Can the SC act on Corona’s petition?

Theodore Te
The Court has no authority to decide on an impeachment complaint directly or indirectly

Theodore Te

The question of whether the Supreme Court may review Renato Corona’s petition challenging the validity of the impeachment proceedings against him has stirred much debate and discussion. Much has focused  on the role of the Supreme Court in the impeachment process.

Because completed impeachments are as rare in the Philippines as snow, our jurisprudence is also sparse when it comes to this area. The two most recent cases both involved uncompleted impeachments, i.e., the complaints had yet to pass the House of Representatives which, under the Constitution, has the sole power to initiate impeachment.  

These two cases are  Francisco, et al. v. House of Representatives (G.R. No. 160261 and companion cases, Nov. 10, 2003), involving former Chief Justice Hilario Davide, and Gutierrez v. House of Representatives et al., (G.R. No. 193459, Feb. 15, 2011; Motion for Reconsideration denied March 8, 2011 ) involving resigned Ombudsman Merceditas Gutierrez.  

The decisions in both cases were written by then Associate Justice now Ombudsman Conchita Carpio-Morales and both involved the same issue—whether the impeachment complaints filed against Davide and Gutierrez violated Article XI, sec. 3(5) of the Constitution which provides that “(n)o impeachment proceedings shall be initiated against the same official more than once within a period of one year.”

In the Francisco decision involving Davide, the Court declared the impeachment complaint against him to be unconstitutional while in the Gutierrez Decision, the Court upheld the impeachment complaints.

The Corona petition does not raise the same issue and, thus, both Francisco and Gutierrez may not directly apply as precedent, particularly on the pivotal issue of the Court’s role in reviewing the acts of the Senate as an impeachment tribunal.  

It is, what judges love to call, a case of first impression.

What is before the Court in Corona’s petition is the tension between the power of the Court under Article VIII, sec. 1 and the power of the Senate, acting as an impeachment tribunal, under Article XI, section 3(6):

Judicial Power (Art VII, Sect 1, 2)

     Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
     Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which (sic) are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Senate as Impeachment Tribunal (Art XI, Sect 3, par 6)
     (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

The tension between these two provisions is caused by Corona’s invocation of the last clause in paragraph 2 of Article VIII, section 1— the power of the Court to determine whether a branch of government has acted in grave abuse of discretion–against the first sentence of Article XI, sec. 3(6), which grants the Senate the sole power to try and decide all cases of impeachment.  

He underpins his argument in connection with the guarantee of due process under the Constitution, provided in Article III, section 1, covering  “life, liberty and property.”

The Nixon case

The question the Court needs to ask itself is “whether we can act at all” on the Corona petition.

Both the Francisco and Gutierrez decisions are not in point on whether the Court can intervene and review the acts of the Senate, acting as the sole judge in impeachments.

In Nixon v. United States, 506 US 224 (1993),  the US Supreme Court ruled on the role of the Supreme Court in impeachments. 

The case involved an impeached Chief Judge of the US District Court for the Southern District of Mississippi Walter Nixon who, after being tried by the Senate, was convicted and ordered removed from his office.  Nixon argued that the act of the Senate in constituting a committee of senators to “receive evidence and take testimony” violated the Constitution which grants the Senate authority in impeachment trials, because it prohibited the whole Senate from taking part in the evidentiary hearings. 

The US Supreme Court, through then Chief Justice William Rehnquist, ruled that Nixon’s claim was “non justiciable” for being a political question;  simply put, it was outside the power of the courts to review.

The Nixon case involved the United States’ counterpart to our Article XI, sec. 3(6), which, with the exception of a few stylistic revisions, is essentially identical:

Art XI, Sec 3, Par 6, 1987 (Philippines) Constitution
      (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

Article 3, Sec 3, clause 6, US Constitution
     (6) The Senate shall have the sole power to try all Impeachments.  When sitting for the Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the Concurrence of two thirds of the Members present.

Nixon argued that the word “try” meant the proceedings must be in the nature of a judicial trial and that this meant that this prohibited the Senate from delegating the authority to receive evidence to a committee of Senators. Nixon argued that “courts may review whether or not the Senate ‘tried’ him before convicting him.”

The US Supreme Court disagreed with him, both in his interpretation of the word “try” in relation to the need for a judicial trial at the Senate and his submission that the courts may review the acts of the Senate.

In his decision, Chief Justice Rehnquist stated that:

“The history and contemporary understanding of the impeachment provisions support our reading of the constitutional language.  The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers. xxx  This silence is quite meaningful in light of the several explicit references to the availability of judicial review as a check on the Legislature’s power with respect to  bills of attainder, ex post facto laws, and statutes.  

“The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. Indeed, Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. Despite these proposals, the Convention ultimately decided that the Senate would have ‘the sole Power to Try all Impeachments.” xxx

“According to Alexander Hamilton, the Senate was the ‘most fit depository of this important trust’ because its members are representatives of the people.  xxx The Supreme Court was not the proper body because the Framers ‘doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task’ or whether the Court ‘would possess the degree of credit and authority’ to carry out its judgment if it conflicted with the accusation brought by the Legislature—the People’s representative. xxx

“There are two additional reasons why the Judiciary and the Supreme Court in particular, were not chosen to have any role in impeachments. First, the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses—the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly  provides for two separate proceedings (in clause 7). The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments.

“Would it be proper that the persons (referring to a situation where the Supreme Court would be the trier in impeachment), who had disposed of his fame and his most valuable rights as a citizen in one trial, should be in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend that error in the first sentence would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights, which might be brought to vary the complexion of another decision?

“Certainly, judicial review of the Senate’s ‘trial’ would introduce the same risk of bias as would participation in the trial itself.

“Second, judicial review would be inconsistent with the Framer’s insistence that our system be one of checks and balances.  In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature.

“Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the ‘important constitutional check’ placed on the Judiciary by the Framers.  Nixon’s argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.”

No jurisidiction

The quote, though lengthy, is crystal clear on the extent of judicial involvement in impeachments under the United States Constitution—there is none.

While directly in point because our Constitution has the exact same provision conferring on the Senate sole power to “try and decide” impeachment cases, our Supreme Court is, of course, not bound by the Nixon decision.

It is, what lawyers call, only persuasive.  However, in the absence of an authoritative case on the matter, the degree of persuasion of the Nixon case naturally increases.

Can the Supreme Court act, therefore, on the Corona petition?

If it were to adopt Nixon as a standard, it cannot—for the reasons given in the US Supreme Court’s Decision.  

However, even if the Supreme Court were only to consider Nixon persuasive, I submit that it cannot act for two reasons: (1) no power has been granted to it by the 1987 Constitution to review the actions of the Senate when it comes to impeachment; and (2) the Senate has been given not only the power to “try” but also to “decide.”

The Constitution does not confer on the Supreme Court power of review over questions of law of the Senate.

Article VIII, sec. 5(5) of the Constitution enumerates the powers of the Supreme Court.  Of those enumerated, only item 2 would be relevant for purposes of the Corona petition:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

The Corona petition seeks to review the acts of the Senate in accepting the Articles of Impeachment, which the Chief Justice claims is constitutionally deficient, and the order of the Senate directing that his bank records be revealed, for violating prevailing laws as well as for breaking his constitutional right to due process.  

Under the grant of powers to the Supreme Court to review, the only possible ground that could be invoked would be that in item (e) involving pure questions of law. The difficulty with this position, however, is the text of the Constitution itself.  

The underscored portion “final judgments and orders of lower courts in” must be read in relation to item (e) involving “(a)ll cases in which only an error or question of law is involved.”  

Try and decide

No one will doubt that the Senate, as an impeachment tribunal, does not fall within the definition of a “lower court.” 

For this reason alone, the Corona petition cannot locate a grant of power to the Supreme Court to take action simply because its power of review over questions of law is limited to those of lower courts. 

A liberal interpretation of this grant of power, i.e., to consider the acts of the Senate as reviewable, would ignore the clear language of the Constitution, confer a power on the Supreme Court not conferred by the Constitution and undermine the clear intent of the Constitution to make the Senate the final authority when it comes to impeachments.

Acting on the petition would amount to usurping the Senate’s sole power to “try and decide” impeachment cases.

In this respect, the text of our Constitution’s grant of power to the Senate in impeachment proceedings differs from that of the US Constitution. 

The language of the US Constitution is that “(t)he Senate shall have the sole power to try all Impeachments.” 

The language of our Constitution is slightly but substantially different, especially when taken in context of the Corona Petition—“(t)he Senate shall have the sole power to try AND decide all cases of impeachment.”

The grant of power to the Senate is two-fold: try and decide. In both, the Senate has the sole power.

The Corona petition (and those others now consolidated with it) asks for one thing in common: to stop a trial that has already started and to which the respondent, the Chief Justice himself, has actively participated. 

When the Chief Justice asks for a permanent injunction to restrain the proceedings perpetually as well as a judgment annulling the impeachment complaint and the trial, what he is asking is for the Supreme Court to “decide” his fate.

The Supreme Court has no authority to decide on an impeachment complaint directly or indirectly. Granting an injunction and/or annulling the impeachment complaint or the trial itself is to “decide” on the fate of the impeached Chief Justice.  The power to “try and decide” is granted “solely” to the Senate.

A TRO will produce not only delay but also amount to a “decision.”

A temporary restraining order against the Senate would also violate this duty simply because the Constitution also provides that the trial at the Senate shall “forthwith proceed.”  

It is clear that what the Constitution contemplates is an expeditious trial with no undue delays.  Understandably so because the roster of impeachable officers pertain to those exercising tremendous power and authority and a lengthy or delayed trial would produce instability in governance that would be prejudicial to the people and the smooth operation of government. 

Beyond the ‘hooting throng’

A restraining order by the Supreme Court, which is effective unless lifted,  directed against the Senate, acting as an impeachment trial, will be in violation of this constitutional command as well.

Also, a restraining order cannot be issued absent a “clear legal right.”  It is significant that the Chief Justice situates his claim to relief on the guarantee of due process under Article III, section 1, which provides that “(n)o person shall be deprived of life, liberty or property without due process of law…”  As the consequences of impeachment extend no further than removal from office and disqualification from any other public office, it becomes extremely difficult to understand how the trial at the Senate could violate Article III, section 1 as neither life, liberty nor property is at stake.  Even by the most liberal stretch of the imagination, the public office of “Chief Justice” cannot be considered Corona’s “property” as, in fact, the contrary is provided for by the Constitution itself—“public office is a public trust.”

A restraining order by the Court on the Corona petition will therefore involve a “decision” that one of those rights is at stake. Not only will that not be supported by the text of the Constitution itself, it will also mean that the Court has acted to “decide” on a matter presented to the Senate as an impeachment court. 

Again, that falls outside the grant of power to the Court and squarely within the grant of power to the Senate.

It is unfortunate that the Corona petition had to be filed at all.  

It places the Court in an extremely difficult situation of having to act on a petition that is premature, at best, and non-justiciable, at worst. That it came from the Chief Justice, who injudiciously pandered to the “hooting throng,” makes it doubly unfortunate.   

A line drilled into the heads of every first year constitutional law student is Chief Justice Marshall’s line: “It is emphatically the province and duty of the judicial branch to say what the law is.” 

It is hoped, however, that the Court may, as an institution, clearly see beyond the din and the noise and decide where the boundaries lie. –

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