I wrote this last night and for the past three weeks, I was predicting on Twitter 18, 19, even 20 will convict. For today was not the day of decision but the day the decision would be announced.
Like a bicameral conference for all the haste of this impeachment, it must have been discussed before it was filed. The decision of the Senate impeachment court making up a law as the trial went along and then convicting for it is the bill of attainder of which Enrile warned.
This was not impeachment as a political process, but a political assassination masquerading as a judicial procedure. An impeachment aspires to judicial procedure, ever mindful of judicial rules, above all respectful of due process that no citizen can be denied however high or low. That is why the senators wore the costumes of judges to look like judges. But this was not a trial but a long execution carried out by the legislature at executive behest.
The grounds for the chief justice’s impeachment were culpable violation of the constitution and betrayal of the public trust. Culpable means blameworthy that excludes unintentional wrong. (I was very good at Latin.) In this case, the act was not even wrong. The BIR says no taxpayer ever declared dollar deposits. Other grounds are treason, bribery, graft and corruption. The grounds differ. But all share a necessary quality. They must all be of equal gravity in being so obviously (note: obviously) wrong as to threaten the order of political society, making it pestilent and perilous for the perpetrator to stay in power.
Of what was the chief justice accused that made him pestilent and his tenure perilous? It is the chief justice’s accusers in the Palace, in the House, in the Senate and in the media who threaten democracy, the rule of law and the order of political society. The very allegations of culpable violation and betrayal of the public trust must already show what they did not in this case: a clear threat to the social order equal to treason.
Enrile made it clear. The chief justice was not charged with ill-gotten wealth, only of failing to declare all of his presumably honestly earned money.
Betrayal of the public trust does not mean “I don’t trust, honey,” like a politician’s wife says when she catches him in bed with someone else.
The constitution has a special definition. Betrayal of public trust is such gross irresponsibility, such brazen lack of integrity, such repeated disloyalty to duty, such heedless inefficiency and laziness in the public service, such glaring injustice and extravagant living as to pose a threat to the good order of society.
No real let alone legal proof showed of any of that. Such proof as the prosecution attempted did not approach the standard of clear and convincing evidence for conviction.
The chief justice was accused of culpable violation of the constitution. But in what regard? How culpable? What was the act or omission and how was it wrong? Can that be wrong which everyone does under a law and only one is accused of it? Signing the waiver acquited the chief justice and put all his accusers on trial.
The chief justice did not conceal his money. It is not concealment when law itself shields the money. The senators lambasted him for that but went along with the TRO. Their secrets had to be shielded but his could not be. They could convict him for hiding what they can keep hiding after all.
Then the chief justice did the unforgivable. He waived the secrecy of his dollar deposits. Now the senators are expected to declare their deposits also. Corona was dead. He was expected to lie down and die alone, not take the senators with him.
In the end, did the chief justice misdeclare all that he owned as public officers are required to report? But the remedy for misdeclaration is self-correction not impeachment as we shall see when a friend of the president is finally caught. Indeed, impeachment is always too grave a remedy. A reckless impeachment undermines the independence of the judiciary as it can weaken the energy of the president.
What the senate did today will decide whether ours shall thenceforth be a government of laws and of separated powers or a government of whimsy and one-gang rule; whether ours shall be a government of limited powers or of powers as far as a president’s ambition will go. Judicial decisions will change with time; political actions will harden with expedient repetion. And this is a government of expediency galore.
It all came down to the question: can the chief justice be impeached for his interpretation of the law that his accusers completely agree with by not signing their own waivers? That is hypocrisy and a violation of the equal protection of the law.
I therefore submit the answer is no. Yet the senate said yes. I told you so. Good night.