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Saturday, February 11, 2012

Editorial

No constitutional crisis…yet

SOME Filipinos are, wrongly, saying that there is now a constitutional crisis. No, There is no constitutional crisis yet. Thanks to the wisdom of the senator-judges in the impeachment trial of Chief Justice Renata C. Corona. And thanks too to the wisdom of the Supreme Court justices who have decided to act circumspectly on the petition of the Chief Justice for the High Court to stop the impeachment trial on constitutional grounds, the infirmities of the process and the abuse of his human rights.

Had the majority of the Supremes acted in favor of the CJ’s petition on Thursday, they would have ordered the trial to stop. And that would have paved the way for a constitutional crisis.

But even then perhaps there would bo no crisis. There would be a crisis only if something is left precariously unresolved.

But what if the Supreme Court’s TRO on the impeachment trial is addressed not to the Senate sitting as the Impeachment Court but to the Senate as the upper chamber of the Congress of the Philippines?

And what if in their wisdom and patriotism the senators agreed to review their decision to accept the claimed-to-be flawed impeachment complaint andprocess? What if, Solomonically, the senators decide to take cognizance of our imagined High Court TRO—and agreed that it was sent to them as regular senators not as specially and constitutionally transformed Impeachment Justices? Then they would hold morning sessions (as they now hold their 11 a.m. caucuses) to dwell on the Supreme Court TRO, but in the afternoon, at 2 p.m., they would continuethe impeachment trial, but skirting, for the moment, controversial issues such as the dollar accounts. Then there would be no constitutional crisis. This is something they have in fact done.

The Senate would in that way yield to the supremacy of the Supreme Court as the final interpreter of existing laws but at the same time continue being the sole power as an Impeachment Court whose proceedings cannot be stopped even by the SupremeCourt.

The Senate, as the respondent in the TRO, would give its comment and reply to the High Court. But by going ahead with the impeachment trial it would also be reaffirming its constitutional supremacy over this impeachment case of the House of Representatives versus Chief Justice Renato C. Corona.

Supreme Court’s power of review
Two experts on constitutional law have challenged theview of some senator-judges that the Supreme Courthas no authority over acts of the Impeachment Court. Both happen to be priests. Fr. Joaquin Bernas is the dean emeritus of the Ateneo Law School. He is among those who worked with fellow constitutional commissioners to create the present Constitution. Theother expert is Fr. Rhanhilo Aquino, dean of the San Beda Graduate School of Law. They hold the opinion that even the Impeachment Court’s actions are subject to the Supreme Court’s constitutionally vested power to determine the final meaning of laws in case there is a conflict of interpretations.

In his keynote speech at the oath-taking of the Philippine Constitution Association’s new officers, Fr. Bernas last Wednesday discounted the notion of “superiority.” He said “only” the Constitution was superior. The Supreme Court was not superior to the Impeachment Court or any other government agency whose actions the SC had the power of review.

“Does the fact that the Constitution [name] the Senate as the sole judge of all impeachment cases make it [the Senate] superior to the Supreme Court in everything relating to impeachment? Perhaps we can find an answer to this by [reviewing] the jurisprudence on the relation of the Supreme Court to other agencies of the government,” Fr. Bernas urged.

He said that while the Constitution states that the electoral tribunals shall be the sole judge of all election protests, the Supreme Court was still called upon to determine if the electoral tribunals had committed grave abuse of discretion or acted without or beyond their jurisdiction.

Both Fr. Bernas and Fr. Aquino agree that theSupreme Court has the constitutional power to review any moves in the impeachment trial that might have been a grave abuse of discretion.

We can think of a scenario in which an impeachment court (not this Impeachment Court of the 15th Congress), in the senator-judges zeal to get an uncooperative witness to tell the truth, would order the use of Stalinist torture methods. To whom, if not the Supreme Court, would the offended party run for relief, redress and succor?

Military adventurism scenario
We dare bring this nightmarish scenario up because some commentators in mainstream media and in the social networks seem eager to see a constitutional crisis to ensue so that the Philippine military can exercise what they (these commentators) believe is the soldiery’s “constitutionally mandated” duty to serve as “protectors of the people.”

Indeed the Constitution’s “Declaration of Principlesand State Policies” has this sentence in Principles, Section 3: “The Armed Forces of the Philippines is theprotector of the people and the State.” Seldom quoted, however, are the sentences before and after that seeming invitation to the military to come to the fore whenever there is a crisis. The complete Section 3 reads: “Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.”

If, God forbid, a crisis does ensue because the senator-judges decide to become an immovable object and the Supremes an irresistible force, the constitutional crisis could become the mess that we have experienced in both Edsa Uno and Edsa Dos, with the military egged on to do their thing and “be the protectors of the people and State.”

Goodwill has so far characterized the relationshp between the Impeachment Court and the Supreme Court. May nothing cause that goodwill to perish.


Being Frank

The Senate trial of impeached Supreme Court Chief Justice Renato Corona Jr. has been an eye-opener for many. Aside from providing a daily crash course in everything from rules of court to bank secrecy laws, the proceedings have also been a showcase of the legal brilliance of octogenarians like Senate President and presiding officer Juan Ponce Enrile and defense counsel Serafin Cuevas in stark contrast to the colossal bumbling of the private prosecutors led originally by the grandstanding Rep. Neil Tupas Jr., later replaced by the equally vacuous Rep. Rudy Farinas.

To his credit, Enrile has done an excellent job keeping everyone in line and making sure that the proceedings are conducted properly. However, despite the Senate President’s repeated statements that the impeachment court is a non-partisan body, the trial is, in fact, a partisan exercise, made even more apparent by the blatant actuations of some senator-judges. At the end of the day, Corona’s fate will not be decided on legal merits, but rather on political interests.

Even before the start of the trial and presentation of the first witness and first shred of evidence, we’ve already had an idea of how each senator will vote, based on their political leanings. However, while some senators have at least tried to maintain a facade of neutrality, others have not been so discrete. Take for instance the case of senator-judge Franklin Drilon, a leader of President Aquino’s Liberal Party, who has been on the receiving end of scathing attacks on Facebook and other social-networking sites for his clearly partisan performance, prodding some quarters to refer to him as “senator-prosecutor”.

Recall that it was Drilon who prodded a prosecution witness to produce the chief justice’s statements of assets, liabilities and net worth, a job that should have been done by prosecutors. Later, when a bank official failed to bring Corona’s bank records as these were protected by bank secrecy laws, Drilon threatened to find him in contempt.

If people are aghast at Drilon’s “senator-prosecutor” antics, they shouldn’t be surprised, frankly speaking (no pun intended), given the track record of the man. After all, Drilon, together with Senator Edgardo Angara and the late Senator Raul Roco, was a lawyer in the ACCRA Law Office during the Marcos years. The firm was notorious for packaging spurious deals and dummy corporations for cronies of the dictator. Of course, Drilon denies he was involved in these shenanigans, maintaining his work at ACCRA was limited to labor cases only. Not so true, however, according to the late Ricardo Manapat, director of the National Archives for 8 years, who documented Drilon’s role in ACCRA in his book “Some Are Smarter Than Others.” Slick as an oil spill, Drilon was able to shrewdly evade the post-EDSA anti-Marcos backlash and was even appointed Labor Secretary and later Executive Secretary by President Cory Aquino.

More recently, during the Arroyo administration, Drilon once again displayed his unique utilitarian talents and ability to jump from one political ship to another. In 2005, he was a member of the Hyatt 10, which called for then President Arroyo’s resignation. The group of disgruntled Cabinet members and erstwhile Arroyo allies purportedly tried to convince then Vice President Noli de Castro to appoint Drilon Vice President and concurrent Executive Secretary, in the event of Arroyo’s fall. They were no doubt cognizant of De Castro’s personal limitations and sought to put control of the entire government in effect in Drilon’s hands. What was truly reprehensible, however, was that just days before the Hyatt 10’s declaration, Drilon was with Arroyo in Iloilo, cajoling the embattled president to move her office to his province because “we love you here”. Et tu Franklin.

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I would like to share with my readers a portion of a column I wrote around this time last year, shortly after my father, the late Lieutenant General and Ambassador Thelmo Y. Cunanan, succumbed to cancer. It is especially poignant in light of circumstances and reveals a lot about the nature and character of Drilon.

“In his last days, Dad fought one last battle—to clear his good name—as the administration of President Noynoy Aquino, ordered its attack dogs like Senator Franklin Drilon and columnist Jarius Bondoc to go after him. It was clearly a politically-motivated vendetta against my mother, who had opposed Noynoy’s candidacy. Drilon and Bondoc spread the most malicious lies against Dad, branding him a thief and criminal. Mom even personally called Drilon, whom she had once considered a good friend. In tears, she asked why he was mercilessly and baselessly attacking Dad, who was terminally ill and dying. Drilon just hung up the phone. I never heard Dad speak ill of anyone—not even of Drilon and Bondoc. This was the kind of gentleman he was and the kind of person I try everyday to become.”

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