Saturday, December 17, 2011


It has frequently been said that the impeachment process is a numbers game where the vote is along party alignment. This has been verified historically. Partly for this reason no President of the United States or of the Philippines has been convicted on impeachment. To my knowledge, moreover, no Justice of the Supreme Court has been convicted on impeachment. An attempt to impeach Associate Justice Samuel Chase was launched from the White House on the ground that Chase allowed his political leanings to affect his decision. (Incidentally, as in the complaint against Corona, there were also eight counts in the charge against Justice Chase.) The impeachment fizzled out.
The dictum that impeachment is a numbers game is especially true when the partisan alignment in Congress is clear. Thus no one need be surprised at the swift and overwhelming approval of the impeachment complaint against the Chief Justice, especially since, with eight points in the complaint, each member of the House had a smorgasbord to choose from.
It may be too early to evaluate the real consequence on the entire judiciary. Instilling the fear of the Lord is not bad in itself, if the Lord is perceived to be fair. And, indeed, the judiciary as it stands today can stand some shaking. The sentiment is widely accepted that there still are in the judiciary sour apples who, if baked, will not make a tasty apple pie. But it cannot be denied that what is happening now can have or may already be having a chilling effect on the more pusillanimous among the good apples.
Fortunately, the numbers game analogy may not be easy to apply to the Senate composition today. The Senate will try the case. The alignment in the Senate is not easily figured out and there are tried and tested statesmen in the Senate who can influence the novices. We can therefore have a decision that is clearly based on the merits. In fact, part of the reason why the outcome in the House was so swift could be the realization by the members that they were not making the final vote. They could pass the headache on to the Senate. That is where it will be and the Senators are ready with their robes!
The impeachment process is a legitimate tool found in the Constitution. Its general purpose is to rid the government of people who do not deserve to be in high office. For this purpose and in order to avoid a general bloodbath, it is meant to be carefully focused on individuals. From what I have seen in the charges made against the Chief Justice I can find charges that indeed are focused on him alone. But a good number of the charges are based on his vote in majority collegial decisions of the Court. Congress members and the Palace can deny until they are blue in the face that the target is the Supreme Court as a body, but the complaints tell us that some of them are clearly aimed at collegial decisions.
That the target is not just the vote of the Chief Justice but also of the body is also born out by the broad claim made on television by the Chairman of the House Justice Committee that the Congress can discipline justices. Discipline them for treason, bribery, graft and corruption, culpable violation of the Constitution, other high crimes or betrayal of public trust, yes; but not for collegial decisions with which the Congress disagrees.
I shall not attempt to evaluate the merit of each of the eight points in the complaint. That is the heavy responsibility of the Senate. The Senate will evaluate each of them to determine if any or all of them can convincingly fall under the allowable grounds for conviction, namely “treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” It is the Senate, and not the Court, which decides what these grounds for conviction on impeachment mean. The Court itself has said as much in an earlier impeachment case. The Court can only review whether the constitutional procedure has been followed.
In evaluating the charges, will the Senate apply the rule, among others, of eiusdem generis? This rule says that undefined elements in an enumeration must be read as qualified by the defined elements. Concretely this means that, when there is “allegation of graft and corruption or culpable violation of the Constitution or betrayal of public trust,” the allegation cannot be of merely venial offenses but must be of offenses comparable in gravity with “treason, bribery or other high crimes,” offenses which strike at the very life of the nation. This will be for the Senate to decide. Moreover, the Senate also decides the quantum of evidence needed to convict. Impeachment is not a criminal process which needs proof beyond reasonable doubt.
There is another point that must be remembered. Impeachment is not just a legal exercise. It is also a political exercise, that is, a policy exercise. If judgment on impeachment were exclusively a legal exercise, it would have been entrusted to the courts. But since it is also a policy exercise, judgment on impeachment has been given by the Constitution to a policy making body. Hence, when the Senators vote, they will be voting not just on the validity of the charges but also on their perception of what is best for the country. That requires the wisdom of a statesman.
19 December 2011

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