“((T)he Supreme Court recognizes the authority of Congress to determine which acts constitute impeachable offenses, regardless of when they were committed.”
by Ducky Paredes
Can Jejomar Binay be impeached as vice president for things that he did while he was a city mayor?
Rep. Elpidio Barzaga Jr, President of the National Unity Party (NUP) and Speaker Feliciano Belmonte, Jr, believe Vice President Jejomar Binay can only be impeached for crimes and other acts he committed after he assumed his office in 2010.
“An impeachable official who did not commit any impeachable offense during his time in office can still be held accountable for offenses committed before assuming his present office,” says Dasmariñas City Rep. Barzaga. The NUP is allied with the ruling Liberal Party.
Harry Roque Jr., who teaches Constitutional Law at the University of the Philippines College of Law agrees that the impeachable offenses must have been committed while Binay was sitting as an impeachable official not when he was Mayor of Makati.
Article XI Section 2 of the Constitution that provides the Vice President “may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.”
“It is contemplated that it be for acts while he was vice president,” Roque says.
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But Rep. Barzaga also notes that the Supreme Court recognizes the authority of Congress to determine which acts constitute impeachable offenses, regardless of when they were committed.
In Francisco vs. The House of Representatives, Barzaga points out, the Court ruled that the determination of what constitutes an impeachable offense is a “non-justiciable” political question and is beyond judicial power. This means that no court, (not even the SC) can decide what is an impeachable offence.
The High Court ruled that such a determination is a purely political question which the Constitution has left to the sound discretion of the legislature
Thus one can argue that, “based on the Francisco ruling, it is up to Congress to determine if the acts committed constitute an impeachable offense, which may include the period when said offense was committed,” adds Barzaga.
Does this mean that Binay can actually be removed from the vice presidency for things that he did as mayor?
Barzaga also cites Section 1 of Article XI of the Constitution which states: “Public office is a public trust. Public officers and employees must at all times be accountable to the people.”
Even American authorities and jurisprudence support his view, says Barzaga, citing the statements of Yale constitutional scholar Alan Hirsch, author of “A Citizen’s Guide to Impeachment.”
“The Philippine Constitution has its origin from the United States Constitution, including the removal from office through impeachment. Consequently, on issues pertaining to the impeachment process, resort must be made to American jurisprudence on the matter,” he said.
Quoting Hirsh, Barzaga argued that impeachable offenses could also refer to actions taken by an impeachable public officer prior to his assumption of his current office.
According to Hirsh, the American Constitution does not provide any limitation that impeachment could only be used for acts taken during the incumbency of the public officer, Barzaga said.
“Similarly, the Philippine Constitution does not mandate that the impeachable offense must be committed during the term of the impeachable officer. Basic is the rule that when the Constitution does not distinguish, we shall not also distinguish,” Barzaga said.
Barzaga said Hirsch further argues: “While it might seem unfair to remove someone from office for acts undertaken before assuming office, in certain cases it would clearly be justified. Suppose, for example, it turns out that a President, in a previous stint as a governor, made a regular practice of accepting bribes. Impeachment would clearly be in order.”
Hirsch cites as an example the case of former US vice president Spiro Agnew, who, if not for his timely resignation in 1973, would have been impeached as he was indicted for extortion and bribery he allegedly committed during the time he was governor of Maryland.
Barzaga said there are cases wherein an impeachable officer is not actually impeached but subjected to criminal indictment and civil suit – another scenario that can be applied in Binay’s case.
He cited the cases of former US vice presidents Spiro Agnew and Aaron Burr.
Agnew was indicted for acts committed prior to his assumption of office as vice president. Burr was charged for killing Alexander Hamilton at the time he was the vice president.
“Both were criminally indicted while sitting as vice presidents,” Barzaga said, adding that even former President Bill Clinton, during his presidency, was a defendant in a sexual harassment civil suit filed by Paula Jones for the sexual misconduct he allegedly committed at the time he was governor of Arkansas.
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The dean of the San Beda Law School, Ranhilio Aquino, said a criminal prosecution of an impeachable official such as Binay may not take place unless he is removed from office by impeachment.
“As long as one is within the territory of the Republic of the Philippines, anyone who commits a crime—from the President down to the last citizen in the farthest barangay—is liable to be prosecuted, tried and punished,” said Aquino.
“However, in the case of impeachable officials—and VP Binay is an impeachable official—criminal prosecution may not take place before he has been removed from office by impeachment by the Lower House and conviction by the Senate. In other words, an impeachable official is first removed from office by the mechanism of impeachment and conviction, and then prosecuted and tried for criminal offenses,” he added.
In effect therefore, while Binay holds office he may not be prosecuted for any criminal offense, Aquino said.
“As soon as he ceases to hold office, either by resignation or impeachment, he may be prosecuted. And the impeachment of an impeachable official is not a function of the Justice Department but of the House of Representatives that alone can file articles of impeachment with the Senate,” said Aquino
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Lawyer Romulo Macalintal said that Binay and all constitutional officials are covered by immunity from suit.
But this does not prevent the Office of the Ombudsman from conducting an investigation to determine if there is a ground for impeachment, he added.
Macalintal also said immunity from suit is not in the Constitution, but “a mere tradition.”
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