A review of the impeachment procedure, and in particular its genesis and history in the debates of the Constitutional Commission that drafted the Constitution in 1986, clearly shows that impeachment is both political and legal. It is political in that the persons and institutions tasked with impeachment duties are political, but it is legal because rules, including the Bill of Rights, apply and cannot be wantonly disregarded.
The basic principle of due process, in particular, must be followed, and that includes the right of an impeachable official, through counsel, to confront and cross-examine the witnesses that are brought against him or her in the House of Representatives and in the Senate. That right includes being able to object to improper questions being asked of those witnesses.
Another basic due process principle applicable to impeachment procedures is the right of an impeachable official to assistance of counsel. In fact, such assistance of counsel is guaranteed under the Constitution which states that adequate legal assistance shall not be denied to any person by reason of poverty.
There are alarming indications that these basic due process rights will not be afforded Chief Justice Maria Lourdes Sereno by the House Committee on Justice. If these reports are true, the only conclusion is that the impeachment process against the Chief Justice is being railroaded.
The legal framework for impeachment
Everyone agrees that the impeachment process is essentially a political act with the sole purpose of removing the impeachable official from public office for one or more of the following grounds as provided by Sec. 2, Art XI of the 1987 Constitution: culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.
The Supreme Court has decided two major cases on impeachment: the Francisco and Gutierrez cases. Both are instructive of the nature of impeachment.
The Court in Francisco v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, clarified that initiation of impeachment referred to in Section 3(5), Art XI of the Constitution “takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House,” thus, the impeachment complaint 1-year time bar should only be counted from this time. This ruling was subsequently upheld in the case of Gutierrez v. House of Representatives Committee on Justice.
Gutierrez v. House of Representatives Committee on Justice, further held that the Rules of Impeachment to be promulgated by Congress need not be published since if the same was the intention of the Constitution then, it would have been expressly provided for. Moreover, publication is only one of the several modes by which Congress can publicly announce the rules it promulgates for impeachment. The case also held that the “one offense per complaint rule” as found in the Rules of Criminal Procedure does not apply in impeachment cases since the “Constitution allows the indictment for multiple impeachment offenses, with each charge representing an article of impeachment, assembled in one set known as the "Articles of Impeachment." It, therefore, follows that an impeachment complaint need not allege only one impeachable offense.”
Impeachment, as held in Gutierrez v. House of Representatives Committee on Justice, is primarily for the protection of the people as a body politic, and not for the punishment of the offender. However, as Commissioner Ricardo Romulo clarified during the deliberations and drafting of the 1987 Constitution, the impeachment procedure is analogous to a criminal trial even as it is not.
Even as it is political, certain judicial procedures may apply in an impeachment process whether at the stage of hearing the charges in the House of Representatives or during the trial in the Senate. Thus, it is accepted that the official being impeached must be informed of the charges against him, be given the opportunity to defend himself accordingly, and be tried fairly and impartially. That also means the right to confront, among others by cross-examination through counsel, adverse witnesses. Additionally, the rules of court apply in a suppletory manner to impeachment proceedings in both the House and the Senate.
Pursuant to this, the House of Representatives and the Senate of the 15th Congress have promulgated their own rules of impeachment, Rules of Procedure in Impeachment Proceedings adopted on August 3, 2010 and Resolution No. 39 Resolution Adopting the Rules of Procedure on Impeachment Trials adopted on March 23, 2011, respectively.
To emphasize the dual character of impeachment as both a political and legal process, the House has assigned impeachment to the Committee of Justice.
Cross-examination of impeachment witnesses
The 1987 Constitution provides for clear safeguards and guidelines to be followed by Congress to ensure that it does not act arbitrarily and oppressively in impeachment proceedings. Among these are: specifying the grounds for impeachment, the periods within which an impeachment complaint should be acted on, the voting requirements, the one-year bar on initiating an impeachment process, and the promulgation of the impeachment rules. Implicitly, it is also required that the guaranteed individual rights of the individual must be absolutely respected.
This is why the impeachment rules of the House of Representatives afford the complainant and the respondent the rights to examine and cross-examine, albeit subject to reasonable time limits. As the counsels of Chief Justice Sereno have pointed out in a letter sent to Committee on Justice Chair Reynaldo Umali, dated Thursday, September 28, 2017:
“Unlike other rules of procedure for the determination of 'probable cause,' the House Rules do not prohibit the parties from examining or cross-examining witnesses. On the contrary, the House Rules allow both “examination” and “cross-examination” of witnesses. Section 6 of the House Rules provides that the Hon. Committee, 'through the Chairperson, may limit the period of examination and cross-examination.' Indeed, it would make no sense to declare the Hon. Committee’s prerogative to impose reasonable time limits on direct and cross examination questions, if these rights are not available in the first place.”
Sereno’s lawyers also observed that Representative Umali was quoted by a newspaper as saying that the Chief Justice has the constitutional right to confront the witnesses. Indeed, if Umali in fact made these statements, the Committee of Justice Chair must agree that she should then be allowed to cross-examine those witnesses through her counsel.
According to the lawyers: “It would not be acceptable for Committee members to conduct the cross-examination themselves, because at this stage of the process, they are judges or quasi-judges whose duty, like the 'investigating officer' in preliminary investigations, is to determine probable cause. Preliminary investigations are essentially judicial proceedings. The Committee Members will become prosecutors and not mere investigating officers only when the impeachment process reaches the Senate which will act as the impeachment court.“
In this regard, the lawyers of the Chief Justice have asked the Committee on Justice to confirm that all persons testifying as witnesses or as “resource persons” against the Chief Justice may be cross-examined by her counsel on her behalf. They have also rightly asserted that the Chief Justice, through counsel, has the right to object to improper questions during the direct examination of complainant’s witnesses.
On the Chief Justice doing the cross-examination herself, as suggested by Representative Umali, I strongly suggest that she decline such an offer. That is clearly a trap. Moreover, it is beneath her office to do that. We saw what happened to Chief Justice Renato Corona when he attempted to speak in the Senate, how that backfired when he tried to assert the dignity of his office.
I personally know many of the members of the House Committee on Justice. Most of them are lawyers. They know the basics of fairness and due process. I cannot imagine them not affording due process to any one, and especially to the highest judicial official of the country.
Denying the reasonable requests of Sereno’s lawyers would violate the due process rights of Chief Justice Sereno. It would be tantamount to railroading her impeachment. Sereno would have no recourse but to raise this either to the Supreme Court or to the Senate in a motion to dismiss. In my view, this would be a ground to stop impeachment early on, thanks to the House Committee of Justice. It will be an additional reason to acquit Sereno if, in fact, the House sends this to the Senate for trial. – Rappler.com