Supreme Court TRO Against the Senate Was Wrong!

Defense lawyer Serafin Cuevas, my venerable professor in civil procedure described the position of Senator Frank Drilon that the impeachment body was beyond the reach of the Supreme Court as “bankrupt” and without jurisprudential support.  He gloated over the Francisco v. House of Representatives  as an authority to the proposition that the Court has an oversight function on impeachment proceedings.

Prof. Cuevas was a jurist and his expertise was remedial law not constitutional law and the present composition of the Supreme Court is “bankrupt” of a constitutional law expert thus it has issued a TRO against the inquiry of the Senate sitting as an impeachment court  on the dollar deposits of the embattled Chief Justice.   Or if there were experts in the Court, they were in the minority.

The Francisco case was tailored-fit to rescue one of the members of the Court, Hon. Hilario Davide, Jr. from the guillotine. It was penned by Justice Carpio Morales with whom CJ Corona wrote a separate concurring opinion which ruled that the one-year-one-impeachment rule applies and thus declared unconstitutional the second impeachment of the 12^th Congress against Davide and nullified the rules that authorized it.  Inasmuch as it involves its brother in the bench, the highly personalized decision was convoluted with lofty ideals like “separation of power,” judicial independence,”  “judicial review” and the “interpreter of the constitution,” as convenient smokescreen to let Davide go scot-free.   It was a hometown decision!

Justice Corona must have been  imbued with  clairvoyant gift to be able to foresee his own impeachment – thus early in 2003  he laid the ground rules that the Supreme Court has a “judicial review power” on purely political issue like the present impeachment.   Is he looking directly now unto his crystal ball summoning vigorously his “brothers” to come and rescue him from the hot cauldron?

Anyway,  here  is Francisco:

On  October 13,  2003, the house committee on justice of the House or Representatives ruled that a complaint for impeachment against Davide was sufficient in form but insufficient in substance, hence the committee dismissed it motu propio.  The following day, a new complaint was filed against Davide which was signed by at least  1/3 of all the members of the house and transmitted and endorsed to the secretary general.

Congress adopted the rule which says that impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment endorsed and transmitted to the Secretary General of the house.

The case turns on the words “initiated” and “proceedings.” Whether the first complaint which was dismissed by the house committee motu propio for lacking in substance can be considered “initiated” and a “proceeding.”  If it were, the second impeachment endorsed to the secretary general of the house is barred under the one-year-one-impeachment rule.

Here is Article XI, Section 3, paragraph (5) of the Constitution-

“No impeachment proceedings shall be initiated against the same official more than once within a period of one year.”

If the jurists were against Davide, they can easily sustain the second impeachment by going to both the letter and the spirit of the prohibition.   But because he was a brother from the Bench, they looked strenuously enough for off tangent support to get him off the hook.

An ex-parte inquiry of the house to impeach Davide was not yet adversarial and therefore cannot be considered a proceeding, and it was not “initiated” according to the Rules of the House.

The one-year-one-impeachment rule  in the Constitution was designed to prevent repetitive political conflicts among power holders in a span of one year that are disruptive of the business of the nation.  The first impeachment having been aborted in its gestation period did not ruffle the political landscape and retard the business of the nation.

On the argument that the Supreme Court is the sole interpreter of the constitution,  I can only summon the warning of Thomas Jefferson:

“The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”

In the Francisco case, the court did not only twist and shape the constitution like clay, but perverted it!  It was flawed from viewpoint of reason and the constitution.  It cannot be an anchor to the proposition that  impeachment proceedings fall within the broad judicial review of the court.

The discussion of the expanded certiorari jurisdiction of the Court  in the 1987 constitution did not dwell on the “impeachment power” of the Senate.   The court’s power to review is limited only to the acts of Congress performing its  duty as a legislative branch of the government, and impeachment clearly is not.   Impeachment is sui generis and a purely political discourse and it is beyond the review of  the court, “expanded certiorari jurisdiction” on the contrary, notwithstanding.

The framers here and in the U.S. were already aware of the prospect of abuse that can mar the process, hence they divided this sovereign function between two legislative chambers, the House to initiate it and the Senate to convict or acquit the impeached official.  As a further safeguard, the framers have required that 2/3  of the Senate membership should vote for conviction.

Whatever abuse and error committed by the House and the Senate despite these safeguards, this error is correctible only by the people in the exercise of their sovereign power  – boot them out of office next elections and flagellate them in the bar of public opinion.  To admit that the court can look into the “arbitrariness” of the process, also assume that it can review the result of the process.

Alexander Hamilton explains this structural safeguard:

“The division of the process between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalence of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.”   (Federalist Papers 66).

And here is what the eminent Constitutional law professor, Charles Black, Jr. said:

“We are used to confiding (or to imagining we confide) all constitutional questions to the courts.  I shall later maintain that “judicial review” has no part to play in impeachment proceedings. For now, it should be briefly pointed out that, if I am right, then Congress, in acting on matters just discussed in the next chapter, rests under the very weightiest of constitutional questions, as well as a great many important and difficult questions of procedure.  For this purpose, and in its context, we have to divest ourselves of the common misconception that constitutionality is discussable or determinable only in the courts of law, and that anything is constitutional which a court will not overturn.  We ought to understand, as most senators and congressmen understand that Congress’s responsibility to preserve the forms and the precepts of Constitution is greater, rather than less, when the judicial forum is unavailable, as it sometimes must be. (Impeachment, A Handbook,  Charles Black, p. 23).

“So far as I can find, not one syllable pronounced or written in or around the time of the adoption of the Constitution gives the faintest color to the supposition that the Supreme Court was expected to have anything to do with impeachments, or the trial thereof, or appeals thereon.” (p. 59, ibid).

“The dissemination of the “judicial review” idea could be most unfortunate in another way; “if a removed official tried it, and had his case (as would almost surely happen) dismissed for want of jurisdiction, he might be able, though quite wrongly, to persuade a part of the people that he had been denied his rightful day in court.

I would conclude then, with a paraphrase of the well-known saying of the country banker, when he was asked about cashing a check for a stranger. He said, “There are ten rules about cashing checks for strangers.  The first rule is, ‘Never cash a check for a stranger.’  The other nine rules don’t matter” There are ten rules about judicial review of the judgments of the Senate on impeachments.  The first is that the courts have, in this, no part at all to play.  The other rules don’t matter.”(p. 62-63, ibid).

And Jean Edward Smith biographer of  John Marshall wrote:

“The legal precedent for judicial review, that unique American doctrine that permits the Supreme Court to declare acts of Congress and the executive unconstitutional, trace to the holding in Mabury v. Madison. Marshall did not say that the authority to interpret the Constitution rested exclusively with the Court, and he certainly did not endorse the grandiose schemes that envisaged the Supreme Court as a board of review sitting in judgment on each act of Congress to determine its constitutionality. He simply stated that the Constitution was law, and that as a judicial matter, it could be interpreted by the Court in cases that came before it.” (John Marshall, The Definer of a Nation, p. 324).

Thus whatever  interpretation the Court may propose on its “certiorari” jurisdiction cannot  bind Congress whose members may read it quite differently from the Court — after all,  interpreting  the constitution is not the exclusive domain of the court!

The erroneous ruling in Francisco must not shackle this impeachment body.  It should disregard this ruling consonant with the view of U.S. Justice Robert Bork, who criticized the Supreme Court under Warren for shoddy and inconsistent reasoning, undue activism, and misuse of historical materials.

He wrote:

“We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.”

Bork vigorously disagreed with the constitutional elitism that precedents matter.

“I don’t think that in the field of constitutional law precedent is all that important … If you become convinced that a prior court has misread the Constitution, I think it’s your duty to go back and correct it.”

The Franciso case was wrong.  The Court must correct it and the Senate is free to disregard it!