Defining moments

Theodore Te
Dishonesty may not be a high crime but dishonesty in his SALN may constitute a betrayal of the public trust

At the rate it’s going, it might boil down to definitions.

The past week saw the impeachment trial of the Chief Justice being occupied by the mundane task of defining terms, a task which could actually have been done outside the trial not only by the parties but by the senators themselves. 

When the senators asked the panels (defense and prosecution) to define terms such as “dissolution,” “revocation” and the like, it not only wastes valuable time and effort, it also indicates that the senators are not too sure themselves of what it is they are looking for.

At one point on Day 11 of the trial, the Presiding Officer and Senate President Enrile asked prosecutor Elpidio Barzaga if being untruthful in a SALN entry was a high crime and when he got the answer that it was not, Enrile then said that only high crimes were impeachable offenses.

Taking their cue from the Senate President, other Senators (Joker Arroyo and Francis Escudero notably, both asking about the “level” and “gravity” of the crimes alleged) asked questions along the same line, i.e., the offense not being a high crime.

That, for me, was a defining moment for both the prosecution and the Senator-Jurors.

Clearly, the commission of “other high crimes” is an impeachable offense under the Constitution and the Senate President was correct in pointing that out.

But, it was certainly an irrelevant comment as none of the grounds raised in the Articles of Impeachment alleged that the Chief Justice had committed “other high crimes.” The 8 grounds alleged revolved around only two of the grounds for impeachment: betrayal of the public trust and culpable violation of the Constitution.  

Unfortunately for Barzaga, he never pointed that out and it took a very belated riposte from prosecutor Niel Tupas to put on record what the entire Senate should have been very clear about from the very start—that the trial is not about the commission of “other high crimes” but about “betrayal of the public trust” and “culpable violation of the Constitution.”

To Tupas’s comment, the Senate President simply then said that the Senate will discuss what “betrayal of the public trust” means—again indicating that there is no fixed or clear understanding of what the term means to the Senator-Jurors 11 trial dates into this impeachment trial.

So, what exactly does “betrayal of the public trust” mean?

What the framers said

There is a rule that lawyers follow that if the law is clear, there is no need to interpret but if the law is unclear, one option is to go to the intent of those who wrote the law.  

Since “betrayal of the public trust” is found in the Constitution, which does not explain the term, and the Supreme Court has yet to categorically interpret the phrase, we need to look at what those who wrote the 1987 Constitution wanted the phrase to mean.

Looking at the records of the 1986 Constitutional Commission (ConCom), which drafted what would become the 1987 Constitution, it appears that they did not define the phrase either. Those who drafted the provision on impeachment thought it to be a “catch all phrase” that would include every act not punishable by law, regardless of whether the act was a crime or not, but which would “render the officer unfit to continue in office.  

How to determine this betrayal, according to the ConCom, would be easy enough: look to the oath of office because according to the ConCom, the violation of the oath would be a betrayal of that trust.

The ConCom also says that the concept includes “obstruction of justice inasmuch as in his oath office, the public official swears to do justice to every man such that anything he does which would obstruct justice could be construed as betrayal of that public trust.”

On whether a betrayal of the public trust needs to be a criminal offense and, if so, how many crimes need to be committed, Commissioner Ricardo Romulo’s submission was that “while there need not be a showing of the criminal character of the act, it must be of sufficient seriousness as to justify the belief that there was grave violation of the trust imposed on the official.” 

Distinguishing “other high crimes” from ordinary crimes or felonies, Commissioner Romulo pointed out that “high crimes refer to those offenses which, like treason and bribery, are indictable offenses and are of such enormous gravity that they strike at the very life of the orderly working of government.”

Thus, Senator-jurors Arroyo and Escudero were correct in asking if the acts amounted to such a gravity that they constituted “other high crimes.” Unfortunately, their questions were also irrelevant because the charges against the Chief Justice are not based on this ground and to frame their judgment on this would be unduly prejudicial to the prosecution panel.

The other ground invoked by the prosecution is “culpable violation of the Constitution” which, according to the ConCom means a “willful and intentional violation of the Constitution…(that) implies deliberate intent, perhaps, a certain degree of perversity for it is not easy to imagine that individuals in the category of these officials would go so far as to defy knowingly what the Constitution demands.”  

Even if a violation of the Constitution does not amount to a culpable violation, ConCom Member Commissioner Jose Nolledo’s position was that it may be serious enough to justify the impeachment proceedings, particularly when the public officer has violated his oath of office.

Nolledo explained that the phrase “betrayal of trust” was placed precisely to plug the loophole in the use of the word “culpable.”

Act of omission
Because “betrayal of the public trust” was intended and designed to be an all-inclusive “catch-all,” the ConCom’s position was that the term “betrayal of the public trust” includes the other grounds such as culpable violation of the Constitution, treachery, bribery, graft and corruption and other high crimes.  

Put another way, each of the grounds ultimately leads to a conclusion that the public trust was betrayed.

On the  other hand, even without acts constituting the other grounds, public trust may still be considered to have been betrayed by the public officer if she/he fails to live up to the oath she or he took.  

Additionally, public trust may still be betrayed if the public official fails to act justly, by act or omission.

Ultimately, it is the Senate which will determine what these terms mean to them, whether collectively or individually. The nature of the impeachment proceedings being so unique, distinct and peculiar, the Senate is free to determine, in each instance, what the phrases “betrayal of the public trust” and “culpable violation of the Constitution” mean.  

The meanings, intentions and submissions of the ConComm, however, should be a persuasive guide to the senators in discharging their constitutional duty to conduct the impeachment trial in as credible, comprehensive and clear a fashion as they can.

These phrases, however, do not and should not exist without context. Each understanding of these terms must be rooted in a specific context, that of the acts or omissions of the impeached officer being tried.

In the context of the Chief Justice currently standing trial, the phrase “betrayal of the public trust” and “culpable violation of the Constitution” must, therefore, be understood contextually. Considering the oath that he took as Chief Justice and the expectations reposed on him by the public by way of the public office he occupies, did these acts or omissions constitute a betrayal of that trust?  

Considering this burden that the prosecution needed to discharge, how then should the Senate President’s question have been answered, i.e., is being dishonest in the SALN a high crime?  

Perhaps, in this way: “No, dishonesty may not be a high crime but dishonesty in his SALN by a Chief Justice may constitute a betrayal of the public trust reposed on him under his oath of office.”  

That would put the burden squarely on the entity which should have defined the phrase in the first place: the Senate. –

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