Bernas' Column

Sounding Board : Too late the hero

Fr. Joaquin G. Bernas, S.J.
Inquirer News Service

I HAVE not been an avid fan of the hearings on impeachment, but friends do entertain me with highlights. One such highlight is the debate among members of the pro-impeachment group on when to sign up in support of impeachment. Those in the up-front group have already signed and they are inching toward the magic 79. Another group, I understand, plans to show their hand only during the roll-call vote in plenary.

I tend to agree with those who say that, if the number 79 is not reached before the plenary vote, their cause will have been lost. The history of past impeachments shows that there is little interest in coming to the plenary session when the vote has been lost in the Committee. Absences then abound. Therefore, whatever noble reason the second group might have, they may be headed toward a case of "too late the hero."

Another update I got is that there's a claim that my column last Monday contradicted what I said when I appeared as amicus curiae during the hearing of the Davide impeachment. At that time I said, and the Court agreed, that an impeachment proceeding is deemed initiated when a complaint has been filed and transmitted to the Committee on Justice and that, therefore, another complaint after that would violate the one-year ban.

Indeed, that is what I said. But let us look at the context of that statement. There was a first complaint. This first complaint was held to be sufficient in form on Oct. 13, 2003, but it was dismissed for insufficiency of substance on Oct. 22, 2003; it was then awaiting referral to the plenary. The second complaint, however, was filed on Oct. 23, 2003, or the day after the first had been dismissed for insufficiency of substance. In other words, the first "proceeding" was already well on the way when the second complaint came. Clearly, therefore, the second complaint could not ride on the first proceeding because the first proceeding had already gone too far. Malayo na ang tren. (The train has left.) Thus, the second complaint would have required a new and second prohibited proceeding. So, indeed, the Court held.

The situation in the current controversy is different. On different days, the Lozano complaint, the "amended complaint" and the Lopez complaint were filed. The substance of all three complaints came under the umbrella of "betrayal of public trust." As I indicated last Monday, the phrase betrayal of public trust was meant by the Constitutional Commission to be a catch-all phrase that could encompass many elements. All three were referred to the Justice Committee on the same day. Since they all involved betrayal of public trust, they could be combined as one to be tackled in the same proceeding. Thus, only one proceeding was initiated when the three were referred to the Committee.

I was also told of the warm eloquence displayed in attacking my use of the phrase "bill of particulars." If I had not used that phrase but had simply said that the amended complaint was nothing more than a specification of "betrayal of public trust," would eloquence also have been vented on me? Of course, because specifics were the dreaded monster!

I grant that the phrase "bill of particulars" is normally used only in civil or administrative cases. A respondent in a civil or administrative case asks for a "bill of particulars" or specifics in order to be able to prepare a proper response to a complaint. A defendant in a criminal case, of course, would not ask for a bill of particulars. He would rather ask for dismissal on the ground of defective information. An impeachment case, however, cannot easily be categorized as civil, criminal, or administrative. It is sui generis. But what is to prevent people involved in an impeachment debate from borrowing the phrase "bill of particulars" to communicate what they mean? It means details, specifics, chapter and verse, and other synonyms which can be found in Roget's Thesaurus. But then, as I said, this is precisely what the defenders of the President dread. It is not the phrase "bill of particulars" they are objecting to but the complaint's content.

Again, I must say that this is not at all surprising. Impeachment is a political process. For that reason the responsibility for it has not been given to a court characterized by cold neutrality but to a political body. A political body can be intensely partisan. This fact explains 95 percent of what has been happening in the Committee hearings.

Along every step in an impeachment process, a president and his or her men get to work. The president's power of persuasion is not inconsiderable. The essence of the president's persuasive task is to convince the object of his or her courtship that what he or she wants is what they too should choose for their own sake. Political animals always consider what is good for their own sake. I am, therefore, not surprised that the opposition is waging an uphill battle.

The presence of an impeachment process in our and in the American Constitution is symbolic of the commitment to the rule of law. It is the consensus of most historians that the attempted impeachment of Richard Nixon was a shining moment in the nation's history. In the final analysis, the process that forced Nixon to resign from the presidency was a bi-partisan effort. (And Nixon could obtain pardon because, under the American system, pardon can be given before conviction. Not so in our system!)

Unfortunately, impeachment as a symbol of the rule of law does not always manage to reflect what it symbolizes. What is going on now in the justice committee definitely does not.

(P.S. Is the surprise declaration of a Monday holiday a ploy to prevent the collection of more signatures in a Monday session?)