CASE  2011-0058-G: MA. MERCEDITAS N. GUTIERREZ, PETITIONER –VERSUS– THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAÑO, EVELYN PESTAÑO, RENATO REYES, JR., MOTHER MARY JOHN MANANZAN, DANILO RAMOS, ATTY. EDRE OLALIA, FERDINAND R. GAITE, AND JAMES TERRY RIDON, FELICIANO BELMONTE, JR. (G.R. NO. 193459, 15 FEBRUARY 2011, PEREZ, J.) SUBJECT: SEPARATE CONCURRING AND DISSENTING OPINION OF JUSTICE PEREZ.

EN BANC

Agenda for 15 February 2011

Item No. 23

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 Reyes, Jr., Mother Mary John Mananzan, Danilo Ramos, Atty. Edre Olalia, Ferdinand R. Gaite, And James Terry Ridon, respondents.

Feliciano Belmonte, Jr., respondent-intervenor.

SEPARATE CONCURRING

AND DISSENTING OPINION

PEREZ, J.:

The present case asks: Did the referral to the House of Representatives Committee on Justice of two complaints for the impeachment of the petitioner violate Section 3(5), Article XI of the Constitution?  I respectfully submit that the successive referrals of the complaints are constitutionally prohibited.

The Impeachment Complaints

          Petitioner Ma. Merceditas N. Gutierrez is the incumbent Ombudsman of the Republic of the Philippines.^[1]

          On 22 July 2010, an Impeachment Complaint against the petitioner was filed before the House of Representatives^[2] by private respondents Risa Hontiveros-Baraquel, Danilo D. Lim, Felipe Pestaño and Evelyn Pestaño.^[3]  The complaint (First Complaint) charges the petitioner of Betrayal of Public Trust and Culpable Violation of the Constitution, allegedly committed thru the following acts and omissions:

A.                Betrayal of Public Trust

1.                  The dismal and unconscionable low conviction rate of the Ombudsman from 2008 onwards;

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

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

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

5.                  The failure to conduct an investigation with regard to the Php 1,000,000.00 dinner at Le Cirque Restaurant in New York in August 2009;

B.                  Culpable Violation of the Constitution

6.                  The repeated delays and failures to take action on cases impressed with public interest; and

7.         The refusal to grant ready access to public records such as the Statement of Assets and Liabilities.

          The First Complaint was referred to the Speaker of the House of Representatives, Feliciano R. Belmonte, Jr., on 27 July 2010.^[4]  On 2 August 2010, Speaker Belmonte, Jr. forwarded the First Complaint to the House Committee on Rules for its inclusion in the Order of Business.

On 3 August 2010, another impeachment complaint (Second Complaint) against the petitioner was filed with the House of Representatives.  This time around, the complainants were private respondents Renato M. Reyes, Jr., Mother Mary John Mananzan, Danilo Ramos, Atty. Edre Olalia, Ferdinand Gaite and James Terry Ridon.^[5]

The Second Complaint, like the First Complaint, also accuses the petitioner of Betrayal of Public Trust and Culpable Violation of the Constitution, but is premised on different acts and omissions.  Thus:

A.                Betrayal of Public Trust

1.                   Ombudsman Gutierrez committed 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 Report 54 and the Complaints filed with respondent on the said Fertilizer Scam;

2.                  Ombudsman Gutierrez did not 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$10,000.00 without declaring the same to the Philippine Customs, despite the fact that General Eliseo de la Paz publicly admitted under oath before the Senate Blue Ribbon Committee that he took out the country currency in excess of US$10,000.00 without declaring the same to the Philippine Customs;

3.                  Ombudsman Gutierrez committed gross inexcusable delay or inaction by acting in deliberate disregard of the Supreme Court’s finding and directive in its Decision and Resolution in Information Technology Foundation of the Philippines, et al. v. Commission on Elections, et al.; and

B.  Culpable Violation of the Constitution

Through her repeated failures and inexcusable delay in acting upon the matters brought before her Office, Ombudsman Gutierrez violated Section 12 and Section 13, Paragraphs 1, 2 and 3, Article XI on which her constitutional duty is enshrined, as well as Section 16, Article III of the Constitution, which mandates prompt action and speedy disposition of cases.

          The Second Complaint reached the desk of Speaker Belmonte, Jr. on the same day it was filed.  On 9 August 2010, Speaker Belmonte, Jr. forwarded the Second Complaint to the House Committee on Rules.

          Then, on 11 August 2010, the plenary simultaneously referred the First and Second Complaints to the public respondent House Committee on Justice.

The Proceedings Before the House  Committee on Justice

          On 1 September 2010, the House Committee on Justice conducted a hearing to determine whether the First and Second Complaints were sufficient in form.  The hearing was presided by the Chairman of the House Committee on Justice, Representative Niel C. Tupas, Jr.

After taking up preliminary matters,^[6] the House Committee on Justice found the First Complaint sufficient in form by a vote of 39 in favor and 1 against.  Upon a separate vote of 31 in favor and 9 against, the House Committee on Justice also found the Second Complaint to be formally valid.  In assessing formal validity, the House Committee on Justice took into account the fact that the two (2) complaints were referred to it at exactly the same time and that both were duly verified.

          On 6 September 2010, the petitioner attempted to file a Motion for Reconsideration with the House Committee on Justice.  In it, she sought to question the authority of the House Committee on Justice to take cognizance of two (2) impeachment complaints against her—in light of the constitutional proscription against the initiation of multiple impeachment proceedings against the same official within a one-year period.  The House Committee on Justice, however, refused to receive this motion.^[7]

          On 7 September 2010, the House Committee on Justice reconvened to determine the sufficiency in substance of the First and Second Complaints.  By votes of 41 in favor and 14 against for the First Complaint and 41 in favor and 16 against for the Second Complaint, the House Committee on Justice declared both to be sufficient in substance.  The House Committee on Justice, thereafter, issued summons directing the petitioner to file an answer within ten (10) days from its receipt.  The summons, as well as copies of the First and Second Complaints, was served upon the petitioner at 5:05 in the afternoon of the very same day.

          The petitioner did not file an answer.

Resort to the Supreme Court and the Status Quo Ante Order

          Aggrieved by the actions of the House Committee on Justice, the petitioner came to this Court via the instant Petition forCertiorari and Prohibition with prayer for the issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction.  In sum, the petition asks for the nullification of the House Committee on Justice’s findings that the First and Second Complaints were sufficient in form and substance.

          On 14 September 2010, this Court issued a Resolution directing the parties to observe the status quo prevailing before the House Committee on Justice made the contested findings.

DISCUSSION

          The submission of the petitioner may be summarized into two principal issues.

The first is whether the House Committee on Justice, in taking cognizance of two (2) impeachment complaints against the petitioner, violated Section 3(5), Article XI of the Constitution.  It is the primary contention of the petitioner that the House Committee on Justice is already precluded from acting upon the Second Complaint—the same having been barred under the Constitution by virtue of the filing of the First Complaint. 

The second is whether the hearings conducted by the House Committee on Justice violated the petitioner’s right to due process.^[8]

In this opinion, however, I only wish to articulate my reflections on the first.

          Section 3(5), Article XI of the Constitution succinctly states:

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

In practical terms, the provision operates to bar the initiation of an impeachment proceeding against an official, when the following conditions are present:

a.)              an impeachment proceeding against such official was previously initiated; and

b.)              one year has not yet elapsed from the time of the previous initiation.

Initiation of an impeachment proceeding was, in turn, the subject of the landmark case Francisco, Jr. v. The House of Representatives, represented by Speaker Jose G. De Venecia.^[9]  In that case, this Court laid down the rule that, unless the verified complaint is filed by at least 1/3 of the members of the House of Representatives, initiation takes place upon the filing of the complaint coupled by its referral to the proper committee.^[10]

Invoking Francisco as their guide, the respondents proffer the position that the House Committee on Justice may validly act on both the First and Second Complaints.  The filing of the First Complaint did not bar the Second Complaint because the mere filing of a verified complaint does not mark the initiation of an impeachment proceeding.  The respondents emphasized thatFrancisco associated the initiation of an impeachment proceeding not only with the filing of a complaint but also with the referral thereof to the proper committee.

It is argued that since there was, in this case, but a single referral of the two (2) complaints to the House Committee on Justice—the logic of Francisco dictates that there was also only one impeachment proceeding initiated.  Thus, the respondents concluded, there can be no violation of Section 3(5), Article XI of the Constitution.

          I disagree. 

No Simultaneous Referral of Two Complaints

          To begin with, there never was a “single” or “simultaneous” referral of the two (2) impeachment complaints against the petitioner.  Contrary to what the respondents adamantly profess, the complaints were not referred to the House Committee on Justice “at exactly the same time.”  A perusal of the records of the House of Representatives plenary proceedings on 11 August 2010^[11] reveals that the two (2) impeachment complaints were actually referred to the House Committee on Justice one after the other.  Thus:^[12]

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 Pestaño, and Ms. Evelyn Pestaño with the Resolutions of Endorsement filed by Representatives Bag-ao and Bello

TO THE COMMITTEE ON JUSTICE

Verified Complaint for the Impeachment of Ombudsman Mr. Renato Reyes, Mo. Mary John Mananzan, Mr. Danilop Ramos at Atty. Edre Olalia with the Resolutions of Endorsement filed by Representatives Colmenares, Casiño, Mariano, Ilagan, Tinio and De Jesus

TO THE COMMITTEE ON JUSTICE

          The above entries plainly attest that, in fact, the reading and referral of the First Complaint preceded that of the Second Complaint.  True, the impeachment complaints were referred to the House Committee on Justice on the same date and during the same session, but there can be no mistake that each complaint was, nevertheless, the subject of a separate and distinct referral.

          This fact has immense constitutional consequences.  A prior referral of the First Complaint to the House Committee on Justice would mean that an impeachment proceeding against the petitioner was, by then, already completely initiated.  This, by theFrancisco ruling, renders inutile the succeeding referral of the Second Complaint and makes such referral together with its subject, which is the Second Complaint, unconstitutional excesses that can be given neither force nor effect.  Francisco prohibits rather than justifies a second referral.

Cognizance of this fact necessitated the creation of the fiction that the referrals of the impeachment complaints were done “at the same time.”  This is shown by the floor exchanges following the successive referrals of the complaints.

Representative Tupas rose on a parliamentary inquiry to seek, among others, a clarification on “what was the exact time the two impeachment complaints were referred to the Committee on Justice.”^[13]  The answer would become the battlecry of the respondents:

THE DEPUTY SPEAKER (Rep. Daza). The Dep. Majority Leader is recognized.

REP. TUPAS. Mr. Speaker, parliamentary inquiry.

THE DEPUTY SPEAKER (Rep. Daza). The Gentleman may state his inquiry.

REP. TUPAS. Mr. Speaker, with respect to the impeachment complaints, may this Representation know: number one, Mr. Speaker, when were the complaints filed; number two, when were they referred to the Committee on Rules; and number three, Mr. Speaker, what was the exact time the two impeachment complaints were referred to the Committee on Justice?

THE DEPUTY SPEAKER (Rep. Daza). The Dep. Majority Leader will please respond.

REP. ROMULO. Mr. Speaker, in response to the query of the Honorable Tupas, the Committee on Rules received the verified complaint for impeachment from the Speaker of the House yesterday. The date of the first verified complaint filed by Miss Risa Hontiveros-Baraquel, et al., based on the letter of the Speaker, was dated July 22. The complaint filed by Mr. Renato Reyes, et al., based on the date of the letter of theSpeaker, was dated August 3. Both letters were received during the Committee on Rules’ meeting on August 10 at the same time at 2:00 p.m. yesterday, and both complaints were jointly referred by the Committee on Rules to the Committee on Justice.

THE DEPUTY SPEAKER (Rep. Daza). Is the Gentleman from Iloilo satisfied with the response of the Dep. Majority Leader?

REP. TUPAS. Partly, Mr. Speaker, but the third question is: what is the exact time of the referral to the Committee on Justice? This Representation would like to know the exact time the two complaints were referred to the Committee on Justice, Mr. Speaker.

THE DEPUTY SPEAKER (Rep. Daza). Is the Dep. Majority Leader prepared to answer the query now? The Gentleman from Iloilo, the Chairman of the Committee on Justice, is querying with regard to a time frame, schedule or a cut-off time.

REP. TUPAS. Mr. Speaker, what I am asking is the exact time of the referral to the Committee on Justice.

THE DEPUTY SPEAKER (Rep. Daza). Yes. The Dep. Majority Leader will please respond.

REP. ROMULO. Mr. Speaker, the complaints were referred to the Committee on Justice at the same time at 4:47 p.m. today.

REP. TUPAS. Thank you very much, Mr. Speaker.^[14] [Emphasis and underscoring supplied].

                   I cannot, however, accept as possible, in fact or fiction, that the First and Second Complaints have been “referred to the Committee at the same time.”  The announcement of simultaneity did not alter the true manner of the referrals as clearly reflected in the records of the plenary session.

                   Interestingly, during the Oral Arguments on 12 October 2010, even the esteemed collaborating counsel for respondent House Committee on Justice, former Supreme Court Associate Justice Vicente Mendoza, admitted the “physical impossibility” of referring two (2) separate complaints at the same time, as shown by the following exchange:

                Associate Justice Nachura:

            Ah, that is precisely what I asked Assistant Solicitor General Laragan, that it would not had [sic] been possible to say that both complaints were referred at the same, 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 in – aah, wait, if we were to apply Francisco very strictly the second complaint would be barred.

            Ret. Justice Mendoza:

            Yes.^[15] (Emphasis supplied).

The recorded reality is that the First Complaint was referred to the House Committee on Justice before the Second Complaint.  An impeachment proceeding was already initiated against the petitioner even before a single word about the Second Complaint was read before the plenary.  On this score alone, the Second Complaint should be held barred.

One Complaint, One Impeachment Proceeding

The fact as big as the recorded successive referrals is that the contrived simultaneous referral or single referral to the House Committee on Justice of multiple impeachment complaints is not allowed under Section 3(5), Article XI of the Constitution.

The initiatory act of “filing and referral,” envisioned in the Francisco case, can only have one (1) impeachment complaint as its subject.  Allowing a referral to the House Committee on Justice of multiple complaints would not only amount to a distortion of both Francisco and the constitutional provision it interprets, but would also circumvent the very purpose of the one-year impeachment ban.

The Proper Context of Francisco

While Francisco may have identified what “acts” make up the initiation of an impeachment proceeding, it was far from being categorical as to just how many complaints can be the “subject” thereof.  Indeed, other than defining what “acts” are necessary to accomplish initiation, Francisco never really ventured on the possibility of several complaints being the subject of only one referral to the House Committee on Justice and, for that matter, of only one impeachment proceeding.

In Francisco, a second impeachment complaint^[16] against then Chief Justice Hilario G. Davide, Jr. was filed with the House of Representatives after a first complaint,^[17] which concerns him and seven other justices of the Supreme Court,^[18] was already filed, referred to, and even dismissed by the House Committee on Justice.

Under those facts, Francisco simply ruled that an impeachment proceeding against Chief Justice Davide was already initiated upon the filing and referral to the House Committee on Justice of the first complaint.^[19]  Consequently, the second impeachment complaint was held barred because it was filed within one year from the filing of the first.^[20]

The impeachment complaints in Francisco, it may be observed, were never parts of only a single proceeding.  Each complaint was the subject of a separate proceeding—precisely the reason why the second complaint was held barred under the one-year impeachment ban.  Verily, the limited factual context of Francisco offers no support to the conclusion that an impeachment proceeding may be driven by more than one (1) complaint.  There is simply nothing in Francisco from which that may be derived.

The Underlying Purposes of Section 3(5), Article XI

of the Constitution

The discussion in Francisco of the underlying purposes of the one- year impeachment ban renders unquestionable that itcannot be relied upon to sanction a simultaneous referral of multiple complaints to the House Committee on Justice.  This is because an impeachment proceeding based on more than one (1) complaint brings about exactly the evils the constitutional proscription seeks to avoid.

The framers of our Constitution formulated the one-year ban in order to forestall possible abuses of the impeachment process.  The deliberations of the 1986 Constitutional Commission so divulge:

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.^[21] [Emphasis and underscoring supplied].

Section 3(5), Article XI of the Constitution, therefore, serves to curb two (2) possibilities that may arise should several impeachment proceedings against the same official be initiated within a one-year period:

a.)              the possibility of harassment on the part of the impeachable officer; and

b.)              the possibility that the legislative work of Congress would be compromised.

     Construing the initiatory acts of “filing and referral” as able to encompass multiple impeachment complaints would encourage, rather than discourage, the occurrence of these possibilities.  There is no practical difference, at least in terms of their deleterious effects, between a simultaneous institution of multiple impeachment complaints against the same official and the initiation of separate impeachment proceedings against him within a one-year period.

 First.  Allowing the House Committee on Justice, under the guise of a single referral, to take cognizance of more than one complaint against the same official would undoubtedly expose the latter to the risks of undue harassment.  Without a cap on the number of complaints that can be the subject of an impeachment proceeding, the charges against an impeachable officer can easily become limitless.  The situation permits political opportunists to hurl a plethora of charges against an impeachable officer who, in the midst of answering those charges, must also perform vital governmental duties.

Second.  An impeachment proceeding saddled with multiple complaints draws the prospect of a protracted impeachment process.  A long drawn-out impeachment proceeding would require the House of Representatives to spend more time as a prosecutorial body, effectively distracting it from the exercise of its law-making functions.^[22]  This contradicts the very nature of the legislature.

I am, as a result, constrained to read the “and referral” part of the Francisco definition of impeachment initiation as pertaining to one and only one complaint that is allowed to be filed and referred within a period of one year.

Consistent with the proposition I have accepted, that the initiation of impeachment consists of the filing of the complaint coupled by its referral to the proper committee, I accept likewise the delineation that while referral is the logical step that follows the filing of a complaint, a referral does not necessarily happen once a complaint is filed.  I agree with the ponencia of my senior, Justice Conchita  Carpio Morales, that the House of Representatives has the power to “guard against the initiation of a second impeachment proceeding by rejecting a patently unconstitutional complaint.”  May I incorporate into mine, the position in theponencia of Justice Morales that:

Under the Rules of the House, a motion to refer is not among those motions that shall be decided without debate, but any debate thereon is only made subject to the five-minute rule.  Moreover, it is common parliamentary practice that a motion to refer a matter or question to a committee may be debated upon, not as to the merits thereof, but only as to the propriety of the referral.  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, lest it becomes instrumental in perpetrating a constitutionally prohibited second impeachment proceeding.  Far from being mechanical, before the referral stage, a period of deliberation is afforded the House, as the Constitution, in fact, grants a maximum of three session days within which to make the proper referral.^[23]

In this case, the First Complaint was, by the House in plenary session, referred to the Committee on Justice such referral having been included in the Order of Business of the House.  There appears to be no record of a debate on the propriety of the referral obviously because the official records at that point do not show that an impeachment complaint filed against the same impeachable officer has already been referred to the Committee; and the one year period has not even started.  It is precisely the referral of the First Complaint that started the one-year period of the ban against the Second Complaint.  The subsequent impeachment complaint, or the Second Complaint, could no longer be referred because the first referral was already on record and no further debate is needed to prove the documented fact nor can such debate disprove the fact.

The observation that the Constitution affords the House a period of deliberation and grants it a maximum period of three session days within which to make the proper referral is of utmost significance.  For one, it underscores the validity of my opinion that while referral is a step subsequent to the filing of a complaint, a referral is not an unavoidable consequence of such filing.   I agree with Justice Carpio Morales that referral is not a mechanical action.  It is a deliberate act, and, may I add, with or without debate.  The House ought to have been cognizant of this considering that it adopted as its own rules the Francisco definition of initiation of impeachment as filing and referral of the complaint.  It is during the three-day allowable period of pre-referral deliberation that the House should decide which of the two complaints should be referred to the proper committee.  The First Complaint was referred after a decision that it was proper for referral.  This must be assumed, it having been done by no less than the House in plenary.  The assumption is now an unassailable fact since there was no recorded objection to the referral.  After that referral in due course, the one-year ban on another initiation started.  The referral of the Second Complaint subsequent to the first officially recorded and undebatable referral is a constitutionally prohibited second initiation of an impeachment proceeding against the same impeachable officer.

The clear conclusion cannot be avoided, proceeding as it does from the fact of first and prior referral.  Thus, the effort to avoid the fact.  This cannot be done as adverted to above, simply because a “simultaneous” referral, which did not happen and cannot happen, was obviously resorted to in order to cure a constitutional defect.  The Constitution cannot be violated directly or indirectly.

Indeed, the existence of two complaints and of their separate referrals are further pronounced by the facts that there were separate votings on the sufficiency in form of the First and then the Second Complaints; and there were different numbers of votes for and against the sufficiency in form of the two complaints.  The same separate acts and different results transpired in the determination of the sufficiency in substance of the First and Second Complaints.  So separate were the complaints that the possibility of consolidation was even discussed at the committee level – a matter that can no longer be done at that stage because of patent, even implicitly admitted, unconstitutionality.

Alternative Theory of Initiation

          Perhaps foreseeing that Francisco will give them no refuge, the respondents have alternatively asked for its abandonment in favor of the theory that an impeachment proceeding is only initiated once the House of Representatives, as one body, acts on either the report of the House Committee on Justice or, when applicable, on the complaint filed by one-third (1/3) of its members.  In brief, the initiation of an impeachment proceeding ought to mean the entire proceedings in the House of Representatives.

          The respondents insist on equating the initiation of an impeachment proceeding with the power given to the House of Representatives to “initiate all cases of impeachment” under Section 3(1), Article XI of the Constitution.^[24]  Filing and referral could not be the initiation of the proceeding because at that point the plenary has not yet determined whether to file an impeachment case with the Senate or not.  Unless and until such a determination is made, an impeachment proceeding cannot be validly considered as initiated.

          Finally, the respondents expressed their fear that, should the Francisco formula be upheld, frivolous impeachment complaints may be used to bar more meritorious complaints against erring public officials.

          These are desperate arguments.

          The alternative position espoused by the respondents had already been dealt with quite incisively in Francisco.  In the mainponencia, Justice Carpio Morales dismissed the very same position because it gives the term “initiated” found in Section 3(5), Article XI of the Constitution, a meaning other than the actual commencement of an impeachment proceeding.^[25]  The lengthy disquisition of Francisco provides:

“Initiate” of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Webster’s Third New International Dictionary of the English Language concisely puts it, it means “to perform or facilitate the first action,” which jibes with Justice Regalado’s position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act.  It is a comlexus 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.

Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is “deemed initiated” when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee.  Note that the Rule does not say “impeachment proceedings” are initiated but rather are “deemed initiated.”  The language is recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation.  (Emphasis and underscoring supplied).

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law.  Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:

MR. MAAMBONG.  With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action. 

However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body.  This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa.  For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate.

      x x x x

MR. MAAMBONG.  Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor.  The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint.  And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor.  If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution.  It is not the body which initiates it.  It only approves or disapproves the resolution.  So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this.  I have been bringing with me The Rules of the House of Representatives of the U.S. Congress.  The Senate Rules are with me.  The proceedings on the case of Richard Nixon are with me.  I have submitted my proposal, but the Committee has already decided.  Nevertheless, I just want to indicate this on record.

                  x x x x

MR. MAAMBONG.  I would just like to move for a reconsideration of the approval of Section 3 (3).  My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. 

I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: “to initiate impeachment proceedings” and the comma (,) and insert on line 19 after the word “resolution” the phrase WITH THE ARTICLES, and then capitalize the letter “i” in “impeachment” and replace the word “by” with OF, so that the whole section will now read:  “A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment of the Committee or to override its contrary resolution.  The vote of each Member shall be recorded.”

I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned,really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment.  As a matter of fact, the words “Articles of Impeachment” are mentioned on line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of the House.  I will mention again, Madam President, that my amendment will not vary the substance in any way.  It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress.  Thank you, Madam President.^[26] (Italics in the original; emphasis and underscoring supplied).

This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers.^[27]

It is thus clear that the framers intended “initiation” to start with the filing of the complaint.  In his amicus curiae brief, Commissioner Maambong explained that “the obvious reason in deleting the phrase “to initiate impeachment proceedings” as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution.^[28]

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word “initiate” as used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving.^[29]  [Italics, emphasis and underscoring in the original].

In Francisco, this Court also clarified that the initiation of an impeachment proceeding is vastly different from the initiation of an impeachment case by the House of Representatives.^[30]  Thus:

During the oral arguments before this Court, Father Bernas clarified that the word “initiate,” appearing in the constitutional provision on impeachment, viz:

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

x x x x

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

refers to two objects, “impeachment case” and “impeachment proceeding.”   

Father Bernas explains that in these two provisions, the common verb is “to initiate.”  The object in the first sentence is “impeachment case.”  The object in the second sentence is “impeachment proceeding.”  Following the principle of reddendo singula singulis, the term “cases” must be distinguished from the term “proceedings.”  An impeachment case is the legal controversy that must be decided by the Senate.  Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate.  It is in that sense that the House has “exclusive power” to initiate all cases of impeachment.  No other body can do it.  However, before a decision is made to initiate a case in the Senate, a “proceeding” must be followed to arrive at a conclusion.  A proceeding must be “initiated.”  To initiate, which comes from the Latin wordinitium, means to begin.  On the other hand, proceeding is a progressive noun.  It has a beginning, a middle, and an end.  It takes place not in the Senate but in the House and consists of several 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.  If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate.  It is at this point that the House “initiates an impeachment case.”  It is at this point that an impeachable public official is successfully impeached.  That is, he or she is successfully charged with an impeachment “case” before the Senate as impeachment court.

Father Bernas further explains: The “impeachment proceeding” is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial.  Neither is the “impeachment proceeding” initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done.  The action of the House is already a further step in the proceeding, not its initiation or beginning.  Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action.  This is the initiating step which triggers the series of steps that follow. 

The framers of the Constitution also understood initiation in its ordinary meaning.  Thus when a proposal reached the floor proposing that “A vote of at least one-third of all the Members of the House shall be necessary… to initiate impeachment proceedings,” this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.^[31] Thus the line was deleted and is not found in the present Constitution.

Father Bernas concludes that when Section 3 (5) says, “No impeachment proceeding shall be initiated against the same official more than once within a period of one year,” it means that no second verified complaint may be accepted and referred to the Committee on Justice for action.  By his explanation, this interpretation is founded on the common understanding of the meaning of “to initiate” which means to begin. He reminds 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.

To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says “The House of Representatives shall have the exclusive power to initiate all cases of impeachment,” This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating “impeachment cases” with “impeachment proceeding.”

From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term “to initiate” refers to the filing of the impeachment complaint coupled with Congress’ taking initial action of said complaint.^[32]  [Italics, emphasis and underscoring in the original].

          I find no sufficient and cogent reason to deviate from Francisco.  That the initiation of an impeachment proceeding must be reckoned from the filing and subsequent referral of the verified complaint is an interpretation of the Constitution anchored on the very intent of its framers and the honored principles of statutory construction.  It is, without a hint of doubt, what the Constitution conveys.

          Neither can Francisco simply be disregarded out of the fear that it will allow erring officials – who, the respondents say, may just cause a frivolous complaint to be filed ahead of more meritorious ones – to easily escape impeachment.  This fear is not grounded on reason.  The Constitution already provides ample safeguards to prevent the filing of sham impeachment complaints. 

          For one thing, impeachment complaints are required to be verified.^[33]  The complainants are, under the pain of perjury, mandated to guarantee that the allegations embodied in the complaint are true and within their personal knowledge.

          Moreover, the requirement of verification is supplemented by another constitutional safeguard, i.e. the condition that every impeachment complaint, unless filed by at least one third (1/3) of the members of the House of Representatives, must be endorsed by a member thereof.^[34]  The endorsement of a representative seeks to ensure that the allegations of the complaint are at least, on first glance, serious enough to merit consideration by the plenary.

          And, to reiterate, a three-day pre-referral proceeding can be availed of by the House in plenary to determine the propriety of referral.  Needless to state, an unreferred complaint does not initiate an impeachment proceeding.

          Indeed, the Francisco doctrine is not as arbitrary or reckless as the respondents portray it to be.  In marking initiation of an impeachment proceeding from the filing of the verified complaint and its referral to the proper committee, Francisco did not destroy the effectiveness and integrity of the impeachment procedure.   It only applied the Constitution.

          IN LIGHT OF ALL THE FOREGOING, I VOTE to GRANT the petition IN PART.  The Second Complaint against the petitioner is BARRED under Article XI, Section 3(5) of the Constitution.  Accordingly, the actions taken by the House Committee on Justice relative to the Second Complaint, including the finding that it was sufficient in form and substance, are hereby declared NULL and VOID.

                                                             JOSE PORTUGAL PEREZ

^[1]               Petitioner assumed as Ombudsman on 1 December 2005.

^[2]               The complaint was received by the Secretary General of the House of Representatives

^[3]               The First Complaint was endorsed by representatives Arlene Bag-ao and Walden Bello.

^[4]               The Fifteenth (15^th) Congress formally opened its sessions on 26 July 2010.

^[5]               The Second Complaint was endorsed by representatives Neri Javier Colmenares, Rafael V. Mariano, Teodoro A. Casiño, Luzviminda C. Ilagan, Antonio L. Tinio and Emerancia A. de Jesus.

^[6]               Representatives Marc Douglas C. Cagas IV and Fernejel G. Biron, both members of the HCJ, initially called for the inhibition of Chairman Tupas, Jr. from the proceedings. As it turned out, the father of Chairman Tupas, Jr., former Iloilo Governor Niel Tupas, Sr., was the subject of a previous investigation of the petitioner and was, in fact, charged by the latter with violations of Republic Act No. 3019 before the Sandiganbayan. The case against Tupas, Sr. is still pending before the Sandiganbayan. Chairman Tupas, Jr., however, refused to inhibit from the proceedings and, instead, assured the other HCJ members of his utmost impartiality.

^[7]               The petitioner, instead, caused her motion to be served personally upon each member of the HCJ.

^[8]               The due process concerns are: (a) the lack of a published Rules of Procedure for Impeachment cases; (b) the perceived partiality of Chairman Tupas, Jr.; (c) the apparent haste with which the HCJ determined that both complaints were sufficient in form and substance; and (d) the refusal of the HCJ to receive petitioner’s motion for reconsideration.

^[9]               460 Phil. 830 (2003).

^[10]             Id. at 940.

^[11]             Congressional Record, Plenary Proceedings of the 15^th Congress, First Regular Session, House of Representatives, Vol. 1, No. 9, 11 August 2010.

^[12]             Id. at 13.

^[13]             Id.          

^[14]             Id.

^[15]             TSN, Oral Arguments, 12 October 2010, p. 150.

^[16]             This complaint was filed by then Representatives Gilbert C. Teodoro, Jr. and Felix William B. Fuentebella, and was accompanied by an endorsement of at least one-third (1/3) of the members of the House of Representatives.

^[17]             This complaint was filed by former President Joseph E. Estrada and was endorsed by then Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen.

^[18]             The other justices implicated in Estrada’s complaint were then Associate Justices Artemio V. Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T. Carpio, Renato C. Corona, Jose C. Vitug and Leonardo A. Quisumbing.

^[19]             Supra note 9 at 940.

^[20]             Id.

^[21]             2 RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 282 (1986).

^[22]             See Separate and Concurring Opinion of Associate Justice Angelina Sandoval-Gutierrez in the Francisco case, supra note 9 at 983-1006.

^[23]             In the majority opinion in G.R. No. 193459.

^[24]             Section 3(1), Article XI of the Constitution provides: “The House of Representatives shall have the exclusive power to initiate all cases of impeachment.”

^[25]             Supra note 9 at 940.

^[26]             2 RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 342-416 (1986).  

^[27]             Id. at 416.

^[28]             Commissioner Maambong’s Amicus Curiae Brief, p. 15 (submitted in the Francisco case, supra note 9).

^[29]             Supra note 9 at 927-930.

^[30]             Id. at  932.

^[31]             2 RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 416 (1986).

^[32]             Supra note 9 at 930-932.  

^[33]             See CONSTITUTION, Article XI, Section 3(2).

^[34]             Id.

CASE 2011-0058-F: 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 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. 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 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 15^th 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 14^th 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 15^th 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, 3^rd Edition, p. 217.

^[10]  Webster’s New World College Dictionary, 3^rd 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, 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

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 12^th 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:

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 (15^th 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 15^th 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:

^[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.