OP-ED COLUMNISTS: OPINION ON PAGE ONE BY FRANCISCO TATAD – ‘By what warrant will the Court rule?’

IN the face of President Rodrigo Duterte’s blistering attack on the embattled Supreme Court Chief Justice Maria Lourdes Sereno, whom he openly wants ousted, many expected the SC justices to rise to the occasion and demonstrate their constitutional separation and independence from the Executive Department. We saw none of it during the oral arguments on the quo warranto proceedings against the Chief Justice at the summer courthouse in Baguio City on Tuesday. We saw greater sycophancy among some justices and in the press commentariat instead.

I did not have the good or ill fortune to watch or listen to the live media coverage from Baguio. But some of my close friends had, and they thoroughly regretted everything they saw and heard. Most of them thought the exchange between Sereno and Associate Justice Teresita de Castro managed to raise the dignity of the fish market above that of our highest court; and yet the general conduct of the other justices seemed to portend the public has not yet seen the worst. There are disturbing reports that some justices have already reached their verdict even before the oral arguments took place.

To revoke or to remove?
My friend Charlie A., who has for years immersed himself in philosophical and theological studies within a highly revered religious order, thought Sereno’s counsel Alex Poblador delivered a tour de force when he pointed out the distinction between a quo warranto proceeding and an impeachment case. But not one word on this succeeded in making it to the press.

The legitimate purpose of a quo warranto petition is to “revoke” an erroneous appointment, within a reasonable time from such appointment, while the legitimate purpose of an “impeachment” is to “remove” an impeachable official on various constitutional grounds. Quo warranto is “corrective,” while impeachment is “punitive.”

This means that if Sereno had failed to file her statement of assets, liabilities and net worth (SALN) after she was appointed Associate Justice in 2010, or Chief Justice in 2012, she should have been subjected to quo warranto proceedings soon thereafter—or at least before then-President B. S. Aquino 3rd, who had appointed her, ended his term on June 30, 2016.

No such action ever took place, and the issue of her “missing” or “inaccurate” SALNs never came up until lawyer Lorenzo Gadon raised it in his impeachment complaint before the House of Representatives. The complaint has been voted upon by the House committee on justice, but the House leadership, fearing lack of support for it in the Senate, which has the sole power to try and decide all impeachment cases, has hesitated to put it to a plenary vote, so that it could be transmitted to the Senate as Articles of Impeachment.

A substitute for impeachment
Instead, the Solicitor General stepped in with his quo warranto petition, using the same SALN issue as the ground for removing the impeachable Chief Justice, who is now on leave. It is, therefore, not inaccurate to suggest that the quo warranto proceeding is being used to try to salvage the faulty impeachment complaint which might not go to trial if the Senate majority votes to dismiss it at the outset, or if, on trial, the prosecution fails to muster 16 votes to convict the respondent.

But does the Supreme Court, in fact, have the power not just to “revoke” an “erroneous appointment” after four to six years, but above all to “remove” an official who, under the Constitution, may be removed only upon impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust? The Constitution does not say so, and what the Constitution does not include, by logical necessity it excludes.

Not even the authoritarian president, as the appointing power, can remove such an official; how then can the court hope to do it? And yet having assumed jurisdiction over the case, the justices will simply now decide they have the power to remove the respondent. They can never be wrong even when they are not right.

By how many votes can they unseat their own Chief Justice? In an impeachment trial, the Constitution requires the concurrence of at least two-thirds of all the members of the Senate to convict and remove a respondent. The justices will now have to decide the number of votes needed to remove the Chief Justice. So, where DU30’s dictatorial impulse stops at the water’s edge, judicial dictatorship will take its place.

This is frightening enough, even if we had an absolutely just and impartial Supreme Court. But do we? The greatest dangers to society does not always come from the injustice of the unjust; many times it comes from the injustice of the just. We have enough evidence of this.

Impartial justice
In the last two Senate impeachment trials—the first against President Joseph Estrada in 2000-2001, and the second against then Chief Justice Renato Corona in 2011, the first thing the senator-judges did was to put their left hand on top of the Bible and raise their right hand in a solemn oath to the Almighty to “render impartial justice.”

Not just justice, which is supposed to be intrinsically impartial, but “impartial justice” — to underscore redundant intent.

But in the middle of the Estrada trial, 10 senator-judges who had executed that oath found nothing wrong in calling for Estrada’s resignation, and more senators did not mind the prosecutors walking out in the middle of the trial and going down to EDSA with the Chief Justice presiding over the aborted trial to effect Estrada’s ouster. So much impartial injustice.

In the case of Corona, 19 of 20 senators who voted to convict and remove the Chief Justice did not mind taking bribes from President B. S. Aquino 3rd in exchange for Corona’s conviction. Again, what happened to the oath to Almighty God to “render impartial justice?”

In the case of the justices now trying their Chief Justice, did they have to take an oath to “render impartial justice” before the proceedings started? No. And there was no attempt on their part to show they would try to be impartial either.

The accusers as judges
Four of them had appeared before the House committee on justice to testify against Sereno in the hearings on Gadon’s impeachment complaint, and for all intents and purposes they had become her accusers. As such, they should have inhibited themselves from sitting in judgment over her case. Sereno asked that they recuse themselves, but they contemptuously spurned her demand. So, they would now accuse and judge her at the same time.

As soon as the last argument in Baguio was heard, it was reported that Associate Justice Noel Tijam had already finished a 60-page draft of his ponencia on the case, even before the justices could hear Sereno’s side. A certain number of justices were said to have already committed their votes in support of the draft, but everyone seems to be trying to assure the stupid and the ignorant that their position has nothing to do with DU30’s naked dictatorial push to get rid of Sereno and name his own Chief Justice.

There will likely be a lot of celebration in Davao, in Malacañang and in the conscript media when the court finally rules. But what will become of the country? The ruling will, I am afraid, usher in a most dangerous time for our country. The gods of discord and unrest do not sleep.

There are those who sincerely believe the grievous wrong inflicted on the late Rene Corona by the Aquino administration and by those who sold their votes to remove him from the high court will finally be redressed, if not avenged. I deeply sympathize with this view, but regret I can’t share it. Rene (I have always called him by his first name) was more than a dear friend to me, and I would like to see him fully vindicated in the end. But I do not believe destroying the last shreds of dignity of the judiciary, which is what every little despot is now trying to do, is the way to do it. He died a martyr to justice and the truth. I don’t think that legacy should be wasted. Or devalued.

[email protected]

BY FRANCISCO TATAD ON APRIL 13, 2018   OPINION ON PAGE ONE  /   All photographs, news, editorials, opinions, information, data, others have been taken from the Internet ..aseanews.net | [email protected] | For comments, Email to : D’Equalizer | [email protected] | Contributor.