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Friday, March 29, 2024

Can an impeachable official be disbarred?

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Greco Belgica is a friend, but I do not agree with him that the Ombudsman should be disbarred, or even that disbarment proceedings should be brought against her.  But more than the incumbent Ombudsman, the Belgica complaint provokes what should be an informed, spirited conversation on disbarment in relation to impeachment.

The application of the law to concrete cases and the resulting rule—in our jurisdiction, called “precedent”—is often called jurisprudence, literally, the “prudence” of the law.  To Scholastics “prudentia” was the virtue that enabled one to act appropriately under concrete circumstances.  It called for a firm grasp of the particularities of a situation and, without set rules or preestablished norms, allowed a person to act and to respond thoughtfully and meaningfully.  That prudence in respect to law is necessary arises from the fact that the generality of norms and the singularity of situations are antipodal.  The Civil Code of the Philippines, for example, was authored by very wise men.  But all their wisdom and foresight notwithstanding, it was simply not possible for them to envision every instance to which the provisions of the Code would be applied.  How then does one use a general norm to respond to the concrete demands of any case?  That is exactly why there is jurisprudence.  But there has to be system in the law because of that ideal called “justice,” so usefully rendered in modern times (thanks to Rawls and others) as “fairness.”  Similars must be similarly decided: That is the basic precept of jurisprudence —but to decide when the similarity is close enough to warrant similarity in holding and disposition, aye, there’s the rub.  “Prudentia” was the closest Latin-writing philosophers could get to “phronesis” that figured rather prominently in the thinking of many of the Greeks and that enjoys a premium in postmodernism.  “Phronesis” aims at the best response one can give in a situation, with the ever-present cognizance of its tentative character.  

Some will be quick to point to what is apparently “established” or “settled” jurisprudence. The doctrina recepta is that disbarment will not lie against impeachable officials because that would be a way of circumventing impeachment. If that is the reason, then one must qualify: If the official occupies an office requiring membership in the Bar, then indeed, disbarment results in the loss of the official’s eligibility for such an office. If the office does not require membership in the Bar, such as President of the Republic, then there is no reason why disbarment cannot proceed.  But this is just an example of a legal problem that can be reasoned satisfactorily in either way.

Against disbarment, for officials who must be members of the Bar, it can be reasonably maintained that disbarment would be in effect an alternate method of removing a high official, where the Constitution prescribes only one—impeachment.

Arguing the opposite proposition it can coherently be maintained that when an official is disbarred, the Supreme Court exercises a constitutionally vested power to discipline members of the Bar, and whatever ineligibility for public office may follow will only be a corollary of the Supreme Court’s exercise of its disciplining power. To hold otherwise would be to allow a public official to violate every canon of legal ethics and through the expedient of the ballot, escape censure for his “unlawyerly” ways.

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I must conclude by returning to a philosophical consideration: Can there be such a thing then as the “science of jurisprudence?”  Can prudence ever be systematized? Would it still be prudence?  That is not too far different, I think, from asking whether the art of statecraft can be systematized into a “political science.”  Insofar as one is able to discern fact-patterns that give rise to typical judicial responses, then one can establish a “causal” connection between facts identified as material and judicial results, then there is justification in uttering “science” and “jurisprudence” in one breath.  Also, because the laws of a jurisdiction must be coherent and must constitute a system if they are to usefully stabilize behavioral expectations, it does make sense to refer to a “science of jurisprudence,” without forgetting that it is “prudence” that is the keyword and science, a maneuver of retrieval!

rannie_aquino@csu.edu.ph

rannie_aquino@sanbeda.edu.ph

rannie_aquino@outlook.com

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