A test of institutional maturity

It is worth stepping back from the personalities involved in the ongoing impeachment trial of Chief Justice Renato Corona if only to appreciate the broad issue of institutional maturity that it poses. Our political system, more specifically Congress, is on test here. Can it discharge its power to impeach without being arrogant and arbitrary? Our legal system, more specifically the Supreme Court, is also under scrutiny. Can it discharge its power of judicial review without appearing vengeful and biased in favor of its embattled chief?

We are only in the first week of what promises to be a long process.  But, it is gratifying to see at this point that both the Senate and the high court are projecting utmost sensitivity in the performance of their respective functions, while unmistakably asserting their prerogatives as separate and co-equal branches of government.

In his opening statement, the presiding officer of the impeachment trial, Senate President Juan Ponce Enrile, made it clear that impeachment is a constitutionally mandated duty of Congress, even as it deviates from its normal legislative function. The proceedings, he assured everyone, will be conducted strictly in accordance with due process. He went on to say that he believed that impeachment was akin to a criminal trial, and that the senators were there as jurors. This analogy did not go unchallenged; it implied that the strict criteria and rules governing criminal trials would be applied. But the point has been made.

Categorical as it may seem, one can read Enrile’s pronouncement not so much as a doctrine but a pledge that he and his fellow senators will abide by the law, and that the Senate will not be turned into a kangaroo court.  This is important. It stays the hand of a possibly resentful Supreme Court that feels that its authority is under assault.

The high court’s recent actions are no less noteworthy. Several petitions questioning the constitutionality of the impeachment of Chief Justice Corona by the House have been filed before the Court. Instead of dismissing them outright as lying outside its jurisdiction, the Court has ordered their consolidation and has called for written memoranda from the concerned parties, including the House which filed the impeachment case and the Senate which is trying it. The Court may later require the concerned parties to orally argue their case before the tribunal. The Court is clearly dribbling the ball, keeping its options open. Yet, it is interesting that it did not oblige the petitioners’ prayer for a temporary restraining order.  One may see this as a gesture of institutional courtesy. But it is, as well, a formidable reminder to the political branches that the Court will not hesitate to assert its autonomy and power of judicial review at any point.

Theoretically, the Supreme Court can declare the impeachment trial unconstitutional, and it can order it to stop. If the Senate submits to the authority of the Court by replying to the pending petitions, then it will have no reason not to abide by its decisions. It can, of course, always appeal an adverse decision. But, if it loses this battle before the high court, nothing can stop the House either from impeaching the magistrates themselves—for culpable violation of the Constitution and betrayal of public trust—thus returning the battle to the political arena. Only then might we have a messy constitutional crisis before us.

But even this is not as catastrophic as it may seem. A constitutional crisis only means that the existing Charter no longer serves as an adequate framework for solving acute conflicts among the various branches of government. If the Constitution is unable to provide answers, we expect that the problem will eventually find resolution within the political system. This will result in a re-arrangement of government and, perhaps, in a new Constitution.

There are clear advantages to distributing the powers of government among different branches. It simplifies governance, and it frees public officials from worrying about political legitimacy all the time. But, certainly, separation of powers does not mean there will be no conflicts and crises. As a keen observer of modern legal systems put it, “A functionally differentiated society is anything but a harmonious society with inbuilt guarantees of stability.”

We are far from doomsday scenarios like government paralysis. All the protagonists in the ongoing impeachment trial know they are being closely observed. The magistrates of the high court are equally mindful that they are being keenly watched by the whole nation. Everyone is careful not to provide any warrant for the intervention of people power. The untimely termination of the impeachment trial of former President Joseph Estrada in 2001 is still fresh in the minds of the public.

The decorous display of courtesy and courtroom civility in the trial may seem tedious at times, but this is what provides insulation from potentially disruptive events. The Senate deserves commendation for the meticulous way it has prepared for a fair and orderly trial. The aura of authority and impartiality that the presiding officer projected in the opening sessions is reassuring. This is the kind of leadership that elicits deference and cooperation from everyone. Not to be ignored is the admirable restraint shown by both the prosecution and defense panels.

If it continues like this, no matter what the verdict is, there is every reason to hope that from out of this trial, our institutions will emerge stronger.

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