Already the Senate has asserted in unmistakable terms its authority as the only Constitutional Court in the impeachment trial of Chief Justice Corona, threatening in the process to unravel the delicate fabric of judicial review, the pretended powers in the so-called expanded certiorari jurisdiction of the Supreme Court notwithstanding.

In a prolonged impeachment trial that has the potential of being an all-out constitutional conflict the Court cannot win, the judiciary may actually end up in the red, i.e., ceding great powers it has steadily “hoarded,” heretofore with little or no resistance from the political departments or the people. Consequently, the impeachment could turn out to be as much about the fitness of Corona to hold his high office as the ability of the Court to keep the metes and bounds of the judiciary’s province it has zealously defined and assigned itself.

Does this impending development allay the fears that political justices enamored by a newfound mandate (the expanded certiorari jurisdiction) might well succumb to the impulses of Shamanism concocting powers as they please and one day upset for good the delicate constitutional checks and balances mechanism?

The apprehension seems justified given that in a number of significant cases of recent vintage, the Court has freely engaged in judicial activism (the imputation that judges confuse their own idea of justice and right with the law) rebuking both the Legislative and the Executive where opportunity for judicial self-restraint, upholding separation of powers and the republican principle, was widely available. For instance, during a parallel conflict between the Court and the Executive in the MoA-Ad case (Province of North Cotabato v. GRP), we have expressed the concern that

. . . when executive activism (e.g., attempting to make way for peace [in Mindanao] “outside of the box”) clashes with judicial activism (e.g., encroaching on executive prerogative in the guise of judicial oversight) the party who . . . submits to the sway of the other often gets the short end of the stick. Bit by bit in this conflict, the judiciary, unrestrained by any other check than the consciences of the individual justices, has been surely keeping in total control of the longer opposite end.

The decision in the MoA-Ad case has in fact been in line with the Court’s lingering counter-majoritarian instincts to keep that control. On the other hand, the hoarding binge has been unabashed as the Court leveraged its grip of the longer end of the stick in critical cases: Santiago v. COMELEC where it struck down the Roco Law, the enabling law for a direct democracy or the people’s initiative to amend the constitution (prompting then Justice Artemio V. Panganiban in his dissent to call the majority decision as “all too sweeping and too extremist”); Estrada v. Desierto where it demoted EDSA II to an inchoate cousin EDSA I (because the Court held what had taken place was not actually an uprising but only speechifying); Lambino v. COMELEC where it amended the Constitution by judicial fiat, by reading a requirement, at the expense of People Power, that when it comes to complex amendments amounting to a revision, a deliberative body, not just a people’s initiative, is demanded for the purpose; Francisco, Jr. v. House of Representatives where to hail the Chief (CJ Davide) it interpreted the House impeachment rules against the House and stopped the impeachment of Davide; Neri v. Senate where to serve President Arroyo it emasculated the Senate’s oversight power by justifying executive privilege to button the lips of former NEDA director Romulo Neri (thereby preventing Neri to give more answers before the Senate committees investigating the infamous NBN-ZTE deal); and, of late, Biraogo v. The Philippine Truth Commission, where neither trusting in nor deferring to the intention and action of President Noynoy Aquino, it voided his very first executive order (EO1) creating the Truth Commission.

The runaway Supreme Court has been impossible to stop in its track – cementing as a result its title as “the final arbiter,” “the ultimate interpreter,” “the last bastion of democracy” and “the philosopher-kings” – until a midnight Chief Justice led the Court’s majority contrive a fishy temporary restraining order (TRO) that would have allowed President Arroyo and spouse to escape law enforcement thereby diminishing further executive authority. The TRO has derogated the Court the way Malacañang involvement in a numbers game of jueteng had demeaned the ousted President Estrada, all in a manner a run-of-the-mill Mang Pandoy could easily understand.

Now, the Legislative with the presumed blessing of the President is poised to inch its way on the scepter of power with the end in view of sorting out those powers attached to it (House prosecutors, for instance, plan to have some justices subpoenaed or ordered to appear before the Impeachment Court). And while “legal errors” in decisions by the Supreme Court may not be subject to review and reversal by any other authority than the Court itself, the Senate as the Impeachment Court is now unlikely to shy away from scrutinizing, if necessary, those decisions to arrive at a verdict on the indictment of “betrayal of public trust” and/or “culpable violation of the Constitution.” This is happening owing not so much to the Court losing the éclat of its activism as to the shared sense of being restrained (not by itself but) by a watchful constituency that may be ready to reassert its political capacity (or to occupy ) once again.

There is a way out of this imminent rebalancing of power in which the Court might find its cached powers squandered: Corona exit now, not later.

Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive, because it would eviscerate the “important constitutional check” placed on the Judiciary by the Framers xxx. Nixon’s argument [in favor of judicial review] would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.

Nevertheless, Nixon argues that judicial review is necessary in order to place a check on the Legislature. Nixon fears that, if the Senate is given unreviewable authority to interpret the Impeachment Trial Clause, there is a grave risk that the Senate will usurp judicial power. The Framers anticipated this objection and created two constitutional . . . safeguards to keep the Senate in check. The first safeguard is that the whole of the impeachment power is divided between the two legislative bodies, with the House given the right to accuse and the Senate given the right to judge. . . This split of authority “avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches.” The second safeguard is the two-thirds supermajority vote requirement. Hamilton explained that, “[a]s the concurrence of two-thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.”

In addition to the textual commitment argument, we are persuaded that the lack of finality and the difficulty of fashioning relief counsel against justiciability . . . We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would “expose the political life of the country to months, or perhaps years, of chaos.” This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated. Equally uncertain is the question of what relief a court may give other than simply setting aside the judgment of conviction. Could it order the reinstatement of a convicted federal judge, or order Congress to create an additional judgeship if the seat had been filled in the interim?

There is another way to explain the political nature of impeachment: define and understand it in terms of an indirect recall.

A recall is a direct democracy process by which the electorate may remove an elected holder of public office before the end of the official’s term. For instance, a direct recall was attempted against Pampanga Governor Ed Panlilio in 2008 on the ground of “loss of confidence” pursuant to the Local Government Code in relation to Article X, Section 3 of the Constitution.

Another form of recall, indirect recall, could have also been resorted to against Gov. Panlilio for “culpable violation of the Constitution” or for other grounds provided under Chapter 4, Section 60 of the same Code but it was not used.

Simply put, indirect recall is no less an impeachment, whereby the citizen’s intervention at any phase of the process does not obtain because the initiative and the decision to terminate the office holder come more or less exclusively from other authorized agencies such as the Legislature or the Executive. Where the public official is appointed, only the remedy of indirect recall, or properly impeachment, is available.

There is no question that a direct recall is political in nature; it is an election in reverse, or a procedure of un-election. “Loss of confidence,” which is rather subjective, is sufficient basis for the recall, and if enough votes are obtained, the terminated official is deemed not to have as much reason to complain of due process violation as the candidate or candidates who lost to him in the original election, and the attendant “trial by publicity” is considered as part of the public discourse in the nature of political campaign activity.

Is indirect recall equally political in essence?

The Philippine Constitution provides for the removal by impeachment of both elected and appointed public officials such as the President and the Vice-President (elected) and Members of the Supreme Court and the Ombudsman (appointed), enumerates the grounds for removal and prescribes certain conditions for the process such as the required votes to initiate impeachment and to convict as well as specific limitations such as the initiation of impeachment against the same official more than once within a year. To the extent that the Constitution prescribes these requirements, impeachment is also considered a legal process. Otherwise, recall, whether direct or indirect, and the public official sought to be recalled, whether elected or appointed, is ultimately political.

On the other hand, the position of Senator Antonio Trillanes made in a speech is quite apropos. He said that the “overarching policy issue” in the impeachment of Chief Justice Renato Corona is whether the final outcome “would be for the good of the country.” Hence, his verdict will “not be based solely on evidence as (the impeachment) now becomes a matter of public policy.”

Our analysis during the impeachment of Ombusdman Merceditas Gutierrez is similarly relevant:

The strict requirements of due process, it may be well to note, are not meant to be of indispensable application to impeachment cases. By the same breadth, a person denied a political appointment may not complain of due process violation if the appointing power chose another whose superior credentials may not have been proven by competent evidence. The bottom line is: the constitutional and legal procedural rights of the person indicted (impeached) are not as much at stake in this method of removal as the substantive protection of the integrity of the Republic’s political institutions from the corroding effects of corruption and betrayal of public trust.

President Aquino has decided to exercise the political will to cleanse our government of every dreg of corruptions afflicting it and if he succeeds to persuade the public or its agents that the Ombudsman is an obstacle to the fulfillment of that salutary goal, such would be beyond the ambit of procedural niceties.

Let’s get it straight once again: the impeachment process is “ultimately a political one.” And a politicized impeachment is the legal norm which should not give us the constitutional angst. It’s when legal technicalities are forced into what is essentially political, such as if the Supreme Court succumbs to the temptation of injecting itself into the political mix by casually judicializing the process, that’s likely to engender the bad bitter taste in the democratic ensalada.

The Corona defense team, as the impeached Judge Walter Nixon’s, will attempt to raise procedural technicalities, evidentiary issues and other legal gobbledygook to attenuate the political nature of the impeachment process. The Senate must not however fall into the trap of legalizing or judicializing the impeachment; doing so will weaken the process and its authority as the Impeachment Court.

For example, alleged in the Articles of Impeachment is the charge that the partiality of Chief Justice Corona in favor of former President Gloria Macapagal-Arroyo has culminated in the issuance of the temporary restraining order (TRO) lifting the travel ban on the former president and her spouse, Jose Miguel Arroyo, that would have allowed them to escape from the processes of the law. Corona in his Answer alleged that the decision to issue the TRO is a collegial one and therefore may not be reviewed by the Senate as the Impeachment Court because “no other department may pass upon judgments of the Supreme Court.” Although the House prosecutors in their Reply are not asking the Impeachment Court to review and reverse those decisions, it is submitted that if such a collegial decision is bereft of any legal reasoning or patently favoring the Arroyos and all the circumstances are found to point to it, then the Senate jury must proceed to pass upon the judgment made with a view to finding the quilt or innocence of the justices concerned of betrayal of public trust and/or culpable violation of the Constitution, and whereupon hold them to account for it. Filipinos know too well that republicanism easily becomes a farce sans accountability on the part of powerful officeholders as a Chief Justice who may have committed not just legal errors but betrayal of public trust and/or wrongful violation of the fundamental law. In her dissenting opinion, Justice Maria Loudes Sereno, rebelling against the majority, has written about “the havoc that would be wreaked on the judicial system by the unfortunate disposition that the Court has introduced today in favor of (the Arroyos).” The House prosecutors, it is vigorously suggested here, must not shy away from calling Justice Sereno to testify before the Impeachment Court as to what actually has taken place in the Supreme Court in the issuance not just of one but a couple of “collegial” orders that may have been intentionally obscured to allow the Arroyos avoid justice.

Impartiality, it is well to note, depends on the persuasiveness of the legal reasoning in support of the decision made. On the other hand, legal reasoning is simply the process by which judges justify their choices in finding the meaning of the law because determining what the law means, when the law is not plainly written, inevitably involves choice. If the choice made is not in terms of the law or the broader values the community respects but only on the basis of the judge’s own will, the numerical concurrence of the majority notwithstanding, and relief therefrom is unavailing, then the judicial system itself fails in its purpose. As Senator Trillanes would rather have it in such an unfortunate event, the proper remedy “becomes a matter of public policy” or political.

Now, a redeeming act. “The only one that can stop us is the might of the military,” Senate President Juan Ponce Enrile, who will preside over the impeachment trial, said in a radio interview. Indeed, if there is any one politician in the Philippines who understands power, it is Senator Enrile, Marcos’ Secretary of Defense who had defected to the rebels during the EDSA I uprising that ended the dictatorship. In the final analysis – and the elderly Enrile seems to be fully cognizant of it – the impeachment of Chief Justice Corona, as in the impeachment of Chief Justice Hilario Davide, Jr., is about power, that is, the power of the Supreme Court versus the power of Congress. Will Congress blink again and tip the balance of power in favor of the Court as in the Davide impeachment, or is the Senate ready to put a limit on “judicial supremacy” and this time ignore, as Enrile boldly announced, any attempt by the Supreme Court to encroach upon the power of the Senate that is constitutionally committed to it as the Impeachment Court?

There is a ring of plausibility in the IBP’s claim. After all, in the long history of constitutional contestation in the United States, which handed down to colonial Philippines its constitutional system, there has been only one justice of the US Supreme Court (Justice Samuel Chase) who has been impeached for his judicial acts or opinions. Plausible, maybe, but not truthful, legally. Let me explain.

It should be noted first of all that there are very significant differences between the grounds for impeachment in the US Constitution (“treason, bribery or other high crimes and misdemeanors”) and those provided in the Philippine Constitution (“culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust”). That “culpable violation of the Constitution” and “betrayal of public trust” are ostensibly not provided as impeachable offenses in the US Constitution could be given as one explanation why there is only one case in the United States where a Supreme Court associate justice has been impeached for his judicial act or decision. This may be so because where for instance a justice has committed a wrongful (culpable) distortion of the Constitution, it would be as arduous a proposition to force such violation into the offense of “bribery” or “treason,” both of which have technical definition in criminal law, as to squeeze it into the more amorphous “other high crimes and misdemeanors.” Nonetheless, it does not deny the US Congress the checks and balance mechanism of “coordinate review” of judicial acts via the impeachment process because such quasi-judicial authority of congress, albeit essentially political, in the nature of the power of impeachment is expressly provided in the US Constitution.

It is well to underscore that impeachment, far from being a mere scarecrow, is the one potent rebalancing countermeasure against the myth of judicial supremacy, now unfortunately an honored doctrine in American Constitutional Law. It needs repeating however that while impeachment is expressly constitutionally provided, judicial review and judicial supremacy are mere judicial creations, the former having been enunciated by Chief Justice John Marshall in Marbury v. Madison (1803), and the latter more recently by Chief Justice Earl Warren in Cooper v. Aaron (1958).

By comparison, there is no mistaking that the authorization granted to the Philippine Supreme Court under the Constitution to hear “all cases involving the constitutionality of a treaty, international or executive agreement, or law” is an express grant of the power of judicial review.

Additionally, the Philippine Constitution defines judicial power as including “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government (italics mine). This has come to be called as the expanded certiorari jurisdiction of the Supreme Court.

All the foregoing notwithstanding, I advance the position that since members of the Philippine Supreme Court are liable to be removed by impeachment for “culpable violation of the Constitution” and that these violations are likely to be committed in deciding actual cases, it follows that members of the Court, individually or collegially, or the Court itself, cannot be considered as the sole agency responsible for the interpretation of the Constitution. For, when the Impeachment Court reviews the questioned decisions of justices to determine whether they are guilty or not guilty as indicted for “culpable violation of the Constitution,” the senators acting as judges of the Impeachment Court are equally responsible for the interpretation of the Constitution.

This is not the first time I have suggested that justices of the Supreme Court are liable for impeachable offenses committed in deciding cases. For instance, critiquing the Court’s decision in Neri v. Senate Committee and in Senate v. Ermita, I have grappled in wonderment with the question of why the Court had missed twice the constitutional meaning of “congressional oversight,” thus:

Oversight, which comes in many other forms than congressional inquiries in aid of legislation, takes up a lot of legislative time and is often observed as being improperly used for grandstanding purposes or gaining sound bytes by some ambitious politicians. It is perceived as counterproductive sometimes or perhaps most of the time. One thing is however certain: the scope and meaning of legislative oversight are not confined only to the so-called “question hour” under Section 22, Article VI of the Constitution as the Supreme Court had boldly pronounced in Senate v. Ermita and then reiterated in Neri v. Senate Committee.

How could the Supreme Court miss it twice?

The first time, it is possible the Court may have committed an “error of judgment” which is not punishable per se; the second time, it is as not as easy to justify the voluntary ignorance as other than a political decision by a partisan court, a judicial misconduct liable to rise to the level of an impeachable offense.

When the Supreme Court issued a restraining order in the MoA-Ad (Memorandum of Agreement on Ancestral Domain) case, I have articulated the following:

I have argued that it is “blatantly irregular for the judiciary (the supposedly apolitical, publicly unaccountable and the least informed of the three branches of the government) to step in at the crucial negotiation stage for the Mindanao peace settlement or, in the guise of judicial review, actively participate in such a decidedly political matter by constraining the President, temporarily or permanently”; moreover, I have advanced that “even the senate (the president’s treaty-making partner under the Constitution) cannot meddle with this (negotiation) aspect of treaty making or of forging executive agreement in the same way that the court cannot interfere with the decision of congress or the senate to introduce ultra constitutional resolution [e.g., Senator Pimentel’s proposal for federalism] it deems appropriate to institute structural or systemic change in governance.”

The basis of the presidential power to conclude peace (or to wage war) is her commander- in-chief powers under the Constitution which demand great deference from the courts. By precipitously issuing a TRO against the executive in the matter of negotiating to conclude the MoA-AD, the Supreme Court has acted out of bounds and trifled unconstitutionally with a prerogative that is exclusively presidential.

Today, despite President Arroyo’s announcement during her SONA 2008 that “differences on the tough issue of ancestral domain were resolved” the night before her SONA address (when the MoA-AD was initiated by the parties), Chief Presidential Legal Counsel Sergio Apostol is daring to claim that the GRP peace panel was only “given authority to negotiate but not full authority to sign” and therefore indicating that the MoA-AD is invalid the government panel having “had no authority to sign.”

The bold presidential flip-flopping notwithstanding, the newly announced intention of the President to set aside the MoA-AD pertains to no less than another executive prerogative the exercise of which the Supreme Court can only interfere with on unconstitutional authority.

In short, even if the Supreme Court decides, in the cases before it, that the MoA-AD is constitutional, it cannot by our Rule of Law command the President or her alter egos to proceed with the agreement should she now choose to explore other alternatives or simply decide in a different way, e.g., flip-flop completely to pursue a new policy of “disarmament, demobilization and rehabilitation” or otherwise renege unilaterally on the government’s commitments, putting at naught all the time, efforts and emotions invested by both parties in the MoA-AD.

Again, no other possible conclusion can legally and constitutionally be had than for the judiciary to respect the presidential prerogative because the decision to resume hostilities or conclude peace with MILF belongs to the President alone and none other. Hence, any attempt by the Supreme Court to constrain this presidential prerogative either by TRO or by permanent injunction constitutes arrogation of unconstitutional powers that may amount to impeachable offense on the part of the individual justices.

(Note: My extended critique of the SC decision in Province of North Cotabato v. GRP declaring the MoA-AD unconstitutional can be accessed here. You could also check The other autocrats for another discourse on the subject.)

In Neri v. Senate Committee and in Senate v. Ermita, the Supreme Court has acted as a super-legislature but the political will was nowhere at hand then to resort to the impeachment process. In the MoA-Ad case, the Court has assumed to be a super-executive but public opinion was unfortunately supportive of its ruling. Since neither the political branches of the government nor the people have been incensed by either decision, the Court simply got away with it.

But a clearer example of culpable violation of the Constitution, if only to drive home the point, would be a situation where the Court in an actual case decides to deny a woman to be a judge for the reason that being a woman she lacks the independence to be a member of the bench. The justice writing such a preposterous opinion as well as the justices concurring in it should rightfully be considered as removal by impeachment for palpable acts in violation of the equal protection clause. Should the same justices, who the Constitution requires should be “of proven competence, integrity, probity, and independence,” if shown to have culpably abetted through a judicial order the attempted escape of an individual from the processes of the law, be similarly impeachable?

The Constitution provides, and very wisely so, that the Senate, and none other, has “the sole power to try and decide all cases of impeachment.” I would go further to say that within that limited sphere the Senate is in fact the sole institution responsible for the interpretation of the Constitution with finality. The implication of this position is that the Supreme Court may not use its so-called expanded certiorari jurisdiction to overturn the verdict of the Impeachment Court upon any pretext of grave abuse of discretion on the part of the Senate. To do so is to render impeachment as a check and balance mechanism entirely nugatory and, as judicial and congressional powers clash in such an absurd and fruitless runabout, it will inevitably lead to a constitutional crisis.

It goes without saying that when the Senate tries and decides impeachment cases involving members of the Supreme Court, it should not be seen in any way as demanding, contrary to the warning of Ateneo University law dean and the Court’s favorite amicus curiae Fr. Joaquin Bernas,*1 that the justices “capitulate . . . and yield what is constitutionally theirs” but acting so merely, just as when the Court normally decides cases brought to it, in accordance with the authority constitutionally allocated to it as the Impeachment Court.

Yet, what if the Senate acting as the Impeachment Court has in fact abused its discretion, is there no review process or corrective relief available anymore? There is, obviously, because unlike the justices of the Supreme Court, the two houses of congress and the President are directly accountable to the people and therefore subject to their ultimate review as the final arbiter, to whom the Constitution belongs.
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*1 Bernas, in his Philippine Daily Inquirer column of Dec. 19, 2011, seemed to have clarified himself by insisting that the justices of the Supreme Court may be “(disciplined) for treason, bribery, graft and corruption, culpable violation of the Constitution, other high crimes or betrayal of public trust . . . but not for collegial decisions with which the Congress disagrees.”

The obtaining facts tell us that the adjudicatory phase of the criminal cases against Arroyo including electoral sabotage, plunder and other high crimes of graft and corruptions had been well approaching when she attempted to fly out of the country supposedly to seek medical attention from abroad for bone disorder. The former president, who ruled the country for nine years, was dramatically unglamorous when she was prevented by the Department of Justice (DOJ) from departing: she was carried on a wheelchair, face hidden by a medical mask, head and neck immobilized by braces. The airport scene had the effect of looking pathetic.

It is apt to note at this point that criminal procedure first goes through the investigatory stage initiated by the executing agency charged with the implementing of the law or laws violated. The next stage, the adjudicatory process, follows after the court assumes jurisdiction upon the filing of the criminal charges before it and then proceeds to perform its judicial functions. The potential accused is likely to frustrate the entire judicial process if she stays out of the reach of the court such as by hiding, or fleeing to a foreign jurisdiction with which the country has no extradition treaty. Under the present constitutional procedure in the Philippines, the trial may not even proceed in the absence of the accused if she is able to evade the court’s jurisdiction before arraignment (the entering of a plea of guilty or not guilty to the charges). On the other hand, while flight is an indicium of guilt, the constitutional presumption of innocence may continue, regrettably, to attach to her who could have conceivably bolted from justice.

The Constitution is clear that while the right to travel is a constitutional right, it may be restricted by lawful order of the court or “in the interest of national security, public safety or public health, as may be provided by law.”

The “law” upon which DOJ has acted to ban Arroyo from traveling outside of the country is not a legislative enactment or a statutory law but a DOJ circular, Circular 41, which, together with Watchlist Orders issued pursuant thereto, has the effect and force of law nonetheless and is presumed to be valid unless declared illegal or unconstitutional. It is the same law that the Arroyo administration has enforced to ban the departure of persons being investigated or under prosecution for various crimes.

In a petition by Arroyo assailing the validity of Circular 41, which her own administration has relied upon on many occasions to issue travel bans or hold-departure orders, the Supreme Court unfortunately issued a TRO (temporary restraining order), ex parte ( that is, even before the government has been given the opportunity to present its side) restraining the implementation of the said circular that would have allowed Arroyo to leave the country upon the pretense that her medical conditions necessitated the foreign travel, and be a fugitive from justice and ultimately upset the rule of law. The Court under the leadership of Chief Justice Renato Corona, a former Arroyo aide, immediately took cognizance of the petition for TRO and acted on it presumably at the expense of the piles of cases before it long awaiting action and involving equally fundamental rights of ordinary citizens. The underlying issue, the Court justified its hurried resolution, is Arroyo’s “right to life.”

Justice Secretary De Lima, apparently persuaded by facts that Arroyo was faking her medical conditions and therefore Arroyo’s intentions to leave the country was to escape prosecution, has decided to enforce Circular 41, notwithstanding unofficial knowledge that the Supreme Court has restrained her temporarily from doing so. Had De Lima vacillated, the Court’s temporary injunction would have permanently denied the People of the Philippines due process of law. Now, while Arroyo partisans were crying foul because De Lima supposedly violated the rule of law for defying the TRO, the enforcing agency of the government (the Commission on Elections, in this case) has accelerated the pace of the prosecution process and eventually filed a case for electoral sabotage, a non-bailable offense, before a regional trial court which ordered the arrest and detention of Arroyo. A triumph of the rule of law, De Lima supporters proclaim. “Justice has been served,” De Lima herself asserted.

The gutsy secretary of justice is now confronted with contempt charges, disbarment and incarceration. It is not highly improbable however for the Aquino government preferring to ignore a court’s order punishing De Lima if it deems it to be patently vindictive, unconscionable and has no place in a genuine regime of rule of law, one President Aquino has promised to restore in the country.

Meanwhile Arroyo no longer complains that her health or life will be imperiled in the hands of Filipino doctors unless foreign medical specialists intervene. Her spokesperson claims Arroyo still suffers from colitis (inflammation of the colon) which she developed more recently and Arroyo insists to have a laptop and a cell phone in her detention facility, a suite at the Veterans Memorial Medical Center (VMMC)* in Manila, so she could start writing a book while in confinement. She faces the grim prospect of reclusion perpetua (permanent or life imprisonment). In the end, it could possibly be by these accounts that the underlying concern, to borrow somehow from the majority of the Supreme Court, is the protection of Arroyo’s right to liberty.

More cases are in the offing involving Arroyo’s crimes allegedly committed during her long tenure (not to mention petitions for other reliefs such to be allowed bail) that may end up before the high court but the robed sires are seemed not ready yet to play square with the Aquino government, when it comes to Arroyo’s interests in particular, or with President Noynoy Aquino’s avowed overarching interest in the rule of law.

It may be apropos to recall what we have said here about “full accountability” (This writer was then critical of the anti-corruption campaign of the Aquino government for having allowed the impeachment of Ombudsman Merceditas Gutierrez to lapse after her resignation):

Full accountability demands that if the impeached official is culpable for betrayal of public trust, she is entitled to no quarter if only as matter of concrete exemplification but shall be removed from public office AND disqualified forever to hold any office under the Republic of the Philippines. There is no other more important business today in the Philippines, save perhaps the creation of in-country employment opportunities for Filipinos, than the matter of inculcating a culture of accountability (rather than countenancing impunity) to all, without which, any anti-corruption campaign, now or in the future, could only be an empty shibboleth.

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*VMMC is same facility where Joseph Estrada, Arroyo’s predecessor, was detained after he was overthrown in 2001 in a people power uprising. Estrada was convicted but was later pardoned by Arroyo.

Hundreds of Americans who gathered outside the  fence of the north side  of the White House in Washington D.C.  were jubilant and cheered the news of the death of Bin Laden, whom they considered the chief architect behind series of attacks against American citizens and proprietary interest locally or in different parts of the world. The most noted terrorist attack that seared the American memory was the attack on the twin towers, Obama said.

Obama said that with Bin Laden’s death, justice was served.

For months, the nation’s attention has been fixated on the move by the new administration to oust via impeachment Ombudsman Merceditas Gutierrez with a view to taking down a formidable hindrance to President Noynoy Aquino’s campaign promise of holding accountable corrupt public officials in high office. An earlier attempt to impeach the Ombudsman during the Arroyo administration did not gain any traction in the House of Representatives, the agency with the sole power to initiate the proceeding, dominated then by Arroyo party mates.

The equation began to change almost immediately upon the election of Aquino because of political realignment in the House, something that is not out of the ordinary in Philippine politics.

And then within two months of the May 2010 presidential election, a new impeachment complaint was filed against Gutierrez, followed by another in August 2010.

On March 22, 2011, the House voting 210 to 46 impeached (indicted) Gutierrez. Among the charges: unreasonable failure of the Ombudsman to take prompt and immediate action on corruption complaints filed against various public officials, including former president Arroyo and her husband, Jose Miguel Arroyo.

On the other hand, on April 15, 2011, the Bureau of Internal Revenue lodged before the Department of Justice a complaint for tax evasion against Arroyo’s son, Congressman Juan Miguel “Mikey” Arroyo and wife Angela.

The BIR claims the couple is liable for P73.85 million in tax deficiency accumulated from 2004 to 2009.

On April 25, 2011, former Solicitor General Francisco Chavez seemingly in sync with the clambering crusade for accountability decided to bypass the Office of the Ombudsman and instead filed plunder charges before the Department of Justice against Arroyo and other officials of her administration for diversion and/or misuse of Overseas Workers Welfare Administration (OWWA) funds in 2003 and 2004.

Aside from plunder, Arroyo and the other officials were also charged before the justice department with qualified theft, violation of the Omnibus Election Code, violation of Republic Act 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees, and the Anti-Graft and Corrupt Practices Act.

The stage has now been set for public reckoning when on May 9 the Senate is supposed to convene as an impeachment court to try the Ombudsman, all with anticipation the impeachment proceeding actually going beyond its objective of ousting Gutierrez by potentially giving the nation a firsthand look of what could be in store for Arroyo and spouse in terms of holding them accountable for their alleged crimes while in power.

And then a premature anticlimax ensued (Or was woven into the plot?). Gutierrez, either worried about a reduced pension or still hoping to return to government service, quit her post effective three days before the Senate convening. For all the gesture of magnanimity of merciful Merci that might have taken shape during the Holy Week, everyone seems grateful, relieved or welcomes the turn of events, from the militant organization Bayan, one of the impeachment complainants, and civil society group Black and White Movement to Senate President Enrile, Vice President Binay, and President Aquino himself, and even the vocal House Justice Committee Chair and lead impeachment prosecutor Neil Tupas, Jr., who theretofore had been all geared up to throw the book at the once nervy Ombudsman.

But is it constitutionally and politically correct to talk of the impeachment trial of the Ombudsman in the past tense because she has opted to absorb the ultimate punishment of removal by voluntarily quitting? If yes, is that full accountability in a hoped-for cathartic sense for the impeachable offense of betrayal of public trust?

One unlikely dissenter, a very disappointed supporter of the Ombudsman in fact, is House Minority Leader Edcel Lagman who thinks that her resignation “is an admission of culpability,” or a plea of guilty, in other words. This is a very plausible position by the house minority leader because whether the route taken is resignation or a guilty plea, the end result is the same: the capital punishment of removal.

Now, Gutierrez recklessly gave herself away, and her sinister and selfish intention to boot, by stating in her column in Business Mirror the following: “Because if I persist in fighting the charges levelled against me and I lose, I lose not only my retirement benefits, the opportunity to again serve government in equally dignified but less taxing capacities, but will also reap the shame of being the first Ombudsman to have been forcibly removed from office.” Hence, to the very end of her unceremonious career as the Ombudsman she was given to nickel and dime the Republic. To grant her the sweet privilege (not to speak of the security detail that the President reportedly promised her) is politically quite inconsistent with the President’s anti-corruption campaign in the first place and in terms of fulfilling “accountability” certainly leaves the nation at the shorter end of the (plea) bargain again.

But constitutionally (let’s all read carefully please the Constitution once more), the Senate is supposed to retain jurisdiction of the impeachment trial, the resignation of the impeached Ombudsman notwithstanding. The reason for this is that aside from the matter of “removal from office,” a foregone one because of the resignation, the Senate pursuant to Article XI, Section 3 (7), clearly retains the power to disqualify the impeached official “to hold any office under the Republic of the Philippines.” The impeachment trial shall not therefore end because the indicted official chooses to end it for her own convenience.

Full accountability demands that if the impeached official is culpable for betrayal of public trust, she is entitled to no quarter if only as matter of concrete exemplification but shall be removed from public office AND disqualified forever to hold any office under the Republic of the Philippines. There is no other more important business today in the Philippines, save perhaps the creation of in-country employment opportunities for Filipinos, than the matter of inculcating a culture of accountability (rather than countenancing impunity) to all, without which, any anti-corruption campaign, now or in the future, could only be an empty shibboleth.

Merci, from my recollection did not argue that politics is ruinous to public interest when the then GMA-controlled house botched her impeachment last year. But it is “politically-motivated” now when the same political institution had changed its make-up and voted for her impeachment. It is rather lame or self-righteous to claim that the old majority party, can rise above-partisan politics simply because it would not remove her from office, but the members of the house now suddenly  turned into rabid “militias” with marching order from their ringleader to scalp her when they decided to to impeach her.

Political vitality is about the ability of the majority party to implement its agenda and for the minority party to coalesce with it or to effectively fiscalize it. The day we hope that the minority party can run rough-shod on the agenda of the majority is the day where republican government shall cease to exist.

In consonance with the observation that impeachment is a “political process”, the prosecutor-judge dichotomy we hold dear in our judicial system does not apply in this process. A Senator can take the position of the prosecutor and at the same time a judge. In the impeachment, it is possible that a solon wears two hats.

When the Senate through its Blue Ribbon Committee conducted a hearing on the Garcia-Ombudsman plea bargain and arrived at a conclusion that that Merci had betrayed her office in that deal, and therefore, she should be impeached for that perceived offense, the Senate wears the hat of the prosecutor. After the House had filed the impeachment, members of the Senate Blue Ribbon Committee, can sit as  judges for that impeachment. There is nothing anomalous in this situation. It would be more anomalous if after recommending that Merci should be removed from office, the same Senators voted against it when they sit as  judges or rather abstained from voting for it when the floor calls for them to vote.

If Merci perceives that she is being persecuted by the majority party, her relief is not with Congress or the Court, but the public. She can hold press conference everyday and vent her venomous fury to destroy the reputation of every people who were voting for her impeachment hoping that during the next election, these “militias” would be voted out of office. This is another reason why I said, the process is political because her recourse is to the sovereign people and not with any of the existing institutions. But the way Merci fights her battle only highlights her concept of a public office as her entitlement and her private preserve. If some sectors of the society doubt her merit for the office, she can always resign and look at the injury to the public that this turmoil can generate far exceeding her own private injury. The more she fights for her office, the more she is perceived to be incompetent. If she believes in the concept that you cannot put a good woman down, she should be ready to leave the office anytime and make her fortune somewhere else. Or the office her fortune already which she could not afford to lose now?

Political process is more transparent and Merci should opt for it rather than argue for judicial process and settle the issue before a court where most of the time, decisions are made at cloistered and creepy chambers of judges of which the public have lesser access.

Doronila then proceeded to raise concerns that the “‘Hang Gutierrez’ tenor of the campaign could damage a constitutional system based on the rule of law” and that the only way to dispel the apprehension about “this game of lynchmanship” is for the Senate to convict Gutierrez based on evidence and not on mere political consideration. In a quirk of contradictory logic, however, he also implied that to acquit Gutierrez will not necessary mean a triumph of rule of law or due process but a potential loss of political capital on the part of Aquino.

When President Aquino sacked Deputy Ombudsman Emilio Gonzalez for having “committed serious and inexcusable negligence and gross violation” by sitting for nine months on the case of Rizal Park hostage-taker former Senior Police Inspector Rolando Mendoza, Doronila charged the Aquino administration in another PDI commentary (“President’s order a side issue in trial of Gutierrez,” April 4, 2011) as being “trigger-happy.”

From what we have seen so far, Doronila is just aching to have his cake and eat it too and to get to that he first would like to equate the impeachment proceeding to some kind of a criminal action.

What’s quite disturbing however is that it appears Doronila has amply read about the issues involved, and hence, is not entirely clueless. For instance, in another PDI article on the subject (“Lusting for Blood,” March 15, 2001), he quoted a report by the reliable Congressional Research Service, a US legislative agency within the Library of Congress, that impeachment “stands wholly separate from a criminal proceeding” and “(a)s a political process, impeachment and conviction as delineated by the Constitution seek to protect the integrity of the American political institutions” and that the “removal process is ultimately a political one.”

Yet, Doronila suggested that the impeachment of Gutierrez could only be credible if it approximates a judicial process. And to paint Gutierrez as the legally conforming one, and the impeachment initiators the reckless transgressors, he defended Gutierrez in this cunning fashion: “It is claimed that impeachment is about evidence and determined by assessment of evidence through legal procedures. It cannot be discounted that the lynch-mob approach of the administration is a double-edged weapon. It seemed it has pushed (Gutierrez) back to the wall and has forced her to fight back with her own evidence.”

Now, House Minority Leader Edcel Lagman, serving as Gloria Macapagal-Arroyo’s dutiful mouthpiece, went for the jugular by pretending to be unabashedly constitutional: “By actively, publicly and incessantly campaigning for the impeachment of the Ombudsman, President Aquino has violated the Constitution, which exclusively reserves to and vests on Congress the power to impeach and convict impeachable officials.”

To drive his point, Lagman cited Article XI of the Constitution, which provides that the “House of Representatives shall have the exclusive power to initiate all cases of impeachment,” while the “Senate shall have the sole power to try and decide all cases of impeachment.”

To be sure, Doronila’s defense for Gutierrez, in a rather atypical attempt to fight back for her, is not evidence in a court of law to prove Gutierrez’ innocence. Neither does Lagman’s claim, even if admitted, of active, public and incessant campaigning by President Aquino to remove Gutierrez by impeachment constitute any proof of unconstitutional conduct on the part of the President violating Article XI of the Constitution.

Both Doronila and Lagman are no doubt in a mission to sway in the court of public opinion the people’s perception in favor of Gutierrez. That’s political and democratic discourse, plain and simple. Besides, that politics is perception Doronila, as a seasoned political observer, and Lagman, as a political operator, are conceivably well cognizant of.

One may still condone Doronila if he is seemed unenlightened that the removal of Gutierrez as Ombudsman could be tantamount to an indirect recall process (or an un-election process when it comes to elected impeachable public officials) the Constitution allows where a decision to remove may or may not be supported by evidence beyond a reasonable doubt (although there is enough indication the evidence against the Ombudsman can be overwhelming) in much the same way that her appointment to the same office had not been based at least on clear and convincing evidence that she is the most competent, the most trustworthy, and the most obedient to her constitutional duties.

But is Lagman, given his conduct during the three impeachment attempts against former President Arroyo, totally ignorant of the fact that the removal process involving the Ombudsman is essentially political and the pro and con campaign rhetoric from either side is just an integral part of the whole discourse?

The strict requirements of due process, it may be well to note, are not meant to be of indispensable application to impeachment cases. By the same breadth, a person denied a political appointment may not complain of due process violation if the appointing power chose another whose superior credentials may not have been proven by competent evidence. The bottom line is: the constitutional and legal procedural rights of the person indicted (impeached) are not as much at stake in this method of removal as the substantive protection of the integrity of the Republic’s political institutions from the corroding effects of corruption and betrayal of public trust.

President Aquino has decided to exercise the political will to cleanse our government of every dreg of corruptions afflicting it and if he succeeds to persuade the public or its agents that the Ombudsman is an obstacle to the fulfillment of that salutary goal, such would be beyond the ambit of procedural niceties.

Let’s get it straight once again: the impeachment process is “ultimately a political one.” And a politicized impeachment is the legal norm which should not give us the constitutional angst. It’s when legal technicalities are forced into what is essentially political, such as if the Supreme Court succumbs to the temptation of injecting itself into the political mix by casually judicializing the process, that’s likely to engender the bad bitter taste in the democratic ensalada.

Records also show that Mr. Marcos was a prisoner of the U.S. army for working with the Japanese.  It looks like he had worked on both sides.

Mr. Marcos claimed that he had set-up a 9,2000 strong guerilla unit known as “Ang Maharlika” fighting the Japanese army. After the war (1945), he lawyered for veterans to claim reparations from the U.S. government, including his own claim for  $595,000 representing 2,000 heads of Brahman cattle taken by the U.S. Army from his cattle ranch in Mindanao during the Japanese short-lived occupation of the island.  Both the existence of the “Ang Maharlika” as a guerilla unit and his ranch were found by the U.S. government to be fictitious.

How do we explain Mr. Marcos as a congenital liar? 

We are all wired and biologically programmed to become liars.   Psychologist David Smith in his book “Why We Lie, wrote this chapter, “The Ubiquity of Deceit:”

“The founding  myth of the Judeo-Christian tradition , the story of Adam and Eve, revolves around a lie.  We have been talking, writing, and singing about deception ever since Eve told god “The serpent deceived me, and I ate.”  Our seemingly insatiable appetite for stories of deception spans the extremes of culture from King Lear to Little Red Riding Hood.  These tale are so enthralling because they speak to something fundamental in the human condition.  Deception is a crucial dimension of all human associations, lurking in the background or relationships between parents and children, husbands and wives, employers and employees, professionals and their patients, governments and their citizens. 

Lying is obliged by its very nature to cover its traces, for in order to lie effectively we must lie about lying. This poses a problem for anyone attempting to prove the ubiquity of deception.  Although it is all around us, deception is strangely elusive, “hard to explain, although it is something with which we are all intimately familiar.”  We do not need the surveys and experiments beloved by psychologists to confirm that people lie to each other, although these, too have proven to be quite revealing.  To grapple with dishonesty, we have to open our eyes to some unpleasant truths.  As the biologist William Hamilton once remarked, evolutionary thinking about human behavior is not difficult in the way that doing physics is.  It does not require highly sophisticated mathematics, elaborate instrumentation, or difficult chains of logic.  Viewing human behavior through a Darwinian lens is difficult because it radically undermines cherished illusions about human nature.  It leads us to violate mental taboos, to enter no-go areas, to open the book of forbidden knowledge.  It is “socially unthinkable”, exposing the raw nerves of our relationships with one another and revealing the complex manipulative strategies that oil the wheels of society.  Thinking biologically about human nature means dismantling shared illusions.

Although we claim to value truth above all else, we are also at least dimly aware that there is something antisocial about too much honesty.  This dilemma has often been protrayed in literature and film, from Dostoevsky’s Prince Mishkin, whose innocence and honesty destroy the lives around him, to the 1997 film, Liar, Liar! in which a lawyer wreaks havoc when he is placed under a spell condemning him to be truthful for twenty-four hours.  Evolutionary biology suggests that no normal person would be capable of such a feat.  We are natural-born liars.

Yes, indeed, we are natural-born liars, but most of us do not get recognized as heroes.  Why should it be different now with Marcos?

I have not personally met Ding.  I only knew him through FV and Facebook.  He writes prolifically at Midfield and on this blog (FV) and though his works do not have the sinews of literary masterpieces, they are nonetheless clear indicators of his  genuine concern for a country debauched and betrayed by politicians, jurists, military officers and other bureaucrats. He kept punching and refused to hang his gloves up to the end.

I have asked his daughter Felice A. Gagelonia for her address and her Banco De Oro Account which as a token of my own admiration for her dad, I have transmitted a humble amount.

Felice A Gagelonia lives at 527 J. Luna St. Barangay Bagong Silang, Mandaluyong City, Phillipines and her Banco De Oro Accunt No is 0280968582.