There’s an on-going debate among the legal commentariat in the Philippines on the question of whether the Supreme Court could exercise its power of judicial review over the impeachment proceedings in the Senate. The debate pits two important values that the country’s Constitution upholds: On one hand, the duty of the Judiciary to point out grave abuse of discretion on the part of any instrumentalities of government in order to protect citizens’ rights, and, on the other hand, the power of the Legislative to check the other two branches of government.
The Senate itself holds some sort of a middle ground: It says that the Supreme Court can exercise judicial review in interlocutory matters, but it has no jurisdiction on matters pertaining to trying and deciding an impeachment case, since the Senate has the sole constitutional authority on such matters. In my opinion, however, this middle ground opens a Pandora’s Box that could lead to either the dilution of the Congress’s exclusive impeachment powers or an outright constitutional crisis.
I’m afraid this dilemma represents a defect in the country’s 1987 Constitution, a document that may have over-reacted to the excesses of the Marcos dictatorship. Since I have no formal training in the field of law, my thoughts on this debate is framed on a purely political perspective, although it’s inevitable for me to venture a little bit into the legal domain.
In the United States, from which much of Philippine jurisprudence is based, there is no such debate. The Americans hold that the court’s power of judicial review does not cover the impeachment process in Congress. Any questions regarding the process should be resolved not by the Judiciary but solely by the Congress. One of the reasons for this, as the landmark Nixon vs US ruling states, is that, since impeachment is the Legislative’s tool to discipline the Judiciary, it would be absurd for the judges to interfere and tell the lawmakers how they should be disciplined. In other words, the impeachment process is a purely political question.
A political question is one that can’t be resolved through judicially-discoverable standards and should therefore be adjudicated outside judicial forums. In Baker vs Carr, five other standards of what constitutes a political question were also enumerated, among them: the existence of a textually demonstrable constitutional commitment of the issue to a coordinate political branch; the impossibility for a court independent resolution without expressing a lack of respect for a coordinate branch of the government; and potentiality of embarrassment from multifarious pronouncements by various departments on one question.
In the Philippines, it is unmistakable that the framers of the Constitution viewed impeachment as a political question that is beyond the scope of judicial review. This can be seen in the transcript of the debates of the members of the Constitutional Commission. For instance, when Commissioner Felicitas Aquino, who pushed in vain for the granting of the power to try impeachment cases to the Supreme Court instead of the Senate, was asked if she was proposing that impeachment be subject to judicial review, she flatly answered “No.”
Indeed, contrary to those pushing for the strict application of rules of evidence in the trial of impeached Chief Justice Renato Corona, Constitutional Commision President Cecillia Munoz-Palma had actually made it clear that the intent of the framers is to “liberalize the impeachment process.” Of course, as Commisioner Rustico de los Reyes said, this liberalization is a reaction to the frustrating impotence of the impeachment provision in the 1973 Constitution, which failed to hold then President Ferdinand E. Marcos accountable for his wrongdoings.
Judicial review as a duty of courts.
Jurisprudence, however, has apparently deviated from this otherwise clear intent.
In 2003, ousted President Joseph Estrada filed an impeachment complaint against then Chief Justice Hillario Davide that was eventually dismissed by the House Committee on Justice. Four months later, one-thirds of the members of the House of Representatives endorsed an impeachment complaint against Davide filed by congressmen Gilberto Teodoro and Felix Fuentebella. Such an endorsement would have warranted the transmittal of the complaint to the Senate, but Davide’s camp claimed that the complaint was unconstitutional on grounds that the Constitution says that the House may only initiate one complaint per year. House leaders claimed that Estrada’s complaint was not an “initiation” by the House and should therefore not be counted, prompting Davide’s supporters to bring the matter before the Supreme Court.
In a unanimous decision, the Supreme Court declared the impeachment complaint unconstitutional. Further, it reversed the earlier consensus that impeachment is a purely political matter that is exempt from judicial review. The ruling, penned by then Associate Justice and now Ombudsman Conchita Carpio-Morales, states that judicial review applies on impeachment since, unlike in other “truly political questions,” there are judicially-discoverable standards on which to adjudicate legal questions relating to impeachments. These standards are the limitations imposed by the Constitution on Congress’s impeachment powers.
The Congressional leadership at that time contended that these legal questions—in this case, the interpretation of what the word initiate means in the context of impeachment—should be resolved not by the Supreme Court but by the Congress, as is the consensus in American jurisprudence. But the Court would have none of it. The Court’s stance is premised on an innovation in the 1987 Constitution that requires courts to exercise judicial review on all actions by any instrumentalities of government. My understanding is that, in the United States, the concept of judicial review is not really codified but rather assumed to be merely part of the residual powers of the Judiciary. In the 1987 Constitution, however, judicial review is not only enshrined as a power of the Judiciary but a duty as well. This, according to Constitutional Commissioner and former Chief Justice Roberto Conception, is a reaction to the tendency of pre-1987 courts to be too timid in exercising judicial review, citing the political question doctrine as an excuse.
Judicialization of politics and judicial supremacism.
The said 2003 ruling, argues Franco Aristotle Larcina in an interesting 2006 study published by the UST Law Review, has paved the way for greater judicial interventions in the impeachment process. Since the premise of the ruling is that judicially-discoverable standards invite judicial review, it should follow that the Court may also determine the validity of the decisions of the Impeachment Court in cases of, say, treason, bribery, and graft and corruption. These offenses, after all, have concrete legal meanings that can serve as judicially-discoverable standards to adjudicate questions regarding whatever ruling the Impeachment Court makes on such cases. In short, while Carpio-Morales insists that the matter of her 2003 ruling was case-specific, Larcina argues that it actually opens the door to judicial review even on impeachment decisions themselves, among other things.
But despite what he identifies as its “imperfections,” Larcina generally thinks that the 2003 ruling is not totally undesirable. He sees it as merely a part of the “judicialization” of contemporary Philippine politics, where the public routinely asks the Supreme Court to resolve even questions that are political in nature– perhaps due to the Judiciary’s heretofore reputation as an unassailable bulwark of democracy or, as undersecretary for communications Manuel L. Quezon III thinks, the superstitious awe that men of the robes inspire. Indeed, Larcina even sees this judicial activism as a “stabilizing factor.”
Obviously, however, much has happened since Larcina published his thesis. Specifically, Gloria Macapagal-Arroyo happened. During much of her illegitimate term, Arroyo fended off threats to her political life and in the process undermined many of the country’s institutions. Taboo after taboo were violated, for instance; even the tool of martial law was used for political ends. And in her efforts to dodge post-presidential prosecution, she stuffed vital institutions like the Office of the Ombudsman and the Supreme Court with her loyal minions. As a result, for instance, the country does not have a Chief Justice with impeccable moral ascendancy anymore.
In short, the public can no longer “rely on the wisdom of the Supreme Court to exercise its awesome power of judicial review in a judicious and circumspect” manner, as Larcina wrote in his thesis. In this context, judicialization is no longer a mere stabilizing factor but a tool that can be used to undermine the constitutional checks and balance system itself. I call this judicial supremacism, where the Judiciary can check the Executive and the Legislative, but not the other way around.
Clash of values.
Therefore, the clash between the values of upholding the predominantly political nature of impeachments versus that of upholding the duty of the Judiciary to exercise judicial review has become more pronounced. This is a clash that the framers of the 1987 Constitution apparently failed to anticipate, and this is a clash that the Philippines must confront as part of its long-term transition into a modern, viable democracy.
In my view, the best way to resolve this is to go back to the American paradigm. The Judiciary must continue to view judicial review as a duty, but impeachment—particularly impeachment of a member of the Judiciary—must be an exception.
The clear intention of the Constitution when it enshrined judicial review as a duty is to protect the constitutional rights of citizens. On the other hand, ensuring accountability among public officials is the intention behind the provision on impeachment. If the latter gives way to the former, the latter’s value would be gravely compromised. If, on the other hand, the former gives way to the latter, the harms would not be as grave.
For instance, even without judicial review, any abuses on the part of the Legislative in the exercise of their impeachment powers can be checked by the electorate who could choose to penalize their representatives in an election. On the other hand, the public is without recourse should the Judiciary commits abuse in its exercise of judicial review over impeachment processes. Indeed, as columnist Manuel Buencamino wrote, assuming that there could be “impartiality from Supreme Court justices when one of their own is being impeached… defies reason. It goes against human nature.”
More importantly, unlike in a criminal trial where what’s at stake are the rights and liberty of the accused, in an impeachment case what’s at stake is merely the impeached official’s privilege—not even a right—to hold public office. Clearly, in the scheme of things, the privilege to hold public office is subordinate to the State’s right to rid itself of erring officials.
ELSEWHERE: Very impressive compilation of information related to impeachments and judicial review, including transcripts of Constitutional Commission debates, here.