Separation of powers

That photo showing President Aquino  meeting with his allies in the House of Representatives just after a majority of its members signed the impeachment complaint against Chief Justice Renato Corona might at first glance give the impression of a conspiracy hatched by two branches of government against one.  Clearly, there was coordination between the two, but not a conspiracy—they are not hiding it. Both the President and the leadership of the Lower House appear to be taking full responsibility for their actions.  These are not without risks: If the public disagrees with them, they will be punished in the next elections.  If they take legal shortcuts, they will be stopped by the Supreme Court.  That is how the system works.

It is not the first time that a chief justice of the Supreme Court has faced impeachment.  In June 2003, former President Joseph Estrada, who earlier had been ousted from the presidency, filed impeachment charges against Chief Justice Hilario Davide Jr. and seven associate justices of the high court. The House dismissed the complaint for being “insufficient in substance.”  Four months later, in October 2003, young legislators from the Nationalist People’s Coalition (NPC) led by Gilberto Teodoro Jr. and Felix William Fuentebella filed another impeachment complaint against Davide.  This time, the complaint carried the signatures of more than one-third of the House members, the minimum number needed to send a complaint to the Senate for trial.

Despite the numbers, Davide was not impeached.  The case never reached the Senate.  Before the resolution could be formally transmitted, the House adjourned for more than two weeks, allowing Davide’s lawyers to go to the Supreme Court to question the complaint on constitutional grounds.  The challenge was anchored on the constitutional provision that permits only one impeachment proceeding to be initiated against a public official within one year.  Defenders of Congress, in turn, raised the issue of separation of powers, arguing that the high court should restrain itself from ruling on the petitions because they involved a “political question” beyond the scope of its powers.

The Court went ahead and recognized the petitions, dismissed the “political question” argument, and ruled that the filing of the second impeachment case against Davide was unconstitutional for being filed within the same year as the first.  We came close to a constitutional crisis that year.  The magistrates of the Supreme Court asserted their power of judicial review, while the members of Congress insisted on their political prerogative to impeach erring public officials.

Then President Gloria Macapagal-Arroyo initially distanced herself from the controversy.  But, later, seeing where public opinion was going, she went to a prayer rally for the beleaguered Davide in front of the Supreme Court to signal her sympathy for the man who had sworn her into the presidency at the height of Edsa 2. The high court’s decision turned out to be beneficial to her when it was her turn to fight the impeachment complaints filed against her. These were all dismissed on the same technical ground that only one complaint could be initiated against the president within a year.  Every year, her people made sure that a bogus complaint, working as a vaccine against impeachment, would be filed ahead of everyone else’s.

But it was not technicality that saved the day for Davide as much as public opinion itself.  Davide enjoyed a reputation as an honest, competent and fair public servant.  It was President Cory Aquino who appointed him as a member of the Supreme Court in 1991.  He had served in the Court for seven years before President Estrada named him chief justice in 1998.  Setting aside all personal debt of gratitude, he presided with admirable impartiality over the impeachment court that tried Estrada in December 2000.  The Ramon Magsaysay Awards Foundation recognized his qualities as a public servant in 2002 by conferring on him the distinguished award for government service.  His detractors in the Lower House who accused him of misusing the Judiciary Development Fund found themselves at the receiving end of public opinion.  The public questioned their motives.

In the end, disputes of this nature are settled on the basis of public trust, which is not the same as being merely popular.  Popularity can win votes, but only trust can confer respect.  Trust is also different from legality.  Legality can win cases or keep a man out of prison, but it will not necessarily earn him public esteem.

As Chief Justice Renato Corona ponders his current situation, it may be useful for him to ask whether, beyond the legal arguments at his disposal, he could call upon a reserve of public esteem to help him fight his battle. He will need it.  For impeachment is not just a legal battle; it is also very much a political one precisely because the question of public trust lies at its core.  This is different from the way the Supreme Court should work, where only facts and norms must reign, and the political must be kept out.

The German political theorist Carl Schmitt once wrote: “All significant concepts of the modern theory of the state are secularized theological concepts.”  There is thus nothing weird about separation of powers; it is borrowed from the religious idea of the Trinity.  Three co-equal branches of government exercise public power, each according to its distinct mandate. Yet, sovereign power comes from only one source: the people.

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