27 February 2012

Miss CLARE MARIA FRANCESCA CAGURANGAN y DE ALBAN

My dear Clare : Re: IMPEACHABLE IMPEACHMENT We write to you who, being the youngest at 4 months old, are the least likely to overtake us in wisdom and, therefore, the most in need of guidance. By the time you become literate we shall have passed the thresholds of our twin missions : one, to delay our death ; two, to use that blessed delay to process our life in faithful imitation of Christ. Dear Maria, your Nurse-mother, our daughter, will tell you that her paternal grandfather, her father and his siblings (her five tios and two tias) were/are all full-fledged lawyers and that one of her said tias is qualified to take the Bar Exams and is running a school for the poor and the underprivilegrd. Dear Francesca, your mother and College -Instructor father will tell you that among your close kin are School Teachers; Deans; School Administrators; Civil, Electrical, Electronics, Aeronautical and Nautical Engineers; College Professors; Physicians; Nurses; Farmers; Labour Leaders; Working Housewives; Priests; Nuns; Dentists; Architects; Bank Clerks; Judges; Government Officers; Priest -Monk Abbot. Among your other relatives are much of the same, plus other Lawyers. Commerce, Law, Theology, Philosophy, Sociology, Graduate and College students amongst your kin . It has now become our duty to answer your future doubts: So what had they done in such troubled times of

challenge to their professional and occupational disciplines? And so, this paper. It is a historical fact that on 16 July 1935 the Holy Pope(Pope Pius XI), as the Supreme Head of predominantly-Catholic Philippines, proclaimed the Lady of Guadalupe as the Patroness of this Christian nation ( on 12 September 1942, Pope Pius XII proclaimed the Lady of the Immaculate Conception as the Primary Universal Marian Patroness of the Philippines) . As we are wont to do we write this paper with a prior prayer through the Blessed Virgin : Lord, please speak through us. It has been said that The voice of the people is the voice of GOD. The Philippine Constitution is a recording of the voice of the ratifying Filipino people. The Constitution, the Filipino concerned, must therefore be the voice of GOD. It is also a fact that impeachment-trial witnesses take an oath to uphold the truth, praying : SO HELP ME GOD. The PREAMBLE of the Philippine Constitution, xx Imploring the aid of Almighty God xxx commits this country to faithful observance of the Rule of Law as a policy of governance. RULE OF LAW Thousands have gathered to rally support and respect for this Rule of Law. Thousands have gathered to rally support for the timeliness and fairness of their monetary/title claims with their employers and landlords. It is primarily for the first-described thousands that we (together with our families, friends, relatives and those within our

demonstrable sphere of professional and occupational influences) offer this representation of a common sentiment : Ours is a government of laws NOT of government officials! We believe that the Constitution is a legal document and that its provisions ,including that on Impeachment, should therefore be discussed on legal grounds. It is respectfully submitted that IMPEACHMENT , as a constitutionally-set disciplinary measure, is a political issue but ONLY because it is initiated by POLITICANS. The impeachment trial is conducted also by politicians but politicians who are automatically vested with the additional role of judges of a very special court and not merely as participants in a political/partisan conference. During trial they are viewed as, perforce, conducting themselves with the cold-neutrality of judicial magistrates without, however, shedding off their collective political wisdom as the supreme-setter of national policies that should, nevertheless, be in accordance with the Constitution. There is no Constitutional or statutory provision that authorizes the suspension of the Bill of Rights , especially its DUE PROCESS intendments, upon the institution of impeachment proceedings, political as they may seem. We feel called upon to register our anger at our nagging helplessness watching, aloof, the seeming validation of not only fishing expedition but dynamite fishing! We would have opted to address, officially, this paper to the Honourable Supreme Court but we are, presently, without sufficient wherewithal and sustaining boldness ( given medical requirements) to neutralize the seeming vindictive impulses of those in power. Instead of focusing adversarial attention to our

selves, we invite concentration on theories, as written in cadence with the drums of our conscience. This paper wishes for the eventual declaration of the nullity of the on-going impeachment proceedings and immediate stoppage of the same on grounds of abuse of discretion amounting to lack, or in excess, of jurisdiction resulting in damage not only to the Respondent Chief Justice, and the majesty of the law symbolized by his office, but to the entire Government, The Filipino People and, in effect, to the State. We would like the Chief Justice to somehow know that we wish for the reader to realize that we mention him in this personal letter only as a recognizable, admirable fellowman yet a personal stranger. And may it be so known. Admirable, dear Maria, because thrice upon a time he reminded us of your Lolo Isaac who was fond of confronting us with a quote: If a man offends you in public with his rudeness , punish him with the obvious superiority of your conduct! We read somewhere that a true gentleman is: one who never deliberately causes pain and one who fulfils his obligation in favour of another who is not in a position to demand fulfilment of that obligation. It has always been our daily ambition to be gentlemanly. We wish to be a gentleman of the Filipino -for the enlightenment of our countrymen. STATEMENT AND OFFER OF PERTINENT ASSUMPTIONS

A. It is the intent of the Constitution to preserve and nurture the independence of the offices of impeachable officers by protecting the security of tenure of the incumbents.

B.

Security of Tenure is protected by making it difficult to remove the incumbent impeachable officers who may be ousted from office only on impeachment for, and CONVICTION of, culpable violation of the Constitution, treason, bribery and graft and corruption and OTHER HIGH CRIMES or betrayal of public trust. (Emphasis ours)

C.

Being in the nature of crimes or offenses for any of which the impeached officer may be convicted, such impeachment grounds must be strictly construed as having distinct elements that set them apart from one another.

D.

It is the clear intent of the Constitution to give extraordinary protection to Supreme Court Justices consistent with the extraordinary nature of their function and mission as supreme implementer of the Rule of Law and also consistent with the assurance of their fealty assumable from their entry-credentials of moral and academic excellence ; as in fact it is a measure of this assurance that while a Justice may automatically qualify to be President or President of the Senate the latter two may not necessarily qualify to become a Judge, much less a Justice.

E. It is the intent of the Constitution to protect and nurture the separation, and balance, of power among the three (3) great

Departments by maintaining their independence from each other

STATEMENT OF THE PREDICATE GROUNDS CONSTITUTING GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK, OR IN EXCESS, OF JURISDICTION

A.

THE SENATE IMPEACHMENT COURT IS CONDUCTING TRIAL UNDER THE AUTHORITY OF RULES ISSUED NOT IN COMPLIANCE WITH THE REQUIREMENTS OF THE CONSTITUTION.

B. THE SENATE IMPEACHMENT COURT IS CONDUCTING TRIAL ON AN IMPEACHMENT GROUND (BETRAYAL OF PUBLIC TRUST) NOT APPLICABLE TO THE RESPONDENT CHIEF JUSTICE.

C.

THE IMPEACHMENT TRIAL ABETS COLLUSION BETWEEN THE EXECUTIVE DEPARTMENT AND THE HOUSE OF REPRESENTATIVES IN THEIR VIOLATION OF THE PRINCIPLE OF SEPARATION-OF-POWERS AMONG THE THREE GREAT DEPARTMENTS OF GOVERNMENT.

DISCUSSIONS/ARGUMENTS Re: Ground A The senate impeachment court is conducting trial under the authority and guidance of rules issued not in compliance with the requirements of the Constitution: Section 3, Article XI of the Philippine Constitution Provides: xxx (8) The congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. It is true that the Senate issued Resolution No 890 for it to embody Senate rules of impeachment. It is also true that the House of Representatives issued its own impeachment rules. Still, Article VI of the said Constitution provides: Section I. the legislative power shall be vested in the Congress of the Philippines which shall consist of a senate and a house of representatives xx. It seems clear that when the Constitution uses the words the congress shall promulgate its rules xx (underscoring ours) the Constitution refers to congress as a whole and not to its separate or individual components especially because of the word its which does not refer to either of the houses only. It is humbly submitted that the separate resolutions of both houses of Congress are not the its rules Congress itself should promulgate - the Senate is only one of two components of Congress, the House of Representatives being the other half. The separate acts of these distinct components are not the act of Congress, one of the three Great Departments. This disparity is

clear from the fact that the two resolutions do not contain on their faces an intent to seek mutual concurrences. It is humbly submitted that a mere joint- resolution of concurrence by both houses, covering their respective resolutions, indicates post-fact adoptions that could only mean accommodative assent to separate and, therefore, exclusionary deliberations that do not reflect a truly unified sense of Congress rule-making as one. For instance as presently worded the resolutions seem to make it a mere ministerial duty on the part of the Senate to accept for trial any impeachment complaint from the Lower House whether or not such complaint has substantial infirmities. A strict interpretation of the constitutional provisions on impeachment is in order since the Respondent is entitled to a strict interpretation in his favour, impeachment trial being closely akin to substantive criminal law and criminal proceedings, given the following:
-

The clear intent of the Constitution to make removal of a justice difficult in order to preserve security of tenure. For its guaranty if independence.

Use by the Constitution of the words impeachment for and CONVICTION of, xxx (emphasis ours).

Use by the Constitution of specific crimes and other high crimes in four (4) of the six (6) grounds for impeachment.

There seems to be agreement on the opinion that an impeachment trial is not clearly criminal, civil or administrative; sui generis, they say. If so, dear Francesca, then with more reason that Congress should have resolved for its rules to have a distinctive impeachment character with distinct procedural and evidential requirements and parameters.

Whether or not the Senate rules guarantee effective implementation of the Constitutional provisions on impeachment suggests need for judicial clarification since such rules do not provide answers to/on issues relating to probable cause, essential elements of the impeachable offenses and quantum of evidence sufficient to support conviction. Such inherent inadequacies impact negatively on any respondents right to due process. What seem so glaringly unfair are: the proscription against objection, by the defence, to the active interrogation of senator-judges no matter how biasedly monopolizing or monopolizingly-bias such questionings may be; the indiscriminate offer of proof for undetermined elements of any impeachment ground (and therefore the whimsical appreciation of the existence of such elements). Re: Ground B The Senate Impeachment Court is conducting trial on an Impeachment Ground (Betrayal of Public Trust) not applicable to the Respondent Chief Justice.

It is respectfully submitted that for any of the grounds for impeachment to be applicable to any impeachable officer such ground should have a distinct, independent, legal existence determined by the presence of unique elements that set such grounds apart from one another. It seems the theory of the impeachment prosecutors that the honourable Chief Justice committed Betrayal of Public Trust, supposedly implied from the constitutional /statutory provisions that Public Office is a Public Trust, when he supposedly made inaccurate entries in his Statements of Assets Liabilities And Networth (SALN). It should be noted well that the Respondent Chief Justice became an impeachable officer not by direct action of the people but by recommendation of the Judicial and Bar Council and the adoption by the President of such recommendation with the appointment of respondent as Chief Justice We submit that it is only to elected impeachable officers, the President and vice-President, that the ground betrayal of public trust applies because it is only to them that a unique element (EXPRESS TRUST) may be appreciable and it is only on/to them that the public (the electorate) reposes/gives, by voting, their trust directly, openly and publicly. If EXPRESS TRUST is considered in relation to the Chief Justice we would be assuming as valid an unreasonable theory -that at the time the public voted for the appointing power (the President) the voters knew who the President would appoint as Chief Justice. Speculation as regards the Members of the Judicial and Bar Council would fetch a worse assumption.

The table hereunder shows that if applied to appointed impeachable officers the ground of betrayal of public trust would have no appreciable unique essential elements and ,therefore, may not be a distinct ground since it has no distinct element that sets it apart from the other four (4) grounds: Grounds for Impeachment i. Culpable Violation of the constitution Common Essential Element i. Implied Trust (Public office is a public Trust) Unique Essential Elements i. Elements/acts constituting violations of provisions of the Constitution committed in the performance of duties under the Constitution i. Elements of Treason under the Revised Penal Code, as amended(RP C)) iii. Elements of Bribery under the RPC, as amended. iv. Elements of acts of Graft and Corruption under RA 3019. v. Elements of crimes under the RPC, as amended

ii.

Treason

ii. same-

ii. Bribery

iii. Same-

iv. Graft and Corruption

v. same-

v. Other High Crimes

v.-same-

and Special Penal Laws as grave as Treason, Bribery and Graft and Corruption.

vi. Betrayal of Public Trust

vi.-same-

vi. Express trust (present only as regards elective impeachable officers)

It is a further demonstration of the soundness of this argument (that betrayal of public trust does not apply to the respondent Chief Justice) that even if the respondent admitted having falsified his SALNs his exposure would only be for liability for the crime of PERJURY which is not a ground for impeachment even if violation of implied trust is automatically appreciated as an element of PERJURY. To assert that the Chief Justice, an appointed impeachable officer, may be charged for Betrayal of Public Trust on the basis of violation of implied trust, and therefore of its implied betrayal is to assume that he may be charged for such ground on the basis of any and all predicate crime/crimes (Malicious Mischief, Unjust vexation, Aiding Suicide, Less Serious Physical Injuries, Traffic Violations, Alarms and Scandal, etc). Absurdly, it is humbly submitted, in derogation of the protective intent of the Constitution. It is respectively submitted that IMPLIED BETRAYAL OF IMPLIED PUBLIC TRUST could not have been intended by the Constitution to have parity of evil with the adjectival other HIGH crimes, especially as regards a Justice of the Supreme Court.

In other words if Betrayal of Public Trust is used as an impeachment ground without any unique element other than implied trust than the other impeachment grounds ( treason, bribery, etc) are totally useless as a total superfluity. The Constitution, the most sacred law of the land , was certainly not meant to be a receptacle of verbal wastage and sanctimonious absurdity. Still, even if we assume ad arguendo only, that IMPLIED TRUST alone is a sufficient unique ground then such uniqueness should refer to the CJs duties peculiar to his office. But could the public be said to have knowledge of what they entrust to the CJ when it seems clear that the average Filipino has absolutely very little or no knowledge of the CJs duties? How can the ordinary Filipino be betrayed by somebody whose official existence and whose duties are hardly known to the former. It seems logical to assume that for betrayal to assume the level of evil of a high crime the same must be one that is consciously and commonly perceived by the public in relation to a trust the nature of which is known to the public as peculiarly - pertaining to the impeachable officers office. The publics ignorance or lack of consciousness of respondents supposed betrayal is demonstrated by the fact that prior to the impeachment complaint that was filed by the Lower House (and not by the people) there was no public outcry or noises of discontent by the people against respondents supposed BETRAYAL. What is clear is that marchers who feel betrayed are party-litigants in a civil case. The Prosecutors may invoke their representation of the people but the former are voted into office for the purpose of legislation not for prosecution, and this assumed dysfunction is shown especially so in this case where the complaint was not initiated by public clamour, nor by a private person under oath, but by the Prosecutors themselves who, in fact, are still gathering evidence

hoping to utilize the Senate as a watercraft for their fishing expedition! What is happening is that the Prosecutors are trying to use the Senate court to gather evidence to yet convince the people that they were betrayed in connection with a trust they hardly know of! This has the sequential logicality of putting the socks after the shoes.!! It seems ridiculously unfair to make much of the CJs supposedly-perjured SALNs when the preparation of the same is not a duty peculiar or unique to a Justice; the ordinary government personnel prepares and submits his SALN too, and such is a duty set by statute-based revisable regulatory Implementing Rules and Regulations not by the Constitution. Prosecutors reference to ill-gotten wealth, represented by supposed bank deposits not reported in respondents SALNs, has no relevance to Betrayal of Public Trust" simply because possession of unexplained, and therefore presumably ill-gotten, wealth is neither a crime nor a publicly-presumed offense. There is no law that requires any person to explain his possession of wealth, no matter how impressivelygreat it can be, unless he is brought to court in a forfeiture trial under RA 1379 which is properly initiated by the Office of the Solicitor General. The forfeiture, assuming it is finally ordered, is not predicated on the commission of a crime/ crimes as the source of wealth but on mere failure to explain legitimacy of the source of such wealth. A respondent, who happens to be an impeachable officer may, driven by personal reasons, refuse to explain yet, nevertheless, his waiver of possessory right, resulting from such refusal to shoulder the burden of explaining, cannot/ may not legally be a predicate ground for his impeachment, such failure to explain not being a crime or a scandalous offense(Please note that jurisprudence says that impeachable officers

may not be investigated for any crime during their incumbency). It should now be clear that for presumption of ill-gotten wealth to be a predicate for an impeachable ground (assuming, ad arguendo only, that betrayal of public trust is applicable in this case) such presumption should exist at the time of the Complaint which is legally impossible because such presumption may be ruled as existing only in forfeiture proceedings which were not, and may not at this stage be, conducted.

In fact the non-disclosure of bank deposits, dollar or peso, could be explained by accommodative bank-transactions where bank accounts are used by depositors (who really own the money deposits) other than the registered owner of such accounts. It then goes without saying that the account-owner may not disclose such funds as his own because in reality they are not.

Re Ground C Violation of the Principle of Separation of Powers. That the Executive Department and the House of Representatives are passionately working together for the ouster of the Chief Justice seems clear from the following: 1. In seeming total disregard of the ordinary Filipinos sensitivity to public display of official courtesy the President, delivering his Inaugural Address, totally ignored the presence of the Chief Justice of the Supreme Court. In effect the President sent a signal that his policy of governance guarantees less-than-awe and selective respect for the office of the Chief Justice (CJ). All televised.

2.

Speaking before high-ranked participants and guests in an official summit on law and justice, the President expressed his implied objections to the legitimacy of the CJs tenure and to alleged decisional inconsistencies of the Supreme Court. He referred to a midnight appointment as though it were not an issue already decided with finality by the Highest Court. All televised.

3. This impeachment case appears to have emerged not as the culmination of a long-developing, certainly not spontaneous, clamour of the people for truth and justice but rather as a studied show of party-support for the antecedent confrontational acts of the President.

4. The President publicly explained that the ouster of a Representative from the chairmanship of a House Committee was a party-decision. The ousted Representative happened to have refused to sign the impeachment complaint. Televised.

5.

The House of Representatives used as a basis for its impeachment complaint the TRO issued by the Supreme Court upholding Congressional Representative GMAs right to travel (guaranteed by the Philippine Constitution and Art.13 of the United Nations Universal Declaration of Human Rights); and the House did so at a time when the Supreme Court was confronted with the alleged contumacy of the Justice Secretarys conduct in defiance of the TRO and with

the Highest Courts duty to defend its independence. This created in the mind of this writer and others that there are endeavours to project advance explanations for future failures prominent of which is the looming probable failure to explain contempt of Court by the Executive Department. Pertinent events televised.

6.

A Malacaan spokesperson had risen to explain a personal real-estate wealth of the Lead Prosecutor who had verbally demonized the Respondent CJ whom the former then tried to exorcize with his opening speech, invoking the Almighty, even before the merest mote of evidence had been submitted against the respondent CJ; in total, flagrant disregard of the Constitution and its guaranty of presumption of innocence in favour of the CJ. There seems here to be no passion for truth; except an obsession for the removal of the CJ from office, with the House probably so confident of their trivialization of the CJ s rights to due process that, self-fortified by one-track enthusiasm, they assume that the event will happen despite the cavalier OJT (On-the-job -Training) efforts of the Prosecutors. Televised.

7.

Malacaan has used the Media to explain the shortcomings of the Prosecutors. In fact last 15 February newspapers reported that Malacaan asserted the authenticity of Prosecution-presented bank records supposedly testified to as illegally-disclosed and possibly bogus. And yet the issue was/is still being debated upon in the Impeachment Court!!!

8. The BIR Commissioner publicly announced her intention to conduct probe on the financial status of the CJ even in the pendency of the impeachment trial, thus impliedly/effectively warning all and assuring the Prosecutors that she intended to gather damaging evidence against the CJ. The Commissioner did not express her intent to investigate other impeachable officers -a seeming indifference to the equal-protection clause of the Constitution. The BIR is under the Executive Department. Televised

9.

And again the President, on February 16, using power-point presentation (Guilty As I See It), argued, before an audience of students and government officers, his conclusion that the respondent CJ deserved to be removed from office on the basis of evidence (supposed bank records showing deposits of amounts much larger than those reflected in the CJs SALNs) submitted in the impeachment trial , all even before such pieces of evidence were/are still to be declared admissible . kailangan pa bang tanungin kung impeachable offense itong ginawa niya? .Televised. And yet the issue is still being debated upon in the Impeachment Court.

10. And, recently, newspapers report the Presidents supposedly-declared sense that a ruled-out hearsay evidence from the Secretary of Justice should nevertheless be admitted as competent evidence. We may not appreciate the supposed righteousness of the much-invoked crusade against graft and corruption to justify such seeming lack of respect for the rule of law (violation of the principle of separation of powers by openly siding with the prosecutors; public declaration of guilty-verdict against the respondent despite the Constitutional presumption of the

respondents innocence ) especially because such crusade is not exclusive and certainly not upon the inducements of novelty, the same having been officialised as early as 17 August 1960 upon the approval of the Anti-Graft Law ( from a Bill reportedly authored by Mr DIOSDADO P. MACAPAGAL, former President of the Republic).

In the pulpits; in the columns of the press; in the classrooms: priests, pastors, mentors and pundits warn us that for an act to be truly good it should have two ingredients :(1)It is the right thing to do and (2) it is the right way to do it. A drive against corruption is the right thing to do. But are we doing it the right way. It has been asked : May we right a wrong by another wrong. My dear Maria, In the hierarchy of social evils, what can be more contagiously-corrupting, especially to the young, than a national leaders public display of seeming lack of respect for the Constitution and, therefore, of the rule of law. Lack of respect , it is humbly and respectfully submitted, is the common fundamental element of all crimes. We repeat : lack of respect is the common basic element of all crimes!

STATEMENT OF ADHERENCE TO THE RULE OF LAW

We believe that impeachment trials are not simply political; they may be political in their initiation but judicial in terms of their proper disposition. We may not be moved by the grandeur or pettiness of the posturing of any involved in this impeachment trial. We believe that no one is above the law. But there is something higher than that law -its judicious interpretation by the Constitutionally-authorized. We mark with favour a Senator who suggested that the respondent Chief Justice should be entitled to the presumption of innocence as well as to the presumption of honour. The irony is : did the reminder have to come from a soldier among honourable ,learned, leading women and men?! If we imagine that it was a reaching-out between former friends or foes, such was indeed a beautifullynagging paradox! It is in this context that we hereby offer our total reliance on the redeeming, exclusionary innate goodness of man. History will judge the Senators judgment not on the basis of any clever reliance on the convenient political wisdom of garnering more votes but on their capacity to set progressive national policies, for bettering times, and to enlighten the Filipino and protect him from himself. The Rule of Law must prevail ! SO HELP US GOD. Dear Francesca, We respectfully submit this, all for Almighty God Always!! Lovingly yours in imitation of Christ , Lolo bob Sampaloc, Metro Manila for Cagayan Valley