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[OPINION] The trouble with Justice Leonen

At the start of the week, an impeachment complaint was filed against Justice Marvic Leonen. The grounds involve betrayal of public trust and culpable violation of the Constitution. In a nutshell, the primary attacks involve failing to resolve cases speedily, “sitting” on cases in the HRET (election disputes involving Congressmen) arbitrarily, failure to file SALNs.

Any law student, lawyer, or citizen interested in the issue should spend time to read the Complaint. It is a fairly short one, and an easy read. Those who read it can easily form an opinion about its chances and those of its authors. The key thing to remember is that the Constitution places an extremely high bar of removal from office. Otherwise, Congress turns into an HR department. 

While it might be a political curiosity that a Marcos cousin was the one who endorsed the complaint, it has no legal bearing on the complaint’s substance. In the same manner, institutional or political affiliation by itself should not be a ground to remove justices. We all have families, a work history, and an alma mater. Impeaching people primarily on their beliefs, or who their relatives or classmates are is not what the Constitution contemplates. 

A significant portion of the complaint is devoted to showing that Justice Leonen is “Anti-Duterte,” pointing out that he was appointed by President Aquino, worked under the Aquino administration, and therefore rules in favor of them almost all the time. Last November in the US, President Trump, a Republican, nominated who else but a Republican (Justice Barett) to the vacancy in their Supreme Court when Justice Ruth Ginsberg died. And to no surprise, in her first vote, Justice Barrett aligned with conservative, Republican values. This is part of the current framework. A President is expected to nominate those who are aligned with his administration’s views, values, and priorities. That is exactly what the Constitution assumes. What matters is whether their opinions are based on law. And it appears that in what he has written, Justice Leonen’s views are. More crucial, removing a justice for dissenting too much means you should also remove justices who agree too often. 

Another aspect is fraught with constitutional implications. Much of the factual circumstances in the complaint have been raised at least two times before the Supreme Court. This creates the particularly challenging question: Can impeachment be used to secure a remedy that has not been granted by the High Court? Of course we all know Congress has the power of impeachment and the branches are co-equal. The nuance here is the way this particular impeachment arrives. In our system, decisions by Congress or the President get challenged in the Supreme Court. There is a delicate balance to this interplay. Like a bull in a china shop, Gadon may be “charting new constitutional grounds” by directly submitting these questions to Congress after failing to secure the desired result in the courts. It is not so much a question of jurisdiction (that is easy), but constitutional/institutional propriety.      

I am unsure why there is a charge that Justice Leonen (or any judge or justice for that matter) should be removed for failing to decide around “36 cases within the 24 month period” in the Constitution. There are Supreme Court decisions that answer this question. But even as a “political” ground, I wonder if it is wise to prosecute a justice for not deciding 36 cases in 24 months. We are talking about the Supreme Court after all, where the matters raised are presumably complex and challenging. Moreover, the possibility exists that the other justices are circulating their own views on these cases or they have not been calendared by the Clerk of Court or the Office of the Chief Justice for discussion. Gadon might be on a crusade for judicial efficiency, but I wonder if dissecting the internal processes of the High Court is the best way to start it.  

The same observation goes for the charge that Justice Leonen is “arbitrarily” delaying cases in the HRET, which decides election disputes for congressmen. The HRET is actually made up of a mix of SC justices and Congressmen. It would be interesting to watch how Congress will investigate this charge of “arbitrary delay” since it will have to ask its own members the same question. Because in a collegial body like the HRET, the body acts as one.     

This being impeachment, beyond the specific legal grounds of the Complaint, fundamental “policy” questions arise. Gadon devoted considerable space to painting Justice Leonen as a “dissenter.” Is this the standard by which we would decide matters of impeachment? Or more fundamentally, is this the test of who gets to sit and (in the case of Justice Leonen) remain in the High Court? While a President can appoint whoever he chooses, he also has to respect the choices of his predecessors. Which is why it was also proper for the High Court to close ranks when the Aquino administration tried to go after those it saw as “GMA justices” after it succeeded against CJ Corona. 

The other key question is whether the person politically “deserves” to remain in the High Court. Former students of Justice Leonen will remember hours of agony, with some berated in a manner that still scars them today. One time, I had an excruciating toothache, but sheer terror actually overpowered it when he called me to recite. After class, I rushed to a dentist for an emergency extraction. I disagreed with some of his decisions as Dean and we have different views about how UP should treat/encourage “commercial law” subjects vis-à-vis “public interest lawyering.” He gave me a hard time during the PDAF oral arguments in the SC as with other cases, and has cited some lawyers I know for contempt. And yet, it is not difficult to respect Justice Leonen for what he unflinchingly (stubbornly) stands for.

And that is the trouble with Justice Leonen. It is quite easy to form an opinion about him. He has fans (and is quite popular on Twitter) as well as critics, which is precisely what saves him. Because whether one was terrorized by him as a student or disagreed with his prerogatives in the past, it is much better to have a justice so stubbornly committed to a philosophy or advocacy than to have one who has none. And to be truly representative of the entire country it judges, a Supreme Court needs a diversity of viewpoints. And his views – which prioritizes the environment and indigenous peoples over almost all others – deserves space in ours. One doesn’t have to “love” Justice Leonen to realize that you need people like him in the High Court – especially at this time. 

Ultimately, all these considerations take a backseat to this question: With a pandemic still raging, thousands of businesses closed, and millions jobless, is an impeachment trial really the best use of Congress’ time? And for whose benefit are we doing it? The DOH is drowning. And the DOF, the BSP, and NEDA are struggling to keep the economy intact. Now they have to compete with this for Congress’ attention. If a legislator’s time is to be taken away from attending to his constituents’ needs during a pandemic, it matters for whom will that sacrifice be. – Rappler.com

John Molo is a commercial law litigator who enjoys reading and learning about the Constitution and its intersection with politics. He teaches Constitutional Law at UP Law-BGC, where he also chairs the Political Law Cluster of the Faculty. He is the President of the Harvard Law School Association of the Philippines, and a past Chairman of the IBP Law Journal. He led the team that sued the Aquino administration and invalidated the PDAF.