The prosecution's mistake

This week, from a legal point of view, the impeachment trial has come to a crucial moment. In Thursday’s session (February 2) of the impeachment court, some senator-judges raised the question of whether a mis- or non-declaration of assets by Chief Justice Renato Corona in his Statement of Assets and Liabilities and Net Worth (SALN) -- by mistake or negligence, or even if willful -- rises up to the level of an impeachable offense.

With the assistance of UP Law student Danielle Mae Navarro, a member of the all-student research team that supports me in my legal work on impeachment issues, I wrote and now share these reflections.

The 1987 Constitution declares in Article XI, Section 17 that “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 (Emphasis supplied)” and this mandate can be considered as being implemented by RA 6713 “Code of Conduct and Ethical Standards for Public Officials and Employees” and RA 3019 “Anti-Graft and Corrupt Practices Act.

Under RA 6713, all public officials shall file under oath their SALNs and those of their spouses and unmarried children under 18 years of age. Moreover, RA 3019 explicitly requires that “every public officer… shall prepare and file… a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and expenses and the amount of income taxes paid for the next preceding calendar year.”

Thus, these laws contemplate both the public officer’s physical act of filing his and his family’s statement of assets, liabilities and net worth and his filing of a true, genuine and accurate SALN.

The prosecution does not necessarily need prove ill-gotten or hidden wealth to convict the Chief Justice under Article 2 of the impeachment articles. In fact, as I have argued elsewhere, it is a mistake for the prosecution to proceed with such a theory of law which tends to criminalize the impeachment proceedings, raising the bar of the applicable rules of evidence and the standard of proof required for conviction.

In my view, this is a flawed strategy that must be quickly abandoned. Indeed, this criminalization of impeachment approach, a product of the prosecution, has now led many senator-judges to assert that impeachable offenses must rise up to the level of high crimes.

Untruthful SALN

As above mentioned, RA 6713, RA 3019 and the Constitution itself require that the disclosures in the SALN be made under oath and RA 3019 further emphasized that “a true detailed and sworn statement of assets and liabilities be filed.” The prosecution then need only prove that CJ Corona, in fact, failed to file a true, genuine and accurate SALN in manifest violation of the special laws and the Constitution.

Furthermore, intent or malice on the part of CJ Corona in relation to filing of a true, genuine and accurate SALN need not even be proved since RA 6713 and RA 3019 being special laws punish offenses which are malum prohibitum and not malum in se meaning, that the actual action done, and not the intent behind it, is considered.  

Moreover, as held by the Supreme Court in the case of Magarang v. Judge Galdino B. Jardin Sr, “while every public office in the government is a public trust, no position exacts a greater demand on moral righteousness and uprightness of an individual than a seat in the judiciary. Hence, judges are strictly mandated to abide by the law, the Code of Judicial Conduct and other existing administrative policies in order to maintain the faith of the people in the administration of justice.”

What the Constitutional Commission says

In the case of CJ Corona, being the Chief Justice of the Supreme Court demands not only that he be of utmost moral righteousness and uprightness, but also that he abide strictly by the mandate of the Constitution and other laws as the role model of those in the entire judicial department tasked to dispense justice to the people.

Article II of the Articles of Impeachment provides that CJ Corona “committed culpable violation of the Constitution and/or betrayal of public trust.” Textual analysis and the historical record (the discussions of the 1986 Constitutional Commission or ConCom) show that both “culpable violation” and “betrayal of public trust” are distinct from treason, graft and corruption and other high crimes.

The former, according to the ConCom, “means willful and intentional violation of the Constitution and not violation committed unintentionally or involuntarily or in good faith or thru an honest mistake of judgment” and that it “implies deliberate intent, perhaps even a certain degree of perversity for it is not easy to imagine that individuals in the category of theses officials would go so far as to defy knowingly what the Constitution commands.”

Likewise, based on ConCom records, “betrayal of public trust” was intended to be a catchall phrase and that it referred to the violation by an official of his oath of office. It also includes acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office, such as inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute.

While not necessarily rising to the level of high crimes, I do agree that such culpable violation and betrayal of public trust, of course, must be serious and not trivial or insignificant. Depending on severity of the culpability and betrayal, the Senate can actually choose to acquit or to convict, and if it opts for conviction, can decide the range of penalties from censure to removal.

The prosecution's mistake

In my view (knowing of course I am not a senator-judge), the mere fact of failing to file a true, genuine and accurate SALN by a chief justice is a serious matter. Such omission can be considered rendering him:

 

Just the same, it would, of course, be a better case for the prosecution if malice or intent on the part of the chief justice be proven in not filing a true, genuine and accurate SALN since this even makes it easier to prove that he committed culpable violation of the constitutional provision that says “public office is a public trust” and/or betrayed the public trust as already mentioned above.

Let me end by saying that, after 3 weeks of trial, the prosecution, to my mind, has not yet proven even a simple case of mis- or non-declaration of assets, having been distracted by what seems to be a futile effort to prove hidden or unexplained wealth. Moreover, I expect the defense, who has so far been disciplined, systematic and strategic in their approach, to come up with a robust defense when their time comes.

Indeed, there might have been times I made a mistake of making a judgment on the basis of the prosecution's evidence alone (for which I apologize to the defense and to the chief justice) because it feels, even at this stage, that the defense is in control of the proceedings, and they are already presenting their case.

For this reason, I think it is safe to say that, on Article 2 at least, the trial will go down the wire. We can only hope that the truth will out and national interest will prevail. - Rappler.com