Chairman Andy Bautista is a friend. He is a family friend, and I do not wish him to undergo the ordeal of a trial before the Senate. So all that I write here is a pure discussion of law.
After Andy had announced that he was resigning effective December, he was impeached by the Lower House. Should the Senate still try him?
The purpose of impeachment is the removal of the impeachable official from office. Had Andy’s resignation been effective immediately, then there would be no need to remove him by conviction following trial by impeachment, because he would then have already removed himself by voluntary resignation. I do not subscribe to the theory that an impeachable official who has resigned or whose term has ended may nevertheless still be tried by the Senate because of the accessory penalty of disqualification from public office. The same end can be achieved by filing the appropriate graft case against him. If the purpose of impeachment is the removal of the impeachable official from office, then clearly it is pointless to remove one who is no longer in office.
The problem, however, in Chairman Andy’s case is that the resignation is prospective. In other words, he is still in office —and therefore may still be the subject of removal by trial following impeachment. One could claim that Senate should make a call as to whether a trial is worth its time, considering that Andy has announced his resignation in December. But that would presuppose that Senate has the discretion whether to proceed with trial or not, and I do not find that position textually supported by the Constitution. It seems to me rather that when the Lower House files the Articles of Impeachment, trial by the Senate follows as a matter of constitutional mandate.
Tony La Vina, whose views I highly regard, suggests that the Senate prepare itself for trial once the articles of impeachment are filed but should not proceed until January. There is however the clause “and trial by the Senate shall forthwith proceed.” I do not think then that it is within the power of the Senate to put off the trial of an impeached official, and still less to desist from trial. That would be defeating the bicameral structure of our Legislature. If the Senate commences trial in January, it is my position that Andy would then be correct in asking that the case be dismissed because the constitutional purpose of a trial is the removal of an impeachable official from office and—to repeat—one cannot remove from office someone who is already out of it.
This, of course, is a constitutional issue and again I maintain the position that the Supreme Court may very well pass upon it. One has only to remember the landmark case of Francisco v. House of Representatives—the case having to do with the attempt to unseat then Chief Justice Hilario Davide, Jr. Then Senate President Nene Pimentel entered a “special appearance” to argue before the Supreme Court in favor of “judicial restraint”. He urged the Court to desist from taking cognizance of the case and to respect the provision of the Constitution that vested in the Senate exclusive competence to judge impeachment cases. In answer, Fr. Bernas, who was invited as amicus curiae, reminded the Court that it could not choose to be reticent in the face of a “duty”—or the power to resolve justiciable issues as well as to determine whether or not grave abuse of discretion lies is a duty! It was in that same case, where I was a petitioner in my own case— consolidated with all other petitions—and where I entered my appearance in my own behalf, that then Justice (now Ombudsman) Conchita Carpio-Morales brilliantly argued that the simple line that separated justiciable from non-justiciable questions can no longer be drawn using American precedents, such as Baker v. Carr. Rather, she wrote, “wherever there are constitutional standards, there judicial review will lie”.
I hope this post starts a robust discussion.