Saturday, November 3, 2007

Why the Supreme Court Is Not Infallible and How Congress Can Correct It

Our Constitution recognizes three basic powers wielded by Government: the power to make laws, the power to enforce those laws, and the power to decide justiciable cases based on those laws.

I used to think that Separation of Powers could be explained as follows: the Legislative Power belongs to the Legislative Branch of Government called the Congress; the Executive Power belongs to the Executive Branch of Government as headed by the President; and the Judicial Power belongs to the Judiciary, vested in one Supreme Court.

Most people still see it that simplistic manner and this has caused no end of confusion and trouble. As we shall demonstate in this post, the Separation of Powers is not pure and the Constitutional formula for the distribution or division of powers actually results in a mixture of powers being held by each branch of government, in such a way that a very effective and sophisticated system of Checks and Balances is attained.

The Supreme Court wields not only judicial but very substantial legislative powers, because whenever the Supreme Court rules upon a justiciable case, the resulting Decision or Resolution becomes a part of the Laws of the Land. Most significantly, the Supreme Court is entrusted with the awesome power of interpreting the Constitution itself, leading to the widespread misconception that in matters of Constitutional interpretation, the Supreme Court is infallible because it's decisions are final. (The truth is, the Supreme Court is not infallible and any of its past decisions can be reviewed and reversed by a future Supreme Court decision.)

The Chief Executive also has a rather powerful Judicial Power that was stunningly demonstrated by President Gloria Arroyo in the pardon of Joseph Estrada. In executive clemency, the Chief Executive wields a nearly absolute power to nullify the punishment resulting from even final and executory judgment of any justiciable case (except only in cases of impeachment).

The Congress also has an awesome Judicial Power that needs to be better appreciated by lawyers and laymen alike. I refer to the exclusive and sole power of the House and Senate of the Congress to remove by impeachment and conviction at trial any of the 31 Constitutional Officers of the Republic mentioned in Article XI (Public Accountability), namely, the 15 Justices of the Supreme Court; the 7 Members of the Commission on Elections; the 3 Members of the Civil Service Commission; the 3 Members of the Commission on Audit; the Ombudsman, the Vice President, and the President.

Note that the Congress does not have ANY impeachable officers. Even while holding office, the Senate President and House Speaker for example, are not immune from criminal suit. ALL the impeachable officers of the Government belong to the Executive Branch, the independent Constitutional Commissions, or the Supreme Court, which has by far the largest number at 15.

Note also that in all cases of impeachment, the verdict of the Senate to convict or acquit is final and executory--it cannot be reviewed or reversed by the Supreme Court and the punishments of removal from office and perpetual disqualification therefrom cannot be nullified by the President's power of executive clemency. For example, if the Chief Justice is impeached and convicted by the Congress, the Supreme Court cannot then restore him to that high office, nor can the President pardon him and reappoint him to it.

Thus, the Power of Impeachment, which is an essentially Judicial Power (charge and case, trial and verdict) is truly the exclusive and sole power of the Congress. Thus, Article XI on Public Accountability is like a geological formation that separates the power of impeachment from the Executive and Judicial Branches of Government and grants it entirely to the Congress--

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

Section 2. 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.

Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.
Perhaps the most important thing to understand about the concept of the Separation of Powers is its purpose--to produce a Constitutional System of government in which the various branches actually have enough power to check and balance the other branches when they make mistakes or seek to exercise powers and functions not assigned to them by the Constitution.

The principle of Checks and Balances and its integrity is crucially important because of the awesome powers granted to each branch of government. Without it, we have a dictatorship or totalitarian state in the guise of democracy. When Ferdinand Marcos declared martial law and effectively seized all State power, we fell into fascist dictatorship that was not overthrown until the Edsa One People Power revolution that resulted in the present Constitution.

Perhaps because of its entirely despicable record (Javellana vs. Executive Secretary!) to stop Marcos and his New Society Constitution, the Judicial and Jesuitic personalities that Cory Aquino tapped to craft the 1987 Constitution built into it several reactionary features whose potential for malevolent carpentry and construction is only now becoming apparent in what I consider to be a rogue Supreme Court, drunk with power after illegally overthrowing a President in Joseph Estrada (2001), protecting its own Chief Justice from impeachment in Hilario Davide (2003), and throwing a monkey wrench of an initiation rule into Congressional Power of Impeachment, which has been frustrated and cynically thwarted in its attempts to impeach Gloria Macapagal Arroyo (2005, 2006 and possibly now in 2007).

I shall not go into the details of this critique of what the Supreme Court did when it imposed on the House a self-serving rule that impeachment proceedings are deemed initiated as soon as ANY impeachment complaint is filed by ANY Member of the House and is ministerially referred to the Justice Committee. This Rule by the Supreme Court is INSANE on its face, since the exclusive power of the House to initiate all cases of impeachment is held hostage to the discretion of any single Member of the House who may endorse any impeachment complaint, such as the Pulido and Lozano complaints, merely to "innoculate" impeachable officers under the Constitution's once-per-year provision on impeachments. It is also a gross violation of Article XI Section 8 that unequivocally declares that "The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." The Supreme Court has violated this specific provision of the Constitution, because it should've ruled that it HAD NO JURISDICTION to decide when impeachment proceedings are initiated by the House, since those "proceedings" are entirely within the discretion of the Congress, limited only by the Constitution. The events in the House following the revelation of national security and political espionage violations by the Isafp and possible election fraud in the Garci Wiretapping scandal, clearly demonstrate the power to obstruct Justice inherent in that Supreme Court decision given to any Member of the House. Moreover, the Davide impeachment initiation rule upends the clear intention of the framers of the Constitution to take from the Majority the power to impeach, by giving to a mere One Third Minority of the House the power to initiate a case of impeachment that must proceed forthwith to trial in the Senate. Ironically, it was Hilario Davide himself in 1986 who proposed for impeachment initiation an even looser, One Fifth Minority Rule!

As everyone knows, the Supreme Court imposed this silly rule on initiation to save its Chief Justice from impeachment for malversation of Judiciary Funds in 2003. But the reason they were able to make it stick lies in that confusion about the true meaning of Separation of Powers that I mention at the beginning of this post and the inability of many people to understand why the Supreme Court is NOT infallible and how its mistakes can possibly corrected.

WHAT'S THE SOLUTION? I think it is becoming clear to everyone that the Supreme Court ERRED on this occasion, that it should not have degraded, compromised and usurped the power of the House to determine for itself, precisely when and how some arbitrary Impeachment Complaint actually triggers the initiation of Impeachment Proceedings. This situation is fast becoming intolerable, and is leading to a restoration of the situation that allowed Marcos to become a Fascist Dictator--that of an impotent Congress with a vassal Majority, an intellectually-challenged Supreme Court, and a captive Military.

The only solution is for the Congress itself to pass explicit new Rules on Impeachment Proceedings so as to give the Supreme Court to review and annul its past erroneous decision. The Congress must give the Supreme Court a chance to practice CORRIGIBILITY by challenging that silly rule on impeachment initiation.

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