Monthly Archives: January 2012

We are all lawyers now

The first week of the impeachment trial of Chief Justice Corona may have opened in fits and starts, but what is undeniable is that it has now acquired a life of its own.

Note for instance is that for all the protestations of Chief Justice Corona’s defense team that the Rule of  Law is being trammeled in the whole exercise, they’re the ones who appear ready and adept at invoking its finer intricacies to their advantage.

Yet, the defense may be one step ahead right now in form but what the prosecution has in its favor is substance.

Now, I do not wish to go into the merits of the prosecution’s claim that SALNs already made public, once examined detail by detail, will show not only Chief Justice Corona’s utter failure to abide by the law’s disclosure requirement’s but also how he allegedly amassed unexplained wealth over that span of time it took him to transform himself from being a lowly chief of staff of then Vice President Gloria Macapagal-Arroyo to being the primus inter pares of the High Court.

I shall leave it to the prosecution witnesses to testify on those points beginning today.

But once  the key to Chief Justice Corona’s SALNs has been turned over to the Senate — no less a triumph of the constitutional proposition that an impeachment court is itself a constitutional institution higher because unique in its function than the country’s highest court — the cause for public accountability has, in a very real sense, been already won.

I don’t know if the High Court can at this point still risk a showdown with the impeachment court convened by the Senate. For one, whether the high and mighty justices of the Supreme Court like it or not, the televised (and live-streamed!) historic trial is a blockbuster everyone wants to see.

After all, for the very first time, the veil of mystery that has shrouded an often misunderstood institution has been lifted. Not only that: it’s very leader, no less than the Chief Justice himself, is being placed under intense public scrutiny.

A new Temporary Restraining Order from Mr. Corona’s dependable friends in his own court, this time aimed at torpedoing his impeachment trial, is sure to backfire the way it did when the High Court tried to open the door for Mrs. Macacapal-Arroyo so she can fly out of the country and escape public accountability.

The immorality of the whole sordid affair riled the public so much; there was nothing but public ridicule for Mrs. Macapagal-Arroyo, whose feigned illness was so obvious that it immediately elicited devilish comparisons with the popular Japanese anime character Naruto from among the ranks of savvy netizens.

This is what agent provocateurs like Alan Paguia and Homobono Adaza are up against – a public that has, over the  years since the February 1986 revolution, undergone no less than a revolution in political consciousness.

For this reason, Messieurs Paguia and Adaza, no matter how hard they try to outdo each another in their profession of unblemished fidelity to the Supreme Court and the Chief Justice, will never get the respect they so desperately want from the public.

Your ordinary citizen has become better at reading between the lines.

It is also for this same reason that the former First Gentleman, Mike Arroyo, cannot expect to be taken seriously by your average jeepney driver, his solemn oath  to the incorruptibility of the good Chief Justice notwithstanding.

In case Mr. Arroyo has forgotten, he himself is facing a slew of corruption complaints before the Ombudsman while his wife, Mrs. Gloria Macapagal-Arroyo, the gracious benefactor to the Chief Justice, is herself in prison for charges she now has to fight off in court.

If at all, whoever was the PR guru who advised him to make public the case for the innocence of the Chief Justice should be fired for giving the utterly counter-intuitive advice to Mr. Arroyo. His public statements only serve to solidify in the public’s mind Mr. Corona’s close association with the Arroyos.

In any case, not even the prosecutors are spared from public scrutiny.And rightly so. After all, they represent the interests of the people in the impeachment proceedings. They cannot afford to commit blunder after blunder in the highly-charged atmosphere of a live trial. And they know it.

So Justice Cuevas is a necessary foil to the prosecutors. His presence in the impeachment trial means that in the end, the Chief Justice cannot claim to have been denied due process. He was given the choice to get the best defense lawyers in town. And he sure got them.

The impeachment trial of the Chief Justice is good for us.

More than a spectacle, it is an education in civic responsibility.  The lawyers may have the run of things in the impeachment court but they must realize too that the corrupt legacy left behind by the Chief Justice’s  chief benefactor, Mrs. Macapagal-Arroyo, has turned lawyers of all of us. The public wants the full force of the law applied to her. And there are no better lessons in legal and constitutional responsibility than a former President sent  to jail for her criminal misdeeds and her favorite Chief Justice tried for betrayal of public trust, corruption and culpable violation of the constitution.*

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You may also read this essay as it first appeared in  my column for the Iloilo News today here.

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GMA’s “Pinochet Maneuver”

By Romel Regalado Bagares

On March 10, 1998 – after some 25 years in power – Chilean strongman Augusto Pinochet relinquished his power to his supposed successor, Gen. Ricardo Izurieta.  He left behind him a murderous legacy: 3,197 victims of executions, disappearances and killings from nearly three decades of a reign of terror as a US-backed military dictator. An estimated 1,000 of these victims have been disappeared and nearly 90 percent of them remain missing to this day.

Yet the dictator’s return to civilian life was by no means ordinary.  On the contrary, he made sure he would be shielded under Chilean law from being prosecuted for his atrocious human rights record.

First, he put in place a constitution under which only his top generals could be appointed as chief of state.

Second, he made sure that before he stepped down from office, the rubber stamp Chilean parliament had already passed an amnesty law that virtually absolved him of any criminal responsibility for the human rights violations committed under his regime.

Third, he did not exactly disappear from public life from then on because the very next day,  he occupied a new office at the Senate as a senator for life, in the splendid company of former military underlings and cabinet ministers who, under his direction,  wielded power as unelected legislators who could veto together any proposed legislation.

Fourth, his parliamentary office meant that he enjoyed constitutional immunity from any suit or criminal proceeding. This was because the rules of the time required that an appeals court must first strip him of immunity and suspend him from his legislative post before he could be charged in court.  Also, his senatorial office afforded him with the power to stifle detractors by prosecuting them under a law on state security.

Mrs. Gloria Macapagal-Arroyo’s stepping down from the heights of power wracked by allegations of unprecedented corruption and numerous human rights violations was no less inspired.

First, she made sure she would remain in the political limelight by running for a congressional post in her hometown Lubao, Pampanga. And she assured her win  in the elections by pampering her cabalens with development projects and doleouts sourced from her nearly limitless access to public funds while she was still President.

Without doubt, in a country where congressmen are often seen as untouchables, she thought that being a member of the House of Representatives afforded her with some measure of protection from any legal maneuver aimed at her direction by her successor, Benigno Aquino III.

Second, with the help of allies in the House of Representatives, she carved out a new congressional district in the Bicol region for her own son, Datu Arroyo, who could add additional weight to her power bloc at the Lower House.

Third, her own allies also fielded new entrants to the House of Representatives through the party-list elections, and her son Mikey Arroyo made it through this back-door entrance to the legislature as a joke of a representative for security guards, plus a good number of others.

Finally, for the piece de resistance, she packed the High Court with her appointees, and in the closing days of her administration, picked Renato C. Corona as her chief justice, over against a long-standing rule in the Constitution that prohibited such a so-called “midnight appointment.”

A Supreme Court ruled by a majority of her own appointees and presided over by her former chief of staff and presidential legal counsel was her security from any attempt to prosecute her for her legacy of profligate governance and record human rights violations not seen in the country since the martial days.

With Mr. Corona as primus inter pares at the High Court, any conviction for any criminal offense in the lower court can be easily overturned on appeal to the Supreme Court.

With Mr. Corona at the helm, any criminal proceeding against her can be torpedoed before it could prosper through the simple device of a Temporary Restraining Order (TRO).

Indeed, when it became obvious that the Aquino administration was bent on bringing her to the bars of justice, she collected on her ultimate insurance from prosecution and obtained a TRO against the Department of Justice, which had prevented her from leaving the country on the pretext that she needed urgent medical treatment abroad for a life-threatening illness.

But like Pinochet, she could not count on history to flow according to her wishes.

In the case of the Chilean strongman, he also invoked a life-threatening sickness to seek treatment abroad, following a decision by the Chilean Supreme Court stripping him of immunity from any kind of suit.  His city of choice: London.

What ensued was a series of dramatic legal proceedings that begun when a Spanish judge issued international arrest warrants against the ailing Chilean dictator for the deaths of Spanish citizens in Chile at the height of his dictatorial rule. It culminated in a judgment that would be hailed by many human rights organizations and would come to be known as the Pinochet Precedent; that is, the principle that – in the words of the international legal scholar Philippe Sands – “no one is above the law.”

In the case of Mrs.  Macapagal-Arroyo, what she did not count on was Justice Secretary Leila De Lima defying the deeply-flawed TRO issued by her beloved  “midnight” Chief Justice at her behest.

And today, we witness the historic impeachment trial of the very same Chief Justice.*

This essay may also be read in my weekly column for the Iloilo City-based The  News Today.

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Can the Senate ever be a court?

By Prof. Harry L. Roque, Jr.

Some of our senators have to be reminded that while the Constitution refers to the Senate as an “impeachment court” for purposes of impeachment, this does not change the fact that: one, it is still the Senate, one of two houses of the legislative branch of government; and two, its members remain to be members of the Upper House, elected at large as representatives of the people.

The phrase “impeachment court” should hence not be construed to mean that senators are fulfilling a judicial role, as in fact they are not part of the judiciary. It should only be construed to mean that after an impeachable officer has been impeached, it is the Senators who will decide the fate of the said officer; that is, whether said officer should be removed from office.

Hence, it is wrong for our senators to be donning judicial robes which—in all jurisdictions worldwide—are worn only by judges from the judicial branch of government. The practice in the United States, from which we patterned our rules on impeachment, does not include the donning of such robes. On the contrary, senators treat such impeachment proceedings as part of the daily chores of the Senate. And typical of jurisdictions with strong party systems, American senators almost always vote along party lines.

When the Senate thus decides the fate of these impeachable officers, its decision would not be judicial in nature. It will be a policy decision. Senator Antonio Trillanes hit the nail on the head when he declared that the Senate will decide the fate of Chief Justice Renato Corona on the basis of what is best for the country. Certainly, evidence presented by the parties cannot be ignored.

But in the appreciation of this evidence, the rules of court, precisely because it is the Senate and not a court, is applicable only on a suppletory basis. It is still the interest of the country that should be the primordial consideration of the senators.

This is why I am alarmed that this early, the Senate leadership appears bent on conducting the impeachment proceeding as if it were a real court. For instance, it has said that it will gag the parties to the proceedings from commenting on the proceedings pursuant to the sub judice rule. This is glaring error.

To begin with, the sub judice rule was developed as a tool to protect the objectivity of jurors in court proceedings. In jurisdiction where the guilt of the accused is adjudged by a jury of his peers consisting of ordinary individuals with no training on the rules of evidence, it was originally thought important to protect them from any and all information that may affect their appreciation of facts. Its application to jurisdictions with no jury systems such as ours, have been tempered. Judges after all, unlike ordinary individuals, are trained in both law and evidence. Judges hence are less likely to be affected by extraneous information.

As held by a UK Court in Ref v. Duffy: “…A judge is in a very different position to a juryman. Though in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case. This, indeed, happens daily to judges on assize.”

But even in jurisdictions that still rely on the jury system, the constitutional dedication to freedom of expression as a human right has drastically affected the application of the sub judice rule. One decision of the European Court of Human Rights held: ‘Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them. This is all the more so where a public figure is involved, such as, in the present case, a former member of the Government. Such persons inevitably and knowingly lay themselves open to close scrutiny by both journalists and the public at large. “

Moreover, our own Supreme Court has ruled that contempt for violating the sub judice rule is now subject to the clear and present danger test: In Chavez v. Gonzalez, the Court ruled: “Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed  in  adjudging  whether  to restrain  freedom of speech and of the press.

“The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press.

“In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing  violations  of law.  By all means, violations  of  law  should  be  vigorously  prosecuted  by  the State  for  they  breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free  speech  and  free  press,  a preferred right whose breach can lead  to  greater evils”(emphasis supplied).

In Corona’s motion to cite the public prosecutors in contempt, the question is: what clear and danger arose from the disclosure of the Chief Justice’s condominium units? Absolutely none.

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A man named Renato C. Corona

Today, I make a debut of sorts as I begin an adventure as a column writer for the Iloilo City-based The News Today (TNT). In case you’re wondering what’s the connection, the newspaper’s publisher, Rommel Ynion, and the editor-in-chief and general manager, Junep Ocampo, were my former colleagues back in the day at The Philippine Star.  My thanks go to them for giving me this opportunity.  I write Mondays and my column runs under the name  scīre licet, which is latin for “it is permitted to know.”  Here’s my first piece as a columnist:

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By Romel Regalado Bagares

I BARELY KNEW  who he was then, but I saw him arrive at the Edsa Shrine a few hours before his principal – Mrs. Gloria Macapagal-Arroyo – did; it was one or two days away from Erap’s departure from Malacanang as a result of People Power II and I was then a junior law student in the evening program of the UP College of Law who also worked as a reporter for The Philippine Star.

A colleague of mine, who covered the Malacañang beat, instantly recognized him and approached him for an interview. It was from her that I learned that the guy in the suit who arrived with a business-like mien was the lawyer Renato C. Corona, chief of staff for Mrs.  Macapagal-Arroyo, then Vice President and ostensibly, Erap’s constitutional successor.

I joined the huddle to hear what he had to say.

In the interview, Corona told of an alleged plot by two leading politicians to set up a civilian-military junta in case Erap stepped down from power. These two politicians, he claimed, were fronting as Erap’s supporters.  Obviously, the lawyer wasn’t for the plan either, because it would mean his principal would be upstaged in the resulting scheme of things.

But among my activist-friends gathered at the Serviam Hall above the Shrine, there had been a buzz of excitement. They were calling for a march of one million people to Malacañang (it wasn’t obvious then that they were exaggerating their power to rally citizens behind them).

More importantly, they talked of the declaration of a revolutionary government, a new beginning with a clean political slate.  Even the law student in me – who had his fair share of law school readings of Supreme Court decisions on constitutional controversies occasioned by People Power I – was for it.

As I now look back to that historical moment nearly 11 years ago I tell myself I should have perhaps realized right away that Corona’s presence at the shrine signaled that the politicians were taking over.

True enough, before long the motley collection of civil society groups who led the call for Estrada’s ouster called a press conference, joined by politicians.  At the head of the presser was the late senator Raul Roco, a man I greatly admired and whose botched candidacy for the presidency in 2004 I supported.

His announcement was met with disbelief by not a few faces at the Serviam Hall: no, we weren’t going to declare a revolutionary government; instead, we’re following the constitutional rule on succession.

That of course, meant that Erap would be replaced by Mrs. Gloria Macapagal-Arroyo.

How I could tell you that many civil society groups my reportage followed as they pressed for Erap’s resignation had no love lost for his constitutional successor either.

To them, her brand of politics was suspect (as one of them would say:  someone who associated with Norberto Gonzales early on in her political career will always be suspect).

They weren’t sure she was any better than Erap.

And how they resented the idea that with Erap’s removal from power and the politicians’ successful maneuver towards constitutional succession, it’s as if they themselves were responsible for handing over to her the reins of political power!

No, it certainly wasn’t their intention. All that time, they took pains to distinguish between removing Erap from power and installing Mrs. Macapagal-Arroyo in his stead.

Of course, Roco was eventually rewarded the education portfolio under the Arroyo administration. While he did well as education secretary, I’d like to think the announcement he made on the penultimate day of People Power II was something he regretted later on because four years after EDSA Dos, he would join calls for Mrs. Macapagal-Arroyo’s resignation.  That historic press conference certainly wasn’t his proudest moment.

But I didn’t see Mrs. Macapagal-Arroyo or her favored chief of staff at Roco’s press conference.

But the next day, January 21, 2001, Mrs.  Gloria Macapagal-Arroyo –a former President’s daughter –  was sworn into office as the 14th President of the Republic of the Philippines.

I was standing only a few meters away when Chief Justice Hilario Davide administered her oath of office at the historic shrine.

Mrs. Macapagal-Arroyo promised a mouthful that day while the late Jaime Cardinal Sin and former Presidents Fidel V. Ramos and Corazon Aquino looked on:  a successful fight against poverty within the decade,  the return of high moral standards in government and society, a shift from personality-driven to program-based politics, and a leadership by example.

In other words, exactly the kind of exalted things her nine-year hold on power went against.

“I feel God put me in this point of our history and there is hard work.. There is much to be done and the President’s job is one where one must work hard,” Mrs. Macapagal-Arroyo said at one point in her inaugural speech.

The next  day I shared by-lines with a colleague in our paper’s banner story: “A time to heal, a time to build.”

It certainly didn’t feel that way to me.

But I’m now pretty sure it did that day 11 years ago for a man named Renato C. Corona.

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Here’s a link to the column as it appeared on TNT’s website.
(Disclosure:  A former journalist and now a lawyer by profession, Mr. Bagares is part of a team of private lawyers tapped by the House of Representatives to assist its members tasked as prosecutors in the impeachment trial of Chief Justice Renato C. Corona.)

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