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.”