The law must survive, with or without Sereno

her in a Senate impeachment court. Now Solicitor General Jose Calida would like the high court itself to oust her, on a “quo warranto” proceeding, for being allegedly unqualified to sit as chief justice from the very beginning. The basic proposition will not go uncontested.

Regrettable start

As a firm believer in the Constitution, I have some discomfort about Sereno being Chief Justice. For some reasons, I do not believe she should have been named to that position. Firstly, she was a newcomer to the court when then President B. S. Aquino 3rd physically bribed 19 senator- judges to convict and remove Chief Justice Renato Corona on a non- impeachable charge during his impeachment trial, and replace him with this novice. Secondly, she was among the youngest on the court, and naming her chief meant keeping her there for the next 20 years. That’s the equivalent of a life sentence against the court.

Aquino set aside the long-honored tradition of seniority rule, without alleging any compelling circumstance such as exceptional merit. She never dazed nor dazzled any of her contemporaries nor any college of law students. She had no pretension to being above average. Her entry as associate justice surprised many who thought they knew the limits of her competence; making her Chief Justice appeared unquestionably audacious and capricious.

The real culprit

But as ill- conceived as her appointment was, Sereno was not the perpetrator of that mischief. The real offender was B. S. Aquino 3rd, the thoroughly incompetent and malevolent president. Sereno simply found herself in the position of the horse Incitatus, which the mad Caligula had wanted to name consul without at all consulting the beast. To the animal’s and the mad Emperor’s good fortune, the appointment was never consummated. Or so we learn, from the historian Suetonius. Sereno had no such luck.

If her appointment was a crime, as Calida and others now seem to argue, the criminal is still at large. He has been publicly identified, and no process server can possibly say his address is unknown and cannot be located. He lives on Times Street, Quezon City, and lately he has been seen answering summonses from Congress. He has committed a number of unpunished crimes—- stamped Smartmatic’s indelible curse upon our electoral process; corrupted the two houses of Congress to ruin and remove a chief justice he could not manipulate; sent 44 of our bravest police commandos to their cruel, avoidable and undeserved death; put the lives of a million schoolchildren at risk by exposing them to an unsafe Dengvaxia vaccine which no other government in the world has dared to use.

Like Caesar at the Senate

But Aquino’s departure from the presidency appears to have freed him from all accountability.

So, everyone is focused solely on the embattled Chief Justice. After all her Supreme Court colleagues decided she should go intentioned press commentators joined the lynch mob’s shrill cry demanding her hasty exit, a young millennial asked me if the justices were not simply replicating the honorable act of the Roman senators each plunging a knife into the body of the hapless Caesar in the Roman Senate.

As I indicated in the beginning, I own experience in Sereno’s court makes it even harder for me to do so. Although I am not a member of the Philippine bar, I have been honored to make an oral argument before the court en banc at least twice. First, on the Reproductive Health Law, and second, on the “citizenship” of the senator and presidential candidate, Grace Poe Llamanzares. In both instances, I found Sereno’s reading of the Constitution disturbingly faulty, and her deportment as a magistrate in open court most disheartening.

Sereno and the RH Law

On the RH law, I argued that since Sec. 12 of Article II of the Constitution provides that the State is “the primary protector of conception” ( i. e., ” the life of the mother and the life of the unborn from conception”), it can never and should never be the source and provider of “contraception.” Yet the RH law makes the state the primary provider of contraception.

This the court pronounced “not unconstitutional.” Justice Reyes, now retired, wrote the ponencia, and Sereno concurred in it; it describes the RH law as a “population control” measure, but points out, most egregiously, that the Constitution does not prohibit “population control,” which is complete nonsense. The whole Sec. 12 of Article II is a blunt statement against population control, as is the whole of Article XV on “The Family” an expanded declaration against it.

During the orals, Sereno allowed herself to be heard soliloquizing in open court on her doubt about the power of the court, “an unelected chamber,” to nullify the act of Congress, signed into law by the Executive—two elective branches of government. She showed little appreciation of Chief Justice John Marshall’s famous declaration in Marburyv.

Madison that it is the business of the court to say what the law is.

The majority ruled the unconstitutional law “not unconstitutional” without refuting or referring, even in passing, to my core argument, which said the State cannot be the protector and the destroyer of conception (or child-bearing) at the same time. This is the famous principle of noncontradiction, which every beginner in the study of philosophy learns, that a thing cannot be and not be at the same time.

Since the ruling failed to say anything about my objection, I through my friend Alan Paguia of happy memory, saying I was not accorded due process, since my basic objection was never refuted at all. The court dismissed my motion by simply repeating what it had said before, without responding to my principal complaint. I asked some notable friends abroad, legal luminaries with long experience with such cases, how the court could so behave; they said the Court could not possibly acknowledge my objection without conceding my point.

Sereno and Grace Poe

On the Grace Poe Llamanzares case, Sereno argued more like a lawyer for the respondent rather than as an impartial Chief Justice. The ruling, written by Justice Perez, now retired, proclaims Mrs. Llamanzares as a “naturalborn” Filipino citizen not on the basis of the Constitution and the facts under it, but on the basis of then Solicitor General Hilbay’s “statistical probabilities.” Grace Poe has turned out to be one of the more sensible members of the present Senate, and would probably have made a less vulgar president without her citizenship issues. But some lawyers believe the Sereno court’s ruling may have to be revisited.

With all the foregoing, some friends tell me I should support a “winning cause” for once and join those calling on Sereno to pack up. Everyday she is accused of a new crime, I am told, there’s no way she could possibly survive. That may well be. But for me it’s not a question of whether or not Sereno will survive; the question is whether or not the rule of law will survive.

I don’t know how good a lawyer Calida is, but would he please answer one simple question? Supposing the court succeeds in ousting this Chief Justice, what happens to all the rulings that had been penned, or participated in, by the same? In particular, what happens to the ruling on the RH Law, and on Grace Poe’s citizenship?

An impeachment complaint has - don against Sereno in the House; members of the high court have - mittee on justice. If there is a case against her, doesn’t the rule of law require that the House impeach her and transmit the case to the Senate forthwith? Otherwise, don’t we deserve some badly needed rest from our justices?

Estrada’s case recalled

In 2000, at the beginning of the Senate impeachment trial of then President Joseph Estrada, some Church personalities called on Erap to resign. At least eight senator- judges joined that call. Some well-meaning friends, aware of my close personal relationship with some hierarchs of the Church, asked me to join the call. I was the Senate Majority Leader at the time and my duty was to help manage the floor during the impeachment trial. I declined. My friends were shocked at my refusal. Why?

They could not understand. But it was simple enough. I said I was a senator-judge at the impeachment trial, and that I could not do or say anything to prejudge the case.

“But you know Estrada is guilty, don’t you?” said one.

“I’m sorry, I don’t,” I said. “But assuming I did, which unhappily is not the case, I can only judge him guilty, not on the basis of what I think I know, but on the basis of valid and compelling evidence brought against him before the court.”

I lost some esteemed friends with that statement, especially after Estrada was ousted at EDSA following the prosecutors’ walkout in the Senate. In one important meeting of canon lawyers in the country, someone reportedly asked what should be done to this Catholic politician who was supposed to show an example of unity with the clergy on the issue of the Estrada presidency, but took an independent stand instead. There was apparently a lot of passion behind this, but the visiting Doctor and Professor of Canon Law from Rome, after listening to all the relevant data, said the Catholic politician, namely myself, merely acted according to his conscience based on the correct objective moral principles.

Some years later, I had to hear from the same friends that they had been wrong on this issue. I had to thank an old Indian friend me that we win some battles today only to lose them tomorrow, and we lose some battles today only to win them tomorrow.

This thought could have some value to Sereno.