U R G E N T !
13 February 2012
Senator Vicente Sotto III
Senate Majority Leader
By fax and by hand
Dear Senator Sotto:
This is to respectfully request you to relay the following message to our colleagues in caucus on Monday, February 13. Thank you.
I vote to obey the Supreme Court TRO on the foreign currency deposits of the Chief Justice, on the following grounds. These six grounds are based on the ideology that the impeachment court is not almighty, not absolute, not illimitable, and not more supreme than the Supreme Court.
Last Clear Chance Doctrine
Obedience to the TRO preserves governmental stability, while disobedience precipitates a constitutional crisis. If we have a choice between stability and crisis, the wiser choice is always national stability.
This solution is analogous to the legal doctrine of “last clear chance” in the law of torts. A tort, as distinguished from a crime, means a civil wrong, for which the remedy is damages. Under this doctrine, the most common example is an automobile collision. If plaintiff was negligent, nonetheless he will win over the defendant, if the defendant had the last opportunity to prevent the harm, but failed to use reasonable care to do so.
In the present impeachment case, it is the Senate which has the last clear chance to avoid a crisis, by obeying the TRO.
Judicial Power Includes both Justiciable
Questions and Political Questions
Under the Constitution, the judicial power is vested in the Supreme Court. This judicial power has two components:
1. Justiciable questions, which the Court defines as “actual controversies involving rights which are legally demandable and enforceable;” and
2. Political questions, which the Constitution defines as “grave abuse of discretion amounting to lack or excess of jurisdiction.”
Thus, the “political question doctrine” no longer applies under the 1987 Constitution. Under this discarded doctrine, a court should refuse to decide an issue involving the exercise of discretionary power by the executive or legislative branch of government. Assuming that the power to issue subpoena concerning foreign currency deposits is discretionary with the impeachment court, still the Supreme Court has power over this political question.
Because the US Court has no provision similar to ours, American cases on impeachment and the political question doctrine do not apply in this country
This Impeachment Court is not Authorized
to Violate the Law
The law on secrecy of foreign currency deposits describes this secrecy to be “absolute,” except ONLY AND ONLY WHEN the depositor consents. Congress made this law. The lawmakers should not be the lawbreakers. Instead, the lawmakers should, if necessary, amend the law.
The Theory of Checks and Balances
Prohibits this Impeachment Court from
Claiming an Exception for Itself
Under the theory of checks and balances, each branch of government has the ability to counter the actions of any other branch, so that no single branch can control the entire government. The Constitution allows one branch to check the excesses or choices of another branch. Do we mean to say that this impeachment court is free of any check or balance? Then it becomes almighty! Under the Constitution, this impeachment court has no authority to study its own navel.
When the impeachment court obeys the Supreme Court TRO, this does not mean that one is superior over the other. It merely means that the Constitution is supreme over all branches and agencies of the government.
The Constitution provides that: “The Senate shall have the sole power to try and decide all cases of impeachment.” The phrase “sole power” means only that impeachment shall not be conducted by any other branch or agency. The phrase “to try and decide” means only that the Supreme Court cannot try or decide the impeachment case.
Some people seem to be confused that judicial review of impeachment procedures is equivalent to judicial determination of the outcome. But this does not mean that the Supreme Court has the power of judicial review over all constitutional questions. It only means that the SC cannot exercise full judicial review, but it retains the power of the most minimal judicial review. This is a result of the theory of checks and balances.
Disobedience to the TRO Violates the
Defendant’s Human Rights
Separation of powers was conceived to protect individual rights. Judicial review is an integral part of separation of powers. Accordingly, minimum judicial review of the exercise of the impeachment power is observed, in order to ensure that no individual right is being violated. It has been said that the individual right at risk in an impeachment trial is a federal judge’s potential loss of position, including the independence he or she is guaranteed.
In at Least Two Previous Cases,
The Supreme Court Ruled That It
Has Power of Judicial Review Over
The two cases are: Francisco v. Nagmamalasakit, 415 SCRA 44 (2003) and Gutierrez v. House of Representatives, 643 SCRA 198 (2011).
Francisco involved the filing of the second impeachment complaint against Chief Justice Hilario Davide, Jr. The Supreme Court ruled: “The Constitution did not leave the matter of impeachment to the sole discretion of Congress – it provided for certain well-defined limits or “judicially discoverable standards” for determining the validity of the exercise of such discretion, through the power of judicial review.”
Gutierrez concerned the impeachment of the Ombudsman by the House of Representatives. The Supreme Court ruled: “The Court finds it well within its power to determine whether public respondent committed a violation of the Constitution or gravely abused its discretion in the exercise of the functions and prerogatives that could translate as lack or excess of jurisdiction, which would force corrective measures from the Court.”
MIRIAM DEFENSOR SANTIAGO