Senate may ignore SC encroachment

The US Supreme Court in Nixon v. United States, 506 U.S. 224 (1993) (where the House of Representatives adopted articles of impeachment against petitioner Walter Nixon, the Chief Judge of a Federal District Court, and presented to the Senate) has explained the non-justiciability of the impeachment (because the matter involved a political question) in this manner:

Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive, because it would eviscerate the “important constitutional check” placed on the Judiciary by the Framers xxx. Nixon’s argument [in favor of judicial review] would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.

Nevertheless, Nixon argues that judicial review is necessary in order to place a check on the Legislature. Nixon fears that, if the Senate is given unreviewable authority to interpret the Impeachment Trial Clause, there is a grave risk that the Senate will usurp judicial power. The Framers anticipated this objection and created two constitutional . . . safeguards to keep the Senate in check. The first safeguard is that the whole of the impeachment power is divided between the two legislative bodies, with the House given the right to accuse and the Senate given the right to judge. . . This split of authority “avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches.” The second safeguard is the two-thirds supermajority vote requirement. Hamilton explained that, “[a]s the concurrence of two-thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.”

In addition to the textual commitment argument, we are persuaded that the lack of finality and the difficulty of fashioning relief counsel against justiciability . . . We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would “expose the political life of the country to months, or perhaps years, of chaos.” This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated. Equally uncertain is the question of what relief a court may give other than simply setting aside the judgment of conviction. Could it order the reinstatement of a convicted federal judge, or order Congress to create an additional judgeship if the seat had been filled in the interim?

There is another way to explain the political nature of impeachment: define and understand it in terms of an indirect recall.

A recall is a direct democracy process by which the electorate may remove an elected holder of public office before the end of the official’s term. For instance, a direct recall was attempted against Pampanga Governor Ed Panlilio in 2008 on the ground of “loss of confidence” pursuant to the Local Government Code in relation to Article X, Section 3 of the Constitution.

Another form of recall, indirect recall, could have also been resorted to against Gov. Panlilio for “culpable violation of the Constitution” or for other grounds provided under Chapter 4, Section 60 of the same Code but it was not used.

Simply put, indirect recall is no less an impeachment, whereby the citizen’s intervention at any phase of the process does not obtain because the initiative and the decision to terminate the office holder come more or less exclusively from other authorized agencies such as the Legislature or the Executive. Where the public official is appointed, only the remedy of indirect recall, or properly impeachment, is available.

There is no question that a direct recall is political in nature; it is an election in reverse, or a procedure of un-election. “Loss of confidence,” which is rather subjective, is sufficient basis for the recall, and if enough votes are obtained, the terminated official is deemed not to have as much reason to complain of due process violation as the candidate or candidates who lost to him in the original election, and the attendant “trial by publicity” is considered as part of the public discourse in the nature of political campaign activity.

Is indirect recall equally political in essence?

The Philippine Constitution provides for the removal by impeachment of both elected and appointed public officials such as the President and the Vice-President (elected) and Members of the Supreme Court and the Ombudsman (appointed), enumerates the grounds for removal and prescribes certain conditions for the process such as the required votes to initiate impeachment and to convict as well as specific limitations such as the initiation of impeachment against the same official more than once within a year. To the extent that the Constitution prescribes these requirements, impeachment is also considered a legal process. Otherwise, recall, whether direct or indirect, and the public official sought to be recalled, whether elected or appointed, is ultimately political.

On the other hand, the position of Senator Antonio Trillanes made in a speech is quite apropos. He said that the “overarching policy issue” in the impeachment of Chief Justice Renato Corona is whether the final outcome “would be for the good of the country.” Hence, his verdict will “not be based solely on evidence as (the impeachment) now becomes a matter of public policy.”

Our analysis during the impeachment of Ombusdman Merceditas Gutierrez is similarly relevant:

The strict requirements of due process, it may be well to note, are not meant to be of indispensable application to impeachment cases. By the same breadth, a person denied a political appointment may not complain of due process violation if the appointing power chose another whose superior credentials may not have been proven by competent evidence. The bottom line is: the constitutional and legal procedural rights of the person indicted (impeached) are not as much at stake in this method of removal as the substantive protection of the integrity of the Republic’s political institutions from the corroding effects of corruption and betrayal of public trust.

President Aquino has decided to exercise the political will to cleanse our government of every dreg of corruptions afflicting it and if he succeeds to persuade the public or its agents that the Ombudsman is an obstacle to the fulfillment of that salutary goal, such would be beyond the ambit of procedural niceties.

Let’s get it straight once again: the impeachment process is “ultimately a political one.” And a politicized impeachment is the legal norm which should not give us the constitutional angst. It’s when legal technicalities are forced into what is essentially political, such as if the Supreme Court succumbs to the temptation of injecting itself into the political mix by casually judicializing the process, that’s likely to engender the bad bitter taste in the democratic ensalada.

The Corona defense team, as the impeached Judge Walter Nixon’s, will attempt to raise procedural technicalities, evidentiary issues and other legal gobbledygook to attenuate the political nature of the impeachment process. The Senate must not however fall into the trap of legalizing or judicializing the impeachment; doing so will weaken the process and its authority as the Impeachment Court.

For example, alleged in the Articles of Impeachment is the charge that the partiality of Chief Justice Corona in favor of former President Gloria Macapagal-Arroyo has culminated in the issuance of the temporary restraining order (TRO) lifting the travel ban on the former president and her spouse, Jose Miguel Arroyo, that would have allowed them to escape from the processes of the law. Corona in his Answer alleged that the decision to issue the TRO is a collegial one and therefore may not be reviewed by the Senate as the Impeachment Court because “no other department may pass upon judgments of the Supreme Court.” Although the House prosecutors in their Reply are not asking the Impeachment Court to review and reverse those decisions, it is submitted that if such a collegial decision is bereft of any legal reasoning or patently favoring the Arroyos and all the circumstances are found to point to it, then the Senate jury must proceed to pass upon the judgment made with a view to finding the quilt or innocence of the justices concerned of betrayal of public trust and/or culpable violation of the Constitution, and whereupon hold them to account for it. Filipinos know too well that republicanism easily becomes a farce sans accountability on the part of powerful officeholders as a Chief Justice who may have committed not just legal errors but betrayal of public trust and/or wrongful violation of the fundamental law. In her dissenting opinion, Justice Maria Loudes Sereno, rebelling against the majority, has written about “the havoc that would be wreaked on the judicial system by the unfortunate disposition that the Court has introduced today in favor of (the Arroyos).” The House prosecutors, it is vigorously suggested here, must not shy away from calling Justice Sereno to testify before the Impeachment Court as to what actually has taken place in the Supreme Court in the issuance not just of one but a couple of “collegial” orders that may have been intentionally obscured to allow the Arroyos avoid justice.

Impartiality, it is well to note, depends on the persuasiveness of the legal reasoning in support of the decision made. On the other hand, legal reasoning is simply the process by which judges justify their choices in finding the meaning of the law because determining what the law means, when the law is not plainly written, inevitably involves choice. If the choice made is not in terms of the law or the broader values the community respects but only on the basis of the judge’s own will, the numerical concurrence of the majority notwithstanding, and relief therefrom is unavailing, then the judicial system itself fails in its purpose. As Senator Trillanes would rather have it in such an unfortunate event, the proper remedy “becomes a matter of public policy” or political.

Now, a redeeming act. “The only one that can stop us is the might of the military,” Senate President Juan Ponce Enrile, who will preside over the impeachment trial, said in a radio interview. Indeed, if there is any one politician in the Philippines who understands power, it is Senator Enrile, Marcos’ Secretary of Defense who had defected to the rebels during the EDSA I uprising that ended the dictatorship. In the final analysis – and the elderly Enrile seems to be fully cognizant of it – the impeachment of Chief Justice Corona, as in the impeachment of Chief Justice Hilario Davide, Jr., is about power, that is, the power of the Supreme Court versus the power of Congress. Will Congress blink again and tip the balance of power in favor of the Court as in the Davide impeachment, or is the Senate ready to put a limit on “judicial supremacy” and this time ignore, as Enrile boldly announced, any attempt by the Supreme Court to encroach upon the power of the Senate that is constitutionally committed to it as the Impeachment Court?

Popularity: 1% [?]