A tale of two Supreme Court decisions

I end my Eagle Eyes series on Republic vs Sereno, the quo warranto decision of the Supreme Court, by recalling another controversial Supreme Court decision in 1973—the infamous Javellana vs Executive Secretary. I do not hesitate to say that the Sereno decision has replaced Javellana as the most problematic decision our Philippine Supreme Court has ever made. And in the context of looming constitutional change, I venture to say that Sereno opens the path to constitutional interpretation that will justify constitutional change advanced even if contrary to the processed ordained by the 1987 Constitution.

Of the thousands of decisions that the Supreme Court churns out every year, only a handful can be said to have earned the ire of the public, cases that evoke widespread disapproval, vigorous dissent and sometimes grudging acquiescence. These decisions earned their infamy because they are perceived to play around with sacred constitutional principles, and blatantly legitimize unlawful state action.

The Court decision in the so-called ratification cases officially entitled Javellana v. Executive Secretary promulgated in 1973 falls under this category. Its infamy lies in that it removed all legal obstacles for Marcos’ dictatorial rule. After Javellana, Marcos was able to wield absolute power until he was forced out of power by the 1986 People Power Revolt.

The Javellana decision was summarized by Chief Justice Roberto Concepcion who dissented specifically on its final, dispositive portion: “This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect.”

In Javellana, through the Supreme Court, the 1973 Constitution was legitimized despite the Court’s own finding that: “there is no proper submission to the people there being no freedom of speech, press and assembly, and there being no sufficient time to inform the people of the contents thereof.” Indeed, a majority of Justices actually found that there was no valid ratification of the 1973 Constitution. A plebiscite is an election, according to that majority, and the citizen’s assemblies Marcos convened would not qualify as an election required rules on qualifications of voters, secret balloting, and accurate counting of votes. Despite this, the Court, with strong dissents from four members of the then nine-person court, dismissed the petition on the ground that the ­determination of whether the people have accepted the 1973 Constitution was a political question only the people, and not the Court, could decide. This was totally against the 1935 Constitution and its provisions for the process of amending the constitution or adopting a new one.

Almost half a century later, the Court once again makes a decision that is totally against the constitutional text, this time of the 1987 Constitution. The error in Republic vs Sereno lies in the fact that it reinterpreted settled constitutional principles of fairness, due process and the spirit behind the letter of the law, thereby seriously jeopardizing judicial independence if only to arrive at a desired end, i.e. to remove a sitting Chief Justice that the President wanted removed.

As the dissenters have pointed out, the Sereno decision is a dangerous precedent with serious consequences. The ghost of Javellana is back.

Actually, the factual context in both cases cited is eerily similar in many respects. A president who is willing to take constitutional shortcuts to pursue his unilateral agenda, who cannot stomach criticism, and a pliant Supreme Court who is more than willing to bend constitutional principles for some motive extraneous to what the law prescribes. The effects of the first is to legitimize a prolonged iron rule by Marcos and the second is to seriously undermine judicial independence and the sacred constitutional principle of separation of powers.

For sure, Javellana and Sereno will go down in the annals of judicial history as two of the most controversial decisions that will forever be critically dissected, commented on and highly criticized. But with constitutional change looming, the precedent in Sereno of reading into the Constitution what is not in there could have the same impact as Javellana.

For the record, I am open to amending, even adopting a new constitution. But it must be done properly—and there are only three ways to do that: First, by constitutional convention. Second, by Congress acting as a constituent assembly. Third, by petition and initiative. Most likely, President Duterte and his allies in Congress will choose the second mode. That’s not my preference but I concede that such mode is allowed. But I expect that the Constitution will be strictly followed—that the convening of a constituent assembly is properly made by each legislative chamber approving separately a resolution to that effect and that the final vote should also be separate.

I suspect the House of Representatives, regardless of any agreement it has made with the Senate or even if the Senate does not participate in a constituent assembly, will insist on adopting a new constitution and send that to the Comelec for the holding of a plebiscite. I anticipate that the Comelec will proceed to hold such a referendum. Only the Supreme Court will be able to stop such a plebiscite.

Through Javellana, the Supreme Court became an instrument that undermined constitutional rule in the country. Sereno could be a harbinger of equally bad outcomes if the Court would allow such a scenario to unfold.

In the Corona impeachment, as I wrote in my column last Saturday, President Aquino carelessly pushed the rule of law and justice into a slippery slope. The Sereno decision has made that slope even more slippery, certainly more dangerous for the country.

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Topics: Supreme Court , Maria Lourdes Sereno , Roberto Conception , Benigno Aquino III , Renato Corona
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