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Tangled web of Philippines' impeachment
saga
By Miriam Grace A Go
MANILA - As the Philippines' chief magistrate,
impeached last week over alleged malversation of
hundreds of millions of pesos in judicial funds, has
temporarily prevented his own trial and is being
continuously projected by his supporters as a saint who
should be spared the venom of politics, there is a story
about a controversial businessman-cum-kingmaker worth
recalling.
It is the story of tobacco, beer and
banking tycoon Lucio Tan with whom Supreme Court Chief
Justice Hilario Davide Jr, 67, reportedly has a cozy
relationship. It is a story that may reveal much about
the kind of person Davide is, and what kind of political
games he is capable of playing.
The first chief
magistrate to be impeached in Philippine history, Davide
is, after all, still a politician - an assemblyman from
the vote-rich province of Cebu whom dictator Ferdinand
Marcos allowed to win in 1978 in an election where all
oppositionists were cheated; and an impeachment presider
in 2001 whom some sectors cajoled into running for
president come 2004.
If he proves to be deft
enough to exploit the expression of support of
political, business and Catholic religious leaders and
organizations and permanently put a lid on efforts to
try him in an impeachment court, Davide may help
institutionalize the rule of "people power" in resolving
conflicts that could otherwise be addressed by
Philippine laws and democratic institutions.
Since the constitutionally questionable ouster
of president Joseph Estrada in 2001, foreigners had
observed in many published articles that mob rule - or
the gathering of an angry crowd of several thousands in
the streets - had become the norm in Philippine society
every time events were unfavorable to a certain clique
(read: the Makati Business Club, the Catholic Church,
and the political camp of former president Corazon
Aquino).
So the story was: Three months before
Estrada was forced out of office in January 2001 by some
300,000 people mobilized primarily by Manila's elite,
the actor-turned-politician had a falling-out with his
crony, Lucio Tan.
Before that, Tan had already
been amply rewarded for being the biggest contributor in
Estrada's campaign in 1998: the government dropped the
P26 billion (US$472.7 million) tax-evasion case filed
against him by the previous administration, and
government had intervened to ensure his takeover of the
national flag carrier, Philippine Airlines (PAL), and to
help his efforts to gain control of the state-owned
Philippine National Bank.
However, on October
30, 2000, with cronyism being proclaimed in protest
rallies as one of Estrada's sins, the president made a
promise of advancing the date of the opening of
Philippine skies to foreign carriers. It was a
turnaround from a previous act of suspending the air
pact between Taiwan and the Philippines to favor Tan's
PAL, because Taiwanese carriers, by their passenger
capacities and the frequency of their stopovers in the
Philippines on their way to North American destinations,
were expectedly eating away a huge part of PAL's
potential earnings.
In no time, Tan was reported
to be bankrolling the anti-Estrada movement, even
communicating directly with the husband of then vice
president Gloria Macapagal-Arroyo, who would
automatically take over once Estrada was out.
The 1987 constitution provides three clear bases
for the vice president to succeed the president before
the latter's six-year term ends: that the president has
resigned, expressed in a letter to Congress; that
Congress has declared, in writing, the president to be
permanently incapacitated; or that the president has
died. None of these had happened, but Justice Davide,
who was a member of the commission that drafted the
constitution, nevertheless swore in Arroyo as president.
Anti-Estrada forces hailed Davide for putting
the national interest over the debt of gratitude he owed
Estrada, who appointed him to the highest judicial post
in 1998.
The credentials that Davide brought
with him to the Supreme Court included the many
important positions he held in government: his
membership in the Constitutional Commission in 1986; his
chairmanship of the Commission on Elections in 1988; his
chairmanship of the fact-finding commission that
investigated the series of coup attempts against the
government in 1989. To these positions, he was appointed
by president Corazon Aquino. It was Aquino who
eventually named him as Supreme Court justice in 1991.
In 2001, Aquino was one of the leaders of the
oust-Estrada movement.
In 1998, the one who
recommended to Estrada that Davide be named the chief
justice was Lucio Tan. In 2001, because of the "open
skies" policy that Estrada adopted against Tan's airline
interests, Tan had turned his back on Estrada.
Simply put, there was a possibility that Davide
could have acted unfavorably against Estrada, even if
that meant going against the constitution, to side in
that political battle with the people to whom he owed
his position in the tribunal. Yet the connection seemed
to have escaped political observers.
And so
Davide's name remained untarnished by suspicious
dealings, and his perceived integrity remained intact -
until his impeachment by congressmen who belonged mostly
to the Nationalist People's Coalition (NPC), a political
party formed by Eduardo Cojuangco Jr who, like Tan, was
an Estrada crony.
On October 23, the resolution
to impeach Davide was signed by 94 members of the House
of Representatives, more than the one-third vote they
were required to muster from the chamber of around 220
members. Davide was being charged for misusing a total
of P825.84 million ($15 million) of the Judicial
Development Fund (JDF) from 2000-02.
The JDF is
a fund established by the late dictator Ferdinand
Marcos' Presidential Decree 1949. It consists of fees
collected by the courts throughout the country, but
whose disposition rests solely on the chief justice. The
decree is clear that 80 percent of the fund should be
allocated as employee benefits, paid directly to them.
Twenty percent "shall be used for office equipment and
facilities of the courts located where the legal fees
are collected".
Documents obtained by NPC
lawmakers from the Commission on Audit (COA) showed that
every year, from 2000 to 2001, employee benefits in the
form of cost-of-living allowance (COLA) that Davide
approved and released were less than 80 percent of the
JDF. On the average, the shortage was 18 percent of the
mandatory annual releases; last year, the discrepancy
reached 35 percent.
While incomplete benefits
were given to court employees, Davide allegedly exceeded
the 20 percent limit on expenditures on equipment and
facilities, which included the purchase of luxury
vehicles for the justices and the construction of their
vacation houses in Baguio City in the north.
However, their basis of computation is
debatable. They computed the 80 percent COLA based on
the balance of the JDF each year, which ranged from
P1.74 billion to P1.86 billion. But in computing the
disbursements for the equipment and facilities, which
allegedly exceeded the 20 percent limit, they based it
on the collection in those three years - meaning, in
addition to the balance of the fund - which totaled only
P200 million.
With a different basis for the
composition of the JDF, which will derive a 20 percent
equivalent to only P40 million, it would appear that the
total disbursements for equipment and facilities of
P229.68 million was much more than the P40 million
allowed.
If the 20 percent is computed based on
the JDF balance amounting to P5.4 billion in those three
years, the P229.68 million actually disbursed for
equipment and facilities would be less than 20 percent
cap.
Still, it appears that improprieties have
been committed in relation to the Judicial Development
Fund. For one, Davide's son sits on the committee that
decides which construction companies and suppliers
should get the contracts for the projects funded by the
JDF - then the payment for such contracts will be
approved and released by Davide, the father, alone. This
son, Joseph Bryan Hilary, is also director of the
Philippine Judicial Academy Development Center Inc, a
private entity that does business with the Supreme
Court.
Even granting that Davide didn't allow
disbursements of the JDF in excess of the 20 percent
allowed for equipment, there is the question of why the
disbursements were not made for court equipment and
facilities in the localities where the funds were
collected - they were instead spent, in violation of the
presidential decree, almost entirely on the requirements
of the justices and the facilities of the Supreme Court
in Manila.
As congressional rule goes, the
articles of impeachment should be transmitted
immediately to the Senate, which will turned into an
impeachment court. Before the articles of impeachment
could be transmitted, however, pro-Davide camps joined
in by former president Aquino and current President
Arroyo - the same groups that worked for Estrada's
ouster in 2001 - held rallies in the congressional
compound and initiated backroom negotiations with
leaders of the House of Representatives.
As the
congressmen-proponents of the impeachment were being
promised that Congress would be allowed to exercise
oversight powers over the highly discretionary judicial
funds if they dropped the impeachment, the 15-member
Supreme Court this Tuesday issued an en banc
resolution calling on Congress "to maintain the status
quo" - in other words, instructing the House of
Representatives not to transmit the articles of
impeachment to the Senate, and the Senate not to accept
the transmittal. In the resolution, the Supreme Court
ordered lawmakers to defend their actions before the
tribunal next Wednesday against petitions filed by
Davide's sympathizers to stop the impeachment trial.
Although the House leadership feared that the
Supreme Court's action "could usher in a constitutional
crisis", they nevertheless adjourned Congress's session
until November 10, an act that enraged the Senate
leadership.
These events unravel a chief justice
who will stubbornly refuse to submit himself to a trial.
Based on his pronouncements, too, he can be a person
who, because of stature, will be slighted if anybody
dared question the wisdom of his actions.
Lawyers are questioning the constitutionality of
the NPC-initiated impeachment against Davide. The
constitution prohibits the initiation of impeachment
proceedings against the same official within a year - a
provision that this impeachment case clearly violated.
This is because the NPC-initiated complaint was filed
before the House threw out the first impeachment
complaint against Davide, the one filed by former
Estrada against Davide and 11 other justices for
swearing in Arroyo as president.
If Davide's
camp focuses on this point, they will defeat the
impeachment proceedings - in any forum. However,
focusing on this technicality to have the complaint
thrown out will leave allegations of his alleged
corruption like an ax hanging over his head - the
complaint, after all, can be filed again after the
one-year prohibition. Some lawyers' organizations, in
fact, have harped on this constitutional prohibition,
but remained silent on allegations of fund misuse
against Davide.
So for starters, Davide's
Supreme Court shed off proprieties and entertained
petitions by his sympathizers questioning the
constitutionality of his impeachment, and consequently
issuing a diplomatically worded temporary restraining
order on Congress. The Supreme Court in effect seized
the authority of the Senate, as an impeachment court, to
determine whether the impeachment done by the House was
unconstitutional.
Davide has also invoked the
doctrine of separation of powers between the three
co-equal branches of government: the executive, the
legislature, and the judiciary. In a letter to Speaker
Jose de Venecia Jr on September 30, when he sensed that
an impeachment complaint against him was being readied,
Davide said that by asking the Supreme Court to submit
documents pertinent to judicial fund, and asking
knowledgeable court personnel to submit data under oath,
Congress was committing "an open breach of the doctrine
of separation of powers".
Davide was mum about
the separation of powers when the Supreme Court
instructed Congress to halt the impeachment proceedings.
In refusing to open the JDF to congressional
inquiry then, the chief justice also invoked a
constitutional provision that guarantees the fiscal
autonomy of the judiciary to ensure its independence.
His explanation on this provision gave the impression
that what he does with the judicial fund cannot be
questioned by anybody - even by Congress, which makes
the appropriations.
What the constitution
actually means by financial autonomy of the judiciary is
for that branch of government to be ensured that its
budget every year will not be lower that the previous
one. Ironically, Davide should have been the one to know
that it was the intent of the constitution because he,
in 1986, was the chair of the constitutional
commission's committee on legislative power, and a
member of the committees on the executive power and on
the judiciary.
Davide, in his letter, also
seemed to equate the judiciary with democracy. He told
the Speaker: "This unprecedented inquiry may be the
beginning of the destruction of our democratic
institutions especially the judiciary, which is the last
bulwark of democracy and the sentinel of the rule of
law." Until now, however, Davide has yet to call as
democratic and lawful his act of swearing in Arroyo as
president due to political pressure.
Caught on
television cameras on his way to the shrine where an
anti-Estrada crowd had amassed for three days in 2001,
Davide told reporters that he was going to swear in
Arroyo as "acting president". He was then acting on a
request by Arroyo, and the resolution giving him the
authority to do so was made by the Supreme Court
justices two days after the swearing-in. When the Arroyo
camp published an edited oath that removed the word
"acting", thus making Arroyo president permanently,
Davide didn't go out of his way to correct this.
Davide, in fact, has a record of changing his
interpretation of the law when political expediency has
dictated it. In 1986, for instance, he was one of those
in the Constitutional Commission who voted that the
party-list system of electing some members of the House
of Representatives would be open to all kinds of
political parties and organizations, and that it
wouldn't be a reserved-seat system for representatives
of so-called marginalized sectors of society.
In
2001, groups involved in the anti-Estrada movement went
to the Supreme Court to ask for the disqualification of
party-list winners that didn't represent nor belong to
the marginalized sectors like them. The tribunal ordered
the disqualification, even listing requirements for
party-list participants that were not in the law. Davide
approved the decision, which completely contradicted the
intent of the provision that he voted for in 1986.
Interestingly, one of the winning parties
disqualified from the party list as a result of the
Supreme Court's decision was the Nationalist People's
Coalition, where most of the congressmen who impeached
him belong.
Although party-list nominees of the
NPC who were affected by the decision had been
threatening in private gatherings to impeach Davide, the
chief justice's supporters are convinced that the NPC
action against Davide was spurred by the Supreme Court's
decision last December 14 that said the coconut-levy
funds that NPC founder Cojuangco had been using as his
private money was "prima facie public funds".
The coco-levy fund, which now amounts to P100
billion, was collected from coconut farmers throughout
the country during the time of Marcos to establish a
common fund for the development of the industry -
something that resembles the nature of the Judicial
Development Fund.
Through political and business
maneuverings, the coconut fund ended up being used to
buy Cojuangco's personal shares in big businesses, such
as San Miguel Corp and the United Coconut Planters Bank.
To a much lesser scale, but improper nevertheless, the
JDF has been used, with Davide's approval, to ensure the
personal comfort and convenience of the justices.
Except in a few publications, Davide's version
of the impeachment story has dominated news in Manila.
His sympathizers' preventive strike is that journalists
who will come up with anti-Davide or anti-Supreme Court
stories have most likely been bribed by Cojuangco's or
the NPC's camp.
Two major television stations,
however, on Tuesday braved the odds and aired a story
that some congressmen allegedly received P2 million each
in exchange for withdrawing their signatures from the
impeachment complaint against Davide. Who was the source
of the alleged bribe money, according to human-rights
advocate and now Estrada lawyer Rene Saguisag? Why,
businessman Lucio Tan.
(Copyright 2003 Asia
Times Online Co, Ltd. All rights reserved. Please
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