Is the Supreme Court facing a perfect storm?
The Supreme Court is facing a developing perfect storm because of its decision to stop the impeachment of Vice President Sara Duterte by declaring it unconstitutional. At least 215 out of 306 members of the House of Representatives endorsed the impeachment. While the Constitution only requires the support of 33 percent of congresspersons, an overwhelming majority of 70 percent approved the articles of impeachment. The Senate is now considering whether it will comply with or defy the Supreme Court decision.
On top of that, eight out of 10 Filipinos, or a whopping 80 percent of our citizens, want VP Sara to face an impeachment trial and answer the charges against her, as shown in the latest survey conducted by OCTA Research. Also, some of the well-regarded retired Supreme Court justices have criticized the decision, including former chief justice Artemio Panganiban and retired justices Antonio Carpio, Conchita Morales, and Adolfo Azcuna.
The optics of the roster of Supreme Court justices do not help shore up public acceptability of the decision because 12 of the current justices, who all voted to throw away the impeachment complaint, were appointed by VP Sara’s father, former president Rodrigo Duterte. While this fact alone is unfair to the magistrates—especially because the decision was written by Justice Marvic Leonen (a Benigno Aquino III appointee) and concurred in by Justice Raul Villanueva (a Ferdinand Marcos Jr. appointee)—it should have prompted the Supreme Court to practice caution in its handling of the case. For instance, the Supreme Court should have given the citizen-petitioners and the House of Representatives a more exhaustive opportunity to articulate their positions, and for its justices to test their percolating conclusions by holding oral arguments and requiring the submission of memoranda before coming out with a decision.
The swiftness with which the Supreme Court decided the case would have been a laudable feat if it had done so under ordinary and normal circumstances. However, there is nothing ordinary about this impeachment case. It is infused with extraordinary and special circumstances that should have prompted the Supreme Court to exercise abundant caution instead of opting for swiftness. These out-of-the-ordinary circumstances include the following: a coequal branch of government was a respondent, an overwhelming number of congresspersons supported the impeachment, and 12 of the SC justices who voted to nullify the impeachment were appointed by the father of the impeached official. The Supreme Court made a self-inflicted injury because its swift decision is now instead viewed as hasty, and that its quickness in invalidating the impeachment case is being smeared with having a shady link to the fact that a super majority of the justices owe debts of gratitude to the respondent’s father.
Of the many issues that are being raised against the decision, the one that should resonate the most with ordinary citizens, is the argument that, with its decision, the Supreme Court has created a retroactive “law” that will cause serious and unfair prejudice to Congress and the impeachment proponents. Prior to the questioned Supreme Court decision, the rule laid down by the Court in a previous decision is that an impeachment complaint is only deemed initiated once it is referred to the proper committee of the House of Representatives. The one-year ban against the filing of subsequent impeachment complaints is counted from such referral to a House committee. That was the “law of the land,” as the Supreme Court has always described the nature of its decisions. The Lower House was being guided, and was complying with the said existing “law of the land,” when it handled the four impeachment complaints that were filed. Suddenly, however, the Supreme Court changed the “law” by declaring that initiation does not necessarily begin with the referral to the committee, and by requiring a new basket of requirements for the complaint to be valid. It would have been still fine up to that point. But by declaring as null and void the impeachment complaint that was filed in compliance with the old “law,” the Supreme Court made the new “law” retroactively applicable.
The Supreme Court decision runs contrary to a clear provision of our Constitution prohibiting the enactment of “ex post facto” laws, which is essentially a prohibition against the passage of retroactive laws. While the prohibition against “ex post facto” laws applies to Congress-enacted laws, if a strictly literal interpretation is adopted, the Supreme Court cannot call its decisions “laws of the land” and yet exempt itself from the constitutional prohibitions applied to laws passed by Congress. In fact, even when a new Constitution is approved, its provisions cannot generally be given retroactive effect because that would violate the principle of due process, which is the most important feature of any adherence to the rule of law. So why should the Supreme Court deem itself exempt from such a prohibition against retroactive rules?
For the Supreme Court to convince ordinary citizens of the soundness and fairness of its decision, it should be able to provide an answer to this: If a person cannot be penalized for not complying with a nonexistent law, why should the impeachment proponents be penalized for violating a Supreme Court decision that was nonexistent at the time they filed their complaint?
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