Sounding Board : Impeachment talk
Fr. Joaquin G. Bernas, S.J.
Inquirer News Service
IMPEACHMENT is of British origin. Ironically, however, in the British system, neither the king nor the prime minister is subject to impeachment. The only way for the British to be rid of an unwanted monarch is by revolution or assassination. As for the prime minister, he or she is essentially a legislative creature who may at any time be replaced by parliament through a no-confidence vote. This means, the prime minister can be theoretically ousted for reasons as trivial as the quality of his sartorial preferences.
When the American founding fathers were formulating the Federal Constitution, they had no intention of setting up a monarch who could rule for life. But they did want to give him 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 presidential office of one who has been found unworthy of it. They were 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 immune from suit, 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 for this purpose was the impeachment process. This is what has been transplanted into the Philippine Constitution. The President is immune from suit while in office but removable by conviction on impeachment.
The object of the impeachment 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, [it] 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." Thus, prosecution after impeachment does not constitute prohibited double jeopardy. It is therefore understandable why a sitting President will fight tooth and nail to stay in office.
Up until the year 2000, when President Joseph Estrada was impeached, Philippine experience showed impeachment to be an ineffective means for removing an unwanted President. In the three earlier instances where there was a move to impeach a Philippine president-first in 1949 against President Quirino and again in 1963 against President Macapagal and in 1986 against President Marcos-the move never went beyond the initiation stage because of failure to muster the required number of votes in the House. But the 1987 Constitution reaffirmed the nation's faith in the impeachment process. At the time of its drafting, it had already been seen that the threat of impeachment was enough of a motivation for US President Richard Nixon to relinquish his office voluntarily.
By now the Filipino public has become familiar with the fact that impeachment, as structured in our Constitution, has two phases: the House of Representatives phase and the Senate phase. Neither process is characterized by pure rationality.
The power of the House to impeach, that is, its power to send accusations to trial by the Senate, is encumbered by procedural and substantive limitations. We are witnessing this now as congressmen quarrel over form and substance.
Substantively, the grounds can only be "treason, bribery, graft and corruption, other high crimes, and betrayal of public trust." Of these, "betrayal of public trust" is the most amorphous and can cover a multitude of sins. I would say that these substantive encumbrances are not insurmountable, not necessarily because I see supporting evidence but especially because we know that politicians as judges are not generally imbued with the judicial quality of cold neutrality.
As to correctives to House errors, the Supreme Court can correct procedural errors, as it did in the Davide case, but it must leave substantive issues for review by the Senate as the "sole judge" of impeachment cases.
No one will claim that the Senate as impeachment judge considers cold impartiality as a paramount value. Consider the herd behavior of the US senators in the Clinton case. Not a single Democrat voted "Guilty." Remember, too, how the Estrada impeachment never reached conclusion. Senators voted with their feet.
It is important to remember that, in an impeachment, what is involved is not just a legal decision but also a policy decision. It is for this reason that the responsibility for impeachment has been given not to a court of justice but to a political (read "policy-making") body. Thus, when the senators deliberate on what verdict to support, the question they answer is not only whether there is evidence to support a "Guilty" verdict, but also whether, under the circumstances, the preferred policy should be to remove the offending official who is on trial.
In other words, a verdict of "Not Guilty" does not necessarily mean "innocent." It can also mean guilty, but not guilty enough to support removal as the preferred policy option under the circumstances of the nation. When you look at it from this perspective, the debate about the quality of evidentiary proof-whether proof beyond reasonable doubt, or preponderance of evidence, or substantial evidence, or even clear and convincing evidence-is not of paramount importance. What is decisive is the gut feel of the individual senators.
It is again gut feel season. But first the impeachment charges against the President must test the gut feel of the members of the House before they can test the gut feel of senators.
