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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

Location: San Juan, Metro Manila, Philippines

Thursday, August 25, 2005

Who Created Chaos?

One of the most common though not unexpected criticisms of this House impeachment proceeding is the extreme prevalence of lawyers which greatly contribute to the utter confusion and inanity in the House. Apart from the lawyer-solons, there are lawyers who appear before the ANC News and give their “expert” handle on the matter. And of course, we have Fr. Joaquin Bernas, S. J., whose legal conclusions are ubiquitously mentioned in legal fora, from within the House and without.

In today's blog, I would like to discuss some of the opinions these lawyers have mentioned or things that I have read and why I respectfully disagree with some of their held opinions. The critique is purely academic with no intent to demean my fellow brethren in the bar:

(a) Last Tuesday afternoon, ANC News interviewed a fellow Atenean and a fellow FEU law professor (though I must admit never having seen him since I teach only Constitutional Law every Tuesday night) by the name of Atty. Adel Fadel Tamano. In that interview, one of the things that struck me was when he mentioned that GMA’s then lead counsel, Atty. Pedro Ferrer’s Motion to Strike the Amended Complaint is not allowed under the 13th House Rules of Impeachment Proceeding because it is similar to a Motion to Dismiss which is a prohibited pleading under the Rules. I could not agree with my pañero.

First of all, a Motion to Strike Out a pleading is not similar to a Motion to Dismiss. Under Rule 16, Section 3 of The 1997 Rules of Civil Procedure, if a motion to dismiss is acted favorably, the court may dismiss the case or may order the amendment of the pleading. On the other hand, if a Motion to Strike is favorably acted upon, the court cannot dismiss the case, it merely strikes out from the records the excised pleading. When Atty. Ferrer filed his Motion to Strike Out the Amended Complaint, it was without the intent of dismissing the case because that is not allowed but rather, to remove the Amended Complaint from the consideration of the Justice Committee so that the only complaint to be resolved would be the sufficiency in form and substance of the original Lozano complaint.

Speaking of prohibited pleadings, the rule is that only pleadings specifically enumerated are prohibited. And under the House Rules, only a Motion to Dismiss is prohibited. The Rules are silent on a Motion to Strike Out a pleading and therefore, not being a pleading specifically prohibited, Atty. Ferrer’s motion did not violate the 13th House Rules.

(b) The second opinion I chose to comment on is found in John Nery’s blog, the Newsstand, specifically, “Two Questions”. In there, he narrated the comment of our FEU law dean, Andres Bautista, wherein the latter suggested that for the amended complaint to be valid, the opposition must secure the consent of both the complainant and the endorser, Rep. Marcoleta.

I could not agree with my dean’s comments. First of all, the endorsement by a congressman is only required if the impeachment complaint is filed by a citizen or a non-member of Congress. The reason behind this is one of courtesy where a stranger, i.e., a citizen, cannot forced himself into the House but must be let in by a member of Congress. Beyond this congressional decorum, the endorser serves no other purpose. That is quite evident in the terse language of the endorser’s role in the 1987 Constitution.

Secondly, to impose upon the opposition the burden of securing the consent of the endorser for the validity of the amended complaint is unfair. Suppose there are 26 endorsers of the original impeachment complaint, and half of them did not give their assent to the amended complaint, following the dean’s formula, their disapproval will invalidate the amended complaint. It does not seem right, does it?

Let us suppose further that in spite the non-assent of half of the 26 endorsers to the original complaint, the opposition was able to garner the 79 signatures on the amended complaint, will the amended complaint still be dismissed because of the lack of assent of the 26 original endorsers? As you can see, the dean's suggestion only contributes to the ongoing legal conundrum. Hence, my disagreement.

(c) We come to my favorite Atenean and my second most admired Jesuit (next to Fr. Herbert Schneider, S. J.). In one of his Inquirer columns, Fr. Bernas considers the amended complaint as a bill of particulars. If by bill of particulars, he implied that the Lozano complaint is unclear, then in general parlance, he may be right but procedurally and substantively, he is in error. I dare not think that the eminent Fr. Bernas could have knowingly applied the term “bill of particular” loosely without inviting criticism from legal circles.

For one thing, a bill of particulars is invoked by the defendant if in his judgment, the complaint is vague or ambiguous. His recourse is to file a motion for a bill of particulars. On the other hand, if a complainant feels his original complaint is ambiguous, he can amend his complaint and substantively enlarge the scope of his complaint before an Answer is filed without requiring approval from the court. But after an Answer has been filed, the complainant must ask the court’s permission to allow him to amend his complaint substantially.

In Fr. Bernas’ assessment, the amended complaint is a bill of particulars. But based on the rules of civil procedure and the action taken by Atty. Pedro Ferrer, Fr. Bernas’ conclusion is wrong.

The fact that GMA filed an Answer showed that either (a) she does not consider the Lozano complaint inherently ambiguous that would require a bill of particulars; or (b) the Lozano complaint is heaven’s left handed gift to the president that filing an answer will preempt the substantial amendment of the original complaint. In either case, Fr. Bernas is mistaken to describe the amended complaint as a bill of particulars. That is like calling a rooster a hen.

There are still other comments that require further elucidation. By no means is this Nestor Torre's boob tube booboos. This exercise is meant to emphasize the fact that lawyers’ opinions, no matter how well researched or argued, are not carved in stone and therefore, must be subjected to further refinements. And hopefully, in that process, non-lawyers among us will move from a sense of awe and surrender to a position of inquisitiveness or even defiance.

For just as gold is tested by fire, so must our legal opinions be refined through the cauldron of public opinion and discourse. That goes for Fr. Bernas and other legal commentators, and that certainly goes for this blawg as well.


Anonymous Anonymous said...


Dapat mag-appear kayo sa ANC. The bloggers should discuss their views in a wider audience. Very good legal analysis.

4:02 AM  
Anonymous mlq3 said...

I second the Anonymous motion.

4:19 PM  
Anonymous Anonymous said...

hi edwin,

forgive the naiveness of my question - if Lozano can amend his complaint substantially after asking the court's permission to allow him, wouldn't it be simpler if the opposition just talked and collaborated with him instead of filing their amended complaint? then we wouldn't have all these talk about which complaint to consider, no prejudicial questions to delay the impeachment.

4:33 PM  
Anonymous edwin said...

I agree with that proposition as long as it is not a mandatory requirement.

John Nery of Newsstand also posits the same thesis that the opposition should have just discussed it with Marcoleta and get his consent so there wont be any prejudicial questions to talk about and I agree that would have abbreviated the discussion on technicalities.

But if consent becomes a condition precedent or an essential requisite before the amended complaint becomes valid, then that would be an unfair burden on the movants because that is not required by the Constitution.

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