Does the One-third Minority Rule Illegitimize Impeachment?

Written on Thursday, November 20th, 2008 at 1:15 am | by DJB

In my opinion, the One-third Minority Rule on initiating cases of impeachment is a fundamentally flawed and undemocratic concept. It is philosophically inconsistent with Majority Rule, which is at the heart of everything the Congress does, from electing its officers to passing the budget, to making laws.  People only like it if they don’t like the President or other impeachable officials because they think it will be easier to impeach them.  But by exempting impeachment from Majority Rule we are paradoxically devaluing, degrading, or even illegitimizing the process of impeachment itself, thus defeating the stated purpose of 1987’s lowered impeachment initiation threshold. I think it is the principle behind Majority Rule that legitimizes any official act or law in a representative democracy. Official acts or laws ought to be legitimate in both form and substance. For me, legitimate in substance means the act or law does all things necessary and sufficient to achieve its stated purposes. Legitimate in form means it has passed the test of Majority Rule.

When we do not require the free will and approval of the Majority in a matter as gravely political as the initiation of removal proceedings against the President, or other high officials, we invite big trouble. By not requiring the “good housekeeping seal of approval” that Majority Rule bestows, we are building a weak foundation of public trust in the process of impeachment. For how is the public to evaluate or appreciate the overall merit or wisdom of an impeachment complaint or case, without the benefit of the same level of institutional approval or discernment that the public expects of even the most mundane legislation, such as the renaming of streets?

The attempt to impeach a particular President may be legitimate in substance, but because of the One-third minority rule, we are depriving it of the primordial legitimacy of form bestowed on acts and laws approved by Majority Rule. Unless a clear Majority supported it, the impeachment case will arrive at the Senate Court dressed in the shabby garments of every rejected proposal in the House, none of which ever dark the Senate’s door.

At the moment the Administration forces in the House have been able to prevent the Opposition from attaining the required one-third threshold to impeach the President. (It is a testament to Gloria Arroyo’s compleat understanding and political mastery of the Members of the House.) This would be the case of “legitimate in substance” but railroaded to the dumpsite by the Majority.

But there is something far worse possible. Someday, we could easily have a very different situation. We could have a “good” President undeserving of impeachment, faced with a stronger House opposition able to regularly muster the required 33% to satisfy the Minority Rule on impeachment. Then we could see all sorts of morally or ethically illegitimate impeachments going to trial in the Senate. After all there are thirty-one targets available at least once a year, not just the President. Such a profligacy of impeachments suits could be a good or a bad thing, but both conditions would be vastly improved if all impeachments that did reach trial, had all the seals of good housekeeping bestowed by Majority Rule.

For reference, here are the relevant portions of 1987 Art. XI on Accountability of Public Officers:

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives. Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman 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. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

How can it be right that a far greater fraction of the people’s sovereignty is required to rename a street or pass the most mundane of laws, than it is to proceed with removing the President or Chief Justice from office by putting them on impeachment trial in the Senate?

The rule makes initiating a case of impeachment easier by lowering the arithmetic threshold, yet there is an absolute once-per-year limit on the initiation of impeachment proceedings. The sum of these two opposed effects is however, not zero, because the one third minority rule has badly damaged the power of impeachment by saddling it with the essential illegitimacy of an act with threshold of approval set much lower than every other act of the House and Senate. Hilario Davide, whose handiwork this brilliant 1987 innovation is known to be, actually first proposed a ONE-FIFTH minority rule for initiating impeachment, on the theory that another Dictator Marcos could be prevented if the Congress could impeach him at the first sign of culpable violation of the Constitution.

How much better would THAT idea have been?!  Disastrous results, especially for Constitutional Separation of Powers, attended the one time it was invoked to impeach Erap exactly seven years ago last week–who was removed from office not by conviction at Senate trial (which was sure to acquit him) but by the inexplicable, extrajudicial act of the Chief Justice suddenly swearing in the Vice President, who claimed the President was permanently incapacitated–a bald lie.
There is supernal irony to the fact that a deeply undemocratic principle in the one-third minority rule, underpins impeachment, over which the Congress has sole and exclusive power and jurisdiction. Not even the Supreme Court can reverse or review a decision by the Senate in a case of impeachment. Neither can even the power of the President to grant pardons and commutations change the verdict or penalty in any case of impeachment. Yet this vast power can be wielded and deployed under a Minority Rule.
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About The Author: DJB says: Science IS Religion! He blogs at Philippine Commentary and The Rizalist Press

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19 Responses to “Does the One-third Minority Rule Illegitimize Impeachment?”

  1. mlq3 on November 20th, 2008 12:45 pm

    it doesn’t nullify impeachment but underscores the whole problem with the present constitution, being such a reactive document, it ignored the fundamental need for constitutions to look forward and not backwards.

    so many things were put in as innovations while ignoring the reality that there’s no real way to reinvent the wheel. the minority suffices for impeachment rule, substituting the judicial and bar council for the commission on appointments, maintaining the marcos era authority to automatically reenact budgets, instituting the military as guardian of the state, instituting a multiparty system without runoff elections for national office, electing the senate in halves instead of thirds, all established a system designed not to function at all.

  2. DJB on November 20th, 2008 1:07 pm

    Which suggests that perhaps the next step is to make sure it is a proper Constitutional Convention that gets called to fix it all. Rather than leave it to the Congress, which will do a self-serving and piecemeal job at best.

    And on the specific issue of your intervention, there is an urgent need for a clear, concise and comprehensive alternative to the BJE-MOA and its premises. Rather than giving in to the historical redemptorists, I think the govt has to take a harder line on rebellion and insurgency in order to have some incentive to give in to political settlements.

    The context is the peace process. What is the Opposition’s alternative to Gloria’s tack thus far?

  3. jcc on November 20th, 2008 1:08 pm

    MLQ3,

    Now I am seeing your brilliance. I think I have read one political pundit who said that our political institutions are not really designed to succeed and promote the aspirations of the people because when that happen, there will be autocracy where the people are so completely satisfied with their elected officials that they will no longer desire to replace them. All these bungling and incompetence (not to mention thieving and plundering) make the people restless and agitated for a change.

    What an irony. :)

  4. mlq3 on November 20th, 2008 1:56 pm

    the guy who pointed out the flawed design is my former prof alex magno. to a certain extent i agree with him.

    the opposition i think, djb has no alternative beyond a hard-line fight and basically undertaking bje-moa when she’s gone. she and the opposition are in a catch-22: any proposal requires a consensus; a consensus is impossible considering the mechanisms for consensus don’t exist; we have a setup that promotes minority attitudes and does nothing to foster a majoritarian resolution to any question.

  5. DJB on November 20th, 2008 5:16 pm

    MLQ3,
    Immediately after junking the BJE MOA, the President trotted out what might have been the “also ran” policy: DDR. It backs off from the whole ancestral domain issue, which IPRA never intended to become wielded by the insurgents as a means towards higher ambition, such as the associative relationship with the GRP–a commonwealth like 1935 and waiting for independence.

    What I meant by an alternative is a long term vision for Mindanao that does not involve partition or apartheid or sultanates or anything like that.

    Someone has to stand for democracy and not allow a sort break in the Western dike here in the Philippines. Theocracy is non-negotiably off the table. Move to Malaysia if they want!

  6. Conyo on November 20th, 2008 10:50 pm

    Okay you lost guys.

    What next? A Black and white movement at Starbucks?

    Pathetic.

    Move on and do something relevant.

  7. jcc on November 20th, 2008 11:07 pm

    conyo,

    nice observation. just for the record, i am not one of these “guys”. i am totally not for impeachment of GMA for entirely different reason. :)

  8. Abe N. Margallo on November 21st, 2008 1:32 am

    The SC overturning the prerogative of a supposedly popularly elected president on a matter that’s essentially executive is no less a “rule of the minority” than the majority in the Lower House refusing, against popular sentiments, to initiate a proceeding which might lead to the un-election of the same president.

    In the former case, the SC (an unelected minority) appeared to have succumbed to the will of the (Christian) majority; in the latter case (in reference in particular to the Complaint-in-Intervention of mlq3 et al), the House Justice Committee (a minority) peremptorily nipped in the bud the initiative of the bloggers group that’s apparently representing the majority’s sentiments against the perceived move that could have resulted in the dismemberment of the national territory and integrity.

    To reduce democracy to a numbers game could sometimes get a bit messy and oversimplify both the theory and practice of democracy.

    I guess we have a better shot at attaining the ends of democracy (as a government of the people, by the people and for the people) if more informed minorities (e.g., mlq3 et al) are actively engaged in the process of competition so that their preferences or common purposes are turned into policy choices (law or elected representative).

  9. jcc on November 21st, 2008 4:25 am

    DJB,

    majority’s sentiments against the dismembering of the archipelago..

    get over it.. there was no longer a plan to do that. the SCORP said so already. GMA had abandoned it already.

    why are we trying to do an overkill?

  10. DJB on November 21st, 2008 5:58 am

    Conyo Jcc — A Black and White Movement at Starbucks– what a clever bit of disdain. Now such a thing may seem ludicrous to you, whom cynicism owns, just like some grown men once who dressed up like Injuns one night and threw the King’s Tea in the Harbor of Boston. What a crazy bunch of “guyz” eh, paisano?

  11. DJB on November 21st, 2008 6:13 am

    Abe,
    “Majority Rule” is a key concept. Let’s not get it all muddled up, though with violations of Separation of Power, a different key concept.

    Edsa 2001, which you refer to, has been admitted even by the SC to be an extra-Constitutional event (whatever that means!). It has nothing to do with majority rule, except in the oblique sense that Davide+GMA+Angie Reyes reversed 1998 in a cleverly orchestrated coup d’etat. It has everything to do with the SC blessing that coup d’etat as “constitutional throughout” two months later, and therefore doing a Javellana (”fait accompli!”). Edsa 2001 had more to do with Separation of powers in that the SC in Estrada v. Arroyo hardly noticed that Joseph Estrada was on Senate impeachment trial and Davide had screwed the pooch. This has led to the compleat cuckolding of the congress and the cutting down to size of the power of impeachment.

    In this post, I am pointing to the Principle of Majority Rule as it relates to the Constitutional provision on impeachment initiation. This is not “intentional” minority rule by coup d’etat mit SC benediction. This is pure “Intelligent Design” on the part of the 1987 Founding Fathers.

    Therefore, what is going on in the House is not “minority rule” as you’ve portrayed it. But a sort of “immune reaction” of the Majority to the threat that if a One Third Minority gets used to the Rule underpinning impeachment, it could in fact spell the end of “majority rule” in the rest of the what the House does!

  12. jcc on November 21st, 2008 7:33 am

    DJB,

    Let me paste your post:

    Edsa 2001, which you refer to, has been admitted even by the SC to be an extra-Constitutional event (whatever that means!).

    Come on guys, you know what that means. That means that the SCORP was joining the political fray! ! !

    As T Jefferson said, these magistrates have their own party affiliations, their corps, and their taste for power.

    In a related post I have said:

    “One thing I found odd at this concept of constitutional triumvirate is the idea that where Congress and the Executive transgress the Constitution the people can go to the Judiciary and ask that it be declared void. But where the Judiciary perverts the Constitution we call it the law of the land and the people can go nowhere for its transgressions. Where the two branches which are supposed to be co-equal of the Judiciary are rebuked on this instance the people can boot them out of office comes election time. Meantime the jurists who perverted the Constitution still hold party all year round secured in the thought that they are life-tenured and can dish out their most atrocious constitutional enthusiasms free from censure from the other branches and from the people who is supposed to hold the sovereign power over these distinguished jurists”.

    The Javellana doctrine which says that the ratification of the constitution can be made by “viva voce” in the barangay halls is the law of the land; That Ninoy does not have the legal right to ask for civilian trial despite the wholly functioning civil courts at that time does not have jurisdiction over his person because he was already being tried in a military tribunal whose membership are composed of Mr. Marcos retinue of sycophants, is the law of the land; That Senator Diokno can be imprisoned for “suspicion that he might join the rebellion” is the law of the land; That Marcos can abolish Congress and he can rule by Presidential Decree is the law of the land.

    Guys, these are perversions of the Constitution! ! !

  13. Conyo on November 21st, 2008 7:41 am

    DJB,

    If you are comparing yourselves to the American Revolutionaries, then you have Delusions of Grandeur. Even Benign0 would not have such audacity.

    But if you believe that you are the next John Adams, Thomas Jefferson, or Ben Franklin then by all means, have your silly revolt.

    Whatever makes you happy man.

  14. Abe N. Margallo on November 21st, 2008 9:09 am

    DJB,

    I am also reacting to mlq3’s observation that what “we have a setup . . . promotes minority attitudes and does nothing to foster a majoritarian resolution to any question.” The sad consequence of this is the perpetual existence of underprivileged majorities in our country. If you haven’t notice it yet, what we have set up is actually a government of the privileged minority, by the privileged minority for the privileged minority. The formal structure handed down to us by our American mentors has been proven unfortunately to be a “system designed not to function at all” but to support minority rule.

    I have also pointed out somewhere here in FV that the exercise by the SC of “judicial review” is in fact beginning to be a real problem for our democracy where the Court finds no compunction anymore to substitute its policy for those chosen by our elected representatives. And with our culture of utang na loob and a self-bestowed expanded power for the SC, there appears no need anymore (upon the President fully packing the Court in 2009) for a more-Marcosian-than-Marcos Arroyo to resort to martial law to establish her sultanistic republic where power relationship would not be defined by class or wealth but how close a friendship one has with her majesty, a relationship that could be extended one day and withdrawn the next at the queen’s will.

    But going back to your post, the less than majority rule (1/3 of all the members of the House) to initiate impeachment is more than compensated by the qualified majority rule (2/3 of all the members of the Senate) to convict the indicted public officers. I therefore don’t see the majority rule being “muddled up” there.

    My other concern is the lack of similar compunction on the part of the party in power in the Lower House to ignore majoritarian sentiments writ large to get at the root for instance of the Garci tapes controversy, or in response to the same sentiments to freeze the Cha cha locomotive that’s being revved up again en route to the sultanate of Gloria Macapagal-Arroyo.

  15. as a private citizen on November 21st, 2008 9:21 am

    fy, the justices can also be impeached..

    the problem with the manolo complaint is that its full of good intentions.. its made without even laying the groundwork for lobbying at congressmen..

    as i have said before, you cannot impeach the president if you demonize the very ones who are capable of doing it..

    the complaint was a typical ’suntok sa buwan’, a good and substantive work, but only failed because manolo et al failed to lobby for its support in the house..

    but, i admire the act. sayang nga lang at hindi na capitalize into a coordinated action with civil society to force representatives to sign it.. you never exerted an effort to make the next step.. ung effort nyo hanggang dun lang sa paggawa ng intervention then bahala na ang diyos.. konsensya konsensya na lang eh alam naman natin na it doesnt work..

    its typical “inciting for a public outcry”.. but that does not work anymore.. this is a post EDSA era..

  16. as a private citizen on November 21st, 2008 9:25 am

    again.. a manila-centric type of thinking..

    know how LAKAS-NUCD does it! make it work! take your society to the grassroots level!

    hanggang manila lang kasi kayo..

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