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Feb 04

The question of the public pulse

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Style over substance. The best defense, as they say, is a good offense. And so, the other day, by way of former Senator Francisco “Kit” Tatad came something remarkable. Referring to public opinion, he opined,

On the whole, nagbabago. Nakikita na mukhang ang perception ng bayan yung sympathy sa prosecution mukhang nalilipat kay Corona.

In this he finds his messaging amplified by old comrade former Senate President Ernesto Maceda. Tatad is, by the way, squarely in the corner of the Chief Justice, and he has been trying to rekindle his political prospects by putting himself forward as a crusader for conservative Catholicism –his remarks aren’t remarkable on either score (though his conservative Catholicism is in keeping with the Chief Justice’s brand of faith, if one judges it by signs such as a Tridentine Mass on the last day of novena held in the Supreme Court’s premises) , but for something else entirely.

Back to Tatad, and how his quip was a significant statement on a couple of levels. The facepalm-provoking style, as many quarters see it, of the prosecution has given the defense what it sees an opportunity to focus on style (or what it derides as as a lack of it on the part of the prosecution) and by so doing, sidetrack focus from the substance –i.e., the evidence. Is this convincing to the majority, which sees the evidence trickling out? What is more important is that the opposition and the defense thinks it might.

For his part, Tatad senses an opportunity to make a bid to fill the opposition leadership vacuum in the wake of the incarceration of Rep. Gloria Macapagal-Arroyo. Justice Cuevas, as is his duty, has focused on what any defense counsel ought to do: suppress any and all evidence harmful to his client. For all his aplomb at the podium, Cuevas has been far from successful in this regard. In some respects, he has been successful, see Discount, reduction and other peripherals by Marites Vitug:

This side bar to the main story, which is the great disparity in income and acquisitions of Renato Corona, took over the day.

We forgot: how did he afford P14.5 million, and this is just for the Bellagio penthouse, with a declared salary of less than a million pesos a year? And, a while back, his wife, Cristina, was classified as a “one-time taxpayer” by the Bureau of Internal Revenue.

Just as an aside: discounts to public officials are a no-no in squeaky clean Singapore. Our neighbor takes pride in its zero tolerance for corruption. Years ago, Senior Minister Lee Kuan Yew and his son, Lee Hsien Loong, then still deputy prime minister, were given “unsolicitied” discounts between 5% and 12% on two new expensive condominiums they bought. This created such an uproar that the two top officials had to give the discounts they received to the government.

Second, the question of when a corporation loses its life became paramount, sidestepping a bigger issue.

Here’s the background. Renato Corona made a cash advance (a miffed Sen. Lito Lapid wanted to clarify if this was a “loan”) of P11-M from Basa Guidote Enterprises or BGEI in 2003, apparently to pay for the 1,200-square meter lot in La Vista, an exclusive enclave, and completely paid for it in 2009. (BGEI is a corporation owned by the Basas, the siblings of Cristina Corona’s mother.)

But the Securities and Exchange Commission said that they had revoked BGEI’s registration in 2003 because it had not complied with reporting requirements. This means that BGEI should merely be winding up its affairs—and was given 3 years to complete this process. So, could BGEI have lent money to Corona and received payments way beyond its life?

Senator Juan Ponce Enrile relished his role as elder, lecturing the witness from the SEC on corporation law.

Again, this was a side question.

The bigger issue is: The source of the P11-M loan is contested wealth and this is part of a decades-long bitter court dispute between Cristina Corona and the majority of the Basas. Could Cristina have lent P11-M from the family-owned corporation without approval from the court that is handling this case? Could she treat the funds as if it were her own?

Blogger Article VIII Jester addresses two things. First, what evidence has, so far, emerged?

FIRST, the inconsistency of the Defense on the reckoning point for declarations of real properties in the Statements of Assets, Liabilities and Net Worth (SALNs) of Chief Justice Renato Corona are desperately obvious.

Senator-Judge Ralph Recto noted that during the proceedings on Day 10, the Defense justified the non-inclusion of the Columns property in Corona’s SALNs on the ground that the Coronas have not yet supposedly taken possession of said property and ownership thereof has not yet arisen. However, the gentleman from Batangas noted that on Day 11, the Defense justified the non-inclusion of the Marikina property in Corona’s SALNs on the ground that there is supposedly a Deed of Sale dated 26 July 1990 between Cristina Corona and a certain Demetrio Vicente, thus effectively transferring ownership of said Marikina property to the buyer thereof.

Stated otherwise, with respect to the Columns property, the Defense is of the position that since there is no acceptance yet of said property on the part of Corona, there is no legal obligation to declare and/or disclose the same in his SALNs. However, this is without legal basis since the issue of possession is irrelevant for purposes of the disclosure requirements under the law considering that it is the deed of sale that conveys ownership of the property and not the actual possession thereof. Since ownership already passed on to the Coronas as early as 2004, Corona should have declared the Columns property in the SALN immediately succeeding its acquisition (i.e., SALN for 2005), regardless of whether said property was already accepted or not.

In fact, the Defense recognized the very same legal principle (i.e., that a deed of sale conveys ownership of a property) with respect to Marikina property when it claimed that Corona is no longer required to declare said property owing to the purported Deed of Sale dated 26 July 1990 that supposedly transferred ownership from the seller to the buyer. This, however, only revealed the flaw in the positions taken by the Defense, prompting Senator-Judge Recto to note that the Defense is apparently citing and/or adopting certain legal principles when it is favorable to the cause of its client.

Considering that the issue on the reckoning point to declare real properties will be the subject of memoranda to be filed by the parties, the Prosecution should take advantage of such opportunity to highlight the fact that the Defense cannot espouse a consistent and legally justifiable argument on said matter and that any attempt by the Defense to reconcile obviously irreconcilable positions would only be a desperate attempt to muddle the issues.

Second, in the discussions in the Senate, there is the question of whether what has been revealed, is sufficient in gravity to convict the Chief Justice. Or, as Joker Arroyo put it, “Even a crime that was committed may not be an impeachable offense.” So the blogger looks into what is impeachable, and what has transpired in the proceedings is related to these offenses:

Article II of the Impeachment Complaint alleges the following impeachable offenses against Corona:

II. RESPONDENT COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST WHEN HE FAILED TO DISCLOSE TO THE PUBLIC HIS STATEMENT OF ASSETS, LIABILITIES, AND NET WORTH AS REQUIRED UNDER SEC. 17, ART. XI OF THE 1987 CONSTITUTION.

2.1. It is provided for in Art. XI, Section 17 of the 1987 Constitution that “a public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. ”

2.2. Respondent failed to disclose to the public his statement of assets, liabilities, and net worth as required by the Constitution.

2.3. It is also reported that some of the properties of Respondent are not included in his declaration of his assets, liabilities, and net worth, in violation of the anti-graft and corrupt practices act.

2.4. Respondent is likewise suspected and accused of having accumulated ill-gotten wealth, acquiring assets of high values and keeping bank accounts with huge deposits. It has been reported that Respondent has, among others, a 300-sq. meter apartment in a posh Mega World Property development at the Fort in Taguig. Has he reported this, as he is constitutionally-required under Art. XI, Sec. 17 of the Constitution in his Statement of Assets and Liabilities and Net Worth (SALN)? Is this acquisition sustained and duly supported by his income as a public official? Since his assumption as Associate and subsequently, Chief Justice, has he complied with this duty of public disclosure?”

According to the Records of the 1986 Constitutional Commission (Volume II, page 314), “culpable violation of the Constitution” was understood to mean “willful and intentional violation of the Constitution and not violation committed unintentionally or involuntarily or in good faith or thru an honest mistake of judgment” and it “implies deliberate intent, perhaps even a certain degree of perversity for it is not easy to imagine that individuals in the category of theses officials would go so far as to defy knowingly what the Constitution commands.”

Further, according to the same Records of the 1986 Constitutional Commission (Volume II, page 272), “betrayal of public trust” is intended to be a catchall phrase and that “it refers to [a public official’s] oath of office,” Thus, if the official violates his oath of office, he is deemed to have betrayed public trust. It also contemplates a situation of obstruction of justice since the official “in his oath he swears to do justice to ever man.” It also includes “all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office,” including “betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute.”

As previously noted, during the previous hearings, the Prosecution was able to present documents that sufficiently showed that Corona acquired properties that are manifestly out of proportion to his salary as a public officer and that he failed to declare the same and/or falsely declared the particulars thereof. Further, it was shown that Corona concealed his real estate properties in the name of his wife, children, and son-in-law. Moreover, pieces of evidence were also presented to prove that he received an unauthorized gift and/or favor from a litigant (Megaworld) at the time when said corporation had several pending cases before the Supreme Court (SC), one of which was even decided by him in favor of said corporation.

These, among others, amount to violations of not only of the Constitution and statutory law but also of his oath of office as a member of the Judiciary, which clearly justify the charge of culpable violation of the Constitution and betrayal of public trust.

Section 2 of Article XI of the Constitution provides that members of the Supreme Court may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Section 17, in turn, provides that a public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth.

Section 7 of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) provides that very public officer, within thirty (30) days after assuming office, thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of department or Chief of an independent office, with the Office of the President, a true, detailed sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year.

In the same manner, Section 8 of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) provides that public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households. The declarations should include information on: (a) real property, its improvements, acquisition costs, assessed value and current fair market value; (b) personal property and acquisition cost; (c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like; (d) liabilities; and (e) all business interests and financial connections.

Consequently, Section 2 of Republic Act No. 1379 (Forfeiture Law) provides that “[w]henever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired.”

Further, Section 1 of the Forfeiture Law provides that properties concealed in the names of relatives and any other person are relevant for cases involving alleged ill-gotten wealth.

In this respect, Section 8 of Anti-Graft and Corrupt Practices Act provides:

“SECTION 8. Prima facie evidence of and dismissal due to unexplained wealth. — If in accordance with the provisions of Republic Act Numbered One thousand three hundred seventy-nine, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently out of proportion to legitimate income, shall likewise be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary. The circumstances hereinabove mentioned shall constitute valid ground for the administrative suspension of the public official concerned for an indefinite period until the investigation of the unexplained wealth is completed.”

Finally, the above-indicated evidence presented by the Prosecution show clear and flagrant violations of the New Code of Judicial Conduct, which provides that it is unethical for a magistrate and members of his family to ask for or receive any gift or favor in exchange for any act done or to be done by the judge in the course of his judicial functions, thus:

“Judges and members of their families shall neither ask for, nor accept, any gift, bequest, loan or favor in relation to anything done or to be done or omitted to be done by him or her in connection with the performance of judicial duties.” [Section 8, Canon 4]

In view of the evidence presented by the Prosecution thus far, the properties under Corona’s name, as well as that of his wife and children – which are grossly and manifestly disproportionate to his lawful income – are presumed under law to have been ill-gotten. As such, it is incumbent upon him to discharge his burden of evidence to prove that the properties in question were acquired through lawful means.

In other respects, he has been fortunate in what some observers see as shortcomings on the part of the prosecution, see The prosecution’s mistake by Tony Laviña –yet this article very soberly, I think, points out that while some may roll their eyes at the prosecution (and one must ask if this is more a case of a bias for seniority than anything else), the fact is, legitimate issues have managed to emerge and the corresponding evidence to address those issues:

Under RA 6713, all public officials shall file under oath their SALNs and those of their spouses and unmarried children under 18 years of age. Moreover, RA 3019 explicitly requires that “every public officer… shall prepare and file… a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and expenses and the amount of income taxes paid for the next preceding calendar year.”

Thus, these laws contemplate both the public officer’s physical act of filing his and his family’s statement of assets, liabilities and net worth and his filing of a true, genuine and accurate SALN.

The prosecution does not necessarily need prove ill-gotten or hidden wealth to convict the Chief Justice under Article 2 of the impeachment articles. In fact, as I have argued elsewhere, it is a mistake for the prosecution to proceed with such a theory of law which tends to criminalize the impeachment proceedings, raising the bar of the applicable rules of evidence and the standard of proof required for conviction…

…The prosecution then need only prove that CJ Corona, in fact, failed to file a true, genuine and accurate SALN in manifest violation of the special laws and the Constitution.

Furthermore, intent or malice on the part of CJ Corona in relation to filing of a true, genuine and accurate SALN need not even be proved since RA 6713 and RA 3019 being special laws punish offenses which are malum prohibitum and not malum in se meaning, that the actual action done, and not the intent behind it, is considered.

Moreover, as held by the Supreme Court in the case of Magarang v. Judge Galdino B. Jardin Sr, “while every public office in the government is a public trust, no position exacts a greater demand on moral righteousness and uprightness of an individual than a seat in the judiciary. Hence, judges are strictly mandated to abide by the law, the Code of Judicial Conduct and other existing administrative policies in order to maintain the faith of the people in the administration of justice.”

…In the case of CJ Corona, being the Chief Justice of the Supreme Court demands not only that he be of utmost moral righteousness and uprightness, but also that he abide strictly by the mandate of the Constitution and other laws as the role model of those in the entire judicial department tasked to dispense justice to the people.

Article II of the Articles of Impeachment provides that CJ Corona “committed culpable violation of the Constitution and/or betrayal of public trust.” Textual analysis and the historical record (the discussions of the 1986 Constitutional Commission or ConCom) show that both “culpable violation” and “betrayal of public trust” are distinct from treason, graft and corruption and other high crimes.

The former, according to the ConCom, “means willful and intentional violation of the Constitution and not violation committed unintentionally or involuntarily or in good faith or thru an honest mistake of judgment” and that it “implies deliberate intent, perhaps even a certain degree of perversity for it is not easy to imagine that individuals in the category of theses officials would go so far as to defy knowingly what the Constitution commands.”

Likewise, based on ConCom records, “betrayal of public trust” was intended to be a catchall phrase and that it referred to the violation by an official of his oath of office. It also includes acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office, such as inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute.

While not necessarily rising to the level of high crimes, I do agree that such culpable violation and betrayal of public trust, of course, must be serious and not trivial or insignificant. Depending on severity of the culpability and betrayal, the Senate can actually choose to acquit or to convict, and if it opts for conviction, can decide the range of penalties from censure to removal…

In my view (knowing of course I am not a senator-judge), the mere fact of failing to file a true, genuine and accurate SALN by a chief justice is a serious matter. Such omission can be considered rendering him:

  • unfit to continue in office (since he is called to uphold the law and not violate it)
  • prejudicial to public interest (not giving a good example to other officers of the court of lower rank than him who he is supposed to lead)
  • tending to bring his office into disrepute (since the judiciary wields influence through moral ascendancy and if the chief justice himself is found to have violated the laws and the Constitution, there will be a loss of public trust in the institution tasked with dispensing justice)

Just the same, it would, of course, be a better case for the prosecution if malice or intent on the part of the chief justice be proven in not filing a true, genuine and accurate SALN since this even makes it easier to prove that he committed culpable violation of the constitutional provision that says “public office is a public trust” and/or betrayed the public trust as already mentioned above.

But at the end of the day, legal technique can only supplement the politics of the case –and the defense lacks a political proponent for its side, since the leader of the opposition is under hospital arrest and hearing from her or her chief lieutenants only fortifies the prosecution case that the defendant is in turn, on of the chief lieutenants of Rep. Gloria Macapagal-Arroyo. Hence the return of Tatad to the political scene, in the guise of being a roving reporter, taking notes for a book on the impeachment trial. He has given political voice to the opposition which was hard-pressed to try to assist the Chief Justice.

Second, if Tatad’s quip is remarkable for the manner in which it provided a rallying cry for the opposition circled around the Chief Justice, it’s just as remarkable in terms of how his taking the public pulse was easily lapped up.

And yet this is a man who, when you think about it, provided one of the most spectacular examples of misreading the public pulse, ever: he was one of 11 senators who voted against opening the controversial “second envelope” during the Estrada impeachment trial, and whose vote sparked Edsa Dos: and one of those whose public standing never recovered, although others managed to make a comeback (Defensor-Santiago, Enrile, Honasan, Sotto for example).

The following senators participated in the aborted Estrada impeachment trial, whether as actual senators or members of the prosecution: Arroyo (prosecutor), Defensor Santiago (voted against motion to open second envelope), Drilon (voted to open), Enrile (voted against), Honasan (voted against), Legarda-Leviste (voted to open), Osmeña III (voted to open), Sotto III (voted against). Five had parents who were senators in the last impeachment trial: the two Cayetanos (their father voted to open), Guingona (his father voted to open) Pimentel (his father voted to open), and Revilla (his father voted against). With the exception of Joker Arroyo, all the other senators have shown every sing of carefully safeguarding the institutional reputation of the Senate, and supporting Enrile’s avowed policy of solving as many problems within the confines of a caucus rather than conduct debates among the senators in public; but the senators who served in the 2000-2001 Senate also took away political lessons from that aborted trial.

More on that next time.

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