Legal basis to impeach Duterte?

Portree, United Kingdom—This is not a column about unthinkably impeaching a president who has not even served six months. This is an academic discussion about how a proposal in unrelated Supreme Court hearings on the Marcos burial in the Libingan ng mga Bayani links to a recent impeachment discussion. This is a column wishing we focus on such theories floated in hearings.

Justice Marvic Leonen argued in those hearings that every word in our Constitution must be “self-executing.” He admitted that this is not the current doctrine, under which many of its phrases are implemented by drafting specific laws, not by asking judges to directly enforce broad, general language in the Constitution.

Leonen wanted to stress this thought, and reiterated it when he spoke last August at the Ateneo School of Government graduation.

Leonen’s call to change this central doctrine should have been as earthshaking to lawyers as Maine Mendoza announcing a real life wedding, but reports focused on how Chief Justice Maria Lourdes Sereno asked martial law victims to recount their hardships in open court.

You see, judges would be far, far more powerful if they could enforce every single word in our verbose and sometimes self-contradictory Constitution.

In the 1997 Tañada case, the Supreme Court was asked to block our entry into the World Trade Organization because the Constitution mandates “a self-reliant and independent national economy effectively controlled by Filipinos.” The Supreme Court rejected this, but affirmed it had the power to block a key treaty by invoking a general phrase in the Constitution. And previous 1990s decisions used other phrases to intervene in economic issues.

Leonen demonstrated how far this might go in the Marcos burial hearings. He posited that Article II of the Constitution “values the dignity of every human person” and may justify the burial.

In short, a phrase can be found in our overlong Constitution—which mentions everything from nuclear weapons to sports—to justify practically any legal proposition.

The Marcos burial decision was postponed while justices articulate in separate opinions how far each is willing to go in interpreting the Constitution. The philosophy chosen for interpretation is critical as no law explicitly prohibits the burial.

We disabuse freshman law students from the fairy tale that judges merely follow what the law says. There is much room for interpretation, for example, in applying a Constitution ratified in 1987 to social media today.

Senior Associate Justice Antonio Carpio, speaking on a different issue at the Asian Institute of Management last week, suggested that President Duterte could be impeached if he gives up any territory disputed with China. Carpio referred to Article XII, Section 2 of the Constitution: “The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”

Carpio is our seas’ staunchest intellectual defender. But invoking this provision is not necessary in that impeachment is inherently political, and its catchall ground, betrayal of public trust, is intentionally broad enough to cover a severe policy disagreement even if it were not a constitutional violation.

Imagine, however, if one of the usual glamor-seeking upstarts took the sentence Carpio cited and sued to prohibit President Duterte’s foreign initiatives, such as the proposed joint development with China in our exclusive economic zone. Would this be faithful enforcement of our Constitution or a pretext for a judicial override?

We must reflect on how aggressively our Constitution should be interpreted and how our justices do. Since my student writing, I have been wary of unelected jurists overruling elected leaders in defense, foreign and economic policies, areas where our president is given much discretion.

We should also pay more attention to the actual arguments in Supreme Court hearings instead of sound bites, and be conscious of where they may lead to in future cases.

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