Another EDSA 2

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Calixto V. Chikiamco-125


President Rodrigo Duterte delivering remarks in this photo taken May 18, 2018. — AFP

Last May 11, the Supreme Court, voting 8-6, ousted Chief Justice Maria Lourdes Sereno on the basis of the quo warranto case filed by Solicitor General Jose Calida.

The SC decision effectively pre-empted the impeachment proceedings against her started by the House. Instead of impeachable officials like the Chief Justice being impeached and removed from office as provided for under the Constitution, the Supreme Court decided to make its own law to oust one of its own.

The ouster of Sereno extra-constitutionally is bad for the judiciary, bad for the economy, bad for the country. It will be another Edsa 2, when former President Joseph Ejercito Estrada was removed through “people power” and the SC devised a novel concept of constructive resignation. Because of the unconstitutional way Erap was removed, Edsa 2 spawned a decade of political instability, which affected the economy.

The mean-spirited, petty-minded Justices of the Supreme Court who voted to oust Sereno on a quo warranto case, even when the law states that the validity for a quo warranto case is limited to a year, have opened a Pandora’s box.

We are liable to see more quo warranto cases filed against impeachable officials. A disgruntled plaintiff of a case before the Supreme Court may file a quo warranto case against the Ponente (author of the decision).

Now, even the President and Vice-President, and all impeachable officials from the SC Justices to the Ombudsman, may be removed through a quo warranto. Whether a quo warranto case would have merit or not, the mere act of filing can cause instability. The SC majority did not see fit to apply the prescriptive period in the law, which is one year. The majority ruled that the prescription only applies from the moment of discovery.

This means all bets are off.

Even a single failure to show proof of compliance with the filing of SALN for 15 years could be grounds for dismissal, even if the appointment had been made years previously. If I were a plaintiff, I would employ researchers to find even a single instance showing lack of “integrity” in order to threaten and blackmail a Justice with a quo warranto case.

Even now, Solicitor General Jose Calida is being challenged to show that in his SALN that he reflected his ownership of a security agency which has contracts with government. A group is also seeking his disbarment for allegedly having an extramarital affair with his 22-year old legal secretary. Pictures in social media have been circulating showing this alleged affair. A never-ending cycle of revenge and counter-revenge will continue, especially after President Duterte steps down.

There’s a reason why there are prescriptive periods in the law or a statute of limitations. This is to preserve stability in the judicial system or else, all parties face an uncertain future. However, the SC majority decided to make their own law, and disregarded the one-year prescription in the law. (The author of the law, former Senator Rene Saguisag, was very emphatic about it.) Now, the SC majority decided to legislate its own definition. Disregarding the prescription period opens a Pandora’s box since there will be no ending of when a case can be filed.

How else will the ruling cause instability? “Delicadeza” has been thrown out of the window. Six of the eight justices who voted with the majority expressed pre-judgment and bias against Sereno. Yes, they refused to inhibit themselves. This means it will be okay to prejudge a case, maybe even have a conflict of interest, and still pen the decision because the conflicted or biased judge can always point out to the conduct of the SC justices in the Sereno case as a precedent.

The removal of Sereno on a quo warranto case means her appointment was void ab initio (from the beginning.) What happens now to all the court decisions that Sereno was part of? Somebody can question whether those were valid since Sereno was never qualified to act as Justice from the start. Take the Sereno case and apply it to future cases against all impeachable officials and a big cloud of uncertainty will hang over all the decisions of impeachable officials. Why? Because they could be declared being ineligible from the start and making their subsequent decisions questionable.

The Sereno ouster cannot be compared to the ouster of former Chief Justice Renato Corona. In Corona’s case, the constitutional process was followed. Corona was given his day in the Senate court. Evidence was presented to the Senate and cross examination by Corona’s lawyers was allowed. There was no threat to political stability because due process was followed. In this case, the Senate majority removed her without allowing her day in the impeachment court.

The sad thing about this is that CJ Sereno was not removed due to “high crimes” such as treason but the mere fact that she failed to show (not failed to file because Sereno claims she did file but could not retrieve all her records) compliance with the filing of SALNs. However, even if neither the Judicial and Bar Council decided it wasn’t material nor the President who appointed her, the SC majority decided otherwise.

The public can only sympathize with Sereno. Who keeps records diligently for 15 years? Not even corporations are required to keep records as far back as 15 years.

Besides, she was not removed for corruption (which to the public is the much greater evil) but for the mere act of not being able to keep these records. The public can only ask why is it that people accused of corruption continue in their posts (or are even reappointed or recycled when they get exposed) while Sereno was removed from hers?

If there were really a strong case against Sereno, then why did the administration resort to a quo warranto case against her instead of resorting to impeachment? The fact of the matter is that the impeachment case against Sereno was weak and that is why the House temporized in bringing it up to the Senate for trial.

In other words, the public can’t be convinced that she’s really guilty of high crimes and deserve to be removed from office.

The SC majority’s public relations problem looks worse because the six justices who prejudged Sereno and expressed beef against her did so for petty and mean-spirited reasons. There was no philosophical or other high-minded reasons why these Justices turned against Sereno but for petty things such being bypassed in some administrative matters. In other words, their egos, not the law, seemed to be the real reasons for the adverse decision against Sereno. The stature of justices can only be diminished by this decision.

The oligarchs should be alarmed. The last time the executive had unchecked power by the judiciary was during Marcos’ time and it placed their property rights in jeopardy. Allowing the executive to purge SC justices and other impeachable officials at will without benefit of an impeachment trial represents an existential risk to the oligarchy. Only an independent judiciary represents a bulwark against outright confiscation of their property.

Moreover, the oligarchy should have learned its lesson from Edsa 2, when it financed the ouster of Erap. What they got instead was the troubled 10-year presidency of former President Gloria Macapagal Arroyo.

Contrary to what his minions like Solicitor General Jose Calida may think, the ouster of Sereno via a quo warranto case is bad for President Duterte. I don’t see how this case will advance President Duterte’s program of Build, Build, Build or of attracting more foreign investments. While the fiscal risk may have been lowered with our ratings upgrade, the legal and political risks have just been elevated.
The next administration may spend its time trying to undo the injustice to Sereno , such as impeaching the eight justices, further weakening the judiciary.

Instead of unifying the country, this will only serve to divide it.

With existential threats coming from all over – China, ISIS-sponsored terrorists, the CPA-NPA – national unity is essential.

While President Duterte remains popular, his ratings have slipped, especially among the poor. Inflation has climbed, hurting the poor the most. His economic team is hoping for a deceleration of the rate of inflation, which breached BSP targets, but there’s no telling how high oil prices will go. US President Donald Trump has pulled out of the nuclear deal with Iran and is re-imposing sanctions. This could lead to a cut-off of Iranian crude in the world market. Worse, another Mideast conflict could erupt and put the oil lifeline from the Middle East in danger. Moreover, OFW remittances, a driver of consumer spending, showed its steepest fall in 15 years.

However, I’m clinging to a hope that President Duterte will change his mind and order his Dobermans back.

The SC decision is still subject to a motion for reconsideration. Pressure should be exerted on the Justices to reverse their decision. (There have been instances where the SC has reversed itself two or three times, so it’s not such a far-off miracle.) After all, Duterte has shown himself capable of learning and evolving. He has shown that with his two recent appointments, Menardo Gueverra as Secretary of Justice and Bernadette Romulo-Puyat as Secretary of Tourism. Both are out-of-the-box choices and both are acclaimed for being honest and competent.

The appointment of Gueverra as Justice Secretary is all the more remarkable since Gueverra is a graduate of Ateneo Law School, and not San Beda, and had worked for President Aquino.

Edsa 2, which saw the unconstitutional removal of a President, spawned a decade of political instability and the troubled regime of former President Gloria Macapagal-Arroyo. A similar thing can happen with the unconstitutional removal of CJ Sereno. Less dramatic political protests perhaps, but subtle and consequential political ramifications. Political division (and a weakened judiciary) is the last thing the country needs as it confronts threats to its national security and to its economy. Higher oil prices, trade wars, increased inflation, and increased interest rates threaten the economy.

Does President Duterte really want a post-Edsa 2 scenario?

I pray that he will still pull back from the precipice and realize that Solicitor General Calida (who may be doing the bidding of his other masters with a revenge agenda) is ill-serving him just as former Justice Secretary Vitaliano Aguirre and former Tourism Secretary Wanda Teo did.

Otherwise, we will repeat history. Sereno’s ouster will linger like a ghost in our future.