EN BANC
Agenda for February 1, 2011
Item No. 11
G.R. No. 193459 – MA. MERCEDITAS N. GUTIERREZ, Petitioner, 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, 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
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 not the 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 Trust 1.
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 |
Betrayal
of Public Trust 1.
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 in Information
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.
Associate Justice
[1] 460 Phil. 830 (2003).
[2]
[3]
[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
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 www.westlaw.com).
[10]
[11] Supra
note 1 at 931, adopting the explanation
of Fr. Joaquin G. Bernas, S.J.
[12] Rollo, p. 91.
[13]
[14]
[15]
[16]
[17]
[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 (
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. (
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 (
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 (
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