[OPINION] The options of Chief Justice Sereno

 

In the next few days, our constitutional system could find itself at a crossroad. Out of respect for the Supreme Court and its members, I will not speculate on the voting on the quo warranto case against Chief Justice Maria Lourdes Sereno nor try to influence the outcome. In my writings and public statements, I have always defended the Supreme Court. I have trust in its members and their ability to rise above their quarrels, in their ability to see the long view and the impact of their decisions on our institutions, itself included, and the legitimacy of constitutional interpretation (which says the Constitution is what the Supreme Court says it is).

As a constitutional law professor, however, I have been reflecting with my students and other colleagues on what is at stake – for constitutional rule, for the judiciary, for the Senate, for the Chief Justice herself, for the presidency, and for the country – in the decision that the Court is about to make. I share these academic insights now as they could be helpful to the public in the days to come.

As I have written elsewhere, in my view, even if the Court states that their decision on the quo warranto does not create precedent, it will in fact radically overturn our constitutional system – not just of accountability, but also of constitutional interpretation.

Judicial amendment of the Constitution

Political decisions should be left to the political bodies and the judiciary should not preempt those bodies. In the Sereno case, the Congress, through the impeachment process, is the proper body to decide to remove all impeachable officials.

The Supreme Court, whether it says this or now, will reject this rule if it removes Sereno through the quo warranto procedure. All other impeachable officials can then be removed in this manner or other ways we do not know of yet: the Justices of the Supreme Court, Ombudsman, Chairs and Commissioners of the independent constitutional commissions, and the Vice President and President.

Under the 1987 Constitution, the Senate, acting as an impeachment court, has the sole power to try and decide all cases of impeachment. Impeachment is ultimately more political than legal because in the end conviction or acquittal must be based on national interest, on what is good for the country.

There must be no doubt about that, and that is why the Constitution gave the sole power of determining this to the Senate which is expected to consider that national interest. That is also why the Constitution requires a high bar, a two-thirds majority of the Senate’s 24 members, for conviction and removal from office of an impeachable official. Such decision must embody a societal consensus, with the majority and opposition on board with the decision, because of the clarity of the case against the official.

In the pending quo warranto case, a simple majority of 8 members of the Supreme Court could decide to remove a sitting Chief Justice. That lowers the bar for removing an impeachable official. This effectively judicially amends the Constitution. 

Does the Supreme Court removing an impeachable official via quo warranto mean judicial supremacy? Not really. In fact, it would likely result in its further marginalization and loss of independence. The Presidency, already supreme in our system, could be unstoppable as it would be easier to get 8 votes in the Court rather than the 16 votes in the Senate.

This is why the Senate must also assert its authority as the sole body that can remove impeachable officials. Short of that, it will make itself irrelevant.

How should Sereno respond?

Chief Justice Sereno She has 3 options, I believe, in the event of a decision that is unfavorable to her.

An extreme response is to completely reject the decision and continue to assert that she remains Chief Justice, her removal being completely illegal and unconstitutional. Some of her supporters would want her to do this but it might not be in the national interest to take this route.

Another extreme response is to simply accept the decision and to leave quietly. Unconditional acceptance of the decision would make the Chief Justice an accomplice to the death of constitutional rule in the country.

There is a third and more moderate option, following the golden mean of the Greek philosopher Aristotle, and within that option there are several variations.

Once an unfavorable quo warranto decision is promulgated and has become final, the Chief Justice can issue a statement rejecting her removal. But instead of asserting that she is still Chief Justice, she can say in her statement that she will once again take a leave of absence and return to the Court at the right time.

She can afford to do that given that her tenure is supposed to be until 2030 anyway. This scenario was mentioned by retired Justice Vicente V. Mendoza, definitely one of our top constitutionalists, in his statement on the quo warranto case.

If a wrong is committed in this case, as Vice President Leni Robredo has pointed out, it must be corrected. Believe it or not, that correction can come earlier rather than later.

A bad quo warranto decision puts the legitimacy of the Supreme Court in question, whether it can be trusted to be the last word in interpreting the law and the Constitution. As an officer of the court and as a constitutional law professor, I will closely study that decision whatever it may be but I would be hard-pressed to defend it if on its face it violated the Constitution.

It is also likely that, when political winds change, there would be those who would seek to reverse a bad decision and exact accountability from everyone responsible. That could mean another round of president-led impeachments, a terrible cycle that began with the removal of Chief Justice Corona.

The good of the country

The questions that the Supreme Court, the Chief Justice, the Senate, and yes the President must answer in the days to come are clear: What is good for the country? What promotes the rule of law? What is faithful to the Constitution?

An impeachment trial is about the fitness of Chief Justice Sereno for the position she is holding, if the grounds of impeachment laid down in the Constitution are present necessitating her removal. But a quo warranto decision that removes an impeachable official is not about Sereno but about all present and future officials; it is about the rule of law and the Constitution, and what kind of country we want to have in the future. – Rappler.com

Tony La Viña is former dean of the Ateneo School of Government.