Last Thursday, the presiding officer of the Philippine Senate sitting as the Impeachment Court, Senate President Juan Ponce Enrile, referred to the books of Professors Charles Black and Raoul Berger in open court. Both are considered experts on impeachment at least among US circles. Enrile was emphatic in saying that Black taught at Yale, and Berger at Harvard, to bolster the credibility and legitimacy of the sources he cited in his attempt to describe the nature of the impeachment tribunal. Enrile did this in response to lead defense counsel, former Supreme Court Justice Serafin Cuevas, when the latter moved to strike out the entire testimony of the incumbent Justice Secretary Leila De Lima. De Lima then was testifying on cross examination about the alleged irregularities, as averred in Article 7 of the Impeachment Complaint, surrounding the voting, approval, issuance and service of the Supreme Court's temporary restraining order against De Lima's "watch list order," which effectively prevented former President Gloria Macapagal-Arroyo from leaving the country. Cuevas moved to strike De Lima's testimony on the ground that it was hearsay she had been reading in open court the dissenting opinion of Justice Lourdes Sereno in the Supreme Court's Valentine Ruling.
Following references to Professors Black and Berger, Enrile stated his take, which so far has become the unchallenged collegial view of the Senate, that the impeachment proceeding at hand is "not a criminal trial" but only "akin to a criminal case," and that Black and Berger do say that the hearsay rule is "not strictly applicable" to impeachment cases. Enrile denied Cuevas's motion to strike in part, and granted it in part. Both the defense and the prosecution felt that each had won the day.
The more critical implication of Enrile's references to two reputable US law professors, both experts in impeachment, as "the" authorities, will pretty much open up all avenues for counsel, prosecution and defense alike, to draw directly from US authorities, if not the entire US experience in impeachment cases of judges. As a matter of fact, no less than the accused in this case, Chief Justice Renato Corona, cited my own title on impeachment in a 2003 separate opinion of Francisco v. House of Representatives, a leading case on impeachment law in the Philippines. Here Corona stated in footnote 2, "Impeachment under the Philippine Constitution, as a remedy for serious political offenses against the people, runs parallel to that of the U.S. Constitution."
Last Wednesday and Thursday, protest rallies were held before the Supreme Court, calling for Corona's resignation. Pleas from various social sectors have crept into the media asking for the Court en banc to allow Justice Sereno to testify about the alleged irregularities in the approval and issuance of the TRO, which irregularities and undue haste, as the prosecution argues, were all due to the close ties of the Chief Justice and former President Arroyo. But the so-called Valentine Resolution effectively bars any Justice of the Court from testifying against another Justice on the ground of "deliberative process privilege," an analogue to executive privilege under United States v. Nixon. The Valentine Resolution was the Court's per curiam reaction to the letters of prosecutor and congressman Joseph Emilio Abaya, the Impeachment Prosecution Panel Manager, as well as a Senate's subpoena which named key court officials, records and documents. The Senate, sitting as the Impeachment Court, again through Enrile, announced that it will be "respecting" the Court's interlocutory order.
The way around the prohibition against compulsory process, to the prosecution, was to manifest and move before the Senate for an issuance of an "invitation" as well as a set of interrogatories for Justice Sereno, which prosecutors Raul Daza and Neri Colmenares did minutes before the Senate adjourned last Thursday. Earlier a number of Senator-jurors also suggested, in open court, to take a more voluntary route for the appearances of witnesses from the Court. But if Justice Sereno, one of the prime movers of the dissent, does go to the Senate on her own accord, could the Court en banc sanction her for violating the Valentine Resolution? Will her own dissenting opinion, consistently joined by four other justices, be sufficiently colorable authority for her to escape or at least mitigate a possible en banc administrative sanction against her? How should the "invitation" and interrogatories, if the Senate does choose to issue them, be phrased as to avoid too direct a confrontation with the Court majority? After all, Justice Sereno, along with Justice Carpio, another consistently strong dissenter, are considered impeachable officers under the Philippine Constitution and thus could only be removed through impeachment and conviction by the same Senate whose members today seem to be inclined to hear their story.
Public pulse as of the hour is of the view, more or less, that the majority of the Philippine Supreme Court a consistent vote of eight against five are doing all they can to save their Chief Justice from public scrutiny regardless of doctrinal considerations. As protest rallies before the halls of the Court continue, it ought to be noted too that the Philippines is facing extraordinary times which, rightly or wrongly, may call for extraordinary constitutional interpretation. Conversely, public pulse appears to be in favor of the legitimacy of the Senate sitting as an impeachment court, with recent polls showing as much as 86 percent of respondents stating that the public at large will abide by the Senate's ruling.
The impeachment trial of Chief Justice Corona certainly implicates the clear tension between "judicial privilege" and the public's right to information on matters of public concern pursuant to Section 7 of Article III of the Philippine Constitution. Should "deliberative privilege" trump the right to information and discovery? It ought to be recalled that Section 7 was entrenched as a constitutional right in response to then President Ferdinand Marcos's secrecy about his health in the days leading up to the 1986 snap elections, whose perceived failure then triggered the 1986 EDSA Revolution which ousted him and his family, Imelda Marcos included. While many catalogues of rights found in contemporary constitutions still couch individual liberties and other entrenched rights in absolutist prohibitions ("No law shall be passed abridging..."), there is no question that constitutional courts today increasingly engage in more sophisticated proportionality analysis and multi-tiered constitutional methodology in their attempt at balancing competing interests. In building legitimacy, the Senate may be off to a good start by turning to Yale and Harvard law professors when it provided an initial sally about the nature of impeachment trials, but it does remain to be seen how well, and to what extent, the same Senate increasingly behaving like a real court of justice can well engage in a proportionality analysis when faced with constitutional polarities.
Edsel Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is currently assisting the House prosecution in the impeachment trial of Philippine Chief Justice Renato Corona.
Suggested citation: Edsel Tupaz, Extraordinary Constitutional Interpretation in Corona's Impeachment, JURIST - Sidebar, Feb. 25, 2012, http://jurist.org/sidebar/2012/02/edsel-tupaz-impeachment-iv.php.
This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at firstname.lastname@example.org