Impeachment as a political process

Gloria Macapagal-Arroyo appointed so many unfit and corrupt people to public office during her presidency that, by this measure alone, she should have been impeached several times over. For, apart from treason, nothing perhaps can be more injurious to the State than to have people like them run the government. Yet, her political allies in Congress and loyal magistrates in the highest court repeatedly came to her rescue each time she was threatened. Today we are reaping the consequences of allowing an unaccountable president to remain in office for a long time.

One of the main beneficiaries of GMA’s serial political misconduct while in office was Renato Corona, who served as her presidential legal counsel, spokesperson and chief of staff. Appointed by her as chief justice during the final moments of her presidency, in total violation of the letter and spirit of the Constitution, Corona is now himself facing impeachment.

Since impeachment is explicitly designed to try political offenses, it may not be easy for the public to understand why a Supreme Court magistrate, the holder of a non-political position, is being impeached. Perhaps a little background on the origins of impeachment as a concept would help clarify things. Filipinos borrowed the idea of impeachment from the American constitution. The founding fathers of the United States copied the concept from England, where, according to legal historians, “it was used originally for the removal of corrupt judges.”

When the American states were still colonies, governors and the judges were appointed by the English monarch, while the assemblies were chosen by the colonists themselves.  From this was born the idea that of the three branches of government in an independent United States, the congress would have the power to remove the president and the federal judges. The president was subject to the impeachment powers of congress in order to make sure that he would not behave as a king.  The magistrates were subject to impeachment to ensure they would not behave like minions of the president who appointed them.

Impeachment therefore was not meant to dispense justice in the manner of ordinary courts. Indeed, under both the American and Philippine constitutions, when someone is convicted by an impeachment court, the penalty does not go beyond removal from office and disqualification to hold public office. If the impeached official is charged with committing criminal offenses, as is often the case, he will be separately indicted, tried and judged by the regular courts. This shows what is meant by impeachment as a political process. From this perspective, we may view impeachment as an institutional expression of people power. It will be recalled that following his removal from the presidency (not by impeachment but by a civilian-military uprising), Joseph Ejercito Estrada was, in addition, indicted and convicted by the Sandiganbayan for criminal offenses.

Impeachment usually does not draw from a set of established definitions and procedures, as much as it does from the well of past experience. Impeachable offenses remain vaguely defined, and because of the origin of the concept itself, their formulation is—not surprisingly—archaic. Article XI, Section 2 of the 1987 Philippine Constitution states: “The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitutions, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” That’s almost a copy of the impeachment provision of both the 1973 and 1935 constitutions.

The term “high crimes” was part of the classic pair “High Crimes and Misdemeanours” first used in 14th century England.  There is no standard definition of “high crimes,” but there is a general notion that the term, just like “breach of public trust,” refers to political crimes against the State that are not necessarily punishable as criminal offenses. Justice Joseph Story, a member of the US Supreme Court from 1811 to 1845, wrote what is probably the most influential commentary on the US Constitution. He was fully aware of the futility of defining political offenses: “Political offenses are of so various and complex a character, so utterly incapable of being defined or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.” (Cited in D. Lindorff and B. Olshansky’s book, “The case for impeachment.”)

But there have been attempts to synthesize the lessons from past impeachment proceedings. One of these culminated in a 1974 report of the US House judiciary committee that arrived at three groups of impeachable offenses, namely: actions that exceed the constitutional limits of the powers of the office, actions that are incompatible with the functions of the offender’s position, and actions that use the power and authority of the office for improper purposes and personal gain. One may note from the generality of these categories that the US Congress is nowhere near a consensus on what constitutes an impeachable offense. Indeed, then Congressman Gerald Ford, who filed an impeachment case against Supreme Court Justice William O. Douglas, was quoted as saying that an impeachable offense “is whatever a majority of the House [considers it] to be at any given moment in history.”

Ford’s statement is consistent with the political nature of impeachment, but it does not tell the whole story.  Though Congress can make and change the rules, they cannot ignore precedent and public opinion—like the Supreme Court, ironically.  It is often said that the Constitution is what the Supreme Court justices make of it. That is true only to a certain extent. Neither they, as we hope they realize by now, can completely ignore precedent and public opinion.

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