26/07/2025
TO INITIATE
Fr. Ranhilio Callangan Aquino
rannie_aquino@ sanbeda.edu.ph
[email protected]
When an attempt was made to unseat then Chief Justice Hilario G. Davide, Jr., the Supreme Court had occasion to pass upon the meaning of "to initiate" in regard to impeachments. In the 2003 case of Francisco v. House of Representatives, the Court held that "to initiate" means for the impeachment complaint to be filed with the House of Representatives and for the House to take action by referring it to the Committee on Justice, or for one-third of the membership of the Lower House to endorse the Articles of impeachment. This same definition was applied to Merceditas Guiterrez, then Ombudsman, who complained that more than one impeachment complaint had been filed against her within one year โ thus violating the Constitutional ban against more than one impeachment complaint being initiated against the same impeachable official within the year. The 2011 Gutierrez case also made use of a metaphor: No matter how many matchsticks are used to ignite one candle, as long as only one candle is thereby lit, the one-year ban is not transgressed.
Has jurisprudence changed? Do we now have a new definition of "to initiate"? The 2003 and 2011 decisions that studied the phraseology and did exhaustive work referring to the debates of the Constitutional Commission were well-studied, carefully argued and convincingly penned. Has some new insight occurred meanwhile that justified abandoning the established meaning of "to initiate"? Retired Justice Adolf Azcuna, a member both of the 1971 Constitutional Convention and the 1986 Constitutional Commission thinks that a new interpretation has been adopted. But on what grounds, powerful and convincing enough to allow for an abandonment of the 2003 and 2011 doctrines? And that is the merit of an "originalist" interpretation that Justice Antonin Scalia in the United States in scholars in our country including Dean Jemy Gatdula have long advocated โ to save the textual integrity of the constitution from the vagaries of shifts in constitutional hermeneutics!
Justice Richard Posner, an eminent legal philosopher in the pragmatist tradition, writes in "Law, Pragmatism and Democracy": "The word 'democracy' is bandied about a great deal by judges but dramatic interventions in the democratic process are undertaken by them with astonishing casualness". This is the reason that I have argued the position that it would have been the more prudent approach to allow the respondent to challenge jurisdiction before the Senate itself, after all, the upper chamber had already convened as the court of impeachment. If, as the Constitution on "Accountability of Public Officers" clearly vests the Senate with the sole power "to try and to decide", then that, it would seem to me, includes the power to rule on challenges to its jurisdiction. Even before regular courts, when the jurisdiction of a court is questioned, it is the court itself that rules on whether it does or does not have the necessary jurisdiction.
Impeachment, Possner writes, is a surrogate of the system of "recall". It increases democratic control over officialdom. If anything then, it strengthens democracy to allow the impeachment process to be as free of hindrances as possible โ unless there is glaring abuse of discretion. In fact, Posner acerbically remarks of Justice Harlan Stone's aggrandizing commendation of judicial review as a "sober second thought" that it is a "patronizing view", as it considers judicial review to be the neutralizer of "frenzy whipped up by demagogues or by the masses' own ignorant and exaggerated fears to support foolish, even barbarous, public measures."
There might be much to learn from French constitutional law โ after all, the democracy that American-type governments crow about has its roots in the "liberte, egalite, fraternite". The Civil Code of France prohibits judges from making regulatory decisions. This has not prevented judgements of the Cour de Cassation and the Council of State from entering the corpus of the French legal system, but it certainly prevents French judges from interdicting the legislature or, worse, drawing up jurisprudence in competition with legislation. And lest it be forgotten, there is really no convincing response to the counter-majoritarian dilemma that has hounded American constitutional law โ and other organizations of the body-politic similarly configured!
It might also help to read "grave abuse of discretion" less abusively. In the proceedings of the 2016 Committee to Study the 1987 Constitution of which I was a member, former Chief Justice Reynato Puno, who presided, remarked that there was one phrase that has been gravely abused in the present constitutional scheme of things, and that is "grave abuse of discretion".
I have written it before. I reiterate it now. The more the courts wade into the murky waters of politics, they more they compromise their credibility, and this testiness, this becoming reticence may make them be more hospitable to the notion of restraint particularly when the political stakes are high and partisan interests range strongly on both sides of the divide!
