A BELIEF instilled in us by our American colonizers is faith in a democracy that, in practice, means that we elect those who craft our laws and the man (or woman) who is the chief executive and the commander-in-chief of the armed forces. A part of this belief is that democracy is best served when the three great powers of government — the power to write the law, the power to execute it, and the power to apply it to particular cases and thus interpret the law — are vested in three separate but coordinate branches of government. Not every democracy goes by this proposition. The United Kingdom is a democracy, but its parliamentary system is such that separation of powers, as we know it from the Americans, means something else under the Westminster type of parliamentary democracy.
With the adoption of an American-type democracy, we also imported some beliefs, among these, a line coming from the oft-quoted Marbury v. Madison case that had the US Supreme Court declaring that “it is emphatically the province and duty of the judicial department to say what the law is.” It is that same fateful decision that appropriates for the US Supreme Court the power to declare that in definite cases, an enactment of Congress must be set aside when it conflicts with the Constitution. This is in stark contrast to the traditional position in British constitutional law that acts of parliament are, as a general rule, a zone into which judges may not intrude. While there is considerable jurisprudence on judicial review of administrative action, British judges continue to observe the supremacy of parliament as the threshold beyond which judicial power may not tread. The point is that American-style judicial review is not essential to democracy. In fact, the thinking that we can have a democracy only if we have a robust system of judicial review borders on superstition.
In the Philippines, the reach of judicial review is vast — virtually limitless, and while it has been theorized that even before the 1987 Constitution, judicial review was already available against acts of coordinate branches of government that transgressed the Constitution, the inclusion of that unfortunate clause on determining whether there has been grave abuse of discretion on the part of any office or agency of government has considerably emboldened the Supreme Court. At the time that the 1986 Constitutional Commission had finished its work and its draft was submitted to the people for ratification, then senator Arturo Tolentino warned that we were creating an “omnipotent judiciary” precisely because of the so-called “broadened certiorari powers.” He was right, so that even in those cases where the Constitution clearly entrusts powers to political branches — the electoral tribunals of both chambers of Congress as “sole judge” of election contests involving their members, and the Senate as possessing the “sole power” to try and decide impeachment cases, our Supreme Court has refused to yield to legislative prerogative and has insisted that “sole” should be construed as subject to its omnipotent power of review. This, quite clearly, makes the counter-majoritarian difficulty particularly acute: unelected magistrates passing on the acts of the elected representatives of the people.
Central to this subservience to judicial review is the belief that only the Supreme Court can interpret the Constitution with definitiveness. Add to this the various honorifics accorded the court that include “guardian of the constitution” and “bastion of democracy.” These have not served our democracy well. They have emaciated the powers of coordinate branches of government that, in effect, become accountable to the 15 men and women of the court.
The way the French manage their democracy should give us some insight on other configurations of democratic systems. The Constitutional Council is an interesting feature of French constitutionalism. Part of its membership are former presidents of the Republic. It can be asked by legislators themselves to pass upon the constitutionality of proposed legislature, and, since 2008, there has been an avenue for post factum review on the conformity of legislative acts with constitutionally guaranteed liberties. Given its history, France is wary of “government by judges.” Liberté included trust in the people’s elected representatives. So it is that the Constitutional Council is strictly not a court but a special constitutional organism that is both political and judicial. And recourse to the Constitutional Council is largely reserved to members of the legislative assembly.
It cannot be the case that the Supreme Court has the final word. Were this so, we would equivocate on “democracy.” The rule of law is not guaranteed by the Supreme Court alone but by all branches, offices and agencies of government. Administrative processes against administrative actions serve the rule of law, as do the debates on the floor of the legislature. It can and in fact has been argued that the Supreme Court is particularly equipped to uphold the rule of law because of the qualification of the justices — who, besides being lawyers, must have had practice of law and established a reputation for juristic competence. But our constitution does not quite clearly entrust the well-being of the nation and the Republic to unelected modern avatars of the Platonic Guardians! Besides, there is something paradoxical to the claim that the elected representatives of the people cannot be trusted to uphold the Constitution in the same way that unelected magistrates do. Our system of government trusts the elected representatives of the people to safeguard public interests and the common weal even as it makes the judiciary’s role in the protection of rights guaranteed by the Bill of Rights paramount.
Baker v. Carr (1962) suggests a way back toward a more sober realization of judicial power. In the course of identifying a “political question,” Justice Brennan wrote: “It is apparent that several formulations which vary slightly according to the writings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or lack of judicially discoverable and manageable standards for resolving it...” Under our Constitution, Article XI is clear in its commitment to Congress the process of impeachment: acceptance of the impeachment complaint, referral to the relevant committee, determination of sufficiency as to form and substance, and filing of the articles of impeachment — all to the House of Representatives, and to the Senate the “sole power” to try and decide. The textual commitment cannot be any clearer.
Senate President Tito Sotto expressed his dismay over the resolution of the Supreme Court — particularly what it meant for the power of the Senate in regard to impeachment proceedings. Quite expectedly, he has been slurred for pitting his educational background against Their Honors, the learned members of the Supreme Court. But that misses the point. Sotto was raising a matter of profound constitutional moment. He was asking whether, in the exercise of powers clearly granted Congress by the Constitution itself, the Supreme Court’s criteria, standards and positions could interdict the chambers of Congress. That is a question about the workings of our democracy — and it is neither trivial nor impertinent.
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
