IMPEACHMENT: AT LAST!


The good news is that after five or so years, we may finally impeach Merceditas Gutierrez. This is because of the Supreme Court’s ruling yesterday dismissing her petition to restraint the House of Representatives from hearing two impeachment complaints against her. The Ombudsman complained that since two petitions were filed against her; to wit, one from Akbayan and another by Bayan, then there is a violation of the constitutional prohibition on the filing of multiple impeachment complaints within one year.

With a slim majority, the Supreme Court upheld our earlier position in Martinez vs. House of Representatives where we argued that the prohibition is against multiple impeachment proceedings and not multiple complaints. In Martinez , the House of Representatives, taking the cue from Congressman Edsel Lagman’s “prejudicial questions”, ruled that a subsequent amended impeachment complaint, which superseded the original Lozano complaint against GMA, was barred as a prohibited second complaint. On certiorari, we argued that since the decision of the Supreme Court in Roque vs. De Venecia was that commencement of an impeachment complaint was the filing of an impeachment complaint and its referral to the Justice Committee, there is no violation of the constitution where both the original and the amended complaints were referred to the Justice Committee at the same time. The only weakness in our position then was articulated by Fr. Joaquin Bernas who agreed with our position, but doubted if the court can compel the Committee on Justice to consolidate all complaints into one committee report which is the usual recourse in legislation. With this latest ruling in the Gutierrez case, it is now clear that impeachment, as the constitutional mode to promote accountability of very high impeachable officers, is not a race amongst rats. It can no longer be that an impeachable officer can have a year free of impeachment through the filing of an earlier sham complaint that could be dismissed by congress for insufficiency in form and substance. At least, it is now clear that the one impeachment bar should apply only after the Committee on Justice had already deliberated on all complaints referred to it on the same date and not just on the basis of which complaint was filed first.

The practical consequence of the ruling is that finally, we can hold the Ombudsman liable for her non-action in complaints involving GMA and her cohorts. It also involves her snail pace investigation in the 15 year unsolved murder case of Navy Ensign Philip Pestano whose killers continue to be at large until today. It must be a source of solace to the parents of Philip that while the killers have not yet been punished, a woman who was instrumental in their impunity could at least be held liable.

I hasten to warn though the House Committee on Justice from entertaining further charges not included in the twin complaints of Akbayan and Bayan Muna. I have read Deputy Speaker Erin Tanada’s opinion that they are studying including the additional charge of the Gen. Garcia plea bargaining agreement as a further charge against the Ombudsman. With all due respect to Rep. Tanada who should be Senator soon, this may give the Ombudsman further armament to go up anew to the Supreme Court to question the validity of the extra charge. The fact is, regardless of the specific charges against her, what we need now is the political will to muster the numbers to remove the Ombudsman. While the Garcia plea bargain deal is equally deplorable, let’s not risk yet another stay order from the high court . Let’s concentrate on getting the numbers and getting it as soon as possible.

Still on the issue of accountability of public officers, while our local customs and traditions value honoring the dead, I am nonetheless of the belief that the recent burial of former AFP Chief of Staff Angelo Reyes should mark the commencement anew of our continuing search for the truth and accountability. Without meaning to be disrespectful, the decision to end his life was one made by Gen. Reyes alone. This should not be a reason for us to detract from the genuine issue at hand, which is systemic corruption in the military. While I condole fully with the Reyes family, I agree still with the opinion of Senator Miriam Defensor-Santiago that the estate of Gen. Reyes should still be held responsible if it is proven that the departed General really partook of the pabaon system. That system is illegal, full stop. Moreover, regardless of how one may have viewed the actuation of Senator Sonny Trillanes in questioning Gen. Reyes, the fact remains that the good Senator was only articulating what should be the correct position of every decent human being: absolute intolerance to corruption. I submit that part of why corruption has become systemic in this country is that we put too much emphasis on “civility” over principles. The correct conduct should be to shame those who have plundered the public coffers so that they may not enjoy the fruits of their criminal acts as if they are civilized people. In other words, we should consider thievery as the worse form of conduct and deal with them accordingly: with absolute contempt. This is what is meant by zero tolerance to corruption. And this is what we must do to end corruption in this country.

To the thieves in this country: beware. We shall shame you and in a manner that would make the conduct of Trillianes look genteel.

Published in: on February 18, 2011 at 8:48 am  Comments (9)  
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THE TRUTH IS UNCONSTITUTIONAL


I expected the recent decision of the Supreme Court declaring EO 1 creating the Truth Commission unconstitutional. I did so because I have known since the appointment of its current Chief Justice, that the court is one of the many institutions that have been weakened by former president Gloria Arroyo to ensure her impunity. In a previous published commentary, I said that a constitutional crisis would not be forthcoming if P Noy honors his campaign promise never to recognize what he himself described as a “midnight Chief Justice”. This, I said, has become a political question because it is on the basis of this promise , among others, that an overwhelming majority of the electorate elected him into office. Instead, I warned that a constitutional crisis in fact be would be forthcoming if it is the Court itself that abdicates from its primary mandate to uphold the supremacy of the Constitution.

By ruling that a toothless tiger such as the Truth Commisison is unconstitutional, the Court, in the exercise of its educational function, has effectively accorded Gloria Macapagal- Arroyo with impunity. First, it was the Ombudsman that told us that the former president could not be investigated for lying, cheating and stealing. Now, it is the Supreme Court telling us the same thing. Where should ordinary citizens now go for redress of grievances against public officials suspected to have breached the constitutional precept that public office is a public trust? Where should we go now to enforce this trust ? Until this decision, we thought we can go to the court of last resort.

Truth to tell is that I myself am not a big fan of this commission. I have written that it would be a toothless tiger unless it utilizes existing powers of the Department of Justice to conduct preliminary investigations, the Office of the Solicitor –General to file civil cases for forfeiture of ill-gotten wealth, and the Anti-Money Laundering Council for forfeiture of dirty money. All these suggestions fell on deaf ears. But precisely because it is a toothless tiger, how on earth can it be unconstitutional?

Sure the commission will duplicate the functions of the Ombudsman. But since when did the enforcement of the country’s anti-graft laws become the sole monopoly of the Ombudsman? The last time I read our constitution, it is still provided that the power to enforce all laws is an executive function. Moreover, the duplication, unfortunately, is not just happening, even if we want it to happen. This is because the current Ombudsman has opted not to investigate, more so charge her appointing power with anything. Full stop.

And because the investigation of the possible commission of a crime is an inherently executive function, I find nothing unconstitutional in the fact the commission was both created and funded by the president. This is not the first fact-finding commission created. We have had the Agrava Commission, the Feliciano Commission, the Davide Commission and the Zenerosa Commission, to name a few. Al of them were created by sitting presidents and funded from lawful appropriations made by Congress to the Office of the President. None of these commissions were declared unconstitutional. It alarms me hence that one with only the power to unravel the truth is ironically, the commission declared to be unconstitutional.

Yes, there is also the objection that it violates the equal protection clause. But there can only be such a violation if among others, a rule is applied in a dissimilar manner to persons similarly situated. Where is this dissimilar treatment? Marcos was accused of widespread plunder and was dealt with by the Presidential Commission on Good Government. Gloria Macapagal-Arroyo, suspected of similar plunder, is now sought to be dealt with by the Truth Commission, minus the compulsory and sequestration power of the PCGG. Where is the dissimilar treatment? The fact that no commission was established against former presidents Ramos and Estrada is because neither could rival the avarice of either Marcos or GMA. Where then is the violation of equal protection?

In the final analysis, I myself disapproved of this Truth Commission because it could not bring Arroyo and her cohorts to justice. Even so, I was hoping that while Ombudsman Gutierrez is there to accord GMA impunity, the nation could at least ferret out the truth on such scandals such as Northrail, NBN-ZTE, Jose Pidal, the Macapagal Highway, Swine scam, and Hello Garci scandals. While the truth would not mean punishment for GMA and her cohorts, other truth commissions established in South Africa, Argentina and Australia have at least proven to contribute to the reparations of victims since to know the truth would enable them to begin the process of recovery. That was all that I expected of this Commission. And yet, with the vote of 10 men and a woman, even that is gone.

Will someone please tell me since when the quest for the truth has become unconstitutional?

Published in: on December 8, 2010 at 11:46 pm  Comments (11)  
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Battle Royale


Impeachment is once again controversial. In an unprecedented move, the House Committee on Justice lead by its Chairman, Rep. Neil Tupas Jr., voted overwhelmingly to defy a status quo order ordered by the Supreme Court on the impeachment complaint filed against the Ombudsman Merceditas Gutierrez. At issue is whether a second impeachment complaint by the party list Bayan Muna filed and consolidated with an earlier one filed by Rep. Rissa Hontiveros of Akbayan was a prohibited complaint for violating the one-year ban on the filing of subsequent impeachment proceedings against an impeachable officer. The allegation of the beleaguered Ombudsman is that it is. The House of Representatives believes that the Court has no jurisdiction to hear the Ombudsman’s petition. This is because according to it, the initiation of an impeachment complaint is an exclusive power of the House of Representatives. Hence, the Court is bereft of jurisdiction to hear the Petition of the Ombudsman.
To the surprise of the House of Representatives, and before it could be heard, the Supreme Court issued a stay order that effectively had the effect of a restraining order. Predictably, the Court spokesman warned members of the House that they risk being cited in contempt of court should they proceed with their proceedings. Well, the die has been cast: the House has defied the court. Who will blink in this constitutional confrontation?

We have had our share of involvement in impeachment proceedings. In 2003, we petitioned the court to restraint the House of Representatives from transmitting its articles of impeachment against then Chief Justice Hilario Davide Jr. on the ground that the same was a second prohibited impeachment proceeding. This was because the articles of impeachment was signed by one-third of all members of the lower house a day after the Justice Committee had dismissed an earlier impeachment complaint against the Chief Justice for administering the oath to President Gloria Macapagal-Arroyo as President after Edsa 2.

Later, we also served as counsel for three impeachment complaints against ex-president Gloria Macapagal-Arroyo and a petition in the Supreme Court questioning the dismissal of an amended impeachment complaint filed after an earlier complaint filed by Oliver Lozano.

At the center of all controversies is the one-year ban provided in Section 3 (5), Article XI of the 1987 Constitution: “(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year”.

In the first case, the court ruled in Roque et. al. v. De Venecia that it had jurisdiction to act on the petition seeking to restraint the filing of the impeachment despite clear language of the Constitution that the House of Representatives has the exclusive power to initiate impeachment complaints. This, according to the court, is precisely the purpose behind judicial power, that is, to uphold the supremacy of the constitution where there is grave abuse of discretion on the part of an agency or department of government. There is grave abuse of discretion where a branch of government contravenes a literal provision of the Constitution.

The Court then ruled that initiation is upon filing of a complaint and referral to the Committee of Justice. Under this interpretation, the court ruled hence: “In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on Aug. 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro Jr. and Felix William Fuentebella against the Chief Justice on Oct. 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period”.

In the second petition, Martinez v. De Venecia, we questioned the decision of the House to junk the substantive amended complaint to the Lozano petition. We argued that what is prohibited by the Constitution is more than one impeachment proceeding per year and not multiplicity of complaints itself. Otherwise, we argued that all that an impeachable officer would do to ensure a year of impunity is to cause the filing of a bogus impeachment complaint.

In the vernacular, we warned that what would ensue would be an “unahan ng daga”. Hence we argued that what was literally prohibited was “multiple impeachment proceedings” and not “complaints”. No ruling on the merit was rendered in this second case because the court dismissed it on the ground that it had become moot when Mrs. Arroyo ended her nine years of destructive reign. But the court did miss a golden opportunity to give guidance to bar and bench on what is precisely prohibited by the constitution. This once more, is the issue in Gutierrez v. House of Representatives Committee on Justice.

The argument by the Ombudsman is that the House Committee on Justice violated the constitution when it consolidated the second Bayan petition with the first Akbayan petition and proceeded to determine sufficiency of form and substance of both complaints.

This we submit is the correct course of action in the event of multiple impeachment complaints. Provided it complies with the ruling in Roque that it was referred simultaneously to the Committee on Justice, the committee should consolidate all pending complaints in the same manner that any House committee would consolidate all the different bills covering the same subject matter in a committee report that would then be submitted to the plenary. The difference is that unlike in the earlier controversy, this is now the course of action taken by the Committee. Our problem then was whether as a result of separation of powers, the Court could in fact compel the House Committee on Justice to do what it did now in the Gutierrez complaint.

But the really interesting issue now is: which branch of government will blink? Relax and enjoy the best show in town!

Published in: on September 30, 2010 at 1:53 pm  Comments (4)  
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A necessary toothless tiger


Much has been said about the Truth Commission. While it is true that this body promised by President Noynoy Aquino as a means of ferreting out the truth on the many scandals of Gloria Macapagal Arroyo is in reality a toothless tiger, a superfluity, and will be the source of disappointment for many, it is still an exercise that must be resorted to if the Arroyos are to be held responsible for their many crimes.
The pitfalls of the commission are many. For instance, as a creation of the Executive, it cannot exercise powers beyond gathering facts. It cannot have the powers to issue summons, nor will it have the power to cite individuals in contempt. In other words, absent legislative imprimatur, it can only count on the willingness of crucial witnesses to testify and their voluntary submission of evidence.

To be sure, P-Noy’s Truth Commission is not the first in Philippine history. An earlier one was the Agrava Commission. It was formed to conduct factual investigation on who killed Ninoy Aquino. The appointed Chair of the Aquino Truth Commission was also legal counsel of the Agrava Commission. To highlight the weakness of fact-finding commissions, thirty years after the Agrava Commission was formed, we still do not know with certainty who killed Ninoy Aquino.

The Truth Commission is also being compared to the Presidential Commission on Good Government. The comparison at least is that both bodies seek to ascertain the sins of the previous dispensation. But that is the beginning and end of the comparison. For unlike the Truth Commission, the PCGG was a legislative creation, created pursuant to EO 1 issued by then President Corazon Aquino when she was exercising extraordinary powers that were both executive and legislative in nature. The PCGG could hence issue summons, order the production of evidence issue writs of sequestrations, and cause the filing of cases in court. The difference lies, in other words, with the fact that the law gave the PCGG extraordinary powers whereas the Truth Commission, being a mere creation of the Executive, cannot exercise powers not delegated to it by Congress, the latter in the exercise of its policy making mandate.

Can it compel, for instance, Romulo Neri to answer the three questions which would implicate Gloria Macapagal Arroyo in the NBN-ZTE scam but which were declared by the Supreme Court to be covered by executive privilege? Certainly not. If Congress, despite its plenary powers to conduct investigation in aid of legislation, was restrained by the Supreme Court, there is more reason that a mere fact finding commission would not succeed in this regard. Likewise, Cito Lorenzo, even if he wanted to turn state witness, could not count on the Commission to grant him testimonial immunity. It behooves both rhyme and reason why he would then incriminate himself voluntarily without being admitted first as a state witness.

Likewise, it is unlikely that the intelligence community, despite the chain of command, would voluntarily surrender information on the “Hello Garci” scandal. And of course, the Department of Foreign Affairs, still under Secretary Alberto Romulo, would not want to reopen the Northrail controversy as he would almost certainly argue that to do so would harm bilateral ties with China.

So is the Truth Commission completely irrelevant?

Not necessarily. In transitional societies like South Africa where convictions for the gravest human rights violation has become impossible because of the passage of time and the dearth of witnesses, truth commissions have at least accorded these societies an opportunity to heal. While justice was not completely served in the absence of criminals actually being meted sentences for crimes that they committed, the truth would at least give the victims an opportunity to move on. There is solace in knowing, for instance, that a loved one who has disappeared has conclusively been found to have been killed. These kinds of confirmations at least accorded mothers to grieve, rather than hope that their loved ones could still be alive.

The Truth Commission to be established by P-Noy should not, however, follow the pattern of the South African model. In truth and in fact, the Commission should meanwhile perform the fact-finding function that the Ombudsman has opted not to perform. With Merceditas Gutierrez appointed precisely to protect the Arroyos, the intention should be not to accord the latter impunity, but to engage in fact finding while there is paralysis, nay dereliction of duty, in the Office of the Ombudsman.

The Truth Commission should thus be supported precisely because the evidence against the Arroyos should be gathered and preserved while the merciless Mercy is still in office. It should never be considered as a substitute for the vast powers granted by the Constitution to the Ombudsman. It is, hence, a stop-gap measure intended to send the message that at no time should the Arroyos think that they can get away with their crimes.

Since the Truth commission appears to be a necessary toothless tiger, how then should the Commission proceed with its mandate?

To begin with, in the absence of legislative imprimatur, it must conduct its investigations utilizing existing executive offices with the powers that it will require. Here, it is indispensable that the Department of Justice formally conduct preliminary investigations on the many crimes of the Arroyos. In this manner, it can utilize its power to resort to compulsory processes, which the Commission does not have on its own. Furthermore, the Commission should also have the Solicitor-General on board. This is because existing laws on unexplained wealth grants the Solicitor-General the power to file forfeiture cases against proceeds of the crime of plunder and other violations of the Anti-Graft and Corrupt Practices Act. Likewise, the Commission should have the full support of the Anti-Money Laundering Council, if we are to freeze and still recover the ill-gotten wealth of the Arroyos and their cohorts.

Published in: on July 16, 2010 at 8:38 am  Comments (5)  
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THE OMBUDSMAN AND PRESIDENTIAL IMPUNITY


The Ombudsman has dismissed anew the Concerned Citizens Movement’s complaint against Mrs. Gloria Arroyo and her husband for the botched NBN-ZTE scandal. In dismissing the case against Mrs. Arroyo, the Ombudsman recited anew the mantra that the President is absolutely immune from suits while in Office. At the same time, the Ombudsman, perhaps to appease an angry public, charged former Commission on Elections Chairman Benjamin Abalos and Social Security System Chairman Romulo Neri with violating the country’s anti-graft law. It also upheld its own earlier resolution suspending Neri from office.The order of suspension is without a doubt a concrete achievement for the CCM since it was the only group of complainants that charged public officers involved in this scandal with both criminal and administrative complaints. Although co-convenor former Transportation and Communication Secretary Josefina “Josie” Lichauco did not live long enough to know about the finality of the administrative sanction against Neri, this is definitely a legal victory in that at least one sinister character in this episode was meted administrative sanction.

This latest dismissal of the complaint against the President is already the second order seeking to exonerate her on the basis of immunity in the same case. An order of dismissal was issued as soon as the CCM complaint was filed, also on the ground that while the Ombudsman is not a court, all proceedings conducted by it are apparently “suits” for purposes of presidential immunity. CCM then alleged that this was a wrong view since the Ombudsman, when evaluating complaints for violations of the country’s criminal laws on anti-graft and corruption, performs only a quasi-judicial function of determining the existence of probable cause. If it is there, the information is filed with the Sandiganbayan. If none, the complaint is dismissed. Obviously, a “suit” for purposes of the immunity of president applies only the moment an information is filed in court. It cannot include the preliminary investigation conducted by the Ombudsman in the determination of probable cause.

It is submitted that the Ombudsman’s construction of presidential immunity has further weakened an institution that the constitutional framers sought to grant with sufficient powers to uphold the constitutional adage of accountability of public officials. Like ordinary prosecutors, the Ombudsman conducts preliminary investigation with the view of not only charging those who have likely committed crimes, but also with the view of sparing the unnecessary wastage of public funds in the prosecution of those who are probably innocent. But unlike ordinary prosecutors, the Ombudsman is vested by the Constitution with extraordinary powers, including the power to:

“(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith x x x.”

In other words, the Ombudsman is not just a prosecutor, but is also the final administrative authority that has the power fire public officers for breach of the trust reposed in them. It also has the power to compel public officers to perform their duties.

Assuming therefore that the President is immune from suits, the Ombudsman, because it is not a court, could still investigate the President for any misconduct. If, despite the existence of probable cause, it cannot charge her in court; it could at least direct Congress, the exclusive body that can initiate impeachment proceedings, to perform its lawful duty of initiating impeachment. This is pursuant to its power to “direct, upon complaint or at its own instance, any public official or employee of the Government, x x x, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties”.

But the bigger issue is whether presidential immunity from suit remains the absolute rule. Again, it is CCM’s submission that absolute presidential immunity is a thing of the past. What is recognized today is the principle of limited immunity where heads of States are immune only for purely sovereign acts. Thus, when Augusto Pinochet was charged for the commission of torture and enforced disappearances, the UK House of Lord rejected the claim of absolute immunity holding that while sovereigns are indeed entitled to immunity from suit for sovereign acts, the commission of a crime can never be sovereign in character. To illustrate the point, the House of Lord even gave an example, that of a despot who ordered that his gardener be tortured for the sheer pleasure of seeing him tortured. “What, asked the House of Lords, is sovereign in this kind of an order?”

Not far from home is the decision of the US Court of Appeals in the Hilao v Marcos case, or the class suit filed by the victims of the Marcos dictatorship before an American Court. In response to an attempt by the Marcoses to have the suit dismissed on the ground of sovereign immunity, the US Court ruled that where the jurisdiction of the Court is vested by Congress itself through the Alien Tort Claims Act, a law that vests US Courts with the power to hear and decide cases against those that may have committed the international crimes of torture, war crimes, crimes against aggression and genocide; the defense of absolute immunity will not lie.

In yet another American case, no less than the US Supreme Court allowed a civil suit filed by one Jennifer Flowers to proceed against then sitting President Bill Clinton because as ruled the court, immunity only covers official acts and presumably, sexual harassment, which was the claim of Ms. Flowers, is not official in character.

Perhaps the status of law on the matter is evident in the international warrant of arrest issued by the International Criminal Court against the sitting President of Sudan, Omar al-Bashir for genocide, crimes against humanity and war crimes. Certainly, Bashir could argue that the crimes charged were committed in the context of an on-going armed conflict and are hence, sovereign in character. Despite this, he is today an international fugitive.

With all these developments, it should be obvious why international law, if not domestic law, no longer recognize absolute immunity for heads of states. For while in the past, it was thought that sovereigns cannot err, scandals like the NBN-ZTE prove otherwise, Ultimately, the question is: why should presidents be accorded impunity for non-sovereign acts?
Published in: on June 11, 2010 at 3:28 am  Comments (2)  
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