Meanwhile, a former lawyer of ousted President Joseph Estrada, Pacifico Agabin, was included among the friends of the court invited to witness the oral arguments for the petitions on Nov. 5. Agabin is former dean of the University of the Philippines College of Law.
In a 15-page petition, Jaime Soriano said the Supreme Court should not have issued the status quo order on Oct. 28. Instead, the high court should have allowed the Senate, acting as an impeachment court, to decide whether or not the new impeachment complaint against Davide was unconstitutional. Soriano said that under Article XI Section 3 of the 1987 Constitution, the Senate, as an impeachment court, has the sole power to decide all cases of impeachment.
He said that given the situation in which both the judiciary and Congress are both determined to claim their respective constitutional mandates, the executive may be called upon to enforce and implement its will on the other coequal branches of government.
"The scenario creates a dangerous situation, where the executive department, particularly its Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), is implied vested with and acts with the discretion which of the two embattled branches of government should be accorded support and protection," he said. "Regrettably, the constitutional crisis might lead to further political instability and (an) extra-constitutional power grab by (a) vested interest group."
Soriano added that the pending petitions for certiorari should be dismissed immediately to stave off a constitutional crisis. "The eventual issuance of a permanent status quo order against the House of Representatives, as well as the Senate as an impeachment court, will unnecessarily put Congress and the Supreme Court in a situation of constitutional deadlock," he claimed.
He said the issue on the constitutionality of the second impeachment complaint is "not yet ripe" for judicial determination, as it has not yet passed "the sphere of political questions." Any decision with regard to the constitutionality of the second impeachment complaint against Davide, he said, would prematurely tie the hands of the Supreme Court as a court of last resort.
The Senate, acting as an impeachment court, can properly hear any motion to dismiss the case due to alleged violations in the transmittal of the articles of impeachment to it from the House.
He cited the 1998 impeachment trial of then United States President Bill Clinton, during which Clinton’s fine line of defense was to file a motion to dismiss. "In the process of deciding the alleged constitutional infirmities prior to the assumption of jurisdiction by the Senate will dilute, if not grab, the powers of authority exclusively conferred to it as an impeachment court by the Constitution," Soriano said.
He also asked if the Supreme Court would be prepared to cite in contempt the officers and members of Congress who will disregard the status quo order.
"On the other hand, the failure of this court to enforce its resolution against Congress would result in the further diminution of its judicial authority and erode public confidence and faith (in) the strength of the judiciary," Soriano said.
The petitions seeking to stop the second impeachment complaint against Davide were filed by lawyer Ernesto Francisco; a group of Ateneo law professors led by Dean Sedfrey Candelaria; Carlos Medina and Henedian Razon-Abad; lawyer Arturo Castro and his wife Soledad; former solicitor general Frank Chavez; a group of practicing lawyers led by Dean Antonio Abad, Herminio Roque, Joel Ruiz Butuyan, Ma. Cecilia Papa, Napoleon Reyes, Antonio Abad Jr., Alfredo Ligon, Joan Serrano and Gary Mallari; and Reps. Salacnib Baterina and Deputy Speaker Raul Gonzalez.
The petitioners for certiorari are seeking the dropping of the impeachment complaint against Davide because they believe the complaint violates the constitutional ban on filing more than one impeachment complaint against the same official within the period of one year.
The Supreme Court en banc is set to hear the petitioners and the respondents to the case in an oral argument on Nov. 5.
In a five-page unanimous resolution last Oct. 28, the Supreme Court en banc also requires Speaker Jose de Venecia, Senate President Franklin Drilon, Reps. Gilberto Teodoro and Felix William Fuentebella and Solicitor General Alfredo Benipayo to comment, within a non-extendible period of five days, on the six petitions.
Teodoro and Fuentebella stood as principals in the second impeachment complaint against Davide. They said Davide misspent the P4 billion Judiciary Development Fund despite a report by the Commission on Audit (COA) that the JDF was properly disbursed.