Talk impeachment, and immediately, all reference is to Article XI of the Constitution on the accountability of public officers —and of course, the provisions on impeachment are there. But somewhere, tucked into Article VIII on the Judiciary is Section 11 that starts with the clause: “The members of the Supreme Court and judges of lower courts shall hold office during good behavior xxx”. While, for some time, it was debated in the US whether or not this provided a distinct ground for impeachment—and it is now agreed that it does not—it certainly leaves no doubt that “good behavior” is a continuing requirement for members of the Bench and, for Supreme Court justices, in particular. And so, while it is certainly legitimate to concern ourselves with what are impeachable offenses, this requirement of “good behavior” is not to be dismissed as rhetorical flourish. It should have juridical entailments.
James Madison thought impeachment to be indispensable to defend the community against “the incapacity, negligence or perfidy of the Chief Magistrate.” He was of course referring to the President of the United States, but under the 1987 Constitution of the Philippines, the grounds for impeachment of impeachable officials are the same. Benjamin Franklin, for his part, thought that impeachment did the President a favor, because against a Chief Executive who had made himself “obnoxious to the public”, without impeachment, the only recourse would be an assassin’s bullet!
Culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust—these are the grounds that the Constitution textually provides. They are purposely broad and are not defined like the Revised Penal Code sets forth the elements of crimes.
Even if it seems to be the most nebulous of the grounds—others like treason, bribery, graft and corruption having statutory definitions —“culpable violation of the Constitution” is not unique to the Philippine Constitution. In National Assembly v. Park Geun-hye, Case No. 2016 Hun-Na1 (March 10, 2017), the Constitutional Court of South Korea the South Korean President guilty of “violations of the Constitution”, specifically: repeatedly causing the transfer of government documents to non-government officials, assisting friends in the pursuit of personal gain, the formulation of policy favorable to cronies, infringement of the freedom and property rights of enterprises.
The South Korean Constitutional Court sets the responsibility of the President in broader perspective: “In a representative democracy, a public official is entrusted by the people, the sovereigns, with the power to exercise national authority and thus must work for the benefit of public interest from a neutral position.” This is perfectly consistent with the American persuasion that impeachment is “a remedial tool to effectively maintain constitutional government by removing officials unfit for office.” Given this premise then, “culpable violation of the constitution” and “betrayal of public trust” as distinct grounds for impeachment in the Philippine Constitution need not be criminal acts. They will justify impeachment when they transgress the very foundations of a constitutional democracy, impair checks and balances and deliberately impugn separation of powers!
In respect to the duties of the highest officials of the land towards the Constitution, the Constitutional Court of South Africa ( Cases CCT 143/15 and CCT 171/15, March 31, 2016), in the case against President Jacob Zuma, said of the President’s violation of the Constitution: “This requires the President to do all he can to ensure that our constitutional democracy thrives. He must provide support to all institutions or measures designed to strengthen our constitutional democracy. More directly, he is to ensure that the Constitution is known, treated and related to, as the supreme law of the Republic. It thus ill-behooves him to act in a manner inconsistent with what the Constitution requires him to do under all circumstances.” From this South African precedent, we are taught that acts or omissions that undermine constitutional institutions and that run roughshod over the workings of a democracy constitute culpable violations of the constitution.
Thus far, all references have been to the impeachment of a president. Should the grounds be construed differently when the officer at the bar is the Chief Justice (or perhaps the chair of any of the independent Constitutional Commissions)? Although quite clearly, the way a Chief Justice will culpably violate the constitution is different from the way a President will be guilty of the same charge by virtue of the differences in the nature of their offices, the Philippine Constitution textually provides for the same grounds. Where the law does not distinguish, distinctions subsequently introduced are spurious!
What “culpable violation of the Constitution” can further mean may very well be suggested by American precedent. A thorough study by Jared Cole and Todd Garvey of the US Congressional Research Service (October, 2015) entitled “Impeachment and Removal” includes a summary of different impeachment cases. In 1868, Andrew Jackson, the US President, was impeached for violating the Tenure of Office Act and likewise for haranguing Congress and for questioning legislative authority. Nixon’s case in 1974 had to do with the supposed misuse of the powers of his office to obstruct investigation of the Watergate Hotel break-in. Then there was the well-publicized and televised trial of President Bill Clinton for behavior considered incompatible with the nature of the office of the Presidency. The terms of indictment should be instructive: “William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President and has acted in a manner subversive of the Rule of Law and justice, to the manifest injury of the people of the United States.” It is the Constitution that lays down the powers of the Chief Justice and whether or not her conduct as undermined the integrity of her office or brought it in disrepute or whether her acts or omissions have subverted the rule of law and justice all constitute the question of whether or not she culpably violated the Constitution.
But it is against federal judges that the impeachment mechanism has been more frequently used. Judge Harry Claiborne (1986) was impeached and convicted for providing false information on federal income tax forms, for having brought the judiciary into disrepute by his conviction in a criminal case for perjury. In relation to his case, it was said that while it was devastating to the judiciary for judges to be perceived as dishonest, it was as devastating for the entire government for a President to perjure. And the misbehavior need not be in the regard to the performance of official duties. Judge Thomas Porteus (2010) was impeached for misconduct committed prior to his appointment to his present position—leaving no doubt that actions prior to appointment may return to haunt the respondent in impeachment proceedings.
While some earlier cases are disturbing in that impeachment and removal from office after conviction seem disproportional to the offense, the relative ease with which judges are impeached and convicted is explained by the fact that in the United States, the only way federal judges can be removed from office is by impeachment.
In respect to the “political justice” that impeachment and trial mediate, Alexander Hamilton in Federalist Papers No. 65 has a clear explanation: “…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.”
As to “culpable”, the point should be clear: One is punished for wrong deliberately perpetrated, but one cannot be punished for a mistake or for an opinion. If one in high office should maintain an opinion that should later prove to be wrong, disastrous even—as a mistaken command or maneuver during war, there certainly would be error, and if error is so frequent and so egregious, it may indicate incompetence, but that would not be the “culpable violation” that is required for impeachment. Rather a deliberate violation of the prescriptions and precepts, the ordering and the principles, the premises and the entailments of the constitutional order—this would be actionable and a ground to evict the perpetrator from high office.
This understanding of the mechanism of impeachment and trial coupled with what American, Korean and South African precedents tell us about high office and obligations towards the constitution leave us with the conclusion that while “culpable violation of the constitution” may not be susceptible of the parsing into elements that is characteristic of common crimes, it is neither a vacuous term and one that has to do with the very nature of high office in the workings of a constitutional democracy and in the support of its institutions and vigilance over its fundamental principles.
rannie_aquino@csu.edu.ph
rannie_aquino@sanbeda.edu.ph
rannie_aquino@outlook.com