Sen Santiago votes to follow TRO

Natashya Gutierrez
She says there is a need to avert a constitutional crisis and prioritize 'governmental stability'

MANILA, Philippines – Senator-judge Miriam Defensor Santiago wants her colleagues to obey a Temporary Restraining Order that has yet to be served on the impeachment court.

In an urgent letter to Senate Majority Leader Vicente Sotto III dated February 13, she cited 6 grounds explaining her vote, and why she believes “the impeachment court is not almighty, not absolute, not illimitable, and not more supreme than the Supreme Court.” These are:

  • the “last clear chance doctrine”
  • judicial power includes both justiciable questions and political questions
  • the impeachment court is not authorized to violate the law
  • the theory of checks and balances prohibits the impeachment court from claiming an exception for itself
  • disobedience to the TRO violates the defendant’s human rights
  • the Supreme Court ruled in at least 2 previous cases that it has the power of judicial review over impeachment cases

Avoiding a crisis

Santiago’s letter said the Senate, by obeying the TRO, currently has “the last clear chance to avoid a [constitutional] crisis.” Given the choice between “governmental stability” and crisis, the Senate should vote to obey the TRO.

Citing the Constitution, she also said “judicial power is vested in the Supreme Court.” This includes matters pertaining to justiciable and political questions — thus giving them authority to decide on the TRO. Justiciable questions are defined by the Court as “actual controversies involving rights which are legally demandable and enforceable,” while political questions refer to “grave abuse of discretion amounting to lack or excess of jurisdiction.”

Assuming, she said, that the power to issue subpoena on foreign currency deposits is discretionary with the impeachment court, it is still the High Court that has power over this political question.

License to violate the law

Likewise, Santiago said the impeachment court is not authorized to violate the law. She said the law on secrecy of foreign currency deposits is “absolute” unless the depositor gives his or her consent.

The senator-judge also said “the theory of checks and balances prohibits [the] impeachment court from claiming an exception for itself,” adding that if the court defied the Supreme Court’s TRO, it would “become almighty.” She emphasized that if the impeachment court were to heed the TRO, it would not mean that “one is superior over the other,” but merely means “that the Constitution is supreme over all branches agencies of the government.”

The Constitution specifies that “The Senate shall have the sole power to try and decide all cases of impeachment.” But, she pointed out, “sole power” here means only that “impeachment shall not be conducted by any other branch or agency,” while “to try and decide” means only that the Court “cannot try or decide the impeachment case.”

Human rights

The letter also stated that “disobedience to the TRO violates the defendant’s human rights.” Santiago said the separation of powers is borne out of the need to protect individual rights.

She ended her argument by referring to two previous cases, Francisco v. Nagmamalasakit and Gutierrez v House of Representatives, where she said the Supreme Court ruled that “it has power of judicial review over impeachment cases.”

Francisco involved the filing of the second impeachment complaint against former Chief Justice Hilario Davide Jr. In this case, the High Tribunal ruled that the Constitution did not leave the matter of impeachment to the sole discretion of Congress,” but instead provided for well-defined limits for “discerning the validity of the exercise of such discretion, through the power of judicial review.”

Gutierrez, on the other hand, referred to the impeachment of the Ombudsman by the House of Representatives. In that case, the High Court said it was well within its power to determine whether the Ombudsman violated the Constitution or gravely abused its discretion in the exercise of its functions and prerogatives.

The senator-judges will decide on what to do with the TRO issued by the Supreme Court in a caucus that started 11 am Monday, February 13.

Trial will continue

Meanwhile, Senator-judge Aquilino Pimentel III told reporters the impeachment trial will continue even if defense lawyers decide to walk out.

On Sunday night, the defense alleged Malacañang’s interference, saying it had offered P100-M to senator-judges to persuade them to defy the Supreme Court’s TRO.

They have urged the impeachment court to heed the High Court’s TRO on Corona’s foreign currency dollar accounts with the Philippine Savings Bank.

Falling into a trap

Senator-judge Franklin Drilon, for his part, said the impeachment court will not fall into the trap of stopping the trial should all defense lawyer be cited in contempt as a result of serious accusations in their press conference.

“We will not fall into that trap. Hindi ko alam kung ano ang magiging pasya ng IC, ngunit they will not succeed in diverting our sessions on the trial. Ito po ang utos ng taumbayan. Ito po ang utos ng ating Saligangbatas na tapusin ang paglilitis kay Chief justice. That diversionary tactic will not succeed,” Drilon said in an interview over dzMM. (I do not know how the impeachment court will decide…This is the mandate of the people. This is the mandate of the Constitution, to complete the trial of the Chief Justice.)

He also said senator-judges will follow what Senate President Juan Ponce-Enrile decides, considering that the defense lawyers insulted the entire impeachment court. Bound by a code of ethics, lawyers should respect judges. –

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