2012-02-25 Comment Psbank vs Senate-As of 609pm

8/2/2019 2012-02-25 Comment Psbank vs Senate-As of 609pm

1/44

REPUBLIC OF THE PHILIPPINESSUPREME COURT

MANILA

En Banc

PHILIPPINE SAVINGSBANK and PASCUAL M.GARCIA III,

Petitioners,

- versus - G.R. No. 200238

SENATE IMPEACHMENTCOURT CONSISTING OFTHE SENATORS OF THEREPUBLIC OF THEPHILIPPINES, ACTING ASSENATOR JUDGES,NAMELY, JUAN PONCE

ENRILE, JINGGOY EJERCITO ESTRADA,VICENTE C. SOTTO III,ALAN PETER S.CAYETANO, EDGARDO J.ANGARA, JOKER P.ARROYO, PIA S.CAYETANO, FRANKLIN M.DRILON, FRANCIS G.

ESCUDERO, TEOFISTOGUINGONA III, GREGORIOB. HONASAN II, PANFILOM. LACSON, MANUEL M.LAPID, LOREN B.LEGARDA, FERDINAND R.MARCOS, JR., SERGIO R.OSMENA III, KIKOPANGILINAN, AQUILINOPIMENTEL III, RALPH G.

RECTO, RAMON REVILLA, JR., ANTONIO F.TRILLANES IV, MANNYVILLAR, and THEHONORABLE MEMBERSOF THE PROSECUTION


2/44

CommentAd Cautelam Ex Superabundanti (With Urgent Motion to Lift TRO)Philippine Savings Bank et al v. Senate Impeachment Court et al.G.R. No. 200238Page 2 of 44x---------------------------------------------------------------------------x

PANEL OF THE HOUSE OF

REPRESENTATIVES,Respondents.

x-------------------------------------x

COMMENTAD CAUTELAM EX SUPERABUNDANTI

(WITH URGENT MOTION TO LIFTTEMPORARY RESTRAINING ORDER)

Respondents SENATE IMPEACHMENT COURT

(Impeachment Court) and THE PROSECUTION PANEL OF

THE HOUSE OF REPRESENTATIVES (Prosecution Panel),

through the Office of the Solicitor General and in compliance with

the Honorable Supreme Courts Resolution dated February 9,

2012, respectfully submit this Comment Ad Cautelam Ex

Superabundanti.1

With utmost due respect, the issues raised by petitioners are

purely political in character which may be decided or resolved

only by the Impeachment Court. Hence, this Comment Ad

Cautelam Ex Superabundanti is being filed by respondents

without submitting themselves to the jurisdiction of the

Honorable Supreme Court and without conceding the

constitutional and exclusive power of the Senate to try

1 For more abundant caution. (Blacks Law Dictionary, 9th ed. 2009.)


3/44


and decide all cases of impeachment.2

PRELIMINARY STATEMENT

This Petition for Certiorari and Prohibition under Rule 65 of

the Rules of Court seeks to: (a) annul and set aside the subpoena

issued by the Impeachment Court directing petitioners to testify

and/or bring documents relating to certain currency accounts; and

(b) order the Impeachment Court to cease and desist from

requiring petitioners to testify and/or bring documents relating to

said accounts.

STATEMENT OF THE CASE

On February 13, 2012, respondents received a copy of the

Resolution dated February 9, 2012 of the Honorable Court

requiring them to submit their Comment to the Petition not later

than ten (10) days from receipt or until February 23, 2012. On

February 23, 2012, respondents filed a Motion for Extension of

Time to File Comment Ad Cautelam Ex Superabundanti seeking

an additional period of five (5) days, or until February 28, 2012,

within which to file their Comment. This Comment Ad Cautelam

Ex Superabundanti is being filed within the extended period

sought.

2 Constitution, Art. XI, Sec. 3 (6).


4/44


5/44


for Issuance of Subpoena Duces Tecum et Ad Testificandum3

seeking to require the President/Manager and/or other authorized

officers of petitioner Philippine Savings Bank (PS Bank) to testify

and bring the original and certified true copies of the following:

(a) Customer Identification and Specimen Signature

Card/s of the bank accounts under the name RENATO

CORONA which won One Million Pesos (Php1,000,000.00) in

the PS Bank Monthly Millions Raffle Promo (PS Bank Raffle

Promo) as listed in the Official List of Winners as of March

13, 2008 (List of Winners);

(b) Monthly bank statements of the bank accounts

under the name RENATO CORONA which won One Million

Pesos (Php1,000,000.00) in the PS Bank Promo as stated in

the List of Winners, from the time of their opening to January

2012; and

(c) Other bank accounts, including time deposits,

money market placements, peso/dollar accounts and the

like, in the name of RENATO CORONA and/or CRISTINA

CORONA.

On the very same day, the Prosecution Panel filed another

3Annex 1 hereof.


6/44


Request for Issuance of Subpoena Duces Tecum et Ad

Testificandum4 seeking to require the manager of the Bank of the

Philippine Islands (BPI) to testify and produce before the

Impeachment Court documents relating to bank accounts in the

name of RENATO CORONA and/or CRISTINA CORONA.

On February 1, 2012, CJ Corona, through counsel, filed his

Opposition5 to the two requests for subpoena. The Prosecution

Panel filed a Reply dated February 2, 2012.6

On February 3, 2012, the Prosecution Panel filed a

Supplemental Request for Subpoena/Reply,7 identifying specific

bank accounts in PS Bank which appear to be in the name of CJ

Corona. On February 6, 2012, CJ Corona filed his Consolidated

Opposition and Rejoinder.8

On February 6, 2012, the Impeachment Court issued a

Resolution9 granting the requests for subpoena. The dispositive

portion of the Resolution pertinently states:

b) the Branch Manager (and/or authorized representative) of

Philippine Savings Bank, Katipunan Branch, Katipunan Avenue,Loyola Heights, Quezon City, is commanded to bring before theSenate at 2:00 p.m. on February 8, 2012, the original and

4Annex 2 hereof.5Annex 3 hereof.6Annex 4 hereof.7Annex 5 hereof.8Annex 6 hereof.9Annex 7 hereof.


7/44


certified true copies of the account opening forms/documents forthe following bank accounts allegedly in the name of Renato C.Corona, and the documents showing the balances of the saidaccounts as of December 31, 2007, December 31, 2008,December 31, 2009 and December 31, 2010:

089-1910037-3089-13100282-6089-121017358089-121019593089-121020122089-121021681

089-141-00712-9089-141-00746-9089-14100814-5089-121-01195-7

SO ORDERED.

Thereafter, the corresponding Subpoena Duces Tecum Et Ad

Testificandum

10

(Subpoena) was issued by the Impeachment

Court to the responsible officers of PS Bank directing them to

appear before it to:

(a) testify on [their] knowledge in the case which is

before the Senate in which the House of Represenatives has

impeached [CJ Corona]; and

(b) bring with you the original and certified true

copies of the opening documents for the above-described

accounts.

On February 8, 2012, petitioners filed the Petition assailing

the Subpoena issued to them. Later that day, petitioner Pascual

10 Annex A of the Petition.


8/44


M. Garcia III (Garcia), President of PS Bank, appeared before the

Impeachment Court and brought bank documents concerning the

peso accounts which appeared to be in CJ Coronas name.

Garcia, however, did not bring the bank documents for the

foreign currency accounts of CJ Corona. He claimed that revealing

the said documents and the information contained therein will

violate the rule of absolute confidentiality of foreign currency

deposits under Section 8 of Republic Act No. 6426 (the Foreign

Currency Deposit Act). He also claimed that sanctions may be

imposed on PS Bank if the requested documents and information

are disclosed.

In its Resolution dated February 9, 2012, the Honorable

Supreme Court:

(a) issued a Temporary Restraining Order (TRO) enjoining

respondents from implementing the Subpoena Ad Testificandum

et Duces Tecum, dated February 6, 2012, issued by the Senate

sitting as an Impeachment Court against the Branch Manager

(and/or An Authorized Representative competent to testify on the

matter herein stated), PSBANK, Katipunan Branch; and

(b) required respondents to comment on the petition not


9/44


later than ten (10) days from receipt thereof.

Hence, this CommentAd Cautelam Ex Superabundanti.

ARGUMENTS

I.

THE SENATE HAS THE SOLE ANDEXCLUSIVE POWER TO TRY AND DECIDEIMPEACHMENT CASES.

II.

IN ANY EVENT, THE IMPEACHMENTCOURT DID NOT COMMIT ANY GRAVEABUSE OF DISCRETION; IT HAS, IN FACT,BEEN CONDUCTING THE PROCEEDINGSJUDICIOUSLY.

III.

SUBJECTING THE ONGOINGIMPEACHMENT TRIAL TO JUDICIALREVIEW DEFEATS THE VERY ESSENCE OFIMPEACHMENT.

IV.

THE CONSTITUTIONAL COMMAND OFPUBLIC ACCOUNTABILITY TO CJ CORONAAND HIS OBLIGATION TO PUBLICLYDISCLOSE HIS ASSETS, LIABILITIES ANDNET WORTH PREVAIL OVER HIS CLAIMOF CONFIDENTIALITY OF DEPOSITS;


10/44


HENCE, THE SUBPOENA SUBJECT OF

THIS CASE WAS CORRECTLY ANDJUDICIOUSLY ISSUED.

DISCUSSION

I. THE SENATE HAS THE SOLE

AND EXCLUSIVE POWER TO TRYAND DECIDE IMPEACHMENTCASES.

The Constitution clearly confers upon the Senate the sole

power to try and decide all cases of impeachment.11The word

sole means having no companion, solitary, being the only

one, and functioning independently and without assistance or

interference.12

The use of the word sole gives the Senate exclusive

authority to try and decide all cases of impeachment. It means

that the Senate alone shall have the authority to determine the

form, manner and conduct by which an impeached public

officer shall be tried, and whether said public officer should be

convicted or acquitted.13

11 Constitution, Art. XI, Sec. 3(6).12 Websters Third New International Dictionary 2168 (1971), cited in Nixon vs. US, 5066U.S. 224 (1993).13Nixon vs. US, 506 U.S. 224 (1993).


11/44


The sole power to try and decide all cases of

impeachment is limited only by three very specific

requirements. These are: (a) the Senators shall be under

oath or affirmation; (b) when the President is on trial, the

Chief Justice of the Supreme Court shall preside over the

impeachment trial; and (c) the impeached public officer

may only be convicted upon the concurrence of two-thirds

(2/3) of all the Members of the Senate.14 These limitations

are precise, and their nature suggests that no additional

limitations on the form, manner and conduct of the

impeachment trial have been intended.15

Clearly, the Senate has wide discretion or freedom of action

or judgment in the way it tries impeachment cases. The

Constitution has left the Senate to deal with details of the trial as

public interests, changing conditions and circumstances may

require.16 As such, the Senate has full and exclusive control

over all incidents and matters that may arise during the

impeachment trial. This full and exclusive control covers the

issuance of subpoenae and the resolution of motions filed by the

parties.

14 Constitution, Art. XI, Sec. 3(6).15Id.16Dillon v. Gloss, 256 U.S. 368, 376 (1921).


12/44


There is nothing in the Constitution that defines or describes

the manner and grounds upon which the Senate, acting as an

Impeachment Court, may issue subpoenae. The Constitution

merely says that the Senate shall have the sole power to try and

decide all cases of impeachment, without limitation on the

issuance of subpoenae.

a. Outside of any allegedtransgression of theexpress constitutionallimitations, theimpeachment process wasnever intended by theFramers to be subject tojudicial review.

Indeed, the 1987 Constitution gives the Honorable Supreme

Court expanded judicial power, which includes the duty to settle

actual controversies involving rights which are legally

demandable and enforceable, and to determine whether or not

there has been grave abuse of discretion amounting to lack or

excess of jurisdiction on the part of any branch or instrumentality

of the Government.17

The extent of the Honorable Supreme Courts expanded

judicial power in the context of impeachment proceedings,

however, was clarified in the twin cases of Francisco vs. The

17 Constitution, Article VIII, Section 1.


13/44


House of Representatives18andGutierrez vs. The House of

Representatives.19In these cases, the Honorable Supreme Court

maintained that it cannot take cognizance of purely political

questions despite its expanded certiorari jurisdiction. Thus:

These petitions raise five substantial issues:

I. Whether the offenses alleged in theSecond impeachment complaintconstitute valid impeachable offensesunder the Constitution.

xxx

The first issue goes into the merits of thesecond impeachment complaint over which thisCourt has no jurisdiction. More importantly,any discussion of this issue would require this

Court to make a determination of whatconstitutes an impeachable offense. Such adetermination is a purely political questionwhich the Constitution has left to the sounddiscretion of the legislation. Such an intent isclear from the deliberations of theConstitutional Commission.

Although Section 2 of Article XI of theConstitution enumerates six grounds forimpeachment, two of these, namely, other high

crimes and betrayal of public trust, elude a precisedefinition. In fact, an examination of the records ofthe 1986 Constitutional Commission shows that theframers could find no better way to approximate theboundaries of betrayal of public trust and other highcrimes than by alluding to both positive and negativeexamples of both, without arriving at their clear cutdefinition or even a standard therefor.114 Clearly, theissue calls upon this court to decide a non-justiciablepolitical question which is beyond the scope of its

judicial power under Section 1, Article VIII. 20

(Emphasis and underscoring supplied.)

18 G.R. No. 160261, November 10, 2003.19 G.R. No. 193459, February 15, 2011.20Francisco vs. HRET, supra. See also Gutierrez vs. HRET, 642 SCRA 198, 241.


14/44


The Honorable Supreme Court in Francisco thereafter

defined what constitutes a political question which is beyond the

scope of its power of expanded judicial review:

In our jurisdiction, the determination of a truly politicalquestion from a non-justiciable question lies in the answer to thequestion of whether there are constitutionality imposedlimits on powers or functions conferred upon politicalbodies. If there are, then our courts are duty-bound to examinewhether the branch or instrumentality of the governmentproperly acted within such limits.21

Hence, to determining whether the case falls within the

domain of judicial review, the following issues must be answered

in the affirmative:

(a) Whether a power or function has been

conferred upon a political body, branch or

instrumentality of government;

(b) Whether there are constitutionally imposed

limits on the said power or function; and

(c) If there are limits, whether the body, branch

or instrumentality properly acted within such limits.

This three-fold test was applied in Francisco and

Gutierrez. In Francisco, the Honorable Supreme Court

recognized the exclusive power of the House to initiate

impeachment cases and the express constitutional limitations on

this power. Applying these constitutional limitations, the

21Francisco vs. Nagmamalasakit na Mga Manananggol, et al.,supra.


15/44


Honorable Supreme Court barred the second impeachment

complaint against then Chief Justice Hilario Davide on the ground

that the same violates paragraph 5, Section 3, Article XI of the

Constitution which expressly provides that no impeachment

proceedings shall be initiated against the same official more than

once within a period of one year. The Honorable Supreme

Court in said case, however, refrained from ruling on the

issue of what constitutes an impeachable offense for lack

of any express constitutional limitations in relation

thereto.22

In Gutierrez, the Honorable Supreme Court again had

occasion to rule upon the validity of an impeachment complaint in

relation to the limitation on the power to initiate impeachment

cases found under paragraph 5, Section 3, Article XI of the

Constitution. The Honorable Supreme Court upheld the validity of

the simultaneous referral of two impeachment complaints to the

House Committee on Justice for appropriate action. On the issue

that petitioner therein was denied due process due to the delay in

the publication of the Impeachment Rules, however, the

Honorable Supreme Court held that since the Constitution did

not prescribe any limitation on the manner of

promulgation, the Court is in no position to dictate a

22 460 Phil. 830 (2003).


16/44


mode of promulgation beyond the dictates of the

Constitution.23

It is clear from both Francisco and Gutierrez that there are

are instances when the Honorable Supreme Courts power of

expanded judicial review may indeed be exercised within the

context of an impeachment proceeding, i.e., when there is a

clear transgression of an express constitutional limitation

on the sole and exclusive power of the Congress to

initiate, try and decide impeachment cases.

That is not the case here.

Here, petitioners question the Subpoena requiring them to

testify and produce documents on several bank accounts in the

name of CJ Corona. Unlike in Francisco and Gutierrez, this

matter does not involve or transgress any of the express

constitutional limitations on the sole power of the Senate to trial

of impeachment cases. The issuance of subpoenae is an act or

prerogative of the Senate in the course of the impeachment trial

that is not covered by any definite constitutional limitation.

Following the principle in Francisco and Gutierrez, it is most

respectfully submitted that the Honorable Supreme Court cannot

23 643 SCRA 198, 244 (2011).


17/44


exercise its power of expanded judicial review in this case.

This is not to say, however, that the Senate is left without

any significant check for the exercise of its sole power to try

and decide impeachment cases. This check must, however,

must be provided by the text of the Constitution itself. To quote

United States Supreme Court Chief Justice William Rehnquist in

Nixon vs. United States:

The Framers have anticipated this objection andcreated two constitutional safeguards to keep theSenate in check. The first safeguard is that the

whole of the impeachment power is dividedbetween the two legislative bodies, with theHouse given the right to accuse and the Senategiven the right to judge. This split of authorityavoids the inconvenience of making the samepersons both accusers and judges; and guardsagainst the danger of persecution from theprevalency of a factious spirit in either of thosebranches. The second safeguard is the two-thirds supermajority vote requirement.24

(Emphasis supplied.)

The same principle applies in our jurisdiction. Here, the

Constitution entrusted the sole power to try and decide

impeachment cases with the Senate, subject only to three

express and exclusive constitutional limitations. To reiterate,

these are: (a) the Senators shall be under oath or affirmation; (b)

24 Supra.


18/44


when the President is on trial, the Chief Justice of the Supreme

Court shall preside (but not vote) over the impeachment trial; and

(c) the impeached public officer may only be convicted upon the

concurrence of two-thirds (2/3) of all the Members of the Senate.25

Again, the issue raised in this petition does not involve any

clear violation of the foregoing constitutional limitations. Thus, it

is respectfully submitted that the Honorable Supreme Court

cannot exercise its power of expanded judicial review in this case.

b. Grave abuse of discretionis a tool or standard for judicial review; it cannotbe applied to evaluate theactions of theImpeachment Courtunrelated to the expressand exclusiveconstitutional limitations

on the exercise of itsimpeachment powers.

If the framers intended to confine impeachment proceedings

to clear and simple judicial exercise, it could have easily done so.

They, however, saw it fit to exclude the Judiciary from the

adjudication of impeachments. This fact all the more underscores

the nature of impeachment as a political, rather than judicial,

process. At best, all that is being asked of the Senate, as the body

25 Constitution, Article XI, Section 3(6).


19/44


solely mandated by the Constitution to try and decide

impeachment cases, is that it be judicious. Judicious is defined as

well-considered, discreet, widely circumspect.26

Judicious- not judicial. The framers of theConstitution carefully excluded the judiciary (all butthe Chief Justice, who presides at the Senate trial ofan impeached President) from the adjudication of

impeachments.

27

There are no other constitutionally provided standards by

which the Senate should try and decide impeachment cases.

Neither is there a constitutional requirement that the Senate

should conduct an impeachment trial like a criminal case, a civil

case or any other judicial proceeding. Such details, among others,

were left to the Senate to provide as public interests, changing

conditions and circumstances may require.28

For these reasons, it is respectfully submitted that the

concept of grave abuse of discretion cannot apply here. Grave

abuse of discretion is essentially a tool or standard for judicial

review. It cannot be applied when the controversy or issue

pertains to the exercise of powers solely vested by the

Constitution in a political body. This is precisely because by

vesting said powers solely with said body, the intention of the

26 Blacks Law Dictionary, 9th ed. 2009.27 Posner, Richard A., An Affair of State, The Investigation, Impeachment, and Trial ofPresident Clinton, Harvard University Press, Second Printing Edition, 1999, p. 2.28 Dillon v. Gloss, 256 U.S. 368, 376 (1921).


20/44


Framers was not to subject the decision-making to any outside

review. Rather, the intention was to exclusively confine the same

with the Senate.

To illustrate, the Constitution vested the Honorable Supreme

Court with judicial power, that is, the duty to settle actual

controversies involving legally demandable and enforceable

rights, as well as determine whether a branch or instrumentality

of Government has committed grave abuse of discretion

amounting to lack or excess of jurisdiction. Pursuant to this

power, the Honorable Supreme Court, as the highest court of the

land, can resolve, with finality, actual controversies falling

within its jurisdiction. In so doing, it can never be accused of

having gravely abused its discretion.

The Senate, on the other hand, was vested by the

Constitution with the sole power to try and decide impeachment

cases. In the same way that it would be impossible under our

Constitution to accuse the highest court of the land to have

gravely abused its discretion in deciding matters falling within its

jurisdiction, the Senate, absent any transgression of the three

express and constitutionally imposed restrictions of its power,

cannot be considered to have acted with grave abuse of


21/44


discretion in its conduct of an impeachment trial. There can

simply be no grave abuse of discretion on the part of the Senate

in trying and deciding impeachment cases, when full exercise of

discretion in these matters has been exclusively vested by the

Constitution in the Senate. To construe otherwise would be an

unjustified infringement of the Senates sole constitutional power

and duty to try and decide impeachment cases.

II. IN ANY EVENT, THEIMPEACHMENT COURT DID NOTCOMMIT ANY GRAVE ABUSE OFDISCRETION; IT HAS, IN FACT,

BEEN CONDUCTING THEPROCEEDINGS JUDICIOUSLY.

Grave abuse of discretion is defined as capricious and

whimsical exercise of judgment as is equivalent to lack of

jurisdiction. Mere abuse of discretion is not enough. It must be

grave abuse of discretion as when the power is exercised in an

arbitrary or despotic manner by reason of passion or personal

hostility, and must be so patent and so gross as to amount to an

evasion of a positive duty or to a virtual refusal to perform the

duty enjoined or to act at all in contemplation of law.29

In issuing the Subpoena, the Impeachment Court performed

an act in furtherance of its constitutional duty to try and decide

29Ganaden v. Honorable Office of the Ombudsman, G.R. Nos. 169359-61, June 1, 2011.


22/44


impeachment cases. Under the Senate Impeachment Rules, the

Impeachment Court has the power to compel the attendance of

witnesses, to enforce obedience to its orders, mandates, writs and

judgments, and to make all lawful orders, rules and regulations

which it may deem essential or conducive to the ends of justice.30

Records of the proceedings before the Impeachment Court

show that the decision to issue the Subpoena was made in

accordance with the Senate Rules of Procedure on Impeachment

Trials (Senate Impeachment Rules), particularly Rule VI thereof

which provides:

VI. The President of the Senate or the Chief Justicewhen presiding on the trial may rule on allquestions of evidence including, but not limitedto, questions of materiality, relevancy,competency or admissibility of evidence andincidental questions, which ruling shall stand asthe judgment of the Senate, unless a Member ofthe Senate shall ask that a formal vote be takenthereon, in which case it shall be submitted to the

Senate for decision after one contrary view isexpressed; or the Presiding Officer may at his/heroption, in the first instance, submit any suchquestion to a vote of the Members of the Senate.xxx

The Impeachment Court, in fact, held a caucus to discuss

and resolve the propriety of the issuance of the Subpoena. It

considered the submissions of the parties and the legal principles

involved, particularly the constitutional command of public

accountability and the rule on absolute confidentiality of foreign

30 Rule V, Senate Impeachment Rules.


23/44


currency deposits. After due deliberation, the Impeachment Court

issued the Subpoena on the ground that the policy consideration

behind Republic Act No. 1405, which exempts impeachment

proceedings from the rule of bank secrecy, is carried over to

Republic Act No. 6426, the governing law on foreign currency

deposits.

Clearly, the decision of the Impeachment Court was arrived

at thoroughly, reasonably, judiciously and after due consideration

of all pertinent issues. It can hardly be considered whimsical,

arbitrary or capricious. At most, the decision would only be a

mere error in judgment, which cannot be subject of a petition for

certiorari under Rule 65 of the Rules of Court.

In fine, to allow a public official being impeached to raise to

the Honorable Supreme Court any and all issues relative to the

impeachment trial would result in an unnecessarily long and

tedious process, one that may even go beyond the terms of the

Senators-Judges hearing the impeachment case. This is clearly

not what the Constitution intended. As aptly observed in Nixon

vs. US:

In addition to the textual commitment argument, weare persuaded that the lack of finality and thedifficulty of fashioning relief counsel againstjusticiability. Xxx We agree with the Court of Appealsthat opening the door of judicial review to the


24/44


procedures used by the Senate in tryingimpeachment would expose the political lifeof the country to months, or perhaps years ofchaos. Xxx This lack of finality would manifest itselfmost dramatically if the President were impeached. The legitimacy of any successor, and hence hiseffectiveness, would be impaired severely, notmerely while the judicial process was running itscourse, but during any retrial that a differentlyconstituted Senate might conduct if its first judgmentof conviction were invalidated. Equally uncertain isthe question of what relief a court may give otherthan simply setting aside the judgment of conviction.Could it order the reinstatement of a convictedfederal judge, or order Congress to create anadditional judgeship if the seat had been filled in theinterim?31

(Emphasis supplied.)

Impeachment is inarguably a political act exercised by the

Legislature, a political body elected by and directly accountable to

the people. This power is lodged in those who represent the

great body of the people, because the occasion for its exercise

will arise from acts of great injury to the community, and the

objects of it may be such as cannot easily be reached by an

ordinary tribunal.32

Full discretion is vested in Congress, both the House and the

Senate, to determine whether or not an officer should be

impeached, subject only to constitutionally provided limits

provided under Section 3, Article XI of the Constitution.

31 Supra.32 Labovitz, John R., Presidential Impeachment, 20 (1978) as cited in ConcurringOpinion (Sereno, J.) in Gutierrez vs. House of Representatives Committee on Justice.


25/44


Thus, all issues, matters or questions affecting,

relating or referring to, in connection with, or arising

from, the determination of what constitutes an

impeachable offense are left to the wisdom of Congress.

These issues include, but are not limited to, the

sufficiency of the allegations in the Articles of

Impeachment, the materiality, relevance, competency,

admissibility and quantum of evidence required for

conviction, the propriety of the issuance of subpoenae for

the production of evidence and other incidental questions.

With all due respect, the Honorable Supreme Court cannot

give due course to this petition without contravening the

Constitution. The function to initiate, try and decide

impeachment cases is solely vested in Congress. The

political character of the process is underscored by a degree of

imprecision in the offenses subject of impeachment, thus allowing

Congress sufficient leeway to describe the acts as impeachable or

not.33

To give due course to this petition and grant petitioner

injunctive relief would be tantamount to effectively deciding the

33 Concurring Opinion (Sereno, J.) in Gutierrez vs. House of RepresentativesCommittee on Justice, supra.


26/44


outcome of the impeachment case in gross arrogation of an

exclusive constitutional duty accorded to a separate and

independent branch of Government. This, the Honorable Supreme

Court simply cannot do.

III. SUBJECTING THE ONGOINGIMPEACHMENT TRIAL TOJUDICIAL REVIEW DEFEATS THEVERY ESSENCE OFIMPEACHMENT.

Impeachment by the Legislature as representatives of the

People is the only constitutional check on members of the

Honorable Supreme Court under our constitutional system.34

With utmost due respect, permitting judicial review over

impeachment matters unrelated to any of the express

constitutional limitations thereon is tantamount to installing the

Honorable Supreme Court as the final reviewing authority over a

process meant to check its own actions. Questions will necessarily

arise as to the integrity and independence of the Honorable

Supreme Court in deciding such matters, especially when the

same involves one of its highest members, as in this case. A

decision by the Honorable Supreme Court under these

circumstances may be perceived to have been rendered with

partiality, and may not gain the trust of the People. Furthermore,

34 Nixon v. US, supra.


27/44


the Constitution provided impeachment as the only means to

review a class of impeachable officers. Subjecting the

impeachment process to judicial review by the Supreme Court will

give its Members an unfair advantage over the other groups of

impeachable officers. This absurd and expectedly self-defeating

situation surely could not have been intended by the Framers of

the Constitution. Concomitantly, and with all due respect, the

Senate, pursuant to its duty under the Constitution, cannot permit

such situation to occur.

IV. THE CONSTITUTIONALCOMMAND OF PUBLICACCOUNTABILITY TO CJCORONA AND HIS OBLIGATIONTO PUBLICLY DISCLOSE HISASSETS, LIABILITIES AND NETWORTH PREVAIL OVER HISCLAIM OF CONFIDENTIALITY OFDEPOSITS; HENCE, THE

SUBPOENA SUBJECT OF THISCASE WAS CORRECTLY ANDJUDICIOUSLY ISSUED.

The constitutional command of public accountability has

been enshrined as early as the 1973 Constitution. Section 1,

Article XIII thus states:

Public office is a public trust. Public officers and employees shallserve with the highest degree of responsibility, integrity, loyalty,and efficiency, and shall remain accountable to the people.

At the time, the means of enforcing such command was


28/44


merely statutory in character. Section 7 of Republic Act No. 3019

states that public officers and employees must disclose their

assets, liabilities and income by filing a true, detailed and sworn

statement thereof with their respective department heads, or in

the case of a department head or chief of an independent office,

with the Office of the President.

The 1987 Constitution similarly provides that public officers

and employees must at all times be accountable to the people,

serve them with utmost responsibility, integrity, loyalty, and

efficiency, act with patriotism and justice, and lead modest lives.35

It, however, strengthened the command of public accountability

and constitutionalized the obligation of public officers and

employees to declare their assets, liabilities and net worth.

Section 17, Article XI of the 1987 Constitution states 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.36 In the case of

Members of the Honorable Supreme Court, their declaration of

assets, liabilities and net worth shall be disclosed to the

public in the manner provided by law.37 These are constitutional

35 Constitution, Art. XI, Sec. 1.36Id., Art. XI, Sec. 17.37Ibid., emphasis supplied.


29/44


provisions which must be followed.

Clearly, a public officer has no constitutional right to

privacy or secrecy over his bank deposits. There is no

legitimate expectation of privacy concerning the information

kept in bank records, as such information is voluntarily conveyed

to the banks and exposed to their employees in the ordinary

course of business.38

Accordingly, Section 8 of Republic Act No. 6713, as

amended,39 obligates public officials and employees to accomplish

and submit sworn declarations of, and the public has the right to

know, their assets, liabilities, net worth and financial and business

interests, including those of their spouses and of their unmarried

minor children living in their households. This requirement, in

which full disclosure of wealth is mandated, is the means to

achieve the policy of public accountability of all public officers and

employees.40

Petitioners contend that the Subpoena issued by the

Impeachment Court directing the production of bank documents

covering CJ Coronas foreign currency deposits violates the rule

38 United States v. Miller, 425 U.S. 435, 442-443 (1976).39 Code of Conduct and Ethical Standards for Public Officials.40 The Ombudsman, Fact-Finding and Intelligence Bureau et al v. Valeroso, G.R. No. 167828,April 2, 2007.


30/44


on absolute confidentiality under the Foreign Currency Deposit

Act. This statutory rule on absolute confidentiality,

however, must yield to CJ Coronas clear constitutional

obligation to fully declare and publicly disclose his assets,

liabilities and net worth. Otherwise, this constitutional

obligation will be rendered useless. In case of conflict

between the Constitution and a statute, the Constitution

always prevails because the Constitution is the basic law

to which all other laws must conform to.41

In fact, the general law on bank secrecy, Republic Act No.

1405, implicitly recognizes the primacy of public accountability

and disclosure over confidentiality of deposits. Under said law,

which covers all deposits whether of domestic or foreign

currency,42 confidentiality of deposits does not apply in cases of

impeachment or upon order of a competent court in cases of

bribery or dereliction of duty of public officials.43 This

clearly signifies that public accountability should not be subverted

by the general rule on confidentiality of deposits. Thus:

Cases of unexplained wealth are similar to cases of bribery ordereliction of duty and no reason is seen why these two classesof cases cannot be excepted from the rule making bank depositsconfidential. The policy as to one cannot be different from the

41 Tawang Multi-Purpose Cooperative v. La Trinidad Water District, G.R. No. 166471, March22, 2011.42 Government Service Insurance System v. Court of Appeals, G.R. No. 189206, June 8, 2011.43 Republic Act No. 1405, Sec. 2.


31/44


policy as to the other. This policy expresses the notion thata public office is a public trust and any person who entersupon its discharge does so with the full knowledge thathis life, so far as relevant to his duty, is open to publicscrutiny.44 (Emphasis supplied.)

CJ Corona has publicly admitted ownership of several foreign

currency deposit accounts and vowed to disclose them in due

time.45 Considering the constitutional command of public

accountability, CJ Corona is not permitted to dictate when he will

publicly disclose his assets, liabilities and net worth. In issuing the

Subpoena, the Impeachment Court only sought to enforce CJ

Coronas constitutional obligation to fully declare and publicly

disclose his assets.

Moreover, CJ Coronas foreign currency deposits ceased to

be absolutely confidential from the very moment he became a

public officer. This is because once a person becomes a public

officer, he is legally obliged to disclose all of his assets and

liabilities. Petitioners, therefore, have no reason to fear possible

criminal liability should they disclose CJ Coronas bank accounts.

The rule on absolute confidentiality of foreign currency deposits

never applied to him as a public official in the first place.

To emphasize, the Foreign Currency Deposit Act was

enacted: (a) to promote and encourage foreign currency deposits

44 Ejercito v. Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006, emphasis supplied.45 Disclosure In Due Time, Says CJ, The Philippine Star, February 11, 2012, p. 1.


32/44


and investments in the Philippines; and (b) to give protection to

foreign lenders and investors from which said deposits and

investments will flow.46 It was never intended to protect local

depositors, much less public officers who might have foreign

currency deposits in Philippine banks. More significantly, the law

was never meant to be used by public officers to renege on their

constitutional obligation to disclose their assets, liabilities and net

worth, or even by ordinary citizens to frustrate the ends of justice.

Thus:

It is worth mentioning that R.A. No. 6426 was enacted in 1983 or

at a time when the countrys economy was in a shambles; whenforeign investments were minimal and presumably, this was thereason why said statute was enacted. But the realities of thepresent times show that the country has recovered economically;and even if not, the questioned law still denies those entitled todue process of law for being unreasonable and oppressive. Theintention of the questioned law may be good when enacted. Thelaw failed to anticipate the inquitous effects producing outright

injustice and inequality such as as the case before us.47

Whenever the Legislature enacts a law, it is deemed to have

enacted the same in accordance with the legislative policy

embodied in those prior statutes unless there is an express repeal

of the old and they all should be construed together.48 Although

the Foreign Currency Deposit Act indeed contains a rule on

absolute confidentiality of foreign currency deposits, this rule

should be interpreted together with the underlying legislative

46Last two Whereas Clauses, Republic Act No. 6426; Salvacion v. Central Bank, 278 SCRA27 (1997); cf. Government Service Insurance System v. Court of Appeals, supra.47Salvacion, supra.48City of Naga v. Agna, G.R. No. L-36049, May 31, 1976.


33/44


policy under Republic Act No. 1405 on the supremacy of public

accountability over the confidentiality of bank deposits and the

constitutional provision that public officers and employees shall

disclose their assets, liabilities and net worth. In other words, the

rule on absolute confidentiality must give way to more paramount

public interests such as the accountability of public officers and

employees.

If at all, it is Republic Act No. 1405, the Bank Secrecy Law,

not Republic Act No. 6426 or the Foreign Currency Deposit Act,

which applies in the case of CJ Corona and all public officers and

employees. The Bank Secrecy Law provides exceptions to the

confidentiality of deposits of whatever nature founded on the

principle of accountability of public officers and employees over

the general rule of confidentiality, among which are cases of

impeachment. Therefore, the Impeachment Court may legally

inquire into the bank accounts of CJ Corona whether these be in

local or foreign currency.

In any event, assuming for the sake of argument that the

Foreign Currency Deposit Act applies in the case of CJ Corona, the

inquiry into CJ Coronas foreign currency deposits is an exception

to the rule on absolute confidentiality.


34/44


First, Section 7 of the Foreign Currency Deposit Act states

that the Monetary Board of the Central Bank49 shall promulgate

such rules and regulations as may be necessary to carry out the

provisions of the said Act which shall take effect after the

publications in the Official Gazette and in a newspaper of national

circulation for at least once a week for three consecutive weeks.

In case the BSP promulgates new rules and regulations

decreasing the rights of depositors, rules and regulations at the

time the deposit was made shall govern.

Section 76, Part V (on Foreign Exchange Transactions) of the

2009 and 2010 Manual of Regulations for Banks promulgated by

the Bangko Sentral ng Pilipinas provides that foreign currency

deposits may be inquired into pursuant to a lawful order

issued by a competent court. The Resolution and Subpoena

issued by the Impeachment Court directing petitioners to produce

bank documents covering CJ Coronas foreign currency deposits

clearly constitute a lawful order issued by a competent court

under which a bank inquiry and the issuance of a subpoena for

bank records may be justified.

Second, jurisprudence holds that the strict provisions on

confidentiality and exemption from processes of foreign currency

49 Now the Bangko Sentral ng Pilipinas (BSP).


35/44


deposits may be relaxed when the purpose of the law is not being

served, and in the interest of substantial justice.

In Salvacion,50 the garnishment of the foreign currency

deposits of a foreign transient who was held civilly liable for

having raped the petitioner in said case was sustained. The

Honorable Supreme Court explained that the Foreign Currency

Deposit Act failed to anticipate the iniquitous effects producing

outright injustice and inequality, and that the application of the

law depends on the extent of its justice. It was further held that

the Foreign Currency Deposit Act is primarily intended to draw

deposits from foreign lenders and investors and cannot possibly

be applied to foreign currency deposits of mere transients.

In China Banking Corporation v. Court of Appeals,51 the

Honorable Court held that the owner of the funds in foreign

currency unlawfully taken and which were undisputably deposited

in the account of his daughter may inquire into said deposits even

without his daughters written consent. The Honorable Court

reasoned that it was not the intent of the legislature when it

enacted the law on secrecy on foreign currency deposits to

perpetuate injustice.

50Supra.51 G.R. No. 140687, December 18, 2006.


36/44


Here, the Subpoena issued by the Impeachment Court seeks

to inquire into foreign currency deposits in the name of CJ Corona,

the highest magistrate of the land. He is accused of grave and

serious offenses which may constitute betrayal of public trust.

Public accountability, paramount public interest and the interests

of substantial justice dictate that such an inquiry be allowed so

that the Impeachment Court may properly determine whether

the publics trust in CJ Corona has indeed been betrayed. The rule

on absolute confidentiality of foreign currency deposits cannot be

used to obstruct proceedings and processes seeking to enforce

public accountability. To do so would be a great and rank injustice

to the Filipino people.

All told, the Subpoena issued by the Impeachment Court for

CJ Coronas foreign currency deposits does not violate the laws on

bank secrecy. CJ Corona has no constitutional or statutory right to

privacy and confidentiality of his bank deposits. On the contrary,

he is constitutionally bound to publicly disclose them as the

highest Magistrate in the land. Petitioners cannot be held

criminally, civilly or administratively liable should they decide to

heed the Subpoena. Hence, petitioners right to life, liberty and

property will not be infringed.


37/44


URGENT MOTION TO LIFT TEMPORARY

RESTRAINING ORDER

At the risk of being repetitive, it is respectfully submitted

that the Honorable Supreme Court cannot take cognizance of this

petition and continue to restrain the implementation of the

Subpoena without unduly infringing upon the Senates sole and

exclusive constitutional duty to try and decide impeachment

cases.

Assuming again for the sake of argumentthat the Honorable

Supreme Court may properly take cognizance of this case, the

TRO must be immediately lifted for being factually and legally

baseless.

To be entitled to a temporary restraining order or a writ of

preliminary injunction, a petitioner must show, with clear and

convincing evidence, that the following requisites are present: (a)


38/44


a clear and unmistakable right; (b) the invasion of the right

sought to be protected is material and substantial; and (c) there is

an urgent and paramount necessity for the writ to prevent serious

damage.52

These requisites are not present in this case.

First, far from being clear and unmistakable, the

confidentiality of CJ Coronas foreign currency bank accounts are,

at best, disputed. To reiterate, the Senate is the final arbiter in all

matters relating to the substance and conduct of an impeachment

case. Petitioners are not entitled to the issuance of any injunctive

writ against the Subpoena. Furthermore, the constitutional

principle of public accountability and CJ Coronas obligation to

fully and publicly disclose his assets, liabilities and net worth

prevails over the statutory rule on absolute confidentiality of

deposits under the Foreign Currency Deposit Act.

Second, as a public official, and no less than the Chief Justice

of the highest court of the land, CJ Corona is under an obligation

to properly, truthfully and publicly disclose all his assets,

liabilities and net worth and that of his spouse and unmarried

52 Boncodin v. National Power Corp. Employees Consolidated Union, 503 SCRA611 (2006).


39/44


minor children. In fact, even after the TRO was issued, he publicly

admitted the existence and ownership of foreign currency

deposits with petitioner PS Bank and vowed to disclose them in

due time. With his willingness to reveal his foreign currency

deposits, an inquiry into CJ Coronas foreign currency bank

accounts should therefore not result in any material or substantial

damage considering that these accounts should have been

publicly disclosed by him in the first place.

Third, there is no urgent and paramount necessity to

prevent, through the issuance of an injunctive writ, any serious

damage to CJ Corona.

As recognized by the Honorable Supreme Court in

Gutierrez, impeachment is primarily for the protection of

the people as a body politic, and not for the punishment of

the offender. If there are any rights that should be protected

by the Honorable Supreme Court, it should be those of the People.

The protection of the People calls for the Honorable Supreme

Court to lift the TRO issued.

In fine, the unhampered continuation of the impeachment

proceedings against the Honorable CJ Corona would strengthen


40/44


the Constitution, the institutions of the Government, the principle

of separation of powers and the system of checks and balances. It

must be stressed that public office is a public trust. Public officers

and employees must at all times be accountable to the people,

serve them with utmost responsibility, integrity, loyalty, and

efficiency, act with patriotism and justice, and lead modest lives.53

The subject impeachment proceedings, which was initiated and is

being conducted in accordance with the Constitution, simply aims

to enforce the principle of public accountability and ensure that

transgressions of impeachable public officials are corrected.

Verily, the injury being claimed by petitioners as allegedly

resulting from the subject impeachment proceedings has no

factual and legal basis. Perforce, the TRO must be lifted forthwith

and the petition must be dismissed.

PRAYER

WHEREFORE, it is respectfully prayed that the TRO dated

February 9, 2012 be lifted forthwith, and the Petition be dismissed

for utter lack of merit.

53 Constitution, Art. XI, Sec. 1.


41/44


Other reliefs just or equitable under the premises are

likewise prayed for ad cautelam ex superabundanti.

Makati City for Manila, February 25, 2012.

FRANCIS H. JARDELEZASolicitor GeneralRoll No. 25719

IBP (Lifetime) No. 00037, 1-18-93MCLE Exemption No. III-0008523

KARL B. MIRANDA

Assistant Solicitor GeneralRoll No. 33306

IBP (Lifetime) No. 04423, 1-9-2003MCLE Exemption No. III-000370

MARSHA C. RECONSenior State Solicitor

(Officer-in-Charge, Felix Angelo Bautista Division)Roll No. 41169IBP O.R. No. 883342, 01-10-2012MCLE Compliance No. III-0003832

NOEL CEZAR T. SEGOVIASenior State Solicitor

Roll No. 40524

IBP No. 880248, 01-09-2012 MCLE Compliance No. III-0003843

HILARION B. BUBANState Solicitor


42/44


Roll No. 50397

IBP No. 841400MCLE Compliance No. III-0003390

LESTER O. FIELAssociate Solicitor

Roll No. 51983IBP No. 858305, 03-15-2011

MCLE Compliance No. III-0003785

JASON T. LORENZOAssociate Solicitor

Roll No. 55864IBP No. 883037, 01-09-2012


JUDY A. LARDIZABALAssociate Solicitor

Roll No. 57090IBP No. 866385, 08-08-2011


DENISE S. DYAssociate SolicitorRoll No. 57316

IBP (Lifetime) No. 010412, 01-11-12MCLE Compliance No. III-0011975

MICHAEL T. MACAPAGALAssociate Solicitor

Roll No. 57135IBP O.R. No. 879933, 01-06-12



43/44


RONALD JOHN B. DECANOAssociate Solicitor

Roll No. 58393IBP No. 884741, 01-20-2012

MCLE Compliance No. (Exempted-New Lawyer)

MARLON P. BOSANTOGAttorney II

Roll No. 59094IBP No. 887196, 01-20-2012

MCLE Compliance No. (Exempted-New Lawyer)

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo St., Legaspi Village, Makati CityTel. Nos. 818-6301 to 09 local 239, 238 and 237

COPY FURNISHED: (by registered mail)

Hon. Juan Ponce EnrileSenate PresidentOffice of the Senate PresidentRm. 606, 6th Floor, GSIS BuildingPasay City

Hon. Feliciano R. BelmonteSpeakerHon. Niel Tupas, Jr.House of RepresentativesBatasan Hills, Quezon City

Hon. Chief Justice Renato C. CoronaSupreme Court

Padre Faura, Manila

Puno and PunoCounsel for Petitioners12th Floor, East TowerPhilippine Stock Exchange CenterExchange Road, Ortigas Center


44/44


Pasig City

Justice Serafin R. CuevasAtty. Jose M. Roy IIIAtty. Jacinto D. JimenezAtty. German Q. LichaucoAtty. Dennis P. ManaloCounsels for Chief Justice Coronac/o Suite 1902 Security Bank Center6776 Ayala Avenue, Makati City

Atty. Maria Valentina S. Santana-CruzSenate Legal CounselSenate of the PhilippinesPasay City

The Senate SecretarySenate of the PhilippinesRm. 606, 6th Floor, GSIS Building

Pasay City

The Secretary GeneralHouse of RepresentativesBatasan Hills, Quezon City

Public Information OfficeSupreme CourtPadre Faura, Manila

EXPLANATION

This Comment Ad Cautelam Ex Superabundanti is beingserved by registered mail due to lack of time and messengerialpersonnel, instead of the preferred mode of personal service.

MICHAEL T. MACAPAGAL

Associate Solicitor

Date post:	06-Apr-2018
Category:	Documents
Upload:	rg-cruz
View:	216 times
Download:	0 times

2012-02-25 Comment Psbank vs Senate-As of 609pm

Documents