of the supposed conflict between FCDA and Article XI, Section 17 of the Constitution. Under rules of court, it has no probative value since Corona was not presented as an expert witness.

Also, Corona’s uncorroborated testimony is a mere denial of the charges against him. Jurisprudence puts premium on “categorical testimony that rings of truth” (read- Ombudsman) over “bare denials” that are not backed by proof. Justice Cuevas and Corona admitted under questioning that they have no documentary proofs whatsoever.

Moreover, in view of the evidence, Corona’s undeclared assets are presumed by law to be prima facie ill-gotten. Therefore, Corona has the burden to prove otherwise. Note that he never presented any proof; he merely denied– and cried. Read the blog here.

Former Chief Justice Artemio V. Panganiban said that the prosecution has been, to a minimum extent, successful in presenting a prima facie case, while the Defense has failed. See his column here. Former UP College of Law Dean Raul Pangalangan, meanwhile, says the Chief Justice’s interpretation of the law on SALN is “plain wrong.” See his Inquirer piece here.

Rappler has a very interesting article on the intriguing rift between Corona and Associate Justice Antonio Carpio here.

Read about the root of all this brouhaha here.

More on the Corona impeachment drama here.

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11 thoughts on “Thin line between law and politics”

  1. This is funny. The legidlstors made laws with loopholes, and now they will convict someone because of the loopholes? Rule of Yellow says Senate caninterpret laws now too.

  2. Re: fruit of the poisonous tree… It’s absurd for Corona to use that argument.

    The prosecution did not present the AMLA report, the defense did. The prosecution did not present the $2.4 M in four dollar accounts and the P80M in peso accounts, Corona brought it up in his own testimony.

    The best most concise argument against the bank secrecy law argument of Corona came from Atty. Mel Sta Maria of Interaksyon news. He said the requirement of full disclosure is a DUTY mandated by the Constitution while the absolut confidentiality granted by the bank secrecy law is a PRIVILEGE granted by law. CONSTITUTIONAL DUTY trumps STATUTORY PRIVILEGE at all times. (see http://www.interaksyon.com/article/32679/corona-testimony-duty—vs–privilege)

  3. but when there is no jurisprudence, you can take your chances. so the issue of interpretation per se is not the problem.

    the problem is more personal. the CJ is the compliance officer for the judiciary. then he makes a strained interpretation that exonerates himself. that on its face negates good faith. and it makes sense to argue that interpretation in bad faith is a betrayal of public trust.

    1. I agree, of course. But I’m sure people like Miriam Defenser-Santiago, ever trapped in their lawyer’s Umwelt, would not want the Senate to interpret the Law.

  4. that’s the point.. the senate doesn’t have to interpret.. they can see that there is no good faith in the (afterthought) defense that the words in the FCDA act about absolute secrecy is a magic wand.

    MDS is, well, MDS.

    1. I don’t know what to make of Senator Defensor-Santiago. She is obviously bias from start to finish. Harsh on bungles of the Prosecution, but defeaningly silent on the irrelevant witnesses presented by the Defense and the imperiousness of the Chief Justice, who grossly disrespected a senator-judge.

      And now she says the FCDA, being a special law, should take precedence over the SALN Law, which is a general law. Didn’t she realize that the conflict is not between these two statutes but between a statute (FCDA) and the Constitution (Art XI Sec 17)?

      As Dean Raul Pangalangan (one of the framers of the Rome Statute without which the country would not be able to deport the good senator to The Hague) said, saying that the FCDA limits Art XI Sec 17 is “plain wrong.”

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