Thursday, October 25, 2007

Juggle out the bad guys too: a matter of wisdom

(This post was first made during the early phase of the trial of former President Estrada on plunder and other charges when he dismissed his defense lawyers and the “exile option” was at that time the subject of some serious debate. I considered myself then as a GMA sympathizer. What a difference six years make!)

Erap’s decision to dismiss his defense lawyers is a political ploy. It appears to be a sequel to the scheme being attempted to do a Ninoy (as some people are trying to draw certain parallel from it) by Erap’s seeking medical attention abroad for his knee problem as a prelude to exile, and eventually avoidance from criminal prosecution and possible conviction.

Erap is a far cry from Ninoy. Ninoy was never afraid to die for his principles. He was near death when given medical treatment during his hunger strike to protest his trial before a Kangaroo Court. When the Military Tribunal sentenced Ninoy to die by musketry, he at once asked that his favorite garb be brought in which he intended to wear as he was to face the firing squad.

Ninoy dismissed his lawyers in order not to legitimize the mockery of justice he was being made to suffer during the dictatorship. By contrast, if there’s anyone mocking the judicial process in the Erap trial, it is none other than the defense itself given the many dilatory legal sideshows it has initiated.

If I were the Sandiganbayan, I would just appoint those high-flying lawyers whom Erap has dismissed, as de officio counsels or, otherwise, cite them for contempt of court should they refuse to discharge their functions or fool around with their duties as officers of the court. That is one way of dispensing justice or, at least, chastening judicial irreverence.

On another plane, it would be naivety to agree to the suggestion that what’s at stake in the latest of this Erap saga is the judicial system of the country and nothing more.

There’s the sense that the Erap matter is just one of the many balls that GMA is delicately juggling at the moment, not to accomplish her projects, but simply to avoid a misfortune. Another tossed up is the marching song that US President George W. Bush wants every terror coalition choir member to be attuned to. The Philippines, which signed up early, is facing some fervent nationalist intonations even from GMA’s political allies. This nationalist sentiment could haunt the GMA government and the nation anytime Bush “unilaterally” changes the music.

Also up in the air is how to grate the surface of the slippery road to economic recovery with resources largely from wary foreign investors. The investors could be assuaged if only there’s some semblance of peace and order at least in the capital region. Otherwise, continued sluggish investment would translate into less meaningful poverty alleviation and other welfare initiatives for the increasingly agitated lumpen proletariat. A hopeless sense of further neglect on the part of the Great Unwashed could again precipitate a peace-and-order-breaching EDSA upheaval with the slightest stirring by demagogues or political opportunists, thus potentially jeopardizing even short-term economic recovery strategies. The situation, although not revolutionary, could become combustible, with even greater likelihood if Erap loyalists join the mix.

Present threats of instability from other firebrands not necessarily loyal to Erap could not be totally discounted as one of the balls that could be trifled with. The threat could come from the likes of the once fugitive or soon to be re-indicted Panfilo Lacson who has not been coy about his high ambition. Not lightly to be ignored are similar dangers that could come from some messianic colonels waiting in the barracks for the propitious time to perform their self-appointive roles or, on the darker side of fiendish chamber, from the polity-crippling tentacles of narco-politics.

As a matter of expediency and possibly humanitarian grounds, the proposition to exile Erap should therefore be seriously mulled over in the light of this juggling act that GMA is apparently performing on a tight rope. To leave the matter in the hands of a supposedly apolitical and unaccountable judiciary, the course the GMA government has adopted, is to ignore the reality that the resolution of the Erap cases has graver political, economic and other consequences than merely legal.

To keep the “judiciary out” and bring the “executive in” again, the following option is suggested:

1. Erap pleads guilty to his crimes as charged
2. Erap serves a minimum of one year of his sentence
3. GMA pardons Erap after serving one year
4. Erap goes on exile.

After Erap is out of the way, the GMA government then prosecutes Erap’s accomplices whom Erap should name before leaving, as part of the deal.

The less balls to juggle, the better are the chances of not missing to catch the rest.

For many interested parties including the plunder watchers and other people of like persuasion, they could always look at the foregoing proposition as a “win” situation. For one thing, a plea of guilty, a conviction and a token service of sentence on the criminal cases would be on top of the capital political penalty of loss of the presidency already meted out. Altogether, it should be as proximal as to the ideal satisfaction of the call for justice.

With the gadfly swatted out, the GMA government could now put its meager resources to better use than maintaining the expensive security measures for an ousted president pending the long drawn trial. Meanwhile, the Sandiganbayan or the Supreme Court might thus be spared from being embroiled in a predicament that certainly has more than strictly judicial implications.

If we want to show to the world that our legal or justice system works, maybe, we should first complete the dry run on the Marcoses and their relentlessly more pernicious accomplices. Many of them are back in our midst as untouchables after being driven into exile, and now doing business as usual. This privilege would be denied Erap should he leave the country as someone disqualified (because of the conviction) to re-enter elected public office while the government would be allowed to keep the alternative of prosecuting his partners in crime. For Erap, if he were not expecting a fellowship in Harvard, the option to simply enjoy fishing by Lake Tahoe would be available and quite beckoning. When knees start to buckle, isn’t it telling us that life’s too short?

One short note about justice. Justice like sovereignty is an abstraction. (Some serious questions about sovereignty have also come to prominence relative to the war in Mindanao and the Balikatan exercises). We uphold both through the notion of proper balance. In reality, however, the scale is not always perfect either in weighing, for example, the legal equality of sovereign states or in balancing the precedent wrong with the present response in the pursuit of a just society.

What seems to matter most is that when we put into play certain abstract principles we hold dear, we take into account the common good of the present as much as the future. Juggling the Erap ball out is a safe and wise way to comply with that goal.

Tuesday, October 09, 2007

Francisco, the father of Lozano and Pulido

According to Senator Miriam Defensor Santiago the impeachment complaint filed by private lawyer Roel Pulido, like the one filed two years ago by another lawyer Oliver Lozano, will “immunize [President Gloria Macapagal-Arroyo] from any impeachment attempt for one whole year. Then they will file again in 2008, and another in 2009. Effectively, they will not be able to impeach her.” The senator’s jeering excuse: “This is a political tactic. All is fair in love and politics and there is nothing the opposition can do about this.” (See for full account)

But who “effectively” closed the constitutional remedy of impeachment to the opposition? The answer is the Philippine Supreme Court in Francisco, Jr. v. House of Representatives (November 10, 2003).

The Court has practically crippled the impeachment process by adopting the Bernasian reading of “initiate” under Article XI, Section 3 of the Constitution in lieu of the interpretation of the House of Representatives, and taking up what it supposed as its “activist” role, declared such interpretation of a coordinate branch, contained in the House Impeachment Rules, unconstitutional.

Under the impeachment gun then was Hilario Davide, Jr. and so the robed gang huddled together and quite expectedly hailed their Chief - at the expense of the Constitution.

As amicus curiae in Francisco, Father Joaquin Bernas, the Jesuit constitutionalist, has argued in the following:
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.
Hence, to Bernas the initiation STARTS with the “filing” of the complaint, and is COMPLETED upon “referral” to the proper House 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.

As first indicated the Court adopted Father Bernas’ 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.)
With the above ruling, the then Chief Justice Davide has gotten off the hook on a technicality, and the “legal truth” about the allegations in the impeachment complaint against him now foreclosed.

Under scrutiny was Article XI, Section 3 of the Constitution which delineates the impeachment process. It reads:
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.)
I have had a couple of occasions before to expound upon the impeachment process, thus:
The duty to impeach is assigned by the Constitution 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, Sec. 3 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.
The conclusion reached by the Court pursuant to the Bernas interpretation, is, with due respect, 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 erstwhile provision of the House Impeachment Rules (Rule V, Section 16, which was declared unconstitutional in Francisco) was 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.”

Let’s recall and quote Section 16, of the ill-fated House Impeachment Rules:
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.
Now, at the first attempted impeachment against Chief Justice Davide (and seven other Associate Justices) - or for that matter during the first impeachment case against President Arroyo, 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 to constitute a valid time bar to an appropriate “impeachment initiation.”

I was, I guess, among the first to form the following hypothetical:
If the initiation of the first impeachment proceedings is considered completed upon “referral” to the House Committee and hence a bar to any subsequent initiation against the same official within the one-year prohibition, then it would be quite tempting to contrive first a weak impeachment strawman and then, once the put-on is disposed of for being what it’s been intended to be, sans the examination and vote of the House, the impeachable official could then proceed to execute within the same year the 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 could certainly be obviated more “effectively” with the application of the House Impeachment Rules, which required 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 (the now familiar Villar route) 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).

What is clear from the foregoing is that 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. This conclusion is inevitable pursuant to the exclusive character of the power of the House of Representatives to initiate the impeachment process. Why such constitutional requirement was not followed in Francisco, the Court offered no clear and principled reasoning.

At stake was judicial independence, Chief Justice Davide contended about his impeachment. Was it that or the Supreme Court simply rushed to judgment to protect its territory.

For some ad hoc gain of barring the second impeachment of Chief Justice Davide and declaring the pertinent House rules unconstitutional, the Supreme Court has proceeded without clear or appropriate constitutional authorization and has thereby emaciated the impeachment process as a vital constitutional checks and balances mechanism.

The monumental gaffe by the Court in Francisco is being exploited and abused anew via the Pulido impeachment complaint to trash a potential third attempt to make President Gloria Macapagal-Arroyo accountable to the impeachment process.