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Jan 17

“A method of National Inquest into the conduct of public men”

640px-The_Death_of_the_Earl_of_Chatham_by_John_Singleton_Copley.jpg

The death of Lord Chatham, by John Singleton Copley

So the Corona impeachment trial begins. The ceremonial parliamentary robes of members of the House of Lords –which served, until 2009, when the U.K. finally established a Supreme Court, as a court in certain, very specific, cases– are crimson red. As are the robes of High Court judges (and even in the Maryland Court of Appeals in the U.S.A.). There is, I suppose, a sort of historical appropriateness in Senators donning red robes for the impeachment trial of the Chief Justice, if one focuses on the historical origins of the concept of impeachment, which came from British parliamentary practice, as modified by the Americans and adopted in turn in their constitution.

The Oxford Dictionary of Politics defines impeachment as,

A formal accusation of wrongdoing. To impeach a public official is to accuse him of crimes or misdemeanours in the execution of his duties. Impeachment proceedings normally occur in the lower house of a legislature, with any subsequent trial taking place in the upper house.

Alexander Hamilton more beautifully phrased it as a “method of National Inquest into the conduct of public men,” and vigorously explained, and defended, the reasons for having impeachment in the constitution in Federalist No. 65 and Federalist No. 66. Anyone wondering why the legislature, and not the courts, has the power to impeach and convict or acquit those who have been impeached, would do well to read Hamilton. The interplay between the proposals and arguments of proponents of impeachment, like Hamilton, and his critics, are amply discussed in the U.S. Senate’s primer on impeachment trials.

Readers curious about the historical origins of impeachment in general would do well to read the section on impeachment in West’s Encyclopedia of American Law; while The Cambridge History of Law in America includes a discussion of impeachment and the first cases that laid down precedents followed by the Americans to this day, and inherited by our legal system from them. Both Woodrow Wilson, writing as a political scientist before he was president, and Robert Black, writing on the impeachment trial of Andrew Johnson, noted, and even assumed, the role public opinion would play in impeachments: both in triggering them, and in terms of the threshold that needs to be passed for conviction.

Impeachment was introduced into Philippine political practice in the 1935 Constitution, originally as a prerogative of the unicameral National Assembly, and then in the manner now familiar to us, as a process involving the House of Representatives as the impeaching body, and the Senate as the body tasked with conducting impeachment trials. The 1935 enumerated treason, bribery, and “other high crimes” as grounds for impeachment. In 1973, graft and corruption was added as an impeachable offense.

The present, 1987 Constitution, introduced two innovations as far as impeachment is concerned. The first was the introduction of “betrayal of public trust” as an impeachable offense. The second innovation was to permit ordinary citizens to file impeachment complaints, as long as they are endorsed by a member of the House; and to retain the drastically reduced numbers needed to impeach an official, in comparison to what was required under the 1935 Constitution. These two innovations were, themselves, responses to the martial law era, and in turn, a validation of the reasoning put forward by Woodrow Wilson, who quoted in turn the Westminster Review, which said impeachment had two benefits:

First, the salutary fear of the probable coming of a day of account will restrain the evil practices of some bad men and self-seekers; secondly, the legal outlet of accusation gives vent to peccant humors in the body politic, which, if checked and driven inward, would work to the utter ruin of the constitution…

Edwin Lacierda, writing at the time of President Estrada’s impeachment, pointed out Benjamin Franklin’s view that impeachment (as Wilson also observed, a century and a half later, by way of the Westminster Review quoted above) could channel public passion along constitutional channels. Here is what Benjamin Franklin had to say, according to the journal of the debates in the U.S. Constitutional Convention on July 20, 1787:

Dr. Franklin was for retaining the clause [on impeachment], as favorable to the executive. History furnishes one example only of a first magistrate being formally brought to public justice. Every body cried out against this as unconstitutional. What was the practice before this, in cases where the chief magistrate rendered himself obnoxious? Why, recourse was had to assassination, in which he was not only deprived of his life, but of the opportunity of vindicating his character. It would be the best way, therefore, to provide in the Constitution for the regular punishment of the executive, where his misconduct should deserve it, and for his honorable acquittal, where he should be unjustly accused.

It is interesting, then, to observe how the reasoning of Madison, Franklin, and others was borne out as sensible by our own national experience. Under the 1935 Constitution, impeaching an official required a vote of two-thirds on the part of the House, and three-fourths of the membership of the Senate to convict. The 1973 Constitution, which provided for a unicameral National Assembly, the Batasan Pambansa, had a low threshold for impeachment: one-fifth of its members were sufficient to impeach; and a two-thirds vote to convict. The present Constitution maintained a low threshold, but this time, made it one-third of the members of the House; while lowering the threshold in the Senate to two-thirds of its membership.

Essentially, the framers of the 1987 Constitution felt that it should be easier to impeach, and convict, an official. Furthermore, adding “betrayal of public trust” as an impeachable offense, made the grounds for impeachment in a sense, more liberal, by introducing a “catch-all” concept.

As Commissioner de los Reyes put it, during the deliberations of the Constitutional Commission,

MR. DE LOS REYES. The reason I proposed this amendment is that during the Regular Batasang Pambansa where there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term “betrayal of public trust,” as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose, Madam President.

And in another debate, Commissioner Romulo also pointed out that in deliberating on whether to convict or acquit an impeached official, Senators were not expected to adhere to standards as strict as in a court of law:

MR. MAAMBONG. Let us go to a bottom-line question then. When the Senate acting as body will now try the impeachment case, will it conduct the proceeding using principles of criminal procedure?

MR. ROMULO. I do not think so, strictly speaking, that it need be criminal procedures. The important thing, I believe, is that the involved party should know the charges and the proceedings must be, in total, fair and impartial. I do not think we have to go to the minutiae of a criminal proceeding because that is not the intention. This is not a criminal proceeding per se.

This is something crucially overlooked in current discussions on the impeachment of the Chief Justice: the 1935, 1973, and 1987 Constitutions all provided for impeachment they all provided for the President, the Supreme Court, and other high officials, to be subject to removal by means of impeachment. But over time, what constitute impeachable offenses has expanded; while the requirements to impeach and convict have been steadily lowered. In other words: there is a continuity of opinion that impeachment is a necessary procedure; and a growing consensus that impeachment should be easier to accomplish.

No one has bothered to inquire, as well, as to why it is that our past and present constitutions all provide for impeachment, but as a specifically legislative process: quite a mighty check on both the executive and the judiciary, for example, while neither of the two have much of a check on the legislature. One assumes that the presidential veto, for legislation, and the power of the Supreme Court to rule on the constitutionality of cases, including cases involving legislation, are supposed to suffice as checks on the legislature: as does another innovation in the 1987 Constitution, that of judicial review to determine if there has been gross abuse of discretion by the executive or the legislature. I’d add another: while the President has a fixed term, and Justices of the Supreme Court hold office from appointment until they reach the age of 70, legislators, with 3 and 2 terms respectively for the House and Senate, face a regular referendum on their legislative record (during elections). I’d venture, further, that in the minds of the framers of the present and previous, constitutions, the potential for either a judicial, or executive, dictatorship was seen as a possibility to guard against, while a dictatorship by the legislature (and a bicameral one at that) seems well-nigh impossible.

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