Rushing to stalemate

As things now stand, it is difficult to see how the impeachment proceedings in the House will be resolved anytime soon. There is supposedly pressure from the Palace to end this threat to GMA’s incumbency before she leaves for the United Nations General Assembly in New York City scheduled this September.

I’m sure the President would want any cloud over her tenure to be removed by the time she makes the rounds of cocktail parties in the Big Apple. But since her departure is a scant few weeks away, the chances of a resolution by then are either slim or none.

To begin with, the majority contingent in the House Committee on Justice, would have to be willing to stake their political fortunes, damn the torpedoes and go full steam ahead. The fact is that the majority members of the Committee are sailing on uncharted legal waters. They also have to hope that the people will either accept the outcome or, after a brief period of ineffectual protest, learn to live with it.

Many think that this Tuesday, the House Justice Committee will vote on which of three complaints – Oliver Lozano’s, as amended and supplemented, Jose Lopez’s or the opposition’s Amended Complaint – it will consider for sufficiency in form and substance.

In fact, the only question to be voted upon is if there is a "prejudicial" question on whether the Committee should select one of the three complaints. The minority has been arguing that the three complaints can be considered together. But if the Committee rules that there is a prejudicial question, the next issue up for debate is whether the Lozano complaint will be considered first and the other two deferred to next year.

Based strictly on the numbers, the majority should prevail on both questions. Thus, the decision will be that there is a prejudicial question and that the complaint to be considered first will be Lozano’s. At this point, the minority could throw a monkey wrench in the proceedings and bring the matter before the Supreme Court, with a plea to temporarily restrain the Committee from acting any further.

If the minority decides to forego legal action or if no temporary restraining order is issued by the Court, the Committee will then proceed to decide if the Lozano complaint is sufficient in form and substance. If the majority is bent on sending GMA to the U.N. free of any impeachment threat, the complaint will be thrown out for insufficiency in form, or in substance, or both.

In dismissing the complaint at this juncture, the majority will be taking an enormous political risk, an even risk greater than that taken when it forced consideration of the Lozano complaint first.

As to form, while the Lopez complaint could be dismissed because it was not verified (a formality which requires the complainant to swear to the truth of his allegations before a person authorized to administer oaths such as a notary public), the Lozano complaint was verified, as well as endorsed by a member of the House.

As to substance, the problem is that for purposes of this preliminary finding of sufficiency, the House impeachment rules provide that the requirement is met "if there is a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee." The facts do not have to be proved yet at this stage. The only issue is whether the facts, as stated, constitute an impeachable offense. If not, then the complaint may be dismissed for insufficiency in substance.

Under the rules, it is only when the Committee finds the complaint sufficient in form and substance that the investigation phase locks in to determine the existence of "probable cause" (Secs. 5, 8). Once it begins, the President can forget about going to the United Nations in pristine political condition.

The investigation stage can take a few months, or it can last for the entire 60 session days (from the referral of the complaint to the Committee) allowed by the Constitution and the House rules. During this process, the respondent’s answer, the complainant’s own pleadings, and some documentary evidence, will be submitted.

This airing of dirty laundry will, of course, be attended by full-bore media frenzy, fueled largely by opposition spokespersons and anti-GMA advocates. And note well: The trial at the Senate will not even have begun. We would still be at the stage of the Committee determining whether "probable cause" exists for a Senate trial to begin.

Again, if the numbers in the majority hold, the likely outcome is a dismissal of the complaint on the ground that probable cause has not been established. Because the process will be damaging for GMA, and may erode whatever support she enjoys from the Church and the business community, the majority may try to speed up the process.

But if the damage is "tolerable" or "not irreversible," GMA’s lieutenants may decide to ride out the storm, hoping it will dissipate as people get increasingly irritated at the protracted political crisis. The calculation will be that an early dismissal of the impeachment complaint may be perceived as a whitewash and result in greater instability.

On the other hand, there is at least one possible scenario where the minority may prefer that the matter languish in the Justice Committee on the issue of sufficiency in form and substance. Opposition stalwarts tell me that if for any reason they encounter "obstacles" in gathering 79 signatures to stop the proceedings in the House and immediately send the matter to the Senate for trial (itself a debatable proposition, which we will examine next time), they would relish the extra time to ensure those 79 supporters.

This then, in a nutshell, is where we are. The majority congressmen will either make the political gamble of their lives, and dismiss the impeachment complaint "forthwith," or proceed to the investigation phase which may be short or long, depending on their reading of the public pulse and the steadfastness of GMA’s support.

If the case is dismissed for insufficiency in form or substance, the minority will, first of all, try to raise the decibel level of public protest. If they have the 79 votes, which they claim they have, they will move to elevate the case immediately to the Senate for trial. If not, they will try to hold the case at the Committee on Justice as long as possible, as they work towards the magic number of 79.

Do you see a quick end to the impeachment process? I don’t. Do you, instead, see stalemate? I certainly do. We discuss that next time, together with why the rumors of the death of "The Creep" are greatly exaggerated.