Impeaching a Vice-President

Impeachment is back in the national conversation, what with some House members initiating an impeachment complaint against the Vice-President. Employing the “kitchen sink” approach, the complaint boasts of 24 articles of impeachment against Sara Duterte and apparently works under Stalin’s dictum that “quantity has a quality all its own.”

Set aside obvious issues regarding timing and perhaps the numbers required for a possible Senate trial, the House complainants seem to be of the belief that if “less is more,” then “more must be more more.”

In any event, 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 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.

But it does lead us to a discussion on whether impeachment is even a necessary measure. Are there other ways to hold a sitting vice-president accountable, such as a criminal suit?

Note that the Constitution is silent as to the issue of vice-presidential immunity (and for that matter, presidential immunity as well). The Supreme Court has not had the opportunity to address the issue directly but has done so numerous times regarding presidential immunity. In 2021’s Nepomuceno vs Duterte, the Supreme Court declared that:

“Presidential immunity from suit remained preserved in our current system.

“While the concept of immunity from suit originated elsewhere… at this juncture, we need only concern ourselves with immunity during the President’s tenure, as this case involves the incumbent President. As the framers of our Constitution understood it, which view has been upheld by relevant jurisprudence, the President is immune from suit during his tenure.

“Unlike its American counterpart, the concept of presidential immunity under our governmental and constitutional system does not distinguish whether or not the suit pertains to an official act of the President. Neither does immunity hinge on the nature of the suit. The lack of distinctions prevents us from making any distinctions. We should still be guided by our precedents.

“Accordingly, the concept is clear and allows no qualifications or restrictions that the President cannot be sued while holding such office.”

As for the rationale in granting immunity? It’s “to assure the exercise of Presidential duties and functions free from any hindrance of distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention.”

Now whether that reasoning can be applied to vice-president is something that needs to be pondered on.

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:

“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.

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.”

But really, the best way to hold public officials accountable is to vote the undeserving clear out of office.

Jemy Gatdula is a lawyer specializing in international economic law and the law of armed conflict, as well as constitutional philosophy and jurisprudence.