Friday, September 17, 2010

Impeaching the Ombudsman

I am not saying that the impeachment of Ommbudsman Gutierrez has been temporarily stopped by an Arroyo Supreme Court; it just so happens that all the justices who approved the status quo ante order are Arroyo appointees.

In fact, however, an earlier Supreme Court already dealt with a similar case and also imposed a status quo ante order. The case was also about the constitutional command that “No impeachment proceeding shall be initiated against any official more than once within a period of one year.”

This provision was first invoked in the two impeachment attempts against then Chief Justice Hilario Davide, Jr. After a second impeachment complaint against the Chief Justice was filed within the prohibited twelve month period, an army of lawyers immediately went to the Supreme Court asking that the second complaint be barred. Whereupon the Court issued an order directing the House, the Senate and the Solicitor General to comment on the petition within five days. The Court set the petition for oral argument and called on petitioners and respondent to maintain meanwhile the status quo ante.

In the end the Court ruled (1) that it had authority to determine the meaning of the constitutional prohibition, (2) that the initiation of the impeachment took place when the complaint was referred to the Committee on Justice and not when it would be referred to the Senate for trial, (3) and that the second complaint violated the constitutional prohibition.

The decision was penned by Justice Carpio-Morales, a dissenter in the current case.

(For the rest, this is how the Justices voted in the Davide case: Bellosillo and Tinga, JJ., see separate opinion; 
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion; 
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion; 
Quisumbing, J., concurring separate opinion received; 
Carpio, J., concur.; Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.; Corona, J., will write a separate concurring opinion.; Azcuna, J., concur in the separate opinion.)

The facts of the Gutierrez case, however, are not exactly the same as those in the Davide case. Two complaints on different grounds were filed against Gutierrez on different days, but both complaints were referred to the Justice Committee on the same day. The question the Court will have to resolve, assuming it assumes jurisdiction as it did in the Davide case, is whether the second complaint should be dropped or combined with the first.

It should be noted, as the Court said in the Davide case, that the prohibited period starts not when complaints are filed nor when the complaint is sent to the Senate for trial but when the “impeachment proceeding” is initiated. As the provision says, “No impeachment proceeding shall be initiated against any official more than once within a period of one year.” And since only Congress may initiate an impeachment, the proceeding is initiated the first time Congress acts on the complaint; that is, when the complaint is referred to the proper committee.

Since the complaints against Gutierrez were sent to the justice committee together, can they be dealt with in one proceeding and thereby avoid the constitutional prohibition?

My view on the matter is that, if there are two complaints which are really distinct, they must be treated in two distinct proceedings. I say this by analogy with criminal due process which prohibits charging a person with two separate offenses in one information unless the two can be compounded. The prohibition in the impeachment process is also a due process rule meant to be a safeguard against harassing a person with multiple complaints within twelve months.

What then about the Court’s status quo ante order? For one, as the Court ruled in the Davide case, the Court is the ultimate arbiter of the meaning of the provisions of the Constitution. This is not new doctrine. I surmise that the Court might hark back to the Davide impeachment doctrine and tell Congress to decide which of the two complaints is the second one and exclude it from consideration now. This way the House’s control over the initial stage of the impeachment will be preserved.

However, there is another possibility. I have not studied the complaints, but I understand that one of the grounds alleged is betrayal of public trust. Betrayal of public trust as a ground for impeachment was deliberately included by the 1986 Constitutional Commission in order to provide a very broad ground for impeachment. It is a ground which can cover a multitude of sins. If I may be allowed to make a suggestion, why not retain the complaint based on “betrayal of public trust” and use the other allegations merely as evidence of betrayal of public trust? After all, as indicated in the deliberations of the 1986 Constitutional Commission, all the grounds for impeachment enumerated in the Constitution are in one way or another a betrayal of public trust. You would then have one complaint supported by very multi-faceted evidence that can satisfy the desire of everyone who wants to throw stones at the Ombudsman.

Finally, I repeat what I wrote in an earlier piece. Impeachment is not judicial justice characterized by the cold neutrality expected of judges. It is political justice whose outcome depends so much on the biases of the various actors involved. It will be interesting to try to trace the marks of bias manifested by the various participants in the current drama – including the Supreme Court.

20 September 2010

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