History and Nature of Impeachment and Judicial Review

“THE PHILIPPINES IS A DEMOCRATIC AND REPUBLICAN STATE.  SOVEREIGNTY RESIDES IN THE PEOPLE AND ALL GOVERNMENT AUTHORITY EMANATES FROM THEM.”[1]

A Republican form of government rests on the conviction that sovereignty should reside in the people and that all government authority must emanate from them.  It abhors the concentration of power on one or a few, cognizant that power, when absolute, can lead to abuse, but it also shuns a direct and unbridled rule by the people, a veritable kindling to the passionate fires of anarchy.  Our people have accepted this notion and decided to delegate the basic state authority to principally three branches of government — the Executive, the Legislative, and the Judiciary – each branch being supreme in its own sphere but with constitutional limits and a firm tripod of checks and balances.  The Constitution is the written manifestation of the sovereign will of the people. It is the yardstick upon which every act of governance is tested and measured.

Today, regrettably, a looming threat of an overreaching arm of a “co-equal” branch of government would appear to be perceived by many.  On02 June 2003, a complaint for impeachment was filed before the House of Representatives against the Chief Justice of thePhilippinesand seven associate justices of the Supreme Court.  On23 October 2003, a second complaint for impeachment was filed by two members of the House, endorsed by at least one-third of its membership, but this time, only against the Chief Justice.

People took to the streets; media reported what it termed to be an inevitable constitutional crisis; the business sector became restive; and various other sectors expressed alarm.  The Court itself was swarmed with petitions asking the declaration by it of the total nullity of the second impeachment complaint against the Chief Justice for being violative of the constitutional proscription against the filing of more than one impeachment complaint against the same impeachable officer within a single year.

Thus, once again, yet perhaps one of the toughest test in its more than one hundred years of existence, the Court, has been called upon to act.  Involved are no longer just hypothetical principles best left as fodder for academic debate; this time, the core values of separation of powers among the co-equal branches of the government, the principle of checks and balances, and explicit constitutional mandates and concepts come into sharp focus and serious scrutiny.

Must the Supreme Court come into grips and face the matter squarely?  Or must it tarry from its duty to act swiftly and decisively under the umbrella of judicial restraint?

The circumstances might demand that the Court must act dispassionately and seasonably.

Nothing in our history suggests that impeachment was existent in the Philippinesprior to the 1935 Constitution.  Section 21 of the Jones Law only mentions of an executive officer whose official title shall be “the Governor General of the Philippine Islands” and provides that he holds office at the pleasure of the President and until his successor is chosen and qualified.[2] The impeachment provision, which appeared for the first time in the 1935 Constitution was obviously a transplant, among many, of an American precept into the Philippine landscape.

The earliest system of impeachment existed in ancient Greece, in a process called eisangelia.[3] In its modern form, the proceeding first made its appearance in 14th century England in an attempt by the fledgling parliament to gain authority over the advisers, ministers and judges of the monarch who was then considered incapable of any wrongdoing.[4] The first recorded case was in 1376, when Lords Latimer and Neville, together with four commoners, were charged with crimes, i.e., for removing the staple from Calais, for lending the King’s money at usurious interest, and for buying Crown debts for small sums and paying themselves in full out of the Treasury.[5] Since the accession of James I in 1603, the process was heavily utilized,[6] its application only declining and eventually becoming lost to obsolescence during the 19th century when, with the rise of the doctrine of ministerial responsibility, the parliament, by mere vote of censure or “no confidence”, could expeditiously remove an erring official.[7] It was last used in England in 1806, in an unsuccessful attempt to remove Lord Melville.[8]

While the procedure was dying out in England, the framers of the United States Constitution embraced it as a “method of national inquest into the conduct of public men.”[9] The provision in the American Federal Constitution on impeachment simply read –

“The President, Vice-President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, treason, Bribery, or other High Crimes and Misdemeanors.”[10]

While the American impeachment procedure was shaped in no small part by the English experience,[11] records of the US Constitutional Convention would reveal that the Framers took pains to distinguish American impeachment from British practice.[12] Some notable differences included the fact that in the United States, the proceedings might be directed against civil officials such as the chief of state, members of the cabinet and those in the judiciary.  In England, it could be applied against private citizens, or commoners, for treason and other high crimes and misdemeanors; and to peers, for any crime.[13] While the British parliament had always refused to contain its jurisdiction by restrictively defining impeachable offenses, the US Constitution narrowed impeachable offenses to treason, bribery, or other high crimes and misdemeanors.  English impeachments partook the nature of a criminal proceeding; while the US Constitution treated impeachment rather differently.[14] Variations of the process could be found in other jurisdictions.  In Belgium, France, India, Italy, and in some states in the United States, it had been the courts, which conducted trial.[15] In Republic of China (Taiwan) and Cuba, it would be an executive body which could initiate impeachment proceedings against erring civil officials.[16]

The 1987 Constitution provides, under its Sections 2 and 3, Article XI, the skeletal constitutional framework of the impeachment process in thePhilippines-

Section 2.  The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.  All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter.  The Committee, after hearing, and by a majority vote of all its members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution.  The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution.  The vote of each Member shall be recorded.

(4) 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.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment.  When sitting for that purpose, the Senators shall be on oath or affirmation.  When the President of thePhilippinesis on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote.  No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

As a proceeding, impeachment might be so described thusly – First, it is legal and political in nature and, second, it is sui generis neither a criminal or administrative proceeding, but partaking a hybrid characteristic of both and retaining the requirement of due process basic to all proceedings.[17] Its political nature is apparent from its function as being a constitutional measure designed to protect the State from official delinquencies and malfeasance, the punishment of the offender being merely incidental.[18] Although impeachment is intended to be non-partisan, the power to impeach is nevertheless lodged in the House of Representatives, whose members are highly responsive to political and partisan influences.  The trial by the Senate is thought to reduce the likelihood of an impeachment case being decided solely along political lines.  With its character of being part criminal and part administrative, carrying the punitive sanction not only of removal and disqualification from office but likewise the stigmatization of the offender,[19] an impeachment proceeding does not exactly do away with basic evidentiary rules and rudimentary due process requirements of notice and hearing.

The House of Representatives is the repository of the power to indict; it has the “exclusive power to initiate all cases of impeachment.”  But, unlike the American rule[20] from which ours has been patterned, this power is subject to explicit Constitutional guidelines and proscriptions.  Its political discretion extends, albeit within constitutional parameters, to the formulation of its rules of impeachment and the determination of what could constitute impeachable offenses.  The impeachable offenses of “bribery,” “graft and corruption” and “treason” are clearly defined in criminal statute books.  The terms “high crimes,” “betrayal of public trust”, and “culpable violation of the Constitution,” however, elude exact definition, and by their nature, cannot be decided simply by reliance on parsing criminal law books[21] but, although nebulous, all three obviously pertain to ‘fitness for public office,’ the determination of which allows the exercise of discretion.  Excluding any definite checklist of impeachable offenses in the Constitution is a wise measure meant to ensure that the House is not unduly impeded by unwise restrictive measures, which may be rendered obsolete with a changed milieu;[22] otherwise, it would have made more sense to give the power to the judiciary, which is the designated arbiter of cases under traditionally determinate or readily determinable rules.[23] A broad grant of powers, nonetheless, can lead to apprehensions that Congress may extend impeachment to any kind of misuse of office that it may find intolerable.[24] At one point, Gerald Ford has commented that “an impeachable offense is whatever the House of Representatives considers it to be at a given moment.”[25]

The discretion, broad enough to be sure, should still be held bound by the dictates of the Constitution that bestowed it.  Thus, not all offenses, statutory or perceived, are impeachable offenses.  While some particular misconduct might reveal a shortcoming in the integrity of the official, the same may not necessarily interfere with the performance of his official duties or constitute an unacceptable risk to the public so as to constitute an impeachable offense.  Other experts suggest the rule of ejusdem generis, i.e. that “other high crimes,” “culpable violation of the constitution” and “betrayal of public trust” should be construed to be on the same level and of the same quality as treason or bribery.  George Mason has dubbed them to be “great crimes,” “great and dangerous offenses,” and “great attempts to subvert the Constitution,”[26] which must, according to Alexander Hamilton, be also offenses that proceed from abuse or violation of some public trust, and must “relate chiefly to injuries done immediately to society itself.”[27]  These political offenses should be of a nature, which, with peculiar propriety, would cause harm to the social structure.[28]  Otherwise, opines James Madison, any unbridled power to define may make impeachment too easy and would effectively make an official’s term subject to the pleasure of Congress, thereby greatly undermining the separation of powers.  Thus, where the House of Representatives, through its conduct or through the rules it promulgates, transgresses, in any way, the detailed procedure prescribed in the Constitution, the issue is far removed from the sphere of a “political question,” which arises with the exercise of a conferred discretion, and transformed into a constitutional issue falling squarely within the jurisdictional ambit of the Supreme Court as being the interpreter of the fundamental law.

The issue of “political question” is traditionally seen as an effective bar against the exercise of judicial review.  The term connotes what it means, a question of policy, i.e., those issues which, under the Constitution, are to be decided by the people in their sovereign capacity in regard to which full discretionary authority has been delegated to either the Legislature or Executive branch of the government.  It is concerned with the wisdom, not with the legality, of a particular act or measure.[29]

The Court should not consider the issue of “political question” as foreclosing judicial review on an assailed act of a branch of government in instances where discretion has not, in fact, been vested, yet assumed and exercised.  Where, upon the other hand, such discretion is given, the “political question doctrine” may be ignored only if the Court sees such review as necessary to void an action committed with grave abuse of discretion amounting to lack or excess of jurisdiction.  In the latter case, the constitutional grant of the power of judicial review vested by the Philippine Constitution on the Supreme Court is rather clear and positive, certainly and textually broader and more potent than where it has been borrowed.  The Philippine Constitution states[30]

“Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

“Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not 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.” [31]

Even before it emerged in the 1987 Constitution, early jurisprudence, more than once, supported the principle.  In Avelino vs. Cuenco,[32] the Court passed upon the internal rules of the Senate to determine whether the election of Senator Cuenco to the Senate Presidency was attended by a quorum. In Macias vs. COMELEC,[33] the Court rejected American precedents and held the apportionment of representative districts as not being a political question.  In Tanada vs. Macapagal,[34] the Supreme Court took cognizance of the dispute involving the formation of the Senate Electoral Tribunal.  In Cunanan vs. Tan,[35] the Court pronounced judgment on whether the Court had formed the Commission on Appointments in accordance with the directive of the Constitution.  In Lansing vs. Garcia[36], the Court held that the suspension of the privilege of the writ of habeas corpus was not a political question because the Constitution had set limits to executive discretion. 

To be sure, the 1987 Constitution has, in good measure, “narrowed the reach of the ‘political question doctrine’ by expanding the power of judicial review of the Supreme Court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not grave abuse of discretion has attended an act of any branch or instrumentality of government.[37]

When constitutional limits or proscriptions are expressed, discretion is effectively withheld.  Thus, issues pertaining to who are impeachable officers, the number of votes necessary to impeach and the prohibition against initiation of impeachment proceeding twice against the same official in a single year, provided for in Sections 2, 3, 4, and 5 of Article XI of the Constitution, verily are subject to judicial inquiry, and any violation or disregard of these explicit Constitutional mandates can be struck down by the Court in the exercise of judicial power.  In so doing, the Court does not thereby arrogate unto itself, let alone assume superiority over, nor undue interference into the domain of, a co-equal branch of government, but merely fulfills its constitutional duty to uphold the supremacy of the Constitution.[38] The Judiciary may be the weakest among the three branches of government but it concededly and rightly occupies the post of being the ultimate arbiter on, and the adjudged sentinel of, the Constitution.

Recent developments in American jurisprudence, steeped only in cautious traditions, would allow recourse to the judiciary in areas primarily seen as being left to the domain of the discretionary powers of the other two branches of government.  In Nixon vs. United States[39], Walter L. Nixon, Jr., an impeached federal court judge, assailed the impeachment procedure of the Senate before the Supreme Court.  Speaking for the Court, Chief Justice Rehnquist acknowledged that courts defer to the Senate as to the conduct of trial but he, nevertheless, held —

“In the case before us, there is no separate provision of the Constitution which could be defeated by allowing the Senate final authority to determine the meaning of the word “try” in the Impeachment Trial Clause.  We agree with Nixon that courts possess power to review either legislative or executive action that transgresses identifiable textual limits. As we have made clear, “whether the action (of either Legislative or Executive Branch) exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is the responsibility of this Court as the ultimate interpreter of the Constitution.”

In his separate opinion, Justice Souter also considered the legal possibility of judicial interference if the Senate trial were to ignore fundamental principles of fairness so as to put to grave doubt the integrity of the trial itself [40]—–

“If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss or upon a summary determination that an officer of theUnited Stateswas simply “a bad guy” judicial interference might well be appropriate.  In such circumstances, the Senate’s action might be so far beyond the scope of its constitutional authority and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence.”

In the earlier case of Powell vs. McCormick,[41] the US Supreme Court has ruled that while Congress possesses the power to exclude and expel its members, judicial review would be proper to determine whether Congress has followed the proper procedure for making the political decision committed to it by the Constitution.  Powell has clarified that while the Court cannot interfere with the decision of the House to exclude its members, it nonetheless is within its powers to ensure that Congress follows the constitutional standards for expulsion.[42] Powell demonstrates, first, that whether a matter is a political question depends on the fit between the actual legal procedure chosen by Congress and the circumstances to which Congress attempts to apply the procedure and, second, that the choice and application of a procedure by Congress are reviewable by the federal courts to ensure that Congress has done no more than the Constitution allows.[43]

Summing up, a Constitutional expert, Jonathan Turley observes that there may be judicial review of static constitutional provisions on impeachment while leaving actual decisions of either house unreviewable,[44] and any departure from the constitutionally mandated process would be subject to corrective ruling by the courts.[45]

Petitioners contend that respondents committed grave abuse of discretion when they considered the second complaint for impeachment in defiance of the constitutional prohibition against initiating more than one complaint for impeachment against the same official within a single year.  Indeed, Article XI, Section 3 (5) of the 1987 Constitution is explicit.  “No impeachment proceedings shall be initiated against the same official more than once within a period of one year.” But respondents, citing House Rules of Procedure in Impeachment Proceedings, argue that a complaint is deemed initiated only in three instances: 1) when there is a finding by the Committee on Justice that the verified complaint or resolution is sufficient in substance, 2) when the House votes to overturn or affirm the finding of the said Committee, and 3), upon filing of the verified complaint or resolution of impeachment with the Secretary general after a verified complaint or resolution of impeachment is filed or endorsed by at least 1/3 of the members of the House.[46] Thus, respondents assert that the first complaint against the Chief Justice could not qualify as an “initiated complaint” as to effectively bar the second complaint.  Petitioners, however, insist that “initiation,” as so used in the Constitution, should be understood in its simple sense, that is, when the complaint for impeachment is filed before the House and the latter starts to act thereon.

I would second the view[47] that the term “initiate” should be construed as the physical act of filing the complaint, coupled with an action by the House taking cognizance of it, i.e. referring the complaint to the proper Committee.  Evidently, the House of Representatives had taken cognizance of the first complaint and acted on it —-1) The complaint was filed on 02 June 2003 by former President Joseph Estrada along with the resolutions of endorsement signed by three members of the House of Representatives; 2) on 01 August 2003, the Speaker of the House directed the chairman of the House Committee on Rules, to include in the Order of Business the complaint; 3) on 13 October 2003, the House Committee on Justice included the complaint in its Order of Business and ruled that the complaint was sufficient in form; and 4) on 22 October 2003, the House Committee on Justice dismissed the complaint for impeachment against the eight justices, including Chief Justice Hilario Davide, Jr., of the Supreme Court, for being insufficient in substance.  The following day, on23 October 2003, the second impeachment complaint was filed by two members of the House of Representatives, accompanied by an endorsement signed by at least one-third of its membership, against the Chief Justice.

Some final thoughts.  The provisions expressed in the Constitution are mandatory.  The highly political nature of the power to impeach can make the proceeding easily fraught with grave danger.  Hamilton uncannily foresaw in the impeachment process a potential cause of great divide —- “In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases, there will be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.”[48]  This forewarning should emphasize that impeachment is a remedy and a tool for justice and public good and never intended to be used for personal or party gain.

Despite having conceded the locus standi of petitioners and the jurisdiction of the Court, some would call for judicial restraint.  I entertain no doubt that the advice is well-meant and understandable.  But the social unrest and division that the controversy has generated and the possibility of a worsening political and constitutional crisis, when there should be none, do not appear to sustain that idea; indeed, the circumstances could well be compelling reasons for the Court to put a lid on an impending simmering foment before it erupts.  In my view, the Court must do its task now if it is to maintain its credibility, its dependability, and its independence.  It may be weak, but it need not be a weakling.  The keeper of the fundamental law cannot afford to be a bystander, passively watching from the sidelines, lest events overtake it, make it impotent, and seriously endanger the Constitution and what it stands for.  In the words of US Chief Justice Marshall

“It is most true that this Court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should.  The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution.  We cannot pass it by because it is doubtful.  With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us.  We have no more right to decline the exercise of a jurisdiction which is given, than to usurp that which is not given.  The one or the other would be treason to the Constitution.”[49]

The issues have polarized the nation, the Court’s action will be viewed with criticism, whichever way it goes, but to remain stoic in the face of extant necessity is a greater risk.  The Supreme Court is the chosen guardian of the Constitution.  Circumspection and good judgment dictate that the holder of the lamp must quickly protect it from the gusts of wind so that the flame can continue to burn.

I vote to grant the petitions on the foregoing basic issue hereinbefore expressed.

.http://sc.judiciary.gov.ph/jurisprudence/2003/nov2003/160261_vitug.htm

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Democracy, History, Impeachment, Judicial Review, Philippines, Republican State, Sovereignty, Supreme Court and tagged . Bookmark the permalink.

3 Responses to History and Nature of Impeachment and Judicial Review

  1. ed B. says:

    this is very informative and very educational. Many many thanks.

  2. ed B. says:

    how can i view the footnotes. kindly assist me . thanks.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s