With our political circumstances, impeachment is a paper remedy with no functional viability in reality… (Note: This is largely a reposting of our 2008 post Is Impeachment Better than People Power?, itself mostly a collage of repostings, for lack of material time to write more. It states most of what Part 2 of our Deceive and Conquer:Why Arroyo will stay in Power would have contained.)
Over the past few years, there has been a crescendo of criticism against the use of mass protests, or People Power, as a means of effecting social and/or political change. The constant counsel is to use “Constitutional” methods, especially the process of impeachment, to bring an erring high officials to heel. They say that’s a better way than crying Resign! in the Parliament of the Streets, for otherwise, the rule of law would be crushed by the too-frequent use of People Power.
With due respect to these critics, some of whom I deeply respect and honor as true defenders of human dignity, I must disagree, for I think that People Power remains the only possible non-violent means of removing or disciplining impeachable officials. The impeachment-only argument, though it does have a ring of legality about it, nonetheless rings hollow because, in light of the social conditions obtaining in the Philippines, impeachment is a paper remedy that has no functional viability in reality. To explain:
First, impeachment as a mode of removal is intrinsically flawed because
the impeachment process… 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. [from our Presidential Impeachment]
Second, the pro-impeachment argument ignores the objective conditions that determine whether a rule of positive law will actually work the way its framers intended it. As we explained in News from the Heroic Age:
the structural checks to Presidential power like Congressional impeachment and Comelec supervision don’t work unless they’re backed by institutional tradition as with the Senate and the Supreme Court, or by ideological focus in the case of the Church and the Communist Party. Without a tradition or ideology of independence, officials’ conduct lapses into a pure pragmatism founded on financial interest, which makes the Comelec and the Congress pliable to Executive manipulation…
It might be asked: what about the separation of powers? To begin with, this separation is a shibboleth with little basis in law, where the actual mechanism employed is a system of checks and balances. Thus, the American constitutional system from which we copied our own pits the Legislative against the Executive in a perpetual power struggle, so that, as Montesquieu envisioned, no single person or group of persons could effect a dictatorship. This leads, of course, to some inefficiency, since government would doubtless work faster under monolithic control (witness the occasional budget deadlocks that almost shut down the whole US government), but the American Framers understood this to be a small price to pay for ordered liberty.
In the Philippines, however, we have removed any possibility of an intra-governmental power struggle in order to prevent any stoppage of administrative work, which is under the President’s control and/or supervision. We have therefore immunized the Executive from any countervailing political pressure by Congress, and this has solidified
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-political 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… [from our Presidential Impeachment]
The result of this Executive control of Congress has been that, “in recent years… the Lower House has seemed lower still, a very expensive rubber stamp fit for a Queen” (from our Batasan Bombing). Nor is this a new phenomenon.
Then as now, the Lower House is happy to act as the chief rubber stamp of the Dictator/Dictatrix, as witness the recent overthrow of Jose de Venecia Jr. as Speaker and the consistent defeat of all impeachment complaints against the President, a pattern also followed in the Marcos-era National Assembly. [from our News from the Heroic Age]
What about the impeachment process, therefore: can it still function as intended? In light of the foregoing, absolutely not.
[W]ith 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?
… 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…? 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… [from our Presidential Impeachment]
Given this failure of the legal processes, we shouldn’t 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… [from our Presidential Impeachment]
There is therefore little sense in recommending recourse to the impeachment process to call the President to account. It is a hornbook legal and equitable principle that nemo judex in sua causa, no person should be the judge in his/her own case; but with her control of the ever-Lower House, is it not the President who would effectively be judging herself? Maybe that’s the reason her supporters, usually so willing to subvert the black-letter law (as when “calibrated preemptive response” was used against oppositionists), would suddenly turn formalistic and jump on the rule-of-law bandwagon when discussing impeachment.
[L]eaders often use or threaten to use the letter of the law, which they so deftly manipulate to their advantage, against the advocates of natural justice, prosecuting them as lawbreakers and as “destabilizers” of social and economic efficiency… [T]he positive law always favors the status quo, especially when it’s most corrupt and therefore most capable of subverting legal processes; and protest founded on natural justice always runs counter to pragmatic and materialistic policies based on accommodation to the existing system. [from our News from the Heroic Age]
Hence, we must face the hard fact that the only way to make a President accountable is to go beyond the letter of the law to its spirit, in obedience to the principle of epikeia or equity. For even the courts recognize that, for the sake of substantial justice, the express provisions of law must at times be ignored or reinterpreted; and justice, being founded on the very nature that makes the State possible, will trump any norm of positive law, even of the Constitution, that goes against it.
For the mother of natural law is human nature, which, even if we were not in any need, would still lead us to desire social companionship. And the mother of civil law is that bond of consent which derives its force from natural law, so that nature may be called the grandmother of civil law. [–Hugo Grotius, as quoted by the Fordham Colloquium]
But, it may be objected, what about the rule of law? I answer that: There is a difference between how the law is made (its formal character) and what it commands (its material sense). Since our conscience should do only what’s right, then we are obliged to follow a law only if it commands what is right. In the definition of St. Thomas Aquinas, law is an ordinance of reason for the common good; and hence, so when a rule ceases to serve right reason and the common good, it ceases to command our obedience; the rule ceases to be law; and we may then oppose the rule to restore the law.
In short, if even the Constitution has been perverted, the time may come when only its violation would serve the rule of law.
May God bless us all.
P.S., Just by way of reminder, today, February 25, is Ash Wednesday, which is a day for fasting and abstinence.