Balancing the political and the legal

Where do we draw the line between law and politics? As a student of institutions, I subscribe to the theory that the boundaries between the political system and the legal system, far from being carved in stone, are continuously negotiated. This is so even in mature democracies like the United States; it is true even more in transitional societies like ours, where institutions are in flux.

The relation between law and politics is a constantly evolving one. While political events are regulated by law, the actual scope of legal application cannot ignore the claims of political reason. As a result, there is no permanent line separating the power of judicial review from the power to craft public policy. There is no specific guide as to when it is proper for the courts to interfere in the work of political bodies. Sometimes courts take the path of judicial activism, as when they take on legislative functions that belong to political bodies. At other times, they err on the side of judicial restraint, as when they allow political branches as much constitutional leeway as they need to achieve national goals.

The debate continues, spawning a wide range of constitutional and political schools of thought. One side wants the courts to shed their timidity and play an active role in defining public policy. Such courts would treat almost every issue as “justiciable,” formulating a suitable principle on which to base a decision as they go along. The other advises restraint, leaving policy to the political branches, and reserving the use of the moral capital of the courts for those crucial times when there is a need to check outrageous violations of the Constitution.

There has been much discussion lately on the nature of the impeachment process: whether it is a political exercise or a judicial process. To my mind there is no question that it is a political exercise. The Constitution explicitly provides that it will be conducted by the House of Representatives and the Senate, both political bodies. The House has the sole power to initiate impeachment, and the Senate has the sole power to try impeachment cases. There is no ambiguity there.

Despite being lodged in the political branches, impeachment deviates from the usual legislative work of Congress. Still, it shares with legislation the orientation to public policy, i.e., the determination of what is good for the nation. Thus, even as impeachment mimics the judicial process and uses the latter’s vocabulary (trial, admissibility of evidence, prosecution, defense, juror/judge, rules of court, guilt, innocence, etc.), its basic character remains political. When senators wear the robes of magistrates, they do not thereby lose their political instincts. An impeachment “court” has only one decision to make: to remove or to retain a public official. The sole criterion that is to guide this decision is the nation’s best interest.

Clearly, this is not how regular courts are supposed to work. If the framers of the Constitution had meant impeachment to be a judicial function, they would have assigned it to the Supreme Court. There, public opinion would (or should) have no place. Even the national interest would be an irrelevant consideration, except only in the broad sense of preserving the rule of law. Judges are duty-bound to take into account only the evidence and the law, not public perception. In this manner are courts shielded from politics.

But impeachment is, from beginning to end, subject to the code of politics. The question, will it do the nation good to dismiss a sitting president or chief justice, is entirely political.  The senators have said they will each vote according to their conscience. We can be certain they will be no less governed by how they wish to be perceived by the electorate.

At the impeachment of US President Bill Clinton, the vote strictly followed party lines.  Republicans convicted Clinton, and his fellow Democrats acquitted him. That’s as political as one could get. Many thought Clinton had committed an impropriety about which he lied. But his party mates decided that even if true, the offense was not grave enough to warrant his removal from the presidency. The controlling factor was not Clinton’s guilt or innocence per se, but what the senators thought was in the best interest of the nation.

The case against Chief Justice Renato Corona can go either way. The senator-judges will not necessarily vote along party lines, because, after all, these are perennially shifting in our country. They will be guided by what they think will be perceived by the public as fair. It is difficult to see how the senators can ignore public opinion. This is a very public trial. Everyone performs for the television cameras.

Those who will acquit Corona will say that, so long as he can account for his properties and bank deposits as legitimate assets, his failure to declare them in his statements of assets, liabilities and net worth (SALNs) is not serious enough to justify removing him from office.  But those who are inclined to convict him will argue that Corona’s failure to fully disclose these assets is not a minor oversight, but forms part of a pattern of malicious concealment that is unbecoming of a chief justice. They will furthermore note that his public pronouncements in the past two months, where he heaps the blame for all his troubles on President Aquino, have made him seem more like a politician than a judge.

Perhaps a career in politics awaits Chief Justice Corona. But after all that has happened, it is hard to imagine him remaining at the helm of a credible Supreme Court.