Cheap

Life in these islands, some say, is cheap. So is impeachment.

Earlier this week, the House justice committee found “probable cause” to impeach Supreme Court Associate Justice Mariano del Castillo. That “probable cause” is failure to properly attribute a number of paragraphs in one decision to their original authors. Such a failure to perform proper source attribution may be described as plagiarism.

There is no debate about the failure in attribution. Del Castillo had admitted the error and attributed it to a software failure in the computer used by his staff. The Court had looked into the matter and, although concerned about the quality of scholarship that goes into the penning of decisions, did not consider the incident serious enough to merit disciplinary action against the associate justice.

In an academic setting, plagiarism (as distinguished from plain carelessness) is of course very serious matter. In the University where I work, advanced degrees earlier awarded have been withdrawn after plagiarism was established. As a matter of course, a student immediately gets a failing grade or is even expelled if plagiarism is proved. There is software available that makes it easy to spot instances of plagiarism.

However, outside an academic framework, plagiarism does not exist as a crime. The Penal Code does not identify it as a crime. One might be penalized for jaywalking but never for plagiarism.

If someone we know can get away literally holding bags of pirated DVDs despite strict intellectual property rights legislation, one can imagine the difficulty of prosecuting anyone for “borrowing” morsels of prose.

If plagiarism is such a scourge for the whole society, our lawmakers might do us the service of enacting a law making this a crime. They should do that before trying to impeach a justice for committing what is not a crime.

Judging from our experience with the Corona impeachment so far, the congressmen, by stretching the imagination and filling the void with an abundance of speech, will try to extrapolate Justice del Castillo’s error into a high crime. I can almost hear them already, expelling a lot of hot air, arguing that the failure to attribute a number of paragraphs to their scholarly sources demonstrates lack of “probity,” flawed “integrity” and, voila, a clear “betrayal of public trust.”

The issue at hand, I suppose, is the very understanding of what the impeachment process is.

Impeachment is not an instrument made available in all constitutions. In the constitutions where it is available, it is always understood as a mechanism of last resort, deployed when further continuation in office of an official enjoying tenure is deemed injurious to the community. It is on this aspect that an impeachment process is, in the most sublime sense, a political process. But before arriving at the political element, the regular disciplines of due process are presumed to have been observed.

It has been pointed out that the impeachment trial of Chief Justice Corona is unprecedented in the history of the country. It is actually more than that. As far as I could gather, it is unprecedented, period.

In all cases I have found, only presidents have been impeached. In recent US political history, we recall the cases of Nixon (aborted by his resignation) and Clinton (who was acquitted).

It is understandable why impeachment is most usually (if not always) applied to chief executives. Because of the nature of their office, they are capable of bringing the entire political order in jeopardy. The same sort of urgency to remove cannot be said of all other impeachable officials.

In addition to impeachment, presidents may be removed on the grounds of incapacity to fulfill the duties of their office. Incapacity may be due to illness or loss of normal faculties. No trial needs to be held. The two chambers of Congress can remove the president by two-thirds vote.

It is also understandable why impeachment is used so rarely in the constitutional orders where the mechanism is available. This is because it cancels the guarantee of tenure vested by the fundamental law on those who access or are elected to high office.

Tenure is never to be taken lightly. It is an important buttress for the effective functioning of institutions. Tenure helps guarantee an independent civil service, independent constitutional bodies and an independent judiciary. This is the reason why they can only be removed by impeachment.

By that consideration, the impeachment process ought to be also a tall hurdle protecting tenure, which is what regularity presumes. It should never be easy to impeach an official enjoying tenure. The cause for impeachment must always be of such gravity or such urgency that the tall hurdle might be overcome.

If, for instance, we find a president incompetent, such incompetence must be proved before an impeachment court to be of such seriousness that it imperils the life of the nation. Election did guarantee a specific tenure to the president and the impeachment court’s first inclination should be to protect that tenure. Meaning, its first disposition must be to raise the bar for what might be considered impeachable.

Otherwise, responsible officials will not be secure in their tenure. They will not have the independence required to do their jobs well. They will be vulnerable to political pressure. That can never be good for the health of our institutions.

Used recklessly, impeachment can become a cure much worse than the perceived disease it claims to address. It can make tenure meaningless and our institutions vulnerable.

If we allow our congressmen to cheapen impeachment and make a cottage industry out of it, the political order will be injured.