Erap

The five current or former government employees among the candidates have all had at least twelve years of government service. Their record of service can, therefore, be a good indicator of whether or not they will deliver on their campaign promises. This is the reason why I have chosen to support Erap; for it is Erap who has been most productive as a civil servant.

The years as mayor need no discussion here, nor the fact that most roads of San Juan have been cemented. This is a feat no politician can boast of, no matter how close to Marcos or Arroyo, no matter how big the pork barrel. The achievements won Erap the TOYM award in 1972. Other government officials who won the TOYM award for public service, are Ninoy Aquino in 1960, and Paeng Salas in 1962 (wizard of Marcos’ miracle rice production surplus).

The years as legislator were uneventful; proving that Erap is better as an executive than as legislator. One noteworthy item is his advocacy (his maiden privilege speech) of legalizing jueteng.

His aborted presidency, bore more fruit than the successor. And that is due to his careful selection of his cabinet. To paraphrase that old cliché, tell me who comprise the cabinet, and I will tell you the type of president you have. Erap appointed individuals, who were not only competent in the field, but had their hearts in their portfolios. Appointing one who truly cares for the portfolio, is a sign, not only of good management, but of sincerity in delivering the service of that portfolio. Appointing somebody unqualified actually guarantees the failure of the portfolio, as evidenced by the failures of the incompetent Angelo Reyes.

The following is a sampling of some of the appointees of Erap.

Brother Andrew Gonzales – a lifelong educator, and former head of La Salle was appointed as the Secretary of Education. The La Salle brothers, like other religious orders, have dedicated their lives to the education of the youth. The successor, on the other hand, appointed a corporate lawyer with no education experience.

William Padolina was appointed to the Department of Science and Technology. Like Erap, Padolina is a TOYM awardee (Science and Technology – 1985), and a UP System awardee as outstanding administrator.

Domingo Siazon, Jr. was appointed as Secretary of Foreign Affairs. Siazon is a career diplomat, who rose from the ranks; starting as vice-consul in 1964, until his appointment as Secretary by Erap. The successor appointed non-career diplomats, as secretary and ambassadors.

Justice Serafin Cuevas was appointed as Secretary of Justice. His entire career was devoted to the administration of justice, starting as assistant fiscal of Manila, to CFI (Court of First Instance) judge, justice of the court of appeals, and later Supreme Court. He is the unquestioned authority in remedial (procedural) law, among his peers in the Supreme Court, and in the academe. Erap’s successor appointed Raul Gonzales – one who was earlier suspended by the Supreme Court for ignorance of the law, and one who capped his stint as DOJ Secretary with that scandal involving drugs, bribes, and the Alabang boys.

Erap’s economic team was comprised of Felipe Medalla at the helm of the NEDA, and budget secretary Benjamin Diokno, both economics professors from UP, with Ph.D’s from Northwestern University and Syracuse University, respectively. Some economic stats (taken from the World Bank) of Erap’s term, attributable to these gentlemen, are as follows:

GDP growth was negative in 1998, the first half year of Erap, due in large part to the Asian economic meltdown. It rose to 3% in 1999, and 6% in 2000. (See Stats 1, How to Get Data below).

Gross capital formation for those years was 20% (98), 21% (00) and 19% (01). Gross capital formation, as defined by the UN, is measured by the total value of investments in fixed assets, by the entire economy, business, government and households. Fixed assets include buildings, roads, bridges, equipment, etc.( http://datafinder.worldbank.org/gross-capital-formation) In layman’s terms, it is the measure of goods that produce other goods. An increase in these assets increases productive capacity, and leads to greater employment. The figures for Erap’s successor have averaged 16.24% for 2001 through 2008. This belies any claim that more investments, whether foreign or domestic, were made in her time. (Stats 1)

Exports during Erap’s time were 52%, 51% and 55% of GDP for the three years. The successor started with 49% in 2001, slid to 47% in 2007, and a dismal 37% in 2008. Exports minus imports yields a negative $5.1 Billion for Erap in 1998, against negative $11.1 Billion for the successor in 2008. (http://devdata.worldbank.org/AAG/phl_aag.pdf)

The growth rate of GDP per person employed or labour productivity is defined as the growth rate of output per unit of labour input.

(http://mdgs.un.org/unsd//mdg/Metadata.aspx?IndicatorId=0&SeriesId=757)

It was negative 3% in 1990, zero in 1995, and 6% in 2000. It was zero in 2005, and 3% in 2008. Clearly, labor was more productive during Erap’s time than during the years of his successor. (Stats 2)

In the ratio of employment to population, the successor performed slightly better than Erap, with 58% in 2000, against 60% in 2005 and 61% in 2008. (Stats 2)

Remittances from OFWs ballooned from Erap’s 5.1 Billion pesos in 2000 to 18.6 Billion pesos in 2008. (Stats 1) I will not consider this a positive factor, however - that people were forced to seek employment abroad. The low capital formation, low productivity and higher employment, may indicate that many of the so-called employed were actually underemployed.

The exchange rate of the peso to the dollar has not recovered from its 2001 levels. In stark contrast the currencies of our Asian neighbors have all appreciated against the dollar, and have improved against their 2001 levels, as indicated by the table below:

Country	2000	2001	2008	current
Philippine Peso	29.47	40.89	44.4	44.34
Thailand Baht	31.36	41.35	33.37	31.75
Malasian Ringgit	2.81	3.90	3.33	3.16
Indonesian Rupiah	2,909	10,013	9,558	9.017

(http://en.wikipedia.org/wiki/Tables_of_historical_exchange_rates_to_the_USD)

The peso of the year 1998 can buy goods worth 1.10 pesos in 2000, showing a slide of ten centavos in purchasing power during the term of Erap. The peso of 2008, however, can buy goods that a mere 64 centavos of 1998 can buy. That is a slide of 36 centavos of purchasing power. (http://www.census.gov.ph/data/sectordata/tscpimon.html)

The job of the Chief Executive is to spot the talent, deploy him/her, and lend full support. The Chief Executive, himself, does not have to be a good lawyer, engineer, or physician, in the case of the health department. As Henry Ford said, “I do not need to be a good engineer, I can hire one”. The assembly of a good team, and their competent performance, is the reason why I chose to support Erap.

Age

It is said that at 73 (Happy Birthday Sir), Erap is too old to govern. Konrad Adenauer was 73 when he took the helm of West Germany, and governed until he was 87. Deng Xiao Ping was 76 when he took over and produced China’s economic miracle. This is not to say that Erap will be as great as these leaders. But these men prove that age is no hindrance to performance (No this is not a sales pitch for Viagra).

Plunder

There is, of course, that conviction for plunder; and the perception that Erap is corrupt. But I have little regard, in fact, unalloyed contempt for a court that deigns to consider fabricated evidence. And it is difficult to believe that one who said no to the $14 Million bribe of IMPSA would yield to the temptation of Chavit Singson [572 Million pesos at the exchange rate then - (http://en.wikipedia.org/wiki/Tables_of_historical_exchange_rates_to_the_USD)]. There is also the issue of credibility. One bill weighs one gram. So if the 130 million were in 1,000 peso bills, that would yield 286 pounds. Even Arnold Schwarzenegger would have difficulty lifting that. (1,000 pieces of 1,000 pesos = one million = 1,000 grams/454 grams per pound = 2.2 pounds, multiplied by 130 = 286 pounds.)

Disqualification

The rules only bind the servant (government); they do not bind the taskmaster (sovereign people). A direct act of the people always prevails over legislative acts, because legislative acts are acts only of the representatives. The direct act, I submit, also prevails over the Constitution, because this is a later direct act, and therefore, the will of the people at the present time. Furthermore, the Constitution was ratified in toto, meaning, wholesale. A voter may have been in disagreement with, say, the presidential system, or the fact that there is no provision for a reelection of the president. But the voter may have discounted that objection, because his choice was limited to ratifying the whole or not ratifying. In the case of a vote, there is only one issue – who should lead the country? This is, therefore, an unequivocal manifestation of the will of the people on a single issue, involving a single candidate (you only write one name). So between this singular unequivocal act, and the general intent in ratifying the Constitution, the unequivocal vote must prevail.

Our recent history has shown that the rich and powerful have gotten back what they lost in the Marcos years. The Lopezes got back Meralco. The Jacintos got back their companies. The Marcos cronies got back into the halls of power. Heck even the Marcoses are back in the government. It is only the poor who have been denied what is due them. Few, if any, have been compensated for the transgressions in the Marcos years – a pittance compared to what the Lopezes got back.

It seemed for a while that the poor got back their voice. They voted for Cory, but the rich and powerful declared Marcos the winner. The poor found their strength, regained their freedom, and gained the leader who inspired them. Alas, it was short-lived. The poor later voted for Erap, but the very people who ululate “people power” and “the will of the majority” conspired against the leader who garnered more votes than Cory.

Do the poor still want Erap to lead? That I cannot say. But based on his record, and on what I can read from the record of the other candidates, I chose to support Erap. The economic stats prove that si Erap ay para sa mahirap.

How to get the data:

Stats 1

1. http://www.worldbank.org/
2. click Data and Research
3. Left panel (Data), below that it says Key Statistics, default is data by country,
4. click Go
5. On the left panel, click "Key Statistics"
6. Scroll down and click "Quick Query"
7. On the next window, scroll down to Philippines and click "Select". Lower right, click "Next"
8. On the next window, click "Select All", Lower right, click next.
9. On the next window, click "2008", scroll down to the year you want (I chose 1986 as starting point), on your keyboard, hold down the shift key and click "1986". Click "Select", Lower right, click "Next"

Now you have your data. You can export this to Excel, so you will not need to access the World Bank website everytime.

You export by clicking on the top right, to the right of the word "Export", the

dropdown menu with the word select, and click "Data"

That will fire up the export applet.

Stats 2

1. http://www.worldbank.org/
2. click Data and Research
3. Left panel (Data), below that it says Key Statistics, default is data by country,
4. click Go
5. On the left panel, click "Key Statistics"
6. On the next window, click "Millennium Development Goals"
7. On the next window, click the dropdown menu, scroll down, and click "Philippines"
8. You get the stats for the millennium goals. You can also export to Excel like above.

Dacer, DNA and Brady Violations

An extradition hearing is held to enable the court to decide whether the defendant is subject to surrender to the requesting government. The District Court’s function in an extradition hearing is not to act as a rubber stamp to an extradition request but to ensure that our (American) judicial standard of probable cause is met by the Requesting Nation (US v. Valentin Linson 88 F.Supp.2d 1123). The evidence must demonstrate probable cause to believe that the accused committed the crime charged. Merino v. U.S. Marshall, 326 F.2d 5, 12 (9th Cir.1963).

“The range of evidence that a defendant may introduce as to probable cause at an extradition hearing is limited. The general rule is that evidence that explains away or completely obliterates probable cause is admissible, while evidence that merely controverts the existence of probable cause is not” (Krenar Hoxha v. Troy Levi, 3rd Cir. No. 05-3149, Oct. 3, 2006).

Evidence to support probable cause is concededly of lower quantity and quality compared to evidence to support a conviction. It is for this reason that DNA evidence, if available, is material, for DNA evidence trumps all evidence in the determination of guilt or innocence.

In the case of US v. Sczubelek [402 F.3d 175, 178 (3d Cir. 2005)], the Third Circuit Court of Appeals stated that DNA is more reliable as a means of identification than fingerprints or even photographs. The Philippine Supreme Court is of the same view, holding that:

DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. [People v. Joel Yatar (G.R. No. 150224, May 19, 2004)].

That DNA trumps all evidence, is proven by the cases reopened by the Innocence Project (www.innocenceproject.org). The Project has successfully overturned guilty verdicts in 235 cases, with the presentation of post-conviction DNA. The DNA evidence proved either that the accused was not at the scene of the crime, or that the DNA found at the scene of the crime matched the DNA of another individual.

The two cases cited below, illustrate how post-conviction DNA trumped all other evidence presented in court.

Case of Steven Barnes

In the case of Steven Barnes, the evidence for the prosecution consisted of:

1. Microscopic analysis of hair found on Barnes’ truck, which was said to match the victim’s, and did not match the hair of Barnes;
2. Soil samples from Barnes’ truck taken one year after the crime, was said to have “similar characteristics” with soil from the crime scene;
3. There was testimony of a jailhouse informant, who said that Barnes confessed the crime to the informant (shades of Mancao and Aquino’s alleged statements in Las Vegas).
   

The victim in Barnes’ case was raped and murdered. The DNA of sperm found on the body of the victim did not match Barnes’ DNA.

Case of Ryan Matthews

In the case of Ryan Matthews, a man wearing a ski mask entered the victim’s store and demanded money. When the victim refused, the perpetrator shot him four times and fled, taking off his mask and diving into the passenger side window of an awaiting car. Two eyewitnesses identified Matthews as the man who shot the victim. One was in her car, and saw the perpetrator run from the store, and identified Matthews from a photographic array. The other saw the perpetrator from his rearview mirror while he (witness) was being shot at, and trying to block the escape of the getaway car.

Five years after conviction, DNA testing on the mask matched with another individual, not Matthews. Matthews became the 14th death row convict who was exonerated by post-conviction DNA, lending truth to the observation of Justice Brennan that: “The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification” [US v. Wade 388 U.S. 218 (1967)].

Brady Violations

The Philippine DOJ in the Mancao extradition presented to its US counterparts, the report of Dr. Raquel Fortun which stated that:

“Fragments of charred bones and other objects were obtained. “..the following conclusions were arrived at:

1. The remains recovered from the scene are of human origin.
2. At least two adult individuals are present.
3. These two individuals are positively identified as MR. SALVADOR “BUBBY” DACER and MR. EMMANUEL CORBITO.”

The Philippine DOJ (PDOJ) conveniently omitted presenting evidence which stated that the bones tested negative for human DNA.

The PDOJ also failed to apprise the US DOJ of the decision of the Supreme Court in the case of Allado, which held that:

“A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust.”

"To allege then that the body of Van Twest was completely burned to ashes in an open field with the use merely of tires and gasoline is a tale too tall to gulp” (People v. Allado G.R. No. 113630 May 5, 1994).

In Allado, the Philippine Supreme Court ruled that there was absence of probable cause, and issued a writ of prohibition on the trial court.

Brady (v. Maryland) and its progeny make it the duty of the prosecution to disclose exculpatory material to the defense. The suppression of DNA evidence, or the withholding of jurisprudence favorable to the defense, singly, constitutes a Brady violation; said violation renders the prosecutor susceptible to disciplinary action for prosecutorial misconduct [US v. Byron Mitchell 145 F.3d 572 (3rd Cir. 1998)].

There is no Brady violation here, because the US DOJ gave the defense all the material it had in its possession [In the Matter of the Extradition of Michael John Drayer 190 F.3d 410 (6th Cir. 1999)]. The Philippine DOJ is off the hook on a technicality, because it did not plead before the US Courts. But there is, at least, in this case, diplomatic discourtesy; for the Philippine DOJ has exposed the US DOJ to the embarrassing situation of being confronted with evidence and jurisprudence suppressed by its side (US and Philippine DOJ). The Philippine lawyers are also susceptible to disciplinary action for violating the provisions of the Code of Professional Ethics of the Philippines, which provides as follows:

Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice.

The Court was misled by the submission of Dr. Fortun’s report which positively identified the remains as those of Dacer and Corbito. That identification was proven incorrect by the DNA report, stating that the bones tested negative for human DNA.

The Code of Professional Responsibility also provides that:

Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved.

This was violated by the failure of the PDOJ to apprise the US DOJ and the defense, of the Philippine Supreme Court’s decision in the case of Allado.

Philippine DOJ’s lack of candor in previous cases.

The PDOJ has been less than candid, if not, in fact, misleading in two previous extradition requests.

US v. Valentin Linson

In the case of US v. Valentin Linson (88 F.Supp.2d 1123) the PDOJ did not present to the US DOJ the recantation affidavits of the witnesses who implicated Linson in the alleged crime. Those affidavits were sworn to before the very same prosecutor trying the case. The Court was moved to observe the lame excuses of the PDOJ as follows:

At the December 21, 1999 hearing the Philippines did not proffer any evidence to the Court challenging the authenticity of the recantations. Instead, the Philippines offered explanations showing why they could not proffer the recantation evidence. First, their state prosecutor who witnessed the recantations had no telephone and could not be reached. Second, the Senior prosecutor, Mr. Barrios stated that the recantations were never forwarded to him. US v. Valentin Linson 88 F.Supp.2d 1123, District Court of Guam.

The Court also diplomatically pointed to the fact that the PDOJ fabricated evidence, by forging a witness’ signature:

Third, the Philippine Government presented an affidavit in which Roberto Calingasan implicated Linson stating “I saw him (Valentin Linson) shoot Bien, the policeman once.” However, defendant has supplied the Court with an affidavit signed by Calingasan in which he denies he signed such statement for the NBI. In the affidavit presented by the defendant Calingasan states that “I did not give NBI a statement … what was written in the statement was not true” and “I did not sign a statement at NBI.” This second statement is signed in a cursive style signature whereas the first one provided by the Philippines only had Calingasan’s name printed in block letters on the signature space.

In the Matter of the Extradition of Roger Laurence Strunk (293 F. SUPP 2D 1117)

In the case of Roger Laurence Strunk (husband of Nida Blanca), the PDOJ made selective presentations of evidence. It presented evidence from Elena De La Paz, the housemate of the accused (husband) and the victim (wife), and personal assistant of the victim, to prove motive on the part of the accused (page 12). But the PDOJ did not submit Elena’s testimony, that the accused was in the house, the entire evening that the murder occurred in a neighboring city (page 14).

The PDOJ anchored its finding of probable cause on the confession of Medel, who stated that he was hired by Strunk to commit the crime. Medel confessed, then later recanted his confession in open court, alleging it had been obtained through coercion and torture (page 6).

Commenting on the credibility of Medel, the Court observed:

First, as is evident throughout most of the declarations in this case, the first statement is never good enough. There always seems to be a need to embellish what was initially said in order to make the case better (shades of the Mancao affidavits - Aquino talking of Viña's bungling the job, later, Aquino talking of "Tirahin si Bero"). This fact is not necessarily detrimental, but importantly, the embellishments contain significant inconsistencies (page 7).

The penchant to embellish the submitted evidence was further underscored by the observation that:

The court will not consider the belated evidence submitted by the Philippines filed November 3, 2003. This extradition proceeding is not some movable feast----never to be finished as long as the parties drip evidence into the undersigned, when they feel moved to do so, or after the undersigned makes a comment on the submitted evidence at hearing or in writing.

The Court further observed that Medel was paid for his confession. “Payment to a defendant to confess his and others participation in a murder will cast doubt on the validity of the statement” (page 8).

The inconsistencies moved the Court to state:

“…. the evidence submitted by the Philippines concerning Strunk's participation in the murder of Blanca is so inconsistent and conflicting that it provides little competent evidence to support the conclusion that Strunk hired Medel to murder Blanca. “… the competent, admissible evidence submitted by Strunk obliterates the case presented by the Philippines resting on the Medel confession.”

The Court concluded by stating that:

US Attorney Ken Melikian “did his customary, professional presentation of evidence, and his customary, informative legal briefing. However, as the decision makes clear, the evidence given to Mr. Melikian was not competent. Good as he is, Mr. Melikian could not perform legal alchemy.”

It may be, that Dacer is dead, and justice must be done for him. But one does not achieve justice for the victim by doing an injustice to people who are presumed innocent; that works an injustice to the system – a typical result in the Philippine system.

It is true, that Philippine jurisprudence states that flight may indicate guilt. But flight, as exemplified by Linson and Strunk may have been motivated by fear – fear that the system is not fair, and would be used as a tool for persecution.

Mancao, The Fixation with Affidavits, and the Lack of Physical Evidence

An affidavit is a written statement sworn to, before one who is authorized to administer an oath. Such authorized person may be a judge, a prosecutor (fiscal) or a notary public. The statement is usually a recollection of what transpired, as observed by the affiant (the person who makes the statement); or it is a statement of what the affiant did. It is, therefore, what is also termed as testimonial evidence (evidence in the form of statements of a witness). The only difference between an affidavit and oral testimony in court, is the fact that testimony in court can stand alone, while an affidavit needs to be affirmed in court.

Statements being a recollection of what transpired, or what was done, are subject to the ravages of time on memory, or the more pressing concerns of daily life. Some events are indelibly etched in our memory - a first kiss, the birth of a child, or the pain of losing a loved one; others are less permanent – a political science lecture, some passerby on the street, or what one wore nine days ago.

It is for that reason that testimonial evidence carries less weight compared to physical, or documentary evidence. By physical evidence, we mean fingerprints, DNA, bloodstains, and the like. Documentary evidence refers to contracts, birth certificates, bid documents, and other written material kept in the ordinary course of business.

Considering the diminished weight of testimonial evidence, the fixation of Philippine authorities on affidavits and other testimonial evidence is a puzzlement (apologies to author of “The King and I”).

The fixation on testimonial evidence is revealed in the Dacer-Corbito case, with regard to testimonies of Alex Dilloy et al, and the striptease affidavit of the current centerfold, Cezar Ochoco Mancao.

Forgotten in the mire of he said/they said, is the physical evidence, or the lack of it. The physical evidence consists of a few bones, which have tested negative for human DNA. Did Dacer have bulalo for dinner? Maybe, but where are his remains?

The line being peddled is that the flesh and bones have been burned beyond recognition, like ashes from a crematorium. This, the prosecution gathers, from the testimony of the Alex Dilloy y Buladas (note Buladas) that after strangulation, the bodies were placed on top of a file (sic – pile) of wood and some old tires and lit with gasoline (Direct Examination, Alex Dilloy, page 43 and 44, June 14, 2007).

The people of India, who have cremated their dead with firewood for centuries, are the experts on this matter. Their experts state that to burn an adult body completely, in open air, 400 to 600 kilos of firewood, logs, preferably, would be needed (http://www.sustdev.org/index.php?option=com_content&task=view&id=1969&Itemid=36). For the bodies of both Dacer and Corbito, then, one would need 800 to 1200 kilos. That is one two to tons of firewood (1,760 to 2,640 pounds); that is about as heavy as a Volkswagen beetle.

We need not even go very far. Anybody who has roasted a lechon on a spit will tell you that it takes a lot of wood to properly cook a lechon, so that there won’t be blood on the bones; let alone, char the pig beyond recognition. And if the fire were intense enough to grind the skull to ashes, the same heat should have melted the dental implants found by Dr. Fortun. Miraculously, however, the metal dental plates survived, which is the only means by which the victims were identified. Miraculously, too, one metal dental plate from each “victim”, survived the skull grinding heat (Letter of Raquel Fortun to Dir. Wycoco, April 11, 2001). The search by Dr. Fortun was conducted on April 7, 2001, six months after the bodies were burned on November 24, 2000.

That the firewood gathered in only a few minutes is not sufficient to char a body beyond recognition is proven in the case of People v. Alexio Lupango G.R. No. L-32633 November 12, 1981, “The evidence of the prosecution discloses that the victim, Teresa Vda, de lglesia, was burned in a fire that razed her house..” “The charred body of the victim Mrs. Teresa Vda. de Iglesia was recovered from the burned house and autopsied..”; and the remains were intact enough for the medico-legal to determine that the cause of death was fracture of the skull, prior to burning. In other words, despite the entire house having burned down, the body was not charred beyond recognition, nor were the skull and bones pulverized.

But the clincher for Senator Lacson and his men, ironically, is a case that then Senior Supt. Lacson lost in the Supreme Court.

In the case of Diosdado Jose Allado and Roberto L. Mendoza v. Hon. Roberto C. Diokno, G.R. No. 113630 May 5, 1994, Allado and Mendoza were accused of the heinous crime of kidnapping with murder, on the strength of an extrajudicial confession executed by Escolastico Umbal. Umbal claimed that the victim, Van Twest, was shot in the chest with a baby armalite, stabbed several times, and his cadaver burned into fine ashes using gasoline and rubber tires.

In its decision, the Supreme Court observed: “The Presidential Anti-Crime Commission (headed by Lacson) relies heavily on the sworn statement of Security Guard Umbal who supposedly confessed his participation in the alleged kidnapping and murder of Van Twest. For one, there is serious doubt on Van Twest's reported death since the corpus delicti has not been established, nor have his remains been recovered. Umbal claims that Van Twest was completely burned into ashes with the use of gasoline and rubber tires from around ten o'clock in the evening to six o'clock the next morning. This is highly improbable, if not ridiculous. A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust.”

The Supreme Court went further and held that: “To allege then that the body of Van Twest was completely burned to ashes in an open field with the use merely of tires and gasoline is a tale too tall to gulp.”

It is equally a tale too tall to gulp, that with the aid of some stray firewood, old tires, and coconut leaves, the skull and bones of Dacer and Corbito were pulverized. There being no evidence of their remains, or evidence that their bodies were completely destroyed, one cannot maintain a prosecution for murder.

In the case of Allado, the Supreme Court held that the absence of Van Twest's body renders the case without probable cause. It, therefore, issued a writ of prohibition prohibiting the RTC from further proceedings in the case.

Your move, Atty. Alex Avisado. Checkmate Raul.

Did Dumlao Recant?

Glane (not Glenn) Dumlao issued three affidavits in connection with the Dacer-Corbito case. The first was on June 12, 2001, the second on May 20, 2003, and the third on March 2, 2007. Many have said that the first linked Senator Lacson to the murder, that the second recanted that allegation, and that the third reaffirmed the first, thereby putting Lacson back into the suspect category. A careful reading of the affidavits, however, reveals that all three support each other, and the only conclusion that can be derived from them is that Lacson was not implicated by Dumlao.

The first affidavit reveals the following salient facts:

1. Michael Ray Aquino gave a “tasking” to Dumlao, to sniff around, ascertain the activities of Dacer, and if ever, steal documents or destroy them. These are found in the following statements:

a. "to conduct discreet background investigation…"(bottom paragraph page 1, handwritten affidavit)

b. "to surreptitiously enter the rooms and take whatever documents I can and also to monitor personalities/visitors of our subject" (top paragraph, page 2 handwritten affidavit).

2. The sniffing around is supported by the statements in the third affidavit, where Dumlao states: “My participation to conduct tactical interrogation at that time falls on the purview of regularity in the performance of my duty having been instructed by a superior officer P/COL AQUINO for a person involved in unseating a duly elected president.”

3. Dumlao was unsuccessful, so the “tasking” was shelved for a while, as Dumlao went to training (“schooling”) and later did other tasks (first two paragraphs, page 3 handwritten affidavit);

4. The tasking regarding sniffing around for info on activities by Dacer was not made known to Lacson until after the fact. This is seen in the following exchange:

Mancao: Clear na ba ito sa boss natin, kay 71?
Aquino: Sila na daw bahala sa kanya.

5. Somebody was to notify Lacson, after the fact. Lacson did not know about the “Special Ops” (first paragraph, page 4 handwritten affidavit);

6. Neither did Mancao know, until after the fact, as revealed by the following exchange:

Mancao: Noy, Ano bang Special Operations na ito?
Aquino: Kay kuwan yan, Mr. Dacer (first paragraph, page 4 handwritten affidavit).

7. Since there was no way to link Lacson based on the first affidavit of Dumlao, then it yields the conclusion that the statements of Dumlao in the “recantation affidavit” are true, that:

a. Dumlao was pressured to execute an addendum (paragraph 15, affidavit, May 20, 2003) linking Lacson, Mancao and Aquino to illegal activities (paragraph 3), which illegal activities were to include drug-trafficking, kidnapping, robbery/hold-up (paragraph 5);

b. Dumlao was moved to say: “P/DIR GUALBERTO was the dumbest police officer I have ever encountered. He wanted me to own up every killing that has been publicized and to point at SEN LACSON as the mastermind. He threatened to link me to all these cases if I do not cooperate.

c. Dumlao resisted the pressure;

d. The carrot and stick approach was applied on Dumlao - he was offered rewards, he was also threatened [drinking session with Berroy and Gen Alqueza (paragraph 13), an offer of a higher position (paragraph 18), threats from the dumbest police officer (Gualberto) and from Victor Corpus, facing a panel of bigwigs, comprised of Ronaldo Puno, Reynaldo Wycoco, Hernando Perez, Kermogenes Ebdane, Victor Corpus, Roberto Lastimoso, and Atty. Davila;

Clearly, therefore, the “recantation affidavit” was issued, not to controvert the first affidavit, but to put on record the pressures exerted on Dumlao, and to explain why “I flee my own country” (first paragraph, page 2, handwritten affidavit submitted to NJ Federal District Court).

The third affidavit neither affirms nor denies the statements of the first affidavit. It merely states that Dumlao’s best recollection of the events are contained in his first affidavit of June 12, 2001. If at all, it is a mere implied affirmation of the first affidavit.

Mancao, in his extradition case, initially intended to fight extradition, and filed a motion for habeas corpus ad testificandum, to compel the State of New York to produce the person of Dumlao in Florida, to testify to the fact that Mancao had no knowledge about the “Special Ops” regarding Dacer. The motion of Mancao, filed on January 9, 2009, cited the first affidavit of Dumlao. It was granted on the same day.

The hearing on the request for extradition was to be held on March 3, 209. Suddenly, Mancao seemed to have had a change of heart, and on February 23, 2009, filed a motion to release witness Dumlao from the previously issued writ of habeas corpus ad testificandum. On March 3, 2009, Mancao executed an affidavit of consent to extradition, which was signed by his Public Defender, to show that Mancao was assisted by counsel. The affidavit of consent was sworn to, before the Magistrate Judge herself.

Now comes an affidavit, which on its face, says that Mancao signed on February 13, 2009, and sworn to, before the Honorary Consul in Florida, Angelo S. Macatangay, M.D. The jurat states that Mancao “personally appeared” before Macatangay. The office of the Honorary Consul is at 1900 W Commercial Blvd. Suite 29 Fort Lauderdale, 33309.

Did Mancao appear there to swear to the affidavit? How? Mancao has been detained since November 20, 2008. He is not out on bail, because the US Attorney argued that he would be a flight risk.

The affidavit also states that Mancao was assisted by his Public Defender, Lopez. But there is no signature of Lopez on the affidavit, as appears on the affidavit sworn to before the Magistrate Judge.

Did Macatangay visit Mancao in prison on February 14, 2009, a Saturday? Did Lopez visit with Macatangay? That should be easy to verify by referring to the visitor’s logbook in the prison where Mancao is detained. On its face, it looks like Dr. Macatangay doctored the affidavit.

The foregoing shows that the Mancao affidavit is a dud. The Dumlao affidavits, read together, provide the smoking gun – smoking gun about the efforts to railroad a case.

Oh and by the way, there is the alternative view by writer Herman Laurel Tiu – that the remains recovered were not those of Dacer. True, dental tests were done, but there is an even better test, to determine the truth. DNA can be extracted from teeth. In fact, a tooth was used to derive the DNA of Kaiser Wilhelm II of Germany in connection with a paternity case (http://www.springerlink.com/content/7w7ewlajdjqdawmg/).

So the DNA of those teeth can be matched with the DNA of Karina Dacer.

Does the Constitution Allow the Two Houses of Congress to Vote Jointly?

These days, we hear the incessant chatter of the legal mercenaries (Sorry, luminaries) of the Administration stating that the Constitutional provisions on amendments are ambiguous, and therefore, require the interpretation of the Supreme Court. That is the reason, they say, for the drive to obtain a three-fourths majority to file a “test case” before the Supreme Court.

The case will test two alternative interpretations of the Constitutional provision that states that:

"Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention "[Art. XVII, Section 1.]

The first interpretation maintains that the three-fourths vote is to be derived by the two Houses of Congress voting separately. In other words, Congress may sit as a constituent assembly, if three-fourths of the Senate, AND three-fourths of the House agree.

The other interpretation states that the vote is taken jointly; that means that the three-fourths vote will be reckoned from the total number of Senators and Representatives of Congress. Because there are twenty-four Senators and 250 Congressmen, the total is 274. Three fourths of that total is 205. Even if it be presumed that all the Senators vote against the convening of a constituent assembly, a supermajority is still possible if 205 Congressmen vote in favor of a constituent assembly. They imply, therefore, that the participation of the Senators is not even necessary.

The advocacy for a joint vote stems from the fact that the Constitutional provision does not employ the phrase “voting separately”. This omission, according to Congressman Pablo Garcia (Gloria Arroyo’s John the Baptist), “was deliberate”, considering that in other provisions, the phrase “voting separately” was included. The omission, he opines, yields the interpretation that the Framers of the Constitution intended a joint vote of Congress.

The fawning Evangelist conveniently ignores the provision that states:

"The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it" [Art VII Section 18.].

It is clear from the foregoing, that if the Framers intended a joint vote, they would have so stated, as they did in the above provision. How then do we interpret the seeming ambiguity of the Constitutional provision on amendments?

What is the nature of the powers exercised?

A careful reading of the several provisions that require the Congress to vote separately, and obtain a supermajority, and the sole provision that requires a joint vote, would reveal the nature of the power exercised. From that analysis, we can determine whether or not the power to amend the Constitution is more akin to the several or to the single provision. If the amendatory power is of similar nature to the several provisions, then logic requires a similar procedure – a separate vote; if the amendatory power is kin to the sole provision, then the procedure should be similar to that sole provision.

First provision – Power to declare war.

The first provision requiring a separate vote refers to the power to declare war, which is provided as follows:

The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war [Art. VI Section 23. (1)].

Second provision – Power to override a Presidential veto.

The second provision which requires a supermajority obtained by the Houses of Congress voting separately, is the provision on the overriding of a Presidential veto. That provision states:

"Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it" [Art. VI Section 27. (1)].

Third provision – Breaking a tie between or among Presidential candidates.

The third provision requiring a supermajority of the Houses of Congress voting separately is in the selection of a President, when the votes of two or more candidates are tied. That provision provides:

"The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately." [Art VII Section 4, par. 5]

Fourth provision – Filling a vacancy in the Office of the Vice President.

The fourth provision requiring a majority of the Houses of Congress voting separately is in the selection a Vice-President when there is a vacancy in that Office. The Constitution provides for the nomination by the President, to be confirmed by a majority of the Members of both Houses voting separately.

"Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately" [Art. VII Section 9].

Fifth provision – Choosing between an ailing President and the Vice President.

The fifth provision requiring a supermajority of the Houses of Congress voting separately occurs when a choice must be made as to which person shall discharge the powers and functions of the President – the President, who by the declaration of the Cabinet is incapacitated, or the Vice-President. The making of that choice is reposed in the Congress voting separately, as follows:

"If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office "[Art VII Section 11, par. 4]

Sole provision requiring a joint vote.

The sole provision that provides for a joint vote of both Houses of Congress occurs when the President proclaims martial law, or the suspension of the privilege of the writ of habeas corpus. This is the only instance when the Constitution requires a joint vote to obtain a simple majority, and is provided as follows:

"The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it" [Art VII Section 18.].

Legislative power.

An observant reader would immediately see that the several provisions requiring the Houses of Congress to vote separately partake of the nature of (1) the exercise of legislative power, or (2) the delegated power of election. The first two refer to the exercise of legislative power, which has been defined as:

"The legislative power has been described generally as the power to make, alter, and repeal laws" (Yazaki Torres Manufacturing, Inc. v. Court of Appeals G.R. No. 130584 June 27, 2006).

Although the provision on war powers does not come within the “classical” definition of legislative power (the enactment of laws), it is a power reposed solely in the legislature, and therefore, part of the “legislative powers”. That is evident in the fact that the provision is located in the Article that establishes the legislature and confers its powers. Article VI starts with Section 1, which states that:

The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

It, thereafter, defines the structure of the legislature, its composition, the qualifications of its members, and confers its powers. The American Constitution, from which most of the provisions of the Philippine Constitution is sourced, is more precisely worded as follows:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Delegated power to elect a President or Vice-President.

The three other provisions requiring a supermajority with the Congress voting separately, refer to the power of the people to elect their leaders. That power is delegated to the Congress in these three instances:

1. In the event of a tie between two or among three or more candidates, the Constitution delegates to the Congress, the power of the people to elect which of the tied candidates shall govern;

2. In the event of a vacancy in the Office of the Vice-President, the Constitution delegates the power to elect, in the President (nominating) and the Congress (confirming); and

3. In the event of incapacity of the President, as reported by his Cabinet, the Congress may elect as between the ailing President and the Vice-President, who shall govern.

It is clear from the foregoing, that the Constitution has defined how a vote is to be obtained, when the legislative power is exercised. It has also defined how a supermajority is obtained, in the exercise of legislative power – the supermajority must be obtained from each House of Congress.

The provision we are construing is clearly the exercise of legislative power, as that phrase is defined – the making of laws. The only difference between the enactment, or amendment of statutes, and the amendment of the Constitution lies in the fact that the amendment of the Constitution requires the ratification of the People – a requirement not imposed in the enactment of statutes. That interpretation finds further support in the text of the Constitution itself, which states that:

"The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum."

The provision states that the legislative power is vested in the Congress – except to the extent reserved to the people by way of initiative. That implies that amendment of the Constitution is also a species of legislative power; but amendment by initiative is reserved to the People. Amendment by way of a constituent assembly is reposed in Congress, or may be reposed by Congress in a Constitutional Convention.

It has been held that “Congress need not repeat itself, restating in each subsequent enactment an intention Congress thought it clearly expressed once already." [US v. Eric V. Johnson (22 F.3d 106, 6^th Circ., 1994)]. That doctrine, it is submitted, applies with equal force when it is the Sovereign People who have expressed their intent. Since the intent has already been expressed in earlier provisions of the Constitution, there is no need to repeat the intent in the provisions on amendment. The phrase “The Congress, upon a vote of three-fourths of all its Members”, therefore, must be interpreted to mean a three-fourths vote of each House voting separately.

It may be argued, however, that if the People need not repeat themselves in defining how legislative power is exercised, and how a supermajority is obtained, then why did it repeat itself in the several provisions we enumerated above? There is no repetition, as we detail below.

The power to declare war is not legislative power, if by that, is meant, the power to make laws. The war power is a separate power reposed in the legislature; it is for that reason that a definition of how the vote is to be taken was made.

The other instances where a supermajority is required, with the Congress voting separately, are occasions where the power exercised is not legislative; they are occasions when the power of the people to elect their President or Vice-President is delegated to the Congress.

Each of the five provisions requiring a separate vote are distinct instances of the exercise by Congress of its powers. There is no repetition at all.

Fact-finding requires a joint vote.

In stark contrast, the sole provision which requires a joint vote is not in exercise of legislative power. The Congress, in that instance is engaged in fact-finding – whether or not there is an emergency to justify the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. This is the only instance where the bar to concerted Congressional action has been lowered – the vote is taken jointly, and a mere simple majority of that joint vote is taken.

This lowering of the bar is founded on a historical basis.

When Marcos proclaimed martial law, he incarcerated most of the Senators and Congressmen. Senators Salonga, Aquino, Tañada, among others, were incarcerated, so that the Senate was practically decimated. It was, therefore, impossible to obtain a quorum in the Senate, and perhaps, even in the House of Representatives. This is the reason for the lowering of the bar in the case of the proclamation of martial law, and the power of Congress to revoke said proclamation.

The foregoing clearly shows that the amendment process, being an exercise of legislative power, requires the Congress to obtain a supermajority by voting separately. The contrary interpretation is contrived erudition.

They say that necessity is the mother of all invention. Yes; and the need to cling to power has proven to be the mother of this contorted sophistry.

The letter of the Constitution, we submit, must be interpreted guided by its spirit. That spirit, finds flesh in the structure ordained – a bicameral Congress. The spirit, therefore, is bicameralism, and every act of Congress requires the participation of both Chambers; and the reckoning of a supermajority requires that each House vote separately.

The case is not ripe for adjudication.

There may, however, be no need for the Supreme Court to decide this question, even if the contrary interpretation is upheld, and the Congressmen gather the requisite number of votes.

If the majority vote of the Congress is to be appreciated with both Houses voting jointly, then it must follow the procedure of the sole provision providing for such joint vote. That provision requires that the Congress be in joint session assembled. True, the provision does not explicitly state so, but the provision requires the President to submit his or her report on martial law to the Congress in person or in writing. Whenever the President delivers a report in person, like the State of the Nation Address, the Congress is required to assemble in joint session.

Since the Senate has not agreed to a joint session, no valid vote can, or has been taken. There is, therefore, no controversy, and the issue to be presented by Congressman Villafuerte to the Supreme Court, is premature. The issue presented being non-justiciable, the only resolution in order is a dismissal.

The Impeachment Complaint - The Standard of Sufficiency in Form and Substance

The House Committee has already ruled that the impeachment complaint is sufficient in form. It must now determine whether or not it is sufficient in substance, to comply with the requirement that it be sufficient in form and substance. But what exactly does the phrase “sufficient in form and substance” mean?

Construing this phrase in a criminal case, the Supreme Court, through the venerable Justice JBL Reyes held that “This means that the complaint or information must aver all the elements of the offense charged..” (Pua Yi Kun v. People of the Philippines G.R. No. L-26256, June 26, 1968). That is all that is required – allegations, which, if proven true, will support a conviction of the offense charged. Evidentiary sufficiency only becomes the issue at the trial.

That interpretation is in agreement with the American interpretation. In the case of US v. Norris (281 US 619), Norris and one Kerper were indicted (information in the Philippines) by the federal grand jury (Fiscal in the Philippines) for the Eastern District of Pennsylvania, charged in two counts with conspiring unlawfully to transport, and cause to be transported, from Philadelphia to New York, certain shipments of intoxicating liquor, in violation of the National Prohibition Act of October 28, 1919. The indictment was deemed sufficient in form and substance.

The phrase “sufficient in form and substance” also has been used in the context of non-criminal cases.

In case of “In Re: Petition For Correction Of Entry In The Birth Record Of Cindy Grace Z. Tomes” before the RTC (Branch 42) of Virac, Catanduanes (Order, April 28, 2008) “A Petition was filed on March 27, 2008, praying that after due notice, publication and hearing, this Court orders (sic) the correction of petitioner’s gender in her birth certificate, from male to female.” That petition was deemed sufficient in form and substance.

In the case of El Gobierno De Las IslaS Filipinas v. Tomas Abadilla et. al. (Court of Appeals, CA-G.R. CV No. 76140), a Motion for the Issuance of a Decree Number of Registration, in connection with a land titling case was filed. Finding the motion sufficient in form and substance, the RTC of Lucena City set the case for hearing.

In the case of Sesbreño v. Court of Appeals, Province of Cebu et. al. (G.R. No. 161390), the Supreme Court, in sustaining an appeal to the Court of Appeals, held: “However, despite its deficiencies, respondent's appellant's brief is sufficient in form and substance as to apprise the appellate court of the essential facts and nature of the case, as well as the issues raised and the laws necessary for the disposition of the same.”

In the case of People of the State of Illinois v. Joseph Marino, the Appellate Court of the State of Illinois held that: “In any civil action, if the court finds the complaint "insufficient in substance or form" or that it does "not sufficiently define the issues," it may sua sponte strike the complaint, notify the plaintiff that it has done so, and then order the plaintiff to either file a "fuller or more particular statement" or prepare other pleadings” (quoting Shelstrom 345 Ill. App. 3d at 177)

From the foregoing cases, involving (1) a criminal offense, (2) a request for a change of entry in the Civil Registry, (3) a request for the issuance of a land title, (4) the filing of an appeal, and (5) the filing of a petition for mandamus, it is clear that the phrase “sufficient in form and substance” refers to the sufficiency of the allegations for purposes of invoking the jurisdiction of the court, or reviewing body. If (1) a criminal indictment alleges the elements of the offense, (2) if a request for a change of entry in the civil registry alleges the entry sought to be changed, (3) if a request for the issuance of a land title alleges the subject piece of property and the basis for the claim to a title, (4) if the appeal alleges the errors sought to be corrected by the appellate court, and (5) if the petition for mandamus alleges matters on which the court may exercise jurisdiction (the word is “cognizable”), then the complaint is said to be “sufficient in form and substance”.

The question to be asked, therefore, is: Does the impeachment complaint allege matters cognizable by the House, for purposes of invoking its power to conduct an investigation? Does the complaint allege impeachable offenses?

In the impeachment proceedings against Richard Milhous Nixon, the following were some of the charges made against President Nixon:

1. Negligently failing to supervise the collection, and permitting illegal use of campaign funds in his 1972 campaign (Bolante and the fertilizer scam?);
2. Illegally impounding $40 million in funds appropriated by Congress for various domestic programs (Not releasing pork barrel to the opposition legislators? Distribution of 500,000 to Governor Panlilio et al?);
3. Usurping the war-making and appropriation powers of Congress by authorizing the secret bombing of neutral Cambodia and falsification of military reports (MOA-AD? Usurpation of the power of the People and Congress to amend the Constitution?).

The above charges were deemed sufficient to trigger the exercise of the authority of the House to conduct an inquiry into whether or not some basis exists, to impeach President Nixon. Evidentiary substance was never an issue in invoking the authority of the US House of Representatives, for as representatives of the People, the House conducted a full investigation to determine if there is evidence to proceed to a trial by the Senate. The US House, in effect, aided the people in preparing to present its case before the Senate. Compare this to the prejudgment of the Philippine House, and the incessant chanting of the mantra that it is a numbers game.

The authority of the House needs to be invoked, for the House has the authority to subpoena witnesses and documents. That power is not available to the complainants, who are filing in behalf of the people. It is the duty of the House, as representative of the People, to ascertain the truth, not to defend an incumbent. It is for that reason that there were bipartisan efforts from the Republicans and Democrats in the impeachment of William Jefferson Clinton, and in the impeachment inquiry of Richard Milhous Nixon (cut short by his resignation).

It is clear from American precedents, that the preferment of an impeachment complaint, sufficient in form and substance, should trigger a full investigation, with House exercising its full authority to subpoena witnesses and documents. That investigation should yield a more informed basis for deciding whether or not to present Articles of Impeachment to the Senate for trial.

It may be argued, that the American practice is not binding, nor should it guide the Philippine legislature. That much was stated by the Supreme Court in the case of Francisco v. the House of Representatives, where it held that:

Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned.

Curiously, in justifying its ruling that the word “initiate” means the filing of the complaint before the House, and not the filing of the Articles of Impeachment before the Senate, the decision quoted liberally from the statements of Commissioner Maambong, to indicate the “intent” of the Framers of the Constitution. The decision conveniently ignored the following statements:

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 (bold and underscoring by the Supreme Court; blue font, mine).

If we follow the reasoning of the Supreme Court, that the intent of the Framers of the Constitution is revealed by the statements of Commissioner Maambong, then we must conclude that the procedure to be followed must be “in keeping with the uniform procedure of the House of Representatives of the United States Congress.” The sufficiency in form and substance, therefore, of the Impeachment Complaint, requires that the House throw its entire weight and authority into the conduct of a full investigation to determine the truth regarding the allegations of the Impeachment Complaint.

Not only does this require that the House listen to the evidence, the House itself, in the course of its investigation, must use its subpoena power to gather the evidence (documents and testimony). Thereafter, it must evaluate said evidence, to determine whether or not to prefer Articles of Impeachment before the Senate. To do less is to shirk from its responsibility, and invite the suspicion that it is a mere old boys’ network; that it exists to protect a party-mate against the people, instead of protecting the people from the misconduct of one of its servants.