Category: LATEST SUPREME COURT CASES


CASE 2011-0058-F: MA. MERCEDITAS N. GUTIERREZVS. THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE; RISA HONTIVEROS-BARAQUEL; DANILO D. LIM; FELIPE PESTAÑO; EVELYN PESTAÑO; RENATO M. REYES, JR., SECRETARY GENERAL OF BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS, SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY-GENERAL OF THE NATIONAL UNION OF PEOPLE’S LAWYERS (NUPL); FERDINAND R. GAITE, CHAIRPERSON OF THE CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE); AND JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS (LFS) (G.R. NO. 193459, 15 FEBRUARY 2011, ABAD, J.) SUBJECT: SEPARATE CONCURRING OPINION OF JUSTICE ABAD.

 

EN BANC

 

 

G.R. No. 193459        –          Ma. Merceditas N. GutierrezPetitioner, versus The House of Representatives Committee on Justice; Risa Hontiveros-Baraquel; Danilo D. Lim; Felipe Pestaño; Evelyn Pestaño; Renato M. Reyes, Jr., Secretary General of Bagong Alyansang Makabayan (BAYAN); Mother Mary John Mananzan, Co-Chairperson of PAGBABAGO; Danilo Ramos, Secretary-General of Kilusang Magbubukid ng Pilipinas (KMP); Atty. Edre Olalia, Acting Secretary-General of the National Union of People’s Lawyers (NUPL); Ferdinand R. Gaite, Chairperson of the Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE); and James Terry Ridon of the League of Filipino Students (LFS),Respondents.

 

                                                 Promulgated:

                                                      February 15, 2011

x ———————————————————————————- x   

SEPARATE CONCURRING OPINION

ABAD, J.:

 

The Facts and the Case

On July 22, 2010 respondents Risa Hontiveros-Baraquel and others filed with the Secretary General of respondent House of Representatives (the House) a verified impeachment complaint (First Complaint) against petitioner Ombudsman Ma. Merceditas N. Gutierrez for betrayal of public trust and culpable violation of the Constitution.  Two members of the House endorsed this complaint.  To sum up, the complaint alleges:

1.       Betrayal of Public Trust

a.       The dismal and unconscionably low conviction rates by the Office of the Ombudsman from 2008 onwards;

b.       The failure to take prompt and immediate action on the complaints filed against former President Gloria Macapagal-Arroyo and her husband, Jose Miguel T. Arroyo, with regard to the NBN-ZTE Broadband Project;

c.       The inexcusable delay in conducting and concluding an investigation on the death of Ensign Philip Andrew Pestaño aboard a Philippine Navy vessel;

d.       The decision upholding the legality of the arrest and involuntary detention of Risa Hontiveros-Baraquel by the PNP in March 2006; and

e.       The failure to conduct an investigation with regard to the P1,000,000 presidential party dinner at Le Cirque Restaurant in New York in August 2009;

2.       Culpable Violation of the Constitution

a.       The repeated failures to take prompt action on cases involving official abuse and corruption in violation of Section 12, Article XI, and Section 16, Article III, of the Constitution; and

b.       The refusal to grant ready access to public records such as the Statement of Assets and Liabilities and Net Worth in violation of Section 13(6), Article XI and Section 7, Article III of the Constitution.

On July 23, 2010 the 15th Congress opened its regular session.  Shortly after or on August 3, 2010 respondents Renato M. Reyes, Jr. and others filed with the Secretary General of the House another verified impeachment complaint (Second Complaint) against Ombudsman Gutierrez also for betrayal of public trust and culpable violation of the Constitution. Seven members of the House endorsed the complaint, which alleges:

1.       Betrayal of Public Trust

a.       The gross inexcusable delay in investigating and failure in prosecuting those involved in the anomalous transactions arising from the Fertilizer Fund Scam despite the blatant anomalous transactions revealed in the COA Findings, Senate Committee Report 54 and the Complaints filed with the Ombudsman on the said Fertilizer Fund Scam;

b.       The failure to prosecute General Eliseo De La Paz for violating BSP Circular 98 (1995), as amended by BSP Circular 507 (2006), in relation to Republic Act 6713, which prohibits the taking out of the country of currency in excess of US$10,000 without declaring the same to the Philippine Customs, despite the public admission under oath by General De La Paz before the Senate Blue Ribbon Committee; and

c.       The gross inexcusable delay or inaction by acting in deliberate disregard of the Supreme Court’s findings and directive in its Decision and Resolution in Information Technology Foundation of the Philippine, et al. v. Commission on Elections, et al.

2.       Culpable Violation of the Constitution

a.       The repeated failures and inexcusable delay in acting upon matters brought before her office, thus violating Sections 12 and 13(1)(2)(3), Article XI and Section 16, Article III of the Constitution, which mandates prompt action and speedy disposition of cases.

On even date, the House provisionally adopted the Rules of Procedure in Impeachment Proceedings of the 14th Congress.[1] On August 11, 2010 it simultaneously referred the first and second complaints to the House Committee on Justice (the Justice Committee).

During its hearing on September 1, 2010 the Justice Committee found the first and second complaints sufficient in form.  On September 6, 2010 Ombudsman Gutierrez filed a motion for reconsideration of the committee’s finding on the grounds that:

1.       Such finding violates Section 3(5), Article XI of the 1987 Constitution which bars more than one impeachment proceeding against the same impeachable officer within a period of one year;

2.       The contemplated consolidation of the two complaints also violates Section 3(5), Article XI of the 1987 Constitution and would permit Congress to do indirectly what it is proscribed from doing directly; and

3.       The finding of the Justice Committee violates Section 13, Rule 110 of the Rules of Court which provides that a complaint must charge only one offense.

The Justice Committee declined to accept Ombudsman Gutierrez’s motion for reconsideration for being premature.  It advised her instead to just include in her answer the grounds she cited in her motion.  

During its hearing on September 7, 2010 the Justice Committee found the two complaints sufficient in substance. On even date, it caused the service of summons and copies of the two complaints on Ombudsman Gutierrez with a directive for her to file her answer to the same within ten days.  This prompted her to file the present action, assailing the constitutionality of the Justice Committee’s action in finding the two complaints sufficient in form and substance.

The Key Issue Presented

The key issue in this case is whether or not the House Justice Committee’s findings that the two complaints against Ombudsman Gutierrez are sufficient in form and substance violate Section 3(5), Article XI of the 1987 Constitution which provides that no impeachment proceedings shall be initiated against the same official more than once within a year.

Discussion

          The impeachment of public officials has been established for removing otherwise constitutionally tenured and independent public officials—the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman—for  culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.[2]  The power to initiate impeachment cases rests with the House while the power to try the same rests with the Senate.[3] 

The pertinent provisions of Section 3, Article XI of the 1987 Constitution summarizes the steps that lead to the impeachment of the above public officials:

            Sec. 3.  x x x

 

            (2)        A verified complaint may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

 

            (3)        A vote of at least one‑third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

 

            (4)        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.

 

            (5)        No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

 

(6)        The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

To sum up the various steps leading to the impeachment of a public official are:

One.  A verified complaint for impeachment is filed by a member of the House or endorsed by him;

          Two.  The complaint is included in the order of business of the House.

          Three.  The House refers the complaint to the proper Committee;

          Four.  The Committee holds a hearing, approves the resolution calling for impeachment, and submits the same to the House.

          Five.  The House considers the resolution and votes to approve it by at least one‑third of all its members, which resolution becomes the article of impeachment to be filed with the Senate when approved; and

          Six.  The Senate tries the public official under the article.

          The root of the present problem is that the impeachment of a public official may be said to be “initiated” in two ways under the above steps.  The first is the complaint “initiated” in the House under Step One.  Section 3 (1) of Article XI provides that the House of Representatives shall have the exclusive power to “initiate” all cases of impeachment.  The second is the article of impeachment “initiated” in the Senate under Step Five following a favorable vote in the House. 

Ombudsman Gutierrez’s view is that there is just one impeachment proceeding and this covers the actions of both the House and the Senate in one unified process.  She infers from this that it is actually the filing of the complaint in the House that initiates the one “impeachment proceeding” and this bars a second one filed within the year.  In the Francisco case, the Court interpreted the term “to initiate” under Section 3(5) as the filing of the impeachment complaint coupled with Congress’ taking initial action of said complaint.[4]  Such initial action consists of the referral or endorsement of the impeachment complaint to the Committee.[5]

          As amicus curiae, Fr. Bernas said in the Francisco case that “the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it.”[6]

          Based on common usage in this jurisdiction, a “proceeding” described in the terms of an initiated action refers to a proceeding filed before the court, body, or tribunal that ultimately has the jurisdiction to hear and decide such action.  For example, an “expropriation proceeding” is one instituted in the court that can hear and decide it, namely, the Regional Trial Court.[7]  It is the same with an “escheat or reversion proceeding,”[8] an “ejectment proceeding,” an “estate proceeding,” or an “adoption proceeding.”  Each of these proceedings or actions is lodged in the body or tribunal in which the law ultimately vests the power to hear and decide it. 

          Thus, when the Constitution speaks of “impeachment proceedings” it should be understood to refer to the action or case instituted in the Senate in which the power to hear and decide such proceedings is ultimately lodged.  In this jurisdiction, the terms “case” and “proceeding” are often interchangeably used.  A “case” is a legal action or suit.[9]  “Proceeding” means the carrying on of an action or course of action.[10]  The Constitution does not appear to draw any distinction between these two terms.  At any rate, the power that the Constitution gives the House is only the power to initiate all cases of impeachment, not the ultimate power to hear and decide such cases.  Thus:

            Sec. 3.  (1)   The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

          For the above reason, it cannot be said that it is the party who files a verified complaint against the public official that initiates an impeachment case or proceeding.  It is the House that does.  Actually, the House exercises this power of initiation by filing the article of impeachment with the Senate.  The power to initiate belongs to the House, not to any of its committees, provided the House is able to muster at least one-third vote of all its members in session assembled as the Constitution requires when the impeachment resolution is taken up. 

          The initiation of an impeachment case by the House of course follows a process: the filing of the complaint, the referral to the Justice Committee, the hearing by such committee, the committee voting over its resolution, the submission of the committee report to the plenary, and the vote to initiate an impeachment case.  But this process should be correctly characterized as the House “initiation proceeding,” not the “impeachment proceeding” itself.

Besides, one needs to be guided only by the purpose of this constitutional provision.  The initiation of the impeachment proceeding in the House is intended to be a preliminary step for the determination of the sufficiency of the allegations against the impeachable public official.  It is akin to a preliminary investigation in a criminal case where probable cause is determined against the accused.  If there is probable cause to indict the impeachable public official, then the Articles of Impeachment is transmitted to the Senate.  In a criminal case, a criminal complaint or information is then filed in court against the accused.

It is a settled principle that once the policy or purpose of the law has been ascertained, effect should be given to it by the judiciary.[11]  While the one year bar was provided to ensure that the public official is not subjected to considerable harassment and to allow the legislature to do its principal task of legislation, the constitutional provision on impeachment must be viewed, foremost, as a means to protect the State and the people from erring and abusive high ranking public officials.  To interpret the one year bar to commence from the disposition by the vote of at least one-third of all the members of the House gives the constitutional provision on impeachment more meaning and effectiveness.  It affords more protection to the public interests since the initiation of impeachment complaints would no longer be a race against time.  A slippery impeachable public official would not be able to pre-empt the filing within the year of a meritorious impeachment complaint against him by the simple expedience of colluding with someone to file first a baseless impeachment complaint against him.

In the end, the protection of the vast majority must be of paramount importance over and above any perceived inconvenience on the part of any impeachable public official.

At any rate, the issue of whether or not a case of impeachment initiated in the Senate can embody multiple of unrelated charges is not before this Court.  I reserve my view on such issue when it arises.

I vote to dismiss the petition based on the above reasons.

                                                                   ROBERTO A. ABAD

                                                                       Associate Justice       


[1]  On September 2, 2010 the 15th Congress published its Rules of Procedure in Impeachment Proceedings.

[2]  Section 2, Article XI. Accountability of Public Officers, 1987 Constitution.

[3]  Section 3 (1) and (4), id.

[4]  415 SCRA 44, 169.

[5]  Id. at 169-170.

[6]  Id. at 169.

[7]  Section 12, Chapter 4, Title, Book III.

[8]  Section 13, id.

[9]  Webster’s New World College Dictionary, 3rd Edition, p. 217.

[10]  Webster’s New World College Dictionary, 3rd Edition, p. 1072.

[11] Cecilleville Realty and Service Corp. v. Court of Appeals, G.R. No. 120363, September 5, 1997, 278 SCRA 819, 826.

CASE 2011-0056-E: MA. MERCEDITAS N. GUTIERREZ, VS.  THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAÑO, EVELYN PESTAÑO, RENATO M. REYES, JR., SECRETARY GENERAL OF BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS, SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE NATIONAL UNION OF PEOPLE’S LAWYERS (NUPL); FERDINAND R. GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE); AND JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS (LFS), FELICIANO BELMONTE, JR. (G.R. NO. 193459, 15 FEBRUARY 2011, DEL CASTILLO, J.) SUBJECT: CONCURRING AND DISSENTING OPINION OF JUSTICE DEL CASTILLO. 

 

 

EN BANC

Agenda for February 1, 2011

Item No. 11

G.R. No. 193459 – MA. MERCEDITAS N. GUTIERREZ, Petitionerversus  THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAÑO, EVELYN PESTAÑO, RENATO M. REYES, JR., SECRETARY GENERAL OF BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS, SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE NATIONAL UNION OF PEOPLE’S LAWYERS (NUPL); FERDINAND R. GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE); AND JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS (LFS), Respondents.

FELICIANO BELMONTE, JR., Respondent-Intervenor.

 

                                                                        Promulgated on February 15, 2011

x———————————————————————————————-x

CONCURRING AND DISSENTING OPINION

 

 

DEL CASTILLO, J.:

 

 

The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. 

 

Oliver Wendell Holmes, Jr.

The Common Law, Lecture 1 (1881)

 

 

            At the heart of this controversy is the interpretation of the rule enshrined in Article XI, Sec. 3(5) of our Constitution, that “[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year.”  With due respect to my esteemed colleague, Mme. Justice Conchita Carpio Morales, I do not agree that there may be multiple complaints embraced in only one impeachment proceeding. 

Recall that Francisco, Jr. v. The House of Representatives[1] involved two impeachment complaints filed on separate occasions, the first of which had been resolved long before the second complaint was filed.  The first complaint was filed on June 2, 2003 by former President Joseph E. Estrada against then Chief Justice Hilario G. Davide, Jr. and Associate Justices Artemio V. Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T. Carpio, Renato C. Corona, Jose C. Vitug, and Leonardo A. Quisumbing.  Upon referral to the House Committee on Justice, the Committee ruled that the complaint was sufficient in form, but voted for the dismissal of the complaint for being insufficient in substance.  Subsequently, a second complaint was filed on October 23, 2003 against Chief Justice Hilario G. Davide, Jr.,  accompanied by the endorsement of at least one-third (1/3) of all the Members of the House of Representatives.

The Court in Francisco faced this question: when a first impeachment complaint is filed against an impeachable officer, subsequently referred to the House Committee on Justice, and then dismissed, may another impeachment complaint prosper?  We said then that from the moment that the first complaint was referred to the proper committee, the filing of a second impeachment complaint was prohibited under paragraph 5, section 3 of Article XI of the Constitution. Though the first impeachment complaint was found to be insufficient in substance, it still served as a bar to a subsequent complaint within the same year.

The Court ruled that “initiation [of an impeachment proceeding] takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House x x x”[2]  Thus, “[o]nce an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period.”[3]  It was on that basis that the Supreme Court invalidated Sections 16 and 17 of the Rules of Procedure in Impeachment Proceedings of the 12th Congress, and declared that the second impeachment complaint filed against Chief Justice Davide was barred under paragraph 5, section 3 of Article XI of the Constitution.

            The rule seems simple enough, and has since been readily applied.  But what of a case where two impeachment complaints are separately filed and then simultaneously referred to the Committee on Justice.  Does it then follow that only one proceeding has been initiated?  To put it differently, is it possible to have two impeachment complaints but just one proceeding?

            Mme. Justice Carpio Morales posits that multiple complaints within one proceeding are possible, because the purposes of the one-year ban as enunciated by the framers of our Constitution – to prevent harassment of the impeachable officials and to allow the legislature to focus on its principal task of legislation[4] – reveal that the consideration behind the one-year ban is time and notthe number of complaints.    

Unfortunately, while we are in agreement as to the reckoning point of initiation, I cannot find any reasonable justification for the conclusion that there can be multiple complaints in one proceeding.  I posit this view for two reasons: first, it does not appear to be entirely accurate that both complaints were simultaneously referred to the Committee on Justice.  Second, even assuming that there was simultaneous referral, upon referral of the First Complaint[5] to the Committee, an impeachment proceeding had already been initiated, so as to bar any further proceedings on the Second Complaint.[6]

As regards the simultaneous referral, as shown in the Congressional records,[7] and acknowledged by counsel for the respondents during the October 12, 2010 Oral Arguments (interpellation of Mr. Justice Antonio Eduardo Nachura), it appears that during the House plenary session on August 11, 2010, each complaint was read separately by the Secretary General and individually referred to the Committee on Justice by the Chair.[8]  Thus there was, strictly speaking, no simultaneous referral.

No doubt this Court should be more concerned with overarching principles rather than the ephemeral passing of minutes or seconds.  But even if we were to assume that there was, indeed, simultaneous referral, it would be no less true that the filing and referral of each individual impeachment complaint amounts to the initiation of two separate impeachment proceedings.

The word “proceeding” has been defined as “the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment; any procedural means for seeking redress from a tribunal or agency; an act or step that is part of a larger action.”[9]  This is in contradistinction with a “complaint,” which is “[t]he initial pleading that starts a[n] x x x action and states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim, and the demand for relief.”[10]

In Francisco, this Court stated that the impeachment “proceeding” consists of the following steps:

(1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing;  and (4) there is the processing of the same complaint by the House of Representatives which  either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. x x x[11] 

Here, both the First and Second Complaint separately went through these steps – they were filed, referred to the Speaker of the House, included in the Order of Business, referred to the House Committee on Justice, and separately considered by the Committee.  In fact, the records bear out that each individual complaint was separately scrutinized to determine whether each was sufficient in form and substance, and the petitioner was required to answer both complaints.  In all respects, there were two proceedings.

To summarize:

  First Complaint Second Complaint
Date of Filing July 22, 2010[12] August 3, 2010[13]
Complainants Risa Hontiveros-Baraquel, Danilo Lim, Felipe Pestaño, and Evelyn Pestaño Renato Reyes, Mother Mary John Mananzan, Danilo Ramos, Atty. Edre Olalio, Ferdinand Gaite, and James Terry Ridon
Endorsers from the House of Representatives AKBAYAN Representatives Hon. Arlene Bag-ao and Walden Bello Hon. Representatives Neri Javier Colmenares, Rafael Mariano, Teodoro Casino, Luzviminda Ilagan, Antonio Tinio, and Emeranciana A. De Jesus
Grounds raised Betrayal of Public Trust1.              dismal conviction rate of the Ombudsman from 2008 onwards

2.              failure to take prompt and immediate action re former President Arroyo and her husband, Jose Miguel T. Arroyo with regard to the NBN-ZTE Broadband Project

3.              delay in conducting and concluding the investigation on the death of Ensign Philip Andrew Pestano

4.              decision upholding the legality of the arrest and detention of Rep. Risa Hontiveros-Baraquel by the Philippine National Police in 2006

5.              failure to conduct an investigation into the PhP1,000,000.00 dinner at Le Cirque in New York

Betrayal of Public Trust1.              the delay and failure in prosecuting those involved in the Fertilizer Fund Scam

2.              the failure to prosecute “Euro General” PNP Director Eliseo de la Paz for violating BSP regulations on taking out of the country currency in excess of US$10,000,000 without declaring the funds to the Philippine Bureau of Customs

Culpable Violation of the Constitution

1.              the delay or inaction in conducting the investigations and filing criminal cases against responsible COMELEC officials pursuant to the directive given by the Supreme Court inInformation Technology Foundation of the Philippines, et al. v. COMELEC, et al.

 Culpable Violation of the Constitution

1.              repeated delays and failure to take action on cases impressed with public interest

2.              refusal to grant access to public records such as the Statement of Assets Liabilities and Net Worth

Transmittal to the Speaker of the House July 27, 2010[14] August 4, 2010[15]
Directive  regarding inclusion in the Order of Business August 2, 2010[16] August 9, 2010[17]
Referral by the Speaker of the House to the Committee on Justice August 11, 2010 August 11, 2010
Results of Vote on whether or not the complaint was Sufficient in Form (September 1, 2010) 39 in favor, 1 against 31 in favor, 9 against
Results of vote on whether or not the Complaint was sufficient in substance (September 7, 2010) 41 in favor, 14 against 41 in favor, 16 against

 

These two complaints have, in all respects, been treated separately by the House, and each stands alone. In fact, the complaints have been treated in separate proceedings, as indicated by the fact that there was no identity in the votes received by each complaint.[18] 

To use the analogy of the candle, each matchstick is a separate impeachment complaint, and referral may ignite the wick.  But in reality, only one matchstick will cause the candle to melt; the other may feed the flame, but a candle, once lit, stays lit, the second matchstick becomes superfluous. In Shakespeare’s immortal words, “what’s done is done.”[19]  In truth, each matchstick ignites a separate candle, because separate and distinct proceedings are contemplated.

But perhaps we need not venture so far for an analogy.  Just like in a regular lawsuit, different parties may prepare their initiatory complaints and file them in court.  The Clerk of Court then refers the complaints to the branch for appropriate action. Even if the Clerk of Court refers two complaints to the same branch at exactly the same time, this does not detract from the fact that two proceedings have been initiated, particularly where each complaint alleges different causes of action.  And though the branch may hear the two complaints in one hearing, the two proceedings remain separate and distinct.

To summarize, notwithstanding simultaneous referral, once the First Complaint was initiated, that is to say, filed and referred to the Committee on Justice, no other proceeding could be initiated against the petitioner. This protection granted by the Constitution cannot be waved away merely by reference to the “layers of protection for an impeachable officer” and the likelihood that the number of complaints may be reduced during hearings before the Committee on Justice. As such, the filing and referral of the First Complaint against the petitioner precluded the Committee on Justice from taking cognizance of the Second Complaint. 

            However, though the Second Complaint is barred by Section 3(5) of the Constitution, the House Committee on Justice should be allowed to proceed with its hearing on the First Complaint.

 

I believe the Members of this Court are well aware of the tension here between the clamor for public accountability and claims of judicial overreach vis-à-vis the demand that governmental action be exercised only within Constitutional limits.  In fact, our work here has been called unjustifiable arrogance by an unelected minority who condescends to supplant its will for that of the sovereign people and its elected representatives.[20]  Nonetheless, try as we might, we cannot shirk from our duty to “say what the law is.”[21]  Particularly, if one conceives of the law as both the reflection of society’s most cherished values as well as the means by which we, as a nation, secure those values, then this Court can do no less than ensure that any impeachment proceedings stand on unassailable legal ground, lest the provisions of our fundamental law be used to work an evil which may not be fully measured from where we stand.

ACCORDINGLY, I vote that:  (1) the status quo ante order should be LIFTED; and (2) the proceedings on the First Impeachment Complaint should be allowed to continue. However, proceedings on the Second Complaint are barred by Section 3(5), Article XI of the Constitution.

MARIANO C. DEL CASTILLO

Associate Justice


[1]          460 Phil. 830 (2003). 

[2]          Id. at 932.

[3]          Id. at 933.

[4]          See Francisco, Jr. v. The House of Representatives (Azcuna, Separate Opinion), id. at 1053, citing the deliberations of the 1986 Constitutional Commission. During said deliberations, Mr. Romulo, in response to queries regarding the one-year limitation, stated:

MR. ROMULO:          Yes, the intention here really is to limit. This is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking. Impeachment proceedings take a lot of time. And if we allow multiple impeachment charges on the same individual to take place, the legislature will do nothing else but that.

[5]          Used here to refer to the Verified Complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-Gutierrez filed by Ms. Risa Hontiveros-Baraquel, Mr. Danilo Lim, Mr. Felipe Pestaño, and Ms. Evelyn Pestaño with the Resolutions of Endorsement filed by Representatives Bag-ao and Bello filed on July 22, 2010.

[6]          Used here to refer to the Verified Complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-Gutierrez filed by Mr. Renato Reyes, Mo. Mary John Mananzan, Mr. Danilo Ramos and Atty. Edre Olalia with the Resolutions of Endorsement filed by Representatives Colmenares, Casiño, Mariano, Ilagan, Tinio and De Jesus filed on August 3, 2010.

[7]          House of Representatives (15th Congress of the Philippines), Journal No. 9, August 11, 2010, available online at http://www.congress.gov.ph/download/journals_15/J09.pdf

REFERENCE OF BUSINESS

On motion of Rep. Romulo, the Body proceeded to the Reference of Business, and the Chair directed the Secretary General to read the following House Bills and Resolutions on First Reading, which were referred to the appropriate Committees hereunder indicated:

x x x x

ADDITIONAL REFERENCE OF BUSINESS

Verified complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-Gutierrez filed by Ms. Risa Hontiveros-Baraquel, Mr. Danilo Lim, Mr. Felipe Pestano, and Ms. Evelyn Pestano with the Resolutions of Endorsement filed by Representatives Bag-ao and Bello

                                                TO THE COMMITTEE ON JUSTICE

Verified complaint for the Impeachment of Ombudsman Ma. Merceditas Navarro-Gutierrez filed by Mr. Renato Reyes, Mo. Mary John Mananzan, Mr. Danilo Ramos and Atty. Edre Olalia with the Resolutions of Endorsement filed by Representatives Colmenares, Casiño, Mariano, Ilagan, Tinio and De Jesus

                                                TO THE COMMITTEE ON JUSTICE (Rollo, p. 576)

See also, the Congressional Record of the Plenary Proceedings of the 15th Congress, First Regular Session, Volume 1, No. 9, Wednesday, August 11, 2010, available online at http://www.congress.gov.ph/download/congrec/15th/1st/15C_1RS-09-081110.pdf. The records indicate that “[t]he Secretary General read the following House Bills and Resolutions on First Reading, and the Deputy Speaker made the corresponding references.”

[8]          The TSN of the Oral Arguments before this Court dated October 12, 2010, pages 146-150 states:

Associate Justice Nachura: Ah, one final thing, if this Court should decide not to revisit Francisco, a question I asked Assistant Solicitor General Laragan is that, when there are two complaints, [is it] the second complaint that is [infirm] if the second complaint is referred [to] the House Committee, after the first complaint shall have been referred? [Thus] the second complaint that will now be [infirm] and barred by Francisco.
Ret. Justice Mendoza: Yes with particular reference to the facts of this case, it would be the second complaint (interrupted)
Associate Justice Nachura: The second complaint (interrupted)
Ret. Justice Mendoza: That would have [to] be dropped, if Your Honor please, for the simple reason that in the proceedings of the (interrupted)
Associate Justice Nachura: House
Ret. Justice Mendoza: . . . House, on August 11 (interrupted).
Associate Justice Nachura: Eleven
Ret. Justice Mendoza: … 2010, the Order of Business. If you look just at the Order of Business listed the first complaint filed by Risa Hontiveros-Baraquiel and three others ahead of the second complaint, and not only that, set or, rather, shows after reading the (interrupted)
Associate Justice Nachura: Order of Business
Ret. Justice Mendoza: … title of the complaint, this is the action taken by the Speaker, refer it to the Committee on Justice accompanied by the banging of the gavel, so that if we have to be (interrupted)
Associate Justice Nachura: Technical
Ret. Justice Mendoza: Concerned with, not only our second, ah, minute and seconds of what is done, then I would say just looking at these, that there are time difference between the action taken here in referring the first complaint and the action taken in referring the second complaint which was similarly, read afterward, and then the Speaker said to the Committee on Justice accompanied or followed by the banging of the gavel to signify the action of the Chair.
Associate Justice Nachura: That – that is what?
Ret. Justice Mendoza: But – But that’s not [a] concern and I am sure that this Court did not intend that when it wrote the Francisco ruling.
Associate Justice Nachura: Ah, that is precisely what I asked Assistant Solicitor General Laragan, that it would not [have] been possible to say that both complaints were referred at the same time, because the House in plenary would have acted on each individual complaint in the Order of Business separately. And the referral technically could not have happened at the same time, to the exact minute and the exact second. And so if we were to x x x apply Francisco very strictly the second complaint would be barred.
Ret. Justice Mendoza: Yes.

 

[9]          Black’s Law Dictionary (9th ed. 2009) (available online at http://www.westlaw.com).

[10]        Id.

[11]        Supra note 1 at  931, adopting the explanation of Fr. Joaquin G. Bernas, S.J.

[12]        Rollo, p. 91.

[13]        Id. at 133.

[14]        Id. at 561.

[15]        Id. at 563.

[16]        Id. at 562.

[17]        Id. at 564

[18]        On the question of sufficiency in form, the Minutes of the Meeting of the Committee on Justice held on September 1, 2010, Wednesday, 9:30 AM (Id. at 76-82), provide:

                                    x x x x

Rep. Fariñas then moved to declare the first impeachment complaint filed [sic] Risa Hontiveros-Baraquel as sufficient in form. The motion was duly seconded. x x x

x x x x

With 39 votes in favor and 1 against, the Chair declared the first impeachment complaint filed by Risa Hontiveros-Baraquel as sufficient in form.

Rep. Casiño also moved that the Committee likewise vote to declare the second complaint file [sic] by Mr. Renato Reyes, et al. sufficient in form. The motion was duly seconded. With 31 members in favor of the motion and 9 members against, the motion to declare the second impeachment complaint sufficient in form was carried. (Id. at 80-81)

On the question of sufficiency in substance, the Minutes of the Meeting of the Committee on Justice held on September 7, 2010, Tuesday, 9:30 AM (Id. at 555-560), provide:

                                    x x x x

Thereafter Rep. Fariñas repeated his previous motion to find the Hontiveros complaint sufficient in substance, which was duly seconded by Rep. Remulla. The Chairman proceeded with the voting on the motion, and with forty-one (41) members in favor and only fourteen (14) against, the Chairman declared the impeachment complaint of Hontiveros, et al sufficient in substance. 

Rep. Fariñas then made a motion to find the impeachment complaint filed by Reyes, et al. sufficient in substance. x x x  (Id. at 560)

x x x x

With forty one (41) votes in favor of the motion, and sixteen (16) against, and one (1) refusal to vote, the Chairman declared the impeachment complaint filed by Reyes, et al. sufficient in substance.

[19]     Macbeth, act 3, scene 2, line 12.

[20]     The phrase “counter-majoritarian difficulty” as an issue in constitutional law theory is widely attributed to Alexander Bickel’s 1962 book entitled THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS.

[21]     Marbury v. Madison, 5 U.S. 137, 177 (1803), 1803 WL 893.

CASE  2011-0158-D: MA. MERCEDITAS N. GUTIERREZ VS.  HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE,  ET AL. (G.R. NO. 193459, 15 FEBRUARY 2011, BRION, J.) SUBJECT: DISSENTING OPINION OF JUSTICE BRION.

 

 

EN BANC

Agenda of February 15, 2011

Item No. 23

 

 

G.R. No. 193459 – MA. MERCEDITAS N. GUTIERREZ, petitioner          - versus - HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE,  ET AL., respondents.

                                                         

Promulgated:     February 15, 2011

x————————————————————————————–x

 

DISSENTING OPINION

 

BRION, J.:

         

          I dissent from the ponencia’s conclusion that the proceedings before the House of Representatives Committee on Justice (Justice Committee) are constitutional.  These proceedings were undertaken without the benefit of duly published and fully effective rules of impeachment and are, thus, fatally infirm for violation of the petitioner’s right to due process. 

          I believe, too, that we should revisit our ruling in Francisco v. House of Representatives[1] as we did not apply the proper consideration when we determined the back-end of the initiation phase of the impeachment proceedings.  The initiation phase should start at the filing of the impeachment complaint and end when the Justice Committee determines that the impeachment is sufficient in form and substance.

Thus, I vote to grant the petition.  

I.  Publication and Due Process

 

a.     The Due Process Objection

 

In the course of assailing the actions of the House of Representatives 
in its impeachment proceedings, the petitioner raised various due process grounds, both substantive and procedural. The threshold issue, however, that must be met before any substantive due process consideration can be made, is whether there were valid and effective rules of impeachment in place, as required by Section 3(8) of Article XI of the Constitution, when the House of Representatives embarked on the impeachment process.

To the petitioner, the Justice Committee failed to properly determine the sufficiency in form of the two impeachment complaints against her since no valid and effective rules of impeachment were in place when the Justice Committee ruled on these matters; the impeachment rules of the 15th Congress were published a day after the Justice Committee ruled that the complaints were sufficient in form.  While the impeachment rules were published on September 2, 2010, they were not yet effective when the Justice Committee ruled that the impeachment complaints were sufficient in substance on September 7, 2010.  Because no valid rules were in place when the Justice Committee initially acted and ruled on the impeachment complaints, a fatal transgression of the petitioner’s right to due process occurred.

 

b. Justification for Judicial Intervention

Impeachment proceedings are political processes that the Constitution places within the exclusive domain of the legislature. Section 3(1), Article XI of the Constitution plainly states that: “The House of Representatives shall have the exclusive power to initiate all cases of impeachment.”  Section 3(6) of the same article grants to the Senate the sole power to try and decide all cases of impeachment. Even the drafting of the impeachment rules is specifically entrusted to the House of Representatives. 

At the same time that it entrusts the impeachment process to the House of Representatives, the Constitution also provides clear standards and guidelines for the House of Representatives to follow to ensure that it does not act arbitrarily.  Among these are: the specification of the grounds for impeachment,[2] the periods within which an impeachment complaint should be acted on,[3] the voting requirements,[4] the one year bar on initiating an impeachment process,[5] and the promulgation of the impeachment rules.[6]Unwritten in the article on impeachment but, nevertheless, fully applicable are the guaranteed individual rights that the House of Representatives must absolutely respect.[7] To the extent of these standards and guidelines, the Court – otherwise excluded from the impeachment process – plays a part in its traditional role as interpreter and protector of the Constitution.[8]  The House of Representatives must act within the limits the Constitution has defined; otherwise, the Court, in the exercise of judicial review, can act and has the duty to strike down any action committed with grave abuse of discretion or in excess of jurisdiction.[9]

c. The Need for Prior Publication

The Constitution specifically provides that the House of Representatives must promulgate its rules on impeachment to effectively carry out the purpose of Section 3, Article XI that, together with Section 2, deals specifically with the House of Representatives’ power of impeachment. 

To “promulgate” means to publish or to announce officially.[10]  By law, publication is necessary for a statute, law or rule to become effective;[11]  Article 2 of the Civil Code provides that laws shall take effect after 15 days following their publication,unless the law provides for another period. Publication is required as a condition precedent to the effectivity of a law to inform the public of the contents of the law, rules or regulations before these enactments take effect and affect the public’s rights and interests.[12]  As a matter of basic fairness, “notice” is required before the public’s rights and interests are placed at risk. In constitutional law terms, this is the guarantee of due process.[13]

We explained in Lorenzo M. Tañada, et al. v. Hon. Juan C.  Tuvera, etc., et al.[14] that the failure to publish a law or rule offends due process; it denies the public knowledge of the laws that affect them and removes the basis for the presumption that every person knows the law.  The term “law” covers laws of general, as well as local, application; it embraces legislative enactments as well as executive orders, presidential decrees, and administrative rules.  The only exceptions to the rule on publication are interpretative regulations and those that are merely internal in nature, i.e., those regulating only the personnel of an administrative agency and not the public.

The impeachment rules do not fall under the exceptions.  Like the Monetary Board circulars that do not only interpret but also “fill in the details” of the Central Bank Act, the impeachment rules which interpret, implement and fill in the details of the constitutional impeachment provisions must also be published.[15]  Significantly, even the ponencia states that the impeachment rules mandated by Section 3(8), Article XI of the Constitution were intended “to fill the gaps in the impeachment process.”[16] These rules cannot be considered as internal rules that merely regulate the performance of subordinates and, hence, are exempted from publication. They are rules that gravely affect the rights of impeachable officials; an impeachment conviction results in the public official’s removal from office and disqualification to hold any public office in the Philippines. The impeachment rules likewise affect a public right; it is a matter of public interest to uphold standards applicable to public officials in the highest positions in the performance of their duties; they are the balancing measures to ensure that our public officials are continually held accountable in the performance of their functions. The fact that the Constitution itself allows “any citizen” to file an impeachment complaint already draws the public as a party with an interest to protect in the impeachment process.

It is a matter of record that the House of Representatives of the 15th Congress has seen it fit and proper to publish the rules of impeachment, although the publication came too late for the proceedings before the .  Records show that the Rules of Procedure in Impeachment Proceedings of the Fifteenth Congress (Rules of Impeachment) was published on September 2, 2010. Under Article 2 of the Civil Code, these Rules became valid and binding only on September 17, 2010.  However, both parties admit that before September 17, 2010, the two impeachment complaints had already been filed[17] and referred to the Justice Committee;[18]  that it had already held a hearing and voted that both complaints were sufficient in form; and that it had subsequently conducted another hearing and voted that both complaints were sufficient in substance.[19]

To rebut the petitioner’s allegation of due process violation for non-publication of the impeachment rules, the ponenciaasserts that the petitioner was fully apprised of the impeachment procedure and had even invoked the rules. This justification, however, cannot fully suffice to do away with full publication.[20]  Compliance with the requirements of publication cannot be excused based on allegations that the party or parties involved had been notified of the existence of the rules.[21]  In National Association of Electricity Consumers for Reforms v. Energy Regulatory Commission,[22] the participation of the parties involved in a previous public consultation and their submission of comments on the proposed rules did not do away with the requirement to publish these rules before they could take effect. The plain and obvious reason for this ruling, of course, is that the binding effect of laws, rules and regulations cannot be made to depend on the actual knowledge of their terms by the affected individuals and entities.  The fact of publication assumes, by legal fiction, that all affected parties have been notified and are aware of applicable laws, rules and regulations; thereafter, the published enactments govern affected parties and their actions.

According to the ponencia, publication is not required since “promulgation” is not the same as “publication”; she alludes to certain legal provisions on the Judiciary’s issuance of judgments where the “promulgation” of orders or decisions does not require publication.  The ponencia further cites National Association of Electricity Consumers for Reforms[23] as justification.  

The comparison of impeachment rules with court rulings is far from apt.  Court rulings are pronouncements by the judicial branch of government on specific cases affecting specific parties on defined issues.  As a rule, these rulings affect only the immediate parties to the case and their successors-in-interest;[24] hence, the public has no immediate interest that may be directly affected, and need not be informed about the court rulings. 

In contrast, laws, rules and regulations, as a rule, affect the public in general and for this reason, they must be brought to the attention of the public.  This reason underlies the rule on publication under Article 2 of the Civil Code and the rule under the complementary Article 3 that ignorance of the law excuses no one from compliance with its terms.  These provisions fully apply to impeachment rules as these rules affect everyone – the impeachable officials; the House of Representatives itself as the constitutional body charged with the initiation of the impeachment process; the members of the House of Representatives; the citizenry who can bring impeachment complaints; and the public at large who have a stake in the due performance of duties by their public officers.

From these perspectives, the term “promulgation,” as used by the courts with respect to its decisions and rulings, cannot be directly compared and equated with “promulgation,” as used with respect to laws and other enactments passed by the legislature; the latter require publication before they become fully effective. Notably, the Judiciary itself is not exempt from the obligation to publish rules that bind the public in general before these rules acquire binding effect.  The Supreme Court publishes its procedural rules because they affect the litigating public; the Rules of Court requires the element of publication in “in rem”  cases where court rulings are intended to bind the public in general. 

Incidentally, the ponencia’s cited National Association of Electricity Consumers for Reforms case[25] cannot be used to support the proposition that promulgation excludes the act of publication. In this case, the Court did not come up with a categorical statement that promulgation should be construed to exclude publication. Even if the term “promulgation”[26] had been loosely used, the focus of the case was on the need to publish rules before they become effective.

The ponencia also points out that even if Section 3 of Article VII of the Constitution requires the promulgation of rules for the canvassing of election certificates, the House of Representatives did not publish these rules.[27]  This justification likewise carries very little supportive weight as the failure of the House of Representatives to publish rules – that, by law, must be published – does not do away with the publication requirement.

I particularly reject the ponente’s statement that there is no other single formal term in the English language to appropriately refer to an issuance without the need of it being published.[28]  Several terms contradicting this statement immediately come to mind; instead of using the word “promulgate,” the words issue, adopt, set forth, establish, and determine may be used, depending on the context.  Thus, I cannot give any merit to the ponencia’s claim. 

I, likewise, cannot accept the implication from the ponencia that the Constitutional Commission may have used the word “promulgate” in Section 3(8), Article XI in a sense different from its established legal meaning.  The members of the Constitutional Commission are legal experts whose deliberative records this Court did not hesitate to cite as authorities in the earlier Franciscocase[29] that first ruled on impeachment under the 1987 Constitution.  At the time the 1987 Constitution was discussed and passed, Article 2 of the Civil Code and the Tañada ruling were already both in place. In both rulings, the general legal usage of the term “promulgation” with respect to laws, rules and regulations denotes “publication.”  Had a meaning other than this usage been intended, the members of the Constitutional Commission could have plainly so stated, i.e., that publication of the rules on impeachment is not necessary.  The reality is that the Constitutional Commission members did not see the need to so state because publication is a given.  Significantly, even the members of the 15th Congress – who themselves are experts in crafting legislations – impliedly recognized the need for publication as they, in fact, did publish their rules on impeachment,[30] although their publication was too late for the proceedings of the .  Under these circumstances, it requires a considerable stretch of the imagination to claim that the term “promulgate” should be understood to be divorced from the requirement of publication.

Even if I were to accept the ponencia’s position that “to promulgate” simply means “to make known” and not necessarily “to publish,” the ponencia does not state how the 15th Congress made its impeachment rules known to the public other than through the publication it undertook[31] (which rendered the rules of impeachment effective only on September 17, 2010 or after the Justice Committee had acted on the impeachment complaints).  With this omission, the 15th Congress cannot be said to have complied with Section 3(8), Article XI of the Constitution in relation to Article 2 of the Civil Code and with existing jurisprudence on this point prior to September 17, 2010.

 In Romulo L. Neri v. Senate Committee on Accountability of Public Officers and Investigationset al.[32] we ruled that the Senate must publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed, to sufficiently put the public on notice on the applicable rules.[33]  As the Court explained then, the Senate is not bound by the rules adopted by the previous Senate. In the same manner, a succeeding House of Representatives cannot simply adopt the rules of the preceding House of Representatives without publication of the rules or the fact of their adoption. Simple adoption of the rules, without the required publication, leaves the House of Representatives with no effective rules binding on the public.

Contrary to the ponencia, the fact that the applicable provision in Neri[34] – Section 21, Article VI of the Constitution – uses the word “publish” instead of “promulgate” does not justify a different interpretation of Section 3(8), Article XI of the Constitution.  A justification for the need to publish the rules in aid of legislative inquiries is to protect the witnesses who may be cited for contempt.  Impeachable officials and witnesses in impeachment proceedings are no less entitled to the same protection as they are likewise subject to the contempt powers of the House of Representatives in these proceedings.  Additionally, impeachable officials stand to be removed from office, prevented from taking any other government post, and made to experience the humiliation that an impeachment necessarily brings. These risks define the standards of fairness an impeachable officer is entitled to in an impeachment proceeding, whether at the House of Representatives or in the Senate.  At the very least, duly published and effective rules of impeachment must be in place to afford the official sought to be impeached the fairness that Section 1, Article III of the Constitution demands.[35] 

To be sure, the belated publication of the Rules cannot have the retroactive effect of curing the infirmity that existed before the publication took place; the guarantee of due process is not served by a belated notice as a violation has by then already occurred. Precisely, publication is a condition precedent to the effectivity of the law.[36]

The ponencia also posits that the lack of publication would not nullify the proceedings taken prior to the effectivity of the impeachment rules, because the 15-day period after publication would run counter to the mandated periods under Section 3, Article XI of the Constitution. 

I find this argument unpersuasive for two very practical reasons. 

First, the due process guarantee does not strictly require that the time gap between the publication and the effectivity of an enactment be fifteen (15) days. The clear terms of Article 2 of the Civil Code show that the House of Representatives has the discretion to specify a period lesser than 15 days before a statute, law or rule becomes effective.  Thus, it could have provided for a shorter period if its intent had been to ensure compliance with the impeachment periods imposed by the Constitution. Unfortunately,it did not so provide and this failure cannot now be used as an argument against the application of the publication requirement.

Second, three (3) periods regulate the actions of the House of Representatives on the impeachment proceedings. The first is the inclusion in the Order of Business which shall be made within 10 session days from the filing of the impeachment complaint. The second is the three-session-day period within which to refer the complaint to the proper committee.  The third is the sixty-session-day period for the committee to report out its actions and recommendations to the plenary. All these are mandatory periods. But of these periods, the first two involve specific actions of the House of Representatives that are required by the Constitution itself and cannot, thus, be affected by the Rules.  The committee actions, on the other hand, have been left by the Constitution[37] for the House of Representatives to determine and undertake at its discretion, subject only to the requirement of a hearing; to the vote required to decide at the committee; and to the general provisions of the Constitution on the protection of the constitutional rights of the impeachable official.  The temporal constitutional limitation is on the period given to the committee to act – it must complete its proceedings and report back to the House of Representatives in plenary within 60 session days from the referral. 

Under the attendant facts of the case where the publication of the adopted Rules of Impeachment came after the impeachment complaints had been referred to the Justice Committee for action, the required 15-day period before it took effect necessarily fell within the mandatory 60-session-day period given to the Committee.  Thus, the opportunity to act within the mandatory 60-session-day period was lessened by the 15-day waiting time for the impeachment rules to take effect.

The intrusion of the publication period on the mandatory period for action by the Justice Committee, however, does not necessarily mean that the publication requirement must give way to the constitutional mandatory period because the mandatory 60-session-day period has not repealed or modified, impliedly or expressly, the publication requirement.  No facial repeal is evident from Section 3(8) of Article XI of the Constitution, nor is there any plain intent to do away with the publication requirement discernible from the terms of the constitutional provision.  Neither is there any irreconcilable inconsistency or repugnancy between the two legal provisions.[38] Thus, no reason exists in law preventing the two legal requirements from standing side by side and from being applied to the attendant facts of the case.

An important consideration in the above conclusion relates to the length of the respective mandatory periods.  The Justice Committee is given 60 session days (i.e., not only 60 calendar days) within which to act, while the period involved under Article 2 of the Civil Code is 15 calendar days.  Under these terms, the simultaneous application of the two requirements is not an impossibility, considering especially that the Justice Committee has control over the impeachment proceedings and can make adjustments as it sees fit to ensure compliance with the required 60-session-day period.

Under the given facts of the present case, the House of Representatives had ample time to pass and publish its rules on impeachment soon after it convened, given particularly that its action was merely to adopt the Rules of Impeachment of the 14thCongress.  However, it chose not to undertake any immediate publication.  The House of Representatives, too, could have provided in its adopted Rules of Impeachment for an effectivity period of less than the 15 days that Article 2 of the Civil Code generally provides, as provided by this Article itself.  This was not also done; thus, a tight time situation resulted for the Justice Committee.

This tight timeline, however, is not an argument or justification to defeat the publication requirement as this requirement cannot be defeated by the negligence or inaction of a party burdened with the duty to publish.  A saving grace in this case is that the full 60-session-day period has not lapsed counting from the time the impeachment complaints were referred to the Justice Committee.

d.  Consequence of Failure to Publish

In light of the House of Representatives’ initial failure to publish its impeachment rules, all the proceedings prior to the effectivity of the subsequently-published rules must necessarily be void for violation of due process.  This is a conclusion the Court cannot shy away from; it must, as a duty, declare the nullity of laws, rules and regulations affecting individual rights that are not published. This is not the first time, in fact, that this Court will so act; jurisprudential history is replete with instances of laws, rules and regulations that the Court has voided for lack of the required publication.[39]  As the present case stands, no discernable reason exists not to apply the fundamental rule on publication.

For clarity, nullity applies to all the proceedings so far taken before the Justice Committee.  These are the hearing on the sufficiency of form and the vote thereon taken on September 1, 2010, and the hearing on the sufficiency of the substance and the vote thereon taken on September 7, 2010. All other committee actions necessarily drew their strength from these early actions and are, therefore, affected also by the lack of publication.  The invalidity does not attach to actions taken by the House of Representatives itself – i.e., the inclusion in the Order of Business and the referral to committees – as these are specific actions taken pursuant to the terms of the Constitution. Given that published rules of impeachment now exist and have been effective starting September 17, 2010, nothing should now prevent the House of Representatives from resuming its proceedings from its last valid action – the Speaker’s referral of the impeachment complaints to the Justice Committee which can now undertake its constitutional role on impeachment.    

 

II. The One-Year Bar Rule

My second point of disagreement with the ponencia is on the interpretation of Section 3(5), Article XI of the Constitution (the one-year bar rule) which states that:

No impeachment proceedings shall be initiated against the same official more than once within a period of one year. 

As explained by Mr. Justice Adolfo S. Azcuna in his Concurring Opinion in Francisco,[40] “the purpose of this provision is two-fold: to prevent undue or too frequent harassment; and to allow the legislature to do its principal task of legislation.”  I highlight these purposes as I believe that they should drive our interpretation of the above-quoted Section 3(5), Article XI of the Constitution.

a. The Contending Positions

The petitioner argues that the filing alone of an impeachment complaint initiates an impeachment proceeding and the referral of the complaint is already the “initial action” taken by the House of Representatives.  Hence, no other impeachment complaint can be filed within a year counted after the filing of the first impeachment complaint.

The private respondents – the proponents of the second impeachment complaint (Reyes group) – argue that the petitioner may invoke the one-year bar only after a referral to the committee (in accordance with Francisco), or at some point between the conclusion of the committee report and the transmittal of the Articles of Impeachment to the Senate. 

The Office of the Solicitor General (OSG), for its part, specifically posits that an impeachment proceeding is initiated only when the House of Representatives disposes the impeachment complaint “by the vote of at least one-third of all the members of the House,”[41]  i.e., through a disposition against the impeachable officer.[42] The OSG and the Reyes group commonly ask, however, for a reexamination of Francisco[43] on the ground that its interpretation of Section 3(5), Article XI of the Constitution has rendered the impeachment mechanism “virtually, if not completely, ineffectual”[44] since it allows public officials to escape constitutional accountability by simply obtaining the filing of a frivolous impeachment complaint to preempt the filing of a meritorious one.[45]

The ponencia declined to adopt either position and applied the Francisco[46] ruling that the filing and the referral of the impeachment complaint to the proper committee “initiated” the impeachment proceedings and triggered the operation of the one-year bar rule.

I disagree with these positions. Nevertheless, as the OSG did and as the Reyes group reflected in their positions, I believe that our ruling in Francisco[47] must be re-examined, particularly its interpretation of what the constitutional proscription against the initiation of more than one impeachment complaint within a year covers.

b. The Facts of Francisco

          Francisco[48] is inevitably the starting point of discussion of the one-year bar rule, if only because this case definitively ruled on the interpretation of  the word “initiate” which this Court determined with finality to be the acts of filing and referral of the impeachment complaint to the proper House committee.   In Francisco,[49] the following facts transpired:

1.     On June 2, 2003, President Estrada filed an impeachment complaint (the first complaint) against Chief Justice Davide and seven other associate justices.

2.     On August 5, 2003, the first complaint was referred to the Justice Committee.

3.     On October 13, 2003, the Justice Committee ruled that the first complaint was “sufficient in form,” but voted to dismiss it on October 22, 2003 for being insufficient in substance. The Committee Report, however, was never submitted to the House of Representatives in accordance with Section 3(2), Article XI of the Constitution.

4.     On October 23, 2003, Reps. Gilbert C. Teodoro and Felix William B. Fuentebella filed with the Secretary General a second impeachment complaint, which was accompanied by a “Resolution of Endorsement/Impeachment” signed by at least 1/3 of all the Members of the House of Representatives. This was followed by a deluge of petitions filed before the Court seeking to restrain the House of Representatives from further acting on the second complaint or for the Court to dismiss those petitions mainly on the ground that the Court has no jurisdiction.

Notably, under these facts, at the time the second impeachment complaint was filed, several acts in the impeachment processhad already been completed – i.e., the first complaint had been filed and referred to the proper committee; the complaint had been determined to be sufficient in form but was also found to be insufficient in substance.  At that point, the Justice Committee only had to submit its report to the House of Representatives, but this was never undertaken.  Before any report could be submitted, a second impeachment complaint was filed.  Thus, the issue of whether the second impeachment case was barred under Section 3(5), Article XI, arose.

The first complaint’s insufficiency in substance notwithstanding, the Court held (as echoed by the present ponencia) that an impeachment proceeding had already been initiated “by the act of filing of the complaint and its referral to the Committee on Justice,”[50] adopting the view of amici curiae Constitutional Commissioners Florenz Regalado and Father Joaquin G. Bernas that the word “initiate” as used in Section 3(5), Article XI of the Constitution,  means to file, both adding, however, that “the filing must be accompanied by an action to set the complaint moving.” This ruling was primarily directed against the position that the vote of one-third of the House of Representatives in a resolution of impeachment will initiate the impeachment proceedings.[51]  

c. Refutation of the Petitioner’s Position

 

The petitioner’s position – that the mere filing of an impeachment complaint should serve as a complete trigger for the one-year bar rule – is a repetition of the view that the Court rejected in Francisco.[52] The petitioner obviously equated a “verified complaint for impeachment” that may be filed under Section 3(2) of Article XI, to the “impeachment proceedings” that may not be “initiated” against the same official more than once within a year under Section 3(5) of the same article. As in Francisco,[53] theponencia  favorably considers the reasoning of Father Bernas that a “proceeding” before the House of Representatives (as distinguished from a “case” which is the “legal controversy that must be decided by the Senate) is progressive in character, having a beginning, a middle and an end. An impeachment “proceeding” begins when a verified complaint is filed and referred to the proper Committee;[54]  the filing of an impeachment complaint sets off the initial phase of the impeachment proceeding, this phase is not completed and the impeachment proceeding is not fully “initiated” until the House of Representatives itself initially acts on the impeachment complaint.

I completely agree with the ponencia that the petitioner’s position should be rejected. Aside from the reasoning based on the deliberations of the Constitutional Commission, the petitioner’s restrictive view unduly limits the people’s right to file impeachment complaints, at the same time that it ties the hands of the House of Representatives – the body constitutionally answerable to the electorate – by effectively placing the power of impeachment in the hands of random complainants whose acts can preclude or suspend the filing of other impeachment complaints for at least a year.

Thus, it is only proper that the act of initiating the impeachment process should go beyond the act of mere filing and should extend to initial action by the receiving entity on the complaint to fully signify that an impeachment proceeding has been “initiated.” To what acts the initiation phase shall extend is a point of disagreement with the ponencia and is fully discussed at the appropriate topic below.   

d. The OSG Position

At the other end (in fact, the back-end) of how an impeachment proceeding is “initiated” for purposes of the one-year bar rule is the OSG’s  position that the back-end is signaled by the favorable vote of a third of the House of Representatives on the intrinsic merits of the impeachment complaint. This view disagrees with the ponencia that the referral by the House of Representatives of the complaint to the proper committee completes the initiation phase of the impeachment process. 

Independently of the reasons propounded in Francisco,[55] I reject this submission for two reasons.

First, to “impeach” simply means “to formally charge with a violation of the public trust”[56] or “to bring an accusation against.”[57] The power of impeachment is lodged with the House and not with the Senatethe power of the Senate is to “try and decide an impeachment case.” Once one-third of the House of Representatives membership votes in favor of impeachment, the public official is effectively impeached – i.e., indicted of an impeachable offense. At this point, the impeachment proceedings before the House of Representatives (again contrasted with the totality of the impeachment “case”) already terminates; and an entirely different proceeding begins – i.e., the trial of the impeachment case at the Senate.

Second, the OSG’s interpretation disregards the purposes of the one-year bar to the point of defeating these purposes. If we pursue the argument to its logical conclusion, as long as the one-third vote required to “impeach” has not been obtained, then the House of Representatives and the Justice Committee can continuously receive and entertain impeachment complaints; only a favorable House of Representatives vote (effectively, the endorsement of the Articles of Impeachment to the Senate) can serve as a bar to another impeachment complaint within one year.  This position, to be sure, is a prescription for the successive filing of impeachment complaints and “hearings” held one after another, terminated only by the successful consideration by the House of Representatives of one of the filed complaints.  The possibility of multiple impeachment complaints is exemplified, not only in the present case, but in the records of previous impeachment complaints before the House of Representatives under the present Constitution. 

I do not believe that this impeachment scenario is what the Constitution intended when it provided for the one-year bar rule; the operation of this scenario cannot but have the effect of causing undue delay and prejudice to legislative work.  To state the obvious, undue harassment of the impeachable official shall also result, again to the prejudice of public service. All these run counter to the purposes of Section 3(5), Article XI of the Constitution.

          e. Revisiting Francisco

All the above having been said, the ponencia’s conclusion of strictly adhering to the Francisco[58] ruling leaves much to be desired as the ruling still leaves open the more specific question of what completes the initiation process in light of the established purposes of the one-year bar rule.

 

An examination of Francisco shows that it extensively discussed the constitutional meaning of “initiation” in Article XI by relying heavily on the records of the Constitutional Commission.[59]  Yet, it was eerily silent on the purposes behind Section 3(5) which was the provision directly in issue. 

Basic in construing a constitution is the ascertainment of the intent or purpose of the framers in framing the provision under consideration. This should include, aside from the reason which induced the framers to enact the particular provision, the particular purpose/s intended to be accomplished and the evils, if any, sought to be prevented or remedied.  Constitutional interpretation must consider the whole instrument and its various parts in a manner that would align the understanding of the words of the Constitution with the identified underlying intents and purposes.[60]

Aside from discussing the proceedings of the Constitutional Commission in considering the initiation aspects of an impeachment proceeding, the Court in Francisco[61] gave the word “initiate” its ordinary meaning, i.e., “to begin, commence, or set going” in accordance with the principle of verba legis. Thus, the word “initiate” in Section 3(1), Article XI of the Constitution was read to mean to commence a “case” that the Senate shall consider after the transmittal of the Articles of Impeachment on the one-third vote of all the members of the House of Representatives affirming the favorable resolution of the Justice Committee or overriding it.  

The majority in Francisco,[62] however, never discussed the meaning of “initiate” for purposes of the one-year bar based on the proceedings of the Constitutional Commission.  Only the Concurring Opinion of Mr. Justice Adolfo Azcuna referred to the purposes of Section 3(5), Article XI of the Constitution, as reflected in the Constitutional Commission deliberations.  He quoted the proceedings as follows:[63]

MR. VILLACORTA. Madam President, I would just like to ask the Committee three questions.

On Section 3, page 2, lines 12 to 14, the last paragraph reads as follows: “No impeachment proceedings shall be initiated against the same official more than once within a period of one year.” Does this mean that even if an evidence is discovered to support another charge or ground for impeachment, a second or subsequent proceeding cannot be initiated against the same official within a period of one year? In other words, one year has to elapse before a second or subsequent charge or proceeding can be initiated. The intention may be to protect the public official from undue harassment. On the other hand, is this not undue limitation on the accountability of public officers? Anyway, when a person accepts a public trust, does he not consider taking the risk of accounting for his acts or misfeasance in office?

MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking. Impeachment proceedings take a lot of time. And if we allow multiple impeachment charges on the same individual to take place, the legislature will do nothing else but that.[64] (Emphases supplied).

Without doubt, the silence of Francisco[65] (and of the present ponencia) on the purposes of Section 3(5), Article XI of the Constitution contributes in no small measure to the clamor for a revisit to Francisco[66] since it did not address the intent of the one-year bar rule, yet laid down a doctrine on the provision that this intent produced.

 

e.1. An Alternative View of Francisco

                              

e.1.i. The Back-End of the Initiation Process

I agree with the conclusion of Francisco[67] on when an impeachment proceeding starts. Indeed, the initiation phase of the proceeding cannot start at any point other than the filing of the impeachment complaint.  I cannot but agree, too, that the initiation phase is not confined solely to the fact of filing; the House of Representatives as the receiving entity has to intervene for a complete and meaningful initiation process.  But beyond these, the question arises – up to what point does the initiation phase of the impeachment proceedings end considering the totality of Section 3, Article XI of the Constitution? 

This question must inevitably arise since the presented reasons – either from the amici curiae or the deliberations of the Constitutional Commission on Section 3(1) and Section 3(3), Article XI of the Constitution – do not present ready answers.  For one, the term “initiate” under Section 3(1) does not carry the same sense as the term “initiated” in Section 3(5); the first refers to the power of the House of Representatives to impeach as against the power of the Senate to try an impeachment case brought forward by the House of Representatives, while Section 3(5) specifically refers to the internal proceedings of the House of Representatives. 

I submit on this point – i.e.on the outer limit or back end of the initiation phase of the impeachment proceedings – that the intent and purpose behind Section 3(5), Article XI of the Constitution must necessarily come into play.  The complete interpretation of the Section must consider the point beyond which another impeachment complaint shall constitute undue harassment against the impeachable official, as well as the point that should serve as a cut-off to ensure that the House of Representatives is not unduly taken away from its mandated lawmaking activities.

 

For a bird’s eye view of the impeachment process at the House of Representatives, the proceedings run as follows:

a.                              A Member of the House files or endorses a verified impeachment complaint;

b.                             The verified complaint is included in the Order of Business of the House of Representatives;

c.                              The House of Representatives refers the verified complaint to the proper committee;

d.                             The committee determines the sufficiency in form and substance of the verified complaint and submits its recommendations to the House of Representatives.[68]

                                                                         i.      If the Committee determines that the complaint is insufficient in form, it shall return the complaint to the Secretary General with a written explanation of the insufficiency. 

                                                                       ii.      If the Committee finds the complaint insufficient in substance, it shall dismiss the complaint and make the proper report to the House of Representatives in plenary. (If the House of Representatives disapproves the finding of insufficiency, thus effectively deciding that the impeachment complaint is sufficient, then it returns the complaint to the Committee for the proceedings described below.)

e.                              After a finding of sufficiency, the committee proceeds to require the respondent to answer and to hear the merits of the complaint.

                                                                         i.      If the committee finds that the complaint lacks merit, it shall submit to the House of Representatives a resolution of dismissal.  A vote of 1/3 of the House of Representatives overrides the resolution, in which case the committee shall prepare the Articles of Impeachment.

f.                               The House of Representatives in plenary considers the committee’s favorable recommendation expressed through a resolution setting forth the Articles of Impeachment.  By a vote of at least 1/3 of the House of Representatives, the Articles of Impeachment shall be endorsed to the Senate for trial.

                                                                         i.      If the 1/3 vote on the resolution on the Articles of Impeachment is not attained, then the complaint is dismissed and the impeachment proceedings end. 

 

e.1.ii.  The Ponencia’s Deficiencies

The ponencia demarcates the referral by the House of Representatives of the impeachment complaint to the proper committee as the outer or back end limit of the initiation phase apparently because referral is the initial action of the House of Representatives action on the matter. The appropriate point, however, cannot be based solely on the first overt action the House of Representatives takes, if the purposes of the “initiation” of the impeachment complaint are to be respected.  Specifically, the purpose and intent of Section 3(5), Article XI of the Constitution, as gleaned from the word “initiated” and the one-year bar rule, must be considered.  I believe that on this point, the ponencia made an incomplete consideration that should be corrected. 

                   e.1.iii.  The One-Year Bar Rule and Its Purposes

The one-year bar rule and its purposes and effects, once considered, unavoidably introduce into the word “initiate” the idea of knowing and meaningful action sufficient to have the effect of preventing the filing of another impeachment complaint within one year.  The import of what the bar signifies can be gleaned from the importance the Constitution gives public accountability and the impeachment process; public accountability is a primary constitutional interest that merits no less than one complete and separate Article in the Constitution, while impeachment is one of the defined means of holding the highest government officials accountable. They are prominent, not only in the Constitution, but in the public mind as well.

In this light, the bar against impeachment that Section 3(5), Article XI of the Constitution speaks of cannot simply be confined to the mechanical act of filing an impeachment complaint.  As every citizen enjoys the right to file a complaint, a bar triggered by the mere physical act of filing one complaint is practically a negation of the granted right without a meaningful basis. Thus, the initiation of an impeachment complaint, understood in the sense used in Section 3(5), Article XI of the Constitution, must involve a process that goes beyond this physical act of filing;  initiation must be a participatory act that involves the receiving entity, in this case, the House of Representatives. 

To be consistent with the nature and effects of the bar, the participation of the House of Representatives in the initiation phase must itself be meaningful; it must be an act characterized by the exercise of discretion in determining that the filed impeachment complaint is valid and can be the basis for the impeachment proceedings to follow, subject to supporting and duly admitted evidence. To state the obvious, only a valid impeachment complaint should serve as a bar; otherwise, no meaningful balance would exist between the impeachment and the bar that can frustrate it.

The receipt by the House of Representatives of the filed impeachment complaint, like the filing of the complaint, involves a mechanical act that leaves the House be the basis for the impeachment proceedings to follow with no discretion to exercise; a filed complaint must be received as the filing of the complaint is in the exercise of a right granted by the Constitution.  In like manner, the initial overt action by the House of Representatives – the referral of the impeachment complaint to the appropriate committee – is no different from the prior act of receiving the complaint.  It is essentially a mandatory act that the Constitution commands.  In fact, the act of receiving an impeachment complaint cannot really be divorced from the act of referral since both acts are products of constitutional directives couched in the mandatory language of Section 3(2), Article XI of the Constitution. 

The next action following the referral of the impeachment complaint to the Justice Committee is the latter’s consideration of the complaint for sufficiency in form and substance. The determination of sufficiency is essentially a test for validity and is the first opportunity for a meaningful action, involving the exercise of discretion, that would justify the imposition of a bar.  It is at this level, with the complaint declared as valid, that impeachment proceedings can be fully recognized to be validly initiated.

From this perspective, the Francisco[69] ruling – while essentially referring to aspects of the initiation phase of the impeachment proceedings – does not fully cover its complete initiation phase. The act of referral that passed Francisco’s[70] approval is a purely mechanical act that does not consider the validity of the complaint and the exercise of discretion in the determination of its validity as essential elements.  At the core, Francisco[71] is incomplete because it did not consider the purposes of Section 3(5), Article XI of the Constitution. 

                   e.1.iv.  The Undue Harassment Purpose

From the perspective of the purposes of the one-year bar rule, it should be noted that up to the point of the referral by the House of Representatives, nothing is expected to be done by the public official against whom the complaint is filed.  In fact, both the Constitution and the impeachment rules do not require that the complainant furnish the official sought to be impeached a copy of the verified impeachment complaint.  Only after the Justice Committee finds the complaint sufficient in form and substance that the respondent official is formally furnished a copy of the verified complaint. 

It should be considered, too, that the mere filing of an impeachment complaint is not per se an act of harassment.  The filing of an impeachment complaint is a remedy that the Constitution itself provides and defines.  The concept of harassment only enters the picture in any subsequent complaint filed; the Constitution itself bars a second complaint within a year from the initiation of the first complaint on the presumption that the second complaint only serves to harass an impeachable officer. 

Since “undue harassment” is practically a legal reason or justification for the one-year bar rule, it can only be understood in terms of the legal effects that the filing of an impeachment complaint carries with it.  As against the impeachable official against whom a complaint is filed, legal effects start only from the time a valid complaint is recognized.  The mere referral of a complaint by the House of Representatives to the proper committee does not in any way legally affect the public official against whom a complaint is filed; at this point, he/she is only a passive participant in the proceedings – a person named in a complaint that may not even prosper.  Legal effect takes place only when the complaint is found valid for sufficiency in form and substance, and the public official is formally furnished a copy and is required to answer.  At this point – i.e., when the House of Representatives, through its appropriate committee, has exercised its discretion in taking concrete action against an impeachable public official – a valid complaint can be said to have been formally recognized by and fully “initiated” in the House of Representatives.

It is at this point, too, that the constitutional intent of preventing undue harassment of an impeachable officer is triggered. Beyond this point, a second impeachment complaint, whether valid or invalid, becomes too many for an impeachable official to face within a year.          

 

                             e.1.v.  Interference in Lawmaking

         

From the perspective of interference in the House of Representatives proceedings, note that the determination of sufficiency of the verified complaint in form and substance requires committee action but not any hearing where the respondent official must be present as a matter of due process.  Sufficiency in form only requires a facial consideration of the complaint based on the mandated formal requirements. 

The Constitution requires the bare minimum of verification of the complaint, and the allegation that it is filed by a Member of the House of Representatives or the endorsement by a Member if the complaint is filed by a citizen.  Additionally, following the Rules of Criminal Procedure of the Rules of Court[72] that applies as suppletory rules, the form should be appropriate if a proper respondent, occupying an office subject to impeachment, is named in the complaint, and if specific acts or omissions are charged under one of the grounds for impeachment defined by the Constitution.

The complaint should be considered sufficient in substance if the acts or omissions charged are appropriate under the cited grounds and can serve as basis to hear and to bring the Articles of Impeachment forward to the Senate.  It is at this point that the Justice Committee can determine, as a matter of substance, if the impeachment complaint is one that – because of its validity – can serve as a bar to a second complaint within a one-year period.   

Notably, all these would only require the examination of the verified complaint and whatever component annexes it may contain, without need for any formal hearing or any explanation from the respondent whose opportunity to explain and dispute the case against him/her only comes after an Answer. It is at this hearing before the Justice Committee that the determination of “probable cause” transpires.

Incidentally, the Constitution expressly requires that there be a hearing before the Justice Committee submits its resolution on the Articles of Impeachment.  Notably, too, the Constitution requires a hearing only at this point, not at any other stage, particularly at the determination of the sufficiency in form and substance stage, although no law prohibits the Justice Committee from calling the parties to a “sufficiency” hearing. 

          Up until the determination of the validity of the complaint in form and substance, all of which are internal to the Justice Committee, interference on the lawmaking part of the House of Representatives can be seen to be negligible.  The records of the present Justice Committee themselves show that it devoted only two meetings to determine the sufficiency of the complaint in form and substance.

Thus, from the point of view of both possible undue harassment effects and interference in the lawmaking activities of the House of Representatives, no justification on these grounds exists to restrict the back-end or outside limit of the initiation phase of the impeachment proceedings to the referral of the verified complaint to the Justice Committee. In fact, the nature of a referral as a mandatory and non-discretionary action of the House of Representatives dictates that the initiation phase be extended beyond this point.  The appropriate point that serves both the “undue harassment” and “interference in lawmaking” purposes of Section 3(5), Article XI of the Constitution is when the impeachment complaint is determined to be valid.  Beyond that point, the possibilities of undue harassment and interference in lawmaking become real.

                   e.1.vi. From Prism of Experience and Practical Application

          Admittedly, the alternative view dictates a result different from the result the Court arrived at under the facts ofFrancisco;[73] with the dismissal of the first impeachment complaint for insufficiency in substance, no complaint stood to trigger the one-year bar rule so that the second complaint should have been recognized.  But this consequence should not deter the Court from reconsidering its position; experience in impeachment cases from the time of Francisco[74] has shown that this ruling has not served the overall purposes of impeachment at all.

As the OSG argued, the Francisco ruling can indeed encourage naughty effects; a meritorious impeachment case can effectively be barred by the filing of a prior unmeritorious impeachment complaint whose mere referral to the Justice Committee already bars the recognition of the meritorious complaint.  Its disregard of the purposes of Section 3(5), Article XI of the Constitution leaves the impeachment process highly susceptible to manipulation. In contrast, this naughty effect can be minimized with the adoption of the alternative view that fully takes the purposes of Section 3(5), Article XI of the Constitution into account, as the alternative:

a.     recognizes that the referral is a mandatory non-discretionary act on the part of the Speaker or the leadership of the House of Representatives; all complaints must be referred to the Justice Committee for its action and recommendation; and

b.     recognizes that the Constitution grants the Justice Committee the initial discretionary authority to act on all matters of form and substance of impeachment complaints, including the finding and recommendation that a second complaint is barred by the one-year bar rule.  

To be sure, an unmeritorious complaint can still be filed ahead of time under the alternative view and be recognized as sufficient in form and substance by the Justice Committee in order to bar an expected meritorious complaint.  This is a political dimension of the impeachment process that neither this Court nor the public can directly remedy under the terms of the present Constitution. The alternative view, however, would prevent the unilateral refusal at the level of the Speaker or leadership of the House of Representatives to refer the complaint to the Justice Committee on the ground of the one-year bar rule.  Once a second complaint is referred, the Justice Committee – as the body granted by the Constitution with the initial authority and duty to rule – would then have to rule on the applicability of a bar and, subsequently, report this out to the plenary for its consideration. At both levels, debates can take place that can effectively bring the matter of public opinion to the bar where the political act of the House of Representatives can properly be adjudged. 

The ponencia, incidentally, posits that:

Referral of the complaint to the proper committee is not done by the House Speaker alone xxx. It is the House of Representatives, in public plenary session, which has the power to set its own chamber into special operation by referring the complaint or to otherwise guard against the initiation of a second impeachment proceeding xxx.

x x x. With respect to complaints for impeachment, the House has the discretion not to refer a subsequent impeachment complaint to the Committee on Justice where official records and further debate show that an impeachment complaint filed against the same impeachable officer has already been referred to the said committee and the one year period has not yet expired xxx. Far from being mechanical, before the referral stage, a period of deliberation is afforded the House[.]    

The ponencia added:

Allowing an expansive construction of the term “initiate” beyond the act of referral allows the unmitigated influx of successive complaints… Worse, the Committee shall conduct overlapping hearings until and unless the disposition of one of the complaints ends with the affirmance of a resolution for impeachment…. or the Committee on Justice concludes its first report to the House plenary regardless of the recommendation… Each of these scenarios runs roughshod the very purpose behind the constitutionally imposed one-year bar. (Underlining supplied).

With all due respect and as discussed above, these statements disregard the clear wording of the Constitution and the purposes of the one-year bar rule.

First, the constitutional directive to refer an impeachment complaint to the Committee is clear and unequivocal; it does not set terms or procedures and provides only for a period.   Also, the House of Representatives itself does not appear – from the terms of Section 3, Article XI of the Constitution – to have the authority at the first instance to undertake any direct action on subsequently-filed impeachment complaints other than to refer them to the proper committee. The House of Representatives, therefore, must refer a filed impeachment complaint to the Justice Committee within the mandated period. Any attempt to read into the Constitution any procedure other than what it clearly provides is to introduce further complications into the impeachment process, and is an intervention inconsistent with the terms of the Constitution.

Second, the question that the ponencia has not even ventured to answer is when an impeachment proceeding is initiated in light of the purposes of the one-year bar.  As pointed out above, until the Justice Committee finds the impeachment complaint or complaints sufficient in form and substance, no “hearing” is required under the terms of the Constitution and it is pointless to claim that overlapping hearings will take place. The Justice Committee acts as the constitutional sentry through its power to determine the validity of the complaints’ form and substance; the judicious exercise of this power is enough to avoid the feared “overlapping hearings.” Any subsequent complaint filed while an impeachment proceeding, based on a valid impeachment complaint, is in progress, or within a year from the declaration of the validity of an impeachment complaint’s form and substance, can only bedismissed for insufficiency of substance as the consideration of its substance is barred by the one-year bar rule. 

It is in the same light that I find it difficult to fully appreciate the ponencia’s analogy – i.e., the referral of the impeachment complaint is like the burning of the candle wick that ignites, that is, initiates impeachment proceedings. Using the same analogy, lighting a candle unless done deliberately, i.e., with the purpose of lighting the candle in mind, would be no better that a candle lit in the winds’ way.  The purposes of Section 3(5), Article XI of the Constitution must be considered in determining when the initiation phase of impeachment proceedings ends; otherwise, a manipulation of the process can intervene, putting the impeachment process to naught.

III.  SUMMARY

          To summarize:

a.                 The House of Representatives properly referred the impeachment complaints filed against the petitioner to the pursuant to the express terms of Section 3(2), Article XI of the Constitution.  Accordingly, the referral is valid. 

b.                 The  proceedings were undertaken without the benefit of fully effective rules on impeachment as required by Section 3(8), Article XI of the Constitution, in relation to Article 2 of the Civil Code.  These proceedings violated the petitioner’s right to due process and, hence, are invalid.

c.                  In light of the Rules of Procedure in Impeachment Proceedings of the Fifteenth Congress, promulgated on September 2, 2010 and which became effective on September 17, 2010, no legal stumbling block now exists to prevent the  from taking cognizance of the referred complaints and from undertaking its constitutional role under Section 3, Article XI of the Constitution.

d.                 The initiation phase of impeachment proceedings starts with the filing of the verified impeachment complaint by any Member of the House of Representatives or by any citizen upon resolution of an endorsement by any member of the House of Representatives.  The initiation phase ends when the Justice Committee determines and the House of Representatives approves the sufficiency of the impeachment complaint in form and substance.

e.                  The finding of the validity of the impeachment complaint in form and substance completes the initiation phase of the impeachment proceedings and bars the filing of another impeachment complaint for a period of one year therefrom.

f.                   Any question posed by the filing of separate complaints by two separate parties in the present case is a matter for the Justice Committee and, ultimately, for the House of Representatives, to resolve under the terms of the Constitution and its Rules on Impeachment. In light of the invalidity of the proceedings of the Justice Committee, there is no concrete action that this Court can act upon; the matter, at this point, is not yet ripe for adjudication.

On the basis of the foregoing, I vote to GRANT the petition.

                                                           ARTURO D. BRION

                                                               Associate Justice


[1] 460 Phil 830 (2003).

[2]  Section 2, Article XI of the Constitution.

[3]  Section 3(2), Article XI of the Constitution.

[4]  Section 3(3), (4) and (6), Article XI of the Constitution.

[5]  Section 3(5), Article XI of the Constitution.

[6]  Section 3(8), Article XI of the Constitution.

[7] Article III of the Constitution.

[8] IBP v. Zamora, G.R. No. 141284, August 5, 2000, 338 SCRA 81.

[9] Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251, 271.

[10] Black’s Law Dictionary, 5th edition.

[11] Republic v. Express Telecommunications Co., Inc., 424 Phil 372, 393 (2002); and Pilipinas Kao, Inc. v. Court of Appeals, 423 Phil. 834, 859 (2001). Article 2 of the Civil Code reads:

Art. 2.  Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided.  This Code shall take effect one year after such publication.

[12] Philippine International Trading Corporation v. Commission on Audit, 368 Phil. 478, 491 (1999).

[13] See Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667, 169834 and 171246, April 20, 2006, 488 SCRA 1, 72.

[14] 230 Phil. 528, 534-535 (1986).

[15] Id.

[16] Ponencia, p. 19.

[17] Memorandum of the House of Representatives Committee on Justice dated October 26, 2010, pp. 6-7; and Memorandum of petitioner dated October 21, 2010, pp. 4-7.  The two complaints were filed on July 22, 2010 and on August 3, 2010.

[18] Memorandum of the House of Representatives Committee on Justice dated October 26, 2010, p.7; and Memorandum of petitioner dated October 21, 2010, p. 8.  Both complaints were referred to the Justice Committee on August 11, 2010.

[19] Memorandum of the House of Representatives Committee on Justice dated October 26, 2010, pp.7-8; and Memorandum of petitioner dated October 21, 2010, pp. 8-16.  On September 1, 2010, the Justice Committee conducted a hearing on the sufficiency in form of both complaints.  On September 7, 2010, the Justice Committee conducted a hearing on the sufficiency in substance of both complaints.

[20] Ponencia, p. 21.

[21] Republic v. Pilipinas Shell Petroleum Corporation, G.R. No. 173918, April 8, 2008, 550 SCRA 680, 693.

[22] G.R. No. 163935, February 2, 2006, 481 SCRA 480, 521.

[23] Id.

[24] Padilla and Phoenix-Omega Development and Management Corp. v. Court of Appeals and Susana Realty, Inc., G.R. No. 123893, November 22, 2001, 370 SCRA 218; and National Housing Authority v. Jose Evangelista, G.R. No. 140945, May 16, 2005, 458 SCRA 478-479.

[25] Supra note 22.

[26] Id. at 518 and 522.  The term “promulgation” was used alternately in reference to orders and rules.

[27] Ponencia, p. 17.  It is Section 4(6), not Section 3, Article VII of the Constitution that refers to the promulgation of canvassing rules.

[28]  Id. at 18.

[29]  Supra note 1.

[30] Urbano v. Government Service Insurance System, 419 Phil. 948, 969 (2001); and Corona v. Court of Appeals, G.R. No. 97356, September 10, 1992, 214 SCRA 378, 392, citing Ruben Agpalo, Statutory Construction.

[31] Ponencia, p. 18.

[32] G. R. No. 180643, September 4, 2008, 564 SCRA 152, 230.

[33] Tañada v. Tuvera, supra note 14.

[34] Supra note 32.

[35] Republic v. Pilipinas Shell Petroleumsupra note 21.

[36] Philippine International Trading Corporation v. Commission on Auditsupra note 12.

[37] Section 3(2), Article XI of the Constitution.

[38] See Mecano v. Commission on Audit, G.R. No. 103982, December 11, 1992, 216 SCRA 506; Republic v. Asuncion, G.R. No. l-108208, March 11, 1994, 231 SCRA 230-232; Secretary of Finance v. Ilarde,   G.R. No. 121782, May 9, 2005, 450 SCRA 233; and Hagad v. Gozo-Dadole, G.R. No. 108072, December 12, 1995, 251 SCRA 251-252. 

[39] Securities and Exchange Commission, G.R. No. 164026, December 23, 2008, 575 SCRA 113, 121-123; Republic v. Pilipinas Shell Petroleum Corporationsupra note 21, at 689-694;Senate v. Ermita, G.R. Nos. 168777, 169659, 169660, 169667, 169834, and 171246, supra note 13, at 71-72; Pilipinas Kao, Inc. v. Court of Appealssupra note 11, at 860-861; Philsa International Placement and Services Corp. v. Secretary of Labor and Employment, 408 Phil. 270, 290 (2001); and Philippine International Trading Corporation v. Commission on Auditsupra note 12.

[40] Supra note 1.

[41]  Memorandum of the House of Representatives Committee on Justice, pp. 78 and 80.

[42] This is a step further than the interpretation of the House of Representatives of the 12th Congress of Article XI, Section 3(5) in Francisco. The Rules on Impeachment of the 12thCongress provides that an impeachment proceeding is deemed initiated, among others, on the date the House of Representatives votes to overturn or affirm the findings of the Justice Committee that the verified impeachment complaint is not sufficient in substance. Simply, the House of Representatives’ disposition of the impeachment complaint need not be against the impeachable officer to “initiate” an impeachment proceeding.   

[43] Supra note 1.

[44]  Memorandum of respondents Reyes et al., pp. 30-31.

[45]  Memorandum of The House of Representatives Committee on Justice, pp. 80-83.

[46]  Supra note 1.

[47]  Supra note 1.

[48]  Ibid.

[49]  Ibid.

[50] Id. at 169-170.

In Francisco, the Court stated that for Commissioner Regalado, the sponsor of Section 3(5), Article XI, “initiate” means “to file” adding that the act of initiating “included the act of taking initial action on the complaint.” 

Father Bernas’ argument goes:

Briefly then, an impeachment proceeding is not a single act.  It is a complexus of acts consisting of a beginning, a middle and an end.  The end is the transmittal of the articles of impeachment to the Senate.  The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice.

[51] Id. at 164.

[52] Id.

[53] Ibid.

[54] Id. at 169.

[55] Id.

[56] Black’s Law Dictionary, 8th ed.

[57] Webster’s Third New International Dictionary.

[58] Supra note 1.

[59]  I entertain doubts on the completeness of Francisco’s arguments in construing the word “initiate”(which the ponencia effectively adopted) in so far as they rely on Commissioner Maambong’s observations.  The Commissioner’s remark on the need to be “very technical” on the word “initiation” obviously referred to Section 3(3) of Article XI where the word “initiate” no longer appears, but was read in relation to Section 3(1). The word “initiate” in Section 3(1), however, is used in a different sense, that is, to bring an impeachable officer to impeachment trial in the Senate. The word “initiate” in Section 3(1) is expressly used in the Constitution as a “power” – and not with reference to procedure. The same word as used in Section 3(5) was understood in Francisco to mean the “filing and referral to the Justice Committee” for action, which essentially refers to procedure.  In this consideration of Section 3(5), its purposes were not taken into account.  

[60]  See Civil Liberties v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317.

[61] Supra note 1.

[62] Ibid.

[63]  Id. at 1053

[64] 2 Record of the Constitutional Commission, p. 282; see also Separate Opinion of Justice Azcuna in Francisco v. House of Representativesid. at 313.

[65] Supra note 1.

[66] Ibid.

[67] Ibid.

[68] A. COMMITTEE PROCEEDINGS

 

Section 4. Determination of Sufficiency in Form and Substance. - Upon due referral, the Committee on Justice shall determine whether the complaint is sufficient in form and substance. If the committee finds that the complaint is insufficient in form, it shall return the same to the Secretary General within three (3) session days with a written explanation of the insufficiency. The Secretary General shall return the same to the complainant(s) together with the committee’s written explanation within three (3) session days from receipt of the committee resolution finding the complaint insufficient in form.

Should the committee find the complaint sufficient in form, it shall then determine if the complaint is sufficient in substance. The requirement of substance is met if there is a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee. If the committee finds that the complaint is not sufficient in substance, it shall dismiss the complaint and shall submit its report as provided hereunder.

Section 5. Notice to Respondents and Time to Plead. - If the committee finds the complaint sufficient in form and substance, it shall immediately furnish the respondent(s) with a copy of the resolution and/or verified complaint, as the case may be, with written notice thereof and serve a copy of the answer to the complaint(s). No motion to dismiss shall be allowed within the period to answer the complaint.

The answer, which shall be under oath, may include affirmative defenses. If the respondent fails or refuses to file an answer within the reglementary period, he/she is deemed to have interposed a general denial to the complaint. Within three (3) days from receipt of the answer, the complainant may file a reply, serving a copy thereof to the respondent who may file a rejoinder within three (3) days from receipt of the reply, serving a copy thereof to the complainant. If the complainant fails to file a reply, all the material allegations in the answer are deemed controverted. Together with their pleadings, the parties shall file their affidavits or counter-affidavits, as the case may be, with their documentary evidence. Such affidavits or counter-affidavits shall be subscribed before the Chairperson of the Committee on Justice or the Secretary General. Notwithstanding all the foregoing, failure presenting evidence in support of his/her defenses.

When there are more than one respondent, each shall be furnished with copy of the verified complaint from a Member of the House or a copy of the verified complaint from a private citizen together with the resolution of endorsement by a Member of the House of Representatives and a written notice to answer and in that case, reference to respondent in these Rules shall be understood as respondents.

[69] Supra note 1.

[70] Ibid.

[71] Ibid.

[72]  Section 7, Rule 17.

[73] Supra note 1.

[74] Ibid.

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