JUDICIAL REVIEW OF IMPEACHMENT: THE JUDICIALIZATION OF PHILIPPINE POLITICS FRANCO ARISTOTLE G. LARCINA*

JUDICIAL  REVIEW  OF  IMPEACHMENT:
THE  JUDICIALIZATION   OF  PHILIPPINE  POLITICS
FRANCO  ARISTOTLE  G.  LARCINA*
“There is hardly a political question xxx which
does not  sooner  or   later   turn  into a  judicial
one.”
– Alexis de Tocqueville,
French historian & political scientist,
1805-1859
I N T R O D U C T I O N
The importance of impeachment in democratic institutions, as well
as its efficacy in checking the excesses of certain high officials, has long
drawn mixed reactions. For Clinton Rossiter, an authority on the American
presidency, impeachment is a “rusted blunderbuss,” while Thomas
Jefferson is quoted to have said that “experience has already shown that
the impeachment the Constitution has provided is not even a scarecrow.”
1
Edward S. Corwin, on the other hand, lauds impeachment as “the most
formidable weapon in the arsenal of democracy,” while Alexander
Hamilton describes it as “a method of national inquest into the conduct of
public men.”
2
*   ’06 Ll .B. ,  cand. ,  Universi ty of  Santo  Tomas Facul ty of  Civi l  Law.
Executive  Editor,  UST  Law  Review.
1
Accessed at  ht tp: / /quotes. l iber ty- t ree.ca/quote/ thomas_jefferson_
quote_ 817a, on 07 January 2006, 1:00 pm.
2
THE FEDERALIST PAPERS, NO.: 65, accessed at http://www.yale.edu/lawweb/
avalon/federal/fed65.htm, on 01 October 2005, 3:00 pm [hereinafter, FEDERALIST].4 6 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
Regardless of the actual importance of impeachment in the protection
of democracy, it is undeniable that in the Philippines, the drama that
accompanies any attempt at impeachment – whether successful or not –
grips the entire nation; and, to paraphrase Alexander Hamilton, agitates
the passions of the whole community, dividing it into parties more or less
friendly or inimical to the accused.
3
 Indeed, the impeachment of former
President Joseph Ejercito Estrada divided the country into camps of pro-
Erap and anti-Erap, so much so that both factions avidly watched the
televised impeachment proceedings with the same fervor that one usually
sees reserved for primetime soap operas. More recently, the attempt to
impeach former Chief Justice Hilario Davide
4
did not only inspire the ire
of many sectors in Philippine society, it even, in the words of the Supreme
Court, created a political crisis.
5
It is in this background of relative tumult that the Supreme Court
rendered its landmark ruling in the case of Francisco, Jr. v. Nagmamalasakit
na mga Manananggol ng mga Manggagawang Pilipino, Inc.,
6
invalidating
not only the second impeachment complaint against former Chief Justice
Hilario Davide, but declaring certain sections of the Rules of Procedure in
Impeachment Proceedings of the House of Representatives null and void.
This decision goes against the widely accepted norm in American and
Filipino constitutional thought that impeachment proceedings lie solely
in the province of the legislative and that the Courts have minimal, if any,
role in it.
While this decision might seem novel from the perspective of
American constitutional philosophy and jurisprudence, judicial review
in impeachment proceedings is not entirely uncommon when viewed in
light of comparative constitutional law. As will be later seen, for many
countries, the Judiciary plays an important role in the impeachment
3
Id.
4
 He  retired  from  office  last  20  December  2005.
5
Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Mangga-
gawang  Pilipino,  Inc.  415  SCRA  44,  at  105  (2003).
6
 415  SCRA  44,  G.R.  No.  160261,  10  November  2003.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 4 7
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
process. In fact, in at least one country,
7
a judicial body has gone much
further than the Philippine Supreme Court – it actually invalidated the
impeachment of a sitting President and reinstated him in office.
Insofar as the Supreme Court is concerned, the Francisco decision
finds solid and unassailable foundations in its constitutionally-granted
power of judicial review – what the ponencia termed as the Court’s
“expanded certiorari jurisdiction.”
8
 Indeed, this is not the first time that
the Supreme Court has exercised judicial review over Congressional
action.
9
Be that as it may, the ruling in Francisco remains truly remarkable,
if not downright epochal, in light of the many questions it raises as regards
the institution of impeachment, and its character as big leap – albeit not
the first one – in the judicialization of Philippine politics.
It is into these areas that this article focuses on. The first part
recounts the factual milieu of the Francisco case, while the second part
provides a brief historical background on origins and roots of the
impeachment institution. The third part focuses on the issue of judicial
review in impeachment cases, with an extended analysis of the ramification
of the Francisco ruling. The fourth and last part examines the Francisco
case in light of the global trend of “judicialization of politics.”
I . BACKDROP  OF  THE   FRANCISO  DECISION
Article XI, entitled “Accountability of Public Officers”, enshrines
the Impeachment process in our constitutional structure. Pertinent
provisions state:
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
7
 South  Korea.
8
Francisco,  415  SCRA  at  124.
9
Id.,  at  132.4 8 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. xxx
Section 3. (1) The House of Representative 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 of 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) I n   c a s e   t h e   v e r i f i e d   c omp l a i n t   o r   r e s o l u t i o n   o f
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.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 4 9
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
(8) The Congress shall promulgate its rules on impeach-
ment to effectively carry out the purpose of this section.
In accordance with its power to promulgate rules on impeach-
ment
10
, the 12
th
 Congress of the House of Representatives, on 28
November 2001, adopted and approved the Rules of Procedure
in  Impeachment  Proceedings.  Pertinent  provisions  state:
RULE  V
BAR  AGAINST  INITIATION  OF  IMPEACHMENT
PROCEEDINGS  AGAINST  THE  SAME  OFFICIAL
Section 16. – Impeachment Proceedings Deemed Initiated. –
In cases where a Member of the House files a verified complaint
of impeachment or a citizen files a verified complaint that is
endorsed by a Member of the House through a resolution of
endorsement against an impeachable officer, impeachment
proceedings against such official are deemed initiated on the day
the Committee on Justice finds that the verified complaint and/
or resolution against such official, as the case may be, is sufficient
in substance, or on the date the House votes to overturn or affirm
the finding of the said Committee that the verified complaint
and/or resolution, as the case may be, is not sufficient in
substance.
In cases where a verified complaint or a resolution of
impeachment is filed or endorsed, as the case may be, by at least
one-third (1/3) of the Members of the House, impeachment
proceedings are deemed initiated at the time of the filing of such
verified complaint or resolution of impeachment with the
Secretary General.
Sect ion 17.   Bar  Against   Ini t iat ion Of   Impeachment
Proceedings. – Within a period of one (1) year from the date
impeachment proceedings are deemed initiated as provided in
Section 16 hereof, no impeachment proceedings, as such, can be
initiated against the same official. (Italics in the Original)
10 CONST. art. XI, § 3, ¶ 8.5 0 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
On 02 June 2003, availing of the right of a private citizen to file a
verified impeachment complaint,
11
former President Joseph E. Estrada
filed an impeachment complaint against then – Chief Justice Hilario G.
Davide Jr. and seven (7) Associate Justices of the Supreme Court for
“culpable violation of the Constitution, betrayal of the public trust and
other high crimes.” The complaint was endorsed by Representatives Rolex
T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,
Unfortunately, while the House Committee on Justice found said
complaint to be “sufficient in form,” it voted on 22 October 2003 to dismiss
the same for being “insufficient in substance”.
Then, on 23 October 2003 – 4 months and 3 weeks after the filing
of the first impeachment complaint – Representatives Gilberto C. Teodoro,
Jr. and Felix William B. Fuentebella filed a second impeachment complaint
against then-Chief Justice Hilario G. Davide, Jr. This second complaint
was accompanied by a “Resolution of Endorsement/Impeachment” signed
by at   least  one- thi rd  (1/3)  of  al l   the Members of   the House of
Representatives.
The filing of said second impeachment complaint spurred numerous
groups and individuals
12
to file their respective petitions before the
Supreme Court, assailing the legality of the second impeachment complaint
for being violative of Article XI, Sec. 3 (5) of the Constitution, which
prohibits the initiation of impeachment proceedings against the same
o ff i c i a l   f o r   m o r e   t h a n   o n c e   w i t h i n   o n e   y e a r.   I n   a   u n a n i m o u s
decision
13
penned by Justice Conchita Carpio-Morales, which upheld the
11 CONST, art. XI, § 3, ¶ 2.
12
Though the case came to be known as “Francisco, Jr. v. Nagmamalasakit na
mga Manananggol ng mga Manggagwang Pilipino, Inc.”, it actually involved 18
consolidated cases – GRs. 160261 to 160263, 160277, 160292, 160295, 160310,
160318, 160342, 160343, 160360, 160365, 160370, 160376, 160392, 160397, 160403
and 160405.
13
 Carpio, J., concurred in the ponencia of Justice Carpio-Morales, while Vitug,
Panganiban, Sandoval-Gutierrez, Callejo, Sr., Quisumbing, Corona and Azcuna, JJ.,
filed separate concurring opinions. Puno and Ynares-Santiago, JJ., filed separate
concurring and dissenting opinions, while Austria-Martinez, J., concurred both in
the majority opinion and in the separate opinion of Justice Vitug.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 5 1
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
exercise of judicial review over impeachment proceedings if and when
the question posed involves “constitutionally imposed limits on the powers
and functions conferred upon [Congress]
14
” in the matter of impeachment,
the High Court declared Sections 16 and 17 of 2001 Impeachment Rules
unconstitutional, and consequently, held the second impeachment
complaint to be barred by Article XI, Section 3(5) of the Constitution.
In its decision, the Supreme Court not only rejected the rather
common acceptation of impeachment as being predominantly, if not purely,
of a political character – the High Court likewise abandoned its historical
origins. It is submitted that this places Philippine impeachment in a unique
situation. Moreover, while the decision is seemingly clear-cut, a closer
analysis reveals that the new doctrine opens what can be said to be a
Pandora’s Box insofar as what impeachment matters are within, and what
are beyond, the pale of judicial review.
A clearer understanding of the issues involved in the matter of
judicial review in impeachment proceedings require a brief examination
of its historical background as well as its contemporaneous milieu.
I I . HISTORICAL  BACKGROUND  OF  IMPEACHMENT
Impeachment is not of Filipino origin; rather, it is an institution
that we adopted from the American Constitution, which, in turn, the
American Framers unabashedly derived from the United Kingdom. Thus,
Alexander Hamilton identifies British parliamentary practice as the “model
from which this institution [impeachment] has been borrowed.”
15
Impeachment in the United Kingdom, in the form closest to that of
today, is generally accepted to have started in 1376,
16 when the “Good
14
Francisco, at 151.
15
FEDERALIST, supra note 2.
16
 Specifically, the 1376 impeachments of Richard Lyons, a London merchant;
and of Lord William Lattimer, are identified as the “first modern impeachments”. See
M.R. Romney, The Origins and Scope of Presidential Impeachment, HINCKLEY JOURNAL
OF POLITICS, Spring 2000, p. 67 (2000), accessed at http://www.lib.utah.edu/epubs/
hinckley/v2/romney.pdf, on 09 September 2005, 2:30 am. [hereinafter Romney,
Origins]5 2 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
Parliament of 1976 saw the use of impeachment, whereby the House of
Commons as a body could accuse officials who had abused their authority
and put them on trial before the Lords.”
17
 It was used as a means whereby
the Parliament could assert its authority over an official who cannot be
removed in any other way, and it was a power that the Parliament jealously
guarded against attempts at interference by the Crown. Thus, in 1388,
when King Richard II challenged the Parliament’s right to impeach an
official without his consent, all judges, who opined that an impeachment
without the King’s consent is illegal, were themselves impeached and removed
by the House of Lords.
18
In modern times however, impeachment fell into disuse in the
United Kingdom.
19
 With the Prime Minister and other executive
officers answerable to the Parliament – no longer to the Sovereign – under
the “Principles of Responsible Government,”
20
the House of Commons
can remove them without a long and tedious impeachment process.
21
The institution of impeachment was brought to American soil by
the colonists, and the first case of impeachment in the Colonies was the
1635 impeachment of John Harvey, Royal Governor of Virginia, by the
17
 Website of the United Kingdom Parliament, accessed at http://www.
parliament.uk/works/parliament.cfm, on 01 October 2005, 3:10 pm
18
 See Romney, Origins, supra note 10, at 67.
19
The last attempted impeachment occurred in 1848, against Viscount
Palmerston, who was accused of having signed a secret treaty with the Russian
Empire, and of having received monies from the Tsar. See http://encyclopedia.
laborlawtalk.com/Impeachment, accessed on 01 October 2005, 3:30 pm.
20
A principle of the Westminster Parliament that the “Government is
responsible to [the] Parliament, more specifically, to the lower, popularly-
representative, house, rather than to the monarch”. See http://www.absoluteastronomy.
com/encyclopedia/r/re/responsible_government.htm, accessed on 01 October 2005,
4:10 pm.
21
Thus, Peter Hain, Leader of the House Commons from June 2003 to
May 2005, responding to Plaid Cymru MP Adam Price’s announcement of his
intention to move for Tony Blair’s impeachment on account of his involvement
of the United Kingdom in the controversial US-led invasion of Iraq in 2003, said
that impeachment was obsolete, given the modern government’s responsibility
to  parliament.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 5 3
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
Virginia General Assembly.
22
 Soon enough, Colonial assemblies adopted
the impeachment process as a method of removing royal officials.
23
Though actual removal often did not occur since the target royal officials
had recourse to the King, impeachment nevertheless continued to be used
as a “tool of colonial protest” – as Colonial assemblies realized that
impeachment, even without actually removing an official, has a detrimental
effect of the impeached official’s ability to govern.
24
After the Revolution, it would have been logical to conclude that
without the Crown – and hence the disappearance of “impeachable
officers” – the impeachment institution would have lost its raison d’etre
and thus would have fallen to disuse. The contrary, however, occurred –
by that time, impeachment was already “ingrained in the American
experience, and [thus underwent] a process of republicanization.”
25
Thus,
it is not surprising that impeachment eventually found its way into the
American Constitution.
26
I I I . IMPEACHMENT   AND   JUDICIAL   REVIEW
A . The  American  Paradigm
The result of the deliberations of the American Constitutional
Convention was the exclusion of the Supreme Court from the impeachment
22
 See Romney, Origins, supra note 10, at 69.
23
Ibid.
24
Ibid.
25
Ibid.
26 U.S. CONST. art. I, § 2 – “That the House of Representatives xxx shall
have the sole power of impeachment: U.S. CONST. art. Art. I, § 3 – “The Senate
shall have the sole Power to try all Impeachments. When sitting for that Purpose,
they shall be on Oath or Affirmation. When the President of the United States
is tried, the Chief Justice shall preside: And no Person shall be convicted without
the  concurrence  of  two  thirds  of  the  Members  present.
Judgment in cases of Impeachment shall not extend further than to
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 neverthe-
less be liable and subject to Indictment, Trial, Judgment and Punishment,
according  to  Law.”5 4 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
process, and the grant of the power to impeach to the Legislature, though
it was not done without debate.
27
 In fact, the Virginia and the New Jersey
Plans lodged the power to impeach in the judiciary.
28
 Eventually, however,
the Convention divorced the impeachment process from the judiciary and
gave the Senate the sole power to impeach. Alexander Hamilton explained
this decision thus:
It is much to be doubted, whether the members of that tribunal
[the Supreme Court] would at all times be endowed with so eminent
a portion of fortitude, as would be called for in the execution of so
difficult a task; and it is still more to be doubted, whether they would
possess the degree of credit and authority, which might, on certain
occasions, be indispensable towards reconciling the people to a
decision that should happen to clash with an accusation brought by
their immediate representatives. A deficiency in the first, would
be fatal to the accused; in the last, dangerous to the public
tranquillity. The hazard in both these respects, could only be
avoided, if at all, by rendering that tribunal more numerous than
would consist with a reasonable attention to economy. The
necessity of a numerous court for the trial of impeachments, is equally
dictated by the nature of the proceeding. This can never be tied down
by such strict rules, either in the delineation of the offense by the
prosecutors, or in the construction of it by the judges, as in common
cases serve to limit the discretion of courts in favor of personal
security. There will be no jury to stand between the judges who
are to pronounce the sentence of the law, and the party who is to
receive or suffer it.  The awful discretion which a court of
impeachments must necessarily have, to doom to honor or to infamy
the most confidential and the most distinguished characters of the
community, forbids the commitment of the trust to a small number
of persons.
27
 Mr. Madison felt this would make the President “improperly dependent”,
and preferred the “Supreme Court for the trial of impeachments, or rather a tribunal
of which that should form a part.”; while Mr. Pinkney opined that making the Senate
the Impeachment Court might produce a situation where the President, when opposing
a favorite law,  would cause “the two houses [to] combine against him, and under the
influence of heat and faction throw him out of office.” See 2 FARRAND 551, accessed at
http://memory.loc.gov/cgi-bin/ampage, on 07 January 2005, 100:00 am.
28 Nixon v. United States, 506 U.S. 224 (1993), citing 1 Farrand 21-22.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 5 5
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
xxx    xxx    xxx
There remains a further consideration, which will not a little
strengthen this conclusion. It is this: The punishment which may
be the consequence of conviction upon impeachment, is not to
terminate the chastisement of the offender. After having been
sentenced to a prepetual ostracism from the esteem and confidence,
and honors and emoluments of his country, he will still be liable to
prosecution and punishment in the ordinary course of law. Would it
be proper that the persons who had disposed of his fame, and his
most valuable rights as a citizen in one trial, should, in another trial,
for the same offense, be also the disposers of his life and his fortune?
Would there not be the greatest reason to apprehend, that error, in
the first sentence, would be the parent of error in the second sentence?
That the strong bias of one decision would be apt to overrule the
influence of any new lights which might be brought to vary the
complexion of another decision? Those who know anything of
human nature, will not hesitate to answer these questions in the
affirmative; and will be at no loss to perceive, that by making the
same persons judges in both cases, those who might happen to
be the objects of prosecution would, in a great measure, be
deprived of the double security intended them by a double trial.
The loss of life and estate would often be virtually included in a
sentence which, in its terms, imported nothing more than
dismission from a present, and disqualification for a future,
office.”
29
Three (3) considerations, therefore, were uppermost in Hamilton’s
mind when he rejected the Supreme Court as the appropriate body to try
impeachment cases, to wit: (1) the Supreme Court might not have the
fortitude, credit and authority to decide so “difficult a task”; (2) the nature
of the proceeding requires a court composed of a great number of judges;
and (3) since conviction in an impeachment proceeding might result in a
judicial conviction for a criminal offense, it would not be proper for the
judges in these two distinct proceedings to be the same.
The judiciary’s exclusion from the impeachment process thus
became a widely-held assumption in American Constitutional thought,
29
FEDERALIST, supra note 2.5 6 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
and impeachment came to be regarded as presenting a “true political
question case.”
30
 Charles Black wrote that in matters of presidential
impeachment, the courts “have... no part at all to play.”
31
 Politicians have
regarded impeachment as solely within the province of the legislature, so
much so that for Gerald Ford, “an impeachable offense is whatever a
majority of the House of Representatives considers to be at a given moment
in history.”
32
These assumptions were challenged rather recently in the case of
Nixon v. United States,
33
 involving the impeachment of Walter L. Nixon,
a former Chief Judge of the United States District Court for the Southern
District of Mississippi, who was convicted of two counts of making false
statements before a federal grand jury, and was then sentenced to prison.
34
Nixon refused, however, to resign from his office, and thus continued to
collect his judicial salary even while in prison.
35
To remedy the absurd
situation, the House of Representatives impeached him for high crimes
and misdemeanors.  When  the House  forwarded  the Ar t icles of
Impeachment to the Senate, the latter, invoking its Impeachment Rule XI,
appointed a committee of Senators to “receive evidence and take
testimony.”
36
Said committee held meetings for four (4) days, after which, it
presented its report on the uncontested facts and summary of evidence to
the full Senate. Both Nixon and the House impeachment managers
30
See http://conlaw.usatoday.findlaw.com/constitution/article02/18.html,
accessed at http://conlaw.usatoday.findlaw.com/constitution/article02/18.html,
accessed on 02 January 2003, 2:25 pm.
31 CHARLES L. BLACK, JR., IMPEACHMENT: A HANDBOOK 63 (1974) [hereinafter
BLACK, IMPEACHMENT].
32
 House Floor Speech: Impeach Justice Douglas, Box D29, Gerald R. Ford
Congressional Papers, Gerald R. Ford Library, accessed at http://www.ford.utexas.edu/
library/speeches/700415f.htm, on 07 January 2006, 1:00 pm.
33
 506 U.S. 224 (1993).
34
Id.
35
Id.
36
Id.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 5 7
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
submitted extensive final briefs to the full Senate and delivered arguments
before them. Afterwards, the Senate convicted Nixon by more than the
constitutionally required two-thirds majority, and removed him from his
office as United States District Judge.
37
This spurred Nixon to commence suit before the Supreme Court,
arguing that “Senate Rule XI violates the constitutional grant of authority
to the Senate to ‘try’ all impeachments because it prohibits the whole Senate
from taking part in the evidentiary hearings.
38
 He thus asked that his
impeachment conviction be declared void.
39
The U.S. Supreme Court rejected Nixon’s contentions, and, speaking
for the majority, Chief Justice Rehnquist, relying primarily on the
deliberations of the Framers of the American Constitution, held that to
exercise judicial review over the question of whether the Senate has
followed the proper meaning of the word “try” in the impeachment clause,
is inappropriate because: (1) it would disturb the system of checks and
balances wherein impeachment is sole check of the Legislature on the
Judiciary; (2) it would result to lack of finality and difficulty of fashioning
relief; and (3) there is a textually demonstrable constitutional commitment
of the issue to a coordinate political department.
40
While the question presented in the Nixon case refers particularly
to the question of judicial review on the Senate’s construction of the word
“try” as used in the impeachment clause, the decision in Nixon has became
the authority for the argument that impeachment proceedings are beyond
judicial review. Thus, it has been observed that “the analysis of the Court
applies to all impeachment clause questions, thus seemingly putting
offlimits to judicial review the whole process.”
41
37
Id.
38
Id.
39
Id.
40
Id.
41
 ht tp: / /conlaw.usatoday. f indlaw.com/const i tut ion/ar t icle02/18.html ,
accessed on 02 January 2003, 2:25 pm.5 8 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
B. The  South  Korean  Model
42
 and  Other  Counter-Models
While the American paradigm characterizes impeachment as an
almost purely political process, and thus excludes the judiciary from
participation therein, a markedly different exemplar is found in other
countries. In certain nations all over the globe, far from being beyond
the pale of the judiciary, the impeachment process directly involves
the  judicial  branch  of  government.
In Germany for instance, Article 61 of the Grundgesetz (Basic
Law for the Federal Republic of Germany)
43
provides that, after the
Federal President has been impeached by the  Bundestag or the
Bundesrat, the case shall be tried before the Federal Constitutional
Cour t ,  which shal l   then decide whether  he  is gui l ty of  a wi l l ful
violation of the basic law. If the Constitutional Court answers said
question in the affirmative, it may declare him to have forfeited his
office.
The procedure followed in other countries in Continental Europe
is the same. In Italy, after the President is impeached by the Parliament
in joint session, the case is subsequently brought before the Constitu-
tional  Court  for  trial.
44
The Bulgarian Constitution
45
contains a similar provision. Its
Article 103 provides that after the President or the Vice-President has
been impeached by at least two-thirds (2/3) of the National Assembly,
trial  shall  be  conducted  by  the  Constitutional  Court.
42
 While many countries follow an impeachment procedure similar to that of
South Korea, this model is termed the “South Korean model” by reason of the landmark
developments that have occurred in South Korean impeachment.
43
 Promulgated by the Parliamentary Council on 23 May 1949, accessed at
http://www.psr.keele.ac.uk/docs/german.htm
44
ITA L I AN CONS T.   Ti t le VI ,  § 1,  Ar t .  135,  accessed at   ibe.ch/ law/ icl /
it00000_.html” http://www.oefre.unibe.ch/law/icl/it00000_.html, on 01 October
2005, 7:40 pm.
45
Adopted on 12 July 1991, accessed at http://www.oefre.unibe.ch/law/icl/
bu00000_.html#I000_, accessed on 11 September 2005, 6:50 pm.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 5 9
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
Article 104 of the Croatian Constitution
46
is practically the same.
While proceedings for the impeachment of the President are initiated
by a two-thirds (2/3) vote of all the members of the Croatian Parlia-
ment, the impeachment shall afterwards be decided by the Constitu-
tional  Court.
The Hungarian impeachment process is also the same mold.
Articles 31-A and 32 of its Constitution
47
provides that a President
may be impeached by a two-thirds 2/3 vote of the Parliament, after
which,  trial  shall  be  conducted  by  the  Constitutional  Court.
Here in our own backyard, particularly in South Korea, Article
111, Chapter VI of the Honbop,
48
gives the Constitutional Court com-
petence to adjudicate issues on impeachment. This power was
exercised in recent history, in the matter of the impeachment of
President Roh Moo-Hyun. On 12 March 2004, the National Assembly
of South Korea passed a motion to impeach President Moo-Hyun.
Barely 2 months after – or on 14 May 2004, the South Korean
Constitutional Court dismissed the impeachment motion and rein-
stated Moo-Hyun. It has been written that this is “the first time in
modern const i tut ional  history  in which a common const i tut ional
mechanism for removal of a president has produced a situation in
which a president impeached by a legislature has been reinstated
by  a  judicial  body.”
49
46
Adopted on December 1990, last amended on 02 April 2001, accessed at
http://www.oefre.unibe.ch/law/icl/hr00000_.html#C001_, on 02 October 2005, 7:45
pm.
47
Adopted 20 August 1949, accessed at http://www.oefre.unibe.ch/law/icl/
hu00000_.html, on 11 September 2005, 6:45 pm.
48
Adopted on 17 July 1948, accessed at http://www.oefre.unibe.ch/law/icl/
ks00000_.html , 11 September 2005, 6:47 pm.
49
Y. Lee, Law, Politics, and Impeachment: The Impeachment of Roh Moo-hyun
from a Comparative Constitutional Perspective, 53 AMERICAN JOURNAL OF COMPARATIVE
LAW 6 (2005), accessed at http://ssrn.com/abstract=604049, on 02 January 2003,
2:55 pm. Interestingly, Mr. Lee cites the Francisco decision as the “closest analogue”
to the Roo Moh-Hyun case. See Footnote #33.6 0 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
C. The  Philippine  Model – Analysis  and  Critique  of  the
Francisco  Decision
Here in the Philippines, it has been long opined that the judiciary
has a very limited role in the impeachment process. It is regarded as a rare
instance when the Legislature – a non-judicial branch, was given judicial
functions. Thus, Fr. Joaquin Bernas wrote that the power of Congress to
impeach is the second exception to the rule of judicial monopoly in the
exercise of judicial functions.
50
Former Supreme Court Associate Justice Isagani A. Cruz, on the
other hand, wrote that “a judgment of the Congress in an impeachment
proceeding is normally not subject to judicial review.”
51
 He made an
important qualification, however (seemingly in anticipation of the
Francisco case) – “But the courts may annul the proceedings if there is a
showing of a grave abuse of discretion committed by the Congress or of
non-compliance with the procedural requirements of the Constitution...”.
52
This is precisely what occurred in the Francisco case.
The crux of the controversy in the Francisco case lies on the meaning
of the word “initiate” as used in Article XI, Sec. 3(5) of the Constitution,
which states:
No impeachment proceedings shall be initiated against the
same official more than once within a period of one year.
Under the House Rules of Impeachment, when the verified
impeachment complaint is filed by a private citizen, the impeachment
proceedings are deemed initiated only on the day that the Committee on
Justice finds said complaint to be sufficient in substance, or on the day
that the House overturns a finding of said committee that such complaint
is insufficient in substance. Thus, the first impeachment complaint, while
filed, was not initiated, since the finding of the Committee on Justice that
50
J. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY 989 (1996 Ed.).
51
I.A. CRUZ, PHILIPPINE POLITICAL LAW 360 (1988).
52
Id.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 6 1
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
it was insufficient in substance had not yet been overturned by the House.
Accordingly, the 1-year bar had not yet begun the run, and thus the filing
of the second impeachment complaint did not violate the Constitutional
proscription. In other words, “the one year bar prohibiting the initiation
of impeachment proceedings against the same officials could not have been
violated as the impeachment complaint against Chief Justice Davide and
seven Associate Justices had not been initiated as the House of
Representatives, acting as the collective body, has yet to act on it.”
53
In assailing the Supreme Court’s power to rule on the issue, both
Speaker De Venecia and intervenor Senator Pimentel “raise the novel
argument that the Constitution has excluded impeachment proceedings
from the coverage of judicial review.”
54
 Particularly, for the House Speaker,
“impeachment is a political action which cannot assume a judicial character
xxx any question, issue or incident arising at any stage of the impeachment
proceeding is beyond the reach of judicial review.”
55
 For the good Senator,
“the Senate’s “sole power to try” impeachment cases (1) entirely excludes
the application of judicial review over it; and (2) necessarily includes the
Senate’s power to determine constitutional questions relative to
impeachment proceedings.”
56
The  Supreme  Court,  however,  rejected  these  contentions.
1 . Rejection  of  American  Precedents
In Francisco, the High Tribunal rejected reliance on American
jurisprudence and Constitutional history as support for the argument that
impeachment exists beyond the pale of judicial review. While recognizing
that the roots of the Philippine Constitution can be found in its American
counterpart, the Court noted, in the words of Father Bernas, that “we
have cut the umbilical cord,” and declared that:
53
Francisco, at 164, Italics in the original.
54
Id., at 129.
55
Id.
56
Id.6 2 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
“while the power of judicial review is only impliedly granted to
the U.S. Supreme Court and is discretionary in nature, that
granted to the Philippine Supreme Court and lower courts, as
expressly provided for in the Constitution, is not just a power but
also a duty, and it was given an expanded definition to include
the power to correct any grave abuse of discretion on the part of
any government branch or instrumentality.”
57
Addressing particularly the differences between the American and
Philippine constitutions in their respective provisions on impeachment,
the Court held:
“There are also glaring distinctions between the U.S. Constitution
and the Philippine Constitution with respect to the power of the
House of Representatives over impeachment proceedings. While
the U.S. Constitution bestows sole power of impeachment to the House
of Representatives without limitation, our Constitution, though
vesting in the House of Representatives the exclusive power to initiate
impeachment cases, provides for several limitations to the exercise
of such power as embodied in Section 3(2), (3), (4) and (5), Article
XI thereof.  These limitations include the manner of filing,
required vote to impeach, and the one year bar on the
impeachment of one and the same official.”
58
Immediately, one is struck by what seems to be wholesale
abandonment of American precedents on the matter. Admittedly,
Philippine constitutional thought is not as firmly welded to its American
roots as it was in the past, owing to the many unique developments in
Philippine constitutional law.
2 . C o n s t i t u t i o n a l l y - I m p o s e d   L i m i ta t i o n   o n   t h e   P o w e r
to  Impeach
Elucidating on the issue of whether a particular issue is a political
question or not, the Court held:
57
Id., at 130-131; Emphases in the original.
58
Id., at 131; Citations omitted, emphases supplied.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 6 3
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
“...the determination of a truly political question from a non-
justiciable political question lies in the answer to the question of
whether there are constitutionally imposed limits on powers or
functions conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such
limits.”
59
The obvious question then follows – what questions regarding
impeachment are beyond the pale of judicial review and what are subject
to the same? The guide laid down in the Francisco ruling seems simple
enough – when the question involves a limitation imposed by the
Constitution on the legislative power to impeach.
60
A closer examination of the question, however, reveals that the
aforesaid guideline is not as clear-cut as it appears to be.
Even a cursory reading of the provisions on impeachment would
show that it imposes numerous “limitations” on the legislative power to
impeach. The decision itself enumerates three: (1) manner of filing; (2)
required vote to impeach; and (3) the one-year bar. Others, however, could
be mentioned, such as: (1) the impeachable officers; (2) the impeachable
offenses; and (3) the process to be followed.
Following the reasoning of the Court in Francisco, any violation of
these limits would open the doors for judicial review. Yet, on the issue of
whether or not “the offenses alleged in the second impeachment complaint
constitute valid impeachable offenses under the Constitution,”
61
the Court
declared the question to be non-justiciable – that its determination is “a
purely political question which the Constitution has left to the sound
discretion of the legislation.”
62
The Court then proceeded to say:
59
Francisco, at 151; Emphases supplied.
60
Id.
61
Id., at 152.
62
Id.6 4 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
“In fact, an examination of the records of the 1986 Constitu-
tional Commission shows that the framers could find no
better way to approximate the boundaries of betrayal of
p u b l i c   t r u s t   a n d   o t h e r   h i g h   c r ime s   t h a n   b y   a l l u d i n g   t o
both positive and negative examples of both, without arriving
at their clear cut definition or even a standard therefor.”
63
Clearly, we seem to have reached a confusing point. The enume-
ration of impeachable offenses obviously constitutes a limitation on
the Legislature’s power to impeach. Beyond such offenses, impeach-
ment does not lie. Yet the High Court states that the determination of
impeachable offenses is non-justiciable. If the Constitutional Commis-
sion alluded examples of what does and does not constitute “betrayal
of public trust and other high crimes,” may not such example serve
as a guide as to the Commission’s idea of what these terms mean?
And may not, from that guide, the court determine whether an offense
charged in an impeachment complaint is an impeachable offense
within  the  purview  of  the  Constitution?
Further, a closer reading of the Records of the Constitutional
Commission reveals that the term “betrayal of public trust and other
high crimes” is not as vague as the decision makes it appear to be.
First, the term “high crimes” was borrowed, though with modi-
fication, from the American Constitution, which uses the term “high
crimes and misdemeanors” – a term which, the American Framers
in  turn,  “lifted  bodily  from  English  law.”
64
Thus, even among American Constitutional scholars, some are of
the opinion that “high crimes and misdemeanors” have “ascertainable
limits.”
65
 Raoul Berger, for instance, relying on English precedents,
argues that “high crimes and misdemeanors” were a “category of
political crimes against the State.”
66
 Berger then proceeds with the
63
Id;  Citations  omitted.
64 R.  BE R G E R,   IM P E A C H M E N T:   TH E CO N S T I T U T I O N A L PR O B L E M S 54  (1973)
[hereinafter  BERGER,  CONSTITUTIONAL  PROBLEMS].
65
Id.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 6 5
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
substantiated assertion that the Framers were aware of this technical
meaning attached by English law and jurisprudence to the term.
67
He then continues with the argument that if “high crimes and mis-
demeanors had an ascertainable context at the time the Constitution
was adopted, that context furnishes the boundaries of the power
[and] it is no more open to Congress to stray beyond those boundaries
than it is to include in the companion word ‘bribery’ an offense such
as  ‘robbery’  xxx.”
68
Here in the Philippines, the 1986 Constitutional Commission
changed “high crimes and misdemeanors” into “betrayals of public
trust and other high crimes.” Yet even the definition of high crimes
accepted by noted Filipino constitutionalists is remarkably similar
to that cited by Berger as its English meaning – i.e., that high crimes
are “offenses which, like treason and bribery, are indictable offense
and are of such enormous gravity that they strike at the very like and
orderly  working  of  the  government.”
69
Likewise, the term of “betrayals of public trust” has a guiding, if
not perfectly complete definition. It connotes acts which, even if not
punishable, render “the officer unfit to continue in office.”
70
 Cited
examples are inexcusable negligence of duty, tyrannical abuse of
power, breach of official duty by malfeasance or misfeasance, cronyism,
favoritism xxx to the prejudice of public interest and which tends to
bring  the  office  into  disrepute.”
71
There is nothing vague in these characterizations. They may
not  be  faul t less def ini t ions,  and  they may not  be suff icient   for
66
Id.,  at  61.
67
Id.,  at  74-75.  See,  however,  Romney,  Origins.
68
Id.,  at  87.
69
J. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES:
A COMMENTARY 1112 (2003), citing the Report of the Special Commission on the
Impeachment of President Quirino, IV Congressional Record, House of Represen-
tatives  155  (1949).
70
Id.,  at  1113.
71
Id.6 6 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
purposes of criminal law, but it cannot be said that they do not
provide  “judicially  discoverable  standards.”
Furthermore, one is struck by the seeming irony of the situation –
the process of impeachment – particularly, the determination of when an
impeachment complaint is considered filed – is justiciable – yet, the
determination of impeachable offenses is not.
Another interesting scenario comes to mind on the matter of
impeachable offenses. Assuming arguendo that the term “high crimes or
betrayal of public trust” eludes precise definition, the same cannot be said
as regards the other impeachable offenses, namely: (1) treason, (2) bribery,
and (3) graft and corruption. These terms have concrete meanings, both
legal
72
and commonplace. If it comes to pass then, that an impeachable
officer is accused of these offenses, yet the impeachment complaint is
nevertheless dismissed by the House of Representatives, can the aggrieved
party then go to the Supreme Court and invoke judicial review? Can it not
be said that the failure to impeach an impeachable officer who has
commi t ted an  impeachable of fense const i tutes a violat ion of  a
Constitutionally-imposed limitation on the power to impeach?
One may immediately comment, as a reaction to these scenarios,
that the same are far-fetched, and can only happen under an environment
where the legislative and the executive, or the legislative and the judicial
branches are antagonistic to each other. Admittedly, such situations are
uncommon – but it cannot be said that they are unheard of.
The 1868 impeachment and trial of U.S. President Andrew Johnson,
for example, is cited by many writers as a politically-motivated attack by
disgruntled partisans in the Legislature against President Johnson.
73
 Raoul
72
Treason is defined under the REVISED PENAL CODE, art. 114; Bribery and its
various forms are likewise defined under the REVISED PENAL CODE, arts. 210-211-A.
73
See http://en.wikipedia.org/wiki/Andrew_Johnson, accessed on 07 January
2006, 1:00 pm – “The impeachment of Johnson is widely regarded as one of the most
shameful episodes in the history of the Federal Government”. See also http://
www.yale.edu/lawweb/avalon/treatise/andrew_johnson/chap_12.htm, accessed on
07 January 2006, 1:00 pm – “xxx the Republican majority of the Senate placed
themselves and their party in the attitude of prosecutors in the case—instead of judgesJUDICIAL  REVIEW  OF  IMPEACHMENT ... 6 7
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
Berger remarked that the Johnson impeachment was the realization of
Charles Pinckney’s fear of a situation when the “2 houses would combine
against the President under the influence of heat and faction.”
74
 Similarly,
the impeachment of U.S. Supreme Court Associate Justice Samuel Chase
is looked upon by many writers as an attack against an independent
judiciary, which, thankfully, was foiled.
75
 In fact, some sectors are of the
view that the attempted impeachment of Chief Justice Davide was
motivated by less than noble objectives.
76
sworn to give the President an impartial trial and judgment that their course had the
appearance, at least, of a conspiracy to evict the President for purely partisan purposes,
regardless of testimony or the facts of the case xxx THAT ESSENTIAL INGREDIENT
OF JUDICIAL FAIRNESS WAS NOT SHOWN TO MR. JOHNSON IN THIS CASE
BY THE REPUBLICAN MAJORITY OF THE SENATE. xxx It was an ill-disguised
and malevolent partisan prosecution.
74
BERGER, CONSTITUTIONAL PROBLEMS 112-113, at Footnote 47 (1973).
75
 See http://www.pbs.org/wgbh/amex/duel/peopleevents/pande02.html,
accessed on 07 January 2007, 1:00 pm – “When Republicans under Thomas Jefferson
led an impeachment attack against Samuel Chase xxx the agenda was clearly political.
The outcome of Chase’s trial would largely determine whether the judiciary could
remain independent. Xxx If he [Jefferson] could impeach Chase easily, other Federalist
judges, notably Chief Justice of the Supreme Court John Marshall, would probably
follow.”
76
See http://www.philsol.nl/A03b/Davide-Akbayan-oct03.htm, accessed on
07 January 2006, 10:00 am – “The impeachment attempt on Chief Justice Hilario
Davide is purely and simply an act of political blackmail. xxx The motives are obvious:
to get back at the Supreme Court for its decision on the public character of coco levy
funds and to influence its prospective decisions on other Danding Cojuangco cases.”
See also http://www.clajadep.lahaine.org/articulo.php?p=1939&more=1&c=1,
accessed on 07 January 2006, 10:00 am – “The militant labor center Kilusang Mayo
Uno (KMU) today called for the junking of the impeachment case initiated by Danding
Cojuangco’s Nationalist People’s Coalition faction against Supreme Court Chief Justice
Hilario Davide Jr. ‘The impeachment case against Davide is without doubt politically-
motivated. Cojuangco is doing everything in his power and capacity to mangle justice
and escape his accountability on the coco levy case and keep his control over the
P130 billion shares of San Miguel Corporation.’See also http://www.ateneo.edu/files/
3/Davide%20Impeachment.pdf, accessed on 07 January 2006, 10:00 am – “xxx we
are well aware of the failure of the first impeachment complaint against Chief Justice
Davide xxx for insufficiency in form and substance xxx. During that proceeding the
absence of the support of the NPC block was very palpable. Glaring indeed is the6 8 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
3 . The  Post-Review  Scenario
While the controversy in the Francisco case revolved around the
House of Representatives’ interpretation of the word “initiate”, the ruling
and reasoning behind the decision – in fact, the language of the ponencia
itself – includes the entire impeachment process – from the House to the
Senate – such that it can be said that the entire proceeding can be subjected
to judicial review.
This makes relevant certain concerns expressed by the United States
Supreme Court in Nixon v. U.S. Let us take this hypothetical scenario –
the President was impeached by the House and convicted by the Senate.
In the process however, Constitutionally-imposed limitations were violated.
Accordingly, a case is filed before the Supreme Court.
From the purely legal perspective, the question of appropriate relief
immediately confronts us. Admittedly, the Supreme Court can set aside
both the impeachment and the judgment of conviction. But what happens
after? As asked in the Nixon case, can the Supreme Court order the
reinstatement of one who has impeached and convicted?
77
This scenario, at first glance, might seem purely speculative, if not
totally outlandish. In fact, when Charles Black contemplated that self-
same scenario of impeachment and conviction and then reinstatement
through judicial action, he flatly called the result “preposterous,”
78
and
articulated that he “[does not] possess the resources of rhetoric adequate
to characterizing [its] absurdity.”
79
contrast that this time around, we see almost the 75% of the NPC Congressmen
throwing their support to the impeachment resolution [against Davide]. xxx Why the
sudden turnabout of the NPC representatives against the Chief Justice? How far can
we possible separate this particular NPC initiative from the case of Eduardo Cojuanco’s
legitimate ownership of San Miguel shares now being appealed by the Solicitor General
before the Supreme Court? Is pressure and power play at work here?”
77
 506 U.S. 224 (1993).
78
BLACK, IMPEACHMENT, at 55.
79
Id., at 54.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 6 9
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
Yet, as the South Korean experience teaches us, this is the precise
consequence of opening the doors of impeachment to judicial review.
Let us extend the analysis further. Pending final resolution by the
Court, the finality of an impeached officer’s removal – in our hypothetical
scenario that of the President – is by no means certain. During this interim
period, what happens to the Office of the President? The Constitution
provides that in cases of the removal from office of the President – a
situation that presupposes impeachment and conviction, since that is the
only Constitutional and legal way of removing a President mid-term – the
Vice-President becomes the President.
80
This succession, however
obviously contemplates a final removal. Yet, as we have seen, when the
validity of the President’s impeachment and conviction is under
consideration by the Court, the same cannot be said to be final – corollarily,
it cannot be said that the Vice-President has become the President in such
a case. At most, he is only an acting-President. This is not a situation
provided for in our Constitution.
Furthermore, the lack of finality of an impeachment and conviction
can have dire consequences to the stability of the Republic. The period
between conviction and judicial resolution would surely be marked by
uncertainty, questions of legitimacy and insecurity that would surely
beleaguer and confound the unfortunate successor. In the words of Nixon
case, “opening the door of judicial review to the procedures used by the
Senate in trying impeachments would ‘expose the political life of the
country to months, or perhaps years, of chaos.”
81
These considerations pictured little in the Francisco decision.
Glaringly, while the issues of “lack of finality” and “difficulty in fashioning
relief” were included in the ponencia’s summation of the Nixon v. U.S.-
based arguments of Speaker De Venecia and Senator Pimentel,
82
the
80 CONST. art. VII, § 8 – “In case of death, permanent disability, removal from
office, or resignation of the President, the Vice-President shall become the President
to serve the unexpired term.”
81
 506 U.S. 224 (1993).
82
 “In furthering their arguments on the proposition that impeachment
proceedings are outside the scope of judicial review, respondents Speaker De Venecia,7 0 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
discussion that followed confined itself to the issues of Constitutional
provisions on impeachment and judicial review and the specter of upsetting
the system of checks and balances.
83
This omission may be ascribed to two (2) reasons. First, the question
presented in the Francisco case was the impeachment and not the
conviction of Chief Justice Davide. Thus, even if the impeachment
complaint was declared unconstitutional – as indeed it was – the relief to
be accorded is plain and simple – the declaration that it is unconstitutional.
There is no need for reinstatement, as the Chief Justice has not yet been
removed.
As already noted, however, the reasoning of the Court does not
confine itself to the process in the House of Representatives. The presence
of  Const i tut ional ly- imposed  l imi ts  is  t rue  for  both  the House of
Representatives and the Senate in the matter of impeachment. Following
the Court’s logic in Francisco, therefore, judicial review can be exercised
at both the House and Senate stage of the proceedings – whenever a
“constitutionally-imposed limitation” is violated.
Second, the official involved in Francisco was the Chief Justice.
Without downgrading the importance of the position, a temporary vacancy
therein would not hamper the effective operation of the Supreme Court,
which requires only a quorum – i.e., a simple majority – to function en
banc,
84
 and which in fact can sit in divisions of three (3).
85
et. al. and intervenor Senator Pimentel rely xxx principally [on] the majority opinion
in the case of Nixon v. United States. Thus, they contend that the exercise of judicial
review over impeachment proceedings is inappropriate since it runs counter to the
framers’ decision to allocate to different fora the powers to try impeachments and to
try crimes; it disturbs the system of checks and balances, under which impeachment
is the only legislative check on the judiciary; and it would create a lack of finality and
difficulty in fashioning relief.” 415 SCRA, at 129; Emphases in the Original, Citations
Omitted.
83
Francisco, at 129 to 133.
84 CONST. art. VIII, § 4, ¶ 2.
85 CONST, art. VIII, § 4, ¶ 1.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 7 1
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
The same cannot be said when the office in limbo is that of the
President. An Acting President suffers from several restrictions on
presidential powers. For instance, appointments made by an Acting
President, while effective, may be revoked by the elected President “within
ninety days from his assumption of office.”
86
Clearly, an uncertain impeachment and removal of a President would
have tremendous legal and political consequences – consequences that
may have dire effects to national welfare.
D . A  Comparison  of  Models
It can be said that the Philippine model of impeachment straddles
the American and South Korean paradigms – in fact, a comparative analysis
reveals that impeachment Philippine-style has taken a unique and peculiar
form. While it retains its essential character as a political proceeding, it is
not as beyond judicial review as its American counterpart. In this sense, it
has become rather similar to the impeachment models found in South
Korea and Germany, to name a few.
1 . Composition  of  Courts  and  the  Insulation
of   the  Judiciary
A striking difference between Philippine impeachment, as compared
to the South Korean model, lies in the composition of the reviewing courts.
The Constitutional Courts granted participation in the impeachment
process are markedly different in character, nature and composition when
compared with that of the Philippine Supreme Court.
Particularly, either all, or a certain percentage of, the members of
Constitutional Courts in other countries are elected, either by their
respective legislative bodies or by some other entity.
F o r   i n s ta n c e ,   h a l f   o f   t h e  memb e r s   o f  Ge rma n y ’s   F e d e r a l
Constitutional Court are elected by the Bundestag, while the other half
86 CONST, art. VII, § 14.7 2 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
are elected by the Bundesrat.
87
 Of the twelve (12) Justices of the Bulgarian
Constitutional Court, one-third (1/3) are elected by the National Assembly,
one-third (1/3) are appointed by the President, and the remaining one-
third (1/3) elected by a joint meeting of the Justices of the Supreme Court
of Cassation and the Supreme Administrative Court.
88
 In Croatia, all of
the thirteen (13) Judges of the Constitutional Court are elected for eight-
year terms by the Croatian Parliament from notable judges, especially
judges, public prosecutors, lawyers and university law professors.
89
 In
Hungary, the eleven (11) members of the Constitutional Court are elected
by the Parliament from a list submitted by the Nominating Committee,
which is composed of members from all political parties represented in
the Parliament.
90
 In South Korea, while the nine (9) adjudicators of the
Constitutional Court are all appointed by the President, three (3) of his
appointees must be from persons selected by the National Assembly, and
another three (3) from persons nominated by the Chief Justice.
91
Furthermore, the head of the Constitutional Court is appointed by the
President from among the sitting adjudicators with the consent of the
National Assembly.
92
In Italy, the composition of the Constitutional Court is actually
changed when it is sitting to decide impeachment cases. Its normal
membership of fifteen (15) Justices (one-third [1/3] appointed by the
President, another third appointed by the Parliament, and another third
87 GERMAN CONST. Art. 94, ¶ (1).
8 8
BU L G A R I A N  CO N S T.   c h a p t e r   e i g h t ,   a r t   1 4 7 ,   a c c e s s e d   a t   h t t p : / /
www.oefre.unibe.ch/law/icl/bu00000_.html#I000_, accessed on 11 September 2005,
6:50 pm.
89 CROATIAN CONST. chapter V, art. 125, accessed at http://www.oefre.unibe.ch/
law/icl/hr00000_.html#C001_, on 02 October 2005, 7:45 pm.
9 0 HU N G A R I A N  CO N S T.   c h a p t e r   V,   a r t .   3 2 - A ,   a c c e s s e d   a t   h t t p : / /
www.oefre.unibe.ch/law/icl/hu00000_.html, on 11 September 2005, 6:45 pm.
9 1
SO U T H  KO R E A N  CO N S T. ,   c h a p t e r   V I ,   a r t .   111 ,   a c c e s s e d   a t   h t t p : / /
www.oefre.unibe.ch/law/icl/ks00000_.html , 11 September 2005, 6:47 pm.
9 2
SO U T H  KO R E A N  CO N S T. ,   c h a p t e r   V I ,   a r t .   111 ,   a c c e s s e d   a t   h t t p : / /
www.oefre.unibe.ch/law/icl/ks00000_.html , 11 September 2005, 6:47 pm.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 7 3
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
by the ordinary and administrative Supreme Court), is increased by sixteen
(16) additional members, who are drawn by lot from a list of citizens
elected by the Parliament, following the same appointment procedure as
that for the appointment of ordinary justices.
93
What is the significance of this method of appointing members of
the Constitutional Court? By being elected or nominated by their respective
countries’ legislative bodies – i.e., the people’s representatives – then, at
least substantially, the inquisitors for the nation remain to be the
representatives of the nation – an arrangement that Alexander Hamilton
characterized as “proper,” given the nature of impeachment proceedings
as a “method of national inquest into the conduct of public men.”
94
In marked contrast, Justices of the Philippine Supreme Court are
appointed by the President from a list of nominees submitted by the Judicial
and Bar Council.
95
 Moreover, unlike officials appointed by the President
to high positions,
96 Members of the Supreme Court, by express
Constitutional mandate, are not required to undergo confirmation from
the Commission on Appointments.
97
The laudable aim of this rather unique appointment process is to
strengthen the independence of the judiciary, and to insulate it from the
highly political process in the Commission on Appointments. It has,
however, one significant drawback – it has likewise insulated the selection
and appointment process from public scrutiny. Thus, in relation to the
selection of the Chief Justice to succeed former Chief Justice Davide upon
93
ITALIAN CONST., Title VI, § 1, Art. 135, ¶ 1 and 7, accessed at http://
www.oefre.unibe.ch/law/icl/it00000_.html, on 01 October 2005, 7:40 pm.
94
FEDERALIST, supra note 2.
95 CONST. art. VIII, § 9.
96
See CONST. art. VII, § 16 – “The President shall nominate and, with the
consent of the Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain, and other officers whose
appointments  are  vested  in  him  in  this  Constitution.”
97 CONST. art. VIII, § 9.7 4 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
his retirement, some sectors have remarked that the public ought to be
given more information, if not participation in the process.
98
This insulation is certainly laudable in light of regular judicial
functions. Indeed, in the administration of justice, politics should not have
any place at all. Justices, and even judges, are required to be impartial and
independent;
99
they cannot afford even the suspicion of partisanship, or
the slightest appearance of impropriety.
100
But is this desirable in impeachment proceedings? It is an inescapable
fact that impeachment is political in character. It is a “duel where politics
plays as important a role as morality, where polls matter more than the
purity of process”
101
it will, as we have witnessed, “agitate the passions of
the whole community.”
102
Thus, populist politics are only to be expected
to be a factor – and in fact, an important one, in impeachment questions.
The people will surely have strong opinions on the matter, and the
thwarting of their desires may lead to disastrous consequences.
103
98
 See “Every hurdle begins with a first step”, by Atty. Rita Linda V. Jimeno,
accessed at http://www.manilastandardtoday.com/?page=ritaLindaJimeno_
oct10_2005, on 14 January 2006, 6:21 pm – “In the past there has been no involvement
or participation from the general public in the selection and appointment process of
justices to the Supreme Court, the Court of Appeals and all other levels of court.
Now, people are encouraged to monitor who the candidates are, and what their
qualifications, background and leanings on various issues are”;  see also http://
www.tan.org.ph/files/proj_scaw_faq.asp, accessed at 14 January 2006, 6:24pm –
“Citizen participation in the Supreme Court appointment process, albeit possible, is
limited.”
99 CONST. art. VIII, § 7, ¶ 3 – “A Member of the Judiciary must be a person of
proven competence, integrity, probity, and independence.
100
 New Code of Judicial Conduct, Canon 4, § 1 – “Judges shall avoid
impropriety and the appearance of impropriety in all of their activities.”
101
 N.K. Katyal, Impeachment as Congressional Constitutional Interpretation,
63 LAW AND CONTEMPORARY PROBLEMS, Nos. 1 & 2, 169-191, at 175; accessed at https:/
/www.law.duke.edu/journals/lcp/downloads/LCP63DWinterSpring2000P169.pdf.
[hereinafter Katyal, Congressional Constitutional Interpretation].
102
FEDERALIST, supra note 2.
103
 Perhaps the best example of this is what came to be known as the EDSA
People Power II, which was sparked by the refusal of pro-Erap Senators to open theJUDICIAL  REVIEW  OF  IMPEACHMENT ... 7 5
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
It is precisely for these reasons that Congress was given the power
to impeach – in deciding impeachment questions, the political agendas,
aspirations and ideologies of Members of Congress will, and are expected
to, come into play. In fact, for Neal Katyal, the role of politics should be
“open, unabashed and honest,” otherwise, political accountability would
be interfered with.
104
 Being accountable to the people in future elections,
they are expected to hearken to the people’s voice in matters relating to
impeachment. Indeed, it is Congress’ nature as a “popularly accountable
actor,” and the remedy of voting Members of the Legislature out of office,
that is the answer to the fear that the Senate would be “aristocratic and
unfair in impeachments” and also to the concerns with agency costs, i.e.,
that the Members of Congress will “serve their own interests and not
their constituents.”
105
Here in the Philippines we have already witnessed the value of
Congress as a “popularly accountable actor” in impeachment proceedings.
Looking back at the impeachment trial of former President Joseph Estrada,
most of the pro-Erap Senators who refused to open the second envelope
and who run for re-election in the 2004 Senatorial Elections lost, such as
Senators Miriam Defensor-Santiago and Juan Ponce-Enrile,
106
and former
Senator Tessie Aquino-Oreta. In a parallel occurrence, when Orlando
Mercado, who served as Defense Secretary in Estrada’s Cabinet but later
on jumped fences and joined the anti-Erap forces massed at the EDSA
Shrine, ran for senator in the 2001 elections under the Erap’s political
party – the Partido ng Masang Pilipino (PMP) – he was reputedly booed
by Erap supporters during their political sorties, contributing to his
eventual loss in said elections.
107
“2nd envelope” believed to contain incriminating evidence against former President
Joseph Estrada.
104
 Katyal, Congressional Constitutional Interpretation, at 176.
105
Id., at 177-178.
106
 Notably, however, when these two (2) senators run again in the 2004
elections, they seemed to have earned the forgiveness of the electorate and have won
back the love of people, so much so that they are back in the Senate.
107
 URL: http://www.inq7.net/nat/2004/jan/04/text/nat_1-1-p.htm7 6 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
T h i s   a c c o u n ta b i l i t y   f a c t o r   c a n n o t   b e   s a i d   t o   e x i s t   f o r   t h e
Supreme Court. Supreme Court justices do not run for elections. They
have security of tenure. They can only be removed by impeachment.
Even  thei r  manner  of  select ion  is  insulated,   though unwi t t ingly
perhaps, from the public eye. There is, therefore, no convenient
remedy should their decision in an impeachment question not be
acceptable  to  the  public.
This is not to say that the Supreme Court is woefully ignorant
of public opinion. But the fact is, in the performance of their func-
tions, the Supreme Courts is expected to be apolitical – it should be
prepared to make unpopular decisions, decisions based purely on
law and legal principles. Again, while this is to be desired in the
resolution of legal questions, its suitability in a so political a process
as  impeachment  is  highly  uncertain.
As a counter-argument, it might be observed that the Francisco
decision did not spark any massive outcry, and neither did the South
Korean Constitutional Court’s reinstatement of President  Roh. In fact,
in both instances, the Court’s decision seemed to have been much
welcomed by a broader majority of the respective countries’ populace.
In both cases, however, the impeachment was unpopular to
begin with. Thus, by confluence of events, the decisions of both
courts were aligned with popular opinion. The situation where the
Court’s ruling in a popular-opinion-sensitive impeachment issue has
not yet confronted either country. It is in such a scenario that the
question  of  accountability  becomes  more  focused  and  vital.
2 . Source  of  Authority
Another difference lies in the source of the reviewing court’s
authority to review impeachment proceedings. Unlike the German and
South Korean Constitutions, the Philippine Charter did not expressly
vest the Supreme Court with jurisdiction over impeachment issues.
Such jurisdiction was derived from the grant of judicial review and
the imposition of certain limitations on the power to impeach by the
fundamental  law.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 7 7
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
In the South Korean model, the source of the Constitutional Court’s
authority to review impeachment cases is explicit and clear from the
provisions the South Korean Constitution. The same cannot be said for
the Philippine model, where the exercise of judicial review over
impeachment proceedings stands, not from any express grant by the
Constitution, but rather, on a “context of xxx constitutional refinement
and jurisprudential application of the power of judicial review.”
108
I V. “ JUDICI A L I Z AT ION   OF     POL I T ICS ”
While the inclusion of impeachment questions within the coverage
of judicial review might seem novel when considered from the backdrop
of traditional American constitutional thought, a closer look at global
trends indicates that this incursion of the judiciary in a realm customarily
regarded as political is not so idiosyncratic or unusual.
Several writers have noted trends around the world of Courts
intervening in issues that have long been considered as political
109
 – a
phenomenon that Russel Miller termed as “judicialization,” and which
he concretely defines as a “shift in the balance of power between law and
politics xxx [in] favor [of] judicial institutions over representative and
108
Francisco, at 129.
109
See R. Hirschl, Resituating the Judicialization of Politics: Bush v. Gore as a
Global Trend, 15 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE No. 2, 191-218 (July
2002), accessed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=337245, on
14 Jan. 2005, 6:02 pm; R. A. Miller, Lords of Democracy: The Judicialization of “Pure
Politics” in the United States and Germany, Washington and Lee Law Review, (cles/
mi_qa3655/is_200404" Spring 2004), accessed at http://www.findarticles.com/p/
articles/mi_qa3655/is_200404/ai_n9391888#, on 14 January 2005, 6:05 pm.; R.
HIRSCHL, TOWARDS JURI S TOCRACY:  THE ORIGINS AND CONS EQUENCE S OF THE NEW
CO N S T I T U T I O N A L I S M  ( 2 0 0 4 ) ,   a c c e s s e d   a t   h t t p : / / p a p e r s . s s r n . c o m / s o l 3 /
papers.cfm?abstract_id=503284, on January 2005, 6:03 pm; S. Issacharoff,
Constitutionalizing Democracy in Fractured Societies, 82 Texas Law Review 1861
(2004), accessed at http://ssrn.com/abstract=547425, on 14 January 2006, 6:10 pm;
R.H. Pildes, The Constitutionalization of Democratic Politics - The Supreme Court, 2003
Term, 118 Harvard Law Review No. 29 (2004), accessed at http://ssrn.com/
abstract=669068, on 14 January 2006, 6:08 pm.7 8 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
a c c o u n ta b l e   [ o n e s ] . ”
11 0
T h e   r e s u l t   i s   w h a t   R a n   H i r s c h l   c a l l s
“juristocracy,”
111 which is characterized by “judicial empowerment
through the constitutionalization of rights and the establishment of judicial
review xxx.”
112
 Richard Pildes, on the other hand, adopts the phrase
“constitutionalization of democratic politics” – wherein “issues concerning
the design of democratic institutions and the central processes of democracy
have increasingly become questions of constitutional law xxx.”
113
Regardless of the term used or the jargon employed however, the
reference is clear – these writers argue that there is a global trend of massive
judicial empowerment – such that the arms of the judiciary now stretch
to issues that have been traditionally left to the political and popularly-
chosen branches of the government.
The manifestations of this phenomenon are myriad and variegated.
Broadly classified, they fall into either: (1) “basic constitutionalization” –
i.e., the adoption of a constitution; or (2) the adoption and/or expansion
of judicial review into areas previously beyond its rule.
Hirschl focuses his analysis of juristocracy more on the first category.
Thus, in his book “Towards Juristocracy: The Origins and Consequences of
the New Constitutionalism,” his four (4) case studies of Constitutional
revolutions involve: (1) the adoption by Canada of a Charter of Rights
and Freedoms in 1982; (2) the enactment in New Zealand of a Bill of
Rights Act in 1990; (3) the adoption in Israel of two new Basic Laws
110
 R. A. Miller, Lords of Democracy: The Judicialization of “Pure Politics” in the
United States and Germany, WASHINGTON AND LEE LAW REVIEW 1 (Spring 2004), accessed
at http://www.findarticles.com/p/articles/mi_qa3655/is_200404/ai_n9391888#, on
14 January 2005, 6:05 pm [hereinafter Miller, Judicialization].
111 R. HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE
NEW CONS T I TUT IONA L I SM 1, (2004), accessed at http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=503284, on 14 January 2005, 6:03 pm [hereinafter HIRSCHL,
JURISTOCRACY].
112
Id., at 2.
113
 R.H. Pildes, The Constitutionalization of Democratic Politics - The Supreme
Court, 2003 Term, 118 HARVARD LAW REVIEW No. 29, 31 (2004), accessed at http://
ssrn.com/abstract=669068, on 14 January 2006, 6:08 pm [hereinafter Pildes,
Constitutionalization].JUDICIAL  REVIEW  OF  IMPEACHMENT ... 7 9
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
protecting a number of core civil liberties in 19923, a final Bill of Rights
in 1996, and a new Constitutional Court in 1995; and (4) the adoption in
South Africa of an interim Bill of Rights in 1993, a final Bill of Rights in
1996, and a new Constitutional Court in 1995.
114
On the other hand, Pildes concentrates more on the second category.
Outside of the United States, he cites the following as manifestations of
the inclinations of constitutional courts towards constitutionalization: (1)
the Irish Supreme Court’s construction of political equality as precluding
the government from attempting to influence voters on proposed
constitutional amendments during referendum campaigns; (2) the
Australian High Court’s decision holding unconstitutional federal
legislation that bans paid broadcast advertising during election campaigns;
(3) the resolution by the European Court of Human Rights and by the
high courts of Spain, Turkey, India and Israel of the issue of a state ban on
certain political parties; and (4) the groundbreaking decision of the
Canadian Supreme Court providing for the legal terms on which a
democratic polity could dissolve itself.
115
Judicialization in the Philippines clearly falls under the second
category – the expansion of judicial review. While the concept is not new
to the Philippine legal system, its operation has been sharply enlarged
under the 1987 Constitution with its expanded definition of judicial power:
Judicial power includes the duty of the courts of justice xxx to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.
116
Indeed, this expanded definition has allowed the court to exercise
jurisdiction not only over issues argued as political – such as, but not
limited to, the validity of the removal by the House of Representatives of
a Congressman from the House Electoral Tribunal on grounds of party
114 HIRSCHL, JURISTOCRACY, at 4.
115
 Pildes, Constitutionalization, 31.
116 CONST. art VIII, § 1, ¶ 2.8 0 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
117
Bondoc v. Pineda, 201 SCRA 792 (1991).
118 Daza v. Singson, 180 SCRA 496 (1989).
119 Manila Prince Hotel v. Government Service Insurance System, 267 SCRA
408 (1997), Hutchison Ports Philippines Ltd. vs. Subic Bay Metropolitan Authority, 339
SCRA 434, (2000).
120
 R. Hirschl, Resituating the Judicialization of Politcs: Bush v. Gore as a Global
Trend, 15 CANADIAN JOURNAL OF LAW AND JURISPRUDENCE No. 2, 191-218 (July 2002),
Abstract, accessed at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=337245,
on 14 Jan. 2005, 6:02 pm.
121
Id.
122
Francisco, at 144 to 149, citing the Record of the Constitutional commission,
Vol. 1.
123 HIRSCHL, JURISTOCRACY, at 7-8.
disloyalty;
117
the validity of the removal by the House of a Congressman
from the Commission on Appointments,
118
– but also over issues
regarded as economic – such as that involving the bidding processes and
procedures.
119
This puts Philippine judicialization under at least two (2) of the
four (4) areas identified by Hirschl as new areas of high Court
interventions, namely: (1) “core executive prerogatives”
120
and (2)
“political transformations, regime change, and electoral disputes.”
121
The impetus for this expansion of judicial power is of common
knowledge. The 1986 Constitutional Commission, reeling from the abuses
of the Marcos Regime, and determined to prevent, as much as possible, a
repetition of the same, decided not only to enshrine judicial review in the
Constitution, but to make it a “duty” of the Courts.
122
This places Philippine judicialization under the third scenario of
constitutionalization identified by Hirschl as the “single transition” – in
which “xxx the constitutionalization of rights and the establishment of
judicial review are the by-products of a transition from a quasi-democratic
or authoritarian regime to democracy.”
123
This answers the origins, causes and character of judicialization,
Philippine-style. Yet one important question remains – what effect, if any,
does such judicialization have in Philippine society?JUDICIAL  REVIEW  OF  IMPEACHMENT ... 8 1
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
124
Accessed at http://www.sws.org.ph, on 26 January 1:00 pm.
125
Id.
I suggest that beyond its primarily legal consequences, this
judicialization has the effect of providing a stabilizing factor in Philippine
politics.
It requires no extended discussion to say that Philippine politics is
not at its most glorious state. Former President Joseph Estrada – the third
President to be elected after the twenty-year long authoritarian rule of
Former President Ferdinand Marcos – was forced out of office over a
jueteng scandal. The legitimacy of our current President, on the other
hand, is constantly questioned, and continues to be severely shaken by
what came to be known as the Garci tapes. This has translated into growing
public satisfaction with the institutions of Government and the people
running the same. Amidst this however, the Judiciary has emerged to be a
bulwark of democracy, the one remaining institution consistently trusted
by the people.
For instance, in the Fourth Quarter 2005 Survey of the Social
Weather Station, House Speaker Jose de Venecia’s net approval rating is
0% (37% dissatisfied and 37% satisfied). In marked contrast, then – Chief
Justice Hilario Davide had a +10 approval rating (42% satisfied and 31%
dissatisfied).
124
 Institutional-approval ratings reflect the same trend. For
the national administration, net approval rating was at –15, while for the
Cabinet, it was –6. The approval rating for the House of Representatives
was at a positive, though low +7. Again, in stark difference, the approval
rating for the Supreme Court is at +12.
125
It is not surprising then, that the people have come to look upon the
Supreme Court as a check on the excesses of the political officers – even if
the issues involved are traditionally regarded as political. It is in this
backdrop that numerous sectors welcomed, approved and even cheered
the Francisco decision for protecting a well-loved Chief Justice from the
politically-motivated attacks of unpopular politicians.8 2 FRANCO  ARISTOTLE  G.  LARCINA
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
CONCLUSION
While this article identifies the imperfections of the ruling in
Francisco, and the many resulting legal quandaries it pose, it is also
recognizes that judicial intervention in impeachment cases is not
only not totally unheard of, it is not necessarily wholly undesirable.
As Berger noted, “although impeachment was chiefly designed to
check Executive abuses and oppressions, there was no thought
of delivering either the President or the Judiciary to the unbounded
discretion  of  Congress.”
126
The problems that Francisco spawned seem not to stem so much
from an inherent antagonism between the institutions of judicial
review and impeachment, as from the as of yet highly-undefined-
and-unchartered interplay between judicial review and impeachment,
such that Philippine laws provide no solution for most of the possible
consequences that judicial review over impeachment can bring.
The blame for this indefiniteness and vagueness seems to lie
squarely on the broad and sweeping grant of judicial review in the
Constitution. This grant is perfectly understandable, and indisputably
laudable; however, its innumerable consequences, the myriad areas
that it affects, and its countless ramifications on our democratic institu-
tions have been largely unanticipated. Thus, our laws and institutions
are not prepared to deal with the numerous scenarios that the exercise
of judicial review over issues previously beyond its pale brings about.
Until such time that our legal framework has been adjusted to
deal with this judicialization, both our judicial and political insti-
tutions must deal with each case as it comes. This is precisely what
happened in Francisco. Admittedly, the Court’s resolution of the case
was acceptable to most Filipinos, and our democratic institutions
continued to move on, without any damage resulting from Francisco.
Yet many of the issues that spring from the exercise of judicial review
over impeachment proceedings, while potentially explosive, remain
unanswered.
126
BERGER, CONSTITUTIONAL PROBLEMS, 117-118.JUDICIAL  REVIEW  OF  IMPEACHMENT ... 8 3
UST  LAW  REVIEW,  Vol.  L,  AY  2005–2006
And for as long we live in this seeming uncertainty, our trust
must ultimately be reposed on the people who occupy high positions
in our democratic polity. We must hope that those in the political
branches would continue to exercise their powers in the manner
contemplated by the people when these powers were granted to them,
and we must rely on the wisdom of the Supreme Court to exercise its
awesome power of judicial review in a judicious and circumspect
manner.
And in each and every politico-legal question that confronts
our democratic institutions, we should always keep in mind the
words of Ronald Dworkin in his work, “A Bill of Rights for Britain:”
Constitutional political events – whether these are formal
like the Magna Carta and the Revolution or informal like
the New Deal in America – define a nation’s character in
symbolism that cannot be fully appreciated at the time.