The Supreme Court — fallible, overstepping, pliable

Christian Monsod and Adolf Azcuna, former members of the Constitutional Commission that drafted the 1987 Constitution, scored the recent ruling of the Supreme Court (SC) declaring the fourth impeachment complaint against Vice-President Sara Duterte unconstitutional.

Monsod, a former chairman of the Commission on Elections (Comelec), said the high court not only misapplied the one-year bar rule but also imposed retroactively new requirements that were never part of past impeachment complaints such as requiring a plenary hearing before referral to the House of Representatives Committee on Justice. “It violates due process,” Monsod said. “You cannot comply with a rule that didn’t exist at the time of the act. That’s basic.”

Citing a 2023 Cambridge study, Monsod said justices appointed by President Rodrigo Duterte had voted in favor of government positions 94% of the time. “There is growing concern that our institutions are being weakened,” he said. Of the 13 SC associate justices who voted that the impeachment of VP Duterte was unconstitutional, 11 were appointed to the SC by President Duterte, the father of VP Sara Duterte.

Azcuna, a retired associate member of the Supreme Court, said the Court made a crucial but unsupported presumption in ruling that the House acted in bad faith. “They cannot say that because they have no evidence. There is no finding that the House acted in bad faith. There can be none, because there was no hearing in order to find bad faith… because bad faith is not presumed. So that is the problem.”

Azcuna reiterated his appeal to the Court to call for oral arguments. “There should be oral arguments so that they can go more deeply into the actual facts.”

The Philippine Constitution Association (Philconsa), in a four-page statement written by Philconsa chair retired Supreme Court Chief Justice Reynato Puno, stated, “Decisions of the Supreme Court that rearrange the particles of the principle of separation of power, redefine the limits of power of government or change the calculus of the balance of power between and among the three branches of our government demand their strictest scrutiny for the slightest of error can bring about a tyrannicide that will incinerate our Constitution.”

The Philconsa noted that the Court “tried to be finder of facts in two cases” when its primary role is not to be a “trier of facts” but to interpret the law where a trial court already established facts and was vetted by the Court of Appeals.

In an interview on Bilyonaryo News Channel, Puno noted that the seven conditions set by the Court in initiating an impeachment complaint are not included in the 1987 Constitution. He also noted that the Constitution even gave the House the right to promulgate its rules on impeachment. “The right of the House to promulgate its own rules is very clearly stated in the Constitution.

“And that means it’s not the Supreme Court that will write the rules for the House. And more than that, if you look at the wisdom of the seven conditions imposed by the Court, I agree with the impression that these are terrific barriers imposed by the Court,” Puno added. “It’s very, very difficult to impeach these high public officials. And again, as I say, by doing that, you are not giving proper value to the provision of the Constitution on accountability. [I] really cannot comprehend the imposition of these seven rules. They are not in the Constitution.”

The retired chief justice stressed that the Court should not interpose in the political part of the impeachment process. “And as I said and as others say also, the conduct of the initiation of the impeachment process is the political part of the impeachment process. And the Court should not enter the political ticket. Because if the Court goes to the political ticket, it’s very dangerous.” He said the Court’s decision can be called an “overreach.”

Retired Supreme Court Senior Associate Justice Antonio Carpio said the high court overstepped its authority. He stressed that the House had in fact voted to approve and transmit the fourth impeachment complaint to the Senate on Feb. 5 — a critical detail that he claimed the Court ignored.

“There was a motion in the plenary, there was no objection, and more than one-third — 215 lawmakers — voted for the transmission. It’s in the House journal,” he said. “The Court relied on a news report instead of the official record.” He believes that the ruling undermined the constitutional intent to liberalize the impeachment process and urged the high bench to reconsider what they described as a “factual and legal error.”

It is not the first time that the Supreme Court has strayed into the restricted area of the legislative branch of government. In April 2009, the Supreme Court promulgated Banat vs Comelec, increasing the seats for party-list representatives from 22 to 55, and inevitably, the total number of congressmen from the then current 238 (composed of 216 districts and 22 party-list representatives) to 271. By increasing the number of party-list solons from 22 to 55, the Court increased the total number of representatives beyond the 250 authorized by the Constitution. In so doing, the Court usurped the law-making function of Congress.

In August 2015, the Court ruled that the fragile state of Sen. Juan Ponce Enrile’s health presented a compelling justification for his admission to bail. SC Associate Justice Lucas Bersamin penned the decision that “Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial.” Sen. Enrile had not presented his feeble health as an argument for his release from detention.

SC Associate Justice Marvin Leonen, the same Marvin Leonen who penned the ruling that declared the impeachment of VP Duterte unconstitutional, dissented, writing that the decision “will usher in an era of truly selective justice not based on clear legal provisions.”

In July 2016, former president Gloria Macapagal Arroyo was acquitted of the charge of plunder, because, among other reasons, the Court ruled, for the first time, that in a prosecution for plunder, the “main plunderer” must be identified in the information and proven during the trial before any alleged conspirator can be convicted. Again, this novel ruling was penned by Bersamin, by then the Chief Justice. That ruling is now binding jurisprudence in plunder cases.

As regards Monsod’s insinuation that the Court is subservient to the powers that be, there is no better evidence of the Court’s submissiveness than the acquittal of former president Arroyo of the charge of plunder.

During the 2016 presidential election, then presidential candidate Rodrigo Roa Duterte said there were grounds for Arroyo’s acquittal. He also repeatedly said he owed much to Arroyo as she had made substantial contributions to his campaign funds.

Shortly after Duterte was elected president, the Court acquitted Arroyo. In an appreciation dinner held in her honor, Arroyo, addressing President Duterte, said, “I thank you that when you became president, you provided the atmosphere in which the Court had the freedom to acquit me of the trumped-up charges by my successor and your predecessor.”

Arroyo certainly knows how docile the Court is. In 2010, Rolando Andaya, the former representative of the old 2nd District of Camarines Sur, wanted to return to Congress as the representative of the district. At that time, the district was represented by Dato Arroyo, son of then-President Arroyo. Congress broke up the district into two, one for Dato and the other for Andaya.

That act of Congress was questioned before the Supreme Court as there would be disproportionate representation of Camarines Sur in Congress, in contravention of the provision of the Constitution on equal representation. However, the Court upheld Congress. So, the district formerly represented in Congress by one congressman is now represented by two whereas the two larger districts are represented by only one each.

The older son of Arroyo, Mikey, also wanted his own seat in Congress, his old seat having been taken by his mother, who had run successfully as congresswoman after completing her term as president. The sycophants of Mrs. Arroyo in the Comelec allowed Mikey to represent in Congress “Ang Galing Pinoy,” the party-list of tricycle drivers and security guards.

Some groups questioned before the Court the eligibility of millionaire Mikey to represent tricycle drivers and security guards. The Court quickly dismissed the disqualification complaint, saying that the case was outside its jurisdiction. Yet the same Court moved swiftly to stop impeachment proceedings against Ombudsman Merceditas Gutierrez, a close friend of Mr. and Mrs. Arroyo, when impeachment is well outside the jurisdiction of the Court.

In 2011 Mrs. Arroyo, who had been charged with electoral fraud, was under a hold departure order (HDO). On Nov. 15, 2011, the Court issued a temporary restraining order (TRO) against the HDO. According to some non-partisan lawyers, the Court should have called an en banc session to hear the oral arguments against the TRO before issuing it and making it immediately executory. The undue and unusual haste with which the TRO was issued raised the suspicion that Mrs. Arroyo’s eight appointees to the Court were really giving her the chance to flee.

Retired Supreme Court Chief Justice Panganiban had written on several occasions in his Philippine Daily Inquirer column that the “Sociological school of legal philosophy holds that to predict how a case would be decided (by the Supreme Court), one must consider the personality of the magistrate and the various stimuli attendant to a case per this formula: personality times stimuli equals decision (P x S = D). Stimuli refer to how he/she responds to externals like public opinion, appointing authority, appointment sponsor, relatives, close friends, etc.”

That observation strongly suggests that justices of the Supreme Court sometimes decide not only on the basis of an objective interpretation of the law and the established facts, but on what Panganiban calls the Four Ships — kinship, friendship, fellowship, and other relationships.

As regards the Court reversing its decisions, it ruled in 2008, 2009, and 2011 that the retrenchment of 1,423 Philippine Air Lines flight attendants and stewards in 1998 was illegal and ordered their reinstatement. But in late 2011, attorney Estelito Mendoza, representing Philippine Airlines (PAL), wrote the Court several letters seeking to reverse its earlier decision regarding the reinstatement of the PAL employees. The Court, after initially denying the motion, ultimately reversed its decision.

Oscar P. Lagman, Jr. has been a keen observer of Philippine politics since the late 1950s.