A key weakness of the Philippine constitutional system is the fact that the impeachment process–which, as in the U.S., is virtually the only way to remove sitting Presidents and other high officials before the end of their terms–is carried out by what are, in fact, political organs, namely, the Senate (acting as jury) and the House of Representatives (acting as the grand jury). This would not be so problematic if removal could be done without cause, such as through a no-confidence vote, as that would be an outright admission of the political nature of the process. However, the Philippine Constitution makes removal a quasi-judicial process that may only be done for cause; and the evident inconsistency between its supposedly impartial purpose and its frankly partial process weakens the very perception of legitimacy that should attend it, as indeed it has been weakened.
The impeachment process itself is an anachronistic transplant from England, where the House of Commons could, of old, impeach the King’s ministers, upon which they could be prosecuted and removed, upon a finding of guilt, by the House of Lords. There was at least an appearance of judicial propriety in the process, for the Law Lords acted, in the English system, as the supreme tribunal, receiving appeals from the equity Court of Chancery and the common law courts like those of the Exchequer and the King’s (or Queen’s) Bench. Even then, however, the process was tainted by the political alignments of the Lords and the Commons, who were mostly Tory and Whig, respectively, and its conduct was usually reflective of the tensions that long existed between the aristocracy and the rising bourgeoisie.
Fortunately for the English, after Parliament’s triumph over the Stuarts and the Hanoverians, the British scrapped impeachment for the frankly political process of no-confidence removal when the cabinet ministry became a committee of Parliament and, eventually, the Commons. However, the Americans, who became independent before the completion of Parliamentary supremacy in England, then adopted the same impeachment process; and because the Senate became a purely political body, its quasi-judicial process thus became politicized. Witness how the otherwise stable post-Civil War American system was convulsed with the clearly political attempt to remove President Andrew Johnson (whereas President William Clinton’s attempted removal at least came from an alleged criminal offense).
The Philippines’ American-mandated imitation of Americans led to the adoption of this impeachment process with all its attendant weaknesses. An added problem then arose from the Philippine President’s domination of Congress, a legacy of both the Philippine authoritarian tradition (its first President, Emilio Aguinaldo, was a Bolivarian caudillo) and American colonial law (wherein the U.S. Executive was far more powerful than the legislature); for the Philippine Constitution gives its President almost total power over government operations and finances. Among other powers, he/she can limit (through the Department of Budget and Management) the amounts Congress can appropriate and he/she may veto specific budget items (whereas the U.S. President is faced with a take-it-or-leave-it choice on the national budget); and Congress is deprived of its main fiscal counter-weapon, for, in case of deadlock, the last year’s budget is simply carried over into the next.
What makes this fatal to Congressional independence is the fact that Members of Congress must contend with the informal system of patronage spanning Philippine society. This is certainly not unique to the country (the U.S., for instance, had its Tammany Hall ring and fin-de-siecle urban party machines), but its influence in the Philippines is magnified by the wide disparity of social incomes; the socio traditions of bossism and State feudalism, which existed even in the pre-colonial period; and the lack of cohesive party organizations and campaign fund networks–which, anyway, has no politically-active financing class to look to. This means that impoverished voters will look to politicians to buy their votes with immediate material benefits; and that politicians must find the needed money using their own devices, often by skimming off from “discretionary funds” in the national budget, which is almost-singlehandedly controlled by the President.
Philippine politics hence resembles nothing so much as the patrimonial system of late Pre-Revolutionary France, the former’s politicians akin to the noble pensioners of the Bourbon Kings and just as dependent; and with many Congressmen thus nestling in the President’s pocket, impeachment becomes a dead letter. One cannot therefore be surprised at how framers of Philippine Constitutions constantly try to tweak the impeachment process (for instance, 2/3 of the House was required to impeach under the 1935 Constitution; 1/5 under the 1973 charter; and 1/3 under the present system) in order to “strengthen” it; and, more importantly, at the failure of almost every attempt at impeachment-removal, often at the moment of its conception. And how not, when it’s a judicial process carried out by politicians beholden to the judged?
Nor should one wonder at the frequent resort to extra-constitutional removal in the last 3 decades, given the inutility of impeachment as a means to bring erring leaders to heel. The political crisis of the early 1980’s and the 1986 revolt became inevitable with the final failure to impeach President Ferdinand Marcos; the needless travesty of President Joseph Estrada’s trial (through his Senate allies’ suppression of evidence) triggered the middle class revolt of 2001; and the 2005 political crisis and protest movement was exacerbated when the House used technicalities to dismiss an election-fraud complaint against President Gloria Macapagal-Arroyo, when its airing could have speedily settled the controversy. Conversely, the impeachment process has also been abused in the direction of excess to carry out political vendetta, as witness the attempted impeachment in 2003 of then-Chief Justice Hilario Davide, Jr. upon the alleged prodding of a powerful business magnate.
How then can the impeachment process be relied on now, even as it is invoked against the sitting Chairman, Benjamin Abalos, of the powerful Commission on Elections? The impeachment process, supposedly a means of checking malfeasance, has itself become an oft-abused procedure, carried out by largely untrusted political organs dependent on the very officials they are supposed to oversee. Being so important to the constitutional system, the process has become a major factor in weakening its claim to illegitimacy and in creating political instability in the relatively young democracy of the Philippines. For, indeed, it is the psychological perception of validity that ultimately enforces the customary processes of law; and without it, what is a Constitution (or paper money, or the Scriptures, or a treaty) but a mere scrap of paper? Bethmann-Holwegg was surely right, for if the law is not respected, then it has no power, et vae victis.
*Adapted from an unpublished essay. See also the essay “Deceive and Conquer: Why Arroyo will stay in power“.