MANILA, November 6, 2003  (STAR) By Aurea Calica - It was a draw during the first round of oral arguments before the Supreme Court as hearings started yesterday on six petitions questioning the legality of the impeachment of Chief Justice Hilario Davide Jr.

Six of the amici curiae or friends of the court were evenly split over the constitutionality of the impeachment of Davide.

Retired Supreme Court justice Florenz Regalado, Ateneo Law School Dean Fr. Joaquin Bernas and Court of Appeals Associate Justice Regalado Maambong said the Supreme Court should rule that the impeachment of Davide was unconstitutional.

On the other hand, former Senate president Jovito Salonga, former solicitor general Estelito Mendoza and retired Supreme Court Justice Hugo Gutierrez said the Supreme Court has no jurisdiction over impeachment proceedings, these being a political issue that should be decided by Congress.

Salonga qualified his arguments, saying that the Supreme Court could eventually have jurisdiction over the issue if all remedies in the House of Representatives and Senate have been exhausted and the question on the constitutionality of the second impeachment complaint against Davide remains unresolved.

Regalado, the first of eight amici curiae, said the congressmen who endorsed the impeachment complaint against Davide could have committed "grave abuse of discretion."

He said the Supreme Court cannot abdicate its obligation to resolve the issue since judicial power includes the duty to review any grave abuse of discretion or jurisdiction by any department or agency, including Congress.

Maambong supported Regalado’s position and stressed that while Congress was endowed with its own powers as a political branch of government, the Constitution has put restraints to this power.

A former member of the commission which drafted the 1987 Constitution, Maambong said the limit to Congress’ powers to initiate impeachment proceedings can be found on Article XI, Section 2, subparagraph 5.

Under the provision, no more than one impeachment complaint can be initiated against the same person within a period of one year, Maambong said.

He said the anti-harassment provision in the Constitution was meant to balance the powers of Congress to conduct impeachment proceedings and its primary job of lawmaking.

He recalled that it was even suggested during the deliberations on the impeachment provisions of the Constitution that a separate judicial body, and not the Senate as an impeachment court, should try the cases.

This way, he said "political masturbation" will be avoided since impeachment is highly political in nature.

Maambong said the congressmen should have rejected the second impeachment complaint because of an earlier one filed by former President Joseph Estrada against the same official last June.

He said the House had not concluded proceedings on the impeachment case filed by Estrada accusing Davide and seven other justices of the Supreme Court of conspiring to install then Vice President Gloria Macapagal-Arroyo to the presidency in 2001.

The Court of Appeals justice explained that if the House rules were to be applied, Estrada’s impeachment complaint "already went beyond" the filing stage of a verified complaint.

Maambong said the constitutional requirement of initiating the complaint was already completed when the House committee on justice decided on the form and substance of the first impeachment complaint.

The same committee had ruled that while Estrada’s complaint was "sufficient in form," it was "not sufficient in substance."

"The resolution of the committee should have been submitted to the House for it to affirm or overturn ... I have not heard of any such action," Maambong said.

"Until the House officially affirms the committee finding of insufficiency of substance, the first impeachment complaint is still alive and on stream...," he added.

With the second impeachment case initiated by the congressmen, Maambong said there appeared two pending impeachment complaints before the same official.

He also noted that only two congressmen initiated the second complaint, while the rest merely signed as endorsers of the complaint, which is not a valid constitutional requirement.

"Definitely, a resolution of impeachment is different from a resolution of endorsement, which is only required from at least one member of the House...," Maambong said.

Regalado and Maambong were the first to take the floor to deliver their oral arguments, which was called by the high tribunal in deciding on the petitions urging for a ruling on the constitutionality of the second impeachment complaint filed against Davide.

Bernas, who was applauded after presenting his oral arguments, stressed the House rules on impeachment proceedings cannot prevail over the constitutional requirement.

He said the Supreme Court can pass judgment on the constitutionality of such rules.

Bernas said under the rules of the House of Representatives, an impeachment complaint may be transmitted to the Senate after one-third of its members sign the complaint.

But Bernas said this was precisely avoided by the commissioners who framed the 1987 Constitution.

"What the Constitution deleted, the House attempted to restore," Bernas said.

Bernas stressed the Supreme Court cannot "run away from its duty" to rule on the petitions filed on its role as the final interpreter of the Constitution.

He said there is no need to wait for the impeachment complaint to reach the Senate and for the Senate to rule on its constitutionality since the petitions are already lodged before the high tribunal.

He said the high court is "legitimating" the case against Davide if it refuses to act on the issue by allowing its transmittal to the Senate. A Political Question

A noted constitutionalist, Salonga argued there is no urgent need to act on the matter because it should be the last resort of the parties concerned.

Salonga said the Senate can decide whether the one-year prohibition on the second impeachment case will apply.

He expressed his opinion that the Senate, acting as an impeachment court, can decide on the merits of the case and dismiss it at once if it is declared constitutional.

Salonga said the Supreme Court can only speak on the constitutionality of the impeachment complaint against Davide after it has reached the Senate.

He said this gives the Supreme Court higher "moral authority" to rule on the issue as final arbiter.

For his part, Gutierrez said the high tribunal should have rejected the petitions in the first place since impeachment proceedings are purely within the powers of Congress.

Gutierrez said the Constitution has removed the power of the judiciary over the impeachment proceedings and gave it to Congress, thus the Supreme Court should no longer interfere into what he described as a "highly political issue."

He said the Supreme Court should exercise self-limitation or restraint on matters that Congress should tackle by itself.

He said the House has been vested the sole power to interpret the impeachment provisions in the Constitution and decide when it has initiated a case and which should be transmitted to the Senate for trial.

"The House can have its own rules on impeachment. The Supreme Court should refrain from ruling on the case," Gutierrez said.

He explained it is not an individual who can initiate a complaint by filing it but the House, as an institution, acting on it.

Gutierrez said the Constitution is clear that the House has the power to initiate the impeachment, then there is no need for the interpretation of the framers of the Charter if it will only confuse the issue further.

"The Supreme Court is the sole and final arbiter of constitutional questions if and when the question falls under its jurisdiction. If the court has no jurisdiction, then it cannot be the arbiter of this question," Gutierrez said.

"I believe that when the Constitution assigns the sole and exclusive power to determine a question to a political department, then the Supreme Court should abstain from also acting on that matter and perhaps reversing or expressing a different view from the body," he added.

He said if the House is prevented from forwarding the complaint to the Senate, and if Senate should not act on the complaint will result in constitutional crisis.

Mendoza, on the other hand, pointed out the Court should abstain from the case because Davide is not a party in the petitions filed when he is not the aggrieved one himself.

Mendoza said the Court should not hear a case when the petitioners have no legal standing simply because they are not the concerned parties.

"To put it bluntly and directly," Mendoza said the petitions should be dismissed at once and let Congress decide on it.

Assuming Congress made a mistake in proceeding with a second impeachment case against Davide, Mendoza said the House and Senate should just be made answerable to their conscience and constituents as it is not for the courts to interfere in respect to separation of powers.

Mendoza said the Supreme Court will only invite countless suits once it entertains the petitions without Davide himself submitting his case.

He said the best remedy for Davide is not to invoke the constitutional prohibition but seek an acquittal before the Senate impeachment court.

He said this was what Estrada did when he was subjected to impeachment, only that he did not anticipate his ouster during the EDSA II revolution.

Yesterday’s oral argument was the first round of the series of hearings over the six petitions seeking to stop the impeachment proceedings against Davide who has been accused of allegedly misusing the Judiciary Development Fund (JDF).

Mendoza of the sixth "friends of the court" who delivered their oral arguments. He was the last to take the floor after Regalado, Maambong, Bernas, and Salonga.

Other friends of the court who are scheduled to argue Davide’s case include UP College of Law Dean Raul Pangalangan, and lawyer Pacifico Agabin.

The petitioners who questioned the second impeachment complaint and an intervenor, Sen. Aquilino Pimentel, would also be given 15 minutes each to deliver their oral arguments on the issue.

The 14 justices present can question the presentors after delivering their oral argument.

Associate Justice Josue Belosillo presided the hearing since Davide inhibited himself.

Reported by: Sol Jose Vanzi

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