Battle Royale

Impeachment is once again controversial. In an unprecedented move, the House Committee on Justice lead by its Chairman, Rep. Neil Tupas Jr., voted overwhelmingly to defy a status quo order ordered by the Supreme Court on the impeachment complaint filed against the Ombudsman Merceditas Gutierrez. At issue is whether a second impeachment complaint by the party list Bayan Muna filed and consolidated with an earlier one filed by Rep. Rissa Hontiveros of Akbayan was a prohibited complaint for violating the one-year ban on the filing of subsequent impeachment proceedings against an impeachable officer. The allegation of the beleaguered Ombudsman is that it is. The House of Representatives believes that the Court has no jurisdiction to hear the Ombudsman’s petition. This is because according to it, the initiation of an impeachment complaint is an exclusive power of the House of Representatives. Hence, the Court is bereft of jurisdiction to hear the Petition of the Ombudsman.
To the surprise of the House of Representatives, and before it could be heard, the Supreme Court issued a stay order that effectively had the effect of a restraining order. Predictably, the Court spokesman warned members of the House that they risk being cited in contempt of court should they proceed with their proceedings. Well, the die has been cast: the House has defied the court. Who will blink in this constitutional confrontation?

We have had our share of involvement in impeachment proceedings. In 2003, we petitioned the court to restraint the House of Representatives from transmitting its articles of impeachment against then Chief Justice Hilario Davide Jr. on the ground that the same was a second prohibited impeachment proceeding. This was because the articles of impeachment was signed by one-third of all members of the lower house a day after the Justice Committee had dismissed an earlier impeachment complaint against the Chief Justice for administering the oath to President Gloria Macapagal-Arroyo as President after Edsa 2.

Later, we also served as counsel for three impeachment complaints against ex-president Gloria Macapagal-Arroyo and a petition in the Supreme Court questioning the dismissal of an amended impeachment complaint filed after an earlier complaint filed by Oliver Lozano.

At the center of all controversies is the one-year ban provided in Section 3 (5), Article XI of the 1987 Constitution: “(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year”.

In the first case, the court ruled in Roque et. al. v. De Venecia that it had jurisdiction to act on the petition seeking to restraint the filing of the impeachment despite clear language of the Constitution that the House of Representatives has the exclusive power to initiate impeachment complaints. This, according to the court, is precisely the purpose behind judicial power, that is, to uphold the supremacy of the constitution where there is grave abuse of discretion on the part of an agency or department of government. There is grave abuse of discretion where a branch of government contravenes a literal provision of the Constitution.

The Court then ruled that initiation is upon filing of a complaint and referral to the Committee of Justice. Under this interpretation, the court ruled hence: “In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on Aug. 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro Jr. and Felix William Fuentebella against the Chief Justice on Oct. 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period”.

In the second petition, Martinez v. De Venecia, we questioned the decision of the House to junk the substantive amended complaint to the Lozano petition. We argued that what is prohibited by the Constitution is more than one impeachment proceeding per year and not multiplicity of complaints itself. Otherwise, we argued that all that an impeachable officer would do to ensure a year of impunity is to cause the filing of a bogus impeachment complaint.

In the vernacular, we warned that what would ensue would be an “unahan ng daga”. Hence we argued that what was literally prohibited was “multiple impeachment proceedings” and not “complaints”. No ruling on the merit was rendered in this second case because the court dismissed it on the ground that it had become moot when Mrs. Arroyo ended her nine years of destructive reign. But the court did miss a golden opportunity to give guidance to bar and bench on what is precisely prohibited by the constitution. This once more, is the issue in Gutierrez v. House of Representatives Committee on Justice.

The argument by the Ombudsman is that the House Committee on Justice violated the constitution when it consolidated the second Bayan petition with the first Akbayan petition and proceeded to determine sufficiency of form and substance of both complaints.

This we submit is the correct course of action in the event of multiple impeachment complaints. Provided it complies with the ruling in Roque that it was referred simultaneously to the Committee on Justice, the committee should consolidate all pending complaints in the same manner that any House committee would consolidate all the different bills covering the same subject matter in a committee report that would then be submitted to the plenary. The difference is that unlike in the earlier controversy, this is now the course of action taken by the Committee. Our problem then was whether as a result of separation of powers, the Court could in fact compel the House Committee on Justice to do what it did now in the Gutierrez complaint.

But the really interesting issue now is: which branch of government will blink? Relax and enjoy the best show in town!

Cloning De Lima, the IIRC and the inquisitorial system

The raging controversy today is the 12-point recommendation of the Incident Investigation and Review Committee on the August 23 Luneta debacle. There has not been any report in this country that was welcomed by everyone. The IIRC report is no exception. It was met by a mixture of relief and appreciation by those who want to move on; and scorned by those whom the Committee recommended to be the subject of criminal prosecution. I myself have mixed feelings about the recommendations of the Committee. While I generally support its recommendation to indict the men in uniform and other public officers either for their incompetence, fault or failure to exercise control over their subordinates, I nonetheless lament its recommendations to charge the media for the debacle.
I continue to be the biggest fan of Justice Secretary Leila de Lima and still think that she should be cloned so that she can serve in all graft-ridden departments and agencies of the bureaucracy at the same time. I do believe, though, that even the mere recommendation that charges be filed against the media would result in chilling the exercise of freedom of the press. If and when these indictments are actually filed, it would further result in an actual infringement of this all-important right.

Looking at my past writings, I noticed that majority of them have been on freedom of expression and freedom of the press. This is not a coincidence as the promotion of these rights has been the primary advocacy of the Center for International Law, a civil society organization that I chair. This explains our participation as private prosecutors in the Ampatuan massacre case as the killing of journalists is the ultimate form of censorship. This is also why we sued the former first gentleman, Miguel Arroyo for P12.5 million in damages for resorting to the filing of at least 45 libel cases which we described as infringement of the right to a free press and an abuse of right. This also explains why we sued the police and the military for their en masse arrests of members of the media for covering the walkout and press conference of Senator Antonio Trillanes at the Manila Peninsula. Indeed, it could be said that bulk of my professional life has been devoted to promoting freedom of expression.

This is due to good reasons. First, I have always had a big mouth and have always been opinionated. To me, without free speech and a free press, there could not be an exchange of ideas that would lead to debates and eventually, solutions to our many problems. Freedom of the press is also indispensible for the formation of public opinion that has proven to be more potent than the Ombudsman (certainly under the current one), the Sandiganbayan, and the Supreme Court combined, in dealing with despotic leaders. And to those who believe that man was created in the image of God, freedom of expression is a right bestowed by God, full stop.

It is hence indispensible that media should be allowed to perform their task except where their conduct will lead to a clear and present danger that the state has a right to prevent. Even in times of armed conflict, media is allowed to perform their job of reporting to the public the truth and events as they transpire in the battlefield. If they are allowed to perform their profession even when there is full blown shooting without fear of criminal prosecution, why should the IIRC recommend their criminal prosecution for their coverage of an isolated act of violence?

True, media’s coverage of the Luneta debacle was far from ideal. But what made the event a debacle was not because it was reported by the media, but because the police and all those identified by the IIRC as being culpable were either at fault or negligent. And yes, with the finding that the fatalities were killed by the gunman himself, where is the criminal culpability of the media?

Ultimately, any act where agents of the state seek to substitute their judgment on what and how to cover a news worthy event infringes on the right to a free press. Moreover, even conceding that some members of the media were guilty of bad journalism for their coverage of the debacle, still there is no criminal statute against bad journalism. Nullum crimen, nulla poena sine praevia lege poenali. (No crime, no punishment without a previous penal law)

One very good thing, though, illustrated by the IIRC was the speed and dispatch by which the Committee received evidence on the incident. If only our criminal courts could function in the same manner that Secretary De Lima and her committee did, I am sure we would not have the backlog that has caused a state of paralysis in our courts today.

Blame should be put on those who opted to abandon the inquisitorial system that we inherited from Spain, in favor of the current adversarial system of hearing cases in our courts. Under the European model, it is the Judge, much in the same way that Secretary De Lima did in the IIRC, who would ask questions from witnesses and order the production of evidence. I had personal experience on this system when I appeared in a case in Basel, Switzerland where the Judge asked questions for seven and a half hours and gave each counsel 15 minutes each at the end of the hearing to ask clarificatory questions or to make submissions. We junked this system in favor of our adversarial system that we borrowed from the Americans. Under this system, the Judge is a passive recipient of evidence. It is the lawyers who ask the questions and present the evidence. This ultimately is the source of delay in the administration of justice in our country. Hence, not only do we need to clone de Lima, we also need to revert to the inquisitorial system.

DON’T CHARGE THE MESSENGERS: Bad journalism is not criminal conduct

The Center for International Law (CENTERLAW), a civil society organization that advocates, among others, freedom of expression and a free press, express its disappointment at the IIRC recommendation to charge the media for the August 23 debacle. While we acknowledge that media may have failed to observe the highest degree of professionalism and self-restraint in their coverage of the unfortunate incident, still this is not a basis for holding them liable for breach of the country’s criminal laws. Bad journalism is not and should never be criminal in a democracy.

The reality is that the August 23 incident was truly a news worthy event. Media hence had a duty to cover the incident. While the Philippine media has acknowledged that its coverage may have affected the outcome of the incident; this however, is but a natural consequence of the right of the public to information on matters involving public concerns. Indeed, the whole incident is reflective why there is a culture of impunity in this country: a failure of the legal system to work provide adequate remedies to individuals under domestic law and security forces that are both inept and abusive in the discharge of their functions.

CENTERLAW thus calls on the reformist P Noy not to adopt the IIRC’s recommendations. Coming on the eve of the anniversary of the declaration of martial law by the despot Ferdinand Marcos, P Noy must be reminded that without a free press, there would not be a public debate on public issues crucial to the functioning of a representative democracy. This was why as a precondition for the establishment of an authoritarian regime, then despot Marcos had to muzzle a free press.

CENTERLAW also express alarm that the recommendation is no different from the manner by which the Arroyo administration sought to silence the public debate on issues relevant to the nation. Like Arroyo, the IIRC recommends the use of penal laws to repress press freedom. The difference is in the crime sought to be charged: under Arroyo it was libel or disobedience to authorities; under the IIRC recommendation, it is obstruction of justice.

Unlike Marcos or Arroyo, P Noy has no reason to repress press freedom. This is because unlike both Marcos and Arroyo, P Noy without a doubt was vested with an overwhelming mandate from the people. With no skeleton in his closet, P Noy should allow the media to thrive and mature in an adolescent democracy.#30#


It was another day of revelation and surprises on the continuation of the Ampatuan massacre case. The former Ampatuan houseboy, Lakmodin Saliao (“Lak”), took another three hours to detail what transpired after the November 23, 2009 massacre. It was a testimony that sounded like chapters in a mystery novel replete with allegations of bribery, perjury […] More →

Defending Human Rights

Wednesday was a very busy day for the protection of human rights and the fight against impunity. It started with the resumption of hearing in the Ampatuan massacre in a make-shift court house in Bicutan, Taguig. Prior to yesterday, the victims manifested their disturbance and distraught at the fact that despite an agreement reached by […] More →

Revisiting the Ombudsman Law

That former police officer Rolando Mendoza complained about the inefficiency of Ombudsman Merceditas Gutierrez highlights the need for Congress to re-examine the Ombudsman as an institution created by the Constitution and by law. While it is the 1987 Constitution that first created the Office of the Ombudsman, it is a mere law that gave the […] More →