Due process in impeachment
I was startled when, without any prior notice and hearing, 188 members of the House of Representatives filed a verified complaint for the impeachment of Chief Justice Renato C. Corona. I thought that due process required notice and hearing before an impeachment charge could be filed in the Senate. So, I hastened to reread the constitutional provisions on impeachment.
Two ways to impeach. Briefly, the Charter provides two ways of starting an impeachment. First, a verified complaint may be filed in the House by a congressman or by any citizen accompanied by a resolution of endorsement by a congressman. The House then refers this verified complaint to its Committee on Justice that, in turn, is tasked to determine the complaint’s sufficiency in form and substance.
After hearing the parties and by majority vote of all its members, the committee may recommend to the entire House the impeachment (or the exoneration) of the respondent. To approve the committee’s recommendation to impeach, a vote of at least one-third of all the members of the House is needed. A one-third vote is also enough to reverse a recommendation to exonerate.
Under the second way, the verified complaint to impeach is filed not by just one or two congressmen, but by at least one-third of all House members. Here, the verified complaint “shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.”
Under the first method, the respondent is heard first before a vote in the committee is taken. However, under the second method, no hearing is required and no voting is actually taken. The Constitution says that if the verified impeachment complaint is “filed” (repeat, “filed”) by at least one-third of all the House members, trial by the Senate shall “forthwith” proceed.
Bill of Rights. Apart from the provisions specifically governing impeachment, the Constitution has a Bill of Rights containing a general invocation of due process that is deemed by jurisprudence to be automatically written into every law, rule or contract. Let me quote it verbatim: “No person shall be deprived of life, liberty or property without due process of law…”
Note, the due process clause protects three basic rights: “life, liberty or property.” Obviously, a public office is not “life” or “liberty.” But does it constitute “property”? More pointedly, is a public office the “property” of a public official?
Jurisprudence answers with an emphatic “No.” No one has a vested right or a Torrens title to a public office. It is a mere privilege temporarily entrusted by the state to an individual to be exercised or used for the benefit of the people. That is why the Constitution says that a “public office is a public trust.” Ergo, the due process clause in the Bill of Rights does not cover the return to the state of a misused public office.
Traditional due process. However, due process is sourced not just from the Constitution. It is deeply ingrained in democracy; it is rooted in history and in the people’s inherent sense of justice and fair play. Themistocles immortalized it in his cry, “Strike, but hear me first.” Daniel Webster romanticized it as a law “which hears before it condemns, proceeds upon inquiry and renders judgment only after trial.”
Accordingly, the Senate, which has the “sole power to try and decide all cases of impeachment,” adopts this immortalized idea of due process. The Senate Rules gives ample opportunity for the impeached officials to be notified and heard, and to defend themselves before judgments are rendered against them. In contrast, the House does not render judgments. It merely files and prosecutes impeachment charges.
To sum up, the due process requirements of notice and hearing are observed by the House in the first method of starting an impeachment and by the Senate in the trial and decision phase. Of this, there is no dispute.
However, when one-third of the members of the House are already convinced of an official’s culpability, notice and hearing are no longer required by the Constitution. The framers probably thought it is really pointless to go through the rigors of notice and hearing. To do so may just constitute “over due process” and unnecessarily waste the time of both the respondent and the House, which has other vital lawmaking duties to perform. After all, to impeach merely means to charge or bring suit, not to convict and impose sanctions.
Finally, the penalty or sanction in an impeachment is limited only to removal from office and possible disqualification to hold public office in the future. The proceedings are not criminal in nature in which the penalty is deprivation of liberty (imprisonment) or property (fine). (But the respondent may be prosecuted criminally later.) So, the Constitution allows the ex-parte filing of the impeachment charge, under the second method, to avoid delay in the delivery of justice and to prevent a pretense, a moro-moro, of false impartiality.
As I wrote last Sunday, impeachment is sui generis, a class of its own; it is not the equivalent of a judicial proceeding in which the “life, liberty or property” of the suspect or defendant is at risk.
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