Help Me Understand (Post-Impeachment Ruminations)

Last Tuesday, I flooded my friends’ twitter- and news-feeds with unfiltered reactions on the unfolding impeachment trial. It began with me on the fence, my mind saying there should be a conviction, but in my gut, the feeling of uncertainty if it would be the fair outcome for all.

When Sen. Miriam Defensor-Santiago’s turn at the podium came, I tweeted:

Sen Miriam goes academic and technical again. Not always welcome, but certainly enlightening and necessary at this point.

The following day, my friend Rey posted this reply to my tweet:

but in hindsight, hindi na’ko bilib. even if it was practically a done deal by the time enrile read his decision, sa kanya ko talaga inangkla kung tama ba’yung impeachment court o hindi.

I answered:

None of the things Sen Miriam elaborated invalidated or contradicted JPE’s naman. In fact, if I remember correctly, the Sen Pres’s summary was rooted in if not merely echoing the proclamations of Sens Miriam & Joker. Only Sen Miriam expressed it academically in such colourful language, and stuck to a prudent adherence that resulted in her vote to acquit. And twas much too verbose in the latter part cause she lost the necessary focus in the end. Still, if you dig through her’s & Arroyo’s speeches (as well as the exceptions in Sens Enrile & Pia… even Villar!) you’d mine nuggets of legal wisdom exposing the political nature of the the majority decision. It also highlighted, I thought, the weaknesses of the young & non-lawyers in the Senate acting as Judges. Kaya the road to being a judge is long & hard – kase it requires wisdom… And fairness!

I love JPE’s sobriety and ability to mix political and legal tenets in justifying his decision to convict – but even his speech makes an obvious acknowledgment that his decision was partly if not mostly based on merits not proven by the prosecution within the impeachment. Good for us that we rid ourselves of a ethically suspect CJ, but I wonder about the politicalising of what ought to be a sacrosanct recourse that is the impeachment. I thought we still were much too liberal in our observance. Conveniently so for our president and all of GMA’s enemies. That PNoy used the entire government to purge the Judiciary of his enemies was not disproved. This only proved it true & made it successful nga, if anything. So what now of equality of the three branches of the government? It’s almost back to Edsa Dos.

Rey replied:

it’s remarkable how jpe, while not invalidating miriam’s points, arrived at the opposite conclusion. miriam may have been a victim of her own brilliant legal mind and experience to acknowledge what is obvious to a “plain, legally untrained, but reasonable mind” (osmena). i thought she was going there when she expounded on what it means that the impeachment court is also “quasi-political.” pati ako na-enlighten sa term niya. “quasi-political” allowed for liberallity, not her exacting “very high standards” honed from years as an rtc judge and soon-to-be international criminal court judge (which she unnecessarily emphasized over and over again.)

that the constitution calls for the senate to be the impeachment court, and not a different body of learned lawyers, means we should not only tolerate non-lawyers sitting as senator judges, but actually celebrate it. that it is good that a lito lapid, a mere high school graduate’s simplest understanding of the proceedings is given equal weight to that of jpe (who never harped that in his 40-year career as criminal & corporate lawyer has not lost a single case).

for all its supposed liberality, i don’t think it went as far as becoming a mock trial with a fixed outcome, as some camps accuse. questionable evidence and testimony were called out. that pnoy used the entire government was not proved, either. in the first place, an impeachment trial is a function of our government, and it will have to arise when one or two branches of government feels the need to question a co-equal branch. the fact that this was done through the process is a healthy sign, incomparable to the padlocking of the legislative and judicial buildings when marcos declared martial law. equality does not mean idle tolerance of another’s incompetence. that the judiciary and the senate did not let malacanang have its way without giving cj a fighting chance is a good sign.

the whole proceedings disgusted me with how lawyers could wield technicalities to justify a wrong, but in the end, i gained a newfound respect for them and the beauty of the law. especially its function in a democratic set-up, where the welfare of the people takes precedence, and it is their will that makes the powerful but intangible dimension in an impeachment proceeding. it is not as much about “the ruin of a life” (defensor-santiago) as much as it is about the official’s burden to prove to his people his fitness to hold a public post.

The funny thing is despite the amusement I find in Sen. Miriam’s demeanor and hysterics, I don’t actually think it’s becoming of a Senator-Justice, in the same way that it is disappointing for the Prosecution to be lazy and subpar, in the same way it is unthinkable for the defense to be calling a witness hostile to their case and have no control of the defendant’s testimony which became his own undoing. But after the dust has settled, Sen. Miriam’s points remain valid. I am unconvinced the liberality taken in the other Sen-Judges’ contradicting decision is enough to overturn her arguments. I said:

Ako naman, I try to always remember that impeachment is THE most extreme recourse, thus the requirement for MOST exacting standards. I call for the exact opposite nga. PRUDENCE and DILIGENCE in favor of LIBERALITY.

Because it is already enshrined in the nature of an impeachment that Senators and Congressmen, who are not necessarily trained legally, are able to act as judges, then we must be most careful and critical of the judicial proceedings. As it rests, the judgment will be INHERENTLY POLITICAL – because the judges are not trained in the judiciary. They will be required to interpret laws and hear legal arguments when their function is to make them. And not all of them even have the competency to do that, let alone act as a judge. That alone sufficiently covers the quasi-political nature of the Impeachment proceeding. That’s why it has been mentioned by Miriam or Enrile I think that they must aspire to conduct it like a criminal proceeding akin to a court of law. Because we should at the very least make it as judicious as possible in conducting the proceedings.

I agree that it should be celebrated that a politician like Lapid can be made equal to a brilliant legal mind like Enrile. Kaya nga what would then justify this as an exercise in democracy, and not a day at the circus, is the EXACTING conduct of the proceedings – so that even a simple man like Lapid can be made to grasp the results of the proceedings without partiality.

Even now, I am frustrated that the prosecution was not able to definitively assail the claim of good faith by the defense. I felt that that’s what was necessary in deciding once and for all when the declaration of SALN, or failure thereof, constitutes culpability as defined by the articles of impeachment. Like you, I needed the CJ to prove his fitness to hold his position. Beyond all doubt. And this was the chance, I thought. But none of it was conclusive – and the legal questions remained unanswered, except upon the liberal interpretation of the senator judges. And this is to be the basis of future Impeachment proceedings? Therein lies the danger. It should’ve been based on judicial principles.

Yes, I too didn’t believe that he acted in good faith. But this is not a mere domestic argument where uncanny instinct, like Sen Lacson’s, is all that you rely on. You must prove it to beyond all doubt, regardless of how obvious it seems. Why? Because this is a Chief Justice we are trying to impeach. Someone who, as much as a corrupt president had a hand in his appointment, was also subjected to strict scrutiny by various commissions and agencies of the government before he was arrived at the topmost position of the Judiciary, and brings with him years of experience and qualification. Let’s flip the case of Delsa Flores. If you can be this liberal in the interpretation of the law in application to a case against a Chief Justice, then what more for an ordinary person? That’s the dangerous implication I fear for our judiciary.

Ako rin naman, I also wouldn’t go as far as saying it was a MOCK trial, but I still feel that many of the judges’ decision were not credible, sound or competent. Which could be mean to read, again, that it was mostly political. I’m not privy to the goings on behind the Senates’ closed doors to make a comfortable conclusive judgement on that, but that I will not be able to admonish those who would interpret it as such.

I disagree that PNoy’s use of the government machinery to push for this impeachment was not proved. I think that’s precisely what the Sen-Judges meant, especially Enrile, when they harshly called out the hastily prepared impeachment at the Congress, and the inefficient prosecution, as well as the drop of the other articles of impeachment. Because it is known that the Palace pushed for it. In fact, the palace itself had admitted at some point that it had prepared this impeachment.

Maybe it was not comparable to the situations during Martial Law, but it is leads dangerously to the path of disproportionate power distribution that reflects the situation back in Marcos’ regime. When it was the executive who was able to impress and act on its desires despite the haste and subversion of the necessary processes.

Between the errors in interpreting the Impeachment as quasi-political versus quasi-judicial, I would always choose to err on the latter. Someone said it yesterday, and it does ring true. The end does not justify the means, sabi nga paulit ulit (though the senators sometimes use it erroneously to justify some of their uninformed conclusions). People like me wouldn’t be discomfited by the decision if all the players in this impeachment proceeding, from the filing to the litigation to the judgement, all acted with diligence and prudence. Naturally, the burden is higher for the prosecution – it is to be expected! In saying all this, it’s not the technicalities that I defend, but the pressure on the prosecution to do its job in proving the guilt of the CJ – and not in the court of public opinion, but in the Impeachment. Because it was not impossible to do so! They simply needed to exercise, again, prudence and diligence. Because it is precisely the abuse of power, of the system, and of the consenting bystanders we are preventing above all. It is not justice when it is done at the expense of anyone – even a criminal.

Rey concluded by saying:

heto na lang… all your concerns were practically raised by jpe. they did not escape his scrutinizing legal mind. and weighing everything, he still found it PRUDENT to convict.

because the chief justice’s very words (arguments and justifications) were found unacceptable. and enrile, choosing between upholding “quasi-judicial” standards and “forming sound social policy,” thought it best to overlook IMPORTANT lacks from the side of the prosecution (let’s not forget he pointed out mistakes from the defense – perhaps borne out of the confidence that the persecution weren’t really performing up to par), so he may focus on the forest rather than the trees.

I agree that we must not get lost in the details in our search for truth and pursuit of justice. That’s why I’m able to accept the Senate’s decision for the most part. Because they echoed my sentiment against abuses of power.

So I tried to leave it at that even if I didn’t agree with my friend that JPE’s choice was between upholding judicial standards and forming social policy. In this particular case, it is careless to interpret that the former is diametric to the other. In fact, one might even argue that it is so parallel to each other that to compromise judicial standards is to institute an unsound social policy – a society at the whimsical mercy of politics and personalities. Rule of law, from which judicial standards spring, seek to maintain social order and equality.

I also didn’t agree that JPE’s decision to convict was an act of prudence. Quite the opposite. It was political – though I acknowledge it seemed borne out of wisdom, careful academic scrutiny, and good intention. (What did they say about the road to hell again?)

But a couple of days after, I still felt ill at ease about the results of the impeachment. I kept wondering, isn’t it precisely the folly of seeing the trees for the forest when we choose to justify a flawed judgement. Again, I am reminded: the end does not justify the means. Good intentions paving roads don’t always lead you to St. Peter’s doorstep.

So today, I tweeted:

Still haunted by the possible bill of attainder implication of the recent impeachment. I hope history’ll be kind & prove our politics wiser.

My friend Lea asked what I meant. In crafting my answer, it helped me articulate and put a shape to this nagging feeling. In my admittedly insufficiently informed understanding of the law, I feebly explained:

Bill of attainder? If I remember correctly, it’s like when Congress then Senate passes a law that makes a crime out of something that was previously legal. Meaning, in this case, the articles of impeachment does not explicitly define an erroneous declaration of the SALN as an Impeachable offense. Especially when the law provides as remedy for it a mere “correction” – begging the question, how come we are now impeaching a CJ because of an error? Our Senator-Judges in majority have decided to make a fresh interpretation that when you’re a CJ, a mere correction is not enough. You must be IMPEACHED, whereas that was not what the Constitution, or any law, explicitly said before.

The dangerous implication is that, in theory, an ‘innocent’ person was suddenly convicted for an act that NO ONE could’ve known was a CRIME after all because previously, nothing in the law said that it was a crime, much less, an impeachable offense – the gravest category of sin for a public official.

The ‘innocent’ adjective there is arguable – because we don’t really know for sure if the CJ was innocent. And therein lies my biggest discomfort about the outcome. In my own lay interpretation of the proceedings, the evidence, the news features and articles, I actually do think it’s incredulous for him to have amassed US$2.4. And when he didn’t declare it, to me, it did make him suspect of corruption or some wrong doing.

But that’s exactly what the impeachment proceeding and the Prosecution must have ascertained or clarified for me. Did that money came from wrong-doing? The answer would then put a context to Corona’s admission of the undeclared dollar account. Meaning, they should’ve tried finding out the reasons and motivation for hiding such huge dollar accounts. Whether he hid it because that wealth was acquired through an abuse of his power as a public official (BAD FAITH), or whether he simply chose not to declare it because he had the right not to declare it under the FCDU Law (GOOD FAITH). Like what I said in my previous tweets / posts, my frustration is that Corona’s claim of GOOD FAITH was not conclusively or definitively assailed. I agree that it sounds like a “palusot” – but they did not prove it to be truly palusot.

If they proved that Corona acted in bad faith because the source of that money was illegal – then yes! I agree WITHOUT ANY DOUBT that his choice to interpret the FDCU law in his favour, which he uses to justify the concealment of dollar accounts, was in fact a willful act of omission that sought to hide his corruption or abuse of power. That would then elevate this omission to something tantamount to an IMPEACHABLE OFFENSE.

Kase, even me, I’m thinking, if I were public official now, and I had dollar accounts, and I had the right not to declare it, I would CONSIDER not declaring them. Not because I’ve been engaged in illegal activities, but mostly because I’d cling on to what little privacy I am legally allowed to hang on to considering that a career in public office already requires us to divest ourselves of most if not all of that privacy. And we all have a right to privacy. And I would want to keep private some of the affairs that do not impact on my function or life as a public officer because that knowledge of my private affairs can be used both a) to achieve transparency that would ensure my credibility & trustworthiness, and b) as ammunition for political enemies who wish to do me wrong. Because it is a fact that in politics, you gain enemies even if you do nothing wrong. Heroes and villains are interchangeable roles. It is but the nature of politics.

If marijuana was legal, so far as it is used for medical purposes… Then someone who had the prescription for marijuana took hits not because he or she was in pain, but in celebration of another friend’s finding out that his cancer has gone to remission, who himself had a marijuana prescription. Absent, then, of the medical precondition allowing for legal use of the organic drug, will these people be deemed guilty of a crime? Because they used it socially, for fun, instead of for the alleviation of pain? Guilty, even if they have been accorded the right to procure and use it? Guilty, and deserving of the punishment in its maximum?

Of course, that’s a very elementary way of putting it, nowhere close to mirroring the complex history and implications of an impeachment. But I use that analogy only to emphasize how such judicial principle could apply to a civilian. For if this is to be done to an honorable Chief Justice, how could it apply to a mere Delsa Flores (the clerk of court who was impeached). People have been making mention of Ms Flores without due reflection if her fate was service of justice. Perhaps, as what may have happened with CJ Corona, she too was inequitably punished?

Kase what happened just now is that, in effect, what they’re saying is, because Corona admitted to hiding it, that makes him guilty of an IMPEACHABLE OFFENSE. I think they are forgetting that a run-of-the-mill offense and an impeachable offense are two separate things, so far separated as to be on opposite sides of the Pacific. Because an impeachment would not only remove you from your current public office, but bar you from holding another one. In Corona’s case, the impeachment doesn’t only stain his reputation and record as a public servant, it has a damning effect of discrediting his life work in its entirety.

Sure, if proven to have made an omission, then correct it, punish him EQUITABLY for that omission, then make sure that NO public official can make the same omission or CLAIM to have merely been neglectful in the inaccurate declaration of their SALNs.

How to do that last bit?

I wonder if, perhaps, much as it would mean keeping the CJ in his position as head of the Supreme Court because of this ‘omission,’ the Impeachment should’ve resulted in an acquittal because that is what was JUST for CJ. And then, it could’ve proceeded to a) an amendment of that Constitutional provision (a complicated process as it requires a ConCon of course), b) an amendment of the relevant laws like the SALN law, or c) new legislation that explicitly states that henceforth, all public officials must NOW declare ALL their assets, including their foreign currency accounts, despite the FCDU law.

This is what Senators Joker, Bongbong & Miriam were saying, I think, in so many words. I wonder more in more if they were the wiser.

JPE eloquently defended upholding the spirit of the law. I am most certainly all for that, but I feel that upholding the spirit of the law applies both in protecting the aggrieved and the accused. That we can dispense of the proof requirement in an impeachment proceeding because it is quasi-political does not mean we should, in my opinion. I’m afraid that when judges decided to convict on a case where they admit to the prosecution’s failure to convict beyond doubt, with evidence whose procurement is possibly extra-legal and authenticity unproved, they in effect tipped the balance of power in favour of a ruling majority. In this case, in favour of the Executive that controls the Legislative branch because of partisan politics. What would then prevent them from persecuting other perceived enemies who may simply be on the wrong side of the fence but may be innocent of the charges being hurled against them? I’m afraid that’s what the bill of attainder gives way to. It’s the kind of lopsided balance of power that gave way to a dictatorship in the past.

To me, when the judges allowed that, it raised doubts about their discernment & probity. In this case against Corona, I did not think it was impossible to lodge a confident impeachment complaint and present a credible, determinative case. To convict based on a deficient case is to, as they say, “open the floodgates” to other problems impacting on our democracy which the Judges also needed to look out for. If only the court was composed of more JPE’s, Miriams, Jokers, Lady Cayetanos and less of the other ones, then perhaps it would’ve been a healthier, more comprehensive debate that resulted in a more credible decision.

Since I am not a lawyer, there must be a million and one ways my view on the matter has been skewed by my peculiar biases and inadequate study of the issues. Mine is a civilian, possibly short-sighted expression of thoughts I can’t help saying because I remain bothered by it. On this, I want nothing more than for someone to help me understand that all my fears are for naught. This being another impeachment, it resurrects many unresolved issues from Edsa Dos. Much as I remain proud of having supported the protests in 2002, in hindsight, after it divided the nation and extra-constitutionally installed a new leader who amassed so much power that she was able to corrupt the elections in such massive scale, I don’t think I’d be as tolerant about any relaxation on the rule of law.