LEGAL NOTE 0040: THE IMPEACHMENT CASE AGAINST MERCEDITAS GUTIERREZ

 

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Passion For Reason
Gutierrez’s impeachment prospects in Senate

By Raul Pangalangan
Philippine Daily Inquirer
First Posted 01:17:00 03/11/2011

Filed Under: Impeachment, Judiciary (system of justice), Congress, Graft & Corruption, Punishment

THE DEFENDERS of Ombudsman Merceditas Gutierrez have lampooned the charges against her as political rather than legal, and it appears that her critics’ best defense is to say, “So what?” Ironically this was the same answer given by President Gloria Macapagal-Arroyo’s minions when they successfully fought off all impeachment attempts in the past. Treat impeachment merely as a game of numbers. Pay no heed to arguments of principle. Whoever commands more votes, wins.

Now of course the shoe is on the other foot. As Gutierrez’s critics prepare for the trial before the Senate, they shouldn’t cede their moral ascendancy and rely solely on partisan advantage. They should assure the Filipino people that Gutierrez has indeed “betray[ed] public trust,” and that the Articles of Impeachment are actually supported by judicial and non-partisan findings. In Gutierrez’s s case, that’s easily done.

Her defenders, for instance, say that her “unconscionably low conviction rate” is merely incompetence but not “betrayal of public trust.” If she was laggard in responding to corruption complaints, how slow is too slow? Isn’t this test too discretionary, open-ended and subjective?

THE CASE AGAINST HERNANDO PEREZ

Far from it. Take the corruption case against Arroyo’s first secretary of justice, Hernando Perez, who was accused of receiving a $2 million bribe in connection with a $470-million hydroelectric project. President Joseph Estrada had refused to approve that contract, yet Perez signed it barely four days after the Edsa 2 uprising.

The ombudsman sat on the case, ignored the smoking gun evidence given to her on a silver platter by the Swiss government, and when she finally indicted Perez, the charges were thrown out without even a trial on the merits. Why? Because she had dilly-dallied for so long that she violated Perez’s right to a speedy trial! This is a categorical finding that the ombudsman was too slow, and it was made by a court (mind you, consisting of Arroyo-appointed judges) and not by elective politicians. 

THE MULTIBILLION-PESO AUTOMATED ELECTION DEAL

Gutierrez is now also charged for sitting on the flawed multibillion-peso automated election deal. No less than the Supreme Court nullified that contract for its legal shortcuts, and then gave a direct order to the ombudsman to prosecute those who were responsible. Did the ombudsman, armed with a Court order no less, actually file the charges then? No, she did not. In fact, former Sen. Jovito Salonga’s groups, Kilosbayan and Bantay Katarungan (which I chair), had to go back to the Court to ask it to force the ombudsman to do her work. Again, it was the Court that took her to task for foot-dragging. (And when she acted, it was to indict only the small fry and spare the big fish.)

THE PESTANO CASE

The House committee on justice also included the killing of 23-year-old PMA graduate, whistleblower Navy Ensign Philip Andrew Pestaño, who died from gunshot wounds in his quarters inside a Navy boat after he had exposed the use of Navy vessels for transporting drugs and illegally cut lumber. Significantly, the ombudsman ignored the findings of two agencies. The first was the United Nations’ Human Rights Committee, which noted: “While close to 15 years elapsed since the death of the victim, the [parents] are still ignorant of the circumstances surrounding their son’s death, and [Philippine] authorities have yet to initiate an independent investigation. [T]he Ombudsman [has] deemed it necessary to conduct further proceedings …. Since that date, no suspect was prosecuted, or tried, let alone convicted ….” The UN committee also found that, within four months of Pestaño’s death, three of his Navy comrades “all died or disappeared in mysterious circumstances.”

The committee concluded: “The [Philippines is in] breach of its obligation … to properly investigate the death of [Philip], prosecute the perpetrators, and ensure redress.”

Well, Gutierrez finally acted on the Pestaño plea: she dismissed it. To add sting to the injury, she served her dismissal order on Pestaño’s parents the day after they signed the impeachment complaint against her.

Ominously for Gutierrez, the second agency that she ignored was the Philippine Senate, whose legislative inquiry she pooh-poohed as toothless. Until the Senate stepped in, our government investigators in the Philippine National Police and the Department of Justice had declared Pestaño’s death a suicide. Only the Senate held otherwise—and that was the report that the UN committee relied upon. Now it is this “toothless” Senate that will sit in judgment over Gutierrez’s fate, and she will have to explain to them why she belittled their findings.

Irony of ironies, the Senate’s legislative inquiry was at that time sponsored by a diminutive politician with Napoleonic ambitions, then Sen. Gloria Macapagal-Arroyo. Now Arroyo’s allies in the Senate are torn between protecting Arroyo’s ward, the ombudsman, and upholding a Senate report that Arroyo herself had sponsored in an earlier life.

At this stage of the public debate, my concern is actually the “It’s all political” argument. My students may be tired of hearing this, but all these choices indeed are political in the lofty sense that they involve moral judgments about right and wrong, choices we make not by invoking legal technicality but by searching deep within our consciences. Sure they are also political in the shallow sense that they involve power: over votes, over money, over guns. But if we succumb to the pragmatic temptation merely to gather numbers, we dissipate the power of the idea that “public office is a public trust,” and we become no different from an ombudsman who has forgotten her office’s raison d’être.

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