Policy points

House Minority Leader Francis Escudero got the nod from the gallery, but I reckon it was Rep. Ronaldo Zamora who made the most telling points, when he discussed the "policy points" that should govern our thinking on the impeachment cases. And yes, that was Sunday’s Inquirer editorial that he quoted from:

The majority must realize the true import of the impeachment process: It is not only the constitutionally mandated process for hearing accusations of impeachable offenses against the President. It is also the President’s main venue for putting an end to the credibility crisis she faces.

The way to do that is to throw the strongest possible case against her. If she survives a committee vote on the manifestly weaker complaint, the credibility crisis will continue to undermine her presidency. After all that trouble, the President will be right back where she started. But if she survives the stronger complaint, then she can finally put the crisis behind her.

8 Comments

Filed under Readings in Politics

8 responses to “Policy points

  1. John,

    The impression one gets from the opposition is that the amended complaint has the wherewithal to impeach GMA.

    I think in the same way you did the blogosphere a credit by publishing the letter of Dinky while your broadsheet is still publishing it in parts, the amended impeachment complaint should be posted as well here so the public can know better if the amended complaint will stand congressional scrutiny.

    I read the amended impeachment complaint an hour before it was filed in the House and while it is certainly more substantive than the original Lozano complaint, the allegations on the other crimes do not necessarily strengthen the case against the president.

    The allegations of the other crimes charged are not necessarily impeachable offenses. What the drafters did was to frame it and use boilerplate constitutional phrases to let those crimes fall under the grounds for impeachment.

    Haven’t you noticed why the opposition does not even highlight the other crimes and why the chief whiner, as you put it, only emphasizes the lying, cheating, stealing part of the impeachment complaint.

    I think the idea here is to bring as many charges as you can conceivably do and hope that the Justice committee will let the most important allegations, the Garci tapes and the jueteng issues, pass through. This was done in the Clinton impeachment case. 11 articles were alleged and four came through.

    The other articles of impeachment are just fodder for dismissal. More than that, making the amended impeachment complaint appear more substantive than it actually is sets the stage for another people power once the Justice Committee dismisses the entire complaint. Impeachment is truly a damnable political process.

    Constitutional law has always maintained that criminality is not synonymous with impeachability. The opposition owes the public a better and more focused impeachment complaint and not a just rehash of old or unsubstantiated charges.

    But then again, no matter how dumb an impeachment complaint is, the opposition can always blame the majority for railroading the process. Makes you really wonder whether it is God or the devil in the details.

  2. EDWIN: Constitutional law has always maintained that criminality is not synonymous with impeachability. The opposition owes the public a better and more focused impeachment complaint and not a just rehash of old or unsubstantiated charges.

    ABE: One political dimension of an “impeachable offense” is that ultimately it is what the 79 or more will say it is (but why not, if activists in the SC, some more or less clueless about what “judicial activism” means, could claim that “law is what they say it is”?). If the Clinton impeachment is one “persuasive” standard – where lying under oath about a private affair has been raised to the level of an impeachable offense – it would perhaps be easier to appreciate the political complexion of impeachment. Fortunately, the Constitution has also allocated the other part of the impeachment power to the Senate to act as the Impeachment Court.

    Nonetheless, should one feel less discomfort about the House defining impeachable offense rather despotically than the SC brandishing its so-called “expanded certiorari jurisdiction” whenever it thinks or decides (subject only to the individual consciences of the justices) any branch or instrumentality of the Government – potentially including the Senate sitting as the Impeachment Court – gravely abused its discretion? Would you dare say that if one is political superciliousness, the other could be no less than a revival of the Divine Right Theory?

    Well, at least the congressmen could be held accountable in the next elections (NB: Clinton during all his impeachment travails has kept his approval rating high, while the economy in budget surplus has also remained strong; as a result, a number of his impeachment prosecutors have lost their congressional seats during the mid-term elections). SC justices are however accountable to no one but to their state of health until retirement age.

    Edwid, as someone who teaches Constitutional Law, what is your take about the future of Filipino constitutionalism beyond GMA (barring radical Charter change) given SC’s well-nigh Divine Right powers?

    Please note that reliance upon the political will of Congress is precarious at best. Recall that Speaker De Venecia and co. have pleaded the SC in Francisco that the matter before it was a “political question” and therefore beyond the ambit of judicial review (which reminds one that the media has not so far done its homework to bring this to the fore – perhaps a convincing argument as you may have implied for the blogosphere as the next Estate). Now, under the New Impeachment Rules, the 13th Congress, still under De Venecia’s Speakership, has wholeheartedly supplicated to the Francisco ruling. Who will check this constitutional imbalance constitutionally?

  3. Abe,

    On judicial activism – I dont think our justices have what it takes to be judicial activists. Judicial activism denotes a judicial philosophy of looking at the constitution as a living breathing organism and therefore the constitution is interpreted in accordance with the needs of the times. Contrast that to being a strict constructionists where the jurist interprets the constitution according to the intent of the original framers.

    Here, some SC justices are not judicial activists at all, they are “politicians in robes” EDSA DOS was a clear case of political intervention by the Supreme Court. It conferred legitimacy on the Arroyo government when their intervention was not legally required or called for. For all its powers, the US Supreme Court only intervened in the 2000 US presidential election when a case was elevated before them but not before that.

    There are other decisions such as the Manila Hotel case and the Mining Law that were clearly political decisions. To my mind, the only authentic judicially activist decision was the Oposa case penned by CJ Davide where he gave the unborn future generations the legal personality to question the destruction of the environment. But then again, who can argue against that proposition?

    On the Divine Right – Actually, far more than the SC wielding the divine right, the impeachment process is an offshoot of the principle that the king can do no wrong or in our case, the president can do no wrong. You do not hang the president on a violation of just any crime. The Constitution provides a higher standard in impeaching the president and that is what gets my goat. The opposition insults us by putting all these charges when they know that most of them will be dismissed anyway. What they are banking on are the Garci tapes and the jeuteng payoffs. And they had to include all those other charges because the problem with the Garci tapes is its admissibility and unless you can hale Garci or some jueteng witnesses to the impeachment court, the tapes and the jueteng payoffs will be suspect.

    The anti-GMA forces therefore should not be surprised if the complaint is thrown out since it is really a horse race (with indulgence to Escudero) to get to 79, as you correctly put it. It is a numbers game where morality, conscience, bribery and concessions will come into play and as a result, the impeachment process will descend to the not-so-unexpected-level of “pahabaan ng pisi”.

    Incidentally, I agree with you that Clinton had the happy fortune of being impeached by a Republican controlled Legislature in a time of plenty. Contrast that with Nixon with his Vietnam debacle and a Democrat controlled House which led to his resignation. Here, GMA has the mixed combination of an administration controlled House but with a sagging economy and the real threat of the ill effects of the VAT implementation. By the way, you may be right about the SC’s divine right powers after all. If it affirms the EVAT, the SC may just sound the death knell of this presidency.

    On the expanded certiorari jurisdiction – Abe, you are a lawyer far more advanced than I am in years and experience. And what i know of the expanded certiorari jurisdiction is the result of Chief Justice Roberto Concepcion’s unhappy years being CJ during the Marcos regime and the latter’s oft-invoked “political question” doctrine which as a result, the courts would not rule against the government.

    I agree that the this expanded jurisdiction has its excesses but on whether it will have jurisdicton to overrule the Senate decision on the guilt or innocence of the President, I highly doubt if they will have the temerity to do so. Being strict constructionists, there is neither judicial precedent nor commentaries from the Records of the 1986 Constitutional Commission or the Federalist Papers to support that brazenness.

    On the SC well nigh divine right powers – The problem with us in respect of the Supreme Court is nobody has said anything about changing the SC in the charter change. The SC seems to be untouchable because we fear them, we respect them, or we dont know what to do about them. To many of us, they are the last bastion of an ordered, civilized society.

    But it is only with charter change that we can correct whatever infirmities we have with the judicial system. It is ironic that when we accuse the executive branch as abusive, we accuse the president of being lawless, when the legislative branch is profligate, we accuse JDV of being likewise but when the judiciary is corrupt, we dont blame the justices likewise or invoke command responsiblity. We are in such awe of the brethren that we leave their powers as is or even expand them with every charter change. Perhaps, those who want to amend the charter may want to look seriously at the SC.

    Gerald Ford,then a Congressman, once said that the impeachable offenses are what we say it is. Datumanong is going to be the Gerald Ford of this committee and will define what impeachable offenses are. As you said it, the “political question” doctrine will be invoked by JDV because after all, it is the first line of defense. And whether the Supreme Court will overturn Datumanong’s definition will depend largely how the SC will determine the committee definition as falling either under wisdom or legality.

    If the SC considers the Datumanong definition as wisdom (or the lack of it) of the committee and by extension, the House, they will desist from hearing the case. But if it considers the definition as one of legality or illegality, the SC will once again intervene.

    And as you said it, the Supreme Court will be the final arbiter and will determine “the law is what they say it is”. And blame ourselves for letting sleeping dogs lie.

  4. EDWIN: On judicial activism – I dont think our justices have what it takes to be judicial activists. Judicial activism denotes a judicial philosophy of looking at the constitution as a living breathing organism and therefore the constitution is interpreted in accordance with the needs of the times. Contrast that to being a strict constructionists where the jurist interprets the constitution according to the intent of the original framers.

    ABE: Another great reflection about “judicial activism” by professor and author Thomas Sowell reads as follows:

    The claim that judicial activism is necessary to rescue us from bondage
    to the past – from having the writers of the Constitution “rule us from
    the grave” – defies both logic and history. There is no contest between
    the living and the dead. The contest is between those living individuals
    who wish to see control of change in judicial hands and those who wish
    to see it in other hands. There has been no argument that either
    statutory or constitutional laws are not to change. The only meaningful
    question is: WHO is to change them? The reiterated emphasis on change,
    like the reiterated emphasis on morality, argues what is not at issue
    and glides over what is crucially at issue: Why are JUDGES the
    authorized instrument? The original cognitive meaning of
    laws – constitutional or statutory – is important, not out of deference to
    the dead, but because that is the agreed-upon meaning among the living,
    until they choose to make an open and explicit change – not have one
    foisted on them by the verbal sleight-of-hand of judges.

    EDWIN: Here, some SC justices are not judicial activists at all, they are “politicians in robes” EDSA DOS was a clear case of political intervention by the Supreme Court. It conferred legitimacy on the Arroyo government when their intervention was not legally required or called for.

    ABE: I have a somewhat different account of what happened during the conferment of “legitimacy on the Arroyo government”:

    _____

    THE PROOF IS IN THE DIARY?

    The month before, or in its February 4, 5, and 6, 2001 issues, the Philippine Inquirer had serialized the diary of former Executive Secretary Edgardo Angara and the SC relied on Angara’s diary to resolve the crux of the matter—that Estrada was not ousted; he simply “resigned.” Couldn’t anyone by any plain reasoning just regard the People Power II uprising as a mere exercise in free speech and peaceably to assemble any more than the SC could construe the diary of Angara as proof of Erap’s resignation?

    Let’s look at the following letter that GMA faxed to the SC before her oath-taking, which the main opinion conveniently omitted to cite:

    —-
    The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is permanently incapable of performing the duties of his office resulting in his permanent disability to govern and serve his unexpired term. Almost all of his cabinet members have resigned and the Philippine National Police have withdrawn their support for Joseph Ejercito Estrada. Civil Society has likewise refused to recognize him as President.

    In view of this, I am assuming the position of the President of the Republic of the Philippines. Accordingly, I would like to take my oath as President of the Republic before the Honorable Chief Justice Hilario G. Davide, Jr., today, 20 January 2001, 12:00 noon at Edsa Shrine, Quezon City, Metro Manila.

    May I have the honor to invite the members of the Honorable Court to attend the oath-taking.
    —-

    PEOPLE POWER, NOT SC, INSTALLED GMA

    The letter indicated that not only did GMA not talk about resignation on the part of Erap, she also assumed the presidency (after being installed by a successful popular revolt) BEFORE her oath-taking. If for no other purpose than to affirm what legal order shall be applicable thenceforth, the oath-taking was no more than a ceremonial icing on the cake. And note likewise that when GMA said in the letter that “Civil Society has likewise refused to recognize him (Erap) as President,” the “C” in Civil and the “S” in Society were in capital letters, signifying that GMA was using the term in its classical acceptation, meaning that the body politic itself (not the “hooting throng” as Justice Puno’s obiter dictum put it) has made its decision extra-constitutionally. Until the moment then that GMA took her oath to serve under the 1987 Constitution, there could have been no juristic distinction between the extra-constitutional character of the Aquino government during the 1986 revolt and revolutionary takeover of the government by the Civil Society following the People Power II uprising. x x x

    I have earlier advanced that a popular revolt is an ultimate exercise of political power; that People Power I and People Power II are of parallel dimension; that the underlying expediency of both revolts is beyond the review and sanction of any other authority inferior to the Civil Society (therefore, a “political question” the Supreme Court cannot rule upon); that the only possible sanction against a people’s revolt is the harsh consequences of its failure; and that, if otherwise successful, the revolutionists would be free to set new rules and use or set aside existing ones. Therefore, that GMA, as the acknowledged leading representative of the rebelling Civil Society, has chosen to revert to the legal order of the status quo ante (by taking her oath under the existing constitution), which the exultant rebels have compliantly acquiesced in, opting in that way for incremental rather than radical transformation, is no valid argument that the revolt was not successfully completed.

    DAVIDE DISROBED

    It was in the same light I have argued that Chief Justice Davide’s decision in administering GMA’s oath was a patriotic class act of an instant revolutionist who wisely stepped down as the presiding officer of the impeachment proceedings to join the multitude at EDSA. The exercise served as a moderating event during those critical and uncertain hours while it also set the turning point to reestablish immediate continuity with the past. The interval was indeed brief but enough to legitimately install GMA as leader of a new regime.

    Justice Vicente Mendoza in his concurring opinion was of the view that the uprising only created a “crisis, nay, a vacuum in the executive leadership.” Didn’t John Locke confront this issue a long time ago in his “Second Treatise on Civil Government?” Locke postulated that “(w)hen the supreme executive power neglects or abandons that charge,” the government is effectively dissolved for, “where the laws cannot be executed it is all one as if there were no laws . . ..”

    ________

    EDWIN: There are other decisions such as the Manila Hotel case and the Mining Law that were clearly political decisions.

    ABE: In a different light, I have an occasion to deal about the SC decision on the Mining Law in http://redsherring.blogspot.com/2005/08/power-power-alternative.html

    EDWIN: The opposition insults us by putting all these charges when they know that most of them will be dismissed anyway.

    ABE: Somewhere in Newsstand, I have referred to it as the Plaza Miranda Theory.

    EDWIN: What they are banking on are the Garci tapes and the jueteng payoffs. And they had to include all those other charges because the problem with the Garci tapes is its admissibility and unless you can hale Garci or some jueteng witnesses to the impeachment.

    ABE: “Admissibility,” that’s where the rub is, after all. But if I were representing the pro-impeachment group, I will jump the gun on the Arroyo camp (as well as GMA’s pals in the SC) by taking this issue, at the very first opportunity, for the resolution by the Senate sitting as the Impeachment Court.

    EDWIN: It is a numbers game where morality, conscience, bribery and concessions will come into play and as a result, the impeachment process will descend to the not-so-unexpected-level of “pahabaan ng pisi”.

    ABE: . . . at saka sungay.

    EDWIN: I agree that this expanded jurisdiction has its excesses but on whether (SC) will have jurisdiction to overrule the Senate decision on the guilt or innocence of the President, I highly doubt if they will have the temerity to do so. Being strict constructionists, there is neither judicial precedent nor commentaries from the Records of the 1986 Constitutional Commission or the Federalist Papers to support that brazenness.

    ABE: Pag may sungay … di brazen. hehe

    EDWIN: On the SC well nigh divine right powers – The problem with us in respect of the Supreme Court is nobody has said anything about changing the SC in the charter change. The SC seems to be untouchable because we fear them, we respect them, or we dont know what to do about them. To many of us, they are the last bastion of an ordered, civilized society. But it is only with charter change that we can correct whatever infirmities we have with the judicial system. It is ironic that when we accuse the executive branch as abusive, we accuse the president of being lawless, when the legislative branch is profligate, we accuse JDV of being likewise but when the judiciary is corrupt, we dont blame the justices likewise or invoke command responsibility. We are in such awe of the brethren that we leave their powers as is or even expand them with every charter change. Perhaps, those who want to amend the charter may want to look seriously at the SC.

    ABE: Wow! I am thinking now of taking a refresher course in your class. This is the quote of the hour. Seriously, to me the SC as despots is more crucial than a tainted GMA lasting through 2010. Thanks for responding, Edwin.

  5. Abe,

    What a surprise! Dont you and your son argue a lot considering that you read Thomas Sowell while your son reads Noam Chomsky? Their political leanings are poles apart that I imagine you having a discourse with your son about 9/11. Noam Chomsky’s views on 9/11 are pretty indictive of the US government while Thomas Sowell is otherwise.

    I read Thomas Sowell as well and he is very convincing and logical. He is a nice read.
    Anyway, till we write again. Thanks again. The exchange was a learning process.

  6. Alma

    Passing the bucket, how original. hehehe…

    Good points Mr. Abe. (“,)

    The political noise that the opposition is creating is really getting to my nerves. I don’t trust anyone of them. They’re playing dirty. From the beginning, they’ve been doing trial by publicity. This is the reason why some of us believe that they have a weak case against the president coz if they have a strong one, they wouldn’t be doing all this nonsense efforts. Who knows? They may just be fooling us. After all, none of their witnesses have a first hand knowledge that would directly link the president of being involve with the charges. They merely gave their unsolicited judgment that GMA might be involve but could not be certain of their allegations.

    The opposition as lawmakers should understand that resorting to filing an impeachment complaint would mean they are to go through a needle’s hole. It’s supposed to be hard. They should know that. As Alex Magno said, in his article entitled TENURE:

    “There is a reason for protecting tenure. Public servants must be as insulated from unwarranted pressure as possible. In the case of the constitutional bodies and the high courts, tenure is the best guarantee of independent judgment.

    Tenure makes the bureaucracy and the constitutional agencies less permeable to the whims of powerful vested interests and the ploys of crafty political players. That allows our public service to do their jobs without being threatened by ouster at every turn.

    As a general principle, the higher the office and the greater the responsibility, the more tenure ought to be protected.

    For this reason, justices and officers of constitutional agencies can only be removed by impeachment. And the President of the Republic is immune from suit during her tenure and could be removed only after a most rigorous impeachment process.”

    http://www.philstar.com/philstar/NEWS200508182606.htm

    They made a decision. Therefore, they ought to be patient on this process. They should refrain from continuously blaming the administration if certain legal technicalities are being considered because that’s the way it is long before some of them were even born. Laws which former lawmakers like them had created and made into a law.

  7. Alma,

    Alex Magno appeals to the notion of public tenure in http://www.philstar.com/philstar/NEWS200508182606.htm to deride what he seems to imply as a partisan, nay, whimsical impeachment supposedly based on a “passing scandal” against President Arroyo. Bewailing that it is agitative, rather than educative, he demands to “End this carnival soon.”

    He is the same Alex who has also written that the “epidemic” attendant to the congressional inquiry “in aid of legislation” on the Jose Pidal controversy is “(harming) all institutions.” As an activist who has slipped through the cracks to become, in many ways, as one of the community’s elites (at least in political punditry, anyway), it is easier to discern how the elite value system has been brought to bear upon his political perspectives.

    If he has not forgotten (or suppressed) his “mass” perspective on politics, one would expect Alex to articulate that the antithesis to security of tenure is frequent elections, or for career civil servants, removal for cause.

    In a presidential system, annual election (where all votes have to be counted as equal to be considered a fair one) is a bit too frequent (although non-national organizations elect presidents annually, generally speaking) but a president for more than five years might be rather too long.

    During the impeachment of Estrada I have written the following:

  8. Dirk Pitt

    Who say GMA wants to put this crisis behind? All she wants is to survive and stay in power.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s