House warring against Supreme Court?

I don’t know if it is the entire House of Representatives or only some elements of it, but I get the impression that there is a brewing desire to bring some or all of the Supreme Court justices to their knees.

Indeed, House members have reason to be unhappy with the Court. For one, the unanimous decision of the Court declaring the Priority Development Assistance Fund unconstitutional broke the hearts of many. Members of Congress were stripped of a major and almost unrestricted tool for politicking. The complaint most often heard was:  How can we now satisfy the education and health needs of our constituents? How noble! But the answer to that, of course, is that they can pass a supplemental budget; but under the PDAF decision they will not be able to exercise unrestricted discretion. That is the unkindest cut. So, how bring the justices to their knees.

The first weapon in the legislative armory that comes to mind, and which is being mentioned, is impeachment. The memory of the Corona experience is still fresh. It absorbed the attention of Congress for several months. In a sense it brought out the best and the worst in politicians. What makes the outcome of an impeachment trial unpredictable is the fact that the quantum of proof needed to convict in impeachment has never been jurisprudentially clarified. And because of the nature of impeachment, it will never be. The result will always be dictated by political justice.

But it is not easy to get impeachment started and going. It starts at the House committee on justice. Whether the committee’s vote is favorable or unfavorable, the charge is sent to the House plenary. A vote of at least one-third of all the members of the House is necessary to form and send the articles of impeachment to the Senate for trial. No person is convicted without the concurrence of two-thirds of all the members of the Senate.

The system succeeded in the impeachment of Chief Justice Renato Corona. Will the Filipino people want to see another bruising political battle so soon after? Let me make some general observations on what happened in the Corona impeachment trial.

The impeachment body, which we usually refer to as a court, is both a judicial and political (read: policymaking) body. If it were meant to be a judicial body purely, the responsibility for impeachment would have been entrusted to a body under the judicial department.

As a judicial body in the impeachment process, the Senate applies the law. A virtue we expect of a judge is what is usually described as “cold neutrality.” In the Corona proceeding, I do not think anybody will accuse some members of the Senate of that virtue. But there is a plausible explanation for that.

As asserted in a number of rulings of the presiding officer, the senators are given a wide leeway for asking questions. He recognized that the senators are also jurors in search of truth. Thus, in all of this, so much depends on the sense of fairness of each individual senator. Incidentally, also of the president.

Indeed, in countries where there is a jury system, there is such a thing as jury misconduct, which can cause the reversal of a verdict. The cases on jury misconduct range from intentional disregard of the juror’s oath to unintentional actions by jurors who do not understand jury protocol.

But what do I mean when I say that the impeachment body is also a policymaking body? I mean that legislators also consider what is best for the country.  Let me illustrate. Assume that the Senate finds that there is no sufficient ground to convict the accused.  Fairness would demand that the accused be acquitted. Let us suppose, however, that the Senate finds sufficient ground for removal of the accused, but in its judgment it would be worse for the country if the accused is removed from office. In the exercise of its policymaking power, it might decide to keep the accused in office.

Will we know the reasons behind the decision of the senators? We might or we might not. As I see it, there is no obligation on the part of the senators to explain their vote. But most of them probably will explain their vote, (as indeed they did), because they know that they themselves are on trial before the court of public opinion.

Will the current Congress decide in favor of impeachment of the current justices? I can already see that the House is divided on the subject. But if the House should decide against impeachment, what can be used against the judiciary? Already, there is mention of investigating the financial conduct of the Supreme Court. But I have no space to discuss that now.