CRISIS OF THE ARROYO REGIME
Why the Impeachment Complaint Will Still
Prosper
Legal and constitutional
basis for reviving the impeachment against Arroyo
The House exceeded its
jurisdiction when it usurped what is rightfully a decision reserved for
the Senate trial court. The task of the House is to merely initiate the
impeachment case—finding whether it is sufficient in form and substance,
not on whether a complaint is a second or third complaint.
By the Counsels
for the Defense of Liberties (CODAL)
Posted by Bulatlat
BACKGROUND
The House Committee on Justice found the Lozano Complaint sufficient in
form but insufficient in substance, 31 August 2005. Although the Lozano
complaint was not verified as required in the Constitution and the Rules
of Impeachment of the 13th Congress, the Committee declared that because
Lozano is a lawyer, he is bound by his lawyer's oath to tell the truth and
therefore there is no need to verify the complaint. Furthermore, since he
is the complainant himself, there is no need to verify the same.
On the other hand, the Committee on Justice found the Lozano complaint
insufficient in substance because it charges offenses committed before the
current `term' of President Arroyo (having been committed before her term
started on June 30, 2004) and that the Lozano complaint is based on the
Garci tapes which is inadmissible in evidence.
It must be noted that, while the Majority portrayed themselves as strict
constitutionalist in dismissing the Amended Complaint they were leniently
`extra-constitutionalist' in finding the Lozano complaint properly
verified, and therefore sufficient in form, in violation of the
requirements of the House Rules and the Constitution. The basis of their
decision in finding the Lozano Complaint insufficient in substance, is
neither strict or lenient— because it simply was not based on any rule or
law.
I. Is the Lozano Complaint sufficient in form even if it was not
verified as required by the House Rules?
No, it was not sufficient in form.
RULE II SECTION 2 of the House Rules on Impeachment requires that for an
impeachment proceedings to be `initiated' the Complaint must be verified.
Section 2. Mode of Initiating Impeachment. - Impeachment shall be
initiated by the filing and subsequent referral to the Committee on
Justice of:
(a) a verified complaint for impeachment filed by any Member of
the House of Representatives or;
(b) a verified complaint filed by any citizen upon a resolution of
endorsement by any Member thereof; or
(c) a verified complaint or resolution of impeachment filed by at
least one-third (1/3) of all the Members of the House.
Verification is when the author of the pleading or the complainant attests
that: S/he prepared the complaint, and the contents thereof are `true and
correct' of his or her `own personal knowledge' and based on `authentic or
official documents/records'. Lozano did not declare this in his complaint.
Therefore his complaint is not verified.
Can you use `interpretation' or `construction' in this case? The
majority themselves have repeatedly declared during the debates, using a
Supreme Court rule, that when the `rules or the law is clear, there is no
room for interpreting or construction'. In this case the rule is clear:
it must be verified in order for an impeachment complaint to be initiated,
but the Committee stretched the definition of what is verified to
accommodate the complaint. It was not verified, but the Committee found
it sufficient in form. In fact, without the verified Amended Complaint
which cured the Lozano Complaint's defects, no impeachment proceedings
were initiated.
Another Supreme Court jurisprudence comes into play: `When the rule or the
law does not distinguish, one should not distinguish' and supplant the
letter and intent of that particular rule or law. The Constitution and
the Rules said a complaint must be verified—it did not provide that
lawyers or complainants are exempted. The Justice Committee, therefore,
cannot exempt. They cannot distinguish. Declaring that the Lozano
complaint is verified merely because he is the complainant and a lawyer at
that, is clearly without legal and constitutional basis.
It was, however, difficult for the Justice Committee to dismiss the Lozano
Complaint for insufficiency in form. They have just previously dismissed
the Amended Complaint because the Lozano complaint was `initiated' first.
Dismissing the Lozano complaint on form insufficiency is tantamount to
calling the Amended complaint `a second complaint' to a first complaint
which was, in the end, not a complaint at all as required by the Rules.
II. Is the Lozano complaint insufficient in substance because it
dealt with an offense which happened outside the current term of President
Arroyo and also uses `evidence' that is inadmissible? No, these bases
are practically non-existent.
Firstly, the rule
does not require the Justice Committee to go beyond what is required to
establish substance. The 13th Congress' Impeachment Rules
declare that substance is met if `there is a recital of facts constituting
the offense charged and determinative of the jurisdiction of the
Committee'. This merely means that the complaint must allege facts, which
if true, would constitute impeachable offenses. There is no room for
debating whether the facts are true or not, as this is not the stage where
guilt and innocence are established.
The Lozano complaint alleges, inter alia, that President Arroyo committed
the impeachable offense of betrayal of public trust when she talked with a
Comelec official and further, she committed electoral fraud as evidenced
by the Garci tapes.
The Justice Committee should, therefore, merely judge whether electoral
fraud, if true, constitutes an impeachable offense—without looking into
whether the evidence that will back up this allegation is admissible since
such is a matter of defense for Pres. Arroyo to raise and for the Senate
to decide. Even if the Justice Committee will not agree that a candidate
talking with a Comelec official she appointed and may reappoint,
constitutes a betrayal of public trust, the allegation of electoral fraud
is sufficient for the Lozano complaint to pass substance. Electoral fraud
is certainly an impeachable offense.
Secondly, electoral fraud is a betrayal of public trust as it violates the
oath of office of the Pres. Arroyo and the principle that public office is
a public trust. Furthermore, the Framers of the 1987 Constitution have
declared that electoral fraud is part of the impeachable offense of
betrayal of public trust. The Constitutional Commission debated the
proposal of Commissioner Blas Ople to add the impeachable offense of
`manifest and gross disregard of the popular will' through "massive
election frauds" (Constitutional Commission Journal II, page 24, 28 July
1986). The Commission decided that massive electoral fraud is already
encompassed by "betrayal of public trust".
Mr. Sarmiento : My humble opinion, x x x is that the words "Manifest
and gross disregard of the popular will' is included in the catch-all
provisions betrayal of public trust and violation of the Constitution.
Mr. Ople : I grant that, x x x
Mr. Ople : Is it also the intention of the Commission to
make this offense part of `betrayal of public trust", which is the
latest ground for impeachment adduced in the provision?
Mr. Monsod : Madam President, the Committee agrees with the opinions
of Comms. Concepcion and Bernas that the phrase `manifest and gross
disregard of the popular will is more limiting and, secondly, this offense
could be considered embraced in the other grounds for impeachment. . .
The President (Munoz-Palma): So, for the record, the first proposed
amendment is withdrawn?
Mr. Ople : Yes, on that understanding, which I hope the record of
this debate will very clearly register x x x.
Electoral fraud is therefore, an impeachable offense if committed by the
President or vice president etc. The Justice Committee interpretation,
however, (that the President cannot be charged for acts committed before
her term of office) makes it impossible for the President to commit
betrayal of public trust through electoral fraud because this can only be
committed by any president (or any public official for that matter),
before their term—elections happen before the start of the term of a
public official. Also, under the Justice Committee interpretation, if the
President committed electoral fraud at the end of her term, then she may
no longer be impeached as her term is about to end anyway. The
Constitution did not contemplate this absurdity, which is tantamount to
exempting public officials from impeachment for electoral fraud.
Lastly, Fr. Bernas expounded that since the penalty of impeachment is
removal and disqualification from holding a public office, the period
within which the fraud was committed is of no moment. If Pres. Arroyo were
found guilty by an impeachment trial for electoral fraud during her first
`term' she would have been disqualified anyway, which is no graver than if
she were found guilty under her second term and thereby also removed from
office.
The jurisprudence on re-election interpreted as the electorates'
`forgiveness' of an erring public official (Gov. Rodolfo Aguinaldo case,
etc) is not applicable. These public officials committed acts, other than
electoral fraud such as administrative violations or launching a coup. In
this case, Pres. Arroyo committed the crime which is the very heart of the
act of `forgiveness'—electoral fraud. How can we say that her re-election
absolved her of her crimes when her re-election itself is the crime.
III. Can the 1/3 vote in plenary overturn the dismissal of the
Amended Complaint ?
Yes, it can. The Committee can dismiss any or all complaints via majority
vote and subsequently report such dismissal to the Plenary. The
Constitution states that the Committee Report can be reversed by 1/3 of
all the members of the House. Therefore, the 1/3 can reverse all or any
part of the Committee report. Seventy-nine (79) members of the House
therefore can reverse any Committee decision, draft the Articles of
Impeachment or transmit/endorse the Amended Complaint (which includes the
Lozano Complaint) to the Senate. The Committee has to include in their
report the DISMISSAL of the Amended Complaint. Why? Because it was
referred to the Committee by the Plenary, and the Committee is duty bound
to report
its dismissal of the same.
Whether or not the Amended Complaint is a second complaint, is a matter of
defense that may be raised by President Arroyo in the Senate. President
Arroyo may even waive that defense if she prefers to have her day in court
and answer the Complaint. The House exceeded its jurisdiction when it
usurped what is rightfully a decision reserved for the Senate trial court.
The task of the House is to merely initiate the impeachment case—finding
whether it is sufficient in form and substance, not on whether a complaint
is a second or third complaint.
IV. Is `creeping' impeachment allowed?
Yes, the Complaint can be endorsed to the Senate at any time, when the
Complaint is signed by 79 members. The Constitution instituted the device
of the `1/3 votes' overruling the whole House precisely to ensure a speedy
resolution of the issue. The Constitution precisely defined the specific
periods within which to resolve the Complaint to ensure that the process
is not prolonged. Furthermore, why would the Justice Committee be allowed
to spend time (60 session days) investigating a complaint, when its
decision can be overruled anyway by the 79 votes. The 79 can always
endorse any Complaint it wishes to endorse at any stage in the
proceedings, especially at the stage of the Committee Report to the
plenary, as this is provided for by the Constitution. (Please see CODAL
Legal Memorandum on `creeping impeachment'.)
So, if the 1/3 vote
is achieved, jurisdiction transfers to the Senate and it is but a
ministerial duty on the part of the House to transmit the Article of
Impeachment, which will be drafted by the endorsers who will form the
prosecution panel. It is also ministerial on the House to approve the
prosecution panel. The Majority cannot intervene in the drafting of the
Complaint or the selection of the prosecution panel. Only those that found
`probable cause' in the complaint can participate in its prosecution.
Reference Person:
Atty. Neri Javier Colmenares
Convenor and Spokesperson
0920-950-9406
August 31, 2005
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