Thursday, May 31, 2012

Miriam Santiago: Impeachment's Aleng GAGA

I watched the voting by the Senators acting as an Impeachment Court LIVE via video streaming with excitement but very confident of what the verdict was going to be.

In fact, I predicted the outcome so much so that while online on Facebook and watching the impeachment proceedings at the same time, I posted, “At 4:25 p.m. Philippine time, I now project a GUILTY verdict against CJ CORONA! I am now assured that at least 16 would vote GUILTY.”

Facebook friend EQUALIZER POST who was obviously online asked who would be the other Senators voting guilty. What about Revilla and Villar?

I responded immediately saying, “For sure, Enrile, Sotto, Recto, and Trillanes will vote GUILTY. I suspect Villar and Revilla might also vote guilty.”

Of course, all the Senators I mentioned voted GUILTY as I predicted, and history was written.

Caught by the euphoria, I no  longer cared about the 3 Senators who considered CJ Corona NOT GUILTY.

Then, I watched Senator Miriam Santiago again. Not only did she insult legal luminaries in the House (Raul Daza, for example) and in the Senate (Enrile, Angara,Drilon, etc.), but also successful private law practioners and Bar topnotchers who disagreed with her interpretation of the Constitution and pertinent laws.

The truth is, as a lawyer and an interested observer, I also felt insulted by the way he castigated all of us who disagreed with her by describing our views as “kaGAGOhan” or foolishness.

Let us analyze.

1. Future Ex-Senator Miriam Santiago claims that we should apply the general rule of statutory construction called “ejusdem generes” meaning, “where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.”

She then quoted the provisions of the Constitution “the President, the Vice President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.”

Applying the ejusdem generes rule that she is proudly invoking actually shows that “betrayal of trust” is not of the same general kind or class as “high crimes” as “treason, bribery and graft corruption” because it was not specifically enumerated following “other high crimes.” Otherwise, “betrayal of public trust” should have been included in the enumeration BEFORE and not AFTER “other high crimes”.

Furthermore it is also fundamental in statutory construction that when the word “OR” is used it is meant as a disjunctive particle and to express as alternative or to give a choice of one among two or more things.

2. Future Ex-Senator Santiago also proudly referred to American authors such as Charles Black of Yale University regarding impeachment views and opinions.

If she really read and studied U.S. impeachment history she must have found out that more than 200 years after the adoption of the Constitution, there had been 18 impeachment cases in the United States; 3 Presidential, 13 Judicial and 2 others.

She also must have found out that in defining impeachable offenses, the Ford Test was enunciated, meaning as stated by Majority Floor Leader Gerald Ford, “an impeachable offense is what the majority of the House of Representatives say what an impeachable offense is”.

This explains why, in impeaching judicial officials in the United States, many of them were removed from office by: “being habitually drunk, showing favoritism on the bench, using judicial power unlawfully, using the office for financial gain, unlawfully punishing people for contempt of court, submitting false expense accounts, getting special deals from parties appearing before the court, bullying people in open court, filing false income tax returns, making false statements while under oath, and disclosing confidential information.”

Take note that Corona is a judicial official who had already admitted, “making false statements while under oath”. In fact, he could be guilty of the other offenses as well.

In the case of the Presidential impeachment cases, however, the offenses were considered more serious to remove the respondent from office.

Why? Because the sovereign people elect the President and Vice President compared to a judicial officer like Justice Corona, and it should not be as easy to undo the people's sovereign will. Justices are mere recommendations of the Judicial and Bar Council and appointed by the President.

3.  Future Ex-Senator also argues that the SALN provision of the Constitution is not self-executing, therefore, is not superior to the Foreign Currency Deposit Act.

Art. XI Sec. 17 of the 1987 Philippine Constitution
“A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth.

“In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.”

There are two rules of statutory construction applied here. One is the rule that when the word “shall” is used, it is meant to be imperative, operating to impose a duty, which should be enforced. The Constitution used the word “shall” in both mandatory sentences. Two, if Santiago is in doubt, she should follow the rule: In case of doubt, the Constitution should be considered self-executing rather than non-self-executing, unless the contrary is clearly intended.

4. Both Future Ex-Senator Santiago and Future Ex-CJ Corona claim that the FCDA is the law contemplated by paragraphs 1 and 2 of Art. XI Section 17 of the Constitution.

This is faulty reasoning. One, the first paragraph refers to a law that provides the date and frequency of the submission under oath of SALN. Does the FCDA provide the schedule of SALN submission? Two, the second paragraph refers to the MANNER of submission of the SALN. Does the FCDA provide that?

Most importantly, Republic Act 6713 provides for the DATE and FREQUENCY and the MANNER of submission. It was enacted in 1989 AFTER the adoption of the Constitution in 1987. The FCDA was enacted in 1972, 15 years prior to the 1987 Constitution whose SALN provision it is supposed to enable.

5. Future Ex-CJ Corona claims that there seems to be a conflict between the SALN law and the FCDA. Future Ex-Senator Santiago agrees with him.

Another rule of statutory construction applies: SUPREMA LEX
It is time-honored that the Constitution is the Supreme Law of the land. It is the law of all laws. Hence, if there is conflict between a statute and the Constitution, the statute shall yield to the Constitution.

Who is GAGO or GAGA now?

CJ Corona as Interpreter of Law

The Philippines has a presidential republican system of government. It has three arms or branches namely: the Legislative, which makes the laws; the Executive, which executes or implements them; and the Judiciary, which interprets them.

The Chief Justice of the Supreme Court as the head of the Judiciary is therefore the chief interpreter of all laws. He also has supervisory powers over all lower court judges and justices of appellate courts who are also called upon to interpret the laws of the land.

Common to the Supreme Court Justices and their subordinates is their oath and affirmation “to uphold and defend the Constitution and to obey the laws, legal orders and decrees…”, among others.

He reached his current position as a credentialed public official,
But his appointment as Chief Justice was and still is considered by many as “midnight” and therefore irregular.

Among others, he has been accused and actually impeached by the House of Representatives, of Culpable Violation of the Constitution and of Betrayal of Public Trust.

The Senate, which has the sole and exclusive power to try and decide impeachment cases, has been patiently hearing for 42 days both Prosecution and Defense lawyers as they presented their sides.

My view is that the Prosecution succeeded in proving a Prima Facie Case at least on Article 2 of the Articles of Impeachment, which is Culpable Violation of the Constitution and Betrayal of Public Trust. Former Chief Justice Art Panganiban and many others are of the same opinion.

The Defense in calling Ombudsman Carpio Morales as its witness, made a colossal mistake because contrary to their lawyers’ expectations, she testified on the Anti-Money Laundering Council Report indicating that CJ Corona has $12-M in his dollar accounts and P282-M in his peso account. She further testified on the 82 “covered” (P500,000 or more) and “suspicious” (less than P500,000 but suspicious) transactions.

Calling on CJ Corona as a witness for his own defense was not helpful either. In fact, he made it worse. Not only did he fail to disprove the existence of $12-M deposits by presenting bank documents, he actually admitted the following:

  1. That he has at least $2.4-M in his bank accounts;
  2. That he has about P80-M in his bank accounts;
  3. That he did not declare them in his SALNs; and
  4. That there are inaccuracies and discrepancies in his SALNs.

His reason for not declaring his $2.4-M dollar deposits is that according to R.A. 6426 (Foreign Currency Deposit Secrecy Act), they are “absolutely confidential” and must not therefore be declared. He further claims that there seems to be a conflict between the SALN law and the FCDS law.

His reason for not declaring his P80-M deposits is that they were not his because they were supposedly commingled with funds owned by others.

He also says that the inaccuracies and discrepancies in his SALNs were mistakes committed in good faith by virtue of his not being an accountant and could only be considered “perjury”, which is not an impeachable offense.

It is my opinion that the interpretation of CJ Corona is faulty on several counts:
1.    The law is clear and unequivocal.  He, as a public impeachable official, must “submit under oath an accurate declaration of his assets, liabilities, and networth.” There is no other alternative but to apply the law.
 2. When the law speaks in clear and categorical language there is no occasion for interpretation.
3.    Where a requirement is made in explicit and unambiguous terms, no discretion is left to the judiciary. It must see to it that the mandate is obeyed. There is nothing ambiguous about “assets”.  Section 8 of R.A. 6713 enumerates them and it specifically includes “investments, cash on hand or in banks, stocks, bonds and the like.” CJ Corona’s dollar deposits should have been declared.
 4. When the law does not distinguish, courts should not distinguish. CJ Corona should not distinguish either. When the law says declare all ASSETS, it includes all bank deposits. It does not distinguish between peso and foreign currency deposits.
5.    When the law does not make exceptions, CJ Corona should not make exceptions. If the framers of the Constitution, which was adopted in 1987 wanted foreign currency deposits to be excluded in the declaration, they would have specifically stated it.
6. It is time-honored that the Constitution is the Supreme Law of the land. It is the law of all laws. If there is a conflict between a statute and the Constitution, the statute shall yield to the Constitution.
7.    The SALN mandate is in the Constitution to promote transparency and accountability. It is there in order to minimize, if not totally eradicate, graft and corruption. Declaration under oath means openness, no concealment, NO SECRETS. In construing this provision in the Constitution, we should bear in mind the object (transparency) sought to be accomplished by its adoption, and the evils (graft & corruption) sought to be prevented or remedied.
8. Cj Corona should have known that the fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. SECRECY is the opposite of TRANSPARENCY. Providing an escape route for public officials to hide ill-gotten wealth such as what CJ Corona did is diametrically opposed to the intent and spirit of the SALN law.

CJ Corona argues that he did not declare his dollar deposits because they were “absolutely confidential” as provided for under Republic Act 6426. 

Not really. First, the banks are mandated to reveal “covered” (P500K +) and “suspicious” (less than P500K) transactions under the Anti-Money Laundering Law. Second, the depositor can waive the confidentiality, it being his right. Third, he can declare his deposits, it being his duty such as including them as income in his tax returns as the case may be. Fourth, it can be garnished to satisfy the depositor’s judgment obligations to prevent injustice and for equitable grounds as decided in (Salvacion vs. Central Bank of the Philippines, G.R. 94723, August 21, 1997) by the Supreme Court led by Justices who eventually became Chief Justices namely Narvasa, Davide, Puno and Panganiban. Last and most importantly, he must have declared them in his SALN.

Cj Corona also says that the P80-M deposits under his name were not declared because the funds are commingled with other funds owned by others. Under bank rules, there is a presumption that the deposit account is owned by the person named in the account who correspondingly exercises ownership rights such as withdrawals, transfers, closure, signatory, etc.

CJ Corona should have declared these commingled peso deposits in his assets as cash in bank and declared as liabilities the funds belonging to others. Even banks declare in their financial statements their customers’ bank balances as liabilities.

We must remember though. Ombudsman claimed in her testimony that based on the AMLC report, CJ Corona has P282-M.

CJ Corona admits to having inaccuracies and discrepancies in his SALNs. For these, he said he could only be charged for committing perjury, which is not a high crime, hence- not impeachable. He also attributes his mistakes to not being an accountant.

Based on the evidence presented and my own analysis, CJ Corona willfully made false statements under oath in his SALNs 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, and 2010. He also claims to have earned substantial amounts of money since 1969. The problem is, he did not declare them as his assets in 2002 when he first joined the Supreme Court.

Winston Churchill, using more diplomatic language would say, “CJ Corona is guilty of a deliberate attempt to commit a terminological inexactitude.”

In a blunt and undiplomatic term, Ombudsman Carpio Morales said what Churchill really meant, “CJ Corona is a certified LIAR!”

The inaccuracies and discrepancies were not mere mistakes made by a non-accountant lawyer. They were committed expecting not to be discovered by virtue of the cover provided by the Supreme Court and the Foreign Currency Deposit Secrecy law.

CJ Corona knew what he was doing.  He took up Legal Accounting in Law school. He took up Management Accounting in his MBA. He learned reading and analyzing Financial Statements in his LL.M, in Development Bank of the Philippines and in SGV, worldwide known Auditing and Management Consulting firm.

Feigning good faith mistake is no defense. Besides R.A. 6713 is a special law where offenses under are considered Mala-Prohibita. This means, CJ should declare under oath ALL his ASSETS, LIABILITIES, and NET WORTH accurately. If he did not do so, he is GUILTY. Intent, good faith, malice are irrelevant.

CJ Corona violated his oath of office. He committed offenses against public interest by making false statements in a narration of facts such as the SALN. He failed to uphold and defend the Constitution. He is guilty of Betrayal of Public Trust.

Thursday, May 3, 2012

CORONA: The $10-Million Man

We are aware of the dollar bank accounts of Chief Justice Renato Corona.  Thanks to thesubpoena duces tecum issued by the Philippine Senate acting as an Impeachment Court (IC). By admission of bank executives, CJ Corona not only has several peso deposits but dollar accounts as well.

However, the IC failed to see the details of the foreign currency accounts because Corona’s associates in the Supreme Court issued a TRO (Temporary Restraining Order) to the former re opening of the secret dollar accounts.

The IC did not have to comply with the SC order but majority of the Senators opted to “respect” it giving due regard to the SC as a co-equal branch of the government. Whether these Senators realize it or not, by seeking to know the details of the relevant dollar accounts in the exercise of their constitutional powers, they admittedly implied that they have “abused their discretion amounting to lack or excess of jurisdiction.”

By “respecting” the TRO, the Senators have weakened their own institution not only presently but that of the future generation of Senators.

The Constitution empowered the Legislature to impeach, try and decide on erring impeachable officials that include the Chief Justice of the Supreme Court and the President of the Philippines. This specific and exclusive Constitutional impeachment power is unquestionably supreme. It serves as a check and balance to the other two departments. Not even the highest Chief Judicial Official or Chief Executive can question or intervene in the exercise of this power. To do it would be “disrespecting” the Legislature in the exercise of its proper jurisdiction.

Ironically, by allowing the TRO to prosper, the Senators actually “respected” the “disrespect” that SC showed the Senate as an independent and co-equal branch of the government. Fortunately, the order is temporary and could still be changed by the SC itself, or by a change of heart by the Senators in asserting the powers of Senate as an Impeachment Court by disregarding the order.

Will we ever see the dollar accounts of CJ Renato Corona?

In a media blitz earlier, he had indicated that he would voluntarily open his dollar deposits in due time. The implication is that he would do it during the trial when it resumes. In this case, the choice as to what accounts and its details would be shown remains his. Whatever he decides, it is still worthwhile knowing what he would do and what he would reveal. He also has to show that the revealed amounts were included in his SALNs (Statement of Assets, Liabilities, and Net Worth) or if not, why not?

It was recently revealed that Ombudsman Conchita Carpio-Morales had asked Corona to explain the $10-million worth of bank deposits allegedly owned by the latter. This is in response to complaints filed separately by former Akbayan Party List Representative Risa Hontiveros, Akbayan Representative Walden Bello, and Emmanuel Tiu Santos.

Corona responded by saying “I do not own $10-million...It’s part of black propaganda.” He also said that the order of the Ombudsman is as phony as the Land Registration Authority (LRA) list, U.S. property list, phony surveys. Of course, he asserted that the Ombudsman has no jurisdiction over the Chief Justice.

Based on the pattern of his defense presentation re the deposit of the sales proceeds of the Basa property and his claim that the deposits he withdrew and closed on impeachment day were not his, he would also probably claim that the dollar deposits were not his but were just entrusted to him by some relative or company owned by another relative or friend. $10-million is a large sum of money to accumulate over a short period with a SC Justice’s annual income.

On the property list, Corona and his defense lawyers earlier countered that the prosecutors submitted proofs of only 21 and not 45 real properties as published, hence, failing to prove their case.  Corona would probably show that part of the $10-million was not his. So using the same logic, since it was not $10-million but less, then the prosecutors (if they use the findings of the Ombudsman) also failed to prove their case. Humans including lawyers understandably err and differ on how they infer!

Does the Ombudsman have jurisdiction over Chief Justice Corona?

The investigatory powers of the Ombudsman as provided by both the Constitution (Sec. 13(1), Article XI, 1987 Constitution) and by Republic Act No. 6770 (Sec. 15(1) are quite clear with respect to all government officials, employees and/or offices or agencies.

Section 22 of R.A. No 6770 is even more specific. “The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed byofficials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.”

How about the Ombudsman’s power to access bank accounts and records?

Section 8 of R.A. No. 6770 also states that the Ombudsman has the power to “Administer oaths, issue subpoena and subpoena duces tecum and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records.”

How about the dollar bank accounts that are covered by the Foreign Currency Bank Secrecy Law?

The law allows access to the foreign currency accounts only with the consent of the depositor. 

At the back of form of the SALN is a paragraph on top of a filer’s signature, which reads,

            “I hereby authorize the Ombudsman or his duly appointed representative to obtain and secure from all appropriate government agencies, including the Bureau of Internal Revenue, such documents that may show my assets, liabilities, net worth, business interests and financial connections, to include those of my spouse and unmarried children below 18 years of age living with me in my household covering past years to include the year I first assumed office in the government.”


_____________________________                                 _______________________________
Signature of Spouse                                     Signature of Employee

The SALNs signed by CJ Corona were declarations of his true and accurate assets, liabilities and net worth. They also included the above-mentioned waiver to verify his declarations including his dollar bank accounts.

The Ombudsman is also empowered to “Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents”  

For this, Ombudsman could actually request the Anti-Money Laundering Council (AMLC), which under the law is empowered under R.A. 9160- Anti-Money Laundering Act, to “inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution” of public officials.

There is no law prohibiting the Ombudsman from sharing whatever documents or records including foreign currency bank accounts with the prosecutors in the impeachment trial, if warranted.

Be it voluntary on the part of CJ Corona, by order of the Impeachment Court in asserting its powers, and/or by the Ombudsman’s cooperation with the prosecutors, the public should be able to witness the uncovering of the secrets of a $10-million man.