Impeaching the Supreme Court

Former senator Rene Saguisag, who is seeking the impeachment of eight justices of the Supreme Court, is quoted as saying that his aim is simply “to set the record straight,” and not necessarily to pave the way for the return of Joseph Estrada as president.  He believes that by setting “the record straight,” we will be strengthening the rule of law and restoring respect for our institutions.

I agree with him.  I agree that we should not shy away from an open discussion of the events that dislodged Estrada from the presidency and allowed his vice president, Gloria Macapagal-Arroyo, to succeed. I also believe that this could have the beneficial effect of educating our people in the nature of government and the law, and of prodding them to participate more actively in the nation’s affairs.  I do not think the issues raised should be dismissed out of hand, or impugned as potentially destabilizing.  Some things are far more destabilizing – corruption in high places, electoral cheating, war in Mindanao, crime, mass poverty and oppression, etc.

My one reservation about impeaching the Supreme Court at this time has to do with the context, which diminishes the moral import of the case.  Saguisag’s client is facing plunder charges at the Sandiganbayan.  Government prosecutors have spent the last two years presenting evidence to prove these charges.  It is Estrada’s turn to refute the government’s case, yet he stalls by insisting he cannot be prosecuted because he is still president.  Instead of proving his innocence, he raises the same question about his current status that the Supreme Court had resolved earlier, with finality.

It would have been more correct if the impeachment case were filed at the start of the Macapagal-Arroyo presidency.  Or before the Supreme Court was asked to rule on the legality of Ms. Macapagal’s succession.  To question the honesty and credibility of a court only after it has handed down a decision unfavorable to one’s client cannot possibly strengthen our institutions or reinforce the rule of law.

Saguisag says the inside story of the Court’s extraordinary initiative to swear in Gloria Macapagal-Arroyo on January 20, 2001 is only now being told.  He cites the revealing account of Justice Artemio Panganiban in his latest book, “Reforming the Judiciary.” Panganiban relates how he felt on January 19, after top officials of the military and the police announced their withdrawal of support for President Estrada.

“From that point on,” Panganiban writes, “it became clear to me that President Estrada could not effectively govern the country, but that Vice President Arroyo could not legally lead it either. In other words, from that fateful afternoon, there was no effectively functioning government in the country.”  He decides to call Chief Justice Hilario Davide in the early morning of January 20 to share this troubling thought.  Davide’s ruminations on that day are running on parallel lines.  “He asked me to announce over radio and television his intention to administer the presidential oath to the then Vice President.”  One of the SC justices hears the announcement, and calls the Court to verify and question the proposal.  That morning, Davide calls the justices to an emergency session.  Twelve came, and, “after an animated discussion on the various constitutional aspects of the situation,” they unanimously authorized the Chief Justice to administer the oath to Ms. Macapagal provided a letter requesting such was received from her. “They even went to the Edsa Shrine to witness the oath-taking ceremony.”

In light of this information, Saguisag contends, the justices appear to have prejudged the legitimacy case later brought before them.  They were passing judgment on the legality of an event they had a direct hand in bringing about.  They had sworn in a president even before it was clear whether or why the presidency was vacant.

Though they were unanimous in affirming the legitimacy of the new president, the justices did in fact have differing interpretations of the events that warranted Macapagal’s succession.  There were four theories, says Justice Panganiban. The majority of the justices believed that Estrada had resigned.  Two justices insisted he had become incapable of governing the country.  One thought he practically abandoned his office.  And four believed that while Estrada neither resigned nor voluntarily left the presidency, the reality is that there is a new president who has been recognized as such by Congress, the international community, and by the people.

It is clear that on January 20, 2001, the justices were acting against the background of a perceived crisis. They were concerned about the Constitution, but more than that, they felt protective of a political order they thought could rapidly descend into chaos.  Rightly or wrongly, they believed that at that moment, only the Supreme Court had the credibility and power to avert lawlessness.  The historic path they took was to swear in the vice president as president.  It was an unusual move taken at an extraordinary time that paid little attention to legal procedure.

Did they do the right thing?  This, to me, in the final analysis, is a political question, not a legal one.  The impeachment case against the Supreme Court in effect seeks to reverse Edsa II.  If the Filipino people think there is a need to do this, they will, I am sure, find a way. In the meantime, there is no reason why the Sandiganbayan should not proceed with the trial of the plunder case against the former president.


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