It is generally conceded that impeachment is more of a political than a legal process. However, the Integrated Bar of the Philippines (IBP), supposedly the official organization of lawyers in the Philippines, has issued a statement raising an interesting legalistic claim regarding the impeachment of Chief Justice Renato Corona. The statement argues that while the impeachment process itself against Corona is legal, some of the grounds relied on, particularly those which question the opinions of the justices applying the Constitution in actual cases, constitute an assault on the judiciary because impeachments based on such grounds amount to the House of Representatives arrogating unto it the power to interpret the law or the Constitution, a judicial function that belongs to the Supreme Court in our tripartite system. What the IBP is saying is that for the House to act as the “higher interpreter of what the law is” or of those decisions of the Court that have become the law of the land via the impeachment process is to allow judicial review to be “despoiled” and the doctrine of judicial supremacy to “completely crumble and fall apart.” And by force of the same argument, justices may not therefore be impeached because of their opinions, more so where they arrived at those opinions or decisions as a collegial body.
There is a ring of plausibility in the IBP’s claim. After all, in the long history of constitutional contestation in the United States, which handed down to colonial Philippines its constitutional system, there has been only one justice of the US Supreme Court (Justice Samuel Chase) who has been impeached for his judicial acts or opinions. Plausible, maybe, but not truthful, legally. Let me explain.
It should be noted first of all that there are very significant differences between the grounds for impeachment in the US Constitution (“treason, bribery or other high crimes and misdemeanors”) and those provided in the Philippine Constitution (“culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust”). That “culpable violation of the Constitution” and “betrayal of public trust” are ostensibly not provided as impeachable offenses in the US Constitution could be given as one explanation why there is only one case in the United States where a Supreme Court associate justice has been impeached for his judicial act or decision. This may be so because where for instance a justice has committed a wrongful (culpable) distortion of the Constitution, it would be as arduous a proposition to force such violation into the offense of “bribery” or “treason,” both of which have technical definition in criminal law, as to squeeze it into the more amorphous “other high crimes and misdemeanors.” Nonetheless, it does not deny the US Congress the checks and balance mechanism of “coordinate review” of judicial acts via the impeachment process because such quasi-judicial authority of congress, albeit essentially political, in the nature of the power of impeachment is expressly provided in the US Constitution.
It is well to underscore that impeachment, far from being a mere scarecrow, is the one potent rebalancing countermeasure against the myth of judicial supremacy, now unfortunately an honored doctrine in American Constitutional Law. It needs repeating however that while impeachment is expressly constitutionally provided, judicial review and judicial supremacy are mere judicial creations, the former having been enunciated by Chief Justice John Marshall in Marbury v. Madison (1803), and the latter more recently by Chief Justice Earl Warren in Cooper v. Aaron (1958).
By comparison, there is no mistaking that the authorization granted to the Philippine Supreme Court under the Constitution to hear “all cases involving the constitutionality of a treaty, international or executive agreement, or law” is an express grant of the power of judicial review.
Additionally, the Philippine Constitution defines judicial power as including “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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 (italics mine). This has come to be called as the expanded certiorari jurisdiction of the Supreme Court.
All the foregoing notwithstanding, I advance the position that since members of the Philippine Supreme Court are liable to be removed by impeachment for “culpable violation of the Constitution” and that these violations are likely to be committed in deciding actual cases, it follows that members of the Court, individually or collegially, or the Court itself, cannot be considered as the sole agency responsible for the interpretation of the Constitution. For, when the Impeachment Court reviews the questioned decisions of justices to determine whether they are guilty or not guilty as indicted for “culpable violation of the Constitution,” the senators acting as judges of the Impeachment Court are equally responsible for the interpretation of the Constitution.
This is not the first time I have suggested that justices of the Supreme Court are liable for impeachable offenses committed in deciding cases. For instance, critiquing the Court’s decision in Neri v. Senate Committee and in Senate v. Ermita, I have grappled in wonderment with the question of why the Court had missed twice the constitutional meaning of “congressional oversight,” thus:
Oversight, which comes in many other forms than congressional inquiries in aid of legislation, takes up a lot of legislative time and is often observed as being improperly used for grandstanding purposes or gaining sound bytes by some ambitious politicians. It is perceived as counterproductive sometimes or perhaps most of the time. One thing is however certain: the scope and meaning of legislative oversight are not confined only to the so-called “question hour” under Section 22, Article VI of the Constitution as the Supreme Court had boldly pronounced in Senate v. Ermita and then reiterated in Neri v. Senate Committee.
How could the Supreme Court miss it twice?
The first time, it is possible the Court may have committed an “error of judgment” which is not punishable per se; the second time, it is as not as easy to justify the voluntary ignorance as other than a political decision by a partisan court, a judicial misconduct liable to rise to the level of an impeachable offense.
When the Supreme Court issued a restraining order in the MoA-Ad (Memorandum of Agreement on Ancestral Domain) case, I have articulated the following:
I have argued that it is “blatantly irregular for the judiciary (the supposedly apolitical, publicly unaccountable and the least informed of the three branches of the government) to step in at the crucial negotiation stage for the Mindanao peace settlement or, in the guise of judicial review, actively participate in such a decidedly political matter by constraining the President, temporarily or permanently”; moreover, I have advanced that “even the senate (the president’s treaty-making partner under the Constitution) cannot meddle with this (negotiation) aspect of treaty making or of forging executive agreement in the same way that the court cannot interfere with the decision of congress or the senate to introduce ultra constitutional resolution [e.g., Senator Pimentel’s proposal for federalism] it deems appropriate to institute structural or systemic change in governance.”
The basis of the presidential power to conclude peace (or to wage war) is her commander- in-chief powers under the Constitution which demand great deference from the courts. By precipitously issuing a TRO against the executive in the matter of negotiating to conclude the MoA-AD, the Supreme Court has acted out of bounds and trifled unconstitutionally with a prerogative that is exclusively presidential.
Today, despite President Arroyo’s announcement during her SONA 2008 that “differences on the tough issue of ancestral domain were resolved” the night before her SONA address (when the MoA-AD was initiated by the parties), Chief Presidential Legal Counsel Sergio Apostol is daring to claim that the GRP peace panel was only “given authority to negotiate but not full authority to sign” and therefore indicating that the MoA-AD is invalid the government panel having “had no authority to sign.”
The bold presidential flip-flopping notwithstanding, the newly announced intention of the President to set aside the MoA-AD pertains to no less than another executive prerogative the exercise of which the Supreme Court can only interfere with on unconstitutional authority.
In short, even if the Supreme Court decides, in the cases before it, that the MoA-AD is constitutional, it cannot by our Rule of Law command the President or her alter egos to proceed with the agreement should she now choose to explore other alternatives or simply decide in a different way, e.g., flip-flop completely to pursue a new policy of “disarmament, demobilization and rehabilitation” or otherwise renege unilaterally on the government’s commitments, putting at naught all the time, efforts and emotions invested by both parties in the MoA-AD.
Again, no other possible conclusion can legally and constitutionally be had than for the judiciary to respect the presidential prerogative because the decision to resume hostilities or conclude peace with MILF belongs to the President alone and none other. Hence, any attempt by the Supreme Court to constrain this presidential prerogative either by TRO or by permanent injunction constitutes arrogation of unconstitutional powers that may amount to impeachable offense on the part of the individual justices.
(Note: My extended critique of the SC decision in Province of North Cotabato v. GRP declaring the MoA-AD unconstitutional can be accessed here. You could also check The other autocrats for another discourse on the subject.)
In Neri v. Senate Committee and in Senate v. Ermita, the Supreme Court has acted as a super-legislature but the political will was nowhere at hand then to resort to the impeachment process. In the MoA-Ad case, the Court has assumed to be a super-executive but public opinion was unfortunately supportive of its ruling. Since neither the political branches of the government nor the people have been incensed by either decision, the Court simply got away with it.
But a clearer example of culpable violation of the Constitution, if only to drive home the point, would be a situation where the Court in an actual case decides to deny a woman to be a judge for the reason that being a woman she lacks the independence to be a member of the bench. The justice writing such a preposterous opinion as well as the justices concurring in it should rightfully be considered as removal by impeachment for palpable acts in violation of the equal protection clause. Should the same justices, who the Constitution requires should be “of proven competence, integrity, probity, and independence,” if shown to have culpably abetted through a judicial order the attempted escape of an individual from the processes of the law, be similarly impeachable?
The Constitution provides, and very wisely so, that the Senate, and none other, has “the sole power to try and decide all cases of impeachment.” I would go further to say that within that limited sphere the Senate is in fact the sole institution responsible for the interpretation of the Constitution with finality. The implication of this position is that the Supreme Court may not use its so-called expanded certiorari jurisdiction to overturn the verdict of the Impeachment Court upon any pretext of grave abuse of discretion on the part of the Senate. To do so is to render impeachment as a check and balance mechanism entirely nugatory and, as judicial and congressional powers clash in such an absurd and fruitless runabout, it will inevitably lead to a constitutional crisis.
It goes without saying that when the Senate tries and decides impeachment cases involving members of the Supreme Court, it should not be seen in any way as demanding, contrary to the warning of Ateneo University law dean and the Court’s favorite amicus curiae Fr. Joaquin Bernas,*1 that the justices “capitulate . . . and yield what is constitutionally theirs” but acting so merely, just as when the Court normally decides cases brought to it, in accordance with the authority constitutionally allocated to it as the Impeachment Court.
Yet, what if the Senate acting as the Impeachment Court has in fact abused its discretion, is there no review process or corrective relief available anymore? There is, obviously, because unlike the justices of the Supreme Court, the two houses of congress and the President are directly accountable to the people and therefore subject to their ultimate review as the final arbiter, to whom the Constitution belongs.
__________
*1 Bernas, in his Philippine Daily Inquirer column of Dec. 19, 2011, seemed to have clarified himself by insisting that the justices of the Supreme Court may be “(disciplined) for treason, bribery, graft and corruption, culpable violation of the Constitution, other high crimes or betrayal of public trust . . . but not for collegial decisions with which the Congress disagrees.”
Popularity: 2% [?]
Abe, anyone, like you and I, has the right to interpret the law or the constitution and apply it to a given situation but at the end of the day, between your opinion or mine and the decision of the Supreme Court, it is the latter that has to be followed, otherwise we make each one of us the higher interpreter of the law which should not be the case. If the Supreme Court does not have the last say in interpreting the law, and it’s basically to each its own, there will be chaos I think. Do you like that to happen?
Phil,
While in effect the claim could be that the arguments I have presented in my critique of the two SC decisions are legally superior to those stated in the decisions, I certainly don’t mean them to be binding on anyone, much less on the highest court of the land. They are of course intended to persuade, and maybe gain adherents from those in a better position to countervail what I believed to be constitutionally untenable decisions of the SC. Now, if for example the required number of Impeachment Court judges agree with the logic of a certain argument and in fact relied upon it in their decision, what I am advancing furthermore is that such decision of the Senate being invested with the SOLE power to try and decide all cases of impeachment is final, and the SC is precluded from taking cognizance of any case that may seek to reverse, or interfere in, the Senate’s decision. Only the people in their great wisdom can hold the senators accountable for their decision, and the people may do it by either voting out of office those senators who they think made the wrongful decision, or approve a constitutional amendment to correct it.
Few points may be worth repeating, namely:
1. Impeachment is legal even constitutional although the whole exercise in terms of ‘content’ and ‘context’ is political
2. The tripartite system that supposedly demarcates the limits of – the Executive, the Legislature, the Judiciary – in the final analysis is a whole aggregate of what truly reigns supreme and this is the electorate that could boot out of office congressmen or senators who in turn could boot out justices of the Supreme Court who in turn could boot out officials of the Executive
3. In the end, it is not so much that the supremacy of the Supreme Court is a myth any more than the revered principles of ‘check and balance’, ‘separation of powers in the three branches of government’, and ‘co-equality’
4. At various points in history, we hear of super-Judiciary, super-Congress, super-Executive – all in the pretext that the Constitution has to be defended else a constitutional crisis sets in. And yet, however badly this whole bureaucracy is ruled or governed, we hardly can make the erring public officials truly accountable much less culpable engulfed as we are with the culture of ‘super-impunity’. Has anyone left the key?
5. A hurried reading of the paid ad of the Integrated Bar of the Philippines tells me of a case of ‘neither here nor there’, call it Catch-22, call it ‘logical paradox’, call it whatever you will
6. The matter on whether Supreme Court can decide as an individual, meaning just the Chief Justice or collegial, meaning the court en banc – can be used as a convenient scapegoat. Truly, the whole is greater than the sum of its parts
7. Abe here articulated some points that future legal scholars should open new lines of investigation to.
abe,
may i ask for your opinion on the expanded judicial review of the impeachment process as spawned by Francisco v. HOR in 2003 (Davide Impeachment) and its possible bearing on the alleged UNverified Complaint against Corona by Tupas et al?
Baycas,
I have had the chance to analyze the Francisco decision before. Here’s what in part I have written relative to your question:
__________
What looms ahead is the disturbing prospect of a growing, expanding and dominating High Tribunal whose members could now hold office during “good (or bad) behavior until they reach the age of seventy or become incapacitated” without fear of being removed by impeachment.
The power of impeachment, which the Filipino people has wisely delegated to Congress, is now liable, the Supreme Court suggests, to the so-called expanded certiorari jurisdiction of the Supreme Court “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction” on the part of Congress (or any branch or instrumentality of the Government for that matter); and the power of the Court or those of its members to make such determination, supposedly pursuant to a newly appended paragraph of the Constitution (Article VIII, Section 1, paragraph 2), are subject only to their own sense of self-limitation.
The novel (but, on its face, exceedingly awesome) constitutional provision which also defines judicial power, states:
Very early on, the scope of what is considered as awesome and delicate but vastly unsaid powers of the supreme Judges was defended by Alexander Hamilton in The Federalist, No. 78, during the campaign for ratification of the US Constitution, by arguing that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them” unlike the executive who has the “sword” and the legislature the “purse.” According to Hamilton, “The interpretation of the laws is the proper and peculiar province of the courts” which is “so arduous a duty.” The defense was characteristically Hamiltonian. He was countermajoritarian and during the constitutional convention, delegate Hamilton was quite straightforward about his preference for a constitutional aristocracy, if not monarchy. Luckily for the Americans, he convinced no one but himself.
The inevitable watershed in Constitutional Law, which was Chief Justice Marshall’s opinion in Marbury v. Madison (1803)—in turn the progenitor of what was pronounced by our own Justice Jose P. Laurel in the leading Philippine case of Angara v. Electoral Commission (1936)—was borrowed from the above arguments of Hamilton whose idea of the emerging constitutional democracy in America had not been shaped as then by actual experience. Consequently, it did not presage the decision of the US Supreme Court 50 years thereafter in Dred Scott v. Stanford (1857) to the effect that black people were not US citizens, heightening the political tensions that attended the American Civil War and thereupon costing more American lives than World War II, or in Roe v. Wade (1973), which established a woman’s right to terminate her pregnancy (as well as necessarily tens of millions of potential lives—and sure enough, the counting is still on even at this very moment).
Among the first to fear “judicial despotism” was Abraham Lincoln, arguably one of America’s greatest presidents. During his inaugural address in 1861, Lincoln, assailing Dred Scott, said: “ . . . if the policy of the government upon vital questions, affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers . . .. ”
In the wake of the constitutional crisis generated by the impeachment of Chief Justice Hilario Davide, Jr., it would be quite apropos to mull over seriously the Lincolnian angst as this seemingly boundless authority of the Philippine Supreme Court it found for itself was openly brandished—although not relied upon to settle the crux of the matter—in the recently decided Francisco, Jr. v. House of Representatives (November 10, 2003) to dispose of the petitions and bar the impeachment of the Chief Justice. This would mean, I suppose, that even where earnest and commendable efforts are being urged for all concerned to end the crisis, to reconcile and move on, the far-reaching implications of what was pronounced in the decision should not be allowed to go unnoticed even if the actual controversy that brought the matter before the Court is “already over and done with,” and then laid quietly to rest as the definitive future course of Filipino constitutionalism. Instead, opportunity for continuing exchange and examination as regards the arguments advanced, the reasoning relied upon, or the philosophy promoted should be encouraged as part of the country’s on-going catharsis, political or otherwise.
For instance, the Francisco ruling seeks to reaffirm the concurring and dissenting opinion of Justice Reynato S. Puno in Arroyo v. de Venecia (1997) that the newly construed power of the Court is drawn from the sponsorship speech of the proponent of the afore-quoted paragraph 2, Section 1, Article VIII of the Constitution, the former Chief Justice Roberto Concepcion. This proposition must be revisited.
As part of the dialogue being urged here, I wish to state that I have always been an admirer of Chief Justice Roberto Concepcion. I believe he was, and still is, the most eminent Chief Justice the country has ever produced. It was then a privilege of the highest plane to be one of his students in Constitutional Law in my senior year in law during which the “the Chief,” the appellation of respect we fondly gave him, patiently fine-tuned our knowledge of the law as had been laid to us during freshman year in equally grand style by another Constitutional Law scholar, Enrique Fernando, who himself became Supreme Court Chief Justice.
In a sense, our class was fortunate to be privy to some of the Chief’s misgivings with his brethren in robe who participated in the disposition of the martial law cases. He shared with us his estimation that the Marcos regime would have been aborted if only the Philippine Supreme Court were unanimous against the impending dictatorship (just as the US Supreme Court was unanimous against Nixon, forcing for the first time a US president to resign from office). Often there’s this sense of a rare opportunity missed, or trifled with, whenever evidently we understood him to regard the Constitution as an instrument of the Rule of Law, while he saw some of his brethren treating it as nothing more than a political document liable to the compromises among political leaders, partisans, and supposed judicial statesmen. During the entire course, the Chief pounded on his students that “the essence of a constitution is LIMITATION” (Emphasis his). This brief but memorable encounter with a true champion of the Rule of Law tells me that it is unfair to attribute to him in any way the supposed expansion of authority of the Court by virtue of his proposal that is now paragraph 2, Section 1, Article VIII of the 1987 Constitution.
Thus, when former Chief Justice Concepcion as Constitutional Commissioner explained that by his proposal it “means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question”(Italics mine), I do think he meant to address it very clearly to his errant brethren who evaded their duty by taking refuge under the political question doctrine to validate Marcos rule; in that sense, this novel provision unmistakably rather than as a grant of “expanded,” “upgraded,” and “elongated” authority must be considered as just another limitation to the exercise of judicial power. It has to be so because a regime of constitutionalism is nothing less than one of a restrained and limited government, which is precisely the cognitive meaning of the constitutional instruction in the new provision as it defines judicial power as “(including) the duty of the courts of justice . . . 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,” thereby prescribing a limitation to the theretofore externally unchecked judicial discretion—as well as indiscretion. This provision, contrary to the Court’s position, speaks not of power and control but of service and accountability.
To avoid the misplaced assumption of judicial supremacy as a necessary adjunct to the supreme character of the Constitution, which—when placed in the wrong hands—potentially could lead to the pitfall of judicial despotism, this so-styled expanded certiorari jurisdiction under the aforementioned provision of the Constitution must perforce be regarded as subordinate to the long-standing fundamental principle of coequality among the three branches of the government that presupposes reciprocal limitations. It is not enough indeed to pay mere lip service to such a constitutional value as the Court did in Francisco, for, without it being so engrained in the nation’s psyche, it would be too tempting for men and women to treat the Constitution as merely marking out the skeletal form of the government but they will flesh it out as they please.
It goes without further elaboration that if the Supreme Court in Francisco correctly read this time the new provision Chief Justice Concepcion had proposed, it would have been easier for the Court to uphold the republican principle and respect the interpretation of the House of Representatives—under the doctrine of “coordinate construction” whereby the people’s elected representatives have both the authority and competence to engage in constitutional interpretation—of the pivotal “initiate” in the challenged Sections 16 and 17 of Rule V of the House Impeachment Rules. Unfortunately, the Court unnecessarily took up what it supposes as its “activist” role and declared the interpretation of the House unconstitutional.
__________
You can access the full entry here.
Thank you.