TRO on Senate subpoena

The Constitution grants the Senate “the sole power to try and decide all cases of impeachment.” Despite this solemn mandate, may the Supreme Court intervene and/or stop the Senate from discharging its “sole power”? Specifically, may the high court restrain a Senate subpoena?

US and Philippine concepts. In the United States, from where we derived our impeachment concept and which also gives its Senate the “sole power to try all impeachments,” the answer is a simple and absolute “No.”

In a unanimous decision (Walter Nixon v. United States, Jan. 13, 1993), the US Supreme Court ruled, “the word ‘sole’ indicates that this (impeachment) authority is reposed in the Senate and nowhere else… impeachment was designed to be the only check on the judicial branch by the legislature.” Hence, the judges cannot interfere and tell the Senate how it should discipline them. In the United States, all federal judges, not just Supreme Court justices, may be ousted only by impeachment.

In the Philippines, the answer is also “No” but it is not simple and absolute; it is subject to an exception. Our Supreme Court held in Francisco v. House of Representatives (Nov. 10, 2003) that, unlike the US Charter, our Constitution gave our judiciary the “duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.”

Thus, being an “instrumentality of government,” the Senate may be checked by the Court when it gravely abuses its powers. The Constitution does not define grave abuse of discretion (GAD), except to say that the abuse (1) must be “grave” and (2) must amount to “lack or excess of jurisdiction.” On the other hand, jurisprudence uniformly defines GAD as “arbitrary, capricious, whimsical or despotic exercise of judgment… arising from passion or personal hostility.”

Rationale for GAD. An act done without or in excess of authority is considered void and non-existent. By the same rationale, an act done or a decision issued arbitrarily, capriciously (etc.) is legally deemed without authority and thus, void and non-existent.

In contrast, “errors of judgment” or “simple abuse of discretion” of the Senate cannot be reviewed, much less struck down, by the Supreme Court because the Senate is not its inferior. Only a superior may review errors or simple abuse of an inferior. As the highest court, the Supreme Court may modify or reverse any error or abuse (whether grave or not) of any judicial tribunal in the country. The Senate, acting as an impeachment court, is not a judicial tribunal that is inferior to the Supreme Court. It is sui generis, one of a kind.

Using the above parameter, was the Court correct in issuing a temporary restraining order (TRO), dated Feb. 9, 2012, enjoining the Senate from implementing a subpoena requiring the disclosure of the alleged dollar deposits of Chief Justice Renato C. Corona? Otherwise stated, did the Senate gravely abuse its discretion in issuing the subpoena?

Larger context. No, quite the contrary, wrote dissenting Justice Maria Lourdes P. A. Sereno, “the Senate Impeachment Court was superbly careful in ensuring that… the assailed subpoena” applied “only in the context of the impeachment trial of Chief Justice Corona. There are only thirty one (31) impeachable officers, and there have been only two (2) impeachment trials since the beginning of constitutional history.” Hence, having been careful in canalizing the subpoena, the Senate, she wrote, cannot be said to have gravely abused its discretion.

Another dissenter, Justice Antonio T. Carpio, laments, “The majority ruling makes a mockery of all existing laws designed to insure transparency and good governance in public office… The world will know that Philippine foreign currency deposit accounts prove a much better safe haven for ill-gotten wealth than Swiss bank accounts.” To avoid prosecution, corrupt officials, he said, need only to deposit their loot in dollar accounts.

However, my reading of the Supreme Court TRO shows no attribution of grave abuse on the Senate. Indeed, Justice Arturo D. Brion’s concurring opinion stressed that the TRO was issued merely to prevent possible irreparable damage if the subpoena is implemented pending the final decision.

Hence, the Senate majority decided to respect the TRO, not because it agreed with the Court, but because it wanted to avoid an unnecessary collision of wills. Precisely, the Senate will argue during the Supreme Court hearing why it (the Senate) did not gravely abuse its discretion.

In sum, the Court issued the TRO only as a precautionary measure to prevent the case from becoming academic by a premature revelation of the dollar deposits. In turn, the Senate agreed to respect the TRO only to be able to show its prudence and carefulness in issuing its subpoena.

In the past, even if it had earlier issued a TRO, the Court – after hearing respondents –allowed the restrained act to proceed. This was done in the recent case of former Ombudsman Merceditas Gutierrez, in which the TRO (or Status Quo Order) was lifted after the House of Representatives proved its right to impeach her. Of course, there was delay. But this can be minimized by speedier action on the present case.

In a much larger context, I view these tedious incidents, like the impeachment trial, the subpoena, the TRO and the Senate response to the TRO, as essential parts of the maturing processes of our democracy. In fine, I hope these incidents will lead to what Manila Archbishop Luis Antonio G. Tagle calls “a culture of integrity” in our country.

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