Tuesday, February 14, 2012

Vote on SC TRO Draws the Line

PS Bank's petition for TRO on FCDU was granted by SC
Last February 9, 2012, the Supreme Court en banc decide to grant PS Bank's petition for temporary restraining order (TRO) on the public disclosure of Chief Justice Corona's dollar accounts with the bank.

The issuance of TRO triggered a debate among senator-judges on whether the Supreme Court can exercise its innate power to do judicial review on matters being discussed by the impeachment court.

The impeachment court decided to settle whether or not the TRO issued by the Supreme Court should be honored in a close-door caucus. The result of the voting is quite insightful as I think this is more or less how the final voting is going to be, with CJ Corona's acquittal.

As expected close Palace ally Franklin Drilon voted not to honor the TRO. The senator from Iloilo has consistently showed his political bias by ably helping and propping up the ragtag prosecution panel.

Kiko Pangilinan's vice-presidential ambition is well-known. He believes that his chances will be better if he will run under the administration ticket. This explains why he has religiously followed Noynoy Aquino.

TJ Guingona's nephew, Francis Javier is married to Noynoy's cousin, so I expected him to vote against the TRO.

The business interests of the Lopezes semmed to be seamlessly sewn with the political fortune of Noynoy Aquino. Serge Osmena, who is married to Bettina Lopez, voted to defy the Supreme Court TRO.

It is a well-known fact that it was Dante Tinga who really won as mayor of Taguig City. His victory was however, snatched by Lani Cayetano, wife of Allan Peter Cayetano. Tinga has filed an electoral protest and prayed that actual ballots be recounted manually. Should this happen, Cayetano will surely be ousted. I received information that Sen. Peter Cayetano sought Noynoy Aquino's intervention so that the such manual recount will not occur. In exchange for his vote, Aquino betrayed the Tingas who supported his presidential campaign.

Lito Lapid's wife entangled herself in a dollar-smuggling controversy in the United States. Malacanang recently stated that they will extend legal and other assistance to Mrs. Lapid. Now, you do the math.

Edong Angara, Ping Lacson and Pia Cayetano voted to defy the SC TRO but they will surprise us once they cast their final vote.

As for putschist-for-hire Antonio Trillanes, well, I don't think anyone should take him seriously.

Manong Johnny Enrile, Jinggoy Estrada, Greg Honasan and Tito Sotto all voted to respect the TRO. Please note that these four always vote as one.

Pro-Binay senators Chiz Escudero and Koko Pimentel voted to respect the TRO. There's talk that once Chief Justice Corona is replaced by Carpio, Roxas' electoral protest will be decided on his favor, thereby unseating VP Jojo Binay.

Joker Arroyo, Ralph Recto and Manny Villar, all members of the Tuesday group voted as one in favor of the SC TRO.

The feisty yet sensible Sen. Miriam Defensor-Santiago

Miriam Defensor-Santiago's manifestations never fails to excite and enthrall those who closely follow the impeachment. Her position on the SC TRO is by far the best. Below is Sen. Santiago's explanation of her vote:

Dear Senator Sotto:

This is to respectfully request you to relay the following message to our colleagues in caucus on Monday, February 13.

Thank you.

My Vote:

I vote to obey the Supreme Court TRO on the foreign currency deposits of the Chief Justice, on the following grounds. These six grounds are based on the ideology that the impeachment court is not almighty, not absolute, not illimitable, and not more supreme than the Supreme Court.

First Ground:

Last Clear Chance Doctrine Obedience to the TRO preserves governmental stability, while disobedience precipitates a constitutional crisis. If we have a choice between stability and crisis, the wiser choice is always national stability.

This solution is analogous to the legal doctrine of "last clear chance" in the law of torts. A tort, as distinguished from a crime, means a civil wrong, for which the remedy is damages. Under this doctrine, the most common example is an automobile collision. If plaintiff was negligent, nonetheless he will win over the defendant, if the defendant had the last opportunity to prevent the harm, but failed to use reasonable care to do so.

In the present impeachment case, it is the Senate which has the last clear chance to avoid a crisis, by obeying the TRO.

Second Ground:

Judicial Power Includes both Justiciable Questions and Political Questions

Under the Constitution, the judicial power is vested in the Supreme Court. This judicial power has two components:

1. Justiciable questions, which the Court defines as "actual controversies involving rights which are legally demandable and enforceable;" and

2. Political questions, which the Constitution defines as "grave abuse of discretion amounting to lack or excess of jurisdiction."

Thus, the "political question doctrine" no longer applies under the 1987 Constitution. Under this discarded doctrine, a court should refuse to decide an issue involving the exercise of discretionary power by the executive or legislative branch of government. Assuming that the power to issue subpoena concerning foreign currency deposits is discretionary with the impeachment court, still the Supreme Court has power over this political question.

Because the US Court has no provision similar to ours, American cases on impeachment and the political question doctrine do not apply in this country

Third Ground:

This Impeachment Court is not Authorized to Violate the Law

The law on secrecy of foreign currency deposits describes this secrecy to be "absolute," except ONLY AND ONLY WHEN the depositor consents. Congress made this law. The lawmakers should not be the lawbreakers. Instead, the lawmakers should, if necessary, amend the law.

Fourth Ground:

The Theory of Checks and Balances Prohibits this Impeachment Court from Claiming an Exception for Itself

Under the theory of checks and balances, each branch of government has the ability to counter the actions of any other branch, so that no single branch can control the entire government. The Constitution allows one branch to check the excesses or choices of another branch. Do we mean to say that this impeachment court is free of any check or balance? Then it becomes almighty! Under the Constitution, this impeachment court has no authority to study its own navel.

When the impeachment court obeys the Supreme Court TRO, this does not mean that one is superior over the other. It merely means that the Constitution is supreme over all branches and agencies of the government.

The Constitution provides that: "The Senate shall have the sole power to try and decide all cases of impeachment." The phrase "sole power" means only that impeachment shall not be conducted by any other branch or agency. The phrase "to try and decide" means only that the Supreme Court cannot try or decide the impeachment case.

Some people seem to be confused that judicial review of impeachment procedures is equivalent to judicial determination of the outcome. But this does not mean that the Supreme Court has the power of judicial review over all constitutional questions. It only means that the SC cannot exercise full judicial review, but it retains the power of the most minimal judicial review. This is a result of the theory of checks and balances.

Fifth Ground:

Disobedience to the TRO Violates the Defendant's Human Rights

Separation of powers was conceived to protect individual rights. Judicial review is an integral part of separation of powers. Accordingly, minimum judicial review of the exercise of the impeachment power is observed, in order to ensure that no individual right is being violated. It has been said that the individual right at risk in an impeachment trial is a federal judge's potential loss of position, including the independence he or she is guaranteed.

Sixth Ground:

In at Least Two Previous Cases, The Supreme Court Ruled That It Has Power of Judicial Review Over Impeachment Cases.

The two cases are: Francisco v. Nagmamalasakit, 415 SCRA 44 (2003) and Gutierrez v. House of Representatives, 643 SCRA 198 (2011).

Francisco involved the filing of the second impeachment complaint against Chief Justice Hilario Davide, Jr. The Supreme Court ruled: "The Constitution did not leave the matter of impeachment to the sole discretion of Congress - it provided for certain well-defined limits or "judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review."

Gutierrez concerned the impeachment of the Ombudsman by the House of Representatives. The Supreme Court ruled: "The Court finds it well within its power to determine whether public respondent committed a violation of the Constitution or gravely abused its discretion in the exercise of the functions and prerogatives that could translate as lack or excess of jurisdiction, which would force corrective measures from the Court."

Sincerely yours,


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