This story
was taken from Bulatlat, the Philippines's alternative weekly
newsmagazine (www.bulatlat.com, www.bulatlat.net, www.bulatlat.org).
Vol. V, No. 30, September 4-10, 2005
Why the
Impeachment Complaint Will Still Prosper
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) BACKGROUND 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. 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. © 2004 Bulatlat
■
Alipato Publications Permission is granted to reprint or redistribute this article, provided its author/s and Bulatlat are properly credited and notified.
Legal and
constitutional basis for reviving the impeachment against Arroyo
Posted by Bulatlat
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.
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'.)
Reference Person:
Atty. Neri Javier Colmenares
Convenor and Spokesperson
0920-950-9406
August 31, 2005