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 PESTAO, EVELYN PESTAO, RENATO M. REYES, JR., SECRETARY GENERAL OF BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS, SECRETARYGENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE NATIONAL UNION OF PEOPLES 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 Representatives1[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 onethird (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.
1[1]

460 Phil. 830 (2003).

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 x2[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[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 12th 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 legislation4[4] reveal that the consideration behind the one-year ban is time and not the number of complaints.

2[2] 3[3] 4[4]

Id. at 932. Id. at 933. 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:

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 Complaint5[5] to the Committee, an impeachment proceeding had already been initiated, so as to bar any further proceedings on the Second Complaint.6[6] As regards the simultaneous referral, as shown in the Congressional records,7[7] and acknowledged by counsel for the respondents during the October 12, 2010 Oral
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. 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 Pestao, and Ms. Evelyn Pestao with the Resolutions of Endorsement filed by Representatives Bag-ao and Bello filed on July 22, 2010. 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, Casio, Mariano, Ilagan, Tinio and De Jesus filed on August 3, 2010. House of Representatives (15th 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: xxxx 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

5[5]

6[6]

7[7]

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[8] Thus there was, strictly speaking, no simultaneous referral.

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, Casio, Mariano, Ilagan, Tinio and De Jesus TO THE COMMITTEE ON JUSTICE (Rollo, p. 576) th See also, the Congressional Record of the Plenary Proceedings of the 15 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-09081110.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[8]

The TSN of the Oral Arguments before this Court dated October 12, 2010, pages 146-150 states: Ah, one final thing, if this Court should decide not to revisit Francisco, a Associate Justice Nachura: question I asked Assistant Solicitor General Laragan is that, when there are two complaints, [is it] the second complaint that is [infirm] if the second complaint is referred [to] the House Committee, after the first complaint shall have been referred? [Thus] the second complaint that will now be [infirm] and barred by Francisco. Ret. Justice Mendoza: Yes with particular reference to the facts of this case, it would be the second complaint (interrupted) The second complaint (interrupted) That would have [to] be dropped, if Your Honor please, for the simple reason that in the proceedings of the (interrupted) House . . . House, on August 11 (interrupted). Eleven 2010, the Order of Business. If you look just at the Order of Business listed the first complaint filed by Risa Hontiveros-Baraquiel and three others ahead of the second complaint, and not only that, set or, rather, shows after reading the (interrupted) Order of Business

Associate Justice Nachura: Ret. Justice Mendoza:

Associate Justice Nachura: Ret. Justice Mendoza: Associate Justice Nachura: Ret. Justice Mendoza:

Associate Justice Nachura:

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[9] This is in contradistinction with a
Ret. Justice Mendoza: title of the complaint, this is the action taken by the Speaker, refer it to the Committee on Justice accompanied by the banging of the gavel, so that if we have to be (interrupted) Technical Concerned with, not only our second, ah, minute and seconds of what is done, then I would say just looking at these, that there are time difference between the action taken here in referring the first complaint and the action taken in referring the second complaint which was similarly, read afterward, and then the Speaker said to the Committee on Justice accompanied or followed by the banging of the gavel to signify the action of the Chair. That - that is what? But But thats not [a] concern and I am sure that this Court did not intend that when it wrote the Francisco ruling. Ah, that is precisely what I asked Assistant Solicitor General Laragan, that it would not [have] been possible to say that both complaints were referred at the same time, 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 x x x apply Francisco very strictly the second complaint would be barred. Yes.

Associate Justice Nachura: Ret. Justice Mendoza:

Associate Justice Nachura: Ret. Justice Mendoza:

Associate Justice Nachura:

Ret. Justice Mendoza:

9[9]

Black's Law Dictionary (9th ed. 2009) (available online at www.westlaw.com).

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[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 11[11] xx

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:
First Complaint 12[12] July 22, 2010 Second Complaint 13[13] August 3, 2010

Date of Filing
10[10] 11[11] 12[12] 13[13]

Id. Supra note 1 at 931, adopting the explanation of Fr. Joaquin G. Bernas, S.J. Rollo, p. 91. Id. at 133.

Risa Hontiveros-Baraquel, Danilo Renato Reyes, Mother Mary John Lim, Felipe Pestao, and Evelyn Mananzan, Danilo Ramos, Atty. Pestao Edre Olalio, Ferdinand Gaite, and James Terry Ridon Representatives Hon. Representatives Neri Javier Endorsers from the AKBAYAN House of Hon. Arlene Bag-ao and Walden Colmenares, Rafael Mariano, Bello Teodoro Casino, Luzviminda Representatives Ilagan, Antonio Tinio, and Emeranciana A. De Jesus Grounds raised Betrayal of Public Trust Betrayal of Public Trust 1. dismal conviction rate of the 1. the delay and failure in Ombudsman from 2008 prosecuting those involved in onwards the Fertilizer Fund Scam 2. failure to take prompt and 2. the failure to prosecute Euro immediate action re former General PNP Director Eliseo President Arroyo and her de la Paz for violating BSP husband, Jose Miguel T. regulations on taking out of Arroyo with regard to the the country currency in excess NBN-ZTE Broadband of US$10,000,000 without Project declaring the funds to the 3. delay in conducting and Philippine Bureau of Customs concluding the investigation on the death of Ensign Philip Culpable Violation of the Andrew Pestano Constitution 4. decision upholding the 1. the delay or inaction in legality of the arrest and conducting the investigations detention of Rep. Risa and filing criminal cases Hontiveros-Baraquel by the against responsible Philippine National Police in COMELEC officials pursuant 2006 to the directive given by the 5. failure to conduct an Supreme Court in Information investigation into the Technology Foundation of the PhP1,000,000.00 dinner at Le Philippines, et al. v. Cirque in New York COMELEC, et al. Complainants Culpable Violation of the Constitution 1. repeated delays and failure to take action on cases impressed with public interest 2. refusal to grant access to public records such as the Statement of Assets Liabilities and Net Worth

Transmittal to the Speaker of the House Directive regarding inclusion in the Order of Business Referral by the Speaker of the House to the Committee on Justice Results of Vote on whether or not the complaint was Sufficient in Form (September 1, 2010) Results of vote on whether or not the Complaint was sufficient in substance (September 7, 2010)

July 27, 2010

14[14] 16[16]

August 4, 2010 August 9, 2010

15[15] 17[17]

August 2, 2010

August 11, 2010

August 11, 2010

39 in favor, 1 against

31 in favor, 9 against

41 in favor, 14 against

41 in favor, 16 against

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[18]
14[14] 15[15] 16[16] 17[17]
18[18]

Id. at 561. Id. at 563. Id. at 562.

Id. at 564 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: xxxx Rep. Farias then moved to declare the first impeachment complaint filed [sic] Risa HontiverosBaraquel as sufficient in form. The motion was duly seconded. x x x xxxx With 39 votes in favor and 1 against, the Chair declared the first impeachment complaint filed by Risa Hontiveros-Baraquel as sufficient in form.

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 Shakespeares immortal words, whats done is done.19[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
Rep. Casio 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: xxxx Thereafter Rep. Farias 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. Farias then made a motion to find the impeachment complaint filed by Reyes, et al. sufficient in substance. x x x (Id. at 560) xxxx 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[19]

Macbeth, act 3, scene 2, line 12.

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--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[20] Nonetheless, try as we might, we cannot shirk from our duty to say what the law is.21[21] Particularly, if one conceives of the law as both the reflection of societys most cherished values as well as the means by which we, as a nation, secure those values, then
20[20]

The phrase counter-majoritarian difficulty as an issue in constitutional law theory is widely attributed to Alexander Bickels 1962 book entitled THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS. Marbury v. Madison, 5 U.S. 137, 177 (1803), 1803 WL 893.

21[21]

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