By: Teodoro L. Locsin Jr.
I WROTE A lot of this the day before the Day of Decision and for the past three weeks I was predicting on Twitter 18, 19 even 20 senators will convict. Few believed me but I knew I was divinely inspired or had a good telescope and bugging device plus my own access to the dollar accounts of the Palace and the senators.
And so it came to pass that Tuesday was not the Day of Decision but the day the Decision prepared well ahead was finally announced, with varying degrees of mendacious explanations. The best was Lito Lapid’s honest admission that he was not competent to judge so he voted to convict, not least because his wife faces conviction in a US federal court.
All congressional actions, from bills to impeachments, go through a bicameral conference committee to reconcile differences and agree on a common plan.
So for all the haste of this impeachment in the House, where it was signed sight unseen and never discussed because it was prepared in the Palace as the Palace proudly revealed, the impeachment must have been discussed with the Senate before it was filed and the result already agreed.
The decision of the Senate Impeachment Court - which was making up the law whereby the Chief Justice would be convicted, even as the prosecution bumbled while the trial went along - convicting the Chief Justice, not by judgment but by vote, of an offense that popped into existence only at the moment of conviction—is the very Bill of Attainder that Enrile warned us of. A bill of attainder criminalizes an innocent and non-criminal act and by the same token finds someone guilty of it and condemns him without a trial but just by a super-majority vote.
While an impeachment is a political process in the narrow sense that it seeks to achieve a political result -like unappointing a political officer otherwise secure in his tenure and term - this here was a political assassination masquerading as a judicial process.
All the authorities that many like Enrile have read, though I alone seem to have mastered, an impeachment must aspire to be judicial proceeding. Indeed, said Blackstone, it is a "criminal proceeding" akin to that in a court of law.
As such it must be ever mindful of judicial rules on the admissibility of evidence; and over and above all regardful and respectful to the last degree of the due process that no citizen can be denied however high or low.
But this one was not a trial after all but a long execution, carried out by the legislature at the behest of the executive.
Although all the senator-judges donned the costumes of judges, they should have worn the gear of executioners, tight-fitting sadomasochistic leather thongs and silver studded face masks when they dropped the axe on the Chief Justice's neck like the AVSECOM injected a slug in the back of Ninoy’s head at the Manila International Airport. Indeed, the assassination of the Chief Justice has stronger constitutional implications than the assassination of Ninoy Aquino. The first killed the separation of powers and fired a still presumed innocent man; the second murdered a good man. Yes Corona still enjoys the presumption of innocence because the Senate Impeachment Court did not conduct a judicial trial.
The grounds for the Chief Justice's impeachment were culpable violation of the constitution and betrayal of the public trust. Culpable comes from culpa and it means blameworthy. That excludes unintentional wrong. Mr. Nicolas, my Latin teacher, will vouch that I was very good at Latin.
In this case the act of withholding information on dollar accounts was not even wrong. The BIR says no taxpayer ever declared dollar deposits. Other grounds are treason, bribery, graft and corruption and other high crimes or betrayal of the public trust.
While impeachable offenses differ, they must share a necessary quality. They must all be of equal gravity in being, and here I am forced to quote Black the shortest authority of all intended for those with attention deficit; indeed these offenses must be so obviously, note so obviously wrong - but they can be wrong but not obviously and so are not impeachable - indeed, they must be so obviously wrong as to threaten the order of political society, making it pestilent and perilous for the perpetrator to stay in power. I improved Black’s prose with a rich array of alliterations. What can you do? Talent always tells.
But of what was the Chief Justice accused that made him pestilent and his tenure perilous? It is the Chief Justice’s accusers, in the Palace, in the House, in the Senate and in the media, especially in the social media, who threaten democracy, the rule of law and the order of political society by puckering up for the party line's puss.
Indeed, the very allegations of culpable violation and betrayal of the public trust in an impeachment complaint must already show, what the allegations in this case did not: a clear threat to the social order equal in gravity to specific impeachable offenses like treason under the constructive principle of ejusdem generis.
It is important to recall that Enrile made it clear that the Chief Justice was not charged with ill-gotten wealth but only of failing to declare all of his presumably honestly earned money.
In fact, when the Chief Justice tried to explain the provenance of the deposits whose legally sanctioned secrecy he finally waived, Enrile warned him to stop saying more.
The reason was that, if Corona explained, next thing you know those stupid people out there - the general public - will be asking the same explanations from the senators who have infinitely more to hide as their bankers have been telling me. Yes, their bankers talk and I am a good listener.
The Chief Justice was charged with betrayal of the public trust. Now betrayal of the public trust is not akin and certain does not mean, "I don't trust, honey," like a politician's wife says when she catches him in bed with the maid or someone else.
The Constitution has a special definition of betrayal of public trust. It is such gross irresponsibility, such brazen lack of integrity, such repeated disloyalty to duty, such heedless inefficiency and laziness in the public service, such glaring injustice and extravagant living as to pose a threat to the good order of society. See, public trust is not a feeling it is a fact. Feelings, as I keep saying, is a song, "Feeeeleeeeeengs, namanamanam, feeeeeeleeeeeeeings." It is not a fact least of all an impeachable offense.
No real, let alone legal, proof showed any of that. Such proof as the prosecution attempted did not approach the standard of clear and convincing evidence for conviction.
The Chief Justice was accused of culpable violation of the constitution. Okay but in what regard? How culpable? What was the act or omission and how was it wrong? Can that be wrong which everyone does under a law and only the one is accused is forbidden to do it.
But signing the waiver acquitted the Chief Justice and put all his accusers on trial.
Now, The Chief Justice did not conceal his money.
It is not concealment when law itself shields money.
The senators lambasted him for waiving his right to secrecy instead of going along like them with the Supreme Court TRO denying disclosure of dollar accounts.
That way the senators’ financial secrets stayed shielded but the Chief Justice’s would not be. Worse, although he signed the waiver, they refuse to accept it. Although he said open my accounts, the senators refused to know.
Then the Chief Justice did the unforgivable.
You saw it clearly on the faces of the senators.
The President himself had been repeatedly assured by his advisers that Corona would never waive the secrecy of his dollar deposits under the FCDU law. So he was sure to look guilty.
When Corona conditionally waived it, the president’s own relatives banged their heads on the table and cried, "But they assured our cousin that Corona would never do that."
But Corona did that; first conditionally and then unconditionally and totally.
Worse, he even declared what his dollar deposits amounted to, down to the last penny.
The result was an avalanche of hate messages to the senators and to Noynoy demanding that all of them declare their deposits also.
Corona was dead though he was dead before Day One of the Senate Impeachment Trial. Now he was double dead like a dead chicken still sold.
Corona was expected to lie down and die all alone; not take the senators down with him.
In the end, had Chief Justice failed to declare all he owned as public officers are required to report?
But the remedy for failure of complete disclosure is self-correction not impeachment as we shall see when a friend of the President is finally caught and nothing is done to him.
Indeed, impeachment is always too grave a remedy. A reckless impeachment undermines the independence of the judiciary as it weakens the energy of the president.
What the Senate did today will decide whether ours shall remain a government of laws and of separated powers or become a government of whimsy and one-gang rule.
Whether ours shall be a government of limited powers as always understood (see Tribe, a difficult writer understandable only by geniuses) or of powers as far as a president’s ambition will go. Judicial decisions will change with time but political actions will harden with expedient repetition. And this is a government of expediency galore.
And so it all boiled down to the question: Can the Chief Justice be impeached for his interpretation of the FCDU law that all his accusers, especially all the senators, completely agree with because they refuse to sign their own waivers? But that is hypocrisy and a violation of the equal protection of the law.
Even if the Supreme Court disowned his interpretation and Congress enacted a law disallowing it, neither can retroact to cover the Chief Justice. So I submit the answer is no. Yet the senate said yes. And I told you so.