THE confident wisdom is that aside from being immune from lawsuit while in office, President Rodrigo Duterte enjoys the tacit support and protection of Ombudsman Conchita Carpio Morales because of close family ties. DU30’s daughter Sara, who is the mayor of Davao City, is married to the son of the Ombudsman’s extended family, and the Ombudsman part of the mayor’s.
Despite this, PDU30 is said to be sorely disappointed with Justice Carpio Morales, because of her alleged coziness to the “yellows”—the former members of the Aquino administration. He has, therefore, reportedly given the go-ahead for the filing of an impeachment complaint against the former SC associate justice.
Betraying the public trust
The recently ubiquitous Volunteers Against Crime and Corruption (VACC) is reportedly poised to file the impeachment complaint, citing betrayal of public trust on several counts. This includes:
The Ombudsman’s alleged failure to act promptly on complaints and dispose of cases without inordinate delay—the disposal rate of cases for 2016 is a meager 52 percent;
Her allegedly undue bias in favor of “yellow” personalities, against whom charges have been routinely dropped, while opposition personalities like former President Gloria Macapagal Arroyo, former Vice President Jejomar Binay, his wife and former mayor Dr. Elenita Binay, their son and former mayor Junjun Binay, Senators Juan Ponce Enrile, Jinggoy Estrada, Ramon Revilla Jr., Rep. Prospero Pichay and others were prosecuted and, in many instances, jailed; and
Her allegedly extraordinary effort to shield B. S. Aquino 3rd from prosecution—she cleared him of any accountability in the constitutionally outlawed P149-billion Disbursement Acceleration Program (DAP) funds, which he used to bribe Congress in order to impeach and remove the late Chief Justice Renato Corona, and imposed a ridiculous fine equivalent to three months’ pay on the architect and implementer of the scheme, former Budget Secretary Florencio Abad.
The grounds enumerated in the Constitution include culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. The gravity of the alleged offense is the first thing that strikes us, but what matters ultimately is the resolve of the prosecution to prosecute and convict the respondent. In the Corona impeachment, the prosecution started with eight articles of impeachment, then dropped five for lack of evidence, but ultimately focused on only one which, to a number of lawyers, did not constitute an impeachable offense. This involved alleged discrepancies in his statement of assets, liabilities and net worth, which the law allows the filer to correct his mistakes. Still, Corona was convicted and removed, instead of being allowed to correct his mistakes.
One way to resolve political conflict
It won’t be the first nor the last time the impeachment process will be used to resolve a political conflict. In 2011, the pro-Aquino House of Representatives impeached Ombudsman Merceditas Gutierrez, after the House had failed to do so in 2009, for allegedly failing to act on certain charges against Aquino’s political pet peeves. However, Gutierrez resigned before she could be tried by the Senate, which alone tries and decides all impeachment cases. It was the second time in 10 years that Congress had used its impeachment power to remove an impeachable official without actually completing the process. In 2001, President Joseph Estrada was removed in a judicially assisted coup after the prosecution walked out of the Senate impeachment trial and took their case to the streets.
Estrada stepped down after his Cabinet and the Armed Forces of the Philippines withdrew their allegiance and support. Accused and found guilty of plunder, he was then jailed and pardoned by President Arroyo whom President B. S. Aquino 3rd later prosecuted and jailed. This came after Aquino bribed members of Congress to impeach and remove Corona for having, among other things, been close to Arroyo, and ruled against Hacienda Luisita, Cory’s family’s sugar estate in Tarlac. Cory had earlier exempted her own hacienda from land reform when she was revolutionary President, but the Corona Court finally awarded the rights to the hacienda to its workers during B.S.Aquino 3rd’s watch.
Morales played a stellar role in the Corona affair. On June 30, 2010, she swore B. S. Aquino 3rd into office as the 16th Filipino president (counting from Emilio Aguinaldo of the First Philippine Republic) after he refused to be sworn in by Corona just as his mother had refused to be sworn in by the Chief Justice under Marcos as revolutionary President. She took her oath before Associate Justice Claudio Teehankee Jr. instead. One year later, B. S. Aquino announced Morales’s appointment as Ombudsman during his State of the Nation Address. At Corona’s impeachment trial, Morales testified against her former chief, citing confidential bank records directly accessed by her office.
From prosecutor to prosecuted?
Now the shoe is on the other foot. Should the reported VACC initiative prosper, Morales would find herself at the receiving end. But this is not likely to be the main event. The real combat will be fought between DU30 and Aquino’s forces after Carpio Morales will have been removed—if indeed she is removed—and a new Ombudsman installed. Although DU30 has not said anything about the impeachment move, VACC-related sources say Malacañang is fully behind it.
The move on Morales is seen as preparatory to going after Aquino for his unpunished offenses, which include the massive diversion of DAP funds into illegal projects, including the bribery of Congress to railroad the RH Law and remove an unwanted Chief Justice. An incipient modus vivendi between DU30 and Aquino appears to have been washed out by unverified but insistent reports about the Liberal Party trying to escalate the process of presidential succession in favor of Vice President Leni Robredo whose legitimacy is under question before the Presidential Electoral Tribunal or the Supreme Court en banc. The LP apparently wants a presidential succession to preempt a PET decision on the electoral protest by former Senator Ferdinand (Bongbong) Marcos Jr.
At the same time, there are forces within the DU30 government, led preeminently by Cabinet Secretary, NDF vice chairman, and Kilusang Pagbabago chair Leoncio Evasco Jr., who would like to see the electoral protest and the constitutional line of presidential succession simultaneously extinguished by a simple declaration of a revolutionary government. This pipe dream of DU30’s communist partners would simply abolish the government. Unless that happens, DU30 cannot afford to underestimate Morales. He should learn from Corona’s or his lawyers’ mistake.
Not powerless to strike back
Analysts believe Morales has her own options. She could, for one, cause a defective impeachment complaint to be filed against her before anybody else does. Once it is dismissed for being insufficient in form and in substance, she could no longer be subjected to any impeachment complaint for a period of one year. This is consistent with the ruling in Francisco v. House of Representatives, which says that after an impeachment complaint has failed to prosper in the House, no other impeachment complaint may be filed against the same official for a period of one year. Morales wrote this ponencia in 2003 and it saved then-Chief Justice Hilario Davide Jr. from certain impeachment. President GMA used the same ruling effectively to outsmart her political enemies.
Plain readers of the English language regard this ruling as an ingenious attempt to provide a creative interpretation of the Constitution, in order to nullify the complaint filed by Congressmen Gilbert Teodoro and Felix William Fuentebella against Davide, which to many lawyers, was an open and shut case. A previous complaint filed by former President Estrada had failed to prosper, so there was no previous impeachment case or proceedings to talk about; but this was used to declare that the Chief Justice could no longer be subjected to an impeachment complaint because of a previous impeachment “case.”
Just to end this brief critique, the Constitution provides that the House of Representatives shall have the exclusive power to initiate all cases of impeachment; the Senate shall have the sole power to try and decide all cases of impeachment; and no impeachment proceedings shall be initiated against the same official more than once within a period of one year. It is the House, not any petitioner, that initiates an impeachment case, as distinguished from a mere complaint. And the House initiates it when it transmits the Articles of Impeachment to the Senate for trial. Until that happens, the complaint filed by a petitioner is just a complaint, not a case. Thus, since Estrada’s complaint had failed to develop into a case, there was no bar to the Teodoro-Fuentebella complaint becoming one.
The Carpio-Morales ponencia, however, interpreted the provision to mean that Davide, having been subjected to a failed impeachment complaint could no longer be subjected to an impeachment complaint, which had the support of the required number in the House. Thus, on the basis of this ruling, all that lawyer Oliver Lozano had to do was to file an insufficient complaint against Mrs. Arroyo a few years later to enable her to avoid an honest-to-goodness impeachment complaint for an initial period of one year.
A fallback position
This option is now open to Justice Morales. Will she make use of it? If she does, before VACC files its intended complaint, she’d be home free for the next 12 months. But some sources suggest that she might decide to fight it out by some other means. She need not be on the defensive, these sources argue; she could take the offensive by raising some of the issues that have been raised earlier by the Catholic bishops, by Senator Leila de Lima, who is now under detention, or by two self-confessed members of the so-called Davao Death Squad, Edgar Matobato and Arthur Lascañas.
These sources believe Morales has the legal personality and the necessary character to bring the extra-judicial drug killings to the International Criminal Court at The Hague, if she so desires.
And that may be where she is heading. I dare not imagine how DU30 would react if and when something like that happens. Just listen to him now. But I am not prepared to underestimate Morales, nor to discount anything. The best and the worst are yet to come.