More salutes to due process

MR. RICARDO SALUDO (one of President Arroyo’s spokespersons) in a Newsstand post titled The challenge of due process writes:

Given the way due process evens the odds for the accused, it should surprise no one that some accusers once so eager to hurl charges with little challenge now think twice about testifying in impeachment proceedings. Yet the odds are far from even for the President or for due process itself. Millions of Filipinos have already judged the First Family without the benefit of a fair trial, if recent surveys reflect public opinion. Due process too may have credibility problems, not because it is flawed, but because its even-handed proceedings and strict rulings will surely present a very different impression of what happened than the largely unchallenged accusations aired (in the) current controversies.

One thing is therefore imperative for the impeachment and its rulings to win wide acceptance and to bring stability, not further unrest. Proceedings should not only be conducted with unassailable fairness, but also be clearly explained and justified to a public already steeped in months of allegations and materials intended to incriminate. These claims have faced hardly any opposition from lawyers of the accused who have rightly kept their counter-evidence and arguments under wraps until due process begins.

At the time when Senator Lacson was the one at the receiving end of a congressional investigation, I have written a piece on due process to argue in favor of the investigatory power of Congress versus the right of Lacson to resist it on due process ground, as follows:

One of the main objections to the conduct of the congressional hearings about the possible involvement in what could potentially be some polity-shattering high crimes (which include drug trafficking, kidnapping, political assassination, murder, and money laundering) of newly elected senator Panfilo Lacson, and other personalities several of them are high ranking officeholders, was the supposed violation of the due process requirement. The other concern was that the hearings were taking time away from the Legislature’s task of lawmaking.

My observation about the due process issue being raised is that it is more or less based on the procedural aspect of the requirement. By Daniel Webster’s definition, procedural due process is “a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.” It also requires that, by a widely acceptable standard, the judge should be indifferent and upright.

I believe invoking the application of procedural due process requirement at this stage of the (Lacson) inquiry is premature. As it is, the investigation is being conducted by the appropriate congressional committees not with a view to depriving those involved of their life, liberty and property but only “in aid of legislation.”

The more relevant issue to consider therefore is whether the Senate committees conducting the inquiry are pursuing the matter “in aid of legislation” within the context of the Constitution (Article VI, Section 21 thereof) or for other purposes that infringe upon the fundamental concept of fairness or substantive due process.

Substantive (as opposed to procedural) due process—straining what I, as student, have learned from then Justice, and later Chief Justice, Fernando—is not a narrow or pedantic concept. As a restraint on official action, it is more or less rooted on societal values rather than technicalities. While it is also a check on both the means used as well as the ends sought to be accomplished, it does not however bar fresh approaches to solve problems menacing the very foundation of society. If both the ends and the means do not “outrun the bounds of reason,” to quote exactly Fernando’s favorite phrase from Cardozo, as the community understands them, the requirement of substantive due process is met.

It is noteworthy that Justice Fernando’s framework of substantive due process is in terms of individual rights’ protection. That is to be expected, Justice Fernando being first of all a civil libertarian. It should therefore be distinguished from the inaugural logic of the development of substantive due process in the United States whereby the unelected US Supreme Court has infused laissez-faire arguments to protect economic rights of big business and use judicial veto of social and economic legislations enacted by the people’s representatives—however skewed the representations might be. [The birthstone of substantive due process in the United States is thus shoddy at best.]

Is it unreasonable or oppressive on the part of the Senate committees (and hence violates due process) to conduct the inquiry on Lacson under the claim of “in aid of legislation”?

The scope of policymaking by Congress, the most representative of the three branches of the government, is exceedingly immense. National security and defense, economic development, environmental protection, health, education, foreign relations, world trade, peace and order, social justice, terrorism, insurgency, public morals and ethics, social welfare, poverty alleviation, graft and corruption, and many others.

In the name of legislation, Congress can also examine power and resource distribution such as the proper role of civil society and progressive groups, and the clout of well-entrenched factions in governance or, under pressure of the loudest, go as far as to strike at the core of the system and the ideological assumptions upon which it is based.

In sum, the purpose of legislative power or policymaking is the preservation of the commonwealth itself and of every person in it, which is the first and fundamental natural law. The entire legislative process thus provides an avenue where the conflicts of public life or of society itself are debated and deliberated in public view even without making laws . . ..

There is no question that as an express grant of constitutional power, legislative inquiries “in aid of legislation” are subject to the requirement of due process. However, legislation per se could also be an exercise of the “power of doing public good without a rule” except, possibly, the law of preservation of the society. In the latter instance, it is in the nature of the Lockean prerogative in aid of the nation.

In a nation badgered incessantly to founder on the rocks by widespread graft and corruption, military mutiny, and subversion, procedural due process—which includes the full opportunity to avail of the technical rules of procedures such as to exercise the right to bail, have access to competent counsels, or basically not to be condemned without proper hearing—could increasingly become a luxury. As such, the right is available only to those who could afford it. If a society caves in totally, individual liberty could be rendered meaningless as it becomes exposed to the invasion of others in a natural state where “man is equal to the greatest, and subject to nobody.”

As the Senate investigations of Senator Lacson unfolded, there were telltale signs we could have trifled with this dreadful state of societal enfeeblement. Fortunately, no one has come forward to claim that the extent of the drug menace in the country as thus far unveiled was nothing but a product of an “overactive imagination.” While much remains to be desired in terms of pinning down individual culpability, the magnitude of the problem of narco-politics in the Philippines could downgrade the conflict in the South, the presidential plunder trial, or the country’s economic woes, to play second fiddle to such a monstrosity as has been creeping insidiously into the national physique and psyche.

TODAY, there are grave parallel concerns that “this dreadful state of societal enfeeblement” threatening to turn upside down the very system in place itself - such as the full consequences to Philippine society and its body politic of the accusation about conspiracy (involving the Office of the President, the COMELEC and the Military) to subvert the sovereign will caught in audio tapes - could be trifled with by the sheer powerplay of numbers of the dominant legislative coalition and by callous resort to technicalities in an equally vital and constitutionally committed legislative function called impeachment.

Hence, it may be apropos to refer once more to the constitutional meaning of substantive due process as adhered to in the Philippines. It is, according to then Justice Fernando in J. M. Tuazon (1970), “a mandate of reason. It frowns on arbitrariness, it is the antithesis of any government act that smacks of whim and caprice. It negates state power to act in an oppressive manner. It is, as had been stressed so often, the embodiment of the sporting idea of fair play. In that sense, it stands as a guaranty of justice. That is the standard that must be met by any governmental agency in the exercise of whatever competence is entrusted to it.”

Now, President Arroyo facing impeachment is not a defenseless underdog or a pauper litigant who deserves extra Parens Patriae due process protection. She comes to the proceedings as the all-too-powerful symbol of the government with all the resources her high office can command. Indeed, she could afford to wait “until due process begins” because she has other megaphones (Bobi, Mike and Ric, to name a few) at her disposal to confront or discredit mounting reports of her alleged impeachable offenses. She cannot possibly pretend or assert (as a poor peasant like Hauchecorn in Guy de Maupassant’s Piece of String rightfully could have claimed) that she has been deprived of any crucial opportunity to “even the odds.” For, if Arroyo’s high-powered defenders “rightly kept their counter-evidence and arguments under wraps” it is quite reasonable to deduce that such a recourse was more of a strategic choice on their part than anything else. (True, we are riven at the thought that Maupasant has chosen to condemn Hauchecorne shorn of substantive due process until his death.) Arroyo is not a poor girl from Lubao, moreover. She is one of the most powerful women in the world.

But Mr. Saludo bewails:

Opponents of due process can exploit the public’s limited legal knowledge to cry injustice over hard-to-explain rulings. Some issues that may be controversial: Should congressmen consider only one complaint, and leave the others for next year? Can the impeachment include actions and events prior to the current term of the President? Can electoral fraud charges and the validity of the results of the May 2004 elections be covered, or should these be left to the Presidential Electoral Tribunal, the sole body empowered to rule on election contests over the top elective posts?

The only question of the hour at this preliminary stage of the impeachment proceedings before the House Committee on Justice is: whether the impeachment complaints filed are sufficient in form. Supposedly, there ought to be yet no substantive inquiries involved, not even the question of whether “probable cause” exists. Sufficiency in form, it has to be stressed, is not a statutory, much less a constitutional, requirement.

If President Arroyo is interested in constitutional redemption and in summoning up her moral ascendancy to govern the nation, it is to her advantage to lead the way to clear all the roadblocks leading towards those goals.

Anyway, the matters specified above by Saludo have been amply touched upon in Is Arroyo really interested in the Rule of Law? which, one believes, is the true challenge at hand, not the suggestion of a poor girl’s culpable deprivation of due process.