From the inception of the principle of separation of powers of government, political thinkers such as Jean Jacques Rousseau had already envisioned a third branch of government, which he called the “tribunate.”
The function of this tribunate is to defend and ensure the safety of the laws. This tribunate serves whenever necessary to protect the people against the government, to resolve conflict among different branches of the government, sometimes to uphold the government against the people, and sometimes to maintain the balance among them.
In present-day democracies, such as the Philippines, it is the Supreme Court as the Third Great Branch of government that assumes the envisioned functions of the “tribunate.” And this mandate of the Supreme Court to interpret and uphold the law is enshrined in no less than the Constitution. The Constitution likewise provides the manner by which the Supreme Court should arrive at its decisions interpreting and/or applying the law.
As a lawyer, I do not have any quarrel with the right of the House of Representatives to file an impeachment case against constitutional officers like the Chief Justice. That is its constitutional prerogative that must be respected.
Neither do I want to prejudge the merits of the case. That is the exclusive province of the Senate under the Constitution.
But a chill of fear shot through my legal spine after reading some of the grounds raised in the impeachment case. As a lawyer, I can’t help but raise them, lest I betray my lawyer’s oath to uphold the Constitution—a duty that I voluntarily imposed upon myself “without any mental reservation or purpose of evasion” when I became a lawyer almost 30 years ago.
For one, the complaint raises, as one of the grounds, the appointment of the Chief Justice by former President Gloria Macapagal-Arroyo. But isn’t there a constitutional process by which members of the Supreme Court, including the Chief Justice, are selected?
Under the Constitution, there is a Judicial and Bar Council (JBC), which is an independent body composed of members coming from the various sectors of society and the three great branches of government, including a representative from the House of Representatives and the Senate. Its constitutional task is to pre-screen candidates for appointment to the judicial branch. This constitutional body—mandated by no less than the Constitution to follow a rigid constitutional process—limits the President’s choice. A person—no matter how close he is to the appointing power—will not get appointed Chief Justice, unless the JBC determines that he is fit for the position. So why subvert the Constitution by impeaching a person who accepts his appointment as Chief Justice after both the JBC and the President, in the exercise of their constitutional duties, determined that he is fit for the position?
Second, recall that the constitutionality of the appointment by former President Arroyo of the Chief Justice was already upheld by the Supreme Court, headed by then Chief Justice Reynato Puno. Under our tripartite system of government, it is the Supreme Court alone that is charged with the task of interpreting the Constitution, and it is undoubtedly supreme in this sphere.
By seeking to remove the Chief Justice on a ground that has already been decided by the Supreme Court with finality, is this not undermining the finality of the law and turning Congress into a court in desecration of the principle of separation? If Congress can denigrate the independence of the Supreme Court as the final arbiter of constitutional questions, why have a Supreme Court in the first place? Just hire lobbyists in Congress.
Third, do the other supposed grounds, particularly the promulgation of purported biased and/or flip-flopping decisions, not utterly ignore the constitutional process by which such decisions were reached by the Supreme Court? Unlike the Presidency, judicial power is not vested in one individual but in a collegial body; in “one Supreme Court.” In clear and unequivocal language, the Constitution provides that “[t]he conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a member for the writing of the opinion of the Court.” The decisions of the Supreme Court are arrived at only after deliberation, the exchange of views and ideas, and the concurrence of the required majority vote.
A Chief Justice cannot impose his will upon his colleagues in the Court. On the contrary, he must respect the individual judgment of the other members of the Court. This is the constitutional essence of the Supreme Court as a collegial body. So why impeach the Chief Justice for the collegial actions of the Court?
Lest we forget, the judicial branch is the last bastion of the “regime of justice” proclaimed in the preamble of our Constitution. It is the ultimate protector of the weak from the wealthy and powerful. It is the last refuge of ordinary men and women from the abuses of government. At the end of the day, it is us—We the People—who may suffer the aftermath. For our sake and our children’s sake, the Supreme Court must be allowed to decide cases on the basis of the law without regard to what politicians think of their decisions. It must, at all times, be shielded from the pressure of mob politics.
The Supreme Court should not become subservient to Congress or the executive branch. That would be an express route to the Rule of Men and not Rule of Law.
My humble point is: Given the grounds discussed above, does the impeachment case against the Chief Justice not set a bad precedent for generations to come? Does it not imperil the Supreme Court’s role as the “tribunate” that maintains the balance of power in our tripartite system of government? Will future presidents and their cohorts in Congress not take the cue from this impeachment complaint and say, “Nagawa na noon, puwede natin ulitin ngayon”?
Just looking far and beyond the Corona impeachment case!
(The author is a law professor at the Ateneo Law School. He may be contacted at francis.ed.lim@gmail.com.)