Saturday, January 28, 2012


Joaquin G. Bernas, S.J.
When one examines the text of the Constitution on impeachment, one will find that it does not define the nature of impeachment and there is very little in it about the procedural aspects of impeachment. In the process of finding what rules to apply, both House and Senate look largely towards practices in the past. But practices themselves do not yield a complete set of rules even if they might fill some gaps. For this reason, the current impeachment trial has been meeting some bumpy moments.
One key concept that can be a center of controversy is the matter of defining the nature of an impeachment trial. Is it administrative merely, civil, or criminal. On the answer to this question will depend important matters of admissibility of evidence and the quantum of proof needed to convict. But there has been no clear and exclusive characterization of the proceeding. What is often said, almost in exasperation, is that it is sui generis. It has a character all its own. One might say that it has a character that partakes principally of both a civil or a criminal matter. On the basis of that vague characterization the Senate presiding officer must determine which rules of procedure to follow. Thus there can arise a conflict on whether the presiding officer is proceeding too strictly or too liberally. That is not easily resolved. Last Tuesday, for instance, when the prosecution asked the Senate President to be more liberal, the Senate President found himself in a quandary and the prosecutor himself could not say what he meant. The latter eventually retreated saying that he placed matters at the discretion of the wisdom of the Senate President.
Another unclear matter is determining the quantum of proof that is needed to convict. In jurisprudence, there are three levels of proof – substantial evidence, preponderance of evidence, and proof beyond reasonable doubt. Substantial evidence simply means evidence that a reasonable man can rely upon to make his decision. It calls for prudential judgment. Preponderance of evidence means a quantity and quality of evidence that is enough to outweigh the quantity and quality of the evidence for the other side even if neither side is persuasive. Proof beyond reasonable doubt is proof that convinces a judge or jury to exclude all other possibilities.
When in last Tuesday’s session, the presiding officer asked what quantum of evidence was needed to convict Chief Justice Corona, the prosecution chose substantial evidence, the lightest of the proofs needed, The defense, for its part, chose proof beyond reasonable doubt. A senator judge proposed instead proof somewhere in between preponderance of evidence and proof beyond reasonable doubt and called it overwhelming preponderance of evidence.
As can be seen these are measures expressed not in exact mathematical or metaphysical terms. Overwhelming preponderance of evidence is also the term used by Charles L. Black, Jr. in his Impeachment Handbook. But as Luwrence L. Tribe has noticed, “The Senate has not employed any uniform standard of proof, instead leaving each Senator to choose his or her standard.”
Last Tuesday the Senate decided to meet in caucus in the hope of deciding what quantum of proof to use. I believe, however, that whatever the caucus might decide will not make that much difference. When voting time comes, each senator will vote according to his or her lights.
Another issue is the matter of choosing the penalty to impose in case of conviction. The Constitution says “judgment in cases of impeachment shall not extend further than the removal from office and disqualification from holding any other office under the Republic of the Philippines.” This would mean, for instance, that the Senate cannot impose the death penalty. But does the phrase “shall not extend further than removal from office and disqualification from holding any other office” also mean that a less severe penalty than removal or disqualification may be imposed such, for instance, as censure.
The phrase “shall not extend further,” taken literally, can also mean that. However, conceivably the choice of penalties listed in the Constitution is of those which can protect the public from an officer who does not deserve to hold office or who can be a risk to the welfare of the nation. Is “censure” that kind of penalty?
The offenses for which an officer may be convicted on impeachment are “culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” The word “other” modifying “high crimes” indicates that every offense in the list must be a “high crime.” This meaning is dictated by the principle of legal construction that the word “other” makes the meaning of all those enumerated of the same level of gravity. In legal gobbledygook this is the eiusdem generis rule. It would seem to me, therefore, that if the offense proved is only worthy of censure, it would mean that the offense proved is not of the same gravity as the offenses enumerated by the Constitution and that, therefore, the accused, although shamed, must be acquitted.
30 January 2012

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