I did not think that, after the Corona impeachment and conviction, I would be writing on impeachment this soon. But there is disturbing noise in the Lower House where a respectable number of legislators have endorsed the impeachment complaint against Chief Justice Meilou Sereno. There are different allegations and some appear to be serious, indeed, but the question is rightly asked: Are they offenses that warrant impeachment?
Culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust are what Article XI lays down as grounds for impeachment. The “qualifying terms” are “high crimes” and “betrayal of public trust.” In other words, for bribery and graft and corruption to support impeachment, they must be high crimes or constitute a betrayal of public trust (treason is always a high crime and a betrayal of public trust), so while purchase of a ball-pen in violation of the rules on procurement may indeed be an act of “graft and corruption” as Republic Act 3019 has a rather capacious definition of the crime, it would not, I submit, rise to the level of an impeachable offense. Where the line precisely is between what may be justifiably waved away as de minimis and a truly corrupt act is not susceptible of exact determination.
It is clear that impeachment is meant by the Constitution to be a weapon of accountability reserved for the highest officials of the land only for the most serious of transgressions. Precisely because they are the highest officials of the land, it should be a little more difficult to oust them from office than it is to dismiss a clerk or a lower-ranking official. There is nothing repugnant to democratic principles about this, considering the dependence of government on the services of its highest officials, and the resulting crippled operations following their ouster. The fact that the Constitution does not enumerate the “elements” of the crimes nor even come close to lending them exactitude can only suggest that the Lower House enjoys that latitude of discretion that allows it to consider a constellation of facts before it impeaches a high official of the land and sends the respondent to the Senate for trial.
When a president impetuously orders his security officers to force out of the room a rather bold journalist who insists on being heard and entertained certainly violates the journalist’s constitutional right, but it as certainly would be absurd to call that an “impeachable offense.” Richard Posner repeats a useful distinction between “rules” and “standards”. That a candidate for congressman must be a domiciliary of the district he seeks to represent for at least a year preceding the elections is a rule. That one should be left free in the exercise of his faith is a standard. The difference, says Posner, consists in the fact that to apply a standard, one needs more facts, and that there can really be no check-list. But the law is no stranger to standards: Bona fides, diligence of a good father of a family, extraordinary diligence are all standards. And they remain judicially manageable. And so it is that while “culpable violation of the Constitution” may not be as straightforward as “less serious physical injuries,” it nevertheless is a standard that should be juridically manageable.
I then reject the proposition that an impeachable offense is what the Lower House says it is. At one time, this was a position that surfaced in American constitutional theory. Fortunately, it did not gain too much traction. And precisely because there are constitutional standards, judicial review should, in accordance with the salutary doctrine adopted in Francisco v. House of Representatives, lie. Whether to impeach or not is a political decision, but that does not mean that such a decision—an exercise of discretion—cannot be tainted by grave abuse of discretion. Under the express provisions of Article VIII of the Constitution, where there is grave abuse of discretion judicial power can be invoked to so point out the grave abuse. But in such a case, it is also my position that the Court should take with utmost seriousness its own doctrine: Not mistake, not error, not even abuse of discretion will warrant judicial reproof, but only such showing that the act is tainted by whim, despotism and capriciousness as to be unreasonable and seriously irresponsible!
On the other hand, the already cumbersome accountability mechanism against the highest officials of the country should not be made even more unwieldy by putting too many obstacles in the way. Where a high official of the country has committed a high crime or has betrayed public trust, then the Republic must be able to protect itself from malfeasance or misfeasance in the highest offices by the mechanism of impeachment. One of the advantages of a parliamentary democracy is that the prime minister and his ministers can easily be called to task by parliament—even forced out of office. In a presidential system patterned after the US configuration, it is difficult to impeach, and more difficult even to convict. It makes no sense to make the process impossibly cumbersome or to impose such requirements as to make it virtually dysfunctional. This is especially true when the official concerned is one who cannot be held to account by the results of an election—as is the case with members of the Supreme Court, the Ombudsman and the chairs and members of the independent constitutional commissions.
It should not be not impossible, for all our sakes, to strike the reasonable balance between keeping to constitutional standards when deciding whether or not to impeach and keeping the mechanism available against seriously erring high officials of the Republic.