Wednesday, August 10, 2005

The gang hails the Chief

(In anticipation of yet another opportunity to understand the correct application of the one-year bar rule on initiating impeachment proceedings and the constitutional meaning of initiate, this commentary, originally titled A constitutional crisis of respect, is being reposted here)

The mainstream media in the Philippines has allowed only a token contest against the arrogation of “judicial supremacy” by the Supreme Court in the decision involving the several petitions filed before it to stop the impeachment of Chief Justice Hilario Davide, Jr. This to me has the effect of affirming the unfortunate state of an enduring Filipino culture still indicative of the social indoctrination that has run deep from the friar system. Hence, far from the pretense that the colonial umbilical cord has been cut, as the Supreme Court proudly asserted, the decision succeeded only in preserving the skewed cordage now interwoven into the more complex and still dominant American system except that, instead of subservience to the pulpit of the friary, obeisance is also being rendered, although imperceptibly but incrementally, towards a nimbler competing elite faction, the secular High Tribunal.

To frame the larger question in Platonic dialogues: Is the Philippines inching closer to the “alternative” rule of the philosopher-kings all in the guise of upholding procedural stability and constitutional supremacy?


“It’s already over and done with,” Senator Edgardo Angara said after the Supreme Court had declared as “unconstitutional” the impeachment of its Chief. That’s the short term, unfortunately. What looms ahead is the disturbing prospect of a growing, expanding and dominating High Tribunal whose members could now hold office during “good (or bad) behavior until they reach the age of seventy or become incapacitated” without fear of being removed by impeachment.

The power of impeachment, which the Filipino people has wisely delegated to Congress, is now liable, the Supreme Court suggests, to the so-called expanded certiorari jurisdiction of the Supreme Court “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction” on the part of Congress (or any branch or instrumentality of the Government for that matter); and the power of the Court or those of its members to make such determination, supposedly pursuant to a newly appended paragraph of the Constitution (Article VIII, Section 1, paragraph 2), are subject only to their own sense of self-limitation. The novel (but, on its face, exceedingly awesome) constitutional provision which also defines judicial power, states:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Article VIII, Section 1, paragraph 2 of the Constitution) (Italics mine.)
Very early on, the scope of what is considered as awesome and delicate but vastly unsaid powers of the supreme Judges was defended by Alexander Hamilton in The Federalist, No. 78, during the campaign for ratification of the US Constitution, by arguing that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them” unlike the executive who has the “sword” and the legislature the “purse.” According to Hamilton, “The interpretation of the laws is the proper and peculiar province of the courts” which is “so arduous a duty.” The defense was characteristically Hamiltonian. He was countermajoritarian and during the constitutional convention, delegate Hamilton was quite straightforward about his preference for a constitutional aristocracy, if not monarchy. Luckily for the Americans, he convinced no one but himself.

The inevitable watershed in Constitutional Law, which was Chief Justice Marshall’s opinion in Marbury v. Madison (1803)—in turn the progenitor of what was pronounced by our own Justice Jose P. Laurel in the leading Philippine case of Angara v. Electoral Commission (1936)—was borrowed from the above arguments of Hamilton whose idea of the emerging constitutional democracy in America had not been shaped as then by actual experience. Consequently, it did not presage the decision of the US Supreme Court 50 years thereafter in Dred Scott v. Stanford (1857) to the effect that black people were not US citizens, heightening the political tensions that attended the American Civil War and thereupon costing more American lives than World War II, or in Roe v. Wade (1973), which established a woman’s right to terminate her pregnancy (as well as necessarily tens of millions of potential lives—and sure enough, the counting is still on even at this very moment).

Among the first to fear “judicial despotism” was Abraham Lincoln, arguably one of America’s greatest presidents. During his inaugural address in 1861, Lincoln, assailing Dred Scott, said: “ . . . if the policy of the government upon vital questions, affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers . . .. ”

In the wake of the constitutional crisis generated by the impeachment of Chief Justice Hilario Davide, Jr., it would be quite apropos to mull over seriously the Lincolnian angst as this seemingly boundless authority of the Philippine Supreme Court it found for itself was openly brandished—although not relied upon to settle the crux of the matter—in the recently decided Francisco, Jr. v. House of Representatives (November 10, 2003) to dispose of the petitions and bar the impeachment of the Chief Justice. This would mean, I suppose, that even where earnest and commendable efforts are being urged for all concerned to end the crisis, to reconcile and move on, the far-reaching implications of what was pronounced in the decision should not be allowed to go unnoticed even if the actual controversy that brought the matter before the Court is “already over and done with,” and then laid quietly to rest as the definitive future course of Filipino constitutionalism. Instead, opportunity for continuing exchange and examination as regards the arguments advanced, the reasoning relied upon, or the philosophy promoted should be encouraged as part of the country’s on-going catharsis, political or otherwise.

For instance, the Francisco ruling seeks to reaffirm the concurring and dissenting opinion of Justice Reynato S. Puno in Arroyo v. de Venecia (1997) that the newly construed power of the Court is drawn from the sponsorship speech of the proponent of the afore-quoted paragraph 2, Section 1, Article VIII of the Constitution, the former Chief Justice Roberto Concepcion. This proposition must be revisited.

As part of the dialogue being urged here, I wish to state that I have always been an admirer of Chief Justice Roberto Concepcion. I believe he was, and still is, the most eminent Chief Justice the country has ever produced. It was then a privilege of the highest plane to be one of his students in Constitutional Law in my senior year in law during which the “the Chief,” the appellation of respect we fondly gave him, patiently fine-tuned our knowledge of the law as had been laid to us during freshman year in equally grand style by another Constitutional Law scholar, Enrique Fernando, who himself became Supreme Court Chief Justice.

In a sense, our class was fortunate to be privy to some of the Chief’s misgivings with his brethren in robe who participated in the disposition of the martial law cases. He shared with us his estimation that the Marcos regime would have been aborted if only the Philippine Supreme Court were unanimous against the impending dictatorship (just as the US Supreme Court was unanimous against Nixon, forcing for the first time a US president to resign from office). Often there’s this sense of a rare opportunity missed, or trifled with, whenever evidently we understood him to regard the Constitution as an instrument of the Rule of Law, while he saw some of his brethren treating it as nothing more than a political document liable to the compromises among political leaders, partisans, and supposed judicial statesmen. During the entire course, the Chief pounded on his students that “the essence of a constitution is LIMITATION.” (Emphasis his.) This brief but memorable encounter with a true champion of the Rule of Law tells me that it is unfair to attribute to him in any way the supposed expansion of authority of the Court by virtue of his proposal that is now paragraph 2, Section 1, Article VIII of the 1987 Constitution.

Thus, when former Chief Justice Concepcion as Constitutional Commissioner explained that by his proposal it “means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question”(Italics mine), I do think he meant to address it very clearly to his errant brethren who evaded their duty by taking refuge under the political question doctrine to validate Marcos rule; in that sense, this novel provision unmistakably rather than as a grant of “expanded,” “upgraded,” and “elongated” authority must be considered as just another limitation to the exercise of judicial power. It has to be so because a regime of constitutionalism is nothing less than one of a restrained and limited government, which is precisely the cognitive meaning of the constitutional instruction in the new provision as it defines judicial power as “(including) the duty of the courts of justice . . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government,” thereby prescribing a limitation to the theretofore externally unchecked judicial discretion—as well as indiscretion. This provision, contrary to the Court’s position, speaks not of power and control but of service and accountability.

To avoid the misplaced assumption of judicial supremacy as a necessary adjunct to the supreme character of the Constitution, which—when placed in the wrong hands—potentially could lead to the pitfall of judicial despotism, this so-styled expanded certiorari jurisdiction under the aforementioned provision of the Constitution must perforce be regarded as subordinate to the long-standing fundamental principle of coequality among the three branches of the government that presupposes reciprocal limitations. It is not enough indeed to pay mere lip service to such a constitutional value as the Court did in Francisco, for, without it being so engrained in the nation’s psyche, it would be too tempting for men and women to treat the Constitution as merely marking out the skeletal form of the government but they will flesh it out as they please.

It goes without further elaboration that if the Supreme Court in Francisco correctly read this time the new provision Chief Justice Concepcion had proposed, it would have been easier for the Court to uphold the republican principle and respect the interpretation of the House of Representatives—under the doctrine of “coordinate construction” whereby the people’s elected representatives have both the authority and competence to engage in constitutional interpretation—of the pivotal “initiate” in the challenged Sections 16 and 17 of Rule V of the House Impeachment Rules. Unfortunately, the Court unnecessarily took up what it supposes as its “activist” role and declared the interpretation of the House unconstitutional.

With that last statement, and believing that the Supreme Court is not the font of all constitutional truth and wisdom, I cannot resist reappraising here the resolution of the substantive issues raised in the Francisco decision at the risk of making this commentary look like a legal brief.

If my interpretation matters at all, I find the House Impeachment Rules in question—despite my personal qualms about the conduct of some of the congressmen who tried to make use thereof—not only reasonable but, pursuant to the qualification given hereunder, more in consonance with the constitutional mandate for Congress “effectively to carry out the purpose” of the impeachment process as spelled out in the Constitution than what I perceive was a hurried interpretation by the Court in Francisco.

(For ready reference, the pertinent provisions of Article XI of the Constitution and Sections 16 and 17, Rule V of the House Impeachment Rules are quoted in the footnote below.)

To start on, it is well to note that as part of the check and balance mechanism of our system of presidential and limited government, the sovereign people has delegated to Congress the power to remove, by way of what is known as impeachment, certain public officers enumerated and upon grounds specified in Article XI of the Constitution. The members of the Supreme Court are among those public officers enumerated. By ratifying the Constitution, the people intended such delegated authority to be a real and operative power.

The exercise of the power of impeachment by Congress, as we have pointed out during the impeachment of President Estrada, is as much a duty as the exercise of the judicial power of courts to settle controversies involving legally enforceable and demandable rights. But unlike judicial power, the impeachment power pursuant to our Constitution is very limited in scope, its purpose being merely to remove and disqualify from office the public officer if found guilty.

Again, the duty to perform the power of impeachment is assigned to Congress with the House of Representatives being given the exclusive authority to prosecute the entire impeachment process. In ordinary parlance, the House acts as the prosecutor, the Senate as the judge and the “impeached” public officer as the accused (or the person charged or indicted).

When the charge or charges, otherwise termed as the Articles of Impeachment, are filed with the Senate, the Senate sits as the sole Impeachment Court to try the impeachment case and then to make a final decision either of conviction or acquittal. From this decision, the remedy of appeal to or review by any other authority, including the Supreme Court, is not provided. The Senate shall have the sole power to try and decide all cases of impeachment. Period.

Plain common sense dictates the aforesaid preclusion against a Supreme Court review because unlike the US Constitution, “culpable violation” of the Constitution is one of the grounds provided for impeachment. Justices of the Supreme Court making a decision in palpable (intentional) violation of the Constitution are impeachable. Therefore, to allow a review by the Supreme Court of the decision of the Impeachment Court finding any of the members of the Supreme Court guilty on such a ground would render the entire impeachment process in such a case inoperative or nugatory, obviously a situation the clear language of the Constitution never meant or the authors thereof intended.

Article XI of 1987 Constitution specifically provides for certain modes to prepare the impeachment case. The preparation process is referred to therein as the impeachment proceedings. Basically, there are two modes provided.

The first mode is covered by paragraphs (1), (2) and (3) of Sec. 3 of Article XI which is somehow the equivalent of the preliminary investigation stage of a criminal prosecution in the Philippines (or the grand jury trial in the US) where the object is to reach the prosecutorial decision to charge or not to charge, what acts to charge, and whether a case can be won based on the verified complaint and certain evidentiary matters that might be gathered in support thereof. The impeachment proceedings, instead of being considered as providing undue opportunities for harassment, are in fact a buffer to protect the public officer being investigated from harassment or from unfounded accusation especially where the complaint is filed by a private citizen. It is thus a mechanism by which the impeachment process at this stage is commenced leading up to the charging or indictment of the public officer in the impeachment complaint or articles of impeachment that completes the preparation process. It sounds oxymoronic but the decision to charge or not to charge (which takes place when at least a vote of one-third of all the Members of the House of Representatives is obtained) COMPLETES the “initiation” earlier STARTED by the filing of the verified complaint (either by any individual member of the House of Representatives or by any citizen with the endorsement by any such member). The intervening steps between the starting and completion of the “initiation,” which includes the referral of the complaint to the proper Committee and the action taken by the Committee thereon, are integral parts of the entire process of initiating the impeachment proceedings.

According to amicus curiae Justice Maambong, himself a Constitutional Commissioner, “initiation” STARTS with the filing of the complaint and ENDS somewhere . . . although to him, the vote or resolution on the floor of at least one-third of all the Members of the House does not initiate (meaning START) the impeachment proceedings but the filing of the complaint does. Thus, the Court noted, the proposal that “A vote of at least one-third of all the Members of the House shall be necessary… to initiate impeachment proceedings,” was not acted upon by the Constitutional Commission and the foregoing phrase “to initiate impeachment proceedings” was deleted in the final language on the ground that the said vote of the House does not initiate the impeachment proceedings but rather the filing of a complaint does. This is entirely correct because the vote of the House on the floor does not START but ENDS or COMPLETES the “initiation.”

The Court also acknowledged the following explanation of another amicus curiae, Father Joaquin Bernas:
Briefly then, an impeachment proceeding is not a single act. It is a complexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice.
Quite close. However, Father Bernas thinks the initiation STARTS with the “filing” of the complaint, and is COMPLETED upon “referral” to the Committee, not upon the vote or resolution by the House to charge or not to charge. Why, Father Bernas offers no plausible explanation, if at all.

Unfortunately, the Court bought Father Berna’s arguments and, by further attributing “initiate” a dictionary rather than a constitutional meaning, held:
Having concluded that the initiation takes place by the act of FILING of the impeachment complaint and REFERRAL to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. (Capitalization mine.)
This conclusion by the Court, with due respect, is constitutionally without any basis because the first mode of initiating impeachment proceedings covers and extends up to paragraph (3), Sec. 3 of Article XI which prescribes the prerequisite vote of the House. Without compliance with the said paragraph (3), the “initiation” is incomplete and unconstitutional.

By contrast, the provision of the House Impeachment Rules (Rule V, Section 16) is squarely in compliance with the procedure prescribed by the Constitution because pursuant to it, it is only upon obtaining the prerequisite vote of the House either affirming or reversing the Committee’s resolution that the proceedings is “deemed initiated.”

In the case of the impeachment filed by President Estrada—the first attempted impeachment against Chief Justice Davide (and seven other Associate Justices)—the vote by the House of Representatives had never taken place pursuant to paragraph (3), Sec. 3 of Article XI; hence, the multi-step initiation process had not been completed or ended.

Hypothetically, if the initiation of the first impeachment proceedings is considered completed upon “referral” to the Committee, as the Court held, and hence a bar to any subsequent initiation against the same official within the one-year prohibition, then it would be quite tempting for one conceiving of some kind of impeachable acts of adventurism—let’s say with the backing of certain members of the High Tribunal constituting the majority—to contrive first a weak impeachment strawman against her. Then, once the put-on is disposed of for being what it was intended to be, sans the examination and vote of the House, she executes within the same year her true sinister plan, now fully insulated from the impeachment process by virtue of the time bar. That scenario, if subjected to the rather expansive scrutiny by the full House or at least by a greater number of gutsy and conscientious members thereof, in the tradition of the Davides of the old Congress, could certainly be obviated more “effectively” with the application of the House Impeachment Rules, which requires that to be “deemed initiated” it should go beyond the Committee referral phase of the “initiation” and up to the House vote as the Constitution prescribes.

The second mode of initiating impeachment proceedings is covered by paragraph (4), Sec. 3 of Article XI. All that is required under this mode is that the verified complaint or resolution of impeachment be filed by at least one-third of all the Members of the House; then the complaint or resolution shall constitute the Articles of Impeachment. This is rather an abbreviated procedure (there being supposedly no “complexus of acts” involved). This is also the mode pursued in the second impeachment, this time only against Chief Justice Davide.

It should be noted that pursuant to the exclusive character of the power of the House of Representatives to initiate the impeachment process, both the first and the second modes of initiating impeachment proceedings require the vote of at least one-third of all the Members of the House of Representatives. The Court offered no clear and principled reasoning why such requirement by the Constitution should not be followed.

What’s further noteworthy of mentioning is that the actual process followed by the impeachment initiators in the said first attempt at impeachment, with or without reference to or reliance upon the disputed House Rules, had been well in compliance with the procedure spelled out in the Constitution; however, the initiation being incomplete, it could have not been a bar, contrary to the Court’s ruling, to the second impeachment proceedings against Chief Justice Davide.

Judicial independence, Chief Justice Davide contended, is the ultimate issue involved in his impeachment. It leaves us wondering whether the Supreme Court in the performance of its judicial duty to interpret the law did not rush to judgment while in search for what the Constitution limits, or in fact was in a strategically territorial mode to evade the duty so as to protect its own province from encroachment, imagined or not, by the “Brat Pack” congressmen

By declaring the pertinent provisions of the House Impeachment Rules unconstitutional, and barring the second impeachment by virtue of such declaration, there could be no doubt the Supreme Court did so without clear or appropriate constitutional authorization.

However, I would hesitate venturing to say the Supreme Court is liable for palpable violation of the Constitution. I would not say either that the House in promulgating its Rules on impeachment did not try any better to comply with its mandate under paragraph (8), Sec. 3 of Article XI “to effectively carry out the purpose” of the provisions of the Constitution.

In the end, if deference were properly accorded a coequal branch, the dread of imperial judiciary should have been allayed, nullifying the House Impeachment Rule held off, bypassing the Senate’s role as the sole Impeachment Court averted, denying Chief Justice Davide the full opportunity to prove his innocence forestalled, and ultimately, the needless consequence of imperiling the republican principle should have been avoided—all in the liberating spirit of ’86 which produced the 1987 Constitution.


The Constitution provides:

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.

Sec. 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.

Sec. 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 of 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 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. (Emphasis supplied.)

On the other hand, the House Impeachment Rules state:


Section 16. – Impeachment Proceedings Deemed Initiated. – In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance.
In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

Section 17. Bar Against Initiation Of Impeachment Proceedings. – Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official.


Post a Comment

<< Home