Saturday, March 19, 2011


Prenote. To my critics who accuse me of heretical eclecticism, let me just say that, of course, I accept the teaching of the Pope on contraception and abortion. But the other part of what I believe, often ignored by my critics, is that the Church also teaches us to respect the belief of others and not to impose our beliefs on the unwilling nor prevent them from acting according to their belief. Verbum satis sapienti.
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We have never succeeded in convicting a person on impeachment. The closest we had to completing an impeachment proceeding was when, in the impeachment of Joseph Estrada, Congress reached the trial stage. But the trial was not completed.
The impeachment move against the Ombudsman has made much progress. It is getting close to the trial stage. Now there is also talk of impeaching justices of the Supreme Court. What will the final outcome be?
In this piece I propose to approach impeachment from the academic point of view. The academic approach, after all, is part of real life. I have always believed that part of fidelity to the rule of law must be recognition and awareness of the academic underpinnings of existing law.
Impeachment is of British origin. Ironically, however, in the British system neither the king nor the Prime Minister is subject to impeachment. Not the king, because the only way of getting rid of an unwanted monarch is by revolution or assassination. Not the Prime Minister, because the Prime Minister is essentially a legislative creature who may at any time be replaced by parliament through a no confidence vote. The reasons for ouster of a Prime Minister theoretically can be as trivial as the quality of his sartorial preferences.
When the American Founding Fathers were formulating the Constitution, they had no intention of setting up a monarch who could rule for life. But they did want to give the chief executive security of tenure. At the same time, however, the Founders were aware that, human nature being what it is, it might become necessary to rid the presidency of one who has been found unworthy of the office. They were, moreover, also aware that any president would have innumerable enemies who would only be too glad to oust him. What the Founders did therefore was to make the president virtually immune from legal action but at the same time removable in extreme cases when the only way of protecting the public is by removing him. The method set up was the impeachment process.
This is what we have now and we apply it to key officials including the Ombudsman and Supreme Court justices. Removal can only be based on the grounds of "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
The object of the process is not to punish but only to remove a person from office. As justice Storey put it in his commentary on the Constitution, impeachment is "a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity." Put differently, removal and disqualification are the only punishments that can be imposed upon conviction on impeachment. Criminal and civil liability can follow after the officer has been removed by impeachment. Prosecution after impeachment does not constitute double jeopardy.
The present Constitution has expanded the list of impeachable offenses to include "graft and corruption" and "betrayal of public trust." The mention of these two categories might give the impression that impeachment has been trivialized. But the way the provision is worded is significant. It enumerates the grounds for impeachment as "culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." The word "other" is significant. The rule in the interpretation of laws is that when the law makes an enumeration of specific objects and follows it with "other" unspecified objects, those unspecified objects must be of the same nature as those specified. Thus, for "graft and corruption" and "betrayal of public trust" to be grounds for impeachment, their concrete manner of commission must be of the same severity as "treason" and "bribery." These offenses strike at the very heart of the life of the nation.
As applied to the Ombudsman, has she committed offenses which are of this degree of severity? Not a few think she has; but the final answer to the question of course is a matter of evidence.
And who is to decide if she has or has not? The answer underlines the non-judicial but political character of impeachment. The decision will not be arrived at in the atmosphere of cold neutrality of judicial courts. The decision will be arrived at by a partisan body, Congress, whose decisions in crucial matters are often dictated by considerations other than legality.
The nation will be watching what the House of Representatives will say about the charges against the Ombudsman. I expect the House to vote quickly for prosecution. The House will need only a vote of one third of all the Members. When the case goes to the Senate, conviction will need the vote of two thirds of all the Members. How will the Senate vote? Whether in the House or in the Senate, political considerations can dictate the direction of the vote.
21 March 2011

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