Wednesday, 11 January 2012 12:12
(A speech delivered by Senator Antonio F. Trillanes IV at a forum held at the UP National College of Public Administration and Governance, Diliman, Quezon City on 04 January 2012)
For the past several weeks, numerous distinguished lawyers, political analysts and opinion columnists have given their take on the upcoming impeachment trial. Most have stressed that it is a judicial trial whose verdict shall be determined solely by evidence. However, during the impeachment trial of US Pres. Bill Clinton, all the evidence pointed to the fact that he committed perjury and obstruction of justice and yet he was acquitted by the US Senate in a vote where all Democrats sided with Pres. Clinton. Now, following the line of our local experts, was it merely coincidence that all the Democrats appreciated the evidence exactly the same way, or it was never treated as a judicial trial by the US Senators to begin with? Moreover, if an impeachment trial were meant to be solely evidence-based, then why didn’t our Constitutional framers just give that power to the Supreme Court whose members are supposed to be experienced judges? And whenever a SC justice committed an offense, the SC could just expel him through an ethics case similar to our current procedure in the Senate.
I researched on the true nature of impeachments to guide me on how I should eventually make a decision. To this, I focused on the US version of impeachment since it is a virtual copy of our own. True enough, what I found out was, there is not a single book or reference I encountered that says that impeachment is a judicial trial solely based on evidence. To the contrary, all of these references defined or referred to impeachment as a political process. Matthew J. Franck, in his 1996 essay, The Supreme Court and the Politics of Impeachment, stated clearly and I quote, “And although the Senate sits as a court during impeachment trials, it is not a court, but a political body deliberating on what are properly considered political offenses.” The closest reference was when Alexander Hamilton described in the Federalist No. 65, the judicial character of the Senate in relation to its function of judging in impeachment trials. But the political nature of impeachment was immediately made clear by Hamilton when he stated that the Supreme Court could not be relied upon with this task because “it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that may happen to clash with an accusation brought by their immediate representatives” which may be “dangerous to the public tranquility.”
In a 2010 paper written by Susan Navarro Smelcer commissioned by the Congressional Research Service of the US Congress to define the role of the Senate in impeachments, she states that, ”While the Judicial branch was designed by the Framers to be independent of political influence, the methods of appointment and removal were designed to be political.” Charles Gardner Geyh, the author of the 2006 book, When Courts and Congress Collide:The Struggle for Control of America’s justice System stresses further that, ”The removal process is political in at least three respects: (1) it is political in its originalist sense of the term, in so far as it is a remedy for political crimes against a body politic; (2) it is political in the sense of being a process that is subject to resolution by popular or political majorities, through their representatives in one of the political branches; and (3) it can be political in the sense that it can be openly partisan.”
Having established that impeachment is a political process, therefore, my verdict should not be based solely on evidence as it now becomes a matter of public policy. And the over-arching policy issue in this whole impeachment episode is, whether the conviction or acquittal of Chief Justice Renato Corona would be good for our country? To resolve this, I intend to use political acceptability as the sole criterion to evaluate the projected outcomes of either policy alternative of conviction or acquittal. To determine political acceptability, I intend to use policy research tools such as quantitative and qualitative researches and stakeholder analysis. These, along with extensive consultations, could very well filter the noise of the mob and undue media influence from the true will of the people.
One might ask, if we were representatives of the people and, therefore, entrusted with the authority to decide on our own what is in the best interest of the public, then why wouldn’t we just decide, based on our own personal and ideological values? If the decision was merely for ordinary pieces of legislation, then I would not hesitate to use that prerogative. But an impeachment of the Chief Justice of the Supreme Court is not a daily occurrence and it has very serious short-term and long-term implications to our fragile Democracy. So, I believe, getting as many people involved in the decision-making process is very much warranted.
Again, one might ask, as one of my colleagues did, why can’t we just conduct a referendum to resolve this dilemma? Well, the answer is quite simple – our country is not a direct democracy. We are, in fact, a representative democracy wherein the people indirectly govern their country through elected representatives. It is the representatives’ discretion whether to consult his constituents or assume that he is omniscient. More importantly, referendum is not the procedure stated in our Constitution.
This does not mean, however, that the evidence should be completely disregarded. Definitely not! Because the strength or weakness of the evidence, and how they are presented could very well affect the political acceptability of either policy alternative. Having said this, it would help if the prosecutors and defense counsels would not to be too technical in their presentations. Ultimately, they would have to win the hearts and minds of the people.
As regards the appreciation of evidence, we have to bear in mind that the Constitution and the Senate Rules of Procedure on Impeachment Trials did not specify the quantum of evidence required to convict. Is it beyond reasonable doubt as what is used in criminal proceedings? Is it preponderance of evidence as what is used in civil cases? Or is it substantial evidence as what is used in administrative proceedings? Since it is not specified, therefore, a senator can just raise or lower the quantum of evidence required to suit his or her inclination.
In the end, regardless how the impeachment trial ends, it will be one of the defining moments in our nation’s history as we would have shown the whole world that our Democracy works.
By Sen. Antonio Trillanes IV
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