Monday, August 27, 2007

Investigating President Arroyo

The nation pines for the truth, the whole truth, and nothing but the truth about the reported cheating in the last presidential election. But the Senate decision to constitute itself as a “Committee of the Whole” to investigate Sen. Panfilo Lacson’s privilege speech on the 2004 “Garci tape,” which contains telephone conversations between President Gloria Macapagal Arroyo and former Comelec commissioner Virgilio Garcillano during that election, cannot possibly be the way to do it.

The Committee will allow the Senate to investigate a sitting President without her having first been impeached by the House of Representatives, and without the Senate having been constituted as an impeachment court to try and decide the case against the President. We may dispute or deny Mrs. Arroyo’s claim to the presidency, but the Senate decision vaporizes the principle of separation of powers and creates a first-rate constitutional crisis.

What this offers is a tragic repeat of what happened in 2000 when the Senate blue ribbon committee under Sen. Nene Pimentel and the Senate justice committee under Sen. Rene Cayetano, the late father of the senatorial siblings Alan Peter and Pia Cayetano, investigated then President Joseph Ejercito Estrada on the basis of then Senator Teofisto Guingona’s “I accuse” speech --- in violation of said principle, as painfully pointed out by the Senate Majority Leader whose constitutional objection was completely ignored by the other senators.

In Estrada’s case, it was just the two committees that did it. In Arroyo’s case, the entire Senate, sitting as one committee, will do it. As a rule, no sitting President may be investigated, except in an impeachment complaint filed before the House, which has the exclusive power to initiate all cases of impeachment. Only after the President shall have been impeached, may he or she be tried by the Senate, which has the sole power to try and decide all cases of impeachment. Outside of this process, the Senate may not investigate a sitting President of any alleged offense.

It matters not whether the President has a 100-percent, or a sub-zero acceptance rating from the public. The principle of separation of powers must be defended and preserved, if the three coequal and coordinate branches of government are to continue functioning under a system we call constitutional, republican and democratic. Those who had a hand in injuring the system under Estrada, if they are still part of the Senate, have a real duty to make sure it does not happen again, even if it involves a President whose legitimacy they dispute. An attack on Mrs. Arroyo, no matter how justified, must not destroy the institution of the Presidency or the Senate itself.

In 2000, Estrada left the unconstitutional attack on the principle unchallenged. That saved the nation from constitutional crisis. But it also facilitated his impeachment and his ouster in the middle of his impeachment trial, following the prosecutors’ contemptuous walkout. And it completely deformed the senators’ understanding of the separation of powers.

Mrs. Arroyo is not likely to imitate Estrada. She will most probably challenge the Senate. It is only to be hoped that she will not try to carry out the threat to arrest senators if they so much as play the Garci tape. That would be completely ludicrous.

The Garci tape entered the public domain on June 6, 2005 when Press Secretary Ignacio Bunye Jr. released it to the press, saying it was a “fake” and presented a “doctored” version which he described as the original and authentic tape. On June 10, 2005, NBI former deputy director Sammy Ong attested to the genuineness of the tape by identifying himself as its source, and naming ISAFP technician T/Sgt. Vidal Doble as the one who had made it. This had since been played in the House during the last failed anti-Arroyo impeachment bid.

Malacanang cannot possibly have the senators arrested for playing a tape that has been played so many times before to the public. The anti-wiretapping law, to begin with, was meant to protect the privacy of communications of private citizens, not public officials, especially if the latter are in the act of committing a crime or conspiring to commit a crime.

Lacson has added nothing new to the story, except to say that Doble, who had earlier denied making it, had now disowned his previous position, saying he could not make a clean breast of it earlier because the military had kidnapped his family and held them captive. Doble’s testimony will be challenged, but if it survives, it will finally lead to Mrs. Arroyo’s conversations with Garcillano. That has enormous value in our search for the truth. But the best place for airing it would still be in an impeachment proceeding that begins in the House, and ends in the Senate.

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