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Sounding Board
The Senate impeachment vote

By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:14:00 03/28/2011

Filed Under: Legal issues, Politics, Impeachment, Congress, Government, Civil & Public Services, Local authorities

LAST WEEK I wrote that I expected the House to vote quickly. It wasn?t as quick as I thought it would be, but it did not go beyond 24 hours.

Soon it will be the Senate?s turn to vote. How might it go? There are tricky factors built into the system which make it difficult to guess the direction the Senate might vote. There are all sorts of speculation now. But that is just what they are, speculation.

In a judicial hearing there are three levels of evidence that can be used: substantial evidence in administrative cases, preponderance of evidence in civil cases and proof beyond reasonable doubt in criminal cases. These levels of evidence do not seem to be necessarily applicable in an impeachment trial. Usually what is sought is evidence that is ?clear and convincing.? You might say that this means stronger than substantial evidence but not necessarily satisfying the requirement of proof beyond reasonable doubt. It may be that the direction of preponderance may be one way or the other but ?clear and convincing.? I must admit that it is a matter that is not easily measured.

It must be remembered that an impeachment proceeding is a political proceeding. The judges are political officers. In other words, they are policy-making officers. The object of an impeachment proceeding is not to convict a person criminally. Its only object is to remove a person from office when found to be unfit for the office or to disqualify him from holding any other office. After being removed, he or she may still be prosecuted for the offenses charged in an impeachment proceeding. Prosecution after impeachment will not constitute double jeopardy.

The outcome of an impeachment is a policy decision, a decision that determines what is deemed to be best for the nation. For that reason, the members of Congress are more correctly not asked to vote Guilty or Not Guilty. They simply are asked to vote Yes or No. True, the vote of Yes or No can be based on a judgment of guilt; but it is also possible that a senator might believe that the respondent is guilty as sin but also believe that it is more harmful to the nation to remove him or her. In which case, the vote will be No. But the case may also be the reverse. A senator might believe that the evidence against the person on trial may really be not that ?clear and convincing.? But he may also be clearly and convincingly persuaded that it is best for the nation that the person under impeachment leave office.

And let?s face it. Partisan politics is never far away. I always like to cite the vote in the impeachment trial of US President Bill Clinton. When voting time came, the Democrats to a man voted to keep him. But the Republicans voted to a man to expel him. After that there was no more debate. The result was accepted as a matter of course.

There is nothing surprising about this. The Constitution has entrusted the impeachment process to Congress which, for better or for worse, is clearly a partisan animal. Keep your fingers crossed while waiting for the Senate vote on the Ombudsman.

* * *

When a barangay ordinance becomes law. What has happened and what is happening in the Alabang barangay make for an interesting study. As soon as the barangay council approved the ordinance on contraception, there were immediate attempts to implement it. It is even reported that some vigilantes were guarding and threatening the behavior of Mercury Drug salespersons.

The law on the subject found in the Local Government Code, however, is very clear. Within 10 days from the approval of a barangay ordinance, it must be sent to the city or municipal council for review. If within 30 days the municipal or city council does nothing, the barangay ordinance becomes law. But if the municipal or city council returns it with instructions requiring changes, the ordinance will be unenforceable until the desired changes are made and reported to the higher council. Any barangay official who attempts to implement it without the blessing of the municipal or city council concerned can be subject to suspension or dismissal.

Of course a barangay council might choose to challenge the decision of a municipal or city council by going to court. But going to court will not make the barangay ordinance immediately enforceable. The decision of the court must be awaited. And even if a court favors the barangay, the court decision can likewise be appealed to a higher court by those affected by the ordinance. An appeal again will stop implementation until a final judicial decision is reached. It is thus not easy to ram the provisions of a barangay down the throats of objectors. But attempting to do just that is not unknown.

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