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Feb 12

Twilight of the Gods (updated)

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(Photo from Classical Iconoclast.)

So is it Twilight of the Gods time for the Supreme Court? The last of the Thirty Six Strategies, and the last of the Stratagems for desperate situations, is this: If all else fails, retreat. This is pretty much the conclusion of lawyer Teddy Te in a recent commentary:

From a tactical point of view, the Corona petition is almost the white flag – almost. The allegation about “grave abuse of discretion” by another branch of government is, I think, deliberate: to avoid an outright dismissal on the ground that it is a political question. The re-allegation of the insufficiency of the impeachment complaint is also, I think, deliberate: to allow this petition to be consolidated with the other pending petitions to stop the trial and also to confer standing in case the standing of the other petitioners (Lozano, Paguia, Adaza, Millora, et al.) is denied.

From a purely academic point of view, however, the Corona petition is a mother lode of ethical and legal issues that would keep every law class occupied.

As I’m writing this, reporters have tweeted that the Defense counsel have announced a press conference at 7PM tonight at Club Filipino, media is abuzz that it will be “interesting,” “big,” etc., quoting a defense spokesperson as saying it will be “an important announcement and development.”

Update:

So the much-anticipated press conference took place. See Defense blasts Palace ‘interference’ which was responded to immediately, see Statement of Presidential Spokesperson Edwin Lacierda: On the statement of the defense panel of the Chief Justice.

It’s interesting the defense trotted out the CBCP when CEAP (Catholic Educational Association of the Philippines, which includes in its roster Jesuit and Dominican schools) issued a blistering statement, Re-affirming the People’s faith in the Judiciary: A call for Chief Justice Renato C. Corona to give his written consent to the opening of his Foreign Currency Deposit Accounts relative to the Impeachment Proceeding earlier today:

In an unfortunate turn of events, the Supreme Court issued a Temporary Restraining Order (TRO) on the Senate acting as an Impeachment Court, preventively cutting short the inquiries conducted last February 9, 2012 relative to the accounts owned and maintained by Chief Justice Renato C. Corona, specifically as regards his foreign currency deposits, pursuant to section 8 of RA 6426 (as amended by P.D. 1035, and further amended by PD 1246) which declares and considers all foreign currency deposits as absolutely confidential in nature…

This is truly disconcerting inasmuch as the political process of impeachment is seen by many Filipinos as an avenue for authentic institutional reforms in the Judiciary…

The CEAP, a national association comprising 1,345 schools, colleges and universities, believes that CJ Corona’s voluntary assent to open his foreign currency deposit accounts can set the tone for authentic judicial reforms…

Thus, when Chief Justice Corona conveniently hides behind the mantle of protection offered by this TRO issued in favor of PSBank, it reveals his questionable character leading one to logically posit this question – if Chief Justice Corona is truly innocent as he so claims, then why is there resistance in the request for a disclosure of his foreign currency deposit accounts?…

In the interest of truth and justice, allow the disclosure of these foreign currency deposit accounts in order that the Impeachment Proceedings can fully and fairly take place.

We pray that the Chief Justice recognize the impeachment proceedings as a vital part of our political exercise designed by the 1987 Constitution for the protection of the body politic, and therefore must take all steps to ensure that this political exercise enshrined in our Constitution be faithfully carried out.

Finally we hope that CHIEF JUSTICE RENATO C. CORONA is one with us, in our collective call for authentic and long lasting reforms not only in the judiciary but also in other branches of government – characterized by a high sense of accountability to the public, financial transparency and utmost integrity, one that not only restores but re-affirms the faith of our people in its public servants.

The whole brouhaha is over the provisions of a law, Republic Act 6426, which was passed on April 4, 1972, to authorize banks to hold foreign currency deposits. A provision on absolute secrecy was enacted by Presidential Decree during martial law. Our bank secrecy laws already resulted in Philippines blacklisted as a tax haven in 2009, although Philippines changes law, wants off tax-haven blacklist –by authorizing foreign authorities to check the financial records of their citizens here.

This, to my mind, brings up an interesting question (never mind the one that seems to be bugging many people: So where’s the TRO?). The Marcos decrees predate the present Constitution with its requirements in Article XI: Accountability of Public Officers. See Section 17. Could it be argued that the martial-law era laws are incompatible with both the spirit and actual provisions of the Constitution? And that or public officers, the requirements of Article XI overrides the provisions of RA 6426 as amended?

Returning the the defense press conference, the question now is: Walkout by Corona’s impeachment lawyers looms? There will surely be much gaming-out of various scenarios. Everyone will be waiting to see where the Senate takes off from where things were last Thursday, February 9.

It was noteworthy that Justice Serafin Cuevas was conspicuously absent from the press conference. Atty. Jimeno also seemed to distanced herself from the statements made at the press conference. If the Senate cites some of the defense counsel for contempt, the two may be in the clear.

End of update.

Senator Sergio Osmeña III earlier said a confrontation over the Chief Justice’s bank accounts was inevitable and on Monday, by all accounts, that confrontation will take place, as the Senate conducts a caucus on what to do about the Temporary Restraining Order issued by the Supreme Court. The TRO prohibits the production of documents concerning the Chief Justice’s dollar deposits. Some background documents can be found in the special section. The Corona Impeachment, and the Chief Justice’s petition to the high court, while the colliding points of view are briskly summarized by Mon Casiple:

Thus, two schools of thoughts or doctrines will be tested in the coming week. One, is the constitutionally mandated Senate impeachment court with “sole power” to try impeachment cases subject to the jurisdiction of or is it superior to the Supreme Court in its own jurisdiction? Two, does a law–decreed by dictator Marcos no less–have an absolute application and not subject anymore to any interpretation or exception, particularly by a constitutionally-mandated sui generis impeachment court.

In the first case, any weakness by the impeachment court by accepting, to any degree, the jurisdiction of the Supreme Court can fatally undermine its own jurisdiction and will open the door to more SC intervention. This includes the possibility of the SC stopping the impeachment trial altogether as what is prayed for by a separate petition for certiorari and TRO filed by no less than CJ Corona in his own court.

In the second case, acceptance of the absoluteness of any law, in this case the FCDU act, will also undermine the jurisdiction and even the capability of the impeachment court to fulfill its mandate of determining whether or not an impeachable public official is still fit to hold office. An impeachment process implies the fullest use of state power to get at the truth precisely because the impeachable official is in a position to use the power of his office to derail the search for truth. What this implies, in turn, is that the impeachment court–when it is convened–has only itself to turn to for interpreting its mandate.

In a situation of a divided Supreme Court, with Supreme Court majority decisions being questioned in the impeachment articles, it is dangerous for the impeachment court to allow any interference from this body in its proceedings. In its turn, the Supreme Court TRO exposes the eight justices who signed the order to contempt by the impeachment court at the least. It may, as a possibility, lead to their own impeachment.

It is–as yet–not a constitutional crisis precisely because both sides are still adhering to constitutional processes, albeit with differing interpretations of their respective role and mandate in relation to impeachment. The crisis will arrive when–as a consequence of each one’s decisions–the other side does not recognize the decisions and consequently defy them.

For other commentaries, see Manuel Buencamino, ArticleVIIIJester, and Edsel Tupaz’s recent commentary, Corona’s Impeachment and the Role of US Precedent.

The question of legal precedents, foreign or otherwise, the courts, the Constitution, the framers of that constitution, will be vigorously debated. Readers interested in the discussions in the Constitutional Commission, the theorists, like Alexander Hamilton, that the framers of the Constitution referred to, the examples proponents of judicial review such as former Chief Justice Concepcion had in mind, and related matters, can see my Storify story:

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