No to impeaching Duterte and Robredo

Never before has impeachment been used more as a tool than any period in our political history.

What is a good thing – making top officials accountable – has now been distorted as a way of defeating the will of the people. The last time this was done was in the case of Joseph Estrada. Look at how much bad governance followed after that unfortunate episode.

Eight months since his landslide victory in the May 2016 elections, President Rodrigo Duterte is now being threatened with impeachment by his political opponents, namely, Magdalo Representative Gary Alejano on grounds of betrayal of public trust, bribery, culpable violation of the Constitution, and other high crimes.

Specifically, on betrayal of public trust, the impeachment complaint alleges that the President willfully and culpably committed the High Crimes of bribery, multiple murder and/or Other Crimes Against Humanity” by adopting a state policy of inducing policemen, other law enforcement officers and/or members of “vigilante groups” into extrajudicial killings of more than 7,000 persons, some of them merely suspected of being drug pushers or users.

As to betrayal of public trust, bribery, graft and corruption, culpable violation of the Constitution, and other high crimes, the complaint alleges that with Duterte’s patronage, backing and/or support as mayor, vice mayor or congressman, and now as president, policemen and/or other law enforcement officers and their “force multipliers, including rebel returnees” were organized into an “anti-crime task force” which killed an estimated 1,400 persons.

On the allegation of Graft and corruption and other high crimes, the complaint states that the Commission on Audit had questioned the hiring of 11,000 contractual workers in 2014 when Duterte was still Davao City mayor. This cost the city coffers P708 million. The complaint also accuses the President of unexplained wealth and plunder. 

Not to be outdone, Duterte supporters, decrying the impeachment complaint against the President, are also considering an impeachment complaint against Vice President Leni Robredo after she appeared in a video lamenting the human rights situation in the Philippines. This was for an international conference done last February.

Earlier Marcos loyalists, headed by lawyer Oliver Lozano filed an impeachment complaint against the Vice President for violating the Constitution and betraying public trust as a result of the video message she sent to a United Nations side event. Perhaps not equally controversial, Ombudsman Conchita Carpio-Morales has also been the subject of plots to oust her via impeachment. Knowing Ombudsman Morales, she could only strike a defiant tone with her acerbic wit in response to these ouster threats and shrug them off with nary a concern.

Philippine history of impeachment

Impeaching an official is not of recent vintage in the Philippines. Several Philippine presidents had to undergo the specter of impeachment in the past, though none succeeded. In 1947, a 5-count complaint was filed against Elpidio Quirino on charges ranging from nepotism to gross expenditures. In the end, the congressional committee exonerated Quirino. 

Next to pass the crucible was Diosdado Macapagal who, in 1963, was threatened impeachment by the Nacionalista Congress and another one against Marcos by 56 assemblymen who got wind of a news exposé on the alleged real estate acquisitions of the First Family in the United States. The complaint against Marcos never reached first base when the following day, the House Committee on Justice dismissed the complaint for being insufficient in form and substance.

In the recent past we have seen similar political spectacles, the most dramatic of which was the conviction and eventual ouster of Chief Justice Renato Corona by the Senate sitting as an impeachment court. Early on, Ombudsman Merceditas Gutierrez and before that, Chief Justice Hilario Davide Jr, also became targets of impeachment, with the latter aborted only because the House of Representatives voted not to transmit to the Senate the articles of impeachment. The Supreme Court also intervened when a second petition was filed against Davide. Gutierrez escaped impeachment only because she resigned in the face of near certainty of impeachment and conviction.

The nature of impeachment

There is unanimity among legal scholars that impeachment proceedings are a class of their own; as lawyers would say, sui generis. The inimitable late Senator Miriam Defensor-Santiago best described these proceedings as both quasi-judicial and quasi-political.

Quasi-political because it is akin to, but not quite, a political proceeding undertaken by a political body which is the Senate, and quasi-judicial because it partakes of some of the elements of a criminal process without necessarily strictly following the Rules on Evidence and legal technicalities. At most, the Rules of Procedure and the Rules of the Senate apply suppletorily, as a supplement that is, to the Rules of Impeachment drawn by Congress.

It is of course 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 Section 2, Article 11 of the 1987 Constitution: culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. 

The most problematic of these grounds is “betrayal of public trust” which is a catch-all phrase to cover all offenses, including all acts which are not punishable by penal statutes but, nonetheless, render the officer unfit to continue in office. These grounds are exclusive, and offenses not falling within these parameters are rendered insufficient for impeachment purposes.

While political, the filing of an impeachment complaint may not be based on popular passion, whim and caprice. Because of the seriousness of its purpose, the complainant must file his complaint after utmost consideration of its merits; after all, the public reputation as well as the proper performance of official functions are at stake. 

This is the reason why the framers of the Constitution thought it wise to put in clear safeguards and guidelines to be followed by Congress to ensure that it does not act arbitrarily and oppressively.  Among these are: specifying the grounds for impeachment, the periods within which an impeachment complaint should be acted on, the voting requirements, the one-year bar on initiating an impeachment process, and the promulgation of the impeachment rules. Implicitly, it is also required that the guaranteed individual rights of the individual must absolutely be respected. 

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 prosecutions 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. 

Given that impeachment is a political act, the power to initiate, hear, and decide upon impeachment complaints and cases is lodged in the legislative branch of government under the 1987 Constitution. Section 3, Article 11 of the Constitution provides the basic framework for impeachment proceedings.

Mandated by this provision, the House of Representatives and the Senate of the 15th Congress have promulgated their own rules of impeachment, Rules of Procedure in Impeachment Proceedings adopted on August 3, 2010, and Resolution No. 39, Resolution Adopting the Rules of Procedure on Impeachment Trials adopted on March 23, 2011, respectively.

Senate’s role in impeachment

To underscore the uniqueness of the impeachment process the Constitution has created a singular and independent body, not falling under the jurisdiction of any of the 3 great branches of government – the executive, legislative, and the judiciary.

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. 

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. In the United States, the decisions of the impeachment court are non-reviewable and stand as the final decision in the case. It would be highly illogical and legally awkward for the Supreme Court to review the decisions of the impeachment court trying its highest official.

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.

By its very nature, the authority of the impeachment court is almost unrestricted. But it does not mean that it can do as it pleases. While the truth is its primordial consideration, the welfare of the democratic institutions should also be given utmost consideration. 

Alternatives to impeaching Duterte

I cannot support the impeachment and the early removal from office of President Duterte. I am impelled not only because I am a Mindanawon, but more so because I sincerely want this president to succeed for the good of all.

I support this administration’s good initiatives on peace, environment, social welfare, agrarian reform, transportation, tax reforms, inclusive development, etc. I oppose the human rights excesses of the war against drugs (the war itself I support, if the strategy was modified) and the anti-democratic actions against opposition figures like Senator Leila de Lima and Vice President Robredo.

A premature ouster of the President via impeachment is a most drastic and potentially explosive political move. I would rather give the President every opportunity at self-correction which, by far, is the better avenue. And as I said before, I do not think it is too late for that.

As for accountability for the people who have been unjustly and illegally killed in the war against drugs, I am resigned to the possibility that the President and his top law enforcement officials will eventually be brought before the International Criminal Court of Justice. In fact, one can even surmise that a railroading by Congress of a decision to dismiss the Magdalo impeachment complaint will trigger the filing of the ICC case.

That is why, in the case of the Duterte impeachment, Congress must hear the evidence, allow deliberation, and decide on the merits. An outright dismissal would not be credible.

I am grateful though to Representative Gary Alejano and his Magdalo colleagues for their courage in taking this step. I also admire the strategic thinking behind this move. Even if they fail in this impeachemnt, they have done the country a great favor by making sure there is a national debate on the massacre of the poor.

Partisan against Robredo’s impeachment

I am also totally against the impeachment of Vice President Robredo. Her video message, granted that the numbers on the extrajudicial killings are debatable, does not in any way constitute an impeachable offense. It is not a culpable violation of the Constitution. It is not a high crime. There is no bribery committed here. It is certainly not a betrayal of public trust.

On the last ground, in a 2012 decision involving Deputy Ombudsman Emilio Gonzales II, the Supreme Court already pronounced that human error and good faith preclude a finding of betrayal of public trust. Indeed, the 1987 Constitutional Commission defined such acts as those “which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers.”

Thus, according to the Supreme Court: “Acts that should constitute betrayal of public trust as to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds of impeachment.”

The Robredo video message in no way fits the above-cited definition of betrayal of public trust. She is, clearly in good faith, citing the numbers of extrajudicial killings. In fact, the only positive thing in a Robredo impeachment trial at the Senate is that we can actually get to the bottom not only of these numbers, but also of what is behind the modus operandi in the massacre of the poor.

I have personally validated many of the killings and the incidents that have been reported in media, and that is why I do not hesitate to call it a massacre of the poor. But the country will benefit from exposing the truth to all citizens and to the outside world.

Although I supported the Poe-Escudero ticket in the 2016 elections and do not regret that, as I think both senators would have been good as a governing tandem if they won the elections, I am going to go partisan in a Robredo impeachment case and be on the side of the Vice President.

If an impeachment proceeds her, I will abandon for that period – when the case is pending – my usual independent and non-partisan perspective. On a personal basis, I do that out of loyalty to my friend Jesse Robredo. But more fundamentally, a Robredo impeachment is against all that I believe in with regard to what the rule of law is and what a democracy should be.

Impeachment, corruption, and abuse of power

We do not have a good experience with impeachment. Unfortunately, the ultimate power to hold our top officials accountable has been used in an unaccountable way by equally and even more powerful officials.

Impeachment increases corruption in government, since the President has to buy the loyalty of representatives and senators. The GMA [Gloria Macapagal Arroyo] era and Corona’s impeachment most eloquently attest to this. We are still experiencing the toxic residues that the past administrations have left behind as a result of their arrogance and abuse of power.

In my view, the Aquino government acted disgracefully in the Corona impeachment and in pressuring Ombudswoman Gutierrez to resign. The use of brute power in those processes now haunts us today.

Daang Matuwid became crooked in its obsession to oust Chief Justice Corona. The excuse then was the war against corruption. Now, I hear Duterte supporters echoing similar reasoning: the war against drugs justifies everything, including removing an uncooperative Vice President so that the President can choose his own Vice President.

It’s the quiet before the storm. The season of impeachments could come to us in May, but I hope that collective sanity returns to all of us in time, before we destroy our democracy. – Rappler.com

The author is former dean of the Ateneo School of Government.