Friday, August 26, 2005

Juridical Guerrilla Warfare

By Raul Pangalangan
This story was taken from www.inq7.net
First posted 03:38am (Mla time) Aug 26, 2005
Inquirer News Service

THE BEST way to kill the impeachment complaint is to wear out the people. No need to show that President Gloria Macapagal-Arroyo is innocent. Just tire the sovereign people, bore them, make them indifferent to whether or not she is guilty. Reduce Gloriagate from a debate about principles to a wager on technicalities bereft of moral content. That is the peril of the vote by the House ofRepresentatives' justice committee to focus first on "prejudicial questions." To paraphrase Sun Tzu, war is like fire. Rather than putting it out, let it burn itself out.

Three impeachment complaints have been filed against President Arroyo, the first, filed by lawyer Oliver Lozano, apparently the weakest. The next step, under the Constitution, is for the proper congressional committee to say whether the complaints are sufficient in form and substance.

However, the Constitution also says: "No impeachment proceedings shall be initiated against the same official more than once within a period of one year." Pro-Arroyo congressmen say that the committee must first settle the "prejudicial" issue of whether the Lozano complaint has triggered off the one-year bar and, if yes, whether it can be supplemented by the stronger complaint drafted by opposition lawyers. Their goal, obviously, is to lock in the vulnerable Lozano version and knock out the high-octane opposition draft.

The Supreme Court has laid down the controlling doctrine. In Francisco v. House of Representatives, the Court cited the one-year bar and threw out a second impeachment complaint against Chief Justice Hilario Davide. The anti-Davide forces invoked Rules 16/17 of the impeachment procedure adopted by Congress, which says that "impeachment proceedings [are] deemed initiated" only after the justice committee has acted on the complaint; by that rule, the first complaint couldn't have activated the one-year rule. The Court thus struck down Rules16/17 as unconstitutional and pegged the triggering moment much earlier: when the complaint is filed and referred to the justice committee.

Citing one of the founding fathers of the 1987 Constitution, the Court said: "Father [Joaquin] Bernas further explains: The 'impeachment proceeding' is not initiated when the complaint is transmitted to the Senate for trial [nor] when the House deliberates on the resolution passed on to it by the Committee.... Rather, the proceeding is initiated or begins when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow." Pro-Arroyo congressmen now claim that Lozano has tripped the constitutional switch.

But, as Rep. Francis Escudero said at a forum in the University of the Philippines, opposition legislators have anticipated this, and deftly packaged their complaint so that it can either "stand alone" as an independent complaint or merely supplement Lozano's.

There is no technical bar to a supplement. I have heard forced analogies to judicial process, both civil and criminal, all of them inapt to the "sui generis" ("class by itself") nature of impeachment proceedings. The current procedural rules on impeachment are silent on supplements. Therefore, to hinder the other complaints is an exercise of discretion. Our legislators must not wash their hands through technicalities, and be candid enough to confess that they are voting their true selves.

This gap ("lacuna") in the rules beckons us to turn to the "intent of the framers." Note the following exchange in the Constitutional Commission when they drafted the one-year bar.

Commissioner Villacorta: "Does this mean that even if evidence is discovered to support another charge ... a second ... proceeding cannot be initiated [within] one year? ... The intention may be to protect the public official from undue harassment. [But] is this not undue limitation on the accountability of public officers?"

Commissioner Romulo: "Yes, the intention here really is to limit. This is not only to protect public officials ... from harassment but also to allow the [Congress] to do its work, which is lawmaking. Impeachment proceedings take a lot of time."

Hearing the three complaints together will advance this constitutional intent -- no undue "harassment" of the respondent, or additional work for Congress.

But in addition, Rep. Teodoro Locsin shows that there is in fact a proper technical way to construe the three complaints. Congressional time is not normal people's time, he said. Congress can simply stop the clock and by parliamentary fiat freeze time, and the record will not show that they actually debated past midnight. Now by such reckoning, time stood still while Congress was on its constitutionally mandated one-month break. That Lozano filed first in that twilight zone is of no consequence.

Which brings us back to the controlling moment in Francisco, namely, July 25, when Congress re-convened, the "session day" when Speaker Jose de Venecia endorsed the complaints to the justice committee, simultaneously at 11:20 a.m. (recorded in the official Journal). Therefore, Francisco will hold that none of the complaints could have blocked off the others.

What is sauce for the goose is sauce for the gander. That, shorn of fancy lawyer talk, is one big part of the rule of law. The justices read the one-year bar liberally in favor of the "accused." This gave solace to the Chief Justice, who was worthy, but now it purportedly gives safe haven to President Arroyo, who is not. The solution is not to fudge what the Court said in Francisco, but to carry out our compelling intuitions through the disciplined craft of the law, and in Unger's words, "find the mind's opportunity in the heart's revenge." Remember Sun Tzu: Take away the energy of the enemy, take away their heart. * * *

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