Home » To dismiss or eliminate: How to get rid of a public official

To dismiss or eliminate: How to get rid of a public official

Accusation and removal are the words of the day. The fault lies in the inability of the Democrat to accept the victory of Donald Trump in the 2016 elections. However, despite being a popular topic on social networks, political judgment is a concept that many less understand.

In the Philippines, the political trial is found in Article XI (2) of the Constitution:

"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, by political trial and conviction for guilty violation of the Constitution, treason, bribery, grafting and corruption, other serious crimes or betrayal of public trust. All other public officials and employees may be removed from office as provided by law, but not by removal. "

The big argument in 2018 was whether Maria Lourdes "Meilou" Sereno could be removed from the Supreme Court by means other than the accusation. This column was almost alone arguing: yes.

One reason had to do with art. The "May" of XI (2) (in the constitutions of 1935 and 1973 was "must") and the absence of the word "alone", which indicates a language that does not exclude other means of elimination. In a gratifying way, the decision in Republic vs. Serene apparently confirmed that position:

"The provision uses the permissive term" may "which, in legal construction, denotes discretion and cannot be interpreted as a mandatory effect. We have always argued that the term" may "is indicative of a mere possibility, an opportunity or an option. The concessionaire of that opportunity has a right or faculty that has the option to exercise. An option to eliminate by removal admits an alternative way of effecting the elimination.

In fact, when one looks at the other equal branches, there are different ways of office removal available.

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Of course, there is the best known provision of Article VI (11), whereby members of Congress can be arrested for crimes punishable by more than six years in prison.

But leaving aside said Article VI (11), the point to be emphasized is that the political trial and other forms of removal are not of the type of punishment to the official.

The accusation or expulsion are not penalties imposed for a crime (which may come later in another procedure), but rather to prevent the said official, who occupies a position of public trust, from continuing to have the capacity to harm.

Therefore, each Chamber may "punish its members for disorderly conduct and, with the concurrence of two thirds of all its members, suspend or expel a member." (See Article VI of the Constitution).

And the ways to dismiss a president are endless.

Art. VII is full of alternative modes. In addition to death, resignation, incapacity and expiration of the mandate (as well as, of course, by political trial), the cabinet can also get rid of the president through art. VII (11):

"Whenever the majority of all members of the Cabinet transmit to the President of the Senate and the President of the House of Representatives their written statement that the President cannot perform the powers and duties of his office, the Vice President shall immediately assume the powers and duties of office as interim President.

For judges of the Supreme Court? In addition to the political trial, there is death, resignation and retirement at 70 years of age.

But the Constitution is apparently open to other modes: art. VIII (11) requires that a judge remain in office "during good behavior until they reach the age of 70 or become unable to fulfill the duties of their office." That provision alone suggests three different causes and modes of separation from office.

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Then there is art. VIII (7 (3)) ("A member of the Judiciary must be a person of proven competence, integrity, integrity and independence"), which could be interpreted as continuous requirements.

However, keep in mind that both Congress (in front of its members) and the Executive (the cabinet in front of the president) can dismiss the relevant official when he is apparently not complying with his oaths.

This should logically mean that the Supreme Court (as an equal branch of the government) would also have the ability to "clean the house" on its own, eliminating by vote in bank any member "unable to fulfill the duties of his office. "or not of" good behavior "," competence, integrity, probity and independence ".

Finally, there is the possibility that political judgment is a "political process" and, therefore, legal principles, rules of evidence, fair play and logic do not apply. It is not true and they do.

Senators before being part of a court of political judgment must take an oath (or affirmation, see Art. XI (3 (6))). That oath requires them to impart "justice," which is clearly a legal standard.

The point to remember is that all three branches are equal. To facilitate the political trial, justifying it as a purely "political" exercise, the other two branches will be at the mercy of the legislature.

This turns our political system into a parliamentary form of government, which in no way is consistent with the republican presidential system provided for in our Constitution.

Jemy Gatdula is a senior member of the Philippine Foreign Relations Council and a law professor at the Philippine Judicial Academy in constitutional philosophy and jurisprudence.

https://www.facebook.com/jigatdula/

Twitter @jemygatdula

Source: https://www.bworldonline.com/to-impeach-or-remove-how-to-get-rid-of-a-public-official/

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