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Jan 22

The Nature of the Beast: Sui Generis

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You don’t need Sherlock for this one.

sui generisadjectiveunique: the sui generis nature of animals.ORIGIN Latin, literally of its own kind.

The 1987 Constitution, in Article XI, Accountabilty of Public Officers, includes the following:

SECTION 2. 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 Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment…

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.

In 1986, during the proceedings of the Constitutional Commission, Commissioners Maambong and Romulo discussed how they, and future generations, ought to understand impeachment and impeachable offenses. They did it by Maambong proposing definitions, and asking Romulo if the definition was correct, thus spelling out the intent of the framers of the Constitution.

The first question Maambong asked Romulo was, are impeachment proceedings criminal in nature or not?

Maambong first quoted an American court decision that seemed to suggest impeachment was criminal in nature, then put forward this explanation:

“… impeachment and the criminal law serve fundamentally different purposes. Impeachment is the first step in a remedial process. The purpose is not personal punishment. Its function is primarily to maintain constitutional government. The general applicability of the criminal law also makes it inappropriate as the standard. In an impeachment proceeding, a President is called to account for abusing powers which only a President possesses. Impeachable conduct may include the serious failure to discharge the affirmative duties imposed on the President by the Constitution. Unlike a criminal case, the cause for removal may be based on his entire course of conduct in office. It may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.”

Which came from the 1974 Report of the U.S. House Judiciary Committee (Part III) or, to be precise (as you will see, what was quoted above seems somewhat condensed, or paraphrased),

Impeachment and the criminal law serve fundamentally different purposes. Impeachment is the first step in a remedial process– removal from office and possible disqualification from holding future office. The purpose of impeachment is not personal punishment; its function is primarily to maintain constitutional government. Furthermore, the Constitution itself provides that impeachment is no substitute for the ordinary process of criminal law since its specifies that impeachment does not immunize the officer from criminal liability for this wrongdoing.

The general applicability of the criminal law also makes it inappropriate as the standard for a process applicable to a highly specific situation such as removal of a President. The criminal law sets a general standard of conduct that all must follow. It does not address itself to the abuses of presidential power. In an impeachment proceeding a President is called to account for abusing powers that only a President possesses.

Other characteristics of the criminal law make criminality inappropriate as an essential element of impeachable conduct. While the failure to act may be a crime, the traditional focus of criminal law is prohibitory. Impeachable conduct, on the other hand, may include the serious failure to discharge the affirmative duties imposed on the President by the Constitution. Unlike a criminal case, the cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert consitutional government.

To confine impeachable conduct to indictable offenses may well be to set a standard so restrictive as not to reach conduct that might adversely affect the system of government. Some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law.

Romulo replied,

MR. ROMULO: Yes. Firstly, we agree with the quotation that the Commissioner has just read. Insofar as we are concerned, the procedure is analogous to a criminal trial but it is not a criminal prosecution per se. The goal of an impeachment is merely to remove the fellow from office for the crimes indicated. However, Section 3 (6) of this proposed Article itself — and this is really very close to the provision of the 1935 Constitution —

The framers then went on to discuss this passage (I can’t find the exact passage in the 1916 edition of A Treatise on Federal Impeachments by Alexander Simpson Jr. so perhaps the passage is from a later edition):

A person subject to impeachment by Congress is entitled to due process of law although presently there is little judicial authority. It can be suggested that he is also entitled to his privilege against self-incrimination, right to counsel, right to be informed of the nature and the cause of the accusation against him, and the right to be confronted with adversary witnesses.

And Mambong, after reading the quote into the record, asked, would the statement be applicable to an impeachment proceeding? Romulo replied that first, the House and Senate would have their own rules; that what was read above, applies more to criminal proceedings, but since impeachment is not a criminal proceeding, then,

MR. ROMULO: I do not think, strictly speaking, that it need be criminal procedures. The important thing, I believe, is that the involved party should knew the charges. He must have the opportunity to answer 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.

The Constitution, of course, speaks for itself. Section 2 of Article XI of the 1987 Constitution specifically provides that

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 Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

And it says that

Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

It’s interesting that Chief Justice Corona (then Associate Justice) in his Separate Opinion in Francisco Jr. vs. House of Representatives, 415 SCRA 44 (2003), which was the case questioning the impeachment proceedings against Chief Justice Hilario Davide, Jr., wrote the following. In his opinion, he observed that impeachment was among the “devices”

…meant to prevent abuse by the three branches of government. One is the House of Representatives’ exclusive power of impeachment for the removal of impeachable officers from their positions for violating the mandate that public office is a public trust.

Impeachment under the Philippine Constitution, as a remedy for serious political offenses against the people, runs parallel to that of the U.S. Constitution whose framers regarded it as a political weapon against executive tyranny. It was meant ‘to fend against the incapacity, negligence or perfidy of the Chief Magistrate.’ Even if an impeachable official enjoys immunity, he can still be removed in extreme cases to protect the public.

Just to spice things up, you can also put forward the dissenting opinion of Justice Carpio in the case of the plagiarism case against Justice del Castillo:

While impeachment is often described as a political process, it also functions as the equivalent of administrative disciplinary proceedings against impeachable officers. Impeachable officers are not subject to administrative disciplinary proceedings either by the Executive or Judicial branch, in the same manner that non-impeachable officers are subject. Thus, impeachment by Congress takes the place of administrative disciplinary proceedings against impeachable officers as there is no other authority that can administratively discipline impeachable officers. Removal from office and disqualification to hold public office, which is the penalty for an impeachable offense, is also the most severe penalty that can be imposed in administrative disciplinary proceedings.

Impeachment is not a criminal proceeding because conviction in an impeachment complaint is not a bar to criminal prosecution for the same act. An impeachable offense, like betrayal of public trust, may not even constitute a criminal act. Like in an administrative proceeding, proof beyond reasonable doubt is not required for conviction in impeachment. If an impeachable officer is charged of a crime, as distinguished from an administrative charge, the proper court has jurisdiction to try such impeachable officer because the proceeding is criminal, not administrative. However, neither the conviction nor acquittal of such impeachable officer in the criminal case constitutes a bar to his subsequent impeachment by Congress. There is no double jeopardy because impeachment is not a criminal proceeding.

As much as possible, what the Constitution says is what is intended; only when controversy arises do lawyers and scholars go into what the framers of the document intended. In the Constitution, the impeachment of public officials merely results in removal from office and nothing more, which, as some lawyers have pointed out, is the function of an administrative proceeding. Otherwise, further criminal trial wouldn’t be possible, on the principle of double jeopardy

The Senate President, who rules on any question unless his ruling is appealed and subjected to a vote which can approve or reject his ruling, has made some interesting remarks on the nature of an impeachment.

His interview is well worth watching in full.

His views, as Enrile told the House prosecutors, is “the product of my own mind.” The Senate President’s interview also suggests that even as he says an impeachment trial, although sui generis, is in his mind, closer to a criminal proceeding than it is to an administrative proceeding. In that sense, he seems to be closer to the views of the defense, which insists the trial is closer to a criminal case, than the prosecution, which views the trial as more administrative in nature.

However he also says that as far as the evidence is concerned, what will be required is not “proof beyond reasonable doubt,” but rather, “clear and convincing evidence.” To understand what this debate is about, and where the Senate President’s mind is, you’d have to look at Rule 133 of the Rules of Court: Weight and Sufficiency of Evidence.

Some (these would be those who view impeachment along the lines of a civil case) have mentioned a preponderance of evidence as the standard that should apply:

SECTION 1. Preponderance of evidence, how determined.— In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

The defense seems inclined to insist on proof beyond reasonable doubt, as in criminal cases:

SEC. 2. Proof beyond reasonable doubt.—In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

The Senate President, however, seems inclined to adopt substantial evidence as the standard:

SEC. 5. Substantial evidence.—In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

In this instance, personally, I’m inclined to agree with the Senate President, as he seems to have taken into account the reality that the Senate is not entirely composed of lawyers, that the proceedings are not criminal in nature, and the Senate acting as an impeachment court is indeed a quasi-judicial body.

There’s a recent case (2010), Miro v. Dosono, where the Supreme Court said,

As an administrative proceeding, the evidentiary bar against which the evidence at hand is measured is not the highest quantum of proof beyond reasonable doubt, requiring moral certainty to support affirmative findings. Instead, the lowest standard of substantial evidence, that is, such relevant evidence as a reasonable mind will accept as adequate to support a conclusion, applies. Because administrative liability attaches so long as there is some evidence adequate to support the conclusion that acts constitutive of the administrative offense have been performed (or have not been performed), reasonable doubt does not ipso facto result in exoneration unlike in criminal proceedings where guilt must be proven beyond reasonable doubt. This hornbook doctrinal distinction undergirds our parallel findings of administrative liability and criminal acquittal on reasonable doubt for charges arising from the same facts.

There’s something similar in Filoteo v. Calago (2007) in which then Associate Justice Corona took part:

Public office is a public trust. A public servant must bear at all times the highest sense of honesty. This is especially significant for employees in the judiciary. The image of a court of justice is necessarily mirrored in the conduct, official or otherwise, of its personnel, from the judge to the lowest employee. Hence, those involved in the administration of justice must live up to the highest standard of honesty and integrity in the public service. Not only must their conduct at all times be characterized by propriety and decorum but, above all else, it must be beyond suspicion…

In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial evidence or such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. Well-entrenched is the rule that substantial proof, and not clear and convincing evidence or proof beyond reasonable doubt, is sufficient as basis for the imposition of any disciplinary action upon the employee. The standard of substantial evidence is satisfied where the employer, as in this case the Court, has reasonable ground to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of trust and confidence demanded by his position.

Seems common-sense: in an administrative proceeding, the question is whether the person is fit to remain in his or her position; what is at stake is not something like life, liberty, or property, but merely a job. Depriving someone of life, liberty, or property, on the other hand, would require a very high standard as something someone has an inherent right to is at stake. The prosecution could very well argue for standards based not only on jurisprudence, but which the current Chief Justice himself put forward as one of the justices!

The problem with this (having to choose a standard for all), however, is a simple one. And it has to do with impeachment being entrusted to a body that doesn’t necessarily have to be composed of lawyers –the Senate. And which is, furthermore, more like a jury than it is a collection of judges. What is “the product of my own mind” for Enrile isn’t necessarily going to apply any other senator: for example, Senator Trillanes has already indicated what his criteria will be:

Having established that impeachment is a political process, therefore, my verdict should not be based solely on evidence as it now becomes a matter of public policy. And the over-arching policy issue in this whole impeachment episode is, whether the conviction or acquittal of Chief Justice Renato Corona would be good for our country? To resolve this, I intend to use political acceptability as the sole criterion to evaluate the projected outcomes of either policy alternative of conviction or acquittal. To determine political acceptability, I intend to use policy research tools such as quantitative and qualitative researches and stakeholder analysis. These, along with extensive consultations, could very well filter the noise of the mob and undue media influence from the true will of the people.

One might ask, if we were representatives of the people and, therefore, entrusted with the authority to decide on our own what is in the best interest of the public, then why wouldn’t we just decide, based on our own personal and ideological values? If the decision was merely for ordinary pieces of legislation, then I would not hesitate to use that prerogative. But an impeachment of the Chief Justice of the Supreme Court is not a daily occurrence and it has very serious short-term and long-term implications to our fragile Democracy. So, I believe, getting as many people involved in the decision-making process is very much warranted.

Again, one might ask, as one of my colleagues did, why don’t we just conduct a referendum to resolve this dilemma? Well, the answer is quite simple – our country is not a direct democracy. We are, in fact, a representative democracy wherein the people indirectly govern their country through elected representatives. It is the representative’s discretion whether to consult his constituents or assume that he is omniscient. More importantly, referendum is not the procedure stated in our Constitution.

This does not mean, however, that the evidence should be completely disregarded. Definitely not! Because the strength or weakness of the evidence, and how they are presented could very well affect the political acceptability of either policy alternative. Having said this, it would help if the prosecutors and defense counsels would not to be too technical in their presentations. Ultimately, they would have to win the hearts and minds of the people.

As regards the appreciation of evidence, we have to bear in mind that the Constitution and the Senate Rules of Procedure on Impeachment Trials did not specify the quantum of evidence required to convict. Is it beyond reasonable doubt as what is used in criminal proceedings? Is it preponderance of evidence as what is used in civil cases? Or is it substantial evidence as what is used in administrative proceedings? Since it is not specified, therefore, a senator can just raise or lower the quantum of evidence required to suit his or her inclination.

Trillanes’ speech is very much worth a read, as it provides a rare insight into how at least one senator views his role in the impeachment trial. But the truth of the matter is that each senator will adopt his own standards and the best the chair can do is suggest standards of his own, for the other Senators to adopt. Trillanes’ statement on technicalities, too, is significant.

The Senate President as chair has said in public, and from the rostrum, that he intends to be liberal in the interpretation of the rules. On the other hand, the defense seems inclined to fight it out with a torrent of technicalities, either in the hope of winning on that score or simply to fluster the prosecution. It’s interesting how a veteran lawmaker (and lawyer) like Enrile, and a soldier-senator like Trillanes, seem to be of similar minds when it comes to technicalities.

Justice Sherman Moreland (perhaps more famous in the U.S. for being the lead prosecutor in the famous court martial of Billy Mitchell, father of modern American air power) penned a famous condemnation of over-reliance on technicalities in 1910, in a passage that has been repeatedly quoted in other Supreme Court decisions and legal textbooks:

A litigation is not a game of technicalities in which one more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is rather, a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done upon the merits. Law-suits, unlike duels, are not to be won by a rapier’s thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested rights in technicalities.

So the question will eventually require a ruling by the chair: either out of exasperation with the defense, or at the insistence of the prosecution, or even, by request of the defense itself, if it feels the chair is inclined to share its view about the impeachment trial hewing closer to a criminal than administrative proceeding. In Pontejos v. Disierto (2009) the Supreme Court (with then Associate Justice Corona concurring) pointed out,

Administrative bodies are not bound by the technical niceties of law and procedure and the rules obtaining in courts of law. In administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense. In fact, it is well-settled that, in administrative cases, the requirement of notice and hearing does not connote full adversarial proceedings. Thus, petitioner was not denied due process when he failed to cross-examine Aquino since he was given the opportunity to be heard and present his evidence. To repeat, in administrative cases, a fair and reasonable opportunity to explain one’s side suffices to meet the requirements of due process.

Recall that the Senate’s own Rules on Impeachment adopt the Rules of Court as a supplement to its own rules:

VI. The President of the Senate or the Chief Justice when presiding on the trial may rule on all questions of evidence including, but not limited to, questions of materiality, relevancy, competency or admissibility of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless a Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision after one contrary view is expressed; or the Presiding Officer may at his/her option, in the first instance, submit any such question to a vote of the Members of the Senate. The motion for a vote and the contrary opinion shall not take more than two (2) minutes each, with a one minute rebuttal allowed for the proponent of the motion. The provisions of the Rules of the Senate and the revised Rules of Court shall apply suppletorily whenever applicable.

Technicalities aside, the reality is that tradition has both put forward the view that impeachment trials should be as objective and impartial as possible (and stated by the Senate Rules), but at the same time, in deliberations on impeachment, partisanship has always been taken into consideration: it can be argued that in the United States, party-line votes have often been the case in impeachments; the outcome of the famous “second envelope” vote in the Estrada impeachment trial was along the lines of a party-line vote, too: what then, is the antidote to perceived partiality? That is where public opinion comes in, you only have to recall how senators perceived to be responsible for the “second envelope” did in the May, 2001 elections compared to those who voted to open the envelope.

Whatever standard applies, since each senator will make up his or her own mind, the best that can be said is that each vote will be a conscience vote.

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