The impeachment court’s awesome power

With many legal questions that the Senate acting as impeachment court has to resolve, this is a good time for the senator-judges to reflect on their powers.

As an interested observer, and as a professor of Constitutional Law and an advocate of social accountability, I would like to share my views, particularly on whether or not the impeachment court can compel sitting Supreme Court justices to testify and subpoena official court records, and order them to be handed over for use in the trial.

Will such orders violate the separation of powers? Can the Supreme Court refuse such orders? Can the Court, in fact, nullify those orders as an exercise of the power of judicial review?

I favor the plenary power of the Senate acting as an impeachment court.

Indeed, as such court, they can exercise all powers necessary to fulfill their constitutional mandate to exact accountability from the high level officials singled out by the Constitution as impeachable. Their orders and the ultimate decision of conviction or acquittal cannot be reviewed by any court, including the Supreme Court.

Because of this awesome power of the Senate as an impeachment court answerable only to the people and their consciences, they are expected to act with prudence and wisdom.

Impeachment proceedings are a class of their own; as lawyers would say, sui generis. As the records of the 1986 Constitutional Commission show, impeachment proceedings are both quasi-judicial and quasi-political. Quasi-political because they are akin, but not quite, to a political proceeding undertaken by a political body which is the Senate, and quasi-judicial because they partake of some of the elements of a criminal process without necessarily following strictly 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. Perhaps 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 the 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.

SC has no jurisdiction

What then is the character of the impeachment court’s authority, and to what extent can it exercise its powers?

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. This makes sense especially since the present impeachment trial involves no less than Chief Justice Renato Corona. 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.

Separation of powers is irrelevant and inapplicable because the Senate is not exercising legislative power in case of impeachment. Instead, it is fulfilling a special power given to it by the Constitution to actually make accountable a co-equal branch of government.

Testing the limits

During the impeachment trial, we have witnessed how the prosecution tested the limits of the impeachment court’s authority when it made requests, in legal terminology referred to as subpoena duces tecum et subpoena ad testificandum, for the production of certain documents and to summon highly controversial witnesses. 

We are referring to the production of bank records, records of the Supreme Court, and now the summoning of Supreme Court Justices Presbitero Velasco and Maria Lourdes Sereno. Of course, the requests by the prosecution panel created a stir in certain quarters and invited howls of protest from the defense. I must say there is some basis for this. 

While admittedly the Bank Secrecy Law cannot be invoked to deny the impeachment court valuable information about the bank deposits of the Chief Justice, any and all requests to this effect must be more specific than a mere allegation or suspicion by the prosecution that because the Corona spouses bought properties “almost in cash” ergo they must have stashed an enormous amount of wealth in the banks. 

Any attempt by the prosecution to elicit evidence without delving on specifics and relying solely on speculation or conjecture strengthens the accusation of the defense that all of these smack of a “fishing expedition” or, as some would put it more graphically, “dynamite fishing.”

This is not to mention that the production of these bank records will tread precipitously on the issue of ill-gotten wealth. The impeachment court had already ruled against the reception of any evidence on this issue. 

Protecting institutions

Another potentially controversial issue on the table will be that involving Justices Sereno and Velasco. While theoretically the impeachment court, given its plenary powers, can exercise its compulsory powers to bear upon these two magistrates, it will be very bad policy to do so.

Any measure towards this can have lasting ill effects on the Supreme Court – the very institution that this impeachment trial seeks to strengthen in the first place.

To subpoena its members will unduly drag the High Court deeper into the controversy and set the stage for intramural discord among its members.

This country cannot afford a nonpolitical institution being wracked by internal dissension. Moreover, compared to the other 2 branches of government, the Supreme Court is the most benign.

As the cliché puts it – the Supreme Court has neither the power of the sword nor the power of the purse. It derives its authority solely from its persuasive power. For the impeachment court to now summon any of its members will create a chilling effect that can only weaken the institution.

The records of the Supreme Court are, however, a different thing.

These records are public in character and are therefore fair game in the impeachment proceedings. They must be made accessible and available to the impeachment court, if only to shed light on the issues at hand. They are a memorial of the acts of the Supreme Court, a governmental institution, and cannot therefore be made immune from public scrutiny.

To order the production of these documents is a proper exercise of the impeachment court’s plenary powers to enable it to discharge its duties under the Constitution. Specifically, in the current impeachment trial of Chief Justice Corona, these documents strike at the heart of the case of the prosecution in a number of the Articles of Impeachment.

If they are denied such subpoenae, these could be fatal to the prosecution’s case and would negate the mandate of the impeachment court to get to the bottom of this case.

By its very nature, the authority of the impeachment court is well-nigh 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. – Rappler.com