i Report Issue No. 3 2005 - Philippine Center for Investigative ...

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LIGHTS, CAMERA, IMPEACHMENT! ALECKS P. PABICO as WW H E N MILLIONS of Filipinos were glued to their TV s e t s d u r - ing the impeachment trial of President Joseph ‘Erap’ Estrada almost five years ago, the leader on the dock was decidedly even more colorful than the characters he used to portray in his old action flicks. In terms of sheer showbiz value, the Estrada impeachment did not disappoint. The opposition today says an impeachment trial starring President Gloria Macapagal-Arroyo would also be the best show in town. But all they are eliciting so far are yawns. It’s not just because Arroyo as a subject is a bit of a snore or even that we’ve all been there and done that. More than anything else, it has just become too obvious that the opposition has yet to get its act together. Many also find themselves overpowered by a sense of moral ambiguity at the sight of an opposition cast of characters that includes the “usual suspects,” that is, politicians who are perceived, rightly or wrongly, to be at least villainous as the person they are trying to impeach. Throw in enough legal questions and gobbledygook to slow the process and you might just as well turn off all the lights and send everyone home. The administration’s gameplan is quite obvious. Unlike in Estrada’s case where he had the numbers in the Senate to block his conviction, Arroyo is not assured of such a balance of forces in the current composition of the upper chamber to snare an acquittal for herself. Hence, the impeachment promises to be a fierce battle over technicalities to be fought in the arena of the House. But the opposition in the House insists the show will go on, even though its “creeping” impeachment complaint is at a standstill at the moment. It has even begun picking who among its legislators could be part of the House prosecution panel, which it has decided will be headed by San Juan Rep. Ronaldo Zamora. And of course it insists that there were only two complaints filed, one of which has already been withdrawn. NOT ONCE, BUT THRICE? Political analyst Ramon Casiple of the Institute for Political and Electoral Reform (IPER) says he had this sneaking suspicion early on that the issue of multiple complaints would be brought up, since there is a Supreme Court ruling that allows only one impeachment case against impeachable public officials in a year. He was proved right; the question regarding “three” impeachment complaints has been raised. The first impeachment complaint against Arroyo was filed by Marcos lawyer Oliver Lozano on June 27. This later evolved into the amended complaint filed by the minority and initially endorsed by 41 congressmen when the 13th Congress opened for its second regular session on July 25. The amended complaint expanded on Lozano’s lone charge of betrayal of public trust arising from Arroyo’s alleged taped conversations to include two other impeachable grounds—culpable violations of the Constitution, and bribery and graft and corruption. Among the charges under these grounds are: • undermining the independence of the Commission on Elections (Comelec), •-cover-up of evidence of electoral fraud, • overpricing of the North Rail and Piatco airport terminal projects, • releasing Philhealth cards and use of other government funds for electioneering, • benefiting from jueteng payoffs, • hiding real estate in the United States, and • complicity in the murder of political activists. On July 5, a second complaint also accusing Arroyo of betraying the public trust was filed by a private citizen, lawyer Jose Rizaldo Lopez, and was endorsed by Palawan Rep. Antonio Alvarez of the Lakas-CMD. It has since been withdrawn, but now the amended complaint is being considered as a separate or third complaint. That’s because Alagad party-list Rep. Rodante Marcoleta, who endorsed the Lozano complaint, says he was not consulted about the amendments. Iloilo Rep. Rolex Suplico, however, argues, “An endorser does not become the complainant by his mere endorsement. As such, he acquires no rights over the complaint. His prior consent need not be obtained if the complainant (Lozano) desires to amend the original complaint.” “CREEPING” COMPLAINT QUESTIONED But whether or not the amendments should be considered a separate complaint is only one in a growing list of legal issues pro-administration lawmakers have put on the table. Another concerns the “creeping” impeachment adopted by the opposition and which was also the route taken by those who had pushed for the impeachment of President Estrada in 2000. At the time, fewer than 20 congressmen filed the complaint against Estrada. Once it had the needed number of signatories, though, then House Speaker (now Senator) Manuel Villar Jr. immediately transmitted the articles of impeachment to the Senate without waiting for the report of the justice committee. When it was filed, the amended impeachment complaint against Arroyo had only 41 congressmen endorsing it. As of this writing, it has 10 more signatories. But now some lawmakers like Davao Rep. Prospero Nograles say the rules do not 24 PHILIPPINE CENTER FOR INVESTIGATIVE JOURNALISM I REPORT
I M P E A C H M E N T allow for a “creeping” impeachment. Justice committee chair, Maguindanao Rep. Simeon Datumanong of Lakas also says that the complaint stays with the committee and can no longer be transmitted to the Senate. Opposition legislators and the private lawyers working with them of course beg to disagree. They say the resolution of impeachment is different from the resolution of endorsement by congressmen. “Anytime during the process, once they have the numbers, congressmen can just file a resolution saying that they are endorsing the complaint so it can immediately be transmitted to the Senate,” says University of the Philippines law professor Ibarra Gutierrez III. Actually, the minority and the other impeachment-complaint endorsers had wanted to avoid a confrontation at the justice committee where the odds are definitely stacked against them. But they found themselves with no option other than filing the amended complaint even with less than the 79 signatures to avoid, ironically, being slapped with a technicality. “For the amendment to be included, it had to be filed before the referral of the complaint to the justice committee,” says lawyer H. Harry Roque Jr., another UP law professor and private counsel for the House prosecution panel. Congress insiders reveal that there were at least a dozen congressmen who committed to sign the complaint but whose signatures were missing when it was filed. Some of these are members of the majority who could just be waiting for the right moment to affix their signatures. Others are said to be wary of being lumped together with the minority, and want to distinguish themselves from the bloc led by Sorsogon Rep. Francis Escudero, the House prosecution team’s designated manager and the opposition’s most credible face. IPER’s Casiple notes that during Estrada’s time, there were also fencesitters who adopted a wait-and-see posture. “Villar did not sign until the count reached 68 and needed only 10 more votes,” he recalls. “When he finally signed, it served as a go signal for his allies in the House for them to also affix their signatures.” A HOUSE REHASH So let’s say the complaint survives what seems like an attempted murder by numbers in the House. To many, the first few scenes of the main act at the Senate may not look that different from the prologue now being played out in the House. Even Gutierrez, who will work as a private lawyer for the prosecution, says, “I anticipate that they will raise all sorts of technical questions and insufficiencies. Like in Erap’s trial, the defense won’t immediately file an answer. They will probably file a motion to dismiss or motion to quash like what (Estrada lawyer) Estelito Mendoza did.” He also says part of Arroyo’s legal strategy could be to try to suppress as much evidence as possible without turning the proceedings into a “second envelope” situation. “They will be more conscious of that now,” says Gutierrez. “But they cannot afford to let it get out of hand to the extent that all sorts of charges will come out in open court. It would be very politically damaging.” Some observers are already anticipating that debates would break out over whether the “Hello, Garci” tapes are admissible as evidence or not. Should they be suppressed, there could be a replay of the “second envelope” scenario, albeit with many people knowing this time around what the tapes contain. But Gutierrez argues, “If they object and invoke the right to privacy, in effect they admit that it was her. That would be very damaging, maybe not in terms of the trial, but in the public perception.” “The bar against using wiretapped conversations clearly applies in courts, in nonconstitutional processes,” he concedes. “(But) since the impeachment trial is sui generis (of its own kind), constitutionally mandated, the implication is the Senate can come up with its own rules, including making the wiretapped conversations admissible for purposes of this particular process, without violating the nature of the impeachment trial.” Since impeachment proceedings are also not criminal in nature, and in fact constitute a political process to determine, in this case, whether or not Arroyo is fit to remain in office, the prohibition can be waived. Cases decided in the United States have admitted wiretapped material when there is a public interest involved. BEYOND THE TAPES Then again, Roque says their legal strategy is not limited to the tapes, anyway. “If at all, the tapes are only third on our list,” he says. “Our first and strongest ground is that President Arroyo talked to a Comelec commissioner. The fact that she violated her duties to execute all laws, undermining the constitutional independence of the Comelec is itself a culpable violation of the Constitution.” As to the second ground concerning election fraud, which was detailed in the tapes, Roque says they can prove it through independent evidence like tampered election returns and witnesses (including Garcillano’s nephew and self-confessed bagman Michaelangelo ‘Louie’ Zuce). “All the events in the tapes actually happened,” he adds. “It’s as simple as subpoena-ing the individuals involved to reconstruct the contents of the tapes. Besides, there’s the admission that she talked to a Comelec official.” Such words may not comfort those who already think the opposition has been too obsessed with presenting witnesses and doing public exposés instead of devoting their time to hard, honest-to-goodness research. Some veteran litigators have also pointed to the THEN AND NOW. (Above) Senators opening evidence during the Estrada impeachment and below, opposition legislators gear up for Arroyo’s trial. relative court inexperience of the prosecuting team. That includes one-time bar topnotcher Zamora, who has admitted that if the impeachment trial pushes through, it would be his chance to finally take part in an actual trial. Yet in the end, the real drama may unfold not at the Senate, but elsewhere. As in Estrada’s case, events around the trial could determine the outcome and resolution to this long drawn-out, mind-numbing political serye. As Casiple sees it, the impeachment is only meant to buy Arroyo some time so her wards could turn around the adverse public opinion against her. “Unless the opposition or the people develop the capacity to get her out, it’s just going to be a political stalemate,” predicts Casiple. But if there is an obvious failure of the process, an extraconstitutional backlash in the form of another “people power” revolt may become imminent. When that happens, Casiple says people will have a higher moral reason to do so “because they think she already cheated, and now she’s cheating again.” PHILIPPINE CENTER FOR INVESTIGATIVE JOURNALISM I REPORT 25
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