Turmoil in the SC

What should we make of the “indefinite leave” forced on Chief Justice Maria Lourdes Sereno? The news, when it landed, was confounding and concerning; it seemed like a serious precedent-setting step. On reflection, the decisions reached at the Supreme Court’s weekly en banc session on Feb. 27 are even worse than first feared. They are grievous errors that tend to undermine the integrity of the Court as a co-equal and independent branch of government.

There must have been a vigorous give and take at the Tuesday en banc session. The statement read on Thursday on behalf of 13 justices (one other justice was on leave) focuses on the outcome of the en banc session, and shows all the justices coming together to present a common front. We should not be surprised; having taken the unprecedented step of forcing a sitting Chief Justice to go on indefinite leave, the justices must have realized that anything less than unanimity, anything that would hint at factionalism among the justices, would be worse, even calamitous, for the Court.

The difference between the number of justices who called on Sereno to go on leave and the number of justices who signed off on the statement explaining her indefinite leave is not at issue. To be sure, it is only a matter of time before the dynamics at work during the en banc session come to full light; that complete picture will be interesting in itself, and as a portrait of collegial decision-making under severe pressure.

What is at issue is the role of the Court majority in the sidelining of its minority chief, at the time she was under sustained attack from the two political branches of the government. News reports have even identified Associate Justice Marvic Leonen, a darling of progressives and a champion of judicial independence, as one of those justices. His name is being used as a deodorizer; he will have to answer pained questions about his role as an unlikely Brutus to Sereno’s Caesar.

But his participation on Tuesday, or even the unanimity of the justices in the Thursday statement, must be understood in the context of the impeachment campaign against Sereno. That is the primordial fact, out of which everything else has emerged (or oozed).

The Duterte administration has sought to remove Sereno from her post almost as soon as it took office. Since November last year, or for the last four months, the House of Representatives has conducted a fact-finding expedition in the guise of an impeachment inquiry, seeking, and failing to produce, credible and incontrovertible evidence of impeachable offenses.

The post-en banc statement attributed to Associate Justice Samuel Martires elides this truth. “I don’t want the two other branches of government to use the coercive power of impeachment against the Court. We have to protect the integrity of the Court. Otherwise, democracy is in peril. Let the cleansing start from within, not without.” But Martires was one of seven sitting justices who testified at the House committee hearings; he and the others played a key role in allowing the coercive power of impeachment to work against the Court, from without—and even before an actual impeachment. He and other justices are deluding themselves if they think that forcing Sereno to go on leave protects the integrity of the Court.

That the en banc confrontation with Chief Justice Sereno took place on the same day as the last hearing of the House impeachment inquiry should not be lost on us. Whatever reasons the justices may have had to force Sereno’s hand would be judged by history.