This means five of the eight amici curiae invited by the Supreme Court believe the tribunal should not intervene in the ongoing impeachment process.
During the continuation of the oral arguments yesterday, two more amici curiae, Deans Pacifico Agabin and Raul Pangalangan of the University of the Philippines’ College of Law, told the Supreme Court to refrain from ruling on the issue until the process is completed in the Senate.
Their opinions concurred with the views made earlier by former Senate president Jovito Salonga, former solicitor general Estelito Mendoza and retired Supreme Court Justice Hugo Gutierrez, who all said the Supreme Court has no jurisdiction over impeachment proceedings since it is a political issue that should be decided by Congress.
But Agabin and Pangalangan gave contrasting opinions. Agabin, the former dean of the UP College Law, said the Supreme Court could only assume jurisdiction in cases of "arbitrary and capricious acts" by Congress.
Pangalangan, the present dean, argued that the court should defer to Congress since impeachment is a political process, which is a primary jurisdiction of the legislature.
Agabin said judicial involvement into impeachment cases will be inconsistent with the principle of checks and balances in the government.
He said the "grave abuse of discretion" committed by congressmen in filing the impeachment complaint against Davide as claimed by three of the eight amici curiae can only be determined once the Senate decides on the case.
When asked by the justices during the floor interpellations if it would be better for them to act sooner than later and put a close to the country’s current troubles, Agabin said the Supreme Court should exercise self-restraint and allow the impeachment process to run its course.
Agabin said the prospect of facing the Senate as an impeachment court, even granting that the House of Representatives made a mistake in initiating the impeachment complaint, is one of the hazards that a ranking public official like Davide should face.
Pangalangan, on the other hand, stressed the House violated the one-year bar in the Constitution when it initiated a second impeachment complaint against Davide last motn when another impeachment case was filed against Davide by former President Joseph Estrada only last June.
But though Pangalangan expressed belief the Supreme Court ultimately has jurisdiction over the issue and should declare the impeachment case against Davide illegal, he said the high tribunal cannot rule on it since the process of transmitting the articles of impeachment to the Senate has not been completed.
Pangalangan clarified the petitioners have legal standing to take a course of action and file motions asking the court to declare the impeachment improper.
But prudence dictates the Court "not to rush" into deciding the case and let Congress rectify itself, he said.
"If the Senate upholds the impeachment, then that is the time for the Court to act," Pangalangan explained.
As things stand, Pangalangan said the Supreme Court may hold the ruling on the six petitions until after all political solutions have been exhausted.
Pangalangan suggested to give Congress the chance to rectify itself based on prudence and not in the strict legal sense.
As intervenor, Sen. Aquilino Pimentel Jr. said Congress has the sole power to initiate impeachment proceedings.
Pimentel stressed the power to impeach rests in Congress and no other branch of the government, including the judiciary, has power to intervene.
"In the present case, for instance, if the Supreme Court were to exercise full jurisdiction over the issues of the impeachment case that are presented in the petitions, it might even be treading dangerously on minefields of conflicts of interest and worse, unethical behavior," he said.
The views echoed the argument of Salonga who said Wednesday that the Supreme Court will eventually have jurisdiction over the issue if all remedies in the House and Senate have been exhausted and the question on the constitutionality of the second impeachment complaint remains unresolved.
Salonga also said the impeachment complaint against Davide can be later on declared unconstitutional since the chief magistrate was not accorded due process.
Regalado, gave his opinion that the congressmen who endorsed the impeachment complaint could have committed "grave abuse of discretion."
He expressed his belief that the Supreme Court cannot abdicate its obligation to resolve the issue since judicial power includes and extends to duty to review any act of grave abuse of discretion or jurisdiction of any department or agency, including Congress.
Maambong supported Regalado’s position and stressed that while Congress was endowed with its own powers as a political branch of government, the Constitution has put restraints to this power.
A former member of the commission which drafted the 1987 Constitution, Maambong said the limit to Congress’ powers to initiate impeachment proceedings can be found in Article XI, Section 2, subparagraph 5.
Under the provision, no more than one impeachment complaint can be initiated against the same person within a period of one year, Maambong said.
Bernas, for his part, had stressed the House rules on impeachment proceedings cannot prevail over the constitutional requirement.
He said the Supreme Court can pass judgment on the constitutionality of such rules.
As the oral arguments over the legality of the impeachment complaint against Davide wrapped up early last night, the Supreme Court justices were presented with "moral and ethical" reasons notwithstanding the legal question on whether it should assume jurisdiction over the issue or simply let it go.
The magistrates are faced with the problem of playing out their role as the final interpreter of the Constitution and rule on the petitions assailing the legality of the second impeachment complaint.
But the justices are also under pressure to abstain from ruling over it in deference to a coequal branch of the government.
The problem was so immense that it prompted Supreme Court Justice Jose Vitug to remark, "God save our country" when told that the current constitutional crisis would not be defused without the court’s intervention.
Justice Artemio Panganiban, for his part, admitted it was "awkward" on the part of the Supreme Court to act on the matter since the chief magistrate himself is the one involved.
Panganiban added they themselves are impeachable officials like Davide, having approved the project recommendations using the Judiciary Development Fund (JDF).
Panganiban said the Court could have been more aggressive and not as careful and circumspect if only another official were the center of controversy.
It was the first time for the Supreme Court to invite resource persons - amici curiae - or "friends of the court" to shed light and their own perception on the issue at hand, Panganiban said.
Justice Angelina Sandoval-Gutierrez also, at one point, asked why only the judiciary is being restrained as against Congress in this case.
On the other hand, Malacañang said they are now relying on the efforts of Speaker Jose De Venecia Jr. to convince some lawmakers to withdraw their signatures in the impeachment complaint.
De Venecia has been tasked to push through the "covenant" proposed by President Arroyo to end the deadlock between Davide and the lawmakers.
Presidential Spokesman Ignacio Bunye said De Venecia is still in the process of consultations with congressmen to agree on the proposals in the Palace-proposed covenant to end the crisis.
The covenant calls for the withdrawal of signatures of the 86 congressmen who signed the articles of impeachment against Davide on the premise that only the Commission on Audit (COA), as a separate constitutional body, is empowered to audit the books of the judiciary which enjoys fiscal autonomy.
"What De Venecia should do now is to talk to convince the members of the House of Representatives, especially those who signed the impeachment complaint to withdraw their signatures," Bunye said.
Davide, for his part, called for a moratorium on debates over the issue.
"The sooner that they put an end to this, the better. I hope our people will continue to pray for an end to this controversy." — With Marichu Villanueva, Ann Corvera