CENSURE IN LIEU OF REMOVAL OR CENSURE IN LIEU OF IMPEACHMENT?

By Cheryl L. Daytec
Context of the Paper Senator Miriam Defensor- Santiago said that the following constitutional provision on impeachment 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 law1 grants the impeachment court the discretion to mete out the penalty of censure or reprimand instead of removal from office on Chief Justice Renato Corona. She argues that the use by the Constitution of the phrase shall not extend further in relation to the penalties imposable suggests that removal from office and disqualification to hold any office under the Republic of the Philippines are the harshest possible penalties in impeachment cases. She further opines that the impeachment court may impose a lighter penalty such as censure or reprimand. This conclusion is however absurd as I will attempt to demonstrate below.

To Acquit or To Convict: No Middle Ground Although impeachment is akin to an administrative case initiated by the people through their representatives against public officers who occupy positions of the highest public trust, it does not accommodate the penalties of reprimand and censure. The Constitution permits only two penalties that may be meted out in impeachment cases: a) removal from office and b) disqualification from holding public office in the future, and does not accommodate any other penalty. The Court must either acquit or convict. If it convicts, the respondent is evicted out of office; if it acquits, the respondent keeps his/her office.
1

Art. XI, Sec. 3 (7), Philippine Constitution

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Conviction cannot be penalized with mere censure or reprimand. The implication of conviction is that the respondent is guilty of the impeachable offense/s with which s/he is charged. If guilty, s/he is no longer fit to retain the public trust (the office) in his/her possession and should therefore be booted out. S/he may not even be pardoned.2 Neither may censure and reprimand be meted out on top of the penalties of removal from office and disqualification from holding any public office. The dead cannot be killed any further. A conviction carries with it the judgment of the people through their duly elected representatives that the impeached official is not fit to retain the office which s/he had been holding for the public trust. Acquittal should not also be accompanied by censure and/or reprimand. The implication of non-conviction is that the respondent did not commit any of the impeachable offenses. Censure is reserved for people whose demeanor is met with the disapproval of a censuring body. Censure and acquittal are therefore incompatible. Sen. Santiagos argument may find support in the maxim that a greater power must include a lesser one, that is, if the Senate can remove the Chief Justice, it can also impose a penalty less harsh than dismissal. However, the Constitution allows the impeachment court only two penalties: removal from office and perpetual disqualification from holding any. The phrase shall not extend further upon which Sen. Santiago based her opinion that censure may be imposed instead of removal from office means that the impeachment court may not impose any penalty as a criminal court would but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment, according to law. This means that the impeachment court leaves it to the appropriate court to try and punish the official for the criminal aspect of his/her (mis)conduct. In the United States, censure as a penalty was never imposed. In the several impeachment cases that the federal and state senates as impeachment courts had to hear, respondents were either acquitted or convicted.
2

Art. VII, Sec. 19, 1987 Constitution

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Censure in Lieu of Impeachment Although it is not an allowed penalty in impeachment cases, censure may be a substitute for impeachment proceedings. The US Constitution in whose image the Philippine Constitution was fashioned does not conceive a situation where a penalty other than removal from office and disqualification from holding a public office may be imposed. Specifically it provides that (j)udgment in cases of Impeachment shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.3 However, censure has historically been resorted to by the Congress in lieu of impeachment, but not as a penalty in lieu of dismissal in an impeachment case. Since its establishment, the House of Representatives has issued nine (9) censure resolutions against Presidents and other national officials. Presidents John Adams, John Tyler, James Buchanan and James Polk were all censured by the House of Representatives. 4 Adams case was the first censure case that the House had to tackle. It was successfully defended. The only President censured by the US Federal Senate was Pres. Andrew Jackson for assuming power not granted by the Constitution5 when he refused to surrender a document he had read to his cabinet in relation to his veto of the re-chartering of the Bank of the United States6 resulting in the defunding of the said bank. His decision to veto was based on his conviction that the bank had too many foreign investors, favored the rich over the poor, and resisted lending funds to develop commercial interests in Americas western territories.7 However, when the balance of
3

Art. I, Sec. 3, US Constitution

House of Representatives, United States of America. Congressional Record, V. 144, Pt. 19, October 19, 1998 to December 19, 1998. 5 United States Senate, Official Website, Senate Censures President, http://www.senate.gov/artandhistory/history/minute/Senate_Censures_President.ht m 6 Ibid. 7Congress Censures Jackson in This Day in History; accessed from http://www.history.com/this-day-in-history/congress-censures-jackson
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power in the Senate shifted after his Whig Party captured the majority of the Senate seats, the censure resolution was expunged from the Senate records.8 A federal senator likewise introduced a resolution to censure Pres. Clinton over the Lewinsky affair but this was thrown in the garbage can after the Senate acquitted the President of perjury and obstruction of justice in his impeachment trial. In various cases involving members of the judiciary, the House Committee on Justice recommended censure instead of impeachment. Clearly therefore, censure is treated in the United States as a substitute for impeachment rather than as a penalty imposable by the impeachment court.

Censure as an Implied Power Note that there is no provision on censure, which is mere formal statement of disapproval, in the US Constitution. However, the prevailing practice is that censure may be exercised by either chamber of the bicameral body on its own. The power is an obvious corollary of the legislatures inherent power as a deliberative body to speak its mind9 which is justified under the ruling in McCullough vs Maryland10 that there is no phrase in the Constitution that precludes incidental or implied powers. In this case, the Supreme Court said, Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. John Marshall who was John Adams lawyer in his censure case successfully argued Adams case on the merits. Not once was the constitutionality of the proceedings raised, notwithstanding that the US Constitution is silent on censure. (John Marshall would eventually become Chief Justice of the Supreme Court. He penned the decision in McCullough.)
8

Ibid.

House of Representatives, United States of America. Congressional Record, V. 144, Pt. 19, October 19, 1998 to December 19, 1998. 10 17 U.S. 316 (1819)
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Other Related Opinions If the Philippine Senate is to adopt the US practice as a model, then sitting as an impeachment court, it can remove an official from office without necessarily barring him from public office. In 1989, for instance, the US Senate dismissed a federal judge from Office but did not bar him from seeking public office.11 He went on to become a member of the House of Representatives.

11

See Hastings v US, 802 F.Supp. 490, 17 September 1992.