Is Arroyo really interested in the RULE of LAW?

(The unedited original of this piece first appeared in PCIJ this morning in a spontaneous reaction to Aleck Pabico’s scientific disputation of DENR Secretary Michael Defensor’s “dagdag boses” theory)

President Gloria Macapagal-Arroyo (GMA), invoking Rule of Law, has told her detractors “Impeach me!”

Then one Oliver Lozano, a lawyer, filed on June 27, 2005 an impeachment complaint, endorsed by a member of the House apparently to comply with the requirement of the Constitution.

Lozano has filed seven more complaints to supplement his original complaint. On July 4, 2005, another lawyer, Jose Lopez, also filed an impeachment complaint against the President. And on July 22, 2005, the “Opposition” filed an amended complaint (amending Lozano’s original complaint).

GMA, through her lawyer Pedro Ferrer, wants all complaints dismissed or stricken off except Lozano’s original complaint and the first supplemental complaint filed the day after the original complaint.

Considering the gravity of the whole range of complications attendant to impeaching a president (as the whole nation already realizes), the Lozano complaint as well as his first supplemental complaint - the only impeachment complaints GMA is willing to confront - is a joke.

Anyway, GMA justifies her position (to ignore the other complaints, especially the rather well-honed amended complaint filed by the Opposition) upon the following grounds:

1. The other complaints violate the one-year bar rule on initiating impeachment proceedings;

2. The impeachable offenses (prominently, the ones based on the “Garci Tapes”) were committed during GMA’s first term (referring to the unexpired term of Joseph “Erap” Estrada, who was deemed “constructively resigned” by the Supreme Court);

3. The supposed impeachable offense, the “election fraud” in particular, is a matter that only the Supreme Court, sitting as Presidential Electoral Tribunal (PET) can try and decide on;

4. The “Garci Tapes,” even if true, are inadmissible in evidence because the phone conversations between the President and a COMELEC commissioner about altering election results are private conversations;

5. If at all, only the original complaint should be entertained because the other complaints were filed without the permission of the “court”.

Let’s tackle the FIRST ground now because GMA considers it as highly prejudicial.

The Constitution provides that “The House of Representatives shall have the exclusive power to initiate all cases of impeachment.”

The Supreme Court has once grappled with the term “initiate,” as used in the above provision, in Francisco vs. House of Representatives, during the attempt by Congress to remove from office Chief Justice Davide by impeachment.

The Court, adopting Father Joaquin Bernas’ logic (Bernas arguing as amicus curiae), ruled that: “. . . initiation takes place by the act of FILING of the impeachment complaint and REFERRAL to the House Committee on Justice . . .” (Capitalization mine.)

I have carefully analyzed the Francisco decision in The gang hails the Chief, the pertinent portion of which reads:

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 IMPEAHMCMENT PROCEEDINGS. xxx

The 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) [declared unconstitutional in Francisco] 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. xxx

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.

The hurried and careless reading by the Supreme Court of the impeachment provisions in Francisco (bordering, as almost it seems, on culpable violation of the Constitution) could not properly be relied upon by GMA, and Congress, if it has the spine, should ignore and perforce correct the same under the principle of coordinate interpretation of the Constitution by a co-equal branch having the exclusive authority to initiate and then the sole power to try and decide impeachment cases.

The SECOND argument of GMA to the effect that assuming, arguendo, the act of betrayal of public rust (i.e., “election fraud”) was in fact committed by her, the impeachable offense was however perpetrated during an office term already bygone, ignores what is obvious: The betrayal is continuing up to the present.

If the sovereign will has been abused on or about the last presidential election, the Filipino people will continue to be betrayed each day the President holds on to the highest office of the land she is not entitled to. And even if she actually won the elections, her “lapse in judgment,” not fully and wholly explained up to this date, will remain as careless and callous trampling and trifling with the sovereign trust clearly amounting to an inexorable case of betrayal of public trust.

Under the THIRD argument, GMA claims that the principal charge, “election fraud,” is in the nature of an election contest and therefore the Supreme Court, sitting as Presidential Electoral Tribunal (PET) should try and decide the matter to the exclusion of the impeachment power of Congress (Note: The election contest filed by FPJ has already been dismissed by the PET following the untimely death of FPJ).

Nice try. The impeachment is not about GMA’s election. It is about her un-election (removal from office to pre-terminate her tenure upon specific grounds enumerated by the Constitution) because she cheated, as alleged, during the election. One is apple, the other is orange, to put it simply.

It is claimed in the FOURTH argument that the “Garci Tapes” even if true, are inadmissible in evidence because the phone conversations between the President and a COMELEC commissioner about altering election results are private conversations.

The president talking to a COMELEC commissioner about elections a private conversation? Private as a frog, maybe. Besides, if GMA is really interested in the truth, it is her high duty to waive her supposed right to privacy at this crucial juncture. GMA owes it to herself to prove her innocence once and for all and then, if successful, resume forthwith her governance responsibility. To say the very least, it is not very pretty for her to hide behind some technicalities while the nation is in crisis.

The FIFTH argument stretches the realm of legal gobbledygook. It claims that, if at all, only the original complaint should be entertained because the other complaints were filed without the permission of the “court”.

Whew! Even at this stage the President’s smart lawyers are already treating the House Committee on Justice as a court. In fact, somewhere in the Motion to Strike, if you read it but have not noticed it, the Committee has been addressed as “the Honorable Court, sitting as an Impeachment Court.”

Even a cursory reading of the pertinent impeachment rules of the House indicates that the impeachment proceeding is only at the stage now where the Committee on Justice is supposed to determine only whether or not the impeachment complaints are sufficient in form and substance. Of course, the House of Representatives - not a private individual, a member of the House, or the Committee on Justice (as explained above) - has the EXCLUSIVE power to “initiate” impeachment cases, but it is the Senate, and no other, that sits as the Impeachment Court.

The purpose of initiating an impeachment case, to reiterate, is to determine whether there exists a “probable cause” to charge the public official, in the instant case GMA. I will hazard to say that PCIJ’s analyses of the “Garci Tapes” are sufficient probable cause. Why is the Committee on Justice not issuing the proper process to compel the production of those analyses?

What then is the logic (or the illogic) about the insistence by the GMA lawyers that the pleadings sought to be stricken off should be stricken off because they were filed without leave (permission) by the court, hence dragging early into unnecessary legal fray what the lawyers wish to be the strict (yet supplementary) application of the Rules of Court?

I will venture a guess. They are baiting the unwary to go for an early application of the Black Robe Theory. Hey, the gang hailed the Chief before, why not Madame President?

Is President Arroyo really interested in the Rule of Law ?