THE NATURE OF AN IMPEACHMENT TRIAL

By
Senator Miriam Defensor Santiago
(Keynote speech delivered at the joint annual convention of the Philippine
Society of Hypertension,
and Philippine Lipid and Atherosclerosis Society, held at the Crowne Plaza
Galleria
in Quezon City on 8 February 2012.)
Length of Time
The impeachment trial of President Bill Clinton was held in 1999. It began
on January 7 and ended on February 12, with an acquittal. Thus, the
Clinton trial lasted for just about a month. We are not going to be as lucky
with the present impeachment trial, as I shall explain later.
When the US Senate acted as an impeachment court against federal
judges, the shortest trial took a little more than a month; and the longest
trial lasted about 14 months. The average length of the U.S. impeachment
trials against federal judges is about four months.
In my considered estimate, our ongoing impeachment trial will last for about
five months. It began in January, and will probably end by about May.
Purpose of Impeachment
I have said and I repeat that, contrary to the ill-considered press releases of
certain personalities, an impeachment trial is a unique process, because it
is a hybrid. Impeachment is both quasi-judicial and quasi-political. It is not a
civil case nor a criminal case. A criminal case is designed to punish an
offender and to seek retribution. In contrast, impeachment is the first step in
a process that tries to remedy a wrong in governance.
It has been said that the purpose of impeachment is not personal
punishment, but rather to maintain constitutional government, through the
removal of an unfit official from a position of public trust.
General Principles
The fundamental book on this topic is entitled, Impeachment: A Handbook
by Professor Charles Black, Jr. of Yale University. It consists of only 69
pages, and I strongly recommend that it should be required reading for
politicians who aspire to the minimum level of intelligence on the
impeachment process. I shall now try to summarize Prof. Black.
Impeachment is a dreadful process. It inflicts a deep wound on the country.
The citizens should adopt an attitude of "vigilant waiting;" while the
representatives and the senators should adopt an attitude of "principled
political neutrality."
The technical "Rules of Evidence" should not apply to an impeachment
trial. In effect, the House is the prosecuting party at the Senate trial, and
the managers are the counsel of the House. The impeachment trial, being
quasi-judicial, should inquire into the facts and the law, without partisan or
narrow political bias, and proceed to judgment accordingly. The goal should
be total impartiality.
However, impeachment is also quasi-political. Many senators find
themselves either definitely friendly or definitely inimical to the Chief
Justice. In an ordinary judicial trial, persons with such attitudes would be
disqualified. But if so, many of the senators would then have to be
disqualified, and only a small remnant will remain to conduct the trial.
According to Prof. Black: "The remedy has to be in the conscience of each
senator." Therefore, the ultimate issue is whether each senator has a
conscience, and if that conscience is educated.
The worst penalty that the Senate is authorized to impose is merely
removal from office and disqualification to hold public office. The
Constitution provides that judgment "shall not extend further" than these
two penalties. This implies that the Senate can impose lower penalties. The
removed officer may later be tried and punished in the ordinary courts, for
ordinary offenses that are grounds for removal.
Senate acquittal is not an endorsement of the Chief Justice, or even an
approval of his conduct. Acquittal establishes only that the senators who
voted No were not convinced of the guilt of the Chief Justice on the actual
Articles of Impeachment, brought in by the House of Representatives.
Since impeachment is not a criminal trial, the standard of proof should not
be as high as "proof beyond reasonable doubt." But because it targets the
highest official of the judicial branch, the standard of proof should not be as
low as "substantial evidence." Prof. Black recommends that the standard of
proof should be "overwhelming preponderance of evidence." Certain
people who claim that the standard of proof does not matter, are in effect
arguing that impeachment is a purely political process, which is misguided.
There should not be any "judicial review" of impeachment proceedings. It is
not only the courts that can discuss or determine issues of constitutionality.
Congress has final responsibility for impeachment, because it has the
responsibility to preserve the forms and precepts of our Constitution. It is
not sensible to allow the Supreme Court to review the final decision of the
Senate as an impeachment court. Otherwise, an impeached and convicted
Chief Justice could go back to the Supreme Court for the rest of his term,
which is absurd. No reinstated Chief Justice would be able to regain his
aura of legitimacy.
Courts decide constitutional questions which arise from cases over which
they have jurisdiction. Courts have no jurisdiction over the impeachment
process. Impeachment is quasi-judicial in the sense that it aims at fairness,
impartiality, and decision according to law.
Competence of House and Senate
Impeachment is a matter of law. Hence, the impeachment proceedings in
the House put House representatives into positions for which they are
neither trained nor prepared. When they reach trial, the representatives
assume the role of prosecutor, which requires a carefully documented case
through the filing of appropriate briefs, questioning of witnesses, cross-
examination, and oral advocacy. However, many House members are not
lawyers, and even if they are, they have little experience in litigation or trial
tactics.
Their role becomes even more complicated, because the defense counsel,
unlike the representatives, are usually experienced trial lawyers. Hence,
the House managers should delegate extensive motion and pretrial
practice to narrow the issues, as well as conduct depositions, to outside
counsel and permanent staff. A problem with the representatives as
prosecutors is that they want to do everything themselves in front of the
cameras. This is the siren call of media, because it includes a certain
amount of egotism and narcissism.
On the part of the Senate, the senators are not allowed to debate in open
court many issues in the impeachment trial. When debate is permitted
among senators, it must be made in closed session. As a result, the
reasons for certain decision in an impeachment trial may not be reflected in
the public record. As in the case of representatives, many senators also
lack the requisite experience, expertise, or training to deal competently with
impeachment matters.
Role of Media
Prof. Black advocates "most strenuously" that radio, TV, and cameras
should not be allowed at the impeachment trial. His argument is that it
inflicts humiliation greater than that inflicted by the mere fact of
impeachment. He wrote: "Nothing solid is added to public information, but
making a continuing spectacle of a trial. Above all, TV, radio, and
photography act upon that which they purport to observe." Prof. Black
argues that what we see and hear is not what would have occurred if media
were not there.
The other argument is that continual nationwide TV exposure poses the
danger of maximizing the chances of development of public pressure for
some given result. Accordingly, he warns: "The judgment of the public
ought to come after the fact, on sober and long consideration of a record
which will remain accessible forever."
In the case of Pres. Clinton, it has been said that the media had enormous
impact, as follows:
First, because there are countless media outlets, there is now frantic
competition not only to get breaking news, but also to engage in
speculation and commentary, rather than simply reporting facts, in an
effort to keep or increase audiences.
Second, the media coverage drove the final outcome. In addition, media
coverage of the Clinton impeachment trial constantly reminded the
American people that it was difficult to argue convincingly that Clinton had
breached the public trust, which is the classic prerequisite for
impeachment. The media's constant bashing of Pres. Clinton's integrity
throughout his presidency might have lowered the public expectation
regarding Clinton's integrity. American media seemed to be obsessed in
finding the next scandal, leading the public to become skeptical over the
impeachment proceedings.
Finally, this conclusion can be applied to the present Philippine public
over the impeachment trial: "The media's comprehensive coverage bored
the public, and the media's increasing penchant for scandal and
speculation turned off most of the public, while prolonging the hearing
had little, if any, prospect, that anything new would happen."
In my humble view, the media is correct in reporting that the Filipino people
are exasperated with the impeachment trial. Public discontent intensifies
the pressure to end the impeachment trial as soon as possible.
Avoiding Delay
Avoiding delay in trial is provided for by the Rules of Court by means of a
"pre-trial conference." It is unfortunate that the Senate denied the defense
motion for pre-trial. Therefore, we are left with only the procedure of asking
both counsel to make stipulations on uncontested facts. I humbly propose
that before the prosecutor presents his witness on direct examination, he
should declare the purpose of the testimony, and ask defense counsel if
the latter will stipulate that the witness will testify to a fact which defense
counsel does not contest. Thus, the testimony in open court of the witness
can be waived and time is saved.
One of the biggest sources of the delay and confusion is the coming 2013
senatorial elections. Every senatoriable is eager to spout pious nonsense
about impeachment, just to get free media advertising ahead of the
campaign. In pragmatic terms, the vote of every senator running for
reelection will depend on how much weight he or she will give to two
opposing factors.
One factor is the desire to run in the administration ticket, which is always
conceded to be superior in terms of money and other resources. The
controverting factor is the desire to win the mass votes of certain NGOs
with strong feelings in favor of the person impeached.
It all boils down to conscience, if it exists.
http://www.senate.gov.ph/press_release/2012/0208_santiago1.asp
The Process of Impeachment in Philippine Politics https://suite.io/renato-bautista-
jr/559s2j3
Impeachment is an extraordinary means of removing from office certain
public officials. These selected officials cannot be removed by any other
means.

Impeachment is an extraordinary means of removing from office certain
public officials. These selected officials cannot be removed by any other
means.
Now that the House of Representatives' Committee on Justice has decided
to proceed with the impeachment of Ombudsman Merceditas Gutierrez, the
Philippines may yet again witness another top public official be subjected to
this unique mode of removal from office. Former president Joseph "Erap"
Estrada was the first highest official to have been impeached from office in
2001, although his impeachment trial was aborted when the prosecutors
walked out in protest of the Impeachment Court's vote on a vital issue.
Who May be Impeached from Office?
Under Article 11, Section 2 of the Philippine Constitution, the following
officials may only be removed from office by impeachment:
President
Vice-President
Justices of the Supreme Court
Members of the Constitutional Commissions
Ombudsman
The Constitutional Commissions consist of the Commission on Audit,
Commission on Elections and the Civil Service Commission. The
Ombudsman investigates illegal acts or activities committed by public
officials, employees or agencies.
Grounds for Impeachment
The grounds for impeachment are culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes or betrayal of public
trust.
According to constitutional law expert, retired Supreme Court Justice
Isagani A. Cruz in his book Philippine Political Law, culpable violation of the
Constitution means "wrongful, intentional or willful disregard or flouting of
the fundamental law." He adds that mere mistakes in understanding or
interpreting the Constitution cannot be covered by this ground. Citing a
report of the special committee of the House of Representatives that
investigated the impeachment charges against former President Elpidio
Quirino, Cruz says that "other high crimes" have been interpreted as those
offenses which, like treason and bribery, are so serious in nature as to
affect the orderly workings of the government.
Finally, Cruz says that "betrayal of public trust" is a catch-all ground which
would make any act unbecoming of a public official, such as abuse of
authority or neglect of duty, an impeachable offense even though such acts
aren't crimes.
Who May File an Impeachment Complaint?
Article 11, Section 3(2) of the Philippine Constitution provides that any
member of the House of Representatives or any citizen, provided it is
endorsed in a resolution by any member of the House of Representatives,
may file an impeachment complaint. The complaint is filed with the House
of Representatives, which is one of the houses of Congress. The other one
being the Senate.
Initiation and Trial of Impeachment Complaints
The House of Representatives has the sole power to initiate all cases of
impeachment, while the Senate has the sole power to try all impeachment
cases. The House must vote by one-third of its members before the
impeachment complaint (called Articles of Impeachment) is transmitted to
the Senate for trial. Once the House musters the one-third votes, the official
concerned is then considered impeached for all intents and purposes. This,
however, is still not enough to remove him or her from office as the Senate
must still try the case and convict the official by a two-thirds vote of its
members.
Effect of Conviction
If the impeachment trial results in conviction, the impeached official will be
removed from office and be disqualified to hold any office under the
Republic of the Philippines, pursuant to Article 11, Section 3 (7) of the
Philippine Constitution. The convicted official may still be liable for criminal
prosecution if the acts that led to his or her impeachment constituted
criminal offenses.
One-Year Bar on Impeachment
Under Article 11, Section 3 (5) of the Philippine Constitution, no
impeachment proceedings may be initiated against the same official more
than once within a period of one year. In Francisco, Jr. v. House of
Representatives, G.R. No. 160261 (Nov. 10, 2003), the word "initiated"
under this provision has been interpreted as the filing of an impeachment
complaint, either by any member of the House or any private citizen that is
endorsed by any House member.
Thus, when on June 2, 2003 then President Joseph "Erap" Estrada filed an
impeachment complaint against former Supreme Court Chief Justice Hilario
Davide Jr., which was later dismissed, the second impeachment complaint
filed against the Chief Justice on Oct. 23, 2003 was disallowed for violating
the one-year bar on impeachment
PHILIPPINE SCENARIO
Constitutional Basis and Annotations
Constitutional Provisions
ARTICLE XI - ACCOUNTABILITY OF PUBLIC OFFICERS
Section 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from
office on impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers
and employees may be removed from office as provided by
law, but not by impeachment.
Section 3.
1. The House of Representatives shall have the exclusive
power to initiate all cases of impeachment.
2. A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any
citizen upon a resolution or endorsement by any Member
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper
Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty
session days from such referral, together with the
corresponding resolution. The resolution shall be
calendared for consideration by the House within ten
session days from receipt thereof.
3. A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
4. In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
5. No impeachment proceedings shall be initiated against
the same official more than once within a period of one
year.
6. The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not vote. No
person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.
7. Judgment in cases of impeachment shall not extend
further than removal from office and disqualification to
hold any office under the Republic of the Philippines, but
the party convicted shall nevertheless be liable and
subject to prosecution, trial, and punishment, according to
law.
8. The Congress shall promulgate its rules on impeachment
to effectively carry out the purpose of this section.

Definition and Nature
Impeachment is a process of national inquest into
the conduct of public officials and the bringing of
charges against them for misconduct in office.
While the process of impeachment has the
elements of a criminal process, it is basically a
political process designed to deal with the
misconduct by high public officers. The political
aspect of this process stems from the fact that the
participants (ie. senator judges, prosecutors) are not
ordinary citizens acting as judges but rather are
elected officials who serve by virtue of their
positions and not because they have been selected
by the courts to serve in judgment.

Impeachable Office
Article X, Section 2. "The President, the Vice-
President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and
the Ombudsman..."
The list of impeachable officers are exclusive and
may neither be increased nor reduced by the
legislature. All other public officers and employees
may be removed from office as provided by law, but
not by impeachment.

Grounds for Impeachment
Article XI, Section 2. "...may be removed from office on
impeachment for, and conviction of, culpable violation of
the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust."
1. Culpable violation of the Constitution
It is the deliberate and wrongful breach of the
Constitution. Violation of the Constitution made
unintentionally, in good faith, and mere mistakes in
the proper construction of the Constitution do not
constitute and impeachable offense.
2. Treason
It is committed by any person who, owing allegiance
to the Government of the Philippines, not being a
foreigner, levies war against them or adheres to
their enemies, giving them aid or comfort within the
Philippines or elsewhere. (Art. 114, Revised Penal
Code)
3. Bribery
Bribery as an impeachable offense may either be
Direct Bribery or Indirect Bribery.
Direct bribery - It is committed by any public officer
who shall agree to perform an act constituting a
crime, in connection with the performance of this
official duties, in consideration of any offer, promise,
gift or present received by such officer, personally
or through the mediation of another.
If the object for which the gift was received or
promised was to make the public officer refrain from
doing something which it was his official duty to
do. (Art. 210, Revised Penal Code)
Indirect bribery. -It is committed by a public officer
when he accept gifts offered to him by reason of his
office. (Art. 211, Revised Penal Code)
4. Graft and Corruption
This must be understood in the light of the
provisions of the Republic Act No. 3019, Anti-Graft
and Corrupt Practices Act.. Any violation of the
prohibited acts provided therein constitutes a
ground for impeachment.
5. Other high crimes or Betrayal of Public Trust
The exact meaning of "other high crimes or betrayal
of public trust" as an impeachable offense is still
undefined. The framers of the Constitution put
impeachment into the hands of the legislative
branch and transformed it from a matter of legal
definition to a matter of political judgment. Hence,
the definition of an impeachable offense depends
on the majority of the House of Representatives
considers it to be a given moment in history.
In impeachment investigation against President
Quirino, the special committee of the House of
Representatives referred "other high crimes" as to
those crimes which, like treason and bribery, are of
so serious and enormous a nature as to affect the
very life or orderly workings of the government.
Betrayal of Public Trust, on the other hand, is a new
ground for impeachment, which covers "any
violation of the oath of office involving loss of
popular support even if the violation may not
amount to a punishable offense." (De
Leon, Philippine Constitutional Law, 1999, Rex
Printing Company, Inc., p.757)

Procedure
The Constitution sets forth the general principles
governing the procedural aspects of impeachment.
It also grants the Congress to promulgate its rules
on impeachment.
The House of Representatives have the exclusive
power to initiate all cases of impeachment.
An impeachment is instituted by written accusations
called Articles of Impeachment, which state the
offenses charged. A verified complaint for
impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a
resolution or endorsement by any Member thereof.
Impeachment proceedings can begin with an inquiry
of impeachment resolution or with a direct
resolution.
In an inquiry of impeachment resolution, after the
filing of the verified complaint, the same shall be
included in the Order of Business of the House of
Representatives within ten session days, and
referred to the Judiciary Committee within three
session days thereafter.
The House Judiciary Committee then holds
hearings and investigates the charges.
The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the
House within sixty session days from such referral,
together with the corresponding resolution. The
resolution shall be calendared for consideration by
the House within ten session days from receipt
thereof.
A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a
favorable resolution with the Articles of
Impeachment of the Committee, or override its
contrary resolution. The vote of each Member shall
be recorded.
In a direct resolution, verified complaint or resolution
of impeachment is filed by at least one-third of all
the Members of the House, the same shall
constitute the Articles of Impeachment.
The Articles of Impeachment is then sent to the
Senate for trial, which have the sole power to try
and decide all cases of impeachment. A fixed
number of members of House of Representatives
shall act as prosecutors and the full Senate will act
as the jurors who shall be on oath or affirmation.
When the President of the Philippines is on trial, the
Chief Justice of the Supreme Court shall preside,
but shall not vote.
The Senate then votes in open session on each
Article of Impeachment. No person shall be
convicted without the concurrence of two-thirds of
all the Members of the Senate.
Rules of House of Representatives Justice
Committee
Rules on Impeachment of House of
Representatives
Rules on Impeachment Trial of the Senate

History
Constitutional
Impeachment has its origin in the English common law,
found its way in the U.S. Constitution of 1787, and was
adopted by the 1935 Philippine Commonwealth
Constitution.
1935 Constitutional Provisions
ARTICLE IX - IMPEACHMENT
Section 1. The President, the Vice-President,
the Justices of the Supreme Court, and the
Auditor General, shall be removed from office
on impeachment for any conviction of,
culpable violation of the Constitution, treason,
bribery, or other high crimes.
Section 2. The House of Representatives by
a vote of two-thirds of all its Members, shall
have the sole power of impeachment.
Section 3. The Senate shall have the sole
power to try all impeachment. When sitting for
that purpose, the Senators shall be on oath or
affirmation. When the President of the
Philippines is on trial, the Chief Justice of the
Supreme Court shall preside. No person shall
be convicted without the concurrence of three-
fourths of all the Members of the Senate.
Section 4. Judgment in cases of
impeachment shall not extend further than to
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.
1973 Constitutional Provisions
ARTICLE IX - IMPEACHMENT
Section 1. The President, the Vice-President,
the Justices of the Supreme Court, and the
Auditor General, shall be removed from office
on impeachment for any conviction of,
culpable violation of the Constitution, treason,
bribery, or other high crimes.
Section 2. The House of Representatives by
a vote of two-thirds of all its Members, shall
have the sole power of impeachment.
Section 3. The Senate shall have the sole
power to try all impeachment. When sitting for
that purpose, the Senators shall be on oath or
affirmation. When the President of the
Philippines is on trial, the Chief Justice of the
Supreme Court shall preside. No person shall
be convicted without the concurrence of three-
fourths of all the Members of the Senate.
Section 4. Judgment in cases of
impeachment shall not extend further than to
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.

Actual Use
Although President Joseph Estrada is the first
Philippine President that was impeached, there had
already been three instances of attempt to impeach
previous presidents.
In 1949, there was attempt to impeach Elpidio
Quirino on the ground of culpable violations of the
Constitution. The move was voted down in the
House of Representative because of partisanship
where the House was dominated by the same
political party as that of President Quirino.
This was followed by impeachment attempts in
1963 against Diosdado Macapagal and in 1986
against Ferdinand Marcos. Like in the case of
President Quirino, politics and partisanship caused
the failure of the mopve to impeach to reach the
required number of votes in the legislature.

Newspapers and Magazine Opinions and Articles
IMPEACHMENT 101
By J erry Barican
9 November 2000, INQUIRER
Now that more than a third of the House of Representatives
have signed the Articles of Impeachment, how and when will it
go to the Senate?
The Constitution says that in case the verified complaint or
resolution of impeachment is filed by at least one-third of all the
members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall proceed forthwith.
In brief, the Rules of the House notwithstanding, the
Constitution permits a third or more of its membership to file the
verified resolution directly before the Senate.
There are, however, some important technicalities. What
constitutes "all the members of the House"? Is it all the
representative districts plus the number of party-list seats
required to fulfill the constitutional requirement of "20 percent of
the total number of representatives," whether filled or not? Or is
it to be based on the existing districts plus the existing party-list
seats?
The former is a higher number than the 73 required by the latter
formula. To be safe and beyond challenge, the opposition may
prefer to submit more signatures than both minimum
requirements.
The House also has one important task remaining. It needs to
elect the House managers who will act as the prosecutors of
the case before the Senate.
When is also significant. If the articles are filed immediately, the
Senate is convened into a High Court of Impeachment, and the
Senate jueteng hearings must stop in deference to the higher
constitutional obligations. My guess is that some in the
opposition will prefer to delay the filing until at least after
Edward Serapio, the alleged recipient of Yolanda
Ricaforte's jueteng funds, has testified. But the political
pressure to file may be more powerful than logic.
2. What rules does the Senate follow?
Its own rules, or such rules as it may borrow. To speed matters
up, it may decide to adopt either the Rules of Court or the
impeachment rules of the US Senate, with a few amendments.
If it adopts the US format, each senator is sworn in as a juror.
The Chief Justice presides and makes all legal rulings. The
senators, like all jurors, hear the arguments but do not actively
participate. They, however, may submit questions to the Chief
Justice to answer or to put to the witnesses.
The managers of the House present their charges while the
lawyers for the President argue his case in turn, as in any court
trial.
In this function, the Senate does not act as a legislative body,
but as a judicial one. It therefore can directly subpoena
witnesses and documents, including bank records covered by
the bank secrecy law. It may choose to adjourn from time to
time to reconvene to perform its legislative functions. Or it may
not.
3. What standard does the Senate need to follow in order to
convict?
The Constitution cites as reasons for impeachment and
removal from office the following: "culpable violation of the
Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust."
Note that the constitutional violation needs to be culpable. Also,
all these, except betrayal of public trust, are characterized as
"high crimes," an important point in determining the standard of
proof required.
Ultimately, the Senate through its rules, the Chief Justice
through his rulings, and the conscience of each senator will
determine the real degree of proof. However, this is not a mere
administrative tribunal but a high court of impeachment ("high
crimes," as the Constitution refers to the charges).
Moreover, one does not easily set aside the electoral mandate,
especially that of a president. It may be argued that a higher
standard of proof than mere preponderance of evidence is
required. Perhaps "beyond reasonable doubt," as criminal law
requires, or at the least, "clear and convincing," a legal test
midway between the former two such tests.
4. How long can it take?
If due process is to be followed, longer than most people think.
The failed impeachment trial of US President Andrew Johnson
before the Senate in 1867 took three full months of non-stop
trial involving 11 articles of impeachment. The list of charges
against the President runs, we are told, to some 17 charges.
And the election campaign for half the Senate seats begins in
February, the election in May, and the Congress' term expires
at the end of June. Of course, ultimately, impeachment is a
political trial masquerading as a judicial one. Its speed will be
determined by politics more than law.
5. Can the trial continue after the 2001 election?
Probably. The Senate, unlike the House, is a continuing body.
However, it may be difficult to defend the replacement of many
"jurors"--perhaps half--midway or later through the trial. But this
issue is for the Senate itself to resolve.
6. How many senators are needed to convict?
Heretofore, the well-established rule was that "two-thirds of all
the members of the Senate" was to be computed on the
number of seats, vacant or not. In short, 16. However, during
the Visiting Forces Agreement ratification, the Senate adopted
a rule interpreting the phrase "all the members of the Senate" to
exclude vacancies. But even the Senate by itself can't amend
the constitutional provision.
There is consequently some ambiguity on this issue because
two-thirds of 22 sitting senators numbers less than 15. This
ambiguity favors the President who can dispute a removal by
less than 16 senators as constitutionally inadequate and legally
characterize the result as an acquittal.
Anything less than 16 votes risks having two persons claiming
the presidency and something close to splitting the nation in
half. There are therefore strong constitutional and pragmatic
cases for needing 16 votes to convict.
7. What happens if the President is convicted by the Senate?
The President is removed from office, disqualified to hold any
office under the Republic, and remains subject to prosecution
according to law. The Vice President becomes President. The
new President appoints a Vice President from among the
members of the Senate or House to serve the unexpired term
of the Vice President (i.e., until 2004), subject to confirmation
by a majority vote of both Houses of Congress


OBSTACLES TO IMPEACHMENT
By Isagani A. Cruz
28 October 2000
LET'S have no illusions about impeachment. As a method of
removing the President, it has more bark than bite. Described
by Edward S. Corwin as ''the most formidable weapon in the
arsenal of democracy,'' it is dismissed by Clinton Rossiter,
another acknowledged authority on the American presidency,
as ''a rusted blunderbuss'' occasionally brandished but hardly
ever fired.
They're talking of American democracy, though, not the
Philippine brand. In the United States, President Andrew
Johnson was impeached and escaped conviction by one vote
cast by a senator who resisted partisan pressure and heeded
only his conscience. President Bill Clinton was also impeached
but the members of Congress crossed party lines to support or
denounce him. President Richard Nixon did not have to wait to
be impeached and bite the bullet. Realizing that there were
enough Democrat and Republican legislators to oust him from
office, he resigned.
In this country, it is doubtful if the impeachment of President
Estrada can at least get off the ground, given the dubious
motivations of our own kind of Congress. At the very start of the
Lower House investigation, Chavit Singson was prevented from
submitting his evidence of Erap's involvement in the jueteng
expos. The motion to gag him, filed by an obscure
congressman, was supported by colleagues alleged to have
been assured, before or after the aborted hearing, of goodies
from Malacaang.
The vote of one-third of the 219 members of the House of
Representatives is needed to affirm a favorable
recommendation of the committee on justice or to override its
contrary decision. This means that the 46(?) members who
have signed the impeachment resolution need 27 more
signatories to complete the required vote of 73. On the
optimistic assumption that at least 10 more sympathizers will
eventually join them, there will still be a deficit of 17 votes that
will not be easy to fill.
The President's determination to kill the impeachment
movement will make it difficult for its proponents to persuade
their colleagues to reject the powerful blandishments of the
administration. It is, after all, actually fighting for its life. Notably,
there were no obvious similar efforts in the White House when
Clinton--and for that matter even Nixon--was under fir. But this
is not Washington, D.C., where certain proprieties are
observed. This is Metro Manila, where anything goes in political
skullduggery.
Things are not any brighter in the Senate, which used to be the
bastion of legislative independence. Now it is seen as another
satellite of Malacaang, with no more gumption than the House
below. The charade in the blue ribbon committee hearings is a
forerunner of the President's trial in the unlikely event that the
impeachment materializes and the Senate is called to sit in
judgment. From the one-sided conduct of the current hearings,
one can say that President Estrada's acquittal is a foregone
conclusion.
The leanings of the Senate are all too obvious. When Singson
was testifying, the blue ribbon committee was like a Court of the
Inquisition. The senators interrogated him not so much to elicit
information on his expos as to discredit his testimony. He was
from the very beginning considered a hostile witness and
treated accordingly. By contrast, the witnesses for Mr. Estrada,
namely, his wife Loi and his two sons, Jinggoy and Jude, were
handled tenderly if not obsequiously. The senators exchanged
barbs with Singson but only pleasantries with the President's
family.
To take just one example, the interrogators seemed too eager
to believe Jude's explanation that he was on a medical mission
when he flew to Mindanao--on the presidential plane no less
and with his barkada to boot--and watched his inamorata
perform at a floor show. The senators who nit-picked Singson
did not want to know more about Jude's expedition. The
audience was expecting them to pin the witness down, but that
didn't happen.
Intellectual integrity is hardly a virtue of the present Senate.
Practically all the members are motivated by some selfish
interest, political or otherwise, that is likely to be the criterion
when they cast their vote on the innocence or guilt of the
respondent. The character of the evidence is only secondary
and will not matter in the end. What will matter is the character
of the senators themselves.
One of Mr. Estrada's open supporters, who opposed the Senate
investigation at the outset, is known to be seeking appointment
as Philippine ambassador to the United Nations. A lady
senator's husband is the president of a construction company
doing business with the government. Another senator's
husband and sister are holding non-tenure positions in which
they can be replaced at the President's pleasure. A third
senator's mother is in the foreign service and can also be
recalled at will. One senator is rumored to be aspiring for the
Senate presidency. A number of reelectionist senators are
careful not to be excluded from the administration's official
ticket. Others dare not offend the President for fear of his
vindictiveness, and still others are simply hoping to be
rewarded for simple mindless loyalty.
The few who will not be swayed by self-interest are pitifully few
and cannot make up the two-thirds vote needed to convict the
respondent. They will probably be among those who voted
against the Visiting Forces Agreement, possibly to be joined by
some stalwarts like Sen. Ramon Magsaysay Jr. who forfeited
his assured slot in the LAMP ticket and resigned from that party
because of his disgust over the conduct of the Senate
investigation. But even as the opposition hopes that its
members will stand firm, it must also be prepared against
defections to the President's more comfortable camp with all its
promised gratitude.
The Constitution provides that where the President of the
Philippines is impeached, the Chief Justice shall preside at the
trial. Chief Justice Hilario G. Davide Jr. is a fair-minded judge,
but it is doubtful if he can stem the tide of prejudice that will
prevent a dispassionate assessment of the basic issue before
the Senate. That issue is not what rewards await its members.
That issue is whether, on the basis of the evidence against him,
the President is fit to remain in his high office until the end of his
term in 2004 or deserves to be booted out immediately for his
unforgivable offenses.