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Impeachment of the Chief Justice: A critique on the Sri Lankan and Philippine cases

Impeachment of the Chief
Justice: A critique on the
Sri Lankan and Philippine cases


Danilo Reyes, Editor, Article 2

In Asia, the struggle for constitutionalism and the rule of law became evident by the removal of two Chief Justices, Renato Corona of the Philippines on May 29, 2012 and Shirani Bandaranayake of Sri Lanka on January 13, 2013. Corona's case could be described categorically as an impeachment proceeding, while Bandaranayake's could not. Why was Corona's removal legal and constitutional while Bandaranayake's was not? Like Bandaranayake, the charges against Corona are grounded on allegations of corruption.

Of the eight allegations against Corona in the Articles of Impeachment, by a vote of 20-3, the Senate sitting as an impeachment court rendered a guilty verdict on May 29, 2012. This stems from article 2 for "culpable violation of the Constitution" due to a failure to "disclose to the public a statement of his assets, liabilities, and net worth" as required by law. Section 17, article XI of the 1987 Philippine Constitution requires:

Section 17. 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. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.

Here, the enactment of Republic Act No. 6713 or the "Code of Conduct and Ethical Standards for Public Officials and Employees has satisfied the "required by law" and "provided by law" provisions of the Constitution. This Act obligates public officials "to accomplish and submit declarations under oath, and the public has the right to know, their assets, liabilities, net worth and financial and business interests (section 8)." Corona's removal from office and his acceptance of the guilty verdict was seen as a victory for democratic constitutionalism. It went a long way in restoring the people's trust and confidence in the judiciary and cementing the Filipino people's democratic aspirations in their Constitution.

While Corona's ouster was a victory, Bandaranayake's impeachment and removal were a defeat. Bandaranayake's removal abolished constitutionalism and judicial independence. They had already been diminished in value by article 35 (1) of the 1978 Sri Lanka Constitution. This Constitution guaranteed absolute immunity for the President from prosecution for private or public actions, official or non-official. The impeachment cemented the absolute power of the Executive.

In Sri Lanka, article 107(2) and 107(3) on matters involving impeachment, as stipulated below, was applied to justify Bandaranayake's removal, mocking the notion of constitutionalism. For a detailed and authoritative discussion on this, please see the report of Sir Geoffrey Robertson on the impeachment of Sri Lanka's chief justice in this edition of Article 2.

Independence of the Judiciary

Appointment and removal of Judges of the Supreme Court and Court of Appeal

107 (2) Every such Judge shall hold office during good behavior, and shall not be removed except by an order of the President made after an address of Parliament supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior or incapacity:

(3) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of a such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such Judge to appear and to be heard in person or by representative.

In his report, Sir Robertson concluded that the impeachment of Bandaranayake had no constitutional or legal basis. Another Sri Lankan lawyer, Dr. Jayantha Guneratne, has also observed that the 1978 Constitution itself bears: "inherent and replete mutual contradictions that reduces itself to a democratically unworkable document." Thus, the 1978 Constitution could not have been considered a democratic Constitution, but one that perpetuates absolute power and dictatorship.

I highlight four points for comparison, which indicate why the Philippine impeachment restored public trust and confidence in the judiciary, while its Sri Lankan counterpart abolished it, instead cementing absolute power: first, the constitutional and legal basis of the impeachment; second, the procedural and substantive issues during the impeachment process; third, the interpretation of the Constitution and the application of judicial precedents; fourth, how public opinion and discourse developed as a result of the impeachment proceedings.

First, article XI, section 2 of the 1987 Philippine Constitution was the constitutional basis for Corona's impeachment and his subsequent removal:

ARTICLE XI

ACCOUNTABILITY OF PUBLIC OFFICERS

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

And, section 3, sub-sections 1 to 3 and 5 to 8 of article XI of the Constitution stipulates that the Chief Justice, as a member of the Supreme Court, "may be removed from office on impeachment" and provides the rules and procedures of how this should be done:

1. The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

2. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

3. A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

5. No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

6. The Senate shall have the sole power to try and decide all cases of impeachment...

7. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

8. The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

The 1987 Philippine Constitution and the 1978 Sri Lankan Constitution stipulate on a constitutional basis for the impeachment of a chief justice; however, they differ in the interpretation of the Constitution and in what procedures and rules should be used. In the Philippines, article XI, section 2, stipulates that only the Senate has "the sole power to try and decide all cases of impeachment" and the Congress to promulgate "rules on impeachment to effectively carry out the purpose of this section."

Acting on this constitutional requirement, the Senate passed Resolution No. 890 of 2000 on rules of procedure and practice to govern impeachment proceedings. It was passed in anticipation of the impeachment of former Philippine President Joseph Estrada, the first head of State to have been impeached in 2000. This Resolution laid down the procedural and substantives rules of the impeachment court in hearing Corona's case. In the Bandaranayake case no rules were laid out. This explains why the outcome of the Parliamentary Select Committee gave rise to questions on "the mode of proof, burden of proof, standard of proof," which did not arise in the Corona impeachment.

Thus, in the Corona impeachment there were no questions at all on the authority of the impeachment court and the legal basis of its rules and procedures, including question of proof and evidence. It was unlike the Bandaranayake case where the Parliamentary Select Committee (PSC) both had questions on the authority of its body and the procedures they were using. In comparison, though, Sri Lanka's Constitution also had proceedings for impeachment. The PSC that held Bandaranayake guilty however, had neither the authority to sit as an impeachment court, nor was its verdict credible. It had no rules and procedures as required by law.

It is clear that in the impeachment process, Bandaranayake was deprived of her right to a fair trial-first, by being convicted by the PSC which had no constitutional mandate to try her; second, by being deprived of making an adequate defense due to the lack of lawful rules and procedures.

Regarding the procedural and substantive issues during the impeachment, unlike Bandaranayake's case, before Corona's impeachment was heard by the Philippine Senate, the House of Representatives (the lower house), which has "the exclusive power to initiate all cases of impeachment" under the Constitution, had reviewed the articles of impeachment. This Committee at the lower house is obliged to review the complaint "in form and in substance" and has the authority to either reject or accept the Articles of Impeachment. Once it is accepted, "a vote of at least one-third of all the Members of the House is necessary to affirm a favorable resolution" before it can be elevated to the Senate which will then convene as an impeachment court.

In Bandaranayake's case, the Supreme Court (SC) held as "mandatory under 107(3) of the Constitution for the Parliament to provide by law matters relating to the forum." The implication of this decision is that the PSC as a body that had conducted the investigation on the allegations against Bandaranayake, and the guilty verdict it rendered, are lacking a constitutional and legal base. Moreover, the decision of the SC, which has the power to interpret the Constitution, was disregarded out-rightly when President Mahinda Rajapaksa ratified the impeachment motion.

Here, the creation of the PSC by the Speaker of the Parliament appears to be constitutionally justifiable by the 1978 Constitution. But, the PSC and its impeachment procedures were not created by law-as also required by the Constitution and as reaffirmed in the interpretation of the SC. Therefore, the authority of the PSC as "impeachment court" and a credible body to determine the guilt of Bandaranayake on allegations of misbehavior indicates serious flaws in Sri Lanka's constitutionalism and application of rule of law.

Unlike in Sri Lanka, in the Philippines, the Executive, Legislative and Judicial branches of government, during any impeachment trials, exercise 'self-restraint' by observing the limits of their power. The impeachment of Corona is not the first to have taken place in the Philippines. In the past, there were failed attempts to impeach the former Chief Justice of the SC. The most controversial impeachment trial in the country's history however, was that of former President Joseph Estrada. His impeachment did not come to a conclusion though, as it was interrupted and overturned by yet another people's revolution that ousted him from office.

When Corona was impeached, he also filed a petition questioning the validity of the impeachment in his own court. Before the Supreme Court rendered its decision on July 17, 2012, they were engaged in a 'dialogue' with the Senate, which responded to the SC's allegations of partiality in the impeachment proceedings. The extract of the SC's Resolution below demonstrates that each branch exercised limits to its power:

In the Comment Ad Cautelam Ex Superabundanti12 filed on behalf of the respondents, the Solicitor General argues that the instant petition raises matters purely political in character which may be decided or resolved only by the Senate and HOR, with the manifestation that the comment is being filed by the respondents "without submitting themselves to the jurisdiction of the Honorable Supreme Court and without conceding the constitutional and exclusive power of the House to initiate all cases of impeachment and of the Senate to try and decide all cases of impeachment [Corona v. Senate of the Philippines, 10 G.R. No. 200242, July 17, 2012, p. 10].

In response to the comments of the Senate, the SC resolved to reaffirm the constitutional provision that the Senate, when they were sitting as an impeachment court, has the "sole power to try and decide all cases of impeachment":

Given their concededly political character, the precise role of the judiciary in impeachment cases is a matter of utmost importance to ensure the effective functioning of the separate branches while preserving the structure of checks and balance in our government. Moreover, in this jurisdiction, the acts of any branch or instrumentality of the government, including those traditionally entrusted to the political departments, are proper subjects of judicial review if tainted with grave abuse or arbitrariness.

Impeachment refers to the power of Congress to remove a public official for serious crimes or misconduct as provided in the Constitution. A mechanism designed to check abuse of power, impeachment has its roots in Athens and was adopted in the United States (US) through the influence of English common law on the Framers of the US Constitution.

In the case of Bandaranayake's impeachment, the principles of 'checks and balances' and 'separation of powers' were rendered meaningless in three ways. First, when both the Parliament and the Executive ignored the interpretation of the SC on the mandatory requirement that the forum for the impeachment has to be "provided by law." Second, when President Rajapaksa appointed Peter Mohan Peiris as the new Chief Justice, deliberately leaving the constitutional and legal questions unresolved. Third, the views and opinions on the supremacy of the Parliament over the judiciary in interpreting the constitution. These events completely abolished the notion of constitutionalism and judicial independence, cementing absolute executive power within the ambit of the 1978 Constitution.

In his writings, Tom Ginsburg, an expert on constitutional law who has studied constitutionalism in new democracies, argues that the idea of parliamentary sovereignty, as it is now invoked in Sri Lanka to justify the impeachment, is in conflict with the idea of constitutionalism. This idea is "more often than not, used by undemocratic regimes." The evidence of this is seen in the way in which both the Sri Lankan Parliament and the Executive branch disregarded the SC's constitutional authority to interpret the 1978 Constitution on how the impeachment should be conducted.

With regards to the interpretation of the Constitution and the application of judicial precedents, the Parliament has deliberately disregarded an earlier opinion made in 2001 both by the Supreme Court of Sri Lanka, notably by Justices Gamini Ameratunge, K Sripavan and Priyasath Dep, and former Speaker of Parliament, the Late (Hon) Anura Bandaranayke, on the need to introduce fresh legislation on the motions of impeachment. This legislation is an Act of Parliament as opposed to the Standing Order, on the motions of impeachment against judges of Superior Courts.

Unlike Sri Lanka, the Philippine Senate promulgated their rules and procedures, as required by the Constitution, even before and in anticipation of the first impeachment of a head of State, former President Estrada in 2000. This preparedness by the Senate in dealing with impeachment is not extraordinary. Rather, they are actions undertaken as a result of the country's experience during the authoritarian Marcos regime, where he used the Constitution to consolidate his power to perpetuate immunity.

Also, the grounds invoked by seven of the 20 Senators who rendered a guilty verdict on Corona were consistent with a caselaw involving an administrative complaint against Delsa Flores. She was a former court interpreter tried for non-disclosure of a statement on her assets and liabilities as required by law of all government employees. The Supreme Court upheld the recommendation for dismissal from judicial service by the Court Administrator of Flores in May 1997. In her decision the SC held

Section 8 of Republic Act No. 6713 provides that it is the "obligation" of an employee to submit a sworn statement, as the "public has a right to know" the employee's assets, liabilities, net worth and financial and business interests. Section 11 of the same law prescribes the criminal and administrative penalty for violation of any provision thereof. Paragraph (b) of Section 11 provides that "(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him.

XXX

In the present case, the failure of respondent to disclose her business interest which she herself admitted is inexcusable and is a clear violation of Republic Act No. 6713.

WHEREFORE, in conformity with the recommendations of the Office of the Court Administrator, Interpreter III Delsa M. Flores is hereby DISMISSED from service with FORFEITURE of all retirement benefits and accrued leave credits and with PREJUDICE to re-employment in any branch or instrumentality of the government, including government-owned or controlled corporations.

SO ORDERED [NARITA RABE, complainant, vs. DELSA M. FLORES, Supreme Court En Banc decision, A.M. No. P-97-1247, May 14, 1997].

Thus, the application of this precedent by seven of the 20 Senators who rendered a guilty verdict on Corona has reaffirmed the idea of equality before the law and equal application of the law on all government employees on matters involving accountability.

It is common knowledge in the Philippines that court employees, including judges, are often involved in corrupt practices, and court employees use their position for personal benefit and privilege. The effect of invoking Flores's case reaffirmed the notion of consistency, legal certainty and the equal application of the law. More importantly, it reaffirmed that 'no one is above the law, not even the chief justice.' It had the effect of restoring the trust and confidence of the public in the judiciary in a bid to eradicate corruption.

This brings us to the fourth point of comparison--why the removal of Corona was legitimate and reaffirmed the constitutional aspirations of the people. As in Bandaranayake's impeachment, Filipinos following the discussion on Corona's impeachment were also divided, including the legal community. This division is based on the lack of clarity on what constitutionalism ought to mean, and certainly not on the question as to whether or not Corona's impeachment process was illegal or unconstitutional. Corona took advantage of the lack of clarity on the part of the public. The aim of an impeachment case in a constitutional democracy is not to deepen divisions. For his good, for his defense and to gain public sympathy, he argued that this was not a case against him, but one that could undermine judicial independence in order to consolidate a dictatorship by the Executive.

On December 14, 2011, Corona alarmed the public. He inferred that should the impeachment succeed, a dictatorship by the Executive Branch would occur. Below is the unofficial translation of his speech before members of the judiciary in Filipino:

Should this impeachment against me succeed, what do you think will happen? It's very simple my beloved countrymen-President Aquino already has the control of the Cabinet, he has already the control of the Congress, and the Supreme Court will also be under his control. They repeatedly say and demand on checks and balances of the three co-equal branches of government, but by the way they do things they are heading towards complete control of the whole system of the government. What he (President Aquino) planted to me will inevitably result in a dictatorship; a dictatorship rooted in deception aimed at poisoning the minds of our fellow countrymen"

But Corona's alarmist and populist approach did not gain support from the domestic or international communities. Bandaranayake's case gained support from UN experts, the European Union and other foreign governments, but it did not prevent her from being removed. Her impeachment raised questions on the constitutionality of her removal and the legitimacy of her replacement. Why this strong condemnation failed to prevent her from being removed, is a question that needs to be asked by the international community on the effectiveness of its intervention.

Bandaranayake's concern was more real than Corona's. Albeit grounded on unsolved questions of constitutionality and legality, notably on the cementing of absolute power of the Executive, the outside world failed to grasp her concerns. Below is the extract of her speech two days after she was removed:

It is not only the office of Chief Justice, but also the very independence of the judiciary, that has been usurped. The very tenor of rule of law, natural justice and judicial abeyance has not only been ousted, but brutally mutilated.

I have suffered because I stood for an independent judiciary and withstood the pressures. It is the People who are supreme and the Constitution of the Republic recognizes the rule of law and if that rule of law had prevailed, I would not have been punished unjustly.

In Corona's case, however, his complaints of being "lynchmobbed" did not gain ground. In fact, his acceptance of the Senate's guilty verdict put closure on his claims. The outcome of Corona's impeachment thus reaffirmed the Filipino people's aspiration of constitutional supremacy, accountability by a check and balances system and separation of powers. It had a legitimizing effect, not only on the credibility and integrity of the Judiciary, but also the Legislative and Executive Branches, for holding the highest officials accountable under the Constitution. Needless to say, the limits of the power of each Branch were exercised in the process. Its legitimizing effect can be explained by the smooth process in the subsequent selection of Corona's replacement.

But in Bandaranayake's case, her removal did not put an end to the questions of succession in the judiciary. It mutated her into being a de-jure Chief Justice of Sri Lanka and her replacement, Mohan Peiris, as the de facto Chief Justice. The Parliament and the Executive did succeed in removing Bandaranayake. They used their consolidated power on the pretext of constitutional dictates. However, unlike the effect in Corona's case, where it reaffirmed the separation of powers, in Bandaranayake's impeachment, it further cemented and reaffirmed that the Executive power is absolute and above the law. Thus, though the Parliament succeeded in invoking the idea of 'parliamentary supremacy,' sadly, it also yielded its power to the Executive President.

Conclusion

These two impeachment cases have led to three particular observations.

First, in Sri Lanka, the 1978 Constitution itself is problematic, thus Bandaranayake's impeachment was rather more inevitable than surprising. This was aggravated by the absence if not lack of opportunity to discuss the impeachment issue, without being subject to retaliation and attack by the government. The government's propaganda and distortion of the impeachment process denied the possibility of a well-informed discourse.

Second, in the Philippines, the experience of citizens during the Marcos regime made a huge contribution to the people's political awareness. They demanded an answer to the allegations of corruption against Corona as an aspiration of the 1987 Constitution. They were sensitized to the fact that Marcos had exploited the Judiciary and other legal institutions in his favor. He also wielded concentrated power without being accountable to other institutions. In fact, these impeachment proceedings, similar to those of former President Estrada, have since become the last resort and a remedy for the Filipino people to use against abuses by high officials, plus a warning to anyone in the future.

Third, Corona's removal put an end to the tension of the Judiciary against the Executive and the Parliamentary Branches of Government. The principles of separation of powers and the supremacy of the 1987 Constitution had been affirmed. On the contrary, Bandaranayake's removal did not end any tensions. The existence of a de jure and a de facto Chief Justice is evidence of this reality. It only reaffirmed the obvious fact that indeed the Executive under the 1978 Constitution is above the law coupled with absolute power. Anything that emanates from him as Executive with absolute power cannot be challenged.

Posted on 2013-04-19

Asian Legal Resource Centre
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