EN BANC

 

 

G.R. No. 193459 (MA. MERCEDITAS N. GUTIERREZ v. THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, et al.)

 

 

Promulgated:

February 15, 2011

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CONCURRING OPINION

 

 

CARPIO, J.

 

 

On 22 July 2010, Risa Hontiveros-Baraquel, Danilo D. Lim, Felipe Pestao and Evelyn Pestao (Baraquel, et al.) filed an impeachment complaint (First Complaint) against Ombudsman Ma. Merceditas N. Gutierrez (petitioner) based on the following grounds:

 

I. Ombudsman Ma. Merceditas Navarro-Gutierrez betrayed the public trust.

 

        i.            The dismal and unconscionably low conviction rates achieved by the Office of the Ombudsman from 2008 onward indicate a criminal level of incompetence amounting to grave dereliction of duty which constitutes a clear betrayal of public trust.

      ii.            The unreasonable failure of the Ombudsman to take prompt and immediate action, in violation of its own rules of procedure, on the complaints filed against various public officials including former President Gloria Macapagal-Arroyo, and her husband Jose Miguel T. Arroyo with regard to the NBN-ZTE Broadband Project constitutes betrayal of public trust.

    iii.            The inexcusable delay of the Ombudsman in conducting and concluding its investigation into the wrongful death of Ensign Philip Andrew Pestao aboard a Philippine Navy vessel constitutes a betrayal of public trust.

 

 

    iii.            The decision of the Ombudsman upholding the legality of the arrest and involuntary detention of then Representative Risa Hontiveros-Baraquel by the Philippine National Police in March 2006 in violation of the explicit rules provided in the Revised Penal Code and as established by jurisprudence constitutes a betrayal of public trust.

    iv.            The failure of the Ombudsman to conduct an investigation into the possible wrongdoing or impropriety with regard to the P1,000,000.00 dinner for the Presidential Party at Le Cirque Restaurant in New York in August 2009 despite widespread media coverage and media clamor, and a formal letter from Representative Walden F. Bello calling for an inquiry constitutes betrayal of public trust.

II. Ombudsman Ma. Merceditas Navarro-Gutierrez performed acts amounting to culpable violation of the Constitution.

 

    vi.            The repeated failure of the Ombudsman to take prompt action on a wide variety of cases involving official abuse and corruption violates Article XI, Section 12 and Article III, Section 16 of the Constitution, which mandate prompt action and speedy disposition of cases.

  vii.            The refusal of the Ombudsman to grant ready access to public records such as the Statement of Assets and Liabilities and Net Worth (SALN) required of all public officers under Republic Act No. 6713 constitutes a culpable violation of Article XI, Section 13(6) and Article III, Section 7 of the Constitution.

 

 

The First Complaint was endorsed by AKBAYAN Party-list Representatives Kaka Bag-ao and Walden Bello.

 

On 3 August 2010, Renato Reyes, Secretary General of BAYAN, Mo. Mary John Mananzan of PAGBABAGO, Danilo Ramos, Secretary General of Kilusang Magbubukid ng Pilipinas, Atty. Edre Olalia, Acting Secretary General of National Union of People's Lawyers, Ferdinand Gaite, Chairperson of COURAGE, and James Terry Ridon, Chairperson of League of Filipino Students (Reyes, et al.) filed a Verified Impeachment Complaint (Second Complaint) against petitioner on the following grounds:

 

       I.            Betrayal of Public Trust

 

1.      Ombudsman Gutierrez committed betrayal of public trust through her gross inexcusable delay in investigating and failure in prosecuting any one of [those] involved on 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 respondent on the Fertilizer Scam.

(2) Ombudsman Gutierrez committed betrayal of public trust when she did not prosecute Gen. 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 Gen. Eliseo De la Paz publicly admitted under oath before the Senate Blue Ribbon Committee that he took out of the country currency in excess of US $ 10,000.00 without declaring the same with the Philippine Customs.

(3) Ombudsman Gutierrez betrayed the public trust through her 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 Philippines, et al. v. Commission on Elections, et al.

 

    II.            Culpable violation of the Constitution

 

The Second Complaint was endorsed by Representatives Neri Javier Colmenares, Teodoro A. Casio, Rafael V. Mariano, Luzviminda C. Ilagan, Raymond V. Palatino, Antonio L. Tinio, and Emerenciana A. De Jesus.

 

On 3 August 2010, the House of Representatives Committee on Justice (Committee on Justice) provisionally adopted the Rules of Procedure in Impeachment Proceedings of the Fourteenth Congress (Rules of Procedure).

 

On 11 August 2010, the First and Second Complaints were referred by the Plenary to the Committee on Justice.

 

On 1 September 2010, the Committee on Justice found the First and Second Complaints sufficient in form by a vote of 39 in favor and 1 against, and 31 in favor and 9 against, respectively.

 

On 2 September 2010, the Rules of Procedure was published.

On 7 September 2010, the Committee on Justice, voting 40 in favor and 10 against, affirmed that the First and Second Complaints were sufficient in form. Thereafter, the Committee on Justice found the First and Second Complaints sufficient in substance, by a vote of 41 in favor and 14 against and 41 in favor and 16 against, respectively. Petitioner was directed to file an answer to the complaints within 10 days from receipt of notice.

 

On 13 September 2010, petitioner filed a petition for certiorari and prohibition1 before this Court seeking to enjoin the Committee on Justice from proceeding with the impeachment proceedings. The petition prayed for a temporary restraining order. The petition is based on the following grounds:

 

       I.            In gross and wanton disregard of the rudimentary requirements of due process of law, the Committee acted with indecent and precipitate haste in issuing its assailed Resolutions, dated 1 September 2010 and 7 September 2010 which found the two (2) impeachment complaints filed against petitioner Ombudsman sufficient in form and substance.

    II.            The Rules of Procedure in impeachment proceedings lack comprehensive standards in determining as to what amounts to sufficiency in form of an impeachment complaint and gives the members of the Committee unfettered discretion in carrying out its provisions. Thus, it contravenes the Constitution and violates petitioner Ombudsman's cardinal and primary right to due process, thereby tainting the hearing conducted before the Committee on 1 September 2010 in relation to the sufficiency in form of the two (2) impeachment complaints with illegality and nullity.

III.            The Committee's finding that the two (2) impeachment complaints filed against petitioner Ombudsman are sufficient in form 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 period of one (1) year. In the Francisco case, the Honorable Court reckoned the start of the one (1) year bar on the impeachment of an impeachable officer from the date of the filing of the complaint. In the instant case, the first complaint was filed on 22 July 2010. Thus, the filing of the second complaint on 3 August 2010, a mere twelve (12) days after the filing of the first complaint, violates the one (1) year bar under the 1987 Constitution. The second complaint should, therefore, not have been accepted and referred to the Committee for action.

 

 

IV.            The contemplated consolidation of the two (2) impeachment complaints constitutes a contravention of the one (1) year bar. If the Committee would follow through on such course of action, it would be arrogating unto itself the power to alter or amend the meaning of the Constitution without need of referendum, a power denied to it by the 1987 Constitution and its very own rules. The Committee would also be allowed to to wantonly exercise unbridled discretion in carrying out the letter and spirit of the Constitution and to arbitrarily wield the two (2) impeachment complaints as instruments of harassment and oppression against petitioner Ombudsman.

    V.            The Rules of Procedure in impeachable proceedings do not prescribe the form or standards in order for an impeachment complaint to be deemed sufficient in form. However, Section 16, Rule VII of the same rules provides that the Rules of Criminal Procedure under the Rules of Court shall, as far as practicable, apply to the impeachment proceedings before the House. In this regard, Section 13, Rule 110 of the 2000 Rules of Criminal Procedure mandates that a complaint must charge only one (1) offense. The Committee, in finding that the two (2) impeachable complaints charging petitioner Ombudsman with the offenses of culpable violation of the Constitution and betrayal of public trust sufficient in form, violated the cardinal rule that a complaint must charge only one (1) offense. Thus, the two (2) impeachment complaints cannot be sufficient in form.

VI.            The two (2) impeachment complaints filed against petitioner Ombudsman do not meet the standards laid down by the Committee itself for the determination of sufficiency of substance.

A. Assuming as true the allegations of the two (2) impeachment complaints, none of them can be deemed of the same nature as the other grounds for impeachment under the Constitution.

B. There is no legal right on the part of the complainants to compel petitioner Ombudsman to file and prosecute offenses committed by public officials and employees. On the other hand, there is no legal duty on the part of petitioner Ombudsman to file an Information when she believes that there is no prima facie evidence to do so. Thus, there can be no violation of any legal right of the complainants to speak of that can be the basis of a finding of sufficiency in substance of the two (2) impeachment complaints.

 

The following day, during the en banc morning session of 14 September 2010, over the objections of Justices Carpio, Carpio Morales and Sereno who asked for time to read the petition, the majority of this Court voted to issue a status quo ante order suspending the impeachment proceedings against petitioner. The petition, with Urgent Motion for Immediate Raffle, was filed at 9:01 a.m. of 13 September 2010. I received a copy of the petition only in the afternoon of 14 September 2010, after the en banc morning session of that day. The petition consists of 60 pages, excluding the annexes. All the Justices should have been given time, at least an hour or two as is the practice in such urgent cases, to read the petition before voting on the issuance of the status quo ante order. Unfortunately, this was not done.

 

Section 3(5), Article XI of the 1987 Constitution provides that (n)o impeachment proceedings shall be initiated against the same official more than once within a period of one year. There are two impeachment complaints filed against petitioner, filed within days from each other. The First Complaint was filed on 22 July 2010 while the Second Complaint was filed on 3 August 2010.

 

In Francisco, Jr. v. House of Representatives,2 the Court had the occasion to discuss the meaning of the term to initiate as applied to impeachment proceedings. The Court ruled:

 

From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without doubt that the term to initiate refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint.

 

x x x the initiation 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.3 (Emphasis supplied)

 

Thus, there are two components of the act of initiating the complaint: the filing of the impeachment complaint and the referral by the House Plenary to the Committee on Justice. The Court ruled that once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period.4

 

On 11 August 2010, the two complaints were referred by the House Plenary to the Committee on Justice at the same time. The Committee on Justice acted on the two complaints, ruling on the sufficiency of form, and later of substance, at the same time. The prohibition against filing of another impeachment complaint within a one year period would apply if the First Complaint was referred by the House Plenary to the Committee on Justice ahead of the Second Complaint. There is nothing in the Constitution that prohibits the consolidation of the First and Second Complaints since they were referred by the House Plenary to the Committee on Justice at the same time. Neither the First nor the Second Complaint is prior to the other in terms of action of the House Plenary in referring the two complaints to the Committee on Justice. The Constitutional bar, therefore, will not apply in this case.

 

Petitioner alleges that the Rules of Procedure lack comprehensible standards as to what amounts to sufficiency in form. Petitioner asserts that the determination of the sufficiency in form must rest on something more substantial than a mere ascertainment of whether the complaint was verified by the complainants and whether it was properly referred to the Committee for action.

 

Section 4, Rule III of the Rules of Procedure provides:

 

Section 4. Determination of Sufficiency in Form and Substance. - Upon due referral, the Committee on Justice shall determine whether the complaint is sufficient in form and substance. If the committee finds that the complaint is insufficient in form, it shall return the same to the Secretary General within three (3) session days with a written explanation of the insufficiency. The Secretary General shall return the same to the complainant(s) together with the committee's written explanation within three (3) session days from receipt of the committee resolution finding the complaint insufficient in form.

 

Should the committee find the complaint sufficient in form, it shall then determine if the complaint is sufficient in substance. The requirement of substance is met if there is a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee. If the committee finds that the complaint is not sufficient in substance, it shall dismiss the complaint and shall submit its report as provided hereunder.

 

Section 4 is not vague as petitioner asserts. The Rules of Procedure provides that [t]he Rules of Criminal Procedure under the Rules of Court shall, as far as practicable, apply to impeachment proceedings before the House.5 Section 7, Rule 117 of the Revised Rules of Criminal Procedure provides that a complaint or information is sufficient if it states, among other things, the name of the accused and the acts or omissions complained of as constituting the offense. Following Section 16 of the Rules of Procedure, Section 7, Rule 117 of the Revised Rules of Criminal Procedure suppletorily applies to the Rules of Procedure to determine whether the impeachment complaints are sufficient in form. The fact that the acts complained of are enumerated in the impeachment complaints, coupled with the fact that they were verified and endorsed, is enough to determine whether the complaints were sufficient in form.

 

Petitioner also asserts that the complaints violate Section 13, Rule 110 of the Revised Rules of Criminal Procedure6 which provides that a complaint or information must charge only one offense. Petitioner alleges that the Committee on Justice found the impeachment complaints sufficient in form although the impeachment complaints charge petitioner with the offenses of culpable violation of the Constitution and betrayal of public trust. Petitioner argues that the impeachment complaints allege duplicitous offenses.

 

The argument has no merit.

 

The impeachment procedure is analogous to a criminal trial but is not a criminal prosecution per se.7 While the Rules of Procedure provide for the suppletory application of the Rules of Criminal Procedure in an impeachment proceedings, a strict application of the Rules of Criminal Procedure is not required in impeachment proceedings, as can be gleaned from the deliberations of the Constitutional Commission, thus:

 

MR. MAAMBONG. Let us go to a bottom-line question then. When the Senate acting as body will now try the impeachment case, will it conduct the proceeding using principles of criminal procedure?

 

MR. ROMULO. I do not think so, strictly speaking, that it need be criminal procedures. The important thing, I believe, is that the involved party should know the charges and the proceedings must be, in total, fair and impartial. I do not think we have to go to the minutiae of a criminal proceeding because that is not the intention. This is not a criminal proceeding per se.

 

MR. MAAMBONG. In the matter of presentation for example, of evidence, when it comes to treason and bribery, would the rules on criminal procedure be applied, considering that I am no particularizing on the ground which is punishable by the Revised Penal Code, like treason or bribery?

 

MR. ROMULO. Yes, but we will notice that, strictly speaking for the crime of treason under the Revised Penal Code, he is answerable for that crime somewhere else. So my conclusion is that obviously, it is in the criminal court where we will apply all the minutiae of evidence and proceedings and all these due processes. But we can be more liberal when it comes to the impeachment proceedings, for instance, in the Senate, because we are after the removal of that fellow, and conviction in that case really amounts to his removal from office. The courts of justice will take care of the criminal and civil aspects.8

 

 

Further, the impeachment complaint is not the same as the Articles of Impeachment. The impeachment complaint is analogous to the affidavit-complaint of the private complainant filed before the prosecutor for purposes of the preliminary investigation. Such affidavit-complaint, prepared by the complainant, may allege several offenses. On the other hand, Section 13, Rule 110 of the Revised Rules of Criminal Procedure refers to the formal complaint or information prepared by the prosecutor and filed before the court after the preliminary investigation. Such formal complaint or information must charge only one offense against an accused. The Articles of Impeachment is prepared by the Committee after it votes to recommend to the House Plenary the filing of impeachment charges. The only requirement in preparing the Articles of Impeachment is that there is only one specific charge for each article. The Articles of Impeachment, as its name imply, may have several articles, each charging one specific offense. The proceedings before the Committee on Justice is like a preliminary investigation in a criminal case where there is no complaint or information yet.

 

As pointed out in the deliberations of the Constitutional Commission, the impeachment proceeding is not a criminal prosecution. The impeachment proceeding covers not only criminal acts but also non-criminal acts, such as betrayal of public trust, which is the main charge against petitioner in both the First and Second Complaints. In Francisco, the Court noted that the framers of the Constitution could find no better way to approximate the boundaries of betrayal of public trust than by alluding to positive and negative examples.9 Thus:

 

THE PRESIDENT. Commissioner Regalado is recognized.

 

MR. REGALADO. Thank you, Madam President.

 

I have a series of questions here, some for clarifications, some for the cogitative and reading pleasure of the members of the Committee over a happy weekend without prejudice later to proposing amendments at the proper stage.

 

First, this is with respect to Section 2, on the grounds for impeachment , and I quote:

 

. . . culpable violation of the Constitution, treason, bribery, other high crimes, graft and corruption or betrayal of public trust.

 

Just for the record, what would the Committee envision as a betrayal of public trust which is not otherwise covered by by other terms antecedent thereto?

 

MR. ROMULO. I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it refers to his oath of office, in the end that the idea of public trust is connected with the oath of office of the officer, and if he violates that oath of office, then he has betrayed the trust.

 

MR. REGALADO. Thank you.

 

MR. MONSOD. Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks.

 

THE PRESIDENT. Commissioner de los Reyes is recognized.

 

MR. DE LOS REYES. The reason I proposed this amendment is that during the Regular Batasang Pambansa where there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term betrayal of public trust, as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose, Madam President.

 

Thank you.

 

MR. ROMULO. If I may add another example, because Commissioner Regalado asked a very good question. This concept would include, I think, obstruction of justice since in his oath he swears to do justice to every man; so if he does anything that obstructs justice, it could be construed as a betrayal of public trust.

 

Thank you.

 

MR. NOLLEDO. In pursuing that statement of Commissioner Romulo, Madam President, we will notice that in the presidential oath of then President Marcos, he stated that he will do justice to every man. If he appoints a Minister of Justice and orders him to issue or to prepare repressive decrees denying justice to a common man without the President being held liable, I think this act will not fall near the category of treason, nor will it fall under bribery of other high crimes, neither will it fall under graft and corruption. And so when the President tolerates violations of human rights through the repressive decrees authored by his Minister of Justice, the President betrays the public trust.10

 

 

Clearly, the framers of the Constitution recognized that an impeachment proceeding covers non-criminal offenses. They included betrayal of public trust as a catchall provision to cover non-criminal acts. The framers of the Constitution intended to leave it to the members of the House of Representatives to determine what would constitute betrayal of public trust as a ground for impeachment.

 

Even the United States Senate recognizes that the Articles of Impeachment can contain various offenses. On 20 October 1989, the United States Senate impeached Judge Alcee Hastings (Hastings).11 Hastings was charged with 17 Articles of Impeachment ranging from corrupt conspiracy, knowingly making a false statement intended to mislead the trier of fact, fabrication of false documents, and improper disclosure by revealing highly confidential information that he learned as a supervising judge in a wiretap.12 Hastings was convicted in 8 of the Articles of Impeachment and was removed from office. Hence, there is nothing that would prevent the impeachment of petitioner for various offenses contained in the Articles of Impeachment.

 

Moreover, the Court cannot review the sufficiency of the substance of the impeachment complaints. The sufficiency of the substance will delve into the merits of the impeachment complaints over which this Court has no jurisdiction.13 The Court can only rule on whether there is a gross violation of the Constitution in filing the impeachment complaint, in particular, whether the complaint was filed in violation of the one-year ban. The Court cannot review the decision of the Committee on Justice to impeach. The Court ruled in Francisco:

 

The first issue14 goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission.15

 

 

Impeachment is a political process. Thus, the decision to impeach lies exclusively on Congress. The most important thing in an impeachment proceeding is the vote by the House Plenary. Section 10 of the Rules of Procedure states that [a] vote of at least one-third (⅓) of all Members of the House is necessary for the approval of the resolution setting forth the Articles of Impeachment. If the resolution is approved by the required vote, it shall then be endorsed to the Senate for its trial. The Rule is based on Section 3 (4), Article XI of the 1987 Constitution which states:

 

Sec. 3. x x x

 

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

 

The Constitution is clear. After the vote of one-third of all the Members of the House is achieved, the Articles of Impeachment will automatically be forwarded to the Senate for trial. The Constitution only requires the vote of one-third of all the Members of the House for the Articles of Impeachment to be forwarded to the Senate whether or not the complaint is sufficient in form and substance.

Finally, there is no violation of petitioner's right to due process. Nobody can claim a vested right to public office. A public office is not a property right, and no one has a vested right to any public office.16 Thus:

 

Again, for this petition to come under the due process of law prohibition, it would necessary to consider an office a property. It is, however, well settled x x x that a public office is not property within the sense of the constitutional guaranties of due process of law, but is a public trust or agency. x x x The basic idea of the government x x x is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people he represents.17

 

Accordingly, I vote for the dismissal of the petition and the lifting of the status quo ante order issued by this Court against the House of Representatives.

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

1 Under Rule 65 of the 1997 Rules of Civil Procedure.

2 460 Phil. 830 (2003).

3 Id. at 932. Emphasis supplied.

4 Supra, note 2.

5 Section 16.

6 Section 13. Duplicity of the offense.A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.

7 2 Record of the Constitutional Proceedings and Debates, 277.

8 Id.

9 Francisco, Jr. v. House of Representatives, supra note 2.

10 2 Record of the Constitutional Proceedings and Debates, 272.

11 http://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm#4.

12 http://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm.

13 Francisco, Jr. v. House of Representatives, supra note 2.

14 Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offense under the Constitution.

15 Francisco, Jr. v. House of Representatives, supra note 2, at 913.

16 Montesclaros v. Comelec, 433 Phil. 620 (2002).

17 Id. at 637-638, citing Cornejo v. Gabriel, 41 Phil. 188 (1920). Emphasis in the original text.