[OPINION] Not out of time: Sara Duterte can still be impeached

Upgrade to High-Speed Internet for only ₱1499/month!

Enjoy up to 100 Mbps fiber broadband, perfect for browsing, streaming, and gaming.

Visit Suniway.ph to learn

There is much talk about the temporal difficulty of impeaching Vice President Sara Duterte at this  point. This is mainly because in this election year, the 19^th Congress is set to adjourn its session on  February 8, 2025. On May 12, the national elections will take place. Congress will resume session on June 2, and to finally adjourn sine die on June 14.

Beginning next week, therefore, Congress will be  adjourned for about three months, and it will be finally adjourned on June 14. Subsequently, a “new” Congress will come into existence. So where do we squeeze in the impeachment trial?  

Congress has not yet even initiated the impeachment proceedings against the Vice President, and it  only has four months left before it finally adjourns on June 14. Assuming the House impeaches  the Vice President before February 8, can the Senate try the Vice President even during  adjournment? And assuming (and most likely) the Senate can terminate the impeachment trial and hand a decision before its final adjournment on June 14, can the incoming Senate of the 20^th Congress continue with the trial?  

It is easier to answer the first question. The Constitution mandates the Senate to proceed forthwith (or immediately) with the impeachment trial after its receipt of the articles of impeachment from the  House. This means it has to proceed even if it is adjourned at the time. 

However, the second question is more difficult to answer because of the prevailing constructs, or  misconceptions, we have on Congress as an ever-evolving body. We will resolve the issue by answering the following:  

Is it constitutional for the 19^th Congress to impeach the Vice President and for the 20^th Congress to try and convict her? 

Yes. The Constitution does not prohibit the Vice President’s impeachment by the 19^th Congress and her trial and conviction by the 20^th Congress. The only relevant constitutional time constraint is that no impeachment may be initiated more than once a year. If the 19^th Congress impeaches the Vice President, trial by the subsequent 20^th Congress does not mean “to initiate.” 

Does the rule apply that all pending proceedings before one Congress be deemed terminated when a Congress expires? 

First, no constitutional provision states that Congress ever expires. That the Philippines already had  19 congresses has no constitutional foundation. The Constitution says absolutely nothing about the separation between past and present congresses. Only congressional sessions end.  

Speaking of the United States Constitution (from which our provisions on impeachment have been  lifted), Saikrishna Prakash in the article “Of Synchronicity and Supreme Law,” observed that the separation between a past and a present Congress had no constitutional foundation. It was a construct for convenience. 

Likewise, not once did a Philippine Constitution recognize Congress’s temporal iterations. Numbering congresses from the first till the present Congress is no more than a convenient tool. Prakash illustrates that, in 1790, the American House of Representatives first mentioned “First  Congress” only to refer to its journal.  

Moreover, the term “Congress” has no implicit rule on the length of its existence. Prakash recounts  that the framers of the US Constitution lifted the term “Congress” from the Continental  Congress ⎯ that is, an assembly of state representatives that first convened in 1774.

Second, even if a Congress expires, no constitutional provision says that all pending proceedings shall be deemed terminated after one Congress ends. Admittedly, Congress has a rule that all pending matters and proceedings shall be deemed terminated when one Congress expires.  

In the US, unperfected laws (unpassed bills) shall be deemed terminated when a Congress expires (Prakash 2019). In the new Congress, these bills have to be reintroduced. However, the Constitution  does not address whether an unpassed bill remains “alive” when Congress expires. 

Prakash held that the practice of holding that unpassed bills expire was based on the use of the term  “session.” A bill that did not become law in a session of Parliament had to be repassed and signed in a new session. Accordingly, when the US Constitution adopted the term “session,” it  also adopted an implicit rule that every unpassed bill at the end of a session should be considered  terminated. 

And when the Philippine Constitution adopted the term “session,” it also adopted the historically  conditioned meaning of the term. Otherwise, no constitutional rule states that an unpassed bill expires.  

Are the Articles of Impeachment even akin to a bill?  

Impeachment is non-legislative. In The Case Against the Lame Duck Impeachment, Bruce Ackerman  wrote that impeachment was originally a criminal prosecution of the King’s top officials. In the US, the impeachment tribunal is aptly referred to as the impeachment court. This court conducts “trial.” No court conducts a “session.”  

In Thomas Jefferson’s Parliamentary Manual — serving as part of Congress’ rules since the 19th  century (Ackerman 1999) ⎯ he adopted the following English rule: “An impeachment is not discontinued by the dissolution of Parliament.” 

Unlike how unpassed bills expire, an impeachment proceeding only ends with conviction or acquittal. If impeachment is more akin to a court trial than to a passage of bill into law, the  impeachment trial cannot be deemed terminated just because a new judge reads the records, hears  the parties, and ultimately decides the issues.  

Verily, the US Congress did follow the foregoing. In March 1803, the US House impeached judge John Pickering during the last day of the 7^th Congress. But the 8^th Congress tried judge Pickering (Ackerman 1999).  

Again, the 72^nd Congress impeached Harold Louderback. And the 73^rd Congress tried him. On  August 3, 1988, the 100^th Congress impeached Judge Hastings, but the 101^st Congress tried him. And the 105^th Congress impeached then President Clinton on December 19, 1998; the 106^th Congress  tried him (Ackerman 1999). 

The Articles of Impeachment were not considered functus officio even if a “new” Congress takes the  mantle of trying the impeached officer. 

The US history on impeachment is relevant. In “The ‘Impeachment Epidemic’: Defeating the One-Year Bar  Rule,” Marie Catherine S. Alcantara noted that our Constitution substantially adopted the  impeachment provisions from the US Constitution. 

Except for the grounds of impeachment, impeachable officials, and number of votes required for  conviction, our impeachment provisions do not significantly differ from its American counterpart. Even the present-day concept of impeachment came from the English (Alcantara 2018). Thus, our Constitution also adopted the practice and tradition of impeachment from the American and the  English.

Should the rule that every pending matter or proceeding before Congress shall be deemed terminated when Congress expires apply to impeachment proceedings? 

No. In Pimentel, Jr. v. Joint Committee of Congress (G.R. No. 163783, June 22, 2004), the Supreme Court already made a distinction between Congress’ legislative and non-legislative functions. Even if  Congress expires and its composition changes, Congress’ non-legislative functions continue until it  accomplishes its purpose. 

Here, when the Senate sits as an impeachment court, it does not become functus officio even if its  composition changes until it either convicts or acquits the impeached officer. 

To hold that Congress’s rule on unfinished business extends to impeachment is unconstitutional. First, this rule overlooks the constitutional distinction between legislative and non-legislative  functions. 

Second, the Constitution prohibits further limitation on public officers’ accountability. To hold that  impeachment proceedings are deemed terminated when Congress expires means to require the  people to initiate anew the impeachment process. What if the House changes its decision because of a change of composition? The otherwise impeached officer gets an undeserved pass. This can be  akin to how the allies of former president Gloria Arroyo used the one-year bar rule to “block potential legitimate impeachment cases” against her (Alcantara 2018). 

Unlike the one-year bar rule, no constitutional provision allows an additional limitation on  impeachment proceedings. The Constitution states that a public office is a public trust. Public officers  and employees must at all times be accountable to the people.  

How can public officers be accountable to the people at all times if the impeachment proceedings can easily be defeated by a change of Congress’ composition? Following Alexander Hamilton, impeachment is a method of national inquest into the conduct of public officials to protect the state (II Record Constitutional Commission 41, July 28, 1986). 

To further limit the impeachment proceedings is to run counter to the nature of impeachment.  Otherwise, whose interest is served? Only the officeholder benefits. What should be given premium, at all times, is the official’s accountability to the people (Alcantara, 2018). Only the people should be the sole beneficiaries of the impeachment trials. 

And, even if Congress holds that its rule is absolute, Congress may constitutionally treat the  impeachment as an exception to the rule on unfinished business. Impeachment is sui generis. The  Senate may adopt specific impeachment rules. If the Senate is sincere in exacting accountability from  public officers, it can ensure that impeachment trials be immune to a mere change of Senate’s composition. And the Senate can rely on precedent — the Pimentel case — as strong legal mooring. – Rappler.com

Amando Virgil D. Ligutan is lead counsel of the third impeachment complaint against Vice President Sara Duterte. He is a senior lecturer at the University of the Philippines College of Law, and a partner at SALiGAL Law Offices.