Passion For Reason

Flip-flopping on judicial restraint

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Listening to the crescendo calling on the Supreme Court to defer to the Senate on impeachment matters, it seems it is not just Chief Justice Renato Corona who can be charged with flip-flopping on judicial decisions. What the anti-Corona camp forgets is that the controlling rule here is the decision where the Supreme Court actually stepped in and altogether stopped the 2003 impeachment of Chief Justice Hilario G. Davide. They are asking the Court to abandon settled doctrine and adopt judicial restraint. I agree that they must, but they must do so frankly.

Instead today the anti-Corona forces go into all sorts of intellectual contortions to distinguish the Davide and Corona cases, arguing as lawyers are wont that the two cases are not “on all fours” with one another. Their distinctions are too forced (“pilit”) and sound hollow. What they should do is to boldly confront the rule laid down for Davide, rather than pretend that they can be reconciled without having to reverse the earlier ruling in the Davide case.

Anything less would be less than candid about what we’re actually doing here, which is to correct the doctrinal fallacy of judicial overreach and to restore the political branches of government to their role as the voice of the sovereign people. Anything less would repeat precisely the tendency to flip-flop on legal doctrines depending on whose ox is gored, to treat laws as inert weapons to hurl at the enemy of the moment, rather than as a structure for moral judgments that can acquire a life of their own. Anything less will in fact erode the rule of law, because we adopt one rule to favor a chief justice that we like and swing to the opposite rule to nail a chief justice we dislike. “Weather-weather lang” is understandable among politicians but not among lawyers serious about their discipline.

In the Davide case, the House invoked its “exclusive power to initiate all cases of impeachment.” In the Corona case, the Senate says it is the “sole power to try and decide all cases of impeachment.”

In 2003, the House argued “that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review.”

Supporting that position, Sen. Nene Pimentel contended before the Court that 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.”

How can we miss the resemblance to arguments we hear today? Yet in 2003 the Court, speaking through Justice (and now Ombudsman) Conchita Carpio-Morales, roundly rejected these views.

“[T]hey call upon this Court to exercise judicial statesmanship [saying] that ‘whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride. … But did not the people also express their will when they instituted th[ose] safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits … through the power of judicial review’.”

The Court did not stop there. Not only was intervention their power, it was their bounden duty! “The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined …..  Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred. Otherwise, this Court would be shirking from its duty.”

Some people said the Judiciary should shy away and avoid a constitutional crisis. Did that stop the Court? Absolutely not! “Such an argument, however, is specious, to say the least.  [T]he possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis.”

I had earlier quoted the author Raoul Berger on this point, and I quote him again. He asked: Is Congress the “final judge of the boundaries of its own powers [as if] Congress was left free to rampage at will”?

“It is hardly likely that the Framers, so devoted to ‘checks and balances’ … would reject a crucial check at the nerve center of the separation of powers. They scarcely contemplated that their wise precautions must crumble when Congress dons its judicial hat, that then Congress would be free to shake the other branches to their foundations … [T]here is no place in our constitutional system for the exercise of arbitrary power. The Sole Power to try affords no more exemption from that doctrine than does the sole power to legislate ….”

In the Davide case in 2003, I was amicus counsel together with Sen. Jovito R. Salonga, and we both called on the Court to rein in its power of judicial review. That was some eight years ago, and maybe the time wasn’t ripe for it. Today the timing is perfect to push for judicial restraint. The Judiciary has lost its sheen, while a popular president bent on fighting corruption gets solid public approval ratings certified by SWS.

The Davide case gave supreme power to the courts and, in the classic critique, “dwarf[ed] the political capacity of the people, and deaden[ed their] sense of moral responsibility.” Today the impeachment trial gives impetus to the new approach that is called abroad as “popular constitutionalism” that exalts the power of the people to give life to their constitution.

(Comments to passionforreason@gmail.com)

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