February 8, 2012
THE NATURE OF AN IMPEACHMENT TRIAL
Senator Miriam Defensor Santiago
(Keynote speech delivered at the joint annual convention of the Philippine Society of Hypertension,
Length of Time
The impeachment trial of President Bill Clinton was held in 1999. It began on January 7 and ended on February 12, with an acquittal. Thus, the Clinton trial lasted for just about a month. We are not going to be as lucky with the present impeachment trial, as I shall explain later.
When the US Senate acted as an impeachment court against federal judges, the shortest trial took a little more than a month; and the longest trial lasted about 14 months. The average length of the U.S. impeachment trials against federal judges is about four months.
In my considered estimate, our ongoing impeachment trial will last for about five months. It began in January, and will probably end by about May.
Purpose of Impeachment
I have said and I repeat that, contrary to the ill-considered press releases of certain personalities, an impeachment trial is a unique process, because it is a hybrid. Impeachment is both quasi-judicial and quasi-political. It is not a civil case nor a criminal case. A criminal case is designed to punish an offender and to seek retribution. In contrast, impeachment is the first step in a process that tries to remedy a wrong in governance.
It has been said that the purpose of impeachment is not personal punishment, but rather to maintain constitutional government, through the removal of an unfit official from a position of public trust.
The fundamental book on this topic is entitled, Impeachment: A Handbook by Professor Charles Black, Jr. of Yale University. It consists of only 69 pages, and I strongly recommend that it should be required reading for politicians who aspire to the minimum level of intelligence on the impeachment process. I shall now try to summarize Prof. Black.
Impeachment is a dreadful process. It inflicts a deep wound on the country. The citizens should adopt an attitude of "vigilant waiting;" while the representatives and the senators should adopt an attitude of "principled political neutrality."
The technical "Rules of Evidence" should not apply to an impeachment trial. In effect, the House is the prosecuting party at the Senate trial, and the managers are the counsel of the House. The impeachment trial, being quasi-judicial, should inquire into the facts and the law, without partisan or narrow political bias, and proceed to judgment accordingly. The goal should be total impartiality.
However, impeachment is also quasi-political. Many senators find themselves either definitely friendly or definitely inimical to the Chief Justice. In an ordinary judicial trial, persons with such attitudes would be disqualified. But if so, many of the senators would then have to be disqualified, and only a small remnant will remain to conduct the trial. According to Prof. Black: "The remedy has to be in the conscience of each senator." Therefore, the ultimate issue is whether each senator has a conscience, and if that conscience is educated.
The worst penalty that the Senate is authorized to impose is merely removal from office and disqualification to hold public office. The Constitution provides that judgment "shall not extend further" than these two penalties. This implies that the Senate can impose lower penalties. The removed officer may later be tried and punished in the ordinary courts, for ordinary offenses that are grounds for removal.
Senate acquittal is not an endorsement of the Chief Justice, or even an approval of his conduct. Acquittal establishes only that the senators who voted No were not convinced of the guilt of the Chief Justice on the actual Articles of Impeachment, brought in by the House of Representatives.
Since impeachment is not a criminal trial, the standard of proof should not be as high as "proof beyond reasonable doubt." But because it targets the highest official of the judicial branch, the standard of proof should not be as low as "substantial evidence." Prof. Black recommends that the standard of proof should be "overwhelming preponderance of evidence." Certain people who claim that the standard of proof does not matter, are in effect arguing that impeachment is a purely political process, which is misguided.
There should not be any "judicial review" of impeachment proceedings. It is not only the courts that can discuss or determine issues of constitutionality. Congress has final responsibility for impeachment, because it has the responsibility to preserve the forms and precepts of our Constitution. It is not sensible to allow the Supreme Court to review the final decision of the Senate as an impeachment court. Otherwise, an impeached and convicted Chief Justice could go back to the Supreme Court for the rest of his term, which is absurd. No reinstated Chief Justice would be able to regain his aura of legitimacy.
Courts decide constitutional questions which arise from cases over which they have jurisdiction. Courts have no jurisdiction over the impeachment process. Impeachment is quasi-judicial in the sense that it aims at fairness, impartiality, and decision according to law.
Competence of House and Senate
Impeachment is a matter of law. Hence, the impeachment proceedings in the House put House representatives into positions for which they are neither trained nor prepared. When they reach trial, the representatives assume the role of prosecutor, which requires a carefully documented case through the filing of appropriate briefs, questioning of witnesses, cross-examination, and oral advocacy. However, many House members are not lawyers, and even if they are, they have little experience in litigation or trial tactics.
Their role becomes even more complicated, because the defense counsel, unlike the representatives, are usually experienced trial lawyers. Hence, the House managers should delegate extensive motion and pretrial practice to narrow the issues, as well as conduct depositions, to outside counsel and permanent staff. A problem with the representatives as prosecutors is that they want to do everything themselves in front of the cameras. This is the siren call of media, because it includes a certain amount of egotism and narcissism.
On the part of the Senate, the senators are not allowed to debate in open court many issues in the impeachment trial. When debate is permitted among senators, it must be made in closed session. As a result, the reasons for certain decision in an impeachment trial may not be reflected in the public record. As in the case of representatives, many senators also lack the requisite experience, expertise, or training to deal competently with impeachment matters.
Role of Media
Prof. Black advocates "most strenuously" that radio, TV, and cameras should not be allowed at the impeachment trial. His argument is that it inflicts humiliation greater than that inflicted by the mere fact of impeachment. He wrote: "Nothing solid is added to public information, but making a continuing spectacle of a trial. Above all, TV, radio, and photography act upon that which they purport to observe." Prof. Black argues that what we see and hear is not what would have occurred if media were not there.
The other argument is that continual nationwide TV exposure poses the danger of maximizing the chances of development of public pressure for some given result. Accordingly, he warns: "The judgment of the public ought to come after the fact, on sober and long consideration of a record which will remain accessible forever."
In the case of Pres. Clinton, it has been said that the media had enormous impact, as follows:
In my humble view, the media is correct in reporting that the Filipino people are exasperated with the impeachment trial. Public discontent intensifies the pressure to end the impeachment trial as soon as possible.
Avoiding delay in trial is provided for by the Rules of Court by means of a "pre-trial conference." It is unfortunate that the Senate denied the defense motion for pre-trial. Therefore, we are left with only the procedure of asking both counsel to make stipulations on uncontested facts. I humbly propose that before the prosecutor presents his witness on direct examination, he should declare the purpose of the testimony, and ask defense counsel if the latter will stipulate that the witness will testify to a fact which defense counsel does not contest. Thus, the testimony in open court of the witness can be waived and time is saved.
One of the biggest sources of the delay and confusion is the coming 2013 senatorial elections. Every senatoriable is eager to spout pious nonsense about impeachment, just to get free media advertising ahead of the campaign. In pragmatic terms, the vote of every senator running for reelection will depend on how much weight he or she will give to two opposing factors.
One factor is the desire to run in the administration ticket, which is always conceded to be superior in terms of money and other resources. The controverting factor is the desire to win the mass votes of certain NGOs with strong feelings in favor of the person impeached.
It all boils down to conscience, if it exists.
Thursday, February 23