How an emergency solution has become old hat
(SPOT.ph) You’ve probably heard of the Ides of March, of which Julius Caesar was warned to beware, and on which he was stabbed to death by those he’d considered his friends. Such is the way of power politics: If you get too powerful for comfort, someone is likely to want to pull out a knife.
And so it was that some who saw Ferdinand Marcos methodically paving the way for a dictatorship planned to prevent it the old-fashioned way: through assassination. As one of them once told me, they hatched two cunning plans.
The first involved a remote-control model airplane loaded with a grenade, which would dive-bomb Macoy as he played golf: “But the range was limited and chances are he would have noticed an antenna poking out of the shrubbery.” The second involved stuffing a (live, mind you) cow with explosives: “We actually tried it, and it worked—boom, lots of ground round beef. But how to get Marcos to go over and pet a cow that had had TNT shoved up its rectum?” So nothing happened.
When the dictatorship had already been around for several years, some would go on to try to fight fire with fire, attempting urban terrorism against a regime they considered a gangster government, anyway. But others tried the only alternative that exists for a law-abiding society that wants to vomit out its ruler: impeachment.
This happened in August, 1985. The previous year, as a kind of safety-valve, Marcos tolerated an increase in the number of opposition assemblymen in the Batasan Pambansa. This gave the oppositionists an opportunity—and, they felt, a fighting chance. This was because, as Fr. Joaquin Bernas (writing in Veritas on September 22, 1985) pointed out, the 1973 Constitution had reduced the number of assemblymen required to impeach the president to one-fifth of the Batasan’s membership from the required two-thirds of the House of Representatives to impeach under the 1935 Constitution. This reduction in the required number of votes is what heartened to the opposition.
But Bernas discovered that clever Marcos had everything figured out. The Batasan’s rules on impeachment stated that even if you obtained one-fifth of the assembly to approve impeachment, the majority party (Marcos’ very own KBL) could set up a committee which had the power to cancel the decision.
The opposition went ahead with the effort, anyway, inaugurating many of the scenes we’ve become so used to, today: the bold declarations of intent, the grand articulation, on paper, of damning accusations; hooting and jeering in the gallery, as the ruling party mobilized its membership to reject impeachment, accompanied by the lawyers of the president making snide comments about the futility of destabilization. And the outcome everyone expected all along: tossing the impeachment complaint into the trash after a ritual vote or two, followed by a Palace declaration hailing democracy’s latest triumph.
But as Maris Diokno recalled in 1988, one momentous thing came out of the failed Marcos impeachment attempt. An assemblyman with TV experience, Orly Mercado, had put together a video (on Betamax!) showing the splendid Marcos properties abroad. The video circulated widely. According to Diokno, businessmen who saw it “concluded that the problem was indeed political, not financial,” which primed them to be unusually brave come February, 1986.
To be sure both Marcos and the opposition knew that impeachment, then, as now, was as much about public opinion as it was about using and abusing the rules. The difference was that Marcos, as he got sicker and sicker, started thinking in terms of one crisis at a time, while the opposition was finally learning to play a long game. Marcos would continue winning every battle, officially anyway, while the opposition had geared up to win the war. How else to explain Marcos’ conceited solution to the erosion of his public standing, from the assassination of Ninoy Aquino in 1983, to the failed impeachment of August-September 1985: to announce, in 1985, that he would call a Snap Election?
From these stories three things are clear, when it comes to impeachment.
First, it is supposed to be the instrument of last resort. It’s not supposed to be taken lightly, but the reason it exists is a very serious one. As Fr. Bernas put it, “But the very fact that the people who ratified the Constitution included an instrument for rescinding the mandate and the compact [meaning: the past election which provides for a fixed term of office] is a clear indication that the people’s judgment made at the polls is never meant to be an irrevocable mistake. The impeachment process is itself the people’s safety device against a mandate and a compact that have been betrayed.”
Second, it is a political process. From start to finish, the outcome of an impeachment is dependent on politicians in the House of Representatives and in the Senate, and not on any court of law. We have to understand the reason for this, and it has to do with the above. It’s an emergency solution to a problem that cannot be allowed to just drag on, because the potential for harm to everyone is simply too great. And all it’s about, at the end of the day, is whether the impeached official should stay in office or not. Its only result is removal from office—and, if necessary, a ban from any other public office for life.
But it isn’t about punishment in the criminal sense, because criminal punishment can only be decided by a court of law. For example, life, liberty and property are such basic rights that only the strictest, most impartial, and non-political process should be followed if you are to be deprived of any of the three. But political office—and losing it—does not deprive you of life, liberty (in terms of human rights) or property. It’s really a policy question that can be left to policymakers who have an electoral mandate to act as the people’s representatives.
This also means that while the arena is first in the House of Representatives which decides whether to impeach a person, then in the Senate, which basically acts as a jury to decide if that person should be removed from office, the whole drama plays out in public, with the public being called upon to decide on how all the officials concerned are behaving.
Third, our own system of impeachments is rather unique. It gives a lot of power to minorities, which goes against the instincts of most democratic institutions to require big majorities for major decisions. Requiring only a fifth of the membership of the House to impeach is supposed to be helpful in terms of exacting accountability. Who knows where these magical numbers come from—why one-fifth instead of, say, one-tenth or one-fourth?—but it is supposed to be small enough to give principled oppositionists a fighting chance but large enough not to turn it into a matter of whimsy.
Or so the framers of our Constitution hoped. The only time the minority rule really kicked in—the impeachment of President Joseph Ejercito Estrada—it still required a procedural trick: to get it past the majority who were prepared with procedural strategies aplenty to block it, Speaker Manuel Villar Jr. transmitted the articles of impeachment directly to the Senate by adding it on to the opening prayer for the day.
In fact, the only other times impeachments have passed since then have involved large majorities in the House. On March 22, 2011, 212 congressmen voted to impeach Ombudsman Merceditas Gutierrez; on December 12, 2011, 188 congressmen voted to impeach Chief Justice Renato Corona (only 95 votes were needed in both cases). Which only goes to show that real life doesn’t always work out the way you intended: by all accounts the framers of our Constitution believed a majority impeachment was a practical impossibility. Guess again.
Regardless of how it’s ended up today, front and center ought to be what impeachment is supposed to be, not what it has become. It is supposed to be an antidote to impunity. It’s meant to be an instrument of last resort. It is supposed to provide a means to rescue the Republic from a situation, as Ben Franklin put it to his fellow framers of their constitution, an alternative to assassination when a ruler becomes too “obnoxious” to tolerate one moment longer. It is supposed to be difficult, because it’s supposed to be a serious solution for a serious crisis.
Still: every impeachment in the past—of Estrada, Gutierrez, and Corona—was accepted by the public. This success continues to drive supporters of those impeached officials nuts. Past acceptance, however, is no guarantee of the future. Because each case proceeded, and was judged, on its own terms. The majorities of yesterday that either foiled or approved of past impeachments, should realize this. Just as an impeachment can be defeated and still lead to the eventual defeat of the victors, so can a victory today become a defeat tomorrow.