[OPINION] Republic v. Sereno as a teachable moment

As we unpack the legal and policy implications of the Supreme Court decision in Republic v. Sereno, it is easy to fall into the trap of once again attacking the individual personalities and unfairly maligning the Court as a collegial, constitutional institution.

As someone who disagrees with the decision, it is tempting for me to give in to the urge of joining the chorus of dissent, which ranges from the sober and brief (see Ted Te’s simple “I dissent!” post) to the angry (see posts vilifying the members of the 8-person majority) to even the slightly bemused (see every single post trying to tie this issue to Avengers: Infinity War).

Perhaps because I am afforded the privilege of distance, or maybe because I have too much time on my hands, I have to insist on being as clear-eyed as possible about this issue. (EXPLAINER: How SC majority tried to close all doors for ousted Sereno)

The decision and its fallout will prove to be a series of teachable moments, for members of the profession, for law students, and for the public. And based on what I’ve read from the decision, the separate opinions, and the commentaries I’ve seen, here are some takeaways:

1. We need to recall that the Supreme Court is and must still be the institution with the last say on what the law says. There’s a lot of talk about how the Court, because of the erroneous decision, has lost all credibility, lost all integrity, has surrendered its independence, and so on. The fact of the matter is, the Constitution remains what it is, the checks and balances remain (at least theoretically) in place, and that when push comes to shove, we will still need to turn to the Supreme Court to tell us what the law is on a given matter.

If we cannot do that, and if we refuse to do that, knowing as we do that the Supreme Court’s authority derives from the Constitution and from the esteem that it is accorded, then we may as well concede the end of the democratic republic under the Constitution and give a would-be dictator what he wants. We must remain faithful that at the end of the day, the Court will do what needs to be done.

2. That said, we need to recall that the Court is also a human institution, and that the people that make it up can make mistakes. In this case, 8 Justices made a mistake. That the Court can be wrong, or that it can fail us, at least politically, is not new. We need to recall how the Supreme Court failed in the 1970s when it ruled for Ferdinand Marcos’ dictatorship in Javellana v. Executive Secretary. We need to recall how the Court made a dangerous, if not flat-out erroneous ruling on Presidential resignation in 2001 in Estrada v. Desierto.

People who disagree with the case of Grace Poe (not counting myself among these) will say that the Court erred in the 2016 case of Poe-Llamanzares v. Comelec. We can talk about cases and lines of cases, but the takeaway is this: The Court can make wrong decisions, or at least decisions that can be said to fail us. That notwithstanding, though, the Court’s decisions still stand.

3. We need to remain optimistic that in as in other situations, the Court’s errors can be corrected. Either the Court revisits and corrects itself, or Congress passes a law, or the Constitution is amended. The Philippines and Filipinos have shown a capacity to overcome disasters of government, policy, and law; there is no reason to doubt our ability to bounce back after this decision.

4. The majority opinion in Republic v. Sereno will be picked and torn apart, as it should be. It is, after all, one of the most convoluted and self-indulgent opinions issued by the Court in years. The majority opinion is complicated because it is trying to reach conclusions that shouldn’t be reached. And the dissents are bright and clear because the preponderance of legal and historical authority is on their side. The 6 dissenters deserve all the praise that they are getting.

For example, when the majority opinion speaks of “may” as allowing a quo warranto case against an impeachable official, there is this long discussion that invokes a principle of legal interpretation that says when a word has a plain meaning, there shouldn’t really be any further attempt at reading it. The problem with that reasoning is that the debate on what “may” means is a clear demonstration that the ambiguity in the text of the law makes a resort to alternative means of interpretation necessary. And the majority opinion actually does this by saying that “may” means that impeachment remains only one alternative of removing a public official. As has been pointed out, “may” might actually mean that the Senate is not obliged to remove an impeachable official, but that the intention to preserve impeachment as a sole means of removal remains.

If the Court had only gone into the intent of the framers of the Constitution, as it might have, it would have found that the writings of Joaquin Bernas, among others, say that impeachment is a sole remedy. They would have found that the Record of the Constitutional Commission (see Volume II, somewhere around pages 273 and 356) shows that impeachment is always discussed in the context of being the exclusive remedy for removing impeachable officials. Framers of the Constitution who are either still alive or active have come out publicly to express this view. If we aren’t going to follow the intent of the authors of the document, then there really is a lot of dangerous ground ahead because all sorts of bullshit can be made up in support of erroneous arguments.

To be fair to the majority opinion, there’s an attempt to explain both quo warranto and impeachment as means of removing public officials. The problem with that long, and ultimately unhelpful, discussion is that every single successful quo warranto example given involved a non-impeachable official. Republic v. Sereno is unprecedented because there is really no legal precedent for it, in either Philippine or other legal jurisprudential history.

There’s also the long, self-serving discussion about inhibition on the part of most of the majority. We can chalk this up to internal politics (it’s not a big secret that Chief Justice Sereno may have rubbed some of her colleagues the wrong way), no matter how disappointing and how insipid that ends up making all of this.

But there would have been no victory for the pro-quo warranto side if there was inhibition. The grace with which the Chief Justice conducted herself by not even casting a vote in her own favor (she probably could have been allowed to, since her accusers were part of the judges that were going to rule against her anyway) should be noted as a clear contrast.

Then there’s also all sorts of questions that can be asked and hammered home: So why not demand the impleading of the JBC that waived the SALN requirement or the former president who signed the appointment papers? Why not allow quo warranto cases against the other Justices who have likewise failed to file SALNs or who are otherwise in the same factual situation as Chief Justice Sereno (after all, we believe and must insist on equal protection of the law)?

These are, of course, just some of the key questions and points. The dissents are more articulate than I am.

5. There’s a question about where this leaves us. As far as we can tell, reconsideration of the decision will be sought, however difficult that objective is. Remember that two votes are needed to change the majority, since a deadlock will only confirm the decision. I’d caution against the filing of quo warranto cases against the 8 members who voted: remember, that if they are removed, they will need to be replaced. And we all know who will be naming the replacements, and how terrible his choices have been.

6. There is the question about where this leaves members of the legal academy and profession, if legal principles we were taught in law school could simply be cast aside the way that they have. I think we still have a job to do, and a duty to continue teaching our students about the law, about the importance of the rule of law, and about the importance of upholding the Constitution and our democratic institutions.

We can and should continue to insist that the decision in Republic v. Sereno is wrong, or unsound, and do our students the service of continuing to tear it apart until the decision’s deleterious effects are addressed either by the Court, by Congress, or by an appropriate change to our Constitution under the right circumstances. At the risk of engaging in too much self-praise, I must point out that law students and lawyers will still remain the back-up plan and the lead advocates against dictatorship, and among the most important soldiers in a battle to defend the Republic against tyranny.

7. There is a lot to remain positive about, as citizens continue to ask questions, to sense that there is something wrong about how things are, and begin to ask about what can and should be done. A tipping point is being reached, and a reckoning is coming. And when it does, our people will come out ahead, and overcome all of this. If we cannot believe that, then we are lost, and the Republic is truly dead. But if our young people remain engaged, and act when the time is right, then not even this decision can doom us. – Rappler.com

Ramon Miguel C. Samson is a member of the faculty of the Ateneo Law School. The views expressed here are the author’s own.