Bayan Muna lawyer criticizes House justice panel chair over impeachment

Bayan Muna general counsel Neri Javier Colmenares has come out with a legal memorandum that explains and debunks what he describes as “grossly erroneous” preliminary remarks made by the chair of the House committee that hears the impeachment complaint against President Arroyo.

For Colmenares and Bayan Muna, Defensor has misinterpreted and has practically redefined the constitutional process (impeachment) and the rules governing it.

Those supporting the impeachment complaint and the larger cause of holding Arroyo for her many crimes, this legal memo comes in very handy.

Following is the full text of Colmenares’ paper:


By Atty. Neri Javier Colmenares
Bayan Muna general counsel
November 18, 2008


The Preliminary Remarks of Rep. Matias Defensor, as Chairman of the Committee on Justice, in the opening session of the impeachment proceeding on November 18, 2008 are factually and legally erroneous because it contravenes with the Rules on Impeachment of the House. It even contains statements that shows the Chairman’s bias against the impeachment complaint such as his assertion that “ x x x impeachment is the most x x x dangerous political instrument that disrupts, dislocates or destroys government” (page 4, Preliminary Remarks). This conclusion shows the Chairman’s aversion to and bias against an impeachment complaint because, he already is of the opinion that it will not only disrupt or dislocate but also “destroy” government.

The legal error of the Committee Chairman is his interpretation that the determination of an impeachment complaint’s sufficiency in substance is equivalent to finding probable cause:

When is the complaint sufficient in substance? It must be stressed that Rule III of the House Rules of Procedure on impeachment Proceedings is aptly entitled “Finding Probable Cause”. In determining the sufficiency of the Complaint, the COJ is likened to a Prosecutor conducting preliminary investigation. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-grounded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial (Section 1, Rule 112). It is the process of finding probable cause. Hence, finding probable cause is the basis of the sufficiency of substance of the Complaint. (page 3, Preliminary Remarks)

The Chairman then added:

In a Complaint for Impeachment, the recital of facts constituting the offense charged must allege “the events, actions, occurrences or documents that actually exist, existed or happened” supported by the evidence attached to the complaint that engenders/finds a well grounded belief x x x (page 4)

The chairman defined facts as “an actual and absolute reality, as distinguished from mere supposition or opinion. A truth, as distinguished from fiction or error.”

Grossly Erroneous Interpretation

The Chairman misinterpreted the rule. There are three distinct stages under the rule:

  1. finding of sufficiency in form, under the First Paragraph of Rule 3, Section 4; after which comes a
  2. finding of sufficiency in substance, under the Second Paragraph of Rule 3, Section 4, (after which the respondent is furnished a copy of the Complaint and given the opportunity to file Answer); and lastly
  3. finding of probable cause, upon finding of sufficient ground for impeachment, in which case the committee considers the pleadings submitted and conducts a hearing (under Rule 3, Section 6).

If, as the Chairman alleges, that the finding of sufficiency in substance is already the finding of probable cause, then what will be the use of a hearing under Section 6? If the Chairman’s theory is correct, the hearing in section 6 is superfluous. The logic of Rule 3 is linear—sufficiency in form is first determined before finding sufficiency in substance. And then, notice to respondent and submission of pleadings are required only once sufficiency in substance is found. Probable cause hearings can only be conducted upon the notification, of course, of the respondent and the submission of memoranda if any (after the finding of sufficiency in form and substance).

Sufficiency in substance means precisely what the Rule says:

1. ” if there is a recital of facts constituting the offense charged”

This means that the facts alleged, presuming them to be true, indeed constitutes an offense. If the entire complaint consists of allegation of facts that even if true do not constitute an offense, then there can be no sufficiency in substance.

The moment the impeachment complaint alleges that, for example, “the respondent Gloria Arroyo orchestrated the “switching,” sometime between January and February 2005 at the House of Representatives, of ballot boxes containing town-level tallies of votes in the 2004 elections from 38 provinces” there is already sufficiency in substance since, if such allegation were true then that constitutes an offense.

2. “determinative of the jurisdiction of the committee”

If the acts mentioned indeed constitute an offense, the complaint should alleged that this offenses are impeachable grounds under the Constitution. If the Complaint alleges that the offense is culpable violation of the Constitution or a betrayal of public trust, then the Committee acquires jurisdiction over offense. In short, the determination of form and substance stage is an “on its face” review of the complaint.

Probable Cause and Evidence of Absolute truth cannot go Hand in Hand

If, as the Chairman alleges, the recital of facts in finding substance is equivalent to a recital of “actual and absolute reality” or judicial “truth” then again, what will be the function of a hearing under Section 6? If this theory were correct, there is nothing to hear and no need to determine probable cause, after a finding of sufficiency in substance because the “truth” and “absolute” reality has already been established by the Committee.

The complainants of course assert that their recital of the facts are true.

But the Committee need not establish this in finding the complaint sufficient in substance. In fact, even in the last stage of the impeachment proceeding in the House, the Committee cannot and need not establish the “absolute truth” but only “probable cause” aspect of the complaint. If one is merely “probable”, then it cannot be the absolute truth. The standards for establishing probable cause in fact, does not require proof of “absolute reality” otherwise this is no longer “probable”. The standards for establishing sufficiency in substance must, therefore,, be substantially less than the standards used in determining probable cause. Looking for “absolute reality” buttressed by evidence etc, in the “substance determination” portion is clearly an absurdity, like putting the cart before the horse.

The “recital of facts” or the allegation in an information filed by a prosecutor is precisely that in that stage—an allegation of facts, a recital of facts that needs to be proven in court (in this case the Senate). Only the court will declare whether that is the “absolute reality” or the “truth”. The foreign citation of the chairman is misplaced. Our Supreme Court has resolved many cases on “recital of facts” and there is no need to go to US jurisprudence:

(i) The recital of facts is not the “absolute reality and truth” but merely a bill of particulars which the prosecution intends to prove, and a mere inference of guilt, as ruled by the court in People vs. Yap, [GR L-25176, February 27, 1968]:

Such recital of facts, forming the basis of the statement that the accused had sexual relations with the offended party “several times,” together with the allegations of the subsequent pregnancy of the offended girl and the expulsion of the foetus, constitute no more than the details of the entire incident upon which the seduction charge was based. They partake of the nature of particulars, with which the prosecution intends to inform the accused of the matter it will prove at the trial; and this does not come within the prohibition of the rules. Thus, in one case, an information that charged the defendant with a specific crime set forth in various counts, each of which may constitute a distinct offense, was allowed. The narration in the information of the specific acts was considered a bill of particulars of facts upon which the inference of the guilt of the accused of the crime charged may be based

(ii) A letter by an ordinary layman containing recital of facts is a valid pleading, even if such contains allegations, opinions, and conclusions. Whether or not they can later be proven in trial as true is another matter, suffice to say, the Court finds it sufficient in form and substance to constitute a valid pleading. The Court’s decision in Cayetano vs Ceguerra [GR No. L-18831, January 30, 1965] may elucidate this matter:

“A letter-answer, presented to the court by an ordinary layman, containing a recital of facts relied upon as defense, is a sufficient and substantial compliance with the requirements of the rules as to responsive pleadings. In such a case the defendants should be entitled to notice of hearing, the absence of which, being a deprivation of their day in court, amounting to lack of due process, renders all the proceedings undertaken therein a nullity.”

In this case, the letter-answer contained various opinions, and conclusions by the letter writer such as unenforceable contract, “malicious” plans, “taking advantage” and even assertions the act of the other party may “defeat the administration” the “benevolent” Pres. Magsaysay[1] and yet the Court found it a valid pleading.

Lastly, the Chairman inserted the phrase “ evidence attached” in his preliminary remarks even if this phrase is nowhere to be found in the Constitution or the Rules as if implying that the Committee can only consider “evidence attached to the Complaint” in determining sufficiency in substance. Even prosecutors and courts, in criminal cases, are not as strict as this. The prosecutors do not limit consideration of evidence to documents attached to the complaint (often, the complaint filed by a citizen or the police is not in fact complete). Prosecutors sometimes admit evidence in the rebuttal of counter affidavits submitted by the complainant. In fact, the prosecutor may even look for additional evidence after finding probable cause. Many a court trials were conducted where the prosecutor adds evidence long after the information has been filed, such as those additionally submitted in court during motion for bail hearings.

The impeachment complaint is not a criminal proceeding, not even civil in nature but akin to an administrative proceeding where strict rules of evidence are not applied. This becomes more important considering that impeachments are accountability mechanisms of the people against erring public officials. The standards surprisingly used by the Chairman is way stricter than those conducted in criminal proceedings and is therefore not only erroneous but is actually detrimental to the constitutional right of the people to hold their public officials accountable—at all times.

The correct interpretation of the rule in determining sufficiency in substance, therefore, is merely to find out whether the recital of facts, if true, indeed constitutes an offense. If the complaint alleges under the impeachable ground of Bribery that “ on 11 October 2007, Pres. Gloria Arroyo, called a meeting in Malacanang Palace with 190 Congressmen and sought to influence the solons to dismiss the so-called Pulido impeachment complaint by bribing them amounts of either Two Hundred Thousand Pesos (P 200,000) or Five Hundred Thousand Pesos (P 500,000)”, the only question that should be considered by the Committee is: if the said allegation were true does this constitute bribery ? If the committee believes that, if the allegation were true then the same indeed constitutes the impeachable ground of bribery, the complaint is sufficient in substance. The determination of whether there is sufficient evidence to prove this allegation happens in the Senate during the impeachment trial. The determination if there is sufficient evidence to prove that the President “probably” committed the said offense is conducted during the probable cause hearings. Not in the substance determinations stage.


The Preliminary Remarks of the Justice Committee Chairman is evidence of the Chairman’s predisposition not only to dismiss the impeachment complaint, but to do it fast. With moves for charter change being seriously undertaken, the House cannot afford to be ‘distracted’ by a “mere” impeachment complaints. The use of strict rules of criminal procedure, as if the President goes to prison once the complaint is found sufficient in substance, is a prelude to the dismissal of the complaint.

There must be an assertion that the opinion of the chairman cannot be applied in the substance determination stage. He may suggest the same standards again, once the probable cause hearing ensues.

The complainants and endorsers cannot allow such interpretation.

[1] The letter contained

1. “The money which I borrowed from her was an emergency money

2. I religiously believed like Catalina Cayetano was benevolent

3. we religiously believed the instrument of Mortgage contract was nothing but a formality

4. the changing of the mind of Miss Cayetano in refraining to submit the title to the GSIS in order to effect reapproval and release, aggravate my belief and confidence to such an extent of doubting that the said instrument of Mortgage was deliberately planned in taking advantage of my poverty. It is only now that I realize that her plan was rather malicious and that she said further that if such unenforceable contract shall prevail I am afraid it may hamper and defeat the good purpose of the administration of the late President Magsaysay who benevolently distributed lot (land) to the landless poor.