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Law issues roil oust Binay bid

Questions raised if Binay’s acts prior to VP post impeachable

THE National Unity Party said Thursday it believes Vice President Jejomar Binay can be impeached for acts committed before he assumed his office in 2010, but this view was rejected by House Speaker Feliciano Belmonte Jr. and an expert on constitutional law.

“An impeachable official who did not commit any impeachable offense during his time in office can still be held accountable for offenses committed before assuming his present office,” said Dasmariñas City Rep. Elpidio Barzaga Jr., head of the NUP, which is allied with the ruling Liberal Party.

Binay
But Belmonte Jr. and lawyer Harry Roque Jr., who teaches Constitutional Law at the University of the Philippines College of Law said the impeachable offenses must have been committed while Binay was sitting as an impeachable official.

Roque cited Article XI Section 2 of the Constitution that provides the Vice President “may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.”

The same provision applies to the President, members of the Supreme Court, constitutional commissions and the Ombudsman.

“It is contemplated that it be for acts while he was vice president,” Roque told the Manila Standard.

Belmonte said it would be a waste of time if the impeachment involved alleged offenses committed while Binay was still mayor of Makati City.

He said he would dissuade Caloocan City Rep. Edgar Erice from filing the impeachment complaint.

Valenzuela City Rep. Sherwin Gatchalian said the 40-member Nationalist People’s Coalition would block any move to impeach Binay because the House has to give priority to more compelling national issues.

The United Nationalist Alliance, Binay’s party, said the impeachment process must be fair, if the Liberals make good their threat to try and unseat the vice president.

UNA interim president and Navotas Rep. Toby Tiangco added that the vice president has committed no offense or illegal act.

Erice, an LP party whip and closest ally of LP’s presumptive standard bearer for 2016, Interior Secretary Manuel Roxas II, has threatened to file an impeachment complaint based on allegations raised against Binay at a Senate investigation of allegations of overpricing on the P2.7 billion Makati City Hall Building II, which was built during Binay’s term as mayor.

Barzaga said even the Supreme Court recognizes the authority of Congress to determine which acts constitute impeachable offenses, regardless of when they were committed.

In Francisco vs. The House of Representatives, Barzaga said the Court ruled that the determination of what constitutes an impeachable offense is a “non-justiciable” political question and beyond judicial power.

“The High Court ruled that such a determination is a purely political question which the Constitution has left to the sound discretion of the legislature,” Barazaga said.

“Hence, based on the Francisco ruling, it is up to Congress to determine if the acts committed constitute an impeachable offense, which may include the period which said offense was committed,” Barzaga said.

Barzaga also cited Section 1 of Article XI of the Constitution which states: “Public office is a public trust. Public officers and employees must at all times be accountable to the people.”

Even American authorities and jurisprudence support his view, Barzaga said, citing the statements of Yale constitutional scholar Alan Hirsch, author of “A Citizen’s Guide to Impeachment.”

“The Philippine Constitution has its origin from the United States Constitution, including the removal from office through impeachment. Consequently, on issues pertaining to the impeachment process, resort must be made to American jurisprudence on the matter,” he said.

Quoting Hirsh, Barzaga argued that impeachable offenses could also refer to actions taken by an impeachable public officer prior to his assumption of his current office.

According to Hirsh, the American Constitution does not provide any limitation that impeachment could only be used for acts taken during the incumbency of the public officer, Barzaga said.

“Similarly, the Philippine Constitution does not mandate that the impeachable offense must be committed during the term of the impeachable officer. Basic is the rule that when the Constitution does not distinguish, we shall not also distinguish,” Barzaga said.

Barzaga said Hirsch further argued: “While it might seem unfair to remove someone from office for acts undertaken before assuming office, in certain cases it would clearly be justified. Suppose, for example, it turns out that a President, in a previous stint as a governor, made a regular practice of accepting bribes. Impeachment would clearly be in order.”

Hirsch cited as an example the case of former US vice president Spiro Agnew, who, if not for his timely resignation in 1973, would have been impeached as he was indicted for extortion and bribery he allegedly committed during the time he was governor of Maryland.

Barzaga said there are also cases wherein an impeachable officer is not actually impeached but subjected to criminal indictment and civil suit – another scenario that can be applied in Binay’s case.

He cited the cases of former US vice presidents Spiro Agnew and Aaron Burr.

Agnew was indicted for acts committed prior to his assumption of office as vice president. Burr was charged for killing Alexander Hamilton at the time he was the vice president.

“Both were criminally indicted while sitting as vice presidents,” Barzaga said, adding that even former President Bill Clinton, during his presidency, was a defendant in a sexual harassment civil suit filed by Paula Jones for the sexual misconduct he allegedly committed at the time he was governor of Arkansas.

In the Philippines, Barzaga said, only the President enjoys immunity from suit as emphasized in Soliven vs. Makasiar (G.R No. 82585, November 14, 1988).

“The rationale for the grant to the President of the privilege of immunity from suit is to assure the

exercise of presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the government is a job that, aside from requiring all of the office

holder’s time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office and not by any other person in the President’s behalf.”

Barzaga said this immunity does not extend to the Office of the Vice President.

“The vice presidency, in practical terms, is not a crucial office. It also does not embody a branch of government as the Chief Executive inherently does. When the reason for the immunity does not exist, then immunity cannot be invoked,” he said.

Aside from the allegations stemming from the construction of the Makati City parking building, Binay is also being accused of receiving kickbacks from infrastructure projects, a part of which was allegedly used to bankroll his 2010 campaign.

Another possible impeachment ground cited was Binay’s alleged failure to declare in his statement of assets, liabilities and net worth properties in Cavite and Batangas.

But the dean of the San Beda Law School, Ranhilio Aquino, said a criminal prosecution of an impeachable official such as Binay may not take place unless he is removed from office by impeachment.

“As long as one is within the territory of the Republic of the Philippines, anyone who commits a crime—from the President down to the last citizen in the farthest barangay—is liable to be prosecuted, tried and punished,” said Aquino.

“However, in the case of impeachable officials—and VP Binay is an impeachable official—criminal prosecution may not take place before he has been removed from office by impeachment by the Lower House and conviction by the Senate. In other words, an impeachable official is

first removed from office by the mechanism of impeachment and conviction, and then prosecuted and tried for criminal offenses,” he added.

In effect therefore, while Binay holds office he may not be prosecuted for any criminal offense, Aquino said.

“As soon as he ceases to hold office, either by resignation or impeachment, he may be prosecuted. And the impeachment of an impeachable official is not a function of the Justice Department but of the House of Representatives that alone can file articles of impeachment with the Senate,” said Aquino, who also writes a column for the Manila Standard.

Aquino also branded as improper the Justice Department order to the National Bureau of Investigation to conduct an investigation into the allegations of corruption against Binay, saying it had no jurisdiction to do so.

“Neither does it seem proper for the Justice Department to conduct an investigation of Binay for the purpose of recommending to the Lower House his impeachment because that is not one of the powers given to the DoJ under the 1987 Administrative Code. Ours is a government of enumerated powers, and when a power is not included in an enumeration, it cannot be presumed to have been conferred,” he said.

Lawyer Romulo Macalintal said that Binay and all constitutional officials are covered by immunity from suit.

But this did not prevent the Office of the Ombudsman from conducting an investigation to determine if there is a ground for impeachment, he added.

Macalintal also said immunity from suit is not in the Constitution, but “a mere tradition.”

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