SOMEONE ELSE’S WINDOWS: Deconstructing Bernas

MALAYBALAY CITY (MindaNews/11 February) – Fr. Joaquin Bernas has distinguished himself as a constitutionalist,  having written extensively on issues relating to the fundamental law of the land since the Marcos era, and perhaps earlier than that. Being a member of the commission that drafted the 1987 Constitution, he is supposed to provide the Filipino people enlightening explanations on the letter and intent of impeachment as written in the Charter.

Sadly, however, his most recent statement can only be interpreted as an attempt to please both courts amid a brewing confrontation between them over the ill-conceived decision of the Supreme Court to act [favorably] on the petition of PSBank to bar the impeachment court from looking into the dollar account of one of their own, impeached Chief Justice Renato Corona. In the end, he only pleased the Supreme Court, and by extension, Corona and his lawyers.

Bernas offered the view that the two courts are equals; neither of them is superior over the other. Yet in his subsequent explanation he was actually implying that the Supreme Court may interfere and even stop the impeachment trial altogether. There is no need to belabor the fact that the element of interference already defeats the essence of equality.

Going by Bernas’ argument, what can prevent the Supreme Court from declaring that the impeachment proceeding has been void ab initio? In fact, former associate justice Serafin Cuevas, Corona’s lead counsel, hinted in one hearing that they may seek redress with the Supreme Court if things did not go well as they had hoped for in the Senate trial.

Bernas posited that the Senate sitting as an impeachment court did not necessarily change its nature as a legislative body. This was his greatest gaffe, which proceeded from the framework of balance of powers among the three branches of government.

Again, as shown in the English and American legal traditions to which the Philippines is heavily indebted, Congress assumes different, added functions when it comes to impeachment. The House of Representatives acts as a prosecutor and the Senate as a tribunal, in keeping with the principle that not one single body shall perform both functions.

The whole meaning of impeachment can only be appreciated by going back to its primordial purpose as a constitutional safety valve which can only be effective if carried out with a reasonable amount of flexibility. Subjecting the process to the standards of ordinary judicial proceedings, and worse, the decisions of the impeachment court to the scrutiny of the Supreme Court, mocks the whole process as an implied act of the people themselves.

For in carrying out the functions of impeachment, the members of Congress don’t serve as lawmakers but as the personification of the sovereign people tasked by the Constitution, the embodiment of the “social contract” between the governors and the governed, to make certain officials accountable for their misdeeds. The questioned acts need not be of the kind that are punishable under criminal statutes but should be of a nature that generally offend the public’s sense of propriety, ethics and uprightness.

When the framers of the Constitution, which was overwhelmingly ratified, decided to make Congress the “sole” and “exclusive” repository of the powers of impeachment they did so on the premise that its members are elected representatives, and as such, are presumed to act in the interests of the people and based on their expectations of how officials should behave.

The words “sole” and “exclusive” are caveats that no one and nothing may interfere once the Senate constitutes itself into an impeachment tribunal and proceeds with the trial. They are reminders of the people’s sovereign power to decide the fate of erring officials.

The Senate should ignore the temporary restraining order granted to PSBank and assert its authority as an impeachment court. It should not think, even for a second, of going to the Supreme Court to question the TRO because that, in effect, would be an act of surrender. (MindaViews is the opinion section of MindaNews. H. Marcos C. Mordeno can be reached at