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Tuesday, February 14, 2012

The Supreme Court and the impeachment court

By Fr. Ranhilio Aquino

First things first. The Constitution expressly provides for “one Supreme Court”. There is no mention of an impeachment court. What it does provide is that “Senate shall have the sole power to try and decide all cases of impeachment.” When some Senators then make the rather astonishing claim that the Supreme Court is not the equal of the impeachment court, suggesting that the latter has no equal, then, to me, they are making an argument for another “supreme” court. When you reach that point, the dispute shifts from law to logic, because two “supremes” is a contradiction in terms!

“Sole power” in reference to the Senate’s jurisdiction in impeachment cases refers, from the context of both antecedent and consequent provisions, to the exclusive prerogative of the Senate to decide on the guilt or the innocence of the respondent. On that ground, none else may tread. It has the sole power to convict or to acquit. But when a question like: “Does an impeachment proceeding constitute an exception to the absolute confidentiality rule of the Foreign Currency Deposits Act?”, that is quite a distinct matter from the issue that lies within the exclusive province of the Senate, sitting in judgment in an impeachment case. That is in fact a question about the meaning and the application of the law. Unless we have foresworn the apportionment of the mighty powers of government, then according to Marbury v. Madison (1803), through the pen of Chief Justice Marshall, “it is emphatically the province and duty of the judicial department to say what the law is...If two laws conflict with each other, the courts must decide on the operation of each.”

Rep. Rodolfo Farinas decried what he perceives to be Congress’ acquiescence to the erosion of its powers by the Supreme Court. He cited the cases of the electoral tribunals, characterized by the Constitution as “sole judge of all contests relating to the election, returns, and qualifications of their respective members.” And yet, he whines, the Supreme Court has intruded through writs of certiorari into these tribunals’ judgments. Mr. Congressman, do not blame the Supreme Court. Blame the Constitution that our incumbent President says he is not keen on re-writing. Article VIII, Section 1 clearly makes it, in respect of the Judiciary, a “duty...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.” The key terms are “duty” and “any”, meaning “all”. Unless these words have taken on new meaning, or unless they are stricken off the Constitution, then the Supreme Court has the duty to rule, whenever asked to do so, on the question whether or not any branch or instrumentality of government —no matter how mightily it may make of itself (impeachment court, supreme tribunal of impeachment, etc.)—has abused its discretion. If we dislike that latitude of judicial power, then the obvious solution, as has been constantly urged, is to amend the Constitution. To threaten the justices who voted in favor of a TRO is bullying, and that is farthest from what a statesman, and a member of the Bar (a sworn officer of the court) ought to be engaged in!

The late Chief Justice Roberto Concepcion was a brilliant, soft-spoken scholar and jurist. Already retired but sitting as a member of the Constitutional Commission that drafted the present fundamental law, he argued in sponsorship of the present grant of extensive certiorari power to the Supreme Court: “Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power, but a duty to pass judgment on matters of this nature.” Why threaten with impeachment and damn them who have discharged their constitutional duty? It would in fact be a culpable violation to refuse to perform a duty imposed by the Constitution!

Until the Constitution is amended and the vast power of judicial review now expressly vested by Article VIII, Section 1 is pared down, then the power of the Supreme Court—its duty, in fact—to review for grave abuses of discretion the acts of “any branch or instrumentality of the government” will mean exactly that: any and all, including the Senate sitting in an impeachment trial.

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