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Mar 13

Tie silk blossoms to the dead tree

Goya_Tribunal.jpg

(Francisco Goya, The Inquisition Tribunal, circa 1812-1819)

Judiciary performs a divine function where ordinary humans decide the fate of others. When this divine function of deciding the fate of others is bestowed in a Judge, we expect him to perform it with the highest standards of scholarship and utmost impartiality. He must be detached from all collateral persuasions. The premise of the utmost impartiality, free from aberrations under which the institution of judiciary was created, is no longer available. There are compromises, in terms of quality, in terms of independence and collateral influences. Thus, there is a need to be vigilant about the judiciary. Judges no longer live in ivory towers. Today, they live in glasshouses where the bar, litigants, public and the media watch them from close proximity. But then we have all to exercise utmost restraint. Judges cannot defend themselves against unfounded allegations. They must neither be summarily tried nor be thrown to the wolves. A judge, under inquiry, must be candid. He cannot plead only technical defences. He cannot be too clever by half. He cannot invoke a right to silence like an ordinary accused, and shy away from speaking the truth. In this case, when the Judge under inquiry says that his offence must be proved ‘to the hilt’ or ‘proved beyond reasonable doubt’, he relies on technicalities rather than substance. A Judge is like Caesar’s wife. He must be beyond suspicion. Caesar divorced his wife merely on the basis of suspicion. Those who occupy high offices must live through the scrutiny of highest standards of probity. A Judge must be beyond suspicion.

–Arun Jaitley, speaking on the impeachment of Justice Soumitra Sen

The 29th of the 36 Strategies is Tie Silk Blossoms to the Dead Tree. As the trial goes into its last week before Congress goes on its extended Lenten Recess, this seems to be where the defense is at. Randy David believes that if and when either Mrs. Corona or the Chief Justice takes the stand, the trial will reach a point of no return, politically speaking: regardless of the actual legal technique of the defense.
A kind of sport has developed among observers to identify the discrepancies in the Chief Justice’s public statements, after the Chief Justice went on a media tour that might have complicated his defense. (followed by schmoozing with bloggers, see The Nutbox and Corona’s Original Sin). The legal eagles have weighed in on the issues at hand, as shown by the analysis of former Chief Justice Artemio Panganiban. With regards to Article II, see O Happy fault and Irreconcilable by Article VIII Jester, or in terms of Article VII, see Jun Poblador.
On March 7 I gave a lecture in the Ateneo de Manila on impeachment: how it came to be, why it exists, etc. Impeachment: Explained – March 7, 2012

coming in the wake of surveys and such, I felt it was important to discuss why there is such a thing as impeachment; what impeachments are supposed to achieve (and prevent), and how Filipinos have turned a borrowed institution and adapted it to suit domestic conditions: in particular, by expanding the kinds of acts that are impeachable, making impeaching officials in the House of Representative easier. What comes forth clearly, from the proceedings of the Constitutional Commission, is that the Framers of the Constitution:

1. Wanted to make impeachment easier, but wanted to keep acquittal or conviction difficult;

2. Felt that having impeachments more often would have a healthy deterrent effect against wrongdoing;

3. Believed that since impeachment is not a criminal trial, it would be wrong to restrict impeachable offenses to crimes defined by the Penal Code or other laws: hence the essentially fluid concept of Betrayal of Public Trust as a new offense.

The thinking and intentions of the Framers of the Constitution, however, has quite obviously collided not only with lawyers, but even the public, which in some respects finds it hard to come to grips with the concept of impeachment being not really a trial, but more than a debate. A more fundamental problem is the reality of impeachment being a political process, when the public has a pretty dim view of not only politicians, but our public institutions in general. And what it requires not only to participate it, but accept, the authority and decisions of those institutions.

The problem with this is what I once described as the Dilemma of the good soldier, in citing the insight of Torn and Frayed, a sympathetic foreign resident:

It seems to me that the current set-up in the Philippines helps to criminalize virtually all of us, limiting our capacity, and even our desire, to support justice.

Do you pay all your taxes? If you run a business, have you waited patiently for the endless licences the state requires, or have you “eased” the process with a few hundred pesos? What about that time a cop pulled you over for swerving, did you hand over your licence quietly or slip him a couple of hundred?

I won’t go on, but even you have stoutly answered “yes” to all of those questions, what about your family? Is your dad’s business 100% legal? Your mother works in government service, are you sure everything she does is by the book?

The fact that almost all of us are forced or at least encouraged to commit these misdemeanours is an enormous advantage to the high rollers in the grimy game.

Some lawyers view the problem as essentially one based on a near-religious veneration of the judiciary. Taking off from a 2007 article I wrote, An abnormal return to normality, there are questions that have to be confronted, whether on the letter or the spirit of the law, or to put it another way, the debate between form and substance. This has always been an important consideration since the era of GMA; and the quote from Edmund Burke is particularly relevant: there is, too often, I believe, an obsession with the letter of the law –ignoring the spirit of the law.
This manifests itself in many ways. Two examples that occurred to me recently have their origins in a presentation I made to lawyers continuing their legal education, and a conversation with a friend still in law school. In the presentation I made to lawyers, there was a clear dividing line between those who belonged to the old school, and younger lawyers. I was discussing how current jurisprudence doesn’t allow for online publication to count as official publication, while other countries already do it. There was a backlash from older people who were horrified at the very thought of pursuing online publication. After the discussion, a younger lawyer approached me and pointed out he had problems with this attitude, as how then could he certify American legal decisions now published exclusively online?

In my conversation with a law student friend, what the student objected to to was the emphasis on rote learning, to the exclusion of studying relevant cases thoroughly and well –essentially on the premise of “well we had to go through this when we were in law school and you will, too.”

On the whole, however, I do believe that there is a public consensus as far as impeachment is concerned: it is no longer a novel thing, but an institutional process, and as far as it goes, one the public views as par for the course and generally, credible. This is different from actually having made up one’s mind as far as the eventual verdict is concerned, though there does seem to be a 2:1 ratio among those convinced of guilt, versus those convinced of innocence, with an even larger proportion not having made up their mind. Though there is a tremendous majority in terms of accepting the eventual outcome, whatever it will be. This seems fairly healthy.

Some readings:

Raissa Robles publishes the Chief Justice’s SALNs for quick reference; lawyer Ben Maynigo analyzes reported data; Winston Marbella puts forward the latest talk points for the defense; ConstitutionMaking.Org takes note of the impeachment. Veteran journalist Vergel Santos argues,

Quite obviously, impeachment is not strictly lawyers’ business. If the defense lawyers and some members of the court try, as in fact they do, to circumscribe it within legalities, they are out of order, because they’re shutting out the whole nation, which, for all its lay-mindedness, is still the sovereign.The reversal of roles,with senators judging a judge, alone signifies who’s boss.

In fact, impeachment is a political process. It is an emergency recourse set down in the Constitution for dealing with a powerful official whose continuation in power and office works against the people’s interest.In other words, an impeachment court is a surrogate people’s-court, a court that works through the senators by the people’s grace and therefore judges by their interest.

And, only naturally, an impeachment judge is expected to apply the same perspective, predisposition, and scale of justice he brings to his regular job as senator. In that sense necessarily, the impeachment court trying Corona will have to take into critical account the nine scandal-ridden years of Gloria Arroyo’s reign, during which, by her grace, he came to the Supreme Court and subsequently became the chief justice, an office he has kept to this day. After all, he is on trial for, among other crimes, betraying the public trust for rulings, made by his court,unfairly favoring Arroyo, his own patroness, and her family and partners. He is accused, in other words, of presiding over a process that reduced justice to a joke, and the rule of law to a rule of men.

This is an ongoing debate elsewhere, see Judicial politics by Stephen Sedley in the London Review of Books.
As always, it’s helpful to consider how other societies with different, but similar, legal systems, have coped with impeachment. A particularly interesting case was the recent impeachment of a High Court (Federal state’s Supreme Court) justice:

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