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
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
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
(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
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
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
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
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
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
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.
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
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
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
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
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
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.
These two impeachment cases have led to three particular
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