Sounding Board : Betrayal of public trust

First posted 11:52pm (Mla time) Aug 21, 2005
By Fr. Joaquin G. Bernas, S.J.
Inquirer News Service

THERE is a battle royal going on as to which impeachment complaint the Committee on Justice should take up.

The line of defense being put up by the President's lawyers is that only Oliver Lozano's complaint should be entertained because anything after Lozano's complaint would be a different second or third complaint prohibited by the Constitution. The Constitution says that only one impeachment proceeding against a respondent may be initiated within one year. In other words, the President's lawyers equate "complaint" with "proceeding."

Let us look at the main pillar of Lozano's complaint. He bases it on "betrayal of public trust." The example he gives of betrayal of public trust is the phone call made to an official of the Commission on Elections, a phone call which the President has admitted with public display of compunction, and for which she confessed "lapse in judgment." And since several phone calls were involved, she as much as admitted multiple lapses in judgment.

But is that all that betrayal of public trust means? Is it limited to one example, or can it cover a multitude of other sins? The President's lawyers seem to be saying that Lozano, having given one example, may not give more. Such a stance is worse than just a lapse in judgment; it is an attempt to water down an offense solemnly enshrined in the Constitution.

We must look to the history of the phrase "betrayal of public trust" as it is now found in the 1987 Constitution. It is a phrase not found in the United States Federal Constitution whence our impeachment system originated. It is not found in our 1935 Constitution either, or in the 1973 Constitution. But the 1973 Constitution added "graft and corruption" as another ground for impeachment in order to tighten the screws on misbehaving public officers. Not content with previous texts, however, the 1986 Constitutional Commission added "betrayal of public trust" as another ground for impeachment. Evidently, they wanted to make the screws even tighter. What did the 48 commissioners mean?

Commissioner Ricardo Romulo, in response to a query from Commissioner (later Supreme Court Justice) Florenz Regalado, said that the phrase "betrayal of public trust" was meant to be a catch-all phrase to cover any violation of the oath of office. Commissioner Rustico de los Reyes, who was responsible for the insertion of the screw-tightening phrase, said that it referred to all acts, even if not punishable by statute as penal offenses, which render the officer unfit to continue in office. He enumerated "inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute." To which Romulo added "obstruction of justice." Expressly excluded, however, were "profanity, obscenity, habitual drunkenness while performing official duty"-perhaps, in the belief that these are understandable macho vices!

Significantly, Commissioner Blas Ople, who had sought to add "manifest and gross disregard of the popular will" as another ground, withdrew his amendment after the Committee explained that such addition would in fact narrow the grounds for impeachment by requiring that the offense be gross. Moreover, Commissioner (former Chief Justice) Roberto Concepcion cautioned that additional particularization would have the effect of weakening the provision under the principle expressio unius est exclusio alterius.

To further understand the import of "betrayal of public trust" as a screw tightener, it is important to compare it to how the 1986 commissioners understood "culpable violation of the Constitution." The accepted view in the Commission was that "culpable violation of the Constitution" implied "deliberate intent, perhaps even a certain degree of perversity, for it is not easy to imagine that individuals in the category of these [impeachable] officials would go so far as to defy knowingly what the Constitution commands." Moreover, as Commissioner and now Chief Justice Hilario Davide observed, "betrayal of public trust," as already explained, required much less than culpable violation of the Constitution and, in effect, already included everything in the other enumerated grounds for impeachment!

Having seen the broad meaning of "betrayal of public trust," we next look at what the Constitution prohibits. It prohibits the initiation of more than one "impeachment proceeding." It does not necessarily prohibit more than one complaint. More than one complaint would be prohibited only if the multiple complaints would require more than "one proceeding." But if they can be logically and conveniently combined into one proceeding, there would be no violation of the Constitution.

In the current controversy, the so-called "amended complaint" and the Lopez complaint, both transmitted on the same day to the Justice Committee together with the Lozano complaint, are nothing more than "bills of particulars" to accompany the Lozano complaint. They both elaborate on the one constitutional offense of "betrayal of public trust." For constitutional purposes, therefore, what is being initiated is only "one proceeding involving one complaint but with an extended bill of particulars."

I can understand, however, why the President's defenders argue the way they do. They must realize that if the "bill of particulars" is elevated to the Senate, the President will be tarred and feathered and be made to squirm. I guess we must bemoan the conclusion that the presidential defenders and their client do not wish to face the music.