BEFORE CONGRESS rushes Ombudsman Merceditas Gutierrez to the impeachment gallows, amid the Aquino administration’s intensified call lusting for her head, it is important to pause and consider that impeachment stretches the capacity of the constitutional system to conduct a trial consistent with the rule of law and due process.
The House of Representatives is set to debate in plenary next week the articles of impeachment drafted by its committee on justice (which can easily become a misnomer, depending on the House’s performance in a deciding to send the complaint against Gutierrez to the Senate).
Impeachment has not been a glowing success in the Philippines as a constitutional process to remove high officials accused of abuse of power under the matrix of the generic offense described as “betrayal of public trust” in the Constitution. Since the Philippines became a democratic republic, there has only been a single instance when an impeachable official was impeached by the House and tried by the Senate: the case against President Joseph Estrada in November 2000. He was charged with accepting bribes, engaging in graft and corrupt acts and betraying public trust.
The impeachment process, which lasted 67 days, did not run its full course. It was aborted on Jan. 16, 2001, when the Senate voted 11-10 not to open a brown envelope containing evidence on Estrada’s alleged P3.3-billion secret bank account. The House prosecution panel walked out in protest. The suppression of evidence provoked widespread people power demonstrations resulting in the military high command’s decision to withdrew support from the Estrada government. The government collapsed, leading to the Supreme Court’s decision to swear in then Vice President Gloria Macapagal-Arroyo as president.
It appears certain that the House will vote to impeach Gutierrez (given the claims of the chair of the House justice committee that the House leadership has lined up the numbers to push it). I have cited the Estrada impeachment episode to illustrate the point that tampering with due process, in the case of Gutierrez, through heavy-handed political intervention, could not only politicize it into a post-election combat between President Aquino and Arroyo, it is also fraught with risks of opening the way for extra-constitutional interventions, such as people power, a form of mob rule.
This is not a brief for the acquittal of Gutierrez by the Senate. The dynamics of the two impeachment cases make them entirely different. By all means, let her stand trial where she could defend herself according to the judicial rules of evidence.
At this stage of the impeachment action, Gutierrez has already been bashed beyond recognition in the political sector (i.e., in the House of Representatives), prejudged and condemned guilty on the basis of (untested) evidence the committee on justice has assembled in its draft of the articles of impeachment, which has been disseminated to the mass media.
Allowing for dissimilarities in the American and Philippine impeachment processes, the Senate laid down its own rules of procedure in the Estrada case while drawing on American jurisprudence for guidance.
In a report to the US Congress, the Congressional Research Service said impeachment trials in the Senate “are rare in that only 11 impeachment trials have been completed over the 221-year history of the Senate. ‘’ (See CRS report, “The Role of the Senate on Judicial Impeachment Proceedings: Procedure, Practice and Data,” Susan Navarro Smelcer, April 9, 2010.)
According to the report, “While the judicial branch was designed by the Framers to be independent of political influence, the methods of judicial appointment and removal were designed to be political. The President and the Senate determine who is placed on the bench… the House of Representatives and the Senate determine who is removed. As both the President and Congress are subject to the approval of the voters, the appointment and removal process is ultimately a political one.”
The report provides illuminating insights into the philosophical underpinnings of the American procedures on impeachment. It describes the US process: the House possesses the “sole Power of Impeachment… the House’s decision of whether to impeach a judge is somewhat analogous to an indictment, in that the House acts as a grand jury and may impeach by only a majority.”
Once a judge has been impeached, the Senate is notified. “In some respects, the Senate acts similarly to a petit jury determining whether to convict on the articles of impeachment transmitted by House.”
Pointing out a crucial element in impeachment proceeding, the report emphasizes that an impeachment trial “stands wholly separate from a criminal proceeding… As a political process, impeachment and conviction as delineated by the Constitution seek to protect the integrity of the American political institutions.”
On this point, the report recalls that House managers (the House prosecution panel in our case) argued in a 1989 impeachment trial:
“Criminal proceedings and impeachment serve fundamentally different purposes: the former is designed to punish an offender and seek retribution, while the latter is the first step in a remedial process. The purpose of impeachment is not personal punishment, but rather to maintain constitutional government through removal of the unfit from positions of public trust.”