Being Right

Impeachment and removal are the words of the day. Blame it on the Democrat’s insane inability to accept Donald Trump’s win in the 2016 elections. Yet despite being a popular social media topic, impeachment is a concept least understood by many.

In the Philippines, impeachment is found in Article XI(2) of the Constitution:

“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.”

The big argument in 2018 was whether Maria Lourdes “Meilou” Sereno could be removed from the Supreme Court by modes other than impeachment. This column was almost alone in arguing: Yes.

One reason had to do with Art. XI(2)’s “may” (in the 1935 and 1973 constitutions it was “shall”) and the absence of the word “only,” indicating a language not precluding other means of removal. Gratifyingly, the decision in Republic vs. Sereno seemingly confirmed that position:

“The provision uses the permissive term ‘may’ which, in statutory construction, denotes discretion and cannot be construed as having a mandatory effect. We have consistently held that the term ‘may’ is indicative of a mere possibility, an opportunity or an option. The grantee of that opportunity is vested with a right or faculty which he has the option to exercise. An option to remove by impeachment admits of an alternative mode of effecting the removal.”

Indeed, when one looks at the other co-equal branches, different modes of removal from office are available.

Of course, there is the better known Article VI(11) provision, by which members of Congress can be arrested for offenses punishable by more than six years imprisonment.

But set aside said Article VI(11), the point that must be emphasized is that impeachment and other forms of removal are not in the nature of punishments on the official.

Impeachment or removal are not penalties meted out for an offense (which can come later in another proceeding) but rather to prevent said official, occupying a position of public trust, from continuing to have the capacity to do harm.

Thus, each House can “punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member.” (See Article VI of the Constitution).

And the ways to remove a president are endless.

Art. VII is replete with alternative modes. Aside from death, resignation, incapacity, and expiration of term (as well as, of course, by impeachment), the cabinet can also get rid of the president by way of Art. VII(11):

“Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

For Supreme Court justices? Aside from impeachment, there’s death, resignation, and retirement at 70 years of age.

But the Constitution is seemingly open to other modes: Art. VIII(11) requires a judge stay in office “during good behavior until they reached the age of 70 years or become incapacitated to discharge the duties of their office.” That provision alone suggests three different and other causes and modes of separation from office.

Then there’s Art. VIII(7[3]) (“A member of the Judiciary must be a person of proven competence, integrity, probity, and independence.”), which could be interpreted as continuing requirements.

Note, however, that both Congress (vis-à-vis its members) and the Executive (the cabinet vis-à-vis the president) can remove the relevant official when such seemingly is not living up to their oaths of office.

This logically should mean the Supreme Court (as an equal branch of government) would also have the ability to do “house cleaning” of its own, removing by en banc vote any member “incapacitated to discharge the duties of their office,” or not of “good behavior,” “competence, integrity, probity, and independence.”

Finally, there’s the canard that impeachment is a “political process” and hence legal principles, the rules of evidence, fair play, and logic do not apply. Not true and they do.

The Senators before being part of an impeachment court need to take an oath (or affirmation, see Art. XI(3[6])). That oath requires them to impart “justice,” which is clearly a legal standard.

The point to remember is that the three branches are equal. To make impeachment easy, by justifying it as a purely “political” exercise, will make the other two branches at the mercy of the legislative.

This converts our political system into a parliamentary form of government, which is in no way consistent with the republican presidential system provided for in our Constitution.


Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula