Haunting question

Does the fact that the Constitution makes the Senate “the sole judge of all impeachment cases’ make it superior to the Supreme Court in everything relating to impeachment?” Fr. Joaquin Bernas, in his Feb. 11 blog, asked the question, a definitive answer to which the public cannot seem to agree on, with every Juan and Juana postulating their views on the matter even as legal experts have been offering opinions different from, if not completely opposite to, one or the other. The Senate’s Feb. 13 vote to respect the Supreme Court’s temporary restraining order on the subpoena involving the Chief Justice’s dollar accounts in PSBank only added to the public’s confusion over the issue; and the statement of Senate President Juan Ponce Enrile, the impeachment court’s presiding officer – that “It is my humble view that the (Court) cannot assume jurisdiction over the sole power of the Senate to try and decide this impeachment case” – didn’t help clear the air either.

The dispute seems to revolve around the separation of powers and check-and-balance principles enshrined in our Constitution. There is no disagreement that these constitutional commands must be adhered to. The main question is really about judicial interference in the impeachment proceedings and how to maintain the balance of power among the three branches of our government.

Father Bernas cites Philippine jurisprudence in providing the answer to his question: “…. in the Davide impeachment case and the Gutierrez case the Supreme Court came in to resolve matters of interpretation of the law on impeachment.” He likewise pointed to cases in the electoral tribunals, which the Constitution also says shall be the “sole judge of all election contests,” but where the Court ruled on whether or not these tribunals committed grave abuse of discretion amounting to lack or excess of jurisdiction.

Senator Pia Cayetano, explaining her vote to defy the Supreme Court’s TRO, quoted “The Federal Impeachment Process: A Constitutional and Historical Analysis” by Michael Gerhardt: “Judicial review of such an impeachment procedure would undermine the impeachment’s effectiveness as a check on… especially judicial abuse of power. Judicial review of the impeachment process would give judges the last word on the propriety of the procedure for their own removal, and thus the chance to make their own, or their colleagues’ removal virtually impossible by ensuring that Congress could achieve such outcome solely to the most complex and time-consuming ways.”

In his Feb. 17 column, Inquirer columnist Raul Pangalangan chastises the anti-Corona camp for not being frank enough and forgetting “that the controlling rule here is the decision where the Supreme Court actually stepped in and altogether stopped the 2003 impeachment of (Davide).” But, he goes on with an admonition: instead of going into “all sorts of intellectual contortions to distinguish the Davide and Corona cases (which is pilit)…. What they (anti-Corona camp) 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….

“[W]hat we’re actually doing here… 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.”

Former Chief Justice Artemio Panganiban, in his column today, hews to the middle ground: “In the Philippines, the answer is also ‘No’ but it is not simple and absolute; it is subject to an exception…. our Constitution gave our Judiciary the ‘duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government’.”

The Constitution does not lack for safeguards against abuses by any of these branches. The Executive, supposedly the most powerful of all three branches, may be restrained by the Judiciary through judicial review, and by the Legislature through impeachment. Any legislative action may be subjected to judicial review. Abuses by the Judiciary can be checked by the Legislature through impeachment.

If the safeguards fail to serve their purpose – i.e., check excesses – in the case of the Executive or the Legislature, they can later be removed by the people in an election. However, in the case of the Judiciary, the people have no such recourse (except, as some are suggesting, People Power, which would be messy and is extra-constitutional).

Is this really what the 1987 Constitution has in mind? The question seems ready to haunt the impeachment trial of Chief Justice Corona every step of the way.