Sunday, April 1, 2012

Heart of the matter

At the very heart of the articles of impeachment against Chief Justice Renato Corona is his alleged betrayal of trust under the Philippine Constitution. After reducing the articles of impeachment from 8 to 3, the prosecution is relying on Article 2 to convict Corona for his failure to disclose his statement of assets, liabilities, and net worth (or SALN in short) as required under the Constitution. In other words, Corona as alleged, had not been truthful and even concealed certain assets from his annual wealth declarations.

The obligation of a public officer or employee to declare his or her assets, liabilities and net worth is enshrined in the 1987 Constitution under Section 17, Article XI. Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, provides for the enabling legislation that requires public officials and employees to declare their assets, liabilities, net worth and financial and business interests, including those of their spouses and of unmarried children under 18 years of age living in their households.
 Corona's alleged U.S. property as  new evidence? Photo courtesy of Yahoo!Southeast
Asia Newsroom. Click link to view "Impeach Corona, Bawiin ang Hacienda, Sigaw ng
Yellow Mob,"
Under the Constitution, only the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office through impeachment for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Note that in order to find a violation of the Constitution as an impeachable offence, the violation must be culpable, a term in criminal law that refers to the blameworthiness of the accused. Failure by a public officer named in the Constitution who can be impeached by not disclosing his or her SALN may not necessarily be culpable as it is more in the nature of a regulatory or administrative offence, but nevertheless prosecutable under the law. It must be proved, therefore, that Corona had a culpable state of mind if he were to be impeached for not declaring an accurate or honest SALN, i.e., that he intended to commit the offence which implies a very high standard of proof.

Let us review the impeachment trial so far.

There is no allegation in the articles of impeachment that the Chief Justice did not declare his wealth as required under the Constitution. What the prosecution impugns is Corona’s false declaration, under-declaration, and non-declaration of assets in his SALN. As the impeachment trial went on, the glaring problem with the prosecution’s allegation appears to be their lack of evidence to prove Corona violated the law. All that the prosecution managed was to embark on a fishing expedition for evidence that will prove their allegation. Corona’s defence lawyers, however, were able to rebut with contradicting evidence or proof that the properties allegedly owned by Corona were either not his or were obtained lawfully.

In the end, the prosecution was able to tarnish the image of the Chief Justice in the eyes of the public as being dishonest and not truthful about his assets by implying that some of Corona’s properties might have been irregularly obtained. But that will not stand in any court of law or before the Senator-judges who must consider the evidence or absence of culpability.

Lately for instance, Raissa Robles, a professional blogger disclosed in her blog that the Chief Justice has properties in the United States which were not reported by Corona in his SALN. No due diligence was exercised by Ms. Robles, like conducting a simple title search, but she was able to poke the public mind that Corona might be hiding some U.S. properties from his assets. Corona, however, was quick to respond that those properties alleged by Ms. Robles are actually owned by his daughters who are residents and working in the United States. Besides, the SALN law (RA 6713) excludes reporting properties of unmarried children who are 18 years of age or over and who are not living in the household of a public official.

Again, this kind of gathering evidence and reporting it on the Internet and the media does not prove Corona’s culpability. It only excites public speculation that Corona cannot be trusted. It continues to paint Corona as guilty in the public mind even before the end of the trial, but not through the legal process where the Chief Justice just like anyone of us is also entitled to the equal protection of the law.

Let us consider an article written by one of the most rabid of supporters the Aquino government has in the media. Conrado de Quiros, in his regular column in the Philippine Daily Inquirer, criticized the argument that the failure to submit a SALN is not an impeachable offence as idiotic. He wrote that this offence is “not only an impeachable offence” but also a “jail-able offence.”

Mr. de Quiros may be right from a common sense point of view. But the law as it is, is not merely about common sense. The law also considers the rights of the person accused and due process. One doesn’t simply rant in public about a public official’s alleged offence and ask the public to hang him. We need people of sober minds to weigh and judge the evidence against a person accused of a high crime, not the lunacy of those who are willing to sell their souls at any price in exchange for peddling to the public the government’s official line, no matter how incredulous.

So, where does the Chief Justice’s alleged false declaration of his SALN fall if it is not a culpable violation of the Constitution? Could it be graft and corruption? For how can a public official even as high as the Chief Justice afford to buy expensive properties from his meagre salary alone? Certainly, there is an implication of irregularity that could point to graft and corruption. Only corrupt government officials can buy those properties alleged owned by the Coronas, unless the Chief Justice himself was also corrupt.

But then the law cannot be based on speculations or innuendoes. An accusation of graft and corruption, which was never pleaded by the prosecution in the articles of impeachment, must be proved by incontrovertible evidence.

What are left as alternative impeachable crimes would be other high crimes or betrayal of public trust. But who determines whether a false SALN is a high crime or betrayal of public trust?

In associating “treason, bribery, graft and corruption” with “other high crimes or betrayal of public trust,” the framers of the 1987 Constitution must have in their minds the political nature of these offences, that these offences are against the state. To borrow from the conservative Harvard professor Raoul Berger, they are political crimes as distinguished from crimes against person, such as murder. They are also punishable by Congress, whereas courts punish crimes or lesser private wrongs.

The 1987 Philippine Constitution removed the word “misdemeanours” and substituted it with “betrayal of public trust.” We can surmise that the reason is to preserve “high crimes” to impeachment cases and leave misdemeanours to the ordinary courts.

Considering the political nature of these impeachable offences, perhaps there is no need for facts or evidence to impeach the Chief Justice. All that is needed is votes. Except that this would defy all requirements of due process, which must be accorded to the Chief Justice no less than the lowliest felon. It is also not necessarily true, therefore, that “other high crimes or betrayal of public trust” could be whatever the Senate acting as an impeachment court considers.

But the real problem with the impeachment of Chief Justice Corona lies in the haste the articles of impeachment were prepared. A verified complaint for impeachment was never filed in the first place in accordance with the Constitution. The articles of impeachment were literally shoved down the throats of 188 members of Congress and they were asked to sign under duress. If they didn’t sign, they would never get a share of government pork.

Under the American legal tradition where we borrowed the concept of impeachment of public officers, an impeachment may not necessarily start its inquiry under the impeachment rules. A preliminary or general inquiry may be the best way to start an impeachment until the facts as they are disclosed become developed or strong enough to proceed with the impeachment. At the same time, a public demand for stronger action is generated.

But the Senate struck down the request of Corona’s defence team for a preliminary inquiry and decided right away to proceed with the impeachment despite the glaring deficiencies in the articles of impeachment. The government led by President Noynoy Aquino then launched a media blitz to influence public opinion against the Chief Justice, similar to a trial by publicity. Everything that ensued once the impeachment trial started became a living nightmare, not only to the defence team but also to the prosecution and the government as well.

One thing for sure after the verdict is handed down, the Corona impeachment will make us respect the law even less than we did before. That is not very comforting to Congress and to the judiciary which we originally thought are the last bulwark of the people against onslaughts to the Constitution by a president who believes personal vendetta takes priority over others, including respect for the rule of law.

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