Saturday, February 19, 2011

Why the SC Said "Yes"

It took some waiting, but eventually the Supreme Court said yes for the House of Representatives to go ahead with the impeachment of Ombudsman Merceditas Gutierrez. But it isn’t over yet. A reconsideration will almost certainly be asked for by the Ombudsman. Meanwhile the Speaker has asked the members of the committee involved to hold their horses. At any rate, what is the score so far?

First, how did it all start? On two separate days two impeachment complaints were filed against Gutierrez. On a later date, however, both complaints were referred simultaneously to the Committee on Justice for action. Whereupon Gutierrez went to the Supreme Court asking that House action be stopped on the argument that there was violation of a provision of the Constitution. Gutierrez was referring to Article XI, Section 3 (5) which says: “No impeachment proceedings shall be initiated against the same official more than once within a period of one year.”

To this argument of Gutierrez the House replied that, if the Court should interfere with the impeachment action in the House, the Court would be entering into a field reserved by the Constitution for political actors.

The House was arguing from earlier jurisprudence which affirmed the following: “The history and contemporary understanding of the impeachment provisions support our reading of the constitutional language. The parties do not offer evidence of a single word in the history of the [US] Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of impeachment powers.”

In the earlier Davide Impeachment Case, however, the Court had already rejected this argument saying that, whereas this may have been true in the context of the United States Constitution, this was not true under the Philippine Constitution. As the Court said in the Davide Impeachment Case, “The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality.”

From here the Court went on to discuss the meaning of the constitutional provision cited by Gutierrez. Again the Court went back to the earlier Davide Impeachment Case which had explained the meaning of the constitutional provision. The Court in the earlier case had pointed out that what the Constitution prohibited was not the initiation of more than one “complaint” in one year but the initiation of more then one “proceeding.” The Court said that proceeding only got going when the complaint was referred to the proper Committee and not when the complaint was filed.

The current Court explained the meaning further by showing the difference between igniting a matchstick and lighting a candle. “The Court, of course, does not downplay the importance of an impeachment complaint, for it is the matchstick that kindles the candle of impeachment proceedings. The filing of an impeachment complaint is like the lighting of a matchstick. Lighting the matchstick alone, however, cannot light up the candle, unless the lighted matchstick reaches or torches the candle wick. Referring the complaint to the proper committee ignites the impeachment proceeding. With a simultaneous referral of multiple complaints filed, more than one lighted matchsticks light the candle at the same time. What is important is that there should only be ONE CANDLE that is kindled in a year . . .”

Briefly, therefore, the Court said that there can be more than one complaint in one year but there can be only one proceeding in the same year.

These are the main issues in the Gutierrez impeachment case. As I said, however, it isn’t over until the decision of last February 15 becomes final. Nevertheless one may speculate about how things will go in the House.

My view on the matter is that, if the two complaints are really distinct, they must be treated in two distinct proceedings but both cannot take place in one year. There can only be one lighted candle in a year. The rule is analogous 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 proceedings within twelve months.

I understand that one of the grounds for the Gutierrez impeachment 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 serious sins. It seems, therefore, that the two current complaints can be fused into one under “betrayal of public trust.” The other allegations can serve merely as evidence of betrayal of public trust.

21 February 2011

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