A supreme dilemma

Would the Supreme Court issue a temporary restraining order to stop Congress, a co-equal body, from performing a constitutional duty to canvass the votes for president and proclaim BBM as winner? Apparently, it will not. In a resolution dated May 19, 2022, the Supreme Court gave a period of 15 days to the respondents to comment on the petition and prayer for temporary restraining order filed to question the Comelec decision dismissing the election cases against BBM, the presumptive president with more than 31 million votes.

Assuming the respondents received notice of the order on the same day, they will have until June 3, 2022 to file their comments. With Congress set to convene as the National Board of Canvassers on May 24, 2022, it is most unlikely that the Supreme Court will stop an ongoing presidential canvass. Besides, a court can issue a TRO ex parte (without requiring the other parties to be present or to comment), thus it can be presumed that the Supreme Court did not find a compelling justification to do so.

For whatever it’s worth, this may have averted a constitutional crisis of novel character, as the Constitution mandates Congress to canvass the votes not later than 30 days after the day of the election. If no president and vice president will be proclaimed before June 30, 2022, there might be a void in government that could result to civil unrest.

Must the Supreme Court rule on the election cases against BBM, notwithstanding the majority votes he garnered? It must, and it will, as it is also its constitutional duty to act as sole judge of all contests relating to the qualifications of the president. It has the judicial power to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government, such as the Comelec.

In a past column just after BBM won the first round in the Comelec, I mentioned that the longer the case takes, the more complicated it becomes. I was then looking at the possibility of the petitioners going straight to the Supreme Court on a plea of extreme urgency and the patent futility of the recourse to the Comelec en banc, which at that time had only four members with the expiration of the terms of the chairman and two commissioners, as justification to be exempted from the requirement to first file a Motion for Reconsideration.

It may not be the correct procedural move, but the Supreme Court might have seen the imperative need to resolve the disqualification issue before the May 9 elections to give the voters the opportunity to best exercise their judgment. Was it by design or coincidence that the Comelec en banc released its decision a day after the elections? Understandably, the commission had a revamp following the appointment of a new chairman and two commissioners, but should it not have given the case utmost priority to at least give the Supreme Court a chance to resolve the disqualification issue before the casting of votes?

A Comelec commissioner mentioned two possibilities, based on past decisions of the Supreme Court, in the event the decision of the Comelec should be reversed and BBM will be disqualified. One view favors Vice President Leni, who garnered the second highest number of votes, because the votes in favor of the disqualified candidate will be considered stray. Considering, however, that VP Leni got less than one-half of the votes for BBM, will this not be interpreted as a rejection by the people of her candidacy for the presidency?

Another opinion favors presumptive vice president Sara, who may assume the presidency by succession. And the conspiracy theory surfaces. Yet, under the Constitution, succession of the elected vice president happens only if the president dies or becomes permanently disabled, but not when he is disqualified by a final judgment.

Anent the disqualification case, the petitioners call on the Supreme Court to decide whether the repeated failure to file Income Tax Returns involves moral turpitude; and whether the perpetual disqualification under Section 286 of PD 1994 is not an accessory penalty, but a principal one, that must be expressly imposed by the judgment to apply.

These appear to be simple questions of law that would have been easily resolved by the high tribunal before May 9, 2022. Now, these issues have become “more than 31 million complicated.” It would be less controversial if it agrees with the Comelec on its legal interpretations, but what if it finds merit to the disqualification case? Will the 15-man court uphold the rule of law, which would however disregard the more than 31 million voters who elected BBM? The Supreme Court is indeed in a fix.

I remember the dissent of US Supreme Court Justice Antonin Scalia in the controversial same-sex marriage case, where he said: “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. xxx xxx xxx And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

On the other hand, our Supreme Court Justice Marvic Leonen, in the also controversial case involving the proposed bills abolishing the Judiciary Development Fund, said: “Courts are not constitutionally built to do political lobbying. By constitutional design, it is a co-equal department to the Congress and the Executive. By temperament, our arguments are legal, not political. We are best when we lay down all our premises in the finding of facts, interpretation of the law and understanding of precedents. We are not trained to produce a political statement or a media release. Because of the nature of courts, that is – that it has to decide in favor of one party, we may not have a political base. Certainly, we should not even consider building a political base. All we have is an abiding faith that we should do what we could to ensure that the Rule of Law prevails. It seems that we have no champions when it comes to ensuring the material basis for fiscal autonomy or judicial independence.”

In one perspective, the Supreme Court may be viewed as substituting its judgment for the decision of more than 31 million voters, should it find merit in the disqualification case. But in another, the Supreme Court will only be upholding the rule of law, without fear or favor, otherwise, it shall betray its constitutional duty as final arbiter of justiciable issues.

Legislation must make sure that in the next presidential elections, more stringent rules for the early filing and resolution of disqualification cases against candidates for president and vice president are in place so that the Supreme Court, as the sole judge of legal contests on the qualification of these candidates, will not be in a supreme dilemma, as it is in now. In the meantime, we just have to put our trust in our Supreme Court, as the final bastion of justice and the common good, to give our people what they deserve. Abangan!