Can Incumbent Supreme Court Justices be held Criminally Liable?

By Judge Eliza B. Yu, LLM, DCL

HEY, JOE, Restoring Zion: The ex-president who never quit by Ted Lerner published on
June 13, 2003 at Asia Times online, he wrote: XXX Two days after swearing in Arroyo,
the Supreme Court produced a letter that was dated January 20, 2001, and purportedly
written by then vice president Arroyo stating, in her words, that president Estrada was
incapacitated and that he was no longer able to carry out the duties of his office. Thus,
she wrote, she should be sworn in as the next president. Incapacitation is one of the
four legal ways a president can be replaced, but under Philippine law, it is the Congress
that decides whether the president is incapacitated. This was never done. Obviously, a
vice president cannot simply declare a sitting president to be incapacitated, as there is a
serious conflict of interest. Then, several months later, the Supreme Court forgot all
about the incapacitation argument and ruled that Estrada had "constructively resigned".
The court completely ignored the two letters of Estrada and never even bothered to call
him in to ask him whether or not he had resigned. Instead it based its decision on an
unauthenticated diary written by Estrada's former executive secretary and printed in a
local newspaper - it actually used news clippings - and claimed that it provided a
window into the mind of Estrada, proving that he had "constructively resigned". That
was that. According to the Supreme Court, Arroyo was now the de facto president of the
republic. Estrada was finished. From his air-conditioned suite in Veteran's Memorial
Hospital in Manila, where he has been detained for more than two years while his trial
on plunder charges continues, Joseph Estrada vehemently maintains that he never
resigned the presidency. The man who was elected by the largest mandate in Philippine
electoral history, in the cleanest election the country has ever seen, insists that the chief
justice of the Supreme Court, Hilario Davide, along with several other justices from the
high court, violated the constitution and broke the law by swearing in Arroyo to fill a
position that was not vacant, and by later reaffirming her rise to power by claiming -
erroneously, Estrada says - that he had indeed resigned. Estrada has always insisted
that he never resigned, but now, backed by some stunning new evidence, he has gone
on the offensive. He has hired a new lawyer and directly challenged the jurisdiction of
the anti-graft court, claiming that as the legitimate president, he is immune from suit.
More important, his former lawyer and former senator Rene Saguisag has filed an
impeachment complaint at the House of Representatives against the chief justice of the
Supreme Court and at least six other justices "for culpable violation of the constitution
and betrayal of public trust for swearing in an illegitimate successor, for denying Estrada
his basic rights and for prejudging his case". Even though Arroyo is not mentioned in the
complaint, the grounds cited have a clear and direct bearing on her legitimacy. For if the
justices erred, that means Arroyo's ascension to the presidency is null and void and that
Estrada remains the true president of the Philippines. Predictably, the presidential
Malacanang Palace and its supporters laughed off the new challenge to their authority.
They have claimed it's a political ploy, a destabilization plot from the Estrada camp, or
just a diversionary tactic because Estrada's afraid of being convicted in his plunder
case. They've also said that the issue of Arroyo's legitimacy has been settled long ago
by the Supreme Court. But that begs the question. If there was no vacancy in the
presidency, just what were the justices doing at the swearing-in of Arroyo? Wasn't that a
highly partisan political event? And how can they later rule on her legitimacy when they
themselves were a party to her ascension to a post that wasn't even vacant? Estrada's
new-found confidence stems from a tell-all book written by one of the key players in his
ouster more than two years ago, Supreme Court Justice Artemio Panganiban. In his
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book Reforming the Judiciary, Panganiban takes the reader back to those days of
political turmoil. Estrada's impeachment trial had collapsed when the prosecution
walked out in frustration; the military had publicly withdrawn its support from Estrada,
the duly elected commander-in-chief; hundreds of thousands of anti-Estrada partisans
had gathered at the shrine. Panganiban says it was at that time that the justices acted
to save "the constitutional system from collapse". He actually states that he and the
chief justice decided to swear in Arroyo even though they knew Estrada had not
resigned. "Let me articulate my faith that Edsa II [the name of the event that led to
Estrada's ouster] was indeed a confluence of events planned in heaven," he writes. "I
am still wondering up to now how I had summoned the courage to propose the oath-
taking of Mrs Arroyo even when President Estrada was still in Malacanang; and why
Chief Justice Davide immediately agreed to it, even prior to consultation with other
justices."

Perhaps the most amazing passage out of the book comes when Panganiban talks
about "restoring Zion". He writes that both he and the chief justice have a daily habit of
consulting the Bible. Panganiban has a certain passage that he reads on particular
days. Davide, though, prefers to cut the Bible at random, taking inspiration from
whatever passage happens to appear. Before dawn on the morning of January 20,
2001, Panganiban tells how he called up Davide, who related that he chanced upon a
passage in Isaiah, Chapter 62, about "restoring Zion". It was then, Panganiban states,
that Davide had his higher calling. Yes, that was the answer to the turmoil that was
currently besetting the Philippines. The chief justice would have to "restore Zion". But
for the chief justice of the Supreme Court, who had been presiding over the now failed
impeachment proceedings, "restoring Zion" did not, as one might think, entail going on
radio and television and telling the crowds massing at the religious shrine that the
constitution must be protected at all costs, that they should insist that the impeachment
trial should continue to its conclusion, that no matter what the military generals had said,
president Estrada was the legitimate and duly elected leader of the Philippines, that he
was elected by the sovereign will of the electorate in the cleanest election in Philippine
history and that to try and unseat him in ways other than legal ones would do more
harm than good and merely succeed in turning the country into a banana republic. Yes,
that would have been the logical meaning of "restoring Zion". But Justice Davide had a
different interpretation. To him "restoring Zion" meant swearing in then vice president
Arroyo to the office of president, this despite the fact that he knew no vacancy existed in
the position. Restoring Zion meant that they would legitimize a military withdrawal of
support of the legal commander-in-chief, something that the constitution clearly
prohibits. Instead of upholding the constitution and insisting that the impeachment trial
continue, their actions have, some observers claim, legitimized mob rule. "We need a
ruling on whether the courts may rely on the Bible instead of the constitution," Saguisag
said after filing his impeachment complaint. "We need a ruling on whether it is all right
for justices to take part in partisan political exercises and then uphold themselves when
obviously they could not be impartial as judges of their own cause."

"In my experience," said Estrada's new lawyer, Alan Paguia, "these [the justices] are
just 15 lawyers. Can they change the will of 10 million voters?" Paguia said the justices,
in voluntarily administering the oath to Arroyo, violated the "judicial ban against political
partisanship". As of this moment only a handful of congressmen have openly supported
the impeachment complaints and, with Congress on a six-week recess, the matter won't
be fully discussed until the beginning of August. Panganiban's book and Estrada's
subsequent offensive, however, have seemed to generate renewed interest in the
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confusing and highly controversial events that took place back in January 2001.
Supporters of Arroyo, once again on the defensive in the face of apparently strong legal
grounds, have resorted to extolling the God-given virtues of that murky phenomenon
known as "People Power”. XXX

In Estrada v. Arroyo, G.R. No. 146738, April 3, 2001, the lawyers of petitioner former
President Joseph Estrada argue that the use of the Angara Diary to determine his state
of mind on the issue of his resignation as President of the Philippines violates the rule
against the admission of hearsay evidence. The Supreme Court disagreed. To begin
with, the Angara diary is not an out of court statement but part of the pleadings in the
cases at bar.

In Cuenco v. Justice Fernan, A.M. No. 3135, February 17, 1988, the Supreme Court
dismissed the disbarment against Justice Fernand by holding that members of the
Supreme Court must, under Article VIII (7) (1) of the 1987 Philippine Constitution, be
members of the Philippine Bar and may be removed from office only by impeachment
(Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the
Court during the Member's incumbency, would in effect be to circumvent and hence to
ran afoul of the constitutional mandate that Members of the Court may be removed from
office only by impeachment for and conviction of certain offenses listed in Article XI (2)
of the Constitution.
In the Cuneco ponencia, the express prohibition pertains to disbarment complaint
against an incumbent Supreme Court Justice only not to a criminal complaint. The
rationale is logical since an impeachable officer like a Supreme Court Justice can only
be removed from public office in impeachment proceedings. The Disbarment and
Discipline of Attorneys in Rule 139 – B of the Revised Rule of Court apply only to
lawyers not holding any judicial offices. It applies to Judges after they were dismissed
from service but not before. In OCA v. Judge Indar, A.M. No. RTJ-10-2232, April 10,
2012, the administrative case against Judge Indar shall also be considered as a
disciplinary proceeding against him as a member of the Bar, in accordance with AM.
No. 02-9-02-SC (Re: Automatic Conversion of Some Administrative Cases Against
Justices of the Court of Appeals and the Sandiganbayan; Judges of Regular and
Special Courts; and Court Officials Who are Lawyers as Disciplinary Proceedings
Against Them Both as Such Officials and as Members of the Philippine Bar) that
provides:

Some administrative cases against Justices of the Court of Appeals and the
Sandiganbayan; judges of regular and special courts; and the court officials who are
lawyers are based on grounds which are likewise grounds for the disciplinary action of
members of the Bar for violation of the Lawyer’s Oath, the Code of Professional
Responsibility, and the Canons of Professional Ethics, or for such other forms of
breaches of conduct that have been traditionally recognized as grounds for the
discipline of lawyers. In any of the foregoing instances, the administrative case shall
also be considered a disciplinary action against the respondent justice, judge or court
official concerned as a member of the Bar. The respondent may forthwith be required to
comment on the complaint and show cause why he should not also be suspended,
disbarred or otherwise disciplinary sanctioned as a member of the Bar. Judgment in
both respects may be incorporated in one decision or resolution.

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Can incumbent Supreme Court Justices be held criminally liable? The answer is in the
affirmative.

Criminal liability arises when the offender commits a criminal act punishable by the
Revised Penal Code such as Crimes Committed by Public Officers or by special penal
laws such as violation of RA No. 3019 or RA No. 6713. Nowhere in these penal code
and special penal laws expressly or impliedly state that the incumbent Supreme Court
Justices are exempt from the criminal laws before impeachment. To do so would make
them above the law that is contrary to the constitutional principles of Republican and
Democratic State (Article II, Section 1, 1987 Philippine Constitution) that adheres to the
Rule of Law and of Public Accountability (Article XI, Section 1, 1987 Philippine
Constitution). To do so would clip the criminal investigatory powers of the State through
the Department of Justice under the Executive Branch or the Office of the Ombudsman,
an independent constitutional body prejudicial to the interest of the State. To do so
would result to absurd situations when they are caught in flagrante delicto of heinous
crimes. For example, if a Supreme Court Justice was caught receiving a bribe money in
the amount of P10 Million by entrapment operation, it is absurd that he or she will not be
subjected for inquest then indicted after preliminary investigation for violation of the
Revised Penal Code on Bribery or for violation of RA No. 3019 because of the argument
that he or she must be removed first by impeachment before any criminal case will
prosper against him or her. To reiterate the Public Accountability in the Constitution:

ARTICLE XI
ACCOUNTABILITY OF PUBLIC OFFICERS

Section 1. Public office is a public trust. Public officers and employees must, at all times,
be accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency; act with patriotism and justice, and lead modest lives.

Section 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed
from office on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from office as provided by law, but
not by impeachment.

Section 3.
1. The House of Representatives shall have the exclusive power to initiate all cases
of impeachment.
2. A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution or endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the

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House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.
3. A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a favorable resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of each Member shall be
recorded.
4. In case the verified complaint or resolution of impeachment is filed by at least
one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
5. No impeachment proceedings shall be initiated against the same official more
than once within a period of one year.
6. The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without
the concurrence of two-thirds of all the Members of the Senate.
7. Judgment in cases of impeachment shall not extend further than removal from
office and disqualification to hold any office under the Republic of the Philippines, but
the party convicted shall nevertheless be liable and subject to prosecution, trial, and
punishment, according to law.
8. The Congress shall promulgate its rules on impeachment to effectively carry out
the purpose of this section.

There is nothing in the above constitutional provisions that a sitting Supreme Court
Justice cannot be charged criminally before or during his or her impeachment. There is
nothing in the same constitutional provisions that bar the filing of criminal case against a
Supreme Court Justice before or during his or her impeachment. Why is this so?
Because the removal of the incumbent Supreme Court Justice is not a condition
precedent before a criminal complaint can be initiated against him under the
Constitution and statutes. Incumbent members of congress, for example, the Senators
were indicted for graft and plunder in the Pork Barrel Queen scam, they remained in
public offices during the course of the criminal trials. While the incumbent Senators
cannot be removed by impeachment that make them more powerful than Supreme
Court Justices, they are not exempt from criminal laws during their terms of office, there
is no reason why the same applicability of the criminal laws should not be applied to
incumbent Supreme Court Justices, who can be removed by the Senators in the
impeachment proceedings.

One of the imposing problems is when the criminal case against an erring Supreme
Court Justice is filed in a trial court, it cannot be denied publicly that the high profile
case is susceptible to influence peddling or pressure that favors a member of the
judiciary. Assuming the trial court dismisses the criminal case before or after the
arraignment of the indicted Supreme Court Justice, it is a big blow to the State as the
offended party through the Department of Justice or Office of the Ombudsman.
Assuming that the erring Supreme Court Justice caught in entrapment operation for

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Bribery was not impeached by Congress despite the overwhelming evidence that will
establish culpability beyond reasonable doubt, the State is injured without recourse
against the erring Supreme Court Justice other than to wait for his or her legitimate
retirement or separation or termination from the public office. At that time, the judicial
institution is in disrepute since an erring public official stays in the office despite of the
scandalous entrapment operation conducted against her or him for Bribery. If the
Supreme Court Ethics Committee takes cognizance of it and exonerates the Supreme
Court Justice despite of the proofs, what is the recourse of the State? The exoneration
of the Supreme Court Justice by the judiciary may have an effect to the criminal case
against him before the Department of Justice or the Office of the Ombudsman.
Assuming the investigatory offices merely adopted the findings of the Supreme Court
over the erring Supreme Court Justice, what will the State do? The Congress has to act
upon it. Also, assuming that Congress will not impeach the Supreme Court Justices who
voted to exonerate the erring Supreme Court Justice in Bribery scandal, then there will
be no liability whatsoever that defeats the constitutional mandate of ensuring public
accountability in the government, an essential component of the Rule of Law. State
cannot do anything despite of the Constitutional command. The State, an abstract and
silent entity like a beautiful art work hanged on the majestic wall, must wait for the new
public officers who believe in public accountability and who will take action by holding
the erring public officers liable.

The foregoing assumptions in an entrapment case against an erring Supreme Court

Justice may happen in real life scenarios. In fact, some of the assumptions happened in
actual cases. What if the heinous crime committed by an incumbent Supreme Court
Justice is rape with homicide of a minor or murder subject to warrantless arrest with
testimonial and documentary proofs, he will evade criminal prosecution because of the
silly interpretation of Cuenco v. Fernan jurisprudence prejudicial to the State?

In RA No. 6770 (The Ombudsman Act of 1989) approved on November 17, 1989, it
provides:
XXX XXX XXX
Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of
the Government and its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned or controlled
corporations and their subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary.
Section 22. Investigatory Power. — The Office of the Ombudsman shall have the power
to investigate any serious misconduct in office allegedly committed by officials
removable by impeachment, for the purpose of filing a verified complaint for
impeachment, if warranted.

XXX XXX XXX

The Office of the Ombudsman cannot discipline incumbent Supreme Court Justices
pursuant to the 1987 Philippine Constitution for it may undermine the judicial
independence and compromise the separation of powers that are both bad in public

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service. Also, the Decisions and Resolutions of the Office of the Ombudsman are
subject to review by the Supreme Court that it is absurd, the former as reviewees will
impose disciplinary sanctions upon the latter as reviewers. In addition, the incumbent
Ombudsman and the incumbent Supreme Court Justices are both removable by
impeachment that make them in equal footing when it comes to the exercise of their
disciplinary powers in terms of the imposition of administrative penalties with respect to
each other. The majority of the Supreme Court Justices have power to discipline the
Ombudsman as a lawyer in the Revised Rules of Court apart from the initiation of
impeachment proceedings against him or her.

The Office of the Ombudsman has the power to investigate any serious misconduct in
office allegedly committed by sitting Supreme Court Justices for the purpose of filing a
verified complaint for impeachment, if warranted in RA No. 6770. There is nothing
special about it because a congressman or any citizen upon resolution or indorsement
of a congressman can file a verified complaint for impeachment against the sitting
Supreme Court Justices. This any citizen can also be a sitting Supreme Court Justice,
this time, against the Ombudsman.

Based on the foregoing considerations, a criminal case can be filed against an

incumbent Supreme Court Justice due to lack of express prohibition under the
Constitution and statutes. In case an incumbent Supreme Court Justice commits a
crime and the proofs can establish criminal guilt beyond reasonable doubt, the
investigating body such as the Department of Justice or the Office of the Ombudsman
will most likely than not refer the criminal case with evidence to Congress for the
purpose of his or her impeachment, to at least prevent the erring Supreme Court Justice
from using and wielding vast influence, money, power and other resources attached to
his or her judicial office that will surely derail the criminal investigation, trial and
decision of his or her case from the prosecutor’s office to a trial court, then to the
appellate court until it reaches to his or her own home court, the Supreme Court.