Reviewing the IIRC Report

Someone asked me why the President should order a review of the report of the Incident Investigation and Review Committee (IIRC). Did he not give the responsibility of doing the investigation mainly to the Secretary of Justice and the Secretary of Interior and Local Government, both members of his inner circle? Actually the answer to that question was given long ago by the Supreme Court.

Under our presidential system there is only one President and "all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive."

What this means is that a decision of a department secretary, when not expressly disowned by the President, is already the President’s decision. But this also means that decisions of department heads are always subject to review and even reversal by the President if he chooses to do so. Every person who accepts a position in the executive department accepts it on this understanding.

This principle flows from the President’s power of control over all executive departments. As the Constitution says, “The President shall have control of all executive departments, bureaus and offices.” Moreover, in the hierarchy of department secretaries, the Executive Secretary occupies a position of preeminence when acting “by authority of the President.” Thus, the Executive Secretary, even if not the smartest, or even an Assistant Executive Secretary, when acting "by authority of the President," may reverse the decision of a department head.

Will the President accept the IIRC’s report in toto? He may or he may not. And even if he does, that would not be the end of the report. The report, aside from containing a recitation of facts and conclusions, also contains recommendations of administrative and criminal charges against certain persons. These recommendations, if acted upon, will have to go through the rigorous requirements of due process. They will also be a test of the political will of the new administration.

The charges against individual persons are serious and certainly the people concerned will demand that they be given a day in court. But another delicate aspect of the report is what it says about media. Quite obviously the members of the IIRC, in preparing the report, were aware that media, as vehicles of free expression and information, occupy a special position in the hierarchy of rights. Hence, the IIRC Report did not have any specific recommendation. I just hope that, in reacting to the behavior of media during the hostage crisis, whatever action is taken by government will not have the effect of prior restraint on future media actions.

Who should be in charge of the House

I was surprised that a number of persons expressed concern about the fact that the President did not appoint a care-taker while he was away. Behind some of this concern, I am sure, was an expression of sympathy for the Vice-President who appeared to have been left out. But the Vice-President himself did not seem to be bothered at all. And rightly so.

The absence of the President from the country is not a basis for the activation of the order of succession found in the Constitution. The Vice-President takes over the functions of the President in an acting capacity only when the incumbent President is temporarily incapacitated to perform the functions of his office. In this age of sophisticated means of communication, the President is not really away when he is away on a trip. And he certainly is not incapacitated when he can relive his early youth and enjoy hotdogs in the streets of New York!

relocation of informal settlers

You might say that the constitutional command is clear enough: “Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated.”

Does this mean that the validity or legality of the demolition or eviction is hinged on the existence of a resettlement area designated or earmarked by the government? That would be the ideal; but jurisprudence has answered that question in the negative. What is required is that “the person to be evicted be accorded due process or an opportunity to controvert the allegation that his or her occupation or possession of the property involved is unlawful or against the will of the landowner; that should the illegal or unlawful occupation be proven, the occupant be sufficiently notified before actual eviction or demolition is done; and there be no loss of lives, physical injuries or unnecessary loss of or damage to properties.”

As can readily be seen, legal pronouncements on the subject will not be enough to prevent the confusion and damage to persons such as those which happened in recent evictions in Metro Manila.

27 September 2010

Imeaching 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 both the power and the duty 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 since it is only then that the House acts on the complaint, and (3) that the second complaint violated the constitutional prohibition.

The decision was penned by Justice Carpio-Morales, a dissenter in the current case. Two justices, Puno and Ynares-Santiago, dissented, but only on the timeliness of the Court intervention.

(For the rest, this is how they voted: 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 as in the Davide case; but, unlike in the Davide case, 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.

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.

There is a second possibility. 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.

Hence, there is a third possibility: Let the Court say that the case is not ripe for decision and send the case back for the House to decide whether in fact there are two distinct complaints or whether everything can be placed under one complaint for “betrayal of public trust.” I favor this third option which more clearly respects the prerogative of the House.

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 201

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

Muslims & Muslims &Understanding Impeachment

There are two controversies raging in the United States involving attitude towards Muslims. One is the opposition to the erection of a mosque near Ground Zero, the site of the 9/11 tragedy. The other is the threat of a small Christian minority to have a Koran burning event. Both controversies involve an assessment of Muslims as enemies of the United States.

In our own country, it is difficult to exclude anti-Muslim sentiment from the opposition to the Memorandum of Agreement on Ancestral Domain which the Supreme Court declared to be unconstitutional. This is a sentiment which can have an influence on the revived effort to seek a solution to the Mindanao problem.

I know very little about the Muslim world. Hence, I must rely on what little I have read on the subject. Recently, I came across an article subtitled “Not All Muslims Think Alike.” The author introduced his article with this cautionary note: “In the face of this antipathy [in the US], it is important to acknowledge that just as the West today is more religiously diverse than was Europe when Pope Urban II called for the First Crusade almost a thousand years ago, so too is the Muslim world. Too many talking heads in the American media want to reduce the Islamic tradition to its most politicized and militant version. Such a simplification insults the richness of that religious tradition.”

Sunni Muslims comprise ninety percent of the Muslim world. The rest are Shiite, and one percent who are neither Sunni nor Shiite. What is noteworthy, however, is that the Sunni Muslims are divided into three strands. There is first the “fundamentalist” strand consisting of a small minority said to be influenced by the conservative understanding of Islam propagated by Saudi Arabia. There is a tendency to generalize Muslims under this category.

A second group, larger than the first, is culturally secularized and influenced more by socio-economic and political forces than by the Koran. They are mostly found in Turkey, the Balkans, the former Soviet Asian republics and Africa.

The third and largest “are people of faith participating in a centrist tradition whose understanding of Islam engages with the many nonreligious factors in their world; they can best be described as inculturating their faith in a world that is only partly Islamic. These are Muslims for whom faith and culture are not completely coextensive. Most Arabs (Saudis excepted) and most South Asian Muslims fit into this category.”

I believe it is safe to say that the vast majority of the Muslims in the Philippines belong to this third category. The few Muslims I have known in the Ateneo Law School have had no difficulty fitting into and making friends in a heavily Christian community. Many Muslims also fit into Christian schools in the South. This fact makes me hopeful that the effort to achieve peace and prosperity in Muslim Mindanao will succeed.

Impeaching the Ombudswoman

As in the case of the impeachment of President Joseph Estrada, I am sometimes asked what the outcome would be of the impeachment of Ombudsman Mercy Gutierrez. My usual answer is that it is hard to predict what the outcome will be.

The reason for my cautious answer is not that I am prepared to declare the Ombudsman innocent. Rather, it is because of the peculiar nature of the impeachment process. The impeachment process is not a judicial process characterized by the cold neutrality expected of judges. Rather it is a political process more often than not characterized by bias. If the bias is for the accused, whether guilty or not, the impeachment process will not prosper.

In Philippine history the only impeachment process that reached trial stage was the impeachment of Estrada. Even then it did not succeed.

In the case of the impeachment attempts against Gloria Macapagal Arroyo, none could go forward because of the insurmountable bias in her favor in the House of Representatives.

Of course, Mercy Gutierrez does not find herself in the same secure position that Gloria Arroyo found herself in. In fact, considering the fluidity of political alignments in the Philippines one might say that she is now in a precarious position. But she can find protection in another aspect of the political nature of impeachment.

Impeachment involves not just a legal decision but also a policy decision. When members of the House deliberate on whether to impeach or not, and when senators deliberate on whether to vote Guilty or Not Guilty, they consider not only whether there is evidence to support impeachment but also whether, under existing circumstances, the preferred policy should be to go easy on impeachment.

I seem to sense the “go easy” approach in President Aquino’s hands off attitude towards the impeachment of Gutierrez. This may be because of his desire to achieve national unity.

Such attitude, it must be said, has foundation in the text of the Constitution itself. The text says that the impeachable officers “may be removed.” The language is permissive and not mandatory. For this reason, the debate about the needed weight of evidence in impeachment, -- whether proof beyond reasonable doubt, or preponderance of evidence, or substantial evidence -- is not of paramount importance. What is decisive is the gut feel of politician’s of what should be the preferred policy under the circumstances.

It is also noteworthy that while a minority of the House (one third) can send an official to trial by the Senate, a minority of the Senate (also one third) is enough to acquit. Clearly the process is tilted in favor of security of tenure.

13 September 2010