The Court, in the wrong

Early in law school, first-year students learn an important axiom: The Constitution is what the Supreme Court says it is. This is a calibrated summing-up of the wisdom of jurisprudence, not a blanket declaration of the absolute power of the Supreme Court. The axiom means that competing interpretations of constitutional provisions require an interpreter — and in our constitutional order that interpreter is the Supreme Court.

It does not mean that the Court can read anything it wishes into the Constitution. The Court cannot, for instance, hold that the sun in the Philippine flag may have more than eight rays. The constitutional provision (Article XVI, Section 1) only says that “The flag of the Philippines shall be red, white, and blue, with a sun and three stars.” There is nothing there about the number of rays, which of course represent the first eight provinces to rise against Spain in the Philippine Revolution—except the proviso “as consecrated and honored by the people and recognized by law.”

If a case were to reach the Court demanding that a ninth ray be added to the flag, and the constitutional provision was not amended and duly ratified, the Court would have to reject the case based on the hallowed tradition honoring the current flag that goes all the way back to 1898. Article XVI, Section 1 itself speaks of “consecration” by the people and “recognition” in law; but the point is, even if the proviso were not included, the Court would still be bound by this tradition. In other words, there are limits beyond which the Supreme Court cannot venture. Like King Canute of legend, who was reported to have commanded the tide of the sea to stop (and failed), the Court cannot hold back the tides of reason and history.

The Court meets en banc today, and from all indications it is ready to pass judgment on the unprecedented, and unconstitutional, quo warranto case filed by Solicitor General Jose Calida against Chief Justice Maria Lourdes Sereno.

This is unconstitutional, that is, it violates the Constitution on its face, because it is a deliberate attempt to ignore the limits set by Article XI, Section 2. The section reads, in its entirety, as follows:

“The President, the Vice President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.”

Impeachment is the only means to remove Chief Justice Sereno from her office. The Constitution cannot be any clearer. That members of the Court are even considering the quo warranto case, let alone that a majority of the justices is reported to favor the case, is a reflection of these members’ lack of esteem for their Chief Justice—not a change in the law or in the Constitution. (We cannot also discount the Palace factor on the impressionable majority; despite his intermittent efforts to stay clear of the case, President Duterte has issued statements demanding Sereno’s ouster.)

The wrong that the Supreme Court is poised to commit today is so clear, and so clearly unjust, that over a hundred law professors, led by deans and former deans of law schools in different parts of the country, published an advertisement calling on the Supreme Court to stop resisting the constitutional tide. “We, members of law faculties, express our deep concern at the move to unseat the Chief Justice of the Supreme Court by means other than by impeachment.” Adding their voice to those of other lawyers, including former justices of the Supreme Court like Hilario Davide Jr. and Vicente Mendoza and the president of the Integrated Bar of the Philippines, Abdiel Fajardo, the shapers of today’s generation of law students focused on the constitutional issue and then drew the necessary and terrifying consequence.

“We have been taught in the College of Law that the Constitution provides only one means to remove a sitting Chief Justice. That is by impeachment by the House of Representatives and conviction after trial in the Senate. Any other means would be unconstitutional. It will expose those involved to the same vicious cycle of extrajudicial removal process which will subvert the constitutional check and balance and endanger judicial independence.”

Will the justices listen? It isn’t only Sereno’s position that is at stake; the diplomatic language of the law professors’ statement cannot hide the truth, clear even to the students they teach, that the justices’ lifetime reputations, and the integrity of the Supreme Court itself, are also in the dock. In time, the tides of reason and history and justice will come crashing in, and will drag them all out to the unforgiving sea.