Theroetical basis for impeachment as a procedure for removing officials, and the intentions of the framers of the 1987 Constitution, and other items.
February 12, 2012
Readings on impeachment: Basis and intent, of the framers of the 1987 Constitution
February 12, 2012
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THE PRESIDING OFFICER (Mr. Treñas): Commissioner Rigos is recognized.
REV. RIGOS: Mr. Presiding Officer, my proposed amendments have already been presented by the previous speakers; so, I will just proceed with two very minor suggestions.
On page 2, Section 3 (5), line 16, I propose to insert the words CASES OF between the words “try all” and ”impeachment,” so that the sentence will read: “The Senate shall have the sole power to try all CASES OF impeachment.”
THE PRESIDING OFFICER (Mr. Treñas): What does the Committee say?
MR. MONSOD: We accept. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Treñas): Is there any objection? (Silence) The Chair hears none; the proposed amendment is approved.
"— —Record of the Constitutional Commission, July 28, 1986 (in July 28, 1986 R.C.C. 41)
February 12, 2012
The debate in the 1986 Constitutional Commission on whether impeachment should be vested in the Supreme Court or not
July 28, 1986 R.C.C. 41
MS. AQUINO: I appreciate the explanation of the Committee Chairman. But for purposes of conceptual clarity, we might as well underscore the fact that impeachment, although it is an exercise of a political act, is essentially a judicial function. The political component here would be necessary in recognizing that an impeachment procedure, which is a judicial function, covers not only political matters but even legal matters.
MR. MONSOD: We realize that there is a judicial function involved in the impeachment process. But I think the questions we want to address ourselves are: Is the provision on impeachment still necessary? Does it serve a useful purpose as far as the political processes are concerned?
MS. AQUINO: I may be launching a lonely crusade here. Even as I would concede that the powers of impeachment might have to be vested in the legislature, I would conduct a massive overhaul of the procedures to make impeachment procedure a viable option.
MR. MONSOD: We would be very happy to take a look at any suggestion that would improve our Constitution.
MS. AQUINO: Do I take it to mean that I am effectively foreclosed in terms of a conceptual redefinition of impeachment procedures when I would attempt to vest it in the judicial courts insofar as the presidency is concerned?
MR. MONSOD: Yes. Mr. Presiding Officer, I believe the Committee at this point believes that an overhaul in that direction might not be appropriate. But we would be amenable to other suggestions in order to make it a more effective deterrent.
MS. AQUINO: My only concern is that experience has shown that impeachment procedures as they are now stated in the draft would be nothing more — pardon the Freudian slip but there is no better term for this — than a glorified act of political masturbation. There should be a conscious and deliberate attempt to make this a feasible and viable option in the exercise of a concern to protect the State against erring officers for malfeasance or misfeasance.
MR. MONSOD: Yes, Mr. Presiding Officer. We understand the Commissioner’s appreciation of the problem. What we are saying is that perhaps our perception of its deterrent effect even in cases where it seems to have failed may be different.
MR. NOLLEDO: May I propound an inquiry to Commissioner Aquino?
MS. AQUINO: Yes, gladly.
MR. NOLLEDO: The Commissioner need not overhaul the procedure. But it seems to me that she is suggesting some sort of judicial review; am I right?
MS. AQUINO: No, what I am suggesting is to transfer the impeachment power after the impeachment articles have been initiated and formulated by the joint action of the legislative chambers to the judicial courts.
MR. NOLLEDO: Thank you.
MR. OPLE: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Treñas): Commissioner Ople is recognized.
MR. OPLE: Will Commissioner Aquino yield to a question, too?
MS. AQUINO: Gladly.
MR. OPLE: Commissioner Aquino must be aware that the main provision on impeachment in the draft article under discussion was lifted virtually from the two previous Constitutions, actually almost a verbatim copy of Article VII of the United States Constitution that was framed and ratified in 1787. May I briefly read Article VII:
Judgment in case of impeachment shall not extend further than the removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States, but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law.
It is almost unchanged since the American constitutional framers established this impeachment rule in the Constitution of 1787.
But the reason I brought this up was to induce Commissioner Aquino to recall a more recent event related to impeachment in the United States Congress of an American President, Richard Nixon, who was facing impeachment. As a matter of fact, the charges had already been formulated in a committee of the House of Representatives and he was to be tried by the Senate in the full glare of world television. Instead of submitting to impeachment proceedings, he resigned, and later on was granted amnesty by President Ford. The point is that impeachment is a sword in the scabbard. It is as good as a sword drawn; it certainly caused the resignation of an American President because, in the words of President Ford before he gave the amnesty to President Nixon, the presidency of the United States probably could not withstand the rigor and injury arising from a public trial in the Senate by impeachment of the President of the United States.
Since this section is indubitably of American origin, I think we are justified in recalling some American-examples in the contemporary period. I do not want to share Commissioner Aquino’s despair that this impeachment or trial by the Senate, through the origination of charges in the House of Representatives is equivalent to a constitutional decoration or tinsel. It is actually a powerful check on the presidency. It may be a sword in the scabbard but there are circumstances when a sword in the scabbard is as good as a sword drawn.
Thank you, Mr. Presiding Officer.
MS. AQUINO: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Treñas): What is the pleasure of Commissioner Aquino?
MS. AQUINO: I appreciate Commissioner Ople’s setting the stimulus of the discussion on this line. But there may be a variance of conceptual appreciation here.
Impeachment is not intended to punish the offender. Impeachment is a method of national inquest to protect the State. It does not intend to prosecute; it is not intended for its retributory or restitutory effects. Rather, it is in the nature of an exemplary act by which the State infuses the highest sense of responsibility to public service.
In other words, when the Constitution provides that the intent of an impeachment proceeding is not only to remove from office, it follows as a necessary concurrent effect the disqualification of that erring public officer from positions of trust or responsibility. It may be true that it is a sword in the scabbard but the sword in the scabbard can rust unless it is drawn.
MR. GUINGONA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Treñas): The Chair would like to understand the present parliamentary situation. Is Commissioner Aquino proposing a specific amendment?
MS. AQUINO: Yes, Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Treñas): On what section and what is the nature of the amendment?
MS. AQUINO: It will overhaul massively Section 3 in the sense that I am contemplating the possibility of amending Section 3 to vest in the judicial courts the power of impeachment trials after the impeachment articles have been formulated and initiated by the joint action of the legislative chambers. But the Committee has expressed reluctance to this position.
THE PRESIDING OFFICER (Mr. Treñas): Precisely, the Chair would like to know the reaction of the Committee on the proposed amendment.
MR. MONSOD: Mr. Presiding Officer, the Committee explained its position that we believe the present provision serves a very useful purpose, and we want to see it retained. Furthermore, if I get the drift of the arguments of Commissioner Aquino, the overhaul would involve the introduction of the judicial branch of the government into the process in the case of the President.
Our position is that the President has been directly elected by the people. Since this is a political act, the more appropriate judge of the President in this matter should probably be the direct representatives of the people as well, which are the Senate and the House.
MS. AQUINO: Mr. Presiding Officer, I am presently inclined to respect the position of the Committee. However, without foreclosing the possibility of introducing pertinent amendments on the basis of their position, may I make two inquiries?
THE PRESIDING OFFICER (Mr. Treñas): The Commissioner may proceed.
MS. AQUINO: Am I in agreement with the Committee that impeachment proceedings are essentially judicial in nature?
MR. ROMULO: No, we believe that they are political. Judicial aspects may come in the procedures such as the forming of the articles, the actual trial being presided over by the Chief Justice, and so on. But we still believe that they are essentially a political act rather than a judicial act.
MS. AQUINO: Precisely, I was very careful on my formulation of terms when I said impeachment proceedings, not impeachment power. So, we are agreed on the premise that impeachment proceedings are essentially judicial in nature. Does it follow, therefore, that when the legislative chamber sits to undertake impeachment proceedings, it sits not as a legislative body but as a judicial body; rather, it sits as a court of justice?
MR. ROMULO: In a way, they probably sit more like jurists, as finders of fact and the law, I suppose. They combine those functions. We could say that there is an exercise of judicial power involved.
MS. AQUINO: On the basis of these shared premises, would the legislature then, sitting to undertake impeachment proceedings, still be bound by the rules of legislative sessions? Specifically, if the legislature adjourns, are the Members duty-bound to terminate or preterminate — as the case may be — the impeachment proceedings if the supervening circumstance of adjournment of the sessions come in?
MR. ROMULO: I think that would depend on the rules they would adopt. Certainly, the Constitution does not settle that.
MS. AQUINO: Because I would proceed from settled jurisprudence that impeachment proceedings are essentially judicial in nature, such that it follows that when the legislative chamber undertakes these proceedings it sits as a court of justice and, therefore. it is not bound by the rules of legislative sessions. It cannot adjourn. Assuming that the session is adjourned, impeachment proceedings should not, in any way, be affected by the adjournment of the session.
MR. ROMULO: That is not precluded from our proposal. If the Commissioner wants to make it explicit and to suggest amendments to that effect, I suppose we would not object. Our thinking is that if the Commissioner’s premise is that it is like a court of justice. maybe an adjournment of the hearing will certainly not preclude it from continuing the proceedings on some other day. In other words, it could not lose jurisdiction just because of adjournment.
THE PRESIDING OFFICER (Mr. Treñas): The Chair, therefore, understands from Commissioner Aquino that her proposed massive amendment is considered withdrawn.
MS. AQUINO: Not yet, Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Treñas): The Commissioner may proceed.
MS. AQUINO: On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgment of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped?
MR. ROMULO: If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts.
MS. AQUINO: I am not so much concerned about the civil and criminal aspects as I am concerned with the necessary effect of a judgment of conviction in an impeachment proceeding. A judgment of conviction also means disqualification from office; it does not only mean removal from office.
MR. ROMULO: Yes, I see that point. It is my personal opinion that if he resigns, that in itself would end the impeachment proceeding.
MR. RAMA: Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Treñas): The Chair recognizes the Floor Leader.
MR. RAMA: There are several other Commissioners who would like to amend the Article. May I ask that Commissioner Regalado be recognized?
THE PRESIDING OFFICER (Mr. Treñas): Just a minute. May we consider Commissioner Aquino’s proposed amendment withdrawn?
MS. AQUINO: No, Mr. Presiding Officer. I have to consult Commissioner Guingona about it.
MR. GUINGONA: Precisely, Mr. Presiding Officer, I was going to ask Commissioner Aquino a couple of questions, if I may, in connection with her proposal.
THE PRESIDING OFFICER (Mr. Treñas): Commissioner Guingona is recognized.
MR. GUINGONA: Is the Commissioner’s perception of an impeachment proceeding an exclusively political device or proceeding or an essentially political proceeding? If it is an essentially political proceeding, then there would be no objection to exceptions where courts may be allowed to be given the power to adjudicate on this particular proceeding. On the other hand, if it is exclusive because the President is elected by the people, the judgment about the President’s tenure or term of office should be judged by the representatives of the people, if the courts are not empowered to decide cases or questions relating to elections, and terms and qualifications of the President.
MS. AQUINO: Mr. Presiding Officer. may I briefly reply? It is my humble submission that an impeachment proceeding and an impeachment power are essentially political acts. But because of the nature of the judgment of conviction in an impeachment proceeding, it requires the process of adjudication. If we divorce ourselves from the conceptual definition of impeachment and focus on the practicality of impeachment proceedings, then it becomes necessary for us to reassess the procedure. I am not so much concerned in the conceptual purity of impeachment as I am concerned in it being a feasible and viable alternative in the exercise of protection of the State.
January 21, 2012
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MR. MAAMBONG: I will now concern myself with the statement of the Chairman that this impeachment proceeding is very important in the light of the previous happenings in this country. I would like to believe that he was referring to the impeachment case filed against the former President which was covered by Resolution No. 644.
My questions will be directed to this point in order that in the future we will not have difficulties. I will not ask on the procedural aspect. I understand Commissioner Davide will take care of that. I am more concerned about the nature of the impeachment proceedings on which we, members of the Committee on Justice and Good Government that took cognizance of that impeachment proceeding against the former President, really had a lot of difficulty.
We have now in the present proposal the following grounds for impeachment: culpable violation of the Constitution, treason, bribery, other high crimes, graft and corruption or betrayal of trust. I think we have no problem in the case of treason and bribery because these are all covered by law. I do not think we have also any problem in the case of graft and corruption because it is covered by RA 1319, which was promulgated on August 17, 1960. We will now concern ourselves with the interpretation of the phrases “other high crimes” and “betrayal of trust.” I will start by asking the Committee this question: What is really the thinking of the Committee as far as impeachment proceedings are concerned? Are impeachment proceedings criminal in nature or not? In order to answer this very clearly, I would like to indicate the following: In the case of State v. Lerse, 70 Nebraska 92, which is a United States case, the Supreme Court ruled that the proceeding is likened to a proceeding by indictment in a court of criminal jurisdiction. It is in its nature highly penal and is governed by rules of law applicable to criminal prosecution. On the other hand, I would like to indicate this to the Committee that in the case of official misconduct, we have here statements which I think the Committee should comment on. Official misconduct is supposed to fall into three categories: One, exceeding the constitutional bounds of the powers of the office in derogation of the powers of another branch of government; two, behaving in a manner grossly incompatible with the proper function and purpose of the office; and, three, employing the power of the office for an improper purpose or personal gain.
The provision which we have here says:
“… impeachment and the criminal law serve fundamentally different purposes. Impeachment is the first step in a remedial process. The purpose is not personal punishment. Its function is primarily to maintain constitutional government. The general applicability of the criminal law also makes it inappropriate as the standard. In an impeachment proceeding, a President is called to account for abusing powers which only a President possesses. Impeachable conduct may include the serious failure to discharge the affirmative duties imposed on the President by the Constitution. Unlike a criminal case, the cause for removal may be based on his entire course of conduct in office. It may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.” (Power of Impeachment — Guide to Congress, p. 149)
For purposes of proper elucidation, what is the thinking now of the Committee as far as this impeachment procedure is concerned? Is this a criminal proceeding? If so, we have to use the principle of criminal law.
MR. ROMULO: Yes. Firstly, we agree with the quotation that the Commissioner has just read. Insofar as we are concerned, the procedure is analogous to a criminal trial but it is not a criminal prosecution per se. The goal of an impeachment is merely to remove the fellow from office for the crimes indicated. However, Section 3 (6) of this proposed Article itself — and this is really very close to the provision of the 1935 Constitution — says:
“Judgment in cases of impeachment shall not extend further than the removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law.”
In essence, I think that answers the Commissioner’s question. He is then subject to a separate prosecution, whether civilly or criminally, for the acts that he had committed.
MR. MAAMBONG: May I proceed now to two very short questions considering that we have already identified the problem and the answer is that it is not a purely criminal prosecution in terms of procedure. We have here a statement in the book of Simpson which reads:
“A person subject to impeachment by Congress is entitled to due process of law although presently there is little judicial authority. It can be suggested that he is also entitled to his privilege against self-incrimination, right to counsel, right to be informed of the nature and the cause of the accusation against him, and the right to be confronted with adversary witnesses.” (Treaties on Federal Impeachment, p. 27)
Would this statement be applicable to an impeachment proceeding?
MR. ROMULO: As the provisions now read, I think the Senate, as well as the House, will set up its own rules. I do not know whether or not we have to adhere to that because what the Commissioner has read, strictly speaking, is a criminal proceeding. But the President like any citizen is entitled to the bill of rights, like confrontation of witnesses, notice of the charges and so on. I think those are fundamental and he is entitled to them.
MR. MAAMBONG: Let us go to a bottom-line question then. When the Senate acting as a body will now try the impeachment case, will it conduct the proceeding using principles of criminal procedure?
MR. ROMULO: I do not think, strictly speaking, that it need be criminal procedures. The important thing, I believe, is that the involved party should knew the charges. He must have the opportunity to answer the charges and the proceedings must be, in total, fair and impartial. I do not think we have to go to the minutiae of a criminal proceeding because that is not the intention. This is not a criminal proceeding per se.
MR. MAAMBONG: In the matter of presentation, for example, of evidence, when it comes to treason and bribery, would the rules on criminal procedure be applied, considering that I am now particularizing on the ground which is punishable by the Revised Penal Code, like treason or bribery?
MR. ROMULO: Yes, but we will notice that, strictly speaking, for the crime of treason under the Revised Penal Code, he is answerable for that crime somewhere else. So my conclusion is that obviously, it is in the criminal court where we will apply all the minutiae of evidence and proceedings and all these due processes. But we can be more liberal when it comes to the impeachment proceedings, for instance, in the Senate, because we are after the removal of that fellow, and conviction in that case really amounts to his removal from office. The courts of justice will take care of the criminal and civil aspects.
MR. MAAMBONG: Last point, just to enrich our records. I would like the Committee to comment on this quotation from Philippine Constitution by Former Chief Justice Fernando, wherein he said:
“In the United States Constitution, the term is high crime and misdemeanors. The Philippine Constitution speaks only of high crimes. There is support for the view that while there need not be a showing of the criminal character of the act imputed, it must be of sufficient seriousness as to justify the belief that there was a grave violation of the trust imposed on the official sought to be impeached.” (pp. 460-461)
Would the Committee agree to this statement?
MR. ROMULO: Yes. Let me say that essentially, impeachment is a political act.
MR. MAAMBONG: Yes. I will also quote the report of the General Committee on the impeachment of President Quirino, Volume IV, Congressional Records, House of Representatives, 1553:
“High crimes refer to those offenses which, like treason and bribery, are indictable offenses and are of such enormous gravity that they strike at the very life or orderly working of the government.”
Would the Committee agree to this?
MR. ROMULO: Yes, of course, especially if the President is involved.
MR. MAAMBONG: Finally, I will again refer to the committee report on the impeachment of President Quirino on the phrase “culpable violation of the Constitution,” and I quote:
“Culpable violation of the Constitution means willful and intentional violation of the Constitution and not violation committed unintentionally or involuntarily or in good faith or thru an honest mistake of judgment.”
Would the Committee agree?
MR. ROMULO: Yes, we agree with that.
MR. MAAMBONG: And this is really the final quotation which I would like the Committee to comment on. Chief Justice Fernando also said:
“Culpable violation implies deliberate intent, perhaps even a certain degree of perversity for it is not easy to imagine that individuals in the category of these officials would go so far as to defy knowingly what the Constitution commands.”
Could this be an agreeable interpretation to the Committee?
MR ROMULO: Yes, subject to exception, such as the last administrator we had.
MR. MAAMBONG: The Commissioner has been very kind.
Thank you very much. Thank you, Madam President.
— —Record of the 1986 Constitutional Commission, Volume 2, R.C.C. No. 40, July 26, 1986
December 19, 2011
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THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. Thank you, Madam President.
I have a series of questions here, some for clarifications, some for the cogitative and reading pleasure of the members of the Committee over a happy weekend without prejudice later to proposing amendments at the proper stage.
First, this is with respect to Section 2, on the grounds for impeachment , and I quote:
… culpable violation of the Constitution, treason, bribery, other high crimes, graft and corruption or betrayal of public trust.
Just for the record, what would the Committee envision as a betrayal of public trust which is not otherwise covered by by other terms antecedent thereto?
MR. ROMULO. I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it refers to his oath of office, in the end that the idea of public trust is connected with the oath of office of the officer, and if he violates that oath of office, then he has betrayed the trust.
MR. REGALADO. Thank you.
MR. MONSOD. Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks.
THE PRESIDENT. Commissioner de los Reyes is recognized.
MR. DE LOS REYES. The reason I proposed this amendment is that during the Regular Batasang Pambansa where there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term “betrayal of public trust,” as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose, Madam President.
Thank you.
MR. ROMULO. If I may add another example, because Commissioner Regalado asked a very good question. This concept would include, I think, obstruction of justice since in his oath he swears to do justice to every man; so if he does anything that obstructs justice, it could be construed as a betrayal of public trust.
Thank you.
MR. NOLLEDO. In pursuing that statement of Commissioner Romulo, Madam President, we will notice that in the presidential oath of then President Marcos, he stated that he will do justice to every man. If he appoints a Minister of Justice and orders him to issue or to prepare repressive decrees denying justice to a common man without the President being held liable, I think this act will not fall near the category of treason, nor will it fall under bribery of other high crimes, neither will it fall under graft and corruption. And so when the President tolerates violations of human rights through the repressive decrees authored by his Minister of Justice, the President betrays the public trust.
"— Record of the Constitutional Commission, Proceedings and Debates, 272
December 18, 2011
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MR. MAAMBONG. Let us go to a bottom-line question then. When the Senate acting as body will now try the impeachment case, will it conduct the proceeding using principles of criminal procedure?
MR. ROMULO. I do not think so, strictly speaking, that it need be criminal procedures. The important thing, I believe, is that the involved party should know the charges and the proceedings must be, in total, fair and impartial. I do not think we have to go to the minutiae of a criminal proceeding because that is not the intention. This is not a criminal proceeding per se.
MR. MAAMBONG. In the matter of presentation for example, of evidence, when it comes to treason and bribery, would the rules on criminal procedure be applied, considering that I am not particularizing on the ground which is punishable by the Revised Penal Code, like treason or bribery?
MR. ROMULO. Yes, but we will notice that, strictly speaking for the crime of treason under the Revised Penal Code, he is answerable for that crime somewhere else. So my conclusion is that obviously, it is in the criminal court where we will apply all the minutiae of evidence and proceedings and all these due processes. But we can be more liberal when it comes to the impeachment proceedings, for instance, in the Senate, because we are after the removal of that fellow, and conviction in that case really amounts to his removal from office. The courts of justice will take care of the criminal and civil aspects.
"— Record of the Constitutional Commission, Proceedings and Debates, 277
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