‘A republic if you can keep it’

As with the Philippines, a republican democracy essentially keeps the passing passions and dominance of the majority in check by adhering to certain principles, the upholding of inherent individual rights, and the principle of checks and balances.

These checks and balances are, as outlined by James Madison in Federalist 51, come primarily if the republic’s citizen’s act virtuously.

Yet since men are not angels (to paraphrase Madison), it becomes necessary to “first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

This government works under the sovereignty of the people, with certain delegated powers broken up into three equal branches, each keeping in check on one another: the executive, legislative, and the judicial.

The primary way of ridding ourselves of incompetent or abusive officials is by exercising the right to suffrage. Following that, within the framework of the Constitution that we the people authored, are several other modes previously discussed in this column (see, for example, “To impeach or remove: How to get rid of a public official,” Oct. 17, 2019).

With what’s happening in the US today, “impeachment” is the popular watercooler topic. The Philippines has had — unfortunately — quite some experience with impeachment proceedings: having impeached a president and a Supreme Court chief justice.

Before anything else, to be clear: an impeachment is merely like a form of indictment. It does not necessarily mean removal. One needs a Senate trial for that. Hence, for example, former US President Bill Clinton was impeached but not removed from office.

In the Philippines, impeachment is found in Article XI.2 of the Constitution, which substantially reads: “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.”

The grounds are slightly different from that in the US Constitution, which states: “The President, Vice-President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Despite the differences, statutory construction tells us that both provisions envision utterly grave offenses committed by the subject government official. Whether that offense need be committed against the State or merely an individual is subject for another discussion.

Nevertheless, the big lie that has been perpetuated during the Chief Justice Corona impeachment proceedings and continually taught in law schools today is that such proceedings are “political” in nature. It is not. The rule of law must still be upheld.

One cannot impeach a president simply because one disagrees with him on policy or your feelings got hurt. There must be a legal rationale built on proper procedural grounds to impeach and then remove such an official.

Citing Alexander Hamilton (in Federalist No. 65), Alan Dershowitz points out that the meaning of “high” crimes are “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

In short and Dershowitz emphasizes: “Hamilton didn’t say the process of impeachment is entirely political. He said the offense has to be political.”

One sees this in the oath that the impeachment presiding officer and members of the Senate have to take before sitting as an impeachment court: “I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of ______ ______, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”

The key portion here is: “impartial justice according to the Constitution and laws: So help me God,” which hardly lends to an interpretation of anything goes politically.

Furthermore, the presiding officer when the impeached official is the president is the Supreme Court chief justice, thus lending legal and judicial assurance to the proceedings, as well as ensuring participation of all three branches of government.

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.

Put another way: the president may not be above the law but neither is Congress or members of the Supreme Court. Or anyone for that matter.

Besides, to provide unhindered latitude to the Congress converts our political system into a parliamentary form of government, which is in no way consistent with the republican democratic (and) 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.

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