Saturday, February 25, 2012


Joaquin G. Bernas, S.J.
Last Saturday we recalled the historic event of the EDSA Revolution. Yes, it was a revolution, although a peaceful one. A revolution takes place when a portion of the populace attempts to wrest power from the legitimate government. If it fails, the leaders go to jail. If it succeeds and maintains its hold on the government, it is a supreme democratic act. EDSA was a supreme democratic act which put an end to the 1973 Constitution.
The heirs of the EDSA event have managed to maintain their hold on government. They have instituted a new Constitution and have held elections and plebiscites under the new Constitution.
The EDSA Revolution, the ratification of the 1987 Constitution, and the elections are the legitimate manifestations of popular sovereignty. They are the product of the people exercising their sovereign power. Our Constitution says “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” “People” in this document refers to those who manifest their will in an election, in a plebiscite for the ratification of the Constitution or in a successful revolution.
There is an ongoing campaign to distort the meaning of popular sovereignty. Popular sovereignty is being interpreted as the currently majoritarian sentiment of the people as evidenced by surveys. Surveys, whether by SWS or by Pulse Asia or by whatever outfit might attempt it, are not manifestations of popular sovereignty. They do not authorize public officials, no matter how highly placed, to disregard the law or the Constitution. Nor does a repeated claim of massive popularity enhance a public officer’s power to a level higher than what is given to him or her by the law and the Constitution. Reliance on popular rallies as power enhancement can merely amount to demagoguery, an effective instrument for dividing the nation and an effective way of frittering away the gains made by the EDSA event.
Earlier I quoted a renowned jurist who once said to a “reform” minded English monarch, “This country is planted thick with laws from coast to coast. If you cut them down, do you really think that you will be able to withstand the winds that will blow then?” The same jurist also said “I am the king’s good servant, but God’s first.” Today this jurist is revered as a patron of persons holding position of power and responsibility.
Travails of the Impeachment Prosecution. An interesting moment occurred during the impeachment trial last Tuesday after the Senate President said that in our impeachment process the House of Representatives performed the function of a grand jury to ensure that what will be brought to the Senate would be a well prepared case. The fact was, the Senate President said, the case of the Articles of Impeachment prosecution was not well prepared and the prosecution was trying to stitch a case together in the course of the trial with the help of sub poenas
In reply Congressman Fariñas of the House prosecutor team pointed to two kinds of impeachment processes, and correctly. One process is for a situation when an impeachment complaint is filed without the needed support of at least one third of the House. In such a situation the Justice Committee conducts hearings to determine if the case presents probable cause for proceeding with trial. Thereafter the Committee makes a report to the plenary which reviews the matter to determine if indeed there is sufficient cause for bringing it to trial. The vote of one-third of the plenary is needed to affirm the finding of the Committee. This ensures that the time of the Senate will not be wasted in protracted search for evidence.
The second mode of impeachment says: “In case the verified complaint or resolution of impeachment is filed by at least one-third of all the members of the House, the same shall constitute the Articles of Impeachment and trial by the Senate shall forthwith proceed.” What this provision seems to imply is that the grand jury role of the House is dispensed with. This seems to be the basis for Congressman Fariñas’ explanation for the imperfection of the Articles of Impeachment. In fact, earlier during the trial Congressman Fariñas had already criticized the Articles of Impeachment. Again he is being proven right.
Problem again arose during the later part of last Tuesday when the prosecution introduced a Vice-President of PAL to prove an allegation that the Chief Justice tended to favor PAL in litigation because of favors he had received from PAL. But the allegation was not found in the Article of Impeachment being discussed. The Senate President barred the testimony of the PAL Vice-President.
It might be worth recalling that the impeachment of former President Estrada reached the Senate via the second mode. But the complaint itself was filed weeks before the complaint was sent to the Senate. Hence the prosecution did have time to prepare for the trial. In the case of the current impeachment trial, however, the complaint of 188 Congressman went up within twenty-four hours of the filing. No wonder the prosecution has been having problems. What these events seem to be telling us is that, whichever method of impeachment may be used, the House somehow should perform some grand jury role.
27 February 2012

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