Judicialized impeachment

There is a fundamental flaw in the way the impeachment proceedings against Chief Justice Renato Corona have so far been conducted, and it has nothing to do with the ability of Senate President Juan Ponce Enrile to manage the trial. He has proven himself impartial, authoritative, learned and credible. The problem lies with the assumption that these proceedings are akin to a criminal trial and must proceed as such.

The purpose of this impeachment is not to send Corona to jail, or forfeit unexplained or ill-gotten wealth; it is to determine whether the representatives of the people believe that he should be removed from office because he has betrayed public trust or culpably violated the Constitution. The theory of the Constitution is, because certain public officials rank so high in the affairs of the state, it is crucial that the body politic—the people—be able to trust these officials. Society will not gravely suffer if some paper pushers in the city hall are untrustworthy, but it definitely will if the chief justice or any other impeachable officer is. Trust and confidence in our leaders affect belief in the rule of law, the operations of the market, hope in the possibility of progress, and even the value of one’s citizenship. This is why, even if the president, chief justice or ombudsman are protected by a term of office, that guarantee can be breached once the people are convinced that their trust has been betrayed. This also explains why the power to impeach and remove is not lodged in judicial institutions, whose members are not chosen by the people, but in overtly political organs such as the House of Representatives and the Senate, whose members are directly voted by the people.

This understanding of the purpose of an impeachment gives us reasons why these proceedings should not be compared to a criminal trial, or in the words of a colleague, “judicialized.”

First. Judicialization disempowers our senators, most of whom are not lawyers. Our 12 non-lawyer senators may be both wise and shrewd, but the proceedings may as well be conducted in elvish to them. This is unfortunate as it prevents them from fully grasping the details of what is going on and severely impairs their ability to participate. The unnecessarily technical proceedings compel them to choose from among distasteful alternatives: risk embarrassment if they try to intervene, get a nosebleed if they seek to understand, or give up and zone out. How can they make that grave decision to acquit or convict in a case they find difficult to comprehend? How can they make an informed judgment when only their colleagues who happen to be lawyers can appreciate the texture of the technical arguments posed before them? Impeachment was never meant to be an affair among lawyers.

Second. Judicialization disempowers the people, whose opinion is the most potent constraint against arbitrary action by the impeachment tribunal. One sense of the word “political” when used to describe an impeachment is that our senator-judges are not checked by a judicial institution such as the Supreme Court but are instead constrained by the force of public opinion. Precisely because it is the people who will ultimately judge our senator-judges, it is imperative that the people be able to understand this trial without submitting themselves to the mercy of so-called legal experts. The first week of trial indubitably shows that the attention of the public was diverted from the merits of the case to the undeniable brilliance and wit of former Justice Serafin Cuevas, the difficulties of the prosecution panel, and the star quality of Representatives Miro Quimbo and Sonny Angara, and defense spokesperson Karen Jimeno. What is the point of a national coverage of these proceedings when anchors are forced to ask their lawyer-guests “who won?” because they are unsure about their own assessments? The ideal impeachment proceeding is one that is covered by the media with minimal assistance from lawyers.

Third. Judicialization undermines the power of the Senate. The resort to technical rules of judicial proceedings makes any action of the impeachment tribunal vulnerable to judicial intervention. Justice Cuevas’ repeated invocation of jurisprudence, precedent and law are not empty incantations borne out of long practice in the judicial trenches; they lay the foundation for a possible claim that because the Senate was not able to comply with the strictures of criminal procedure and the rules of evidence, it had committed grave abuse of discretion which can be corrected by the Supreme Court. The Senate must therefore be wary of being blindsided into accepting the possibility of judicial intervention in a proceeding fully entrusted by the Constitution to the political branches of government.

It is important to emphasize that an impeachment proceeding need not be conducted as a criminal trial and that the use of judicialized procedures is not the only way to establish facts. The task is to ascertain whether the allegations against Corona are true or false, and the best way to do this is by rationalizing the proceedings to ensure that the judges will be in the best position to use practical reason to sift through the layers of claims of either party. Corona’s lawyers should of course be allowed by the Senate to use all reasonable defenses to question the relevance, materiality or weight of evidence, but these can be done within the confines of a set of procedures that are efficient, understandable and fair. Otherwise, we might soon find ourselves the biggest fans of Cuevas, but nonetheless abysmally ignorant of the truth or falsity of the charges against his esteemed client.

Florin T. Hilbay teaches Constitutional Law and Legal Philosophy at the UP College of Law. He is also the director of the Institute of Government and Law Reform of the UP Law Center.