The future of our Constitution

On Monday, 16 April 2018, in the University of the Philipines College of Law, Professor Dante Gatmaytan delivered the Estelito Mendoza Professorial Chair lecture. Entitled “The Role of the Judiciary in Constitutional Deconsecration”, Prof. Gatmaytan shared his thoughts about the quo warranto petition filed by Solicitor General Jose Calida against Chief Justice Maria Lourdes that is currently pending before the Supreme Court. As a constitutional law professor, Gatmaytan did not dwell so much on the pros and cons of granting or denying the petition but focused on the likely impact of a decision granting the petition on constitutional rule, on the judiciary itself, and on the teaching of constitutional law in our country.

One interesting idea that Professor Gatmaytan raised but ultimate rejected is that this quo warranto case can be interpreted as unique only to the circumstances of Chief Justice Sereno. The Court, however it decides this, can make it clear that its decision and its rationale applies only to the Sereno case and is not legal precedent for future cases.

Supreme Court Spokesperson Ted Te, who is also a constitutional expert, once wrote an article explaining this concept of “pro hac vice’ (for the occasion) decisions. In a 2011 Newsbreak article, he pointed out in that “when the Court speaks, it speaks with authority and its rulings are intended to be precedents that will bind not only other courts but also parties and future litigants”. He observed: “The authoritativeness of the Court’s pronouncements provide the basis for what lawyers call stare decisis, simply translated as “follow past precedents and do not disturb what has been settled”.

Only the Supreme Court that has the power to create precedent, Te continues.  “Thus, when the Supreme Court rules on rights which are “legally demandable and enforceable,” its rulings become or remain precedents which bind not only the immediate parties but all other future litigants and all other courts. Considering its nature, it should be rare for the Court to speak not to bind but simply to settle a dispute “for that occasion” or pro hac vice.”

Yet, as Te points out, “it has done so, usually in allowing petitions or other resorts to the Court that would have been disallowed because of non-compliance with technical rules of procedure.”  The general justification given by the Court in these pro hac vice occasions would be the general interests of justice.  By underscoring its pronouncement as pro hac vice, the Court is  saying that these instances constitute the exception not the rule, the isolated instance not the precedent.”

The question is whether the quo warranto case can be properly decided pro hac vice or by its nature its impact will be far reaching both in terms of the officials that will be affected and its reach over time to the future and not just the present.

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.

The first rule that is at stake is the basic principle on political questions. It is still a good rule to say that 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.

The second rule that will be set aside in a successful quo warranto petition is the prescription of periods during which such a petition can be filed. There has always been clarity on then quo warranto proceedings have to be instituted – one year, as the Supreme Court rules of procedure itself states, and for good reason – the need for stability requires that questions of qualifications be settled quickly rather than in a protracted way.

Even more dangerous than disregarding the one year rule on quo warranto petitions is the distorting and extending the  time frame that can be considered in determining integrity questions. Justice Benjamin Caguioa, in the oral arguments, pointed out how this makes all officials vulnerable.

In the case of Chief Justice Sereno, the central allegation is that she did not file, at least in some years, the required ‘Statement of Assets, Liabilities, and Net Worth”, commonly known as SALNs, during the time she was a UP Law professor. There is a factual issue here as she has been able to recover many of the SALNs originally reported missing. This is why the Senate trial is the best forum for the Sereno case so the facts can be determined with accuracy.  Nevertheless, even at this stage, one must raise the wisdom of such an approach that can make all officials liable for everything they did or did not do even earlier in their career.

Already, there is a spike in SALN cases in the Ombudsman and Sandiganbayan, an unfortunate outcome of its deification in the Corona impeachment. If the quo warranto petition succeeds, we can reasonably expect similar cases to be filed against other officials, including the sitting Justices. Justice Leonen is right that the SALN is not the be-all and end-all integrity document.

The third and most important impact of a quo warranto decision is that it puts the legitimacy of the Court in question, in particular 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 would study closely the quo warranto 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 accountability from everyone responsible.

As always, any decision by the Court can either favor the complainant with the grant of the petition or the respondent with its dismissal.  Although each member of the Court is called upon to judge the case based on his or her impartial and unbiased interpretation of the law and appreciation of the evidence, it cannot be denied that sometimes magistrates sitting as a judge, human as they are, can be swayed by factors extraneous to the case and their judgment tainted by their personal circumstances in relation to any of the parties to a case. Insofar as this case is concerned, it would have been ideal had all the members of the Court are disinterested parties but unfortunately, some made pronouncements and did some acts that may be seen prejudicial to the case of the respondent, prompting the latter to move for their recusal.

All the Justices are aware of the sacred oath they avowed to uphold when they first became lawyers, to “support the Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; to do no falsehood, nor consent to the doing of any in court; to not wittingly or willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same.”  The Court will hopefully be faithful to this oath on deciding the quo warranto petition.

The original title of Prof. Gatmaytan’s lecture was more provocative: “The Role of the Judiciary in Constitutional Collapse”. When I asked him why he changed it, my brilliant colleague said that collapse was too strong a word as we are not yet there. I agree and I hope that the good Justices will help us all step back from this constitutional brinkmanship and allow the constitutional process of impeachment to take its  natural course. Their wisdom and courage will determine the future of our constitution.


Visit this website to access the article.

Leave a comment

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: