Constitutional crisis

My understanding of a so-called “constitutional crisis” is that it occurs when the basic law of the land can no longer regulate the conduct of a nation’s collective life. This happens when an existing constitution is superseded by political events, as in a revolution, war or coup d’etat. Or, when there is a stalemate between the legal system and the political system, with neither one willing to recognize the authority of the other. I do not believe we are in a constitutional crisis as a result of the Supreme Court’s temporary restraining order stopping the presentation of foreign currency accounts at the on-going Senate impeachment trial. Nor are we in any immediate danger of falling into one.

This is where we are at the moment. The Senate exercising its duty as an impeachment tribunal subpoenaed bank officials, ordering them to produce records on the bank accounts of Chief Justice Renato Corona. Two banks, the Bank of the Philippine Islands and Philippine Savings Bank, complied with the order and gave information on Corona’s peso accounts. PSBank officials, however, petitioned the Supreme Court to stop the Senate from compelling them to produce documents pertaining to dollar accounts, arguing that this violates the law protecting the absolute confidentiality of foreign currency deposits. Voting 8 to 5, with two abstentions, the Supreme Court granted the bank’s request for a temporary restraining order.

A second petition, filed by Corona’s lawyers on his behalf, is asking the high court to stop the impeachment proceedings altogether on the ground that their client’s constitutional rights have been violated. The Supreme Court, of which Corona remains chief (he has not taken a leave), has not issued a TRO, but it has asked the Senate to comment.

I understand that the Senate is deferring its discussion on the foreign accounts of Corona, signaling a wish to avoid an open clash with the high court. But, there is every indication that the senators will not be deterred from proceeding with the trial. They will respond to the Supreme Court’s call for comment, but only to tell the high court that the impeachment trial at the Senate, being a political function, lies beyond the magistrates’ jurisdiction.

The high court may opt for judicial restraint, or it may assert its review powers and grant Corona’s request. If it does, it risks being rebuffed or ignored by a Senate that jealously guards its own autonomy. Nothing can stop the high court from issuing one TRO after another, citing its own interpretation of the law as justification. But law does not operate in a vacuum. Although it is spared the need to constantly and directly seek legitimation for its actions, the Supreme Court cannot be unmindful of the fact that, being an unelected body, it lacks the kind of democratic legitimation that the Senate possesses. Indeed, the burden of legitimation is particularly pressing for most of the justices in the present Court precisely because it springs directly from the legitimation problems of the Arroyo presidency that appointed them.

I assume therefore that the Supreme Court justices will be minded to be extra-cautious in their actions. They will not dare to stop an impeachment trial that has already begun. But, one never knows. If a feared impasse should occur, Congress itself will act to resolve it. Through deliberation and debate, the two chambers will attempt to forge a consensus on what to do next.

They cannot afford to act irresponsibly or recklessly in the performance of this duty. Their own positions are at stake; they will be held accountable by the people in the next election.

Only if the democratic process of deliberation fails can we say we are in the presence of a constitutional crisis. But, crisis in the constitutional state is nothing extraordinary. Every democracy goes through it because of the growing complexity of social life. If crisis comes, we may realize that it is a necessary means for ensuring that our laws, though they are not arbitrarily malleable, are kept in step with the people’s will.

As for the case against Chief Justice Corona, I think the foreign currency deposits in his name are important – insofar as they may show a pattern of wilful concealment of assets. But, revealing their contents is not that crucial to proving the case against him. It is enough to note that these accounts exist, and that this man is doing everything to hide them, to determine whether or not he is deserving of the nation’s highest trust.

Lest we forget – it is Corona’s moral fitness to remain in his position as the highest official of the justice system that is in question here. Anyone in this exalted position is under tremendous obligation to be beyond suspicion. If he has nothing to hide, as he keeps saying, he should not need anybody to tell him to reveal the amount of money he keeps in the bank.  This is what the SALN requirement commands him to do. Beyond that, he must explain where the money came from, and how the amounts involved may be reconciled with his statements of assets and liabilities.

His best defense therefore is to come clean on these accounts. But, to block the presentation of crucial evidence, to the point of seeking protection from the very court over which he presides, is not only in poor taste, it is also the most damning evidence against him. The Senate’s duty as an impeachment court is to decide whether it is in the country’s best interest to allow this man to continue as the country’s chief justice. That is all. It is up to the regular courts to determine if the evidence warrants the imposition of other penalties.

* * *