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Commentary

Impeachment: A class of its own

05:05 AM December 11, 2017

The nation is once more treated to another theatrical political saga that might yet redraw public interest in and attention to one of the world’s oldest professions: law. Two of the country’s ranking constitutional officers face the prospect of being tried and judged by the Senate sitting as an impeachment court.

Impeachment is a sui generis constitutional process — a class of its own. It is dissimilar to civil, criminal, or administrative cases. At most, impeachment may be considered quasicriminal because it is punitive in character: It might result in the removal from office, and perpetual disqualification to hold any public office, of an impeachable ranking public official. Impeachment is neither a legislative process nor an investigation in aid of legislation.

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The impeachment process is an exercise by the people, through their duly elected representatives, of the sovereign power to exact accountability from, and impose discipline upon, certain ranking public servants who owe their positions to the Constitution. It is also a mechanism for the implementation of the system of checks and balances in a republican government whose powers are allocated by the Constitution among coequal branches.

While impeachment is a constitutional process, it is subject to certain constitutional limitations, such as the due process clause, the right against self-incrimination clause, the right to confront witnesses clause, and the exclusionary rules of
evidence (i.e., those obtained in violation of the Constitution are inadmissible).

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Impeachment is a two-step process: The first involves the determination of the sufficiency of the complaint as to form and substance that would merit the generation of an article of impeachment (a complaint lodged at the Senate which will sit as an impeachment court); the second involves the trial proceedings in the Senate.

By analogy, the first step may be likened to a preliminary investigation by the prosecutor’s office prior to the filing of an information — procedural jargon for a criminal complaint—at the Regional Trial Court.

The respondent does not exercise the right to cross-examine the accuser in a preliminary investigation, which is a fact-finding process conducted by the prosecutor to determine the sufficiency of the substance of an accusation to warrant a criminal charge. The respondent’s right to due process is accorded to him or her through the furnishing of a copy of the complaint, and an opportunity to submit a controverting affidavit and evidence.

The investigating prosecutor, however, has the sole discretion to conduct a clarificatory hearing, and require the presence of the parties. But a respondent cannot be compelled by the investigating prosecutor to appear or give self-incriminating testimony. The respondent’s failure to appear before the investigating prosecutor for a clarificatory hearing would only amount to a waiver of a right to clarify, or expound on the controverting affidavit or evidence.

In the same vein, a respondent in an impeachment complaint may be summoned to appear before the House committee on justice for a clarificatory hearing, not on the sufficiency of the complaint in form or substance, but on the controverting affidavit or evidence submitted by the respondent. If the respondent chooses not to appear before the justice committee, such nonappearance should only amount to a waiver of a right to clarify or expound on the controverting affidavit, or evidence submitted in answer to the impeachment complaint.

It would be grossly antithetical to the basic sense of fairness to require a respondent in an impeachment complaint, under pain of contempt, or even arrest, to give testimony under compulsion in the determination of the sufficiency of the grounds for an article of impeachment set forth in the complaint. It would be sheer derogation of the respondent’s constitutional right to due process of law—an inherent constitutional limitation to an impeachment proceeding.

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Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.

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