OPINION: Law of unintended consequences

Manolo Quezon — The Explainer

Posted at Nov 27 2017 06:54 PM

Here's a quick review. Alexander Hamilton said impeachment is a form of national inquest into the conduct of public men. While an impeachment follows many of the procedures of a trial in court, it's a political, and not judicial, proceeding. 

That's because only a trial in a court of law can deprive you of life, liberty, or property. But public office is not property; losing public office does not diminish your fundamental liberty, or your life. What public office is, that it's a public trust. So impeachment is a procedure to determine if you deserve that trust not. 

And that procedure covers not only our highest elected officials, the president and vice-president, but the highest constitutional commissioners, and also, the Supreme Court. But if impeachment is allowed, and it's about public trust, and it's a political process, then a fundamental political question arises: Just because you can do it, should you do it?

This is especially valid because unlike in other countries, our constitutions since 1973 have made impeachment pretty easy. This goes against the grain of what impeachment is, in other places: it's supposed to be the instrument of last resort; difficult to do, because removing high officials from office is no trivial matter. 

On September 3, 1986, one of the constitutional commissioners tasked with drafting our present constitution, got up to explain his vote. The commissioner's name was Francisco "Soc" Rodrigo, poet and politician, who had been a distinguished senator before martial law. He knew better than most how things actually function in government.

Rodrigo was casting his vote on the portion of our constitution covering impeachment. He reminded his fellow commissioners that under the 1935 Constitution, impeachment was initiated by a two-thirds vote of all the members of the House of Representatives. But, under the proposed new constitution, it would only require a one-third vote.

That provision was actually a higher requirement than in the 1973 Constitution, which required two things: one-fifth of the Batasan could initiate an impeachment, but two-thirds of the Batasan had to vote in favor for there to be a conviction.

In other words you can argue that our very liberal, so very easy, impeachment requirement was a legacy of Marcos who basically wrote the 1973 Constitution. Yes and no. As I've pointed out elsewhere, Fr. Joaquin Bernas discovered that clever Marcos had everything figured out. 

The Batasan’s rules on impeachment stated that even if you obtained one-fifth of the assembly to approve impeachment, the majority party (Marcos’ very own KBL) could set up a committee which had the power to cancel the decision. Which is what happened when the opposition tried to impeach Marcos in 1985.

Rodrigo went on to mention that he moved to make the vote required to start an impeachment at least a majority one, but he was voted down. He was thus putting on record a kind of warning. "I only hope," he said, "that the officers subject to impeachment, including the President, Vice-President and justices of the Supreme Court, will not be harassed by unfounded impeachment charges by one-third of the Members of the House who might constitute members of a bloc or an alliance of parties, now that we are initiating a multiparty system." 

Still, having made his warning, Soc Rodrigo ended up voting yes and we now have what we have. And that is, in the thirty years we've had the present Constitution, Chief Justices have faced impeachment efforts thrice. The first was against Chief Justice Hilario Davide Jr. The second was against Chief Justice Renato Corona. And the present, third, attempt is against Chief Justice Maylou Sereno.

Each impeachment effort produced a crisis. When Davide's impeachment was proposed in 2003, a constitutional crisis emerged when the Supreme Court presented a united front and ordered the House of Representatives to stop. 

The crisis lay in the dilemma faced by the House: if it decided to disobey the Supreme Court, it could only enforce its will by asking the Executive, that is, the President, to order the police to force the Supreme Court to comply. In the end, Speaker Jose de Venecia Jr. made a remarkable speech, appealing to his colleagues to step back from the brink, and they did.

In contrast to Davide, Corona's impeachment was the result not of a minority, but a majority, vote by the House, whose managers or prosecutors originally bungled their case in the Senate. However, Chief Justice Corona insisted on testifying before the impeachment court and by so doing, snatched defeat from the jaws of victory which not only led to his conviction, but more importantly, public acceptance of the verdict.

The present impeachment effort against Chief Justice Sereno is somewhere in the middle. Like Corona's, the House majority is pushing the issue. Unlike Corona, Sereno is allowing her legal team to do the talking. The problem now is verging close to the Davide impeachment: in wanting members of the Supreme Court to testify before it, the House Committee on Justice is risking a constitutional crisis in going beyond the Chief Justice by dragging in other justices.

Defenders of the process make a fair point in saying what was good enough for a previous Chief Justice is good enough for the current Justice. It's a numbers game and they have the numbers. The rules are the rules. But every single impeachment effort goes beyond the institutions involved. As a political process, the real jury is not the senate, but the public. It is they --it is you, the viewer-- who will be the ultimate judge of events. 

Disclaimer: The views in this blog are those of the blogger and do not necessarily reflect the views of ABS-CBN Corp.