Saturday, January 7, 2012


Joaquin G. Bernas, S.J.
The impeachment process is initiated from the filing of a verified complaint. The chances of that complaint reaching trial stage was almost nil under the 1935 Constitution which required the vote of at least two-thirds of all the House members. No impeachment ever reached trial. Under the 1973 Constitution it was almost ridiculous because all that was needed to send it to trial was a vote of one-fifth. But no impeachment took place. The present provision is a compromise: the complaint can go to trial if supported by at least one-third of all the Members of the House. But before it gets there it still has some road to travel.
It starts in the House Committee to which the verified complaint is referred. The initial task of the Committee is to verify whether the complaint is sufficient in both form and substance. The required votes for the determination of form and substance is not specified in the Constitution. Hence, it is all up to the House Rules.
If the Committee finds that the complaint is sufficient in both form and substance, the Rules prescribe that notice be given to the respondent who is given the opportunity to be heard. If after hearing, the Committee finds no “probable cause,” the Committee recommends to the House the dismissal of the complaint. But if the Committee, by a vote of a majority of all its members, as prescribed by the Constitution, finds “probable cause,” it shall so report to the House.
The House in turn can either uphold or override the Resolution of the Committee. In either case, by constitutional rule, the vote needed is one-third of all the Members of the House. According to the Rules, the voting is by roll-call.
It will be noted from what has been said so far that only the complaint is required by the Constitution to be verified. Nothing is said about the verification of the votes of the Members either in Committee or in plenary.
We now come to the constitutional provision which is intended to speed up the process. This was used in the Estrada impeachment case and it is now being used in the Corona case: “In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.”
In the Estrada case, House Speaker Manny Villar, seconds after opening prayer, took a couple of minutes to read a Resolution he had in his hands which contained the signatures of 77 Members, more than what the constitutional provision required. Hence, no referral to Committee was required nor was any further vote needed. The Resolution was sent to the Senate for trial.
In the case of Corona, a Resolution containing the signatures of 188 members was brought to the Senate personally by Committee Chairman Neil Tupas. The manner of collecting the 188 signatures is now the subject of heated exchange.
The sufficiency of the Corona complaint has been challenged before the Supreme Court by some lawyers and, in the Senate itself, by Corona’s lawyers. An important question now before considering the substance of the complaint is: Who has jurisdiction to decide the issue of sufficiency of the complaint, the Court or the Senate?
Two opposing possibilities have arisen. One is that the Senate has jurisdiction because the Constitution says that “the Senate shall have the sole power to try and decide all cases of impeachment.”
On the other hand, the Court in earlier jurisprudence has asserted that it has the power to determine whether the constitutional procedure for impeachment has been followed. Besides, the Constitution has given to the Supreme Court the power to decide whether there has been “a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” Hence, can the Court decide that what happened in the House of Representatives leading to the impeachment constituted grave abuse of discretion amounting to lack or excess of jurisdiction?
We will have to await what lawyers on either side will say about jurisdiction. After the resolution of such issue, the lawyers will have to tackle next the question of sufficiency of the complaint brought to the Senate. One core issue will be the determination of the kind of verification needed.
None of the above issues arose in the Estrada impeachment. These issues, however, have been brought up in the current case and they have to be resolved before trial can proceed.
On the issue of the needed verification, the text of the Constitution as quoted above is not of much help. But the Rules of the House require that at the time of the filing, the complaint must be “verified and sworn to before the Secretary General” by the members filing it. The formula for verification is prescribed by the Rules. Was this followed? Congressional Record for December 12, 2011, has the Secretary General testifying that this was done. It should be easy enough to look into whether the verification papers exist. After all, these are public records.
After all is said and done, the final question will be whether a vote of two-thirds of all the Members of the Senae can be mustered. How many votes constitute 2/3 of the current 23 Senators, 16 or 15? There is jurisprudence to the effect that in constitutionally prescribed arithmetic fractions are ignored. Can this be applied to impeachment?
9 January 2012

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