Whence are the senators currently judging the impeachment trial coming from? They are the same senators who were elected to the Senate two or four years ago. And what was the extent of the power of the Senate to which they were elected? Their power was only coequal with those of the executive department and the judicial department. How explain the claim of some senators now that their power while acting as impeachment judge has suddenly skyrocketed to a level higher than that of the Supreme Court? The answer to this question is a mystery to me.
The contention that the Senate judging the impeachment trial now is superior to the Supreme Court rests on the assumption that the Senate as impeachment judge is different from the Senate originally elected. If this is not the Senate originally elected, where did it come from? From Mars?
The fact, however, is that the powers being exercised during the impeachment trial are powers given to the Senate originally elected. They are non-legislative powers which are dormant until the Senate is called to be judge in an impeachment trial. If you will look at the constitutional provisions on impeachment, you will not find a reference to a “Senate court” or a “Senate jury.” The only thing you will find is “Senate,” period. The Senate judging the current trial was created by Article VI and not by Article XI.
In other words, there is only one Senate which occasionally acts as impeachment court in the same manner that there is only one Supreme Court which occasionally acts as Presidential Electoral Tribunal. The Senate, whether acting as impeachment court or legislative body, is the same Senate that is coequal with and not superior to the other departments. If there must be talk of superiority among the three departments, only the Constitution is superior. All must bow to the Constitution.
Does the fact that the Constitution makes the Senate “the sole judge of all impeachment cases” make it superior to the Supreme Court in everything relating to impeachment? Perhaps we can find an answer to this question by looking at the jurisprudence on the relation of the Supreme Court to other agencies of the government. For instance the Constitution also says, “The House of Representatives shall have the exclusive power to initiate all cases of impeachment.” Does the exclusivity of the power of the House of Representatives rule out any role for the Supreme Court? We already saw that in the Davide impeachment case and the Gutierrez case the Supreme Court came in to resolve matters of interpretation of the law on impeachment. Similarly, in the Electoral Tribunal cases, where the Constitution says that the Electoral Tribunal shall be the “sole judge of all election contests,” the Supreme Court has come in to determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the tribunal because the power to make such judgment has been given to the Supreme Court. Again, in the participation of the Senate in the formation of the Commission on Appointments where membership is determined by the Senate on the basis of proportional representation of the various political parties in the Senate, the Supreme Court came in to determine that fractions should be ignored in the allocation of members even if ignoring fractions would result in less than 12 senator-members of the commission.
What all this means is that the Supreme Court can come in when needed to determine the meaning of the law. This does not mean superiority of the Court over the other departments. All it means is that the Constitution has placed in the Supreme Court the power to determine with finality the meaning of the law. It means the superiority of the Constitution. A fundamental principle of our constitutional system is separation of powers. The Legislature enacts the laws, the Executive implements them, the Judiciary resolves legal controversies by the application of law of whose final meaning the Supreme Court is judge.
This is the law until our constitutional system is revised by the people and not by a few senators led by the President.
It is a dangerous matter when either the Legislature or the Executive believe that they are superior to the law. Worse yet, if both of them conspire to claim, in word or deed, superiority over the law. Have we begun to see this happening?
The approach, however, might not be as blatant as that. The approach can also be by trying to shame the opponent to submission.
How powerful is the Chief Justice? Another issue which has come up is the extent of the power of the Chief Justice over the other members of the Court. There are implications in some of the articles of impeachment that the Chief Justice has control over the direction of the other members of the Court.
The President has the power of control over the entire executive department. This means that the President can substitute his judgment for the judgment of any executive officer. The Chief Justice has no such power. His vote has only the same weight as the vote of any of the other justices. Influence, perhaps, yes; but control, no.