In 2012, during the Corona trial, I wrote about the awesome powers of the Senate when it acts as the impeachment tribunal. Imagine this collegial body, only 24 in number when they are complete, having the ability to remove from their positions a sitting President, Vice President, Ombudsman, Chief Justice and Associate Justices of the Supreme Court, and the Chairs of the Independent Constitutional Commissions. As every first-year law student is taught, only the Senate has this ultimate power granted to it by the Constitution.
Indeed, as an impeachment court, the Senate can exercise all powers necessary to fulfill its constitutional mandate to exact accountability from the high-level officials singled out by the Constitution as impeachable. Their orders and the ultimate decision of conviction or acquittal cannot be reviewed by any court, including the Supreme Court.
Because of this awesome power of the Senate as an impeachment court answerable only to the people and their consciences, they are expected to act with prudence and wisdom.
Impeachment proceedings are a class of their own—as lawyers would say, sui generis. As the records of the 1986 Constitutional Commission show, impeachment proceedings are both quasi-judicial and quasi-political. Quasi-political because they are akin, but not quite, to a political proceeding undertaken by a political body which is the Senate, and quasi-judicial because they partake of some of the elements of a criminal process without necessarily following strictly the Rules on Evidence and legal technicalities.
As the members of the 1986 Constitutional Commission acknowledged, the impeachment process is essentially a political act with the sole purpose of removing the impeachable official from public office for one or more of the following grounds as provided by Sec. 2, Art XI 1987 Constitution: culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Impeachment, as held in Gutierrez v. House of Representatives Committee on Justice, is primarily for the protection of the people as a body politic, and not for the punishment of the offender.
Commissioner Romulo further clarified that the impeachment “procedure is analogous to a criminal trial but it is not a criminal prosecution per se.” Thus, the official concerned may be subject to subsequent civil and criminal prosecution concerning the acts complained of. Since impeachment is not a criminal proceeding per se, the principles in criminal procedure do not necessarily apply although it can involve certain judicial procedures. Thus, it is accepted that the official being impeached must be informed of the charges against him, be given the opportunity to defend himself accordingly and be tried fairly and impartially.
The Constitution makes it unmistakably clear that the Senate, acting as an impeachment court, has the sole power to try and decide all cases of impeachment. As such, the Supreme Court has no jurisdiction over it. After all, it is not one of the courts whose decisions are reviewable by the High Court. As a constitutionally created body, an impeachment court is vested with plenary powers to discharge its functions. It can enforce obedience to its orders, mandates, writs and judgments; punish in a summary way, contempt of, and disobedience to, its authority; and, make such lawful orders, rules, and regulations which it may deem essential to the proper discharge of its constitutional mandate.
Separation of powers is irrelevant and inapplicable because the Senate is not exercising legislative power in case of impeachment. Instead, it is fulfilling a special power given to it by the Constitution to make accountable a co-equal branch of government.
While the members of the impeachment court are composed of senators, they do not perform their functions as legislators and politicians but on this occasion, they must assume the cold neutrality of an impartial judge.
How about public opinion? Does it matter in impeachment trials? Should the senator-judges just heed public opinion? My answer is no. Public opinion is helpful in forming the senator-judges’ perception of national interest but it is not controlling. If the Constitution intended public opinion to be the basis for conviction and acquittal, it should have done away with a trial and instead called for a referendum or election (as we do in recalling erring local officials). The Senate is made the sole judge precisely because the people, who ratified the Constitution, trusted them to be the one body with the long-term view of national interest.
A final point: impeachment is ultimately more political than legal because in the end, conviction or acquittal must be based on national interest, on what is good for the country. There must be no doubt about that and that is why the Constitution gave the sole power of determining this to the Senate who are expected to consider that national interest. That is also why the Constitution requires a high bar, a two-thirds majority of the Senate’s 24 members, for conviction and removal from office of an impeachable official. Such decision must embody a societal consensus, with the majority and opposition on board the decision, because of the clarity of the case against the official.
In May, if reports are to be believed, it is possible that a simple majority of eight members of the Supreme Court could decide to remove a sitting Chief Justice. I do not believe the rumors. In discussions with colleagues and with students, I have defended the Supreme Court. I have trust in its members and its ability to rise above their quarrels, on their ability to see the long view and the impact of their decisions on our institutions, itself included and the legitimacy of constitutional interpretation (which says the constitution is what the Supreme Court says it is).
I also have faith in the Senate, in the leadership of Senate President Koko Pimentel, in the integrity and independence of all its 23 current members. The Senate must assert its supremacy on being the sole body that can remove impeachable officials. Short of that, it would make itself irrelevant.
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