Is there denial of due process when there is a delay in the publication of impeachment rules?

In another vein, petitioner, pursuing her claim of denial of due process, questions the lack of or, more accurately, delay in the publication of the Impeachment Rules.

          To recall, days after the 15th Congress opened on July 26, 2010 or on August 3, 2010, public respondent provisionally adopted the Impeachment Rules of the 14th Congress and thereafter published on September 2, 2010 its  Impeachment Rules, admittedly substantially identical with that of the 14th Congress, in two newspapers of general circulation.[40]

          Citing Tañada v. Tuvera,[41] petitioner contends that she was deprived of due process since the Impeachment Rules was published only on September 2, 2010 a day after public respondent ruled on the sufficiency of form of the complaints.  She likewise tacks her contention on Section 3(8), Article XI of the Constitution which directs that “Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.”

Public respondent counters that “promulgation” in this case refers to “the publication of rules in any medium of information, not necessarily in the Official Gazette or newspaper of general circulation.”[42]

Differentiating Neri v. Senate Committee on Accountability of Public Officers and Investigations[43] which held that the Constitution categorically requires publication of the rules of procedure in legislative inquiries, public respondent explains that the Impeachment Rules is intended to merely enable Congress to effectively carry out the purpose of Section 3(8), Art. XI of Constitution.

Black’s Law Dictionary broadly defines promulgate as

To publish; to announce officially; to make public as important or obligatory.  The formal act of announcing a statute or rule of court.  An administrative order that is given to cause an agency law or regulation to become known or obligatory.[44] (emphasis supplied)

While “promulgation” would seem synonymous to “publication,” there is a statutory difference in their usage.

The Constitution notably uses the word “promulgate” 12 times.[45]  A number of those instances involves the promulgation of various rules, reports and issuances emanating from Congress, this Court, the Office of the Ombudsman as well as other constitutional offices.

To appreciate the statutory difference in the usage of the terms “promulgate” and “publish,” the case of the Judiciary is in point.  In promulgating rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the Court has invariably required the publication of these rules for their effectivity.   As far as promulgation of judgments is concerned, however, promulgation means “the delivery of the decision to the clerk of court for filing and publication.”[46]

Section 4, Article VII of the Constitution contains a similar provision directing Congress to “promulgate its rules for the canvassing of the certificates” in the presidential and vice presidential elections.  Notably, when Congress approved its canvassing rules for the May 14, 2010 national elections on May 25, 2010,[47] it did not require the publication thereof for its effectivity.  Rather, Congress made the canvassing rules effective upon its adoption.

In the case of administrative agencies, “promulgation” and “publication” likewise take on different meanings as they are part of a multi-stage procedure in quasi-legislation.  As detailed in one case,[48] the publication of implementing rules occurs after their promulgation or adoption.

Promulgation must thus be used in the context in which it is generally understood—that is, to make known.  Generalia verba sunt generaliter inteligencia.  What is generally spoken shall be generally understood.  Between the restricted sense and the general meaning of a word, the general must prevail unless it was clearly intended that the restricted sense was to be used.[49]

Since the Constitutional Commission did not restrict “promulgation” to “publication,” the former should be understood to have been used in its general sense.  It is within the discretion of Congress to determine on how to promulgate its Impeachment Rules, in much the same way that the Judiciary is permitted to determine that to promulgate a decision means to deliver the decision to the clerk of court for filing and publication.

It is not for this Court to tell a co-equal branch of government how to promulgate when the Constitution itself has not prescribed a specific method of promulgationThe Court is in no position to dictate a mode of promulgation beyond the dictates of the Constitution. 

Publication in the Official Gazette or a newspaper of general circulation is but one avenue for Congress to make known its rulesJurisprudence emphatically teaches that

x x x in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the legality of the acts of the Senate relative thereto.  On grounds of respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work.  In the words of Justice Florentino P. Feliciano, this Court is of the opinion that where no specific, operable norms and standards are shown to exist, then the legislature must be given a real and effective opportunity to fashion and promulgate as well as to implement them, before the courts may intervene.[50]  (italics in the original; emphasis and underscoring supplied; citations omitted)

Had the Constitution intended to have the Impeachment Rules published, it could have stated so as categorically as it did in the case of the rules of procedure in legislative inquiries, per Neri.  Other than “promulgate,” there is no other single formal term in the English language to appropriately refer to an issuance without need of it being published.

IN FINE, petitioner cannot take refuge in Neri since inquiries in aid of legislation under Section 21, Article VI of the Constitution is the sole instance in the Constitution where there is a categorical directive to duly publish a set of rules of procedure.  Significantly notable in Neri is that with respect to the issue of publication, the Court anchored its ruling on the 1987 Constitution’s directive, without any reliance on or reference to the 1986 case of Tañada v. Tuvera.[51]  Tañada naturally could neither have interpreted a forthcoming 1987 Constitution nor had kept a tight rein on the Constitution’s intentions as expressed through the allowance of either a categorical term or a general sense of making known the issuances.

From the deliberations of the Constitutional Commission, then Commissioner, now retired Associate Justice Florenz Regalado intended Section 3(8), Article XI to be the vehicle for the House to fill the gaps in the impeachment process.

MR. REGALADO.  Mr. Presiding Officer, I have decided to put in an additional section because, for instance, under Section 3 (2), there is mention of indorsing a verified complaint for impeachment by any citizen alleging ultimate facts constituting a ground or grounds for impeachment.  In other words, it is just like a provision in the rules of court.  Instead, I propose that this procedural requirement, like indorsement of a complaint by a citizen to avoid harassment or crank complaints, could very well be taken up in a new section 4 which shall read as follows: THE CONGRESS SHALL PROMULGATE ITS RULES ON IMPEACHMENT TO EFFECTIVELY CARRY OUT THE PURPOSES THEREOF.  I think all these other procedural requirements could be taken care of by the Rules of Congress.[52] (emphasis and underscoring supplied)

The discussion clearly rejects the notion that the impeachment provisions are not self-executing.  Section 3(8) does not, in any circumstance, operate to suspend the entire impeachment mechanism which the Constitutional Commission took pains in designing even its details.

As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body.  Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executingIf the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been, that —

. . . in case of doubt, the Constitution should be considered self-executing rather than non-self-executing . . . .  Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective.  These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute.[53] (emphasis and underscoring supplied)

Even assuming arguendo that publication is required, lack of it does not nullify the proceedings taken prior to the effectivity of the Impeachment Rules which faithfully comply with the relevant self-executing provisions of the Constitution.  Otherwise, in cases where impeachment complaints are filed at the start of each Congress, the mandated periods under Section 3, Article XI of the Constitution would already run or even lapse while awaiting the expiration of the 15-day period of publication prior to the effectivity of the Impeachment Rules.  In effect, the House would already violate the Constitution for its inaction on the impeachment complaints pending the completion of the publication requirement.

Given that the Constitution itself states that any promulgation of the rules on impeachment is aimed at “effectively carry[ing] out the purpose” of impeachment proceedings, the Court finds no grave abuse of discretion when the House deemed it proper to provisionally adopt the Rules on Impeachment of the 14th Congress, to meet the exigency in such situation of early filing and in keeping with the “effective” implementation of the “purpose” of the impeachment provisions.  In other words, the provisional adoption of the previous Congress’ Impeachment Rules is within the power of the House to promulgate its rules on impeachment to effectively carry out the avowed purpose.

Moreover, the rules on impeachment, as contemplated by the framers of the Constitution, merely aid or supplement the procedural aspects of impeachment.  Being procedural in nature, they may be given retroactive application to pending actions.  “It is axiomatic that the retroactive application of procedural laws does not violate any right of a person who may feel that he is adversely affected, nor is it constitutionally objectionable.  The reason for this is that, as a general rule, no vested right may attach to, nor arise from, procedural laws.”[54]  In the present case, petitioner fails to allege any impairment of vested rights.

It bears stressing that, unlike the process of inquiry in aid of legislation where the rights of witnesses are involved, impeachment is primarily for the protection of the people as a body politic, and not for the punishment of the offender.[55]

Even Neri concedes that the unpublished rules of legislative inquiries were not considered null and void in its entirety.  Rather,

x x x [o]nly those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution.  Sans such violation, orders and proceedings are considered valid and effective.[56] (emphasis and underscoring supplied)

Petitioner in fact does not deny that she was fully apprised of the proper procedure.  She even availed of and invoked certain provisions[57] of the Impeachment Rules when she, on September 7, 2010, filed the motion for reconsideration and later filed the present petition.  The Court thus finds no violation of the due process clause.


About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Constitutional Rights, Definitions, Due Process, Impeachment, Publication/Promulgation, Question and Answers and tagged . Bookmark the permalink.

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