Drilon’s jab may result in a knockout

The Coronavela has dispelled the great myth that only the Supreme Court may interpret the Constitution. After Senate President Juan Ponce Enrile quoted the Constitution to assert that the Senate is the sole authority in impeachment cases and only the military can stop the trial, no temporary restraining order (TRO) issued from the Supreme Court. After Sen. Franklin Drilon instructed the Supreme Court’s clerk of court to turn over Chief Justice Renato Corona’s statements of assets, liabilities and net worth (SALN), required by the Constitution to be disclosed as provided by law, Court Administrator Midas Marquez immediately announced the SALN could be disclosed. Drilon acted out his 2004 Philippine Law Journal essay “Judging Congress,” which read: “It is a powerful concept for a legislator to be conscious that he is actually responsible for the meaning of the Constitution he claims loyalty to.”

It is a sobering scaling back of judicial power. The Constitution’s framers intentionally strengthened the Supreme Court in the hopes that it would foil budding dictatorships, but the Court soon wielded far more power than envisioned. Under Chief Justice Reynato Puno, it became more powerful than the United States Supreme Court. Puno rallied the country against extrajudicial killings long before a case was filed in court, like a “Minority Report” cop arresting a criminal even before the crime. So omnipotent was the Supreme Court that, under Chief Justice Hilario Davide Jr., justices walked to Edsa to declare the presidency vacant. It also granted unborn children the right to make environmental claims. No one pointed out then that even the greatest heroes may fall to the dark side.

Its power is so expansive that the Supreme Court might find basis to declare the impeachment trial unconstitutional, because congressmen allegedly never read the complaint they signed. When Davide was impeached in 2003, the Court blocked it, claiming the duty to interpret rules governing impeachment (the Constitution’s one-complaint-per-year limit) even if it is the most political of political exercises. Beyond the Constitution, the Court has ruled that it can interpret Congress’ own rules against itself to protect third parties. An act does not even need to be unconstitutional; the Court may nullify “grave abuse of discretion,” as lead defense counsel Serafin Cuevas has emphasized to the impeachment court. Of course, in 2003, so great was the public’s respect for Davide that his impeachment was stopped in its tracks after the Court invalidated it. In 2012, some people would storm Padre Faura at a word from Enrile.

With the flexing of the Senate’s muscles, the prosecution may have secured an unwitting advantage by tackling Impeachment Article 2, on SALN nondisclosure, ahead of Article 1, on Corona’s allegedly unconstitutional appointment and biased voting. The key defense argument that the Senate cannot scrutinize constitutional questions is now untenable. Sen. Lito Lapid complained that he had studied so hard for the trial but the prosecution came unprepared on Day 2. We may soon find him alongside Drilon and Enrile investigating whether it is out of bounds for a justice to rule that Arroyo was discriminated against, based on the human rights doctrine of equal protection, because a Truth Commission was formed to investigate corruption in her administration; whether executive privilege may prevent, to the extent Arroyo invoked it, Cabinet secretaries and military officers from answering questions at Senate investigations; and whether Corona is indeed a midnight chief justice. The Senate threw a jab when it demanded the SALN; it may throw a knockout punch when it asserts the power to define “betrayal of public trust” and “culpable violation of the Constitution.”

To many products of our memory-oriented, bar exam-obsessed legal education, seeing the public accept that the Supreme Court is not the Constitution’s sole guardian may be akin to disbelievingly watching Dumbledore die. Nevertheless, Dumbledore’s death set the stage for the hero to reach his full potential. Perhaps only with the end of the myth of a judicial superhero can the Filipino electorate reach true maturity.

It was unfortunately too easy to leave extrajudicial killings to Puno, stopping a dubious people’s initiative to amend the Constitution to Associate Justice Antonio Carpio and Edsa 2 to Davide. As Judge Learned Hand cautioned on the unelected Supreme Court: “[I]t would be most irksome to be ruled by a bevy of Platonic Guardians… I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.” Harvard professor James Bradley Thayer likewise cautioned that too easy a resort to the judiciary tends “to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.” Perhaps people will remind themselves that they need to be their own heroes in a democracy, that Edsa was the country’s greatest moment, not its descent into mob rule.

Hopefully, this week will see the prosecution stand by its convoluted complaint and Lapid grill lead prosecutor Niel Tupas Jr. on the fundamental constitutional questions the Coronavela is supposedly about, beyond titles to luxury condos.

Oscar Franklin Tan ([email protected]) is an international corporate lawyer who works in the Singapore office of one of the world’s largest law firms.