Saturday, February 4, 2012


Joaquin G. Bernas, S.J.
Since I was quoted by a prosecutor on my alleged view as to the meaning of “betrayal of public trust” I thought that I might as well put down my view as I expressed it in the 2009 edition of my oft-cited Commentary. I said in part:
“The way the full [1987] 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. Under the eiusdem generis rule, 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 commitment must be of the same severity as ‘treason’ and ‘bribery,’ offenses that strike at the very heart of the life of the nation.”
Grounds for impeachment are found in the United States Constitution, in our 1935, 1973 and 1987 Constitutions. But there are differences in the enumerated grounds.
The enumerated grounds for impeachment common to all of the above Constitutions are treason, bribery, high crimes. Only the 1973 and 1987 Constitutions mention graft and corruption. Betrayal of public trust is found only in the 1987 Constitution.
Our 1935 Constitution basically copied the grounds enumerated in the US Constitution but omitting “misdemeanors.” Likewise the 1973 and 1987 Constitutions have not included “misdemeanors.” The reason for dropping this ground in 1935, according to Delegate Manuel Roxas, was to avoid the risk of molesting high officials with minor offenses.
As to “culpable violation of the Constitution,” a ground not explicitly mentioned in the US Constitution, this is to be taken to mean willful violation and not violations committed unintentionally or involuntarily or in good faith or through an honest mistake of judgment.
“Graft and corruption” as ground for impeachment appears for the first time in the 1973 Constitution and has been included in the 1987 Constitution. But from the reason for the exclusion of “misdemeanor,” graft and corruption must also be understood as signifying more than just minor offenses.
The only ground for impeachment added by the 1987 Constitution is “betrayal of public trust.” What does this means?
The person responsible for the insertion of this provision said that it includes “betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute.” More generally, another Commissioner said that it could “cover any violation of the oath of office.” , However, the Committee responsible for the article on Accountability of Public Officers accepted the narrower view that betrayal of public trust “implied deliberate intent, perhaps even a certain degree of perversity, for it is not easy to imagine that individuals of the category of these [impeachable] officials would go so far as to defy knowingly what the Constitution commands.” But, again, what it all comes down to is that since “betrayal of public trust” is enumerated as among an exclusive class of offenses, it must also be seen as having the same gravity as the other offenses in the class. In other words, not every violation of public trust is an impeachable offense.
One conclusion I would draw from all these, moreover, is that “high crimes” already covers “culpable violation of the Constitution” and “betrayal of public trust.” As Lawrence Tribe notes, high crimes “will necessarily involve what is thought to be a serious abuse of official power or a stark incompatibility between the offense and the offender’s ability faithfully to execute the duties of his or her office in a manner that will not endanger the office or the nation.”
The enumerated impeachable offenses may all be found either in the Penal Code or in special laws. But treason and bribery committed by impeachable officials are paradigms of offenses which endanger the nation – treason, because it is a direct assault on government and the life of the nation, and bribery because it entails abuse of power and corruption of office.
One question that must also be asked is whether there is a difference between the meaning of “Guilty” as found in a judicial decision and “Guilty” as found in an impeachment conviction when they are dealing with offenses of equal gravity.
There is a difference in the result. When a court convicts for treason or bribery it makes a judgment that the person must make amends through loss of life or liberty. When an impeachment court imposes removal from office it makes a judgment that there are compelling reasons for shielding the nation from further harm but leaving retribution to the judgment of a court. For that reason prosecution after conviction on impeachment does not constitute double jeopardy. However, the needed quantum of proof for either criminal conviction or impeachment conviction are not far from each other, if there is a difference at all.
5 February 2012

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