on your November 15th, 2008 10:07 am

the SC as an institution is run by people with their own sets of values, party affiliations, corps and addiction to power. this institution is no different than the two other institutions. in some jurisdictions, it is the parliament that interprets the constitution and not the courts.

disabuse your mind about the SC as an oversight of the two other branches of government, the SC itelf needs its own oversight, the sovereign people, but apparently it is not accountable to the people.

echoing jcc, a truly responsible sc would do anything within its power to avoid a path directly in a collision course against the other two co-equal branches, and thereby avoid a constitutional crisis that would shake the entire government from its very foundation. in fact, all three branches must each guard against any temptation to encroach upon each other’s constitutional prerogatives. nobody can construe the constitution in such a way as to undermine any of the three branches and thus destroy the republic. i don’t believe that cj concepcion in javellana advocated sc’s primacy over the executive to “practically” abrogate the doctrine of justiciability with respect to political questions. i think he was merely pointing out the constitutional intent to afford a litigant a day in court in cases involving claims of “grave abuse of discretion tantamount to want of jurisdiction”, as basis for judicial review of executive actions, including one implicating an alleged “political question”. for its part, the respondent branch has to “respect” the court’s ruling, again to obviate a constitutional crisis.

the matter calls for the highest degree of responsibility on either side. it cannot be a whimsical, arbitrary, arrogant, conceited exercise of naked power.

as jcc points out, the court cannot go beyond validating or invalidating a legislative or executive action. it has no power, nor physical ability to enforce its decision. as a matter of fact, only the executive has the military and police forces at it’s disposal.

having said all that, however, i maintain that a court’s finding of “grave abuse of discretion” in the exercise of it executive powers does not necessarily translate to a “culpable violation” of the law or the constitution to support an impeachment of the president.

Concepcion is quoted here:

http://www.lawphil.net/judjuris/juri2003/nov2003/gr_160261_2003.html

As follows:

To ensure the potency of the power of judicial review to curb grave abuse of discretion by “any branch or instrumentalities of government,” the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called “expanded certiorari jurisdiction” of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion:

Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: “Well, since it is political, we have no authority to pass upon it.” The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x

http://arellanolaw.net/notesbankblog/?p=256

Ensuring the potency of the power of judicial review to curb grave abuse of discretion by “any branch or instrumentalities of government,” former Chief Justice Constitutional Commissioner Roberto Concepcion, in his sponsorship speech, even states that such power “…is not only a judicial power but a duty to pass judgment on matters of this nature.”

Because neither of the two others, executive and legislative, is tasked with the preservation of the rule of law. the executive implements what the legislative has enacted. but of these two and between the citizen and the state and various permutations, it is the supreme court that determines what conforms to the laws and what does not.

a mandate is required to lead, a mandate is required to deliberate, exercise oversight, pass laws, and most of all wield the power of the purse. but the mandate required of members of the supreme court is loyalty to and knowledge of the law. recall that in the ast it was the president who appointed, with the confirmation of congress, members of the supreme court, in which case the respect was as much due to the high court as to our laws or to appointees of the president -all done as part of our representative democracy. the innovation of the jbc has of course reduced the participation of those armed with a mandate to the president’s appointing the justice and the minority participation of some elected officials in the jbs. still in general terms, there was indirect participation by the people in the process.

the accountability of the justices is to the great institution of the law, of its long list of precedents and this is one reason the high court remains one of the most traditional and protocol minded institutions left, indeed i’d argue practically the only institution left with an institutional memory, with the possible exception of the armed forces. the impersonal nature of law itself, of how the law is not a question of electoral mandates but of certain principles and the interpretation of it to address new questions concerning old statutes, is why the supreme court is, indeed, supreme and why we have to respect it.

where is that constitution provision that says that the court should be assertive of its right vis-a-vis the other two branches of the government?

djb,

the tripoli agreement is not on the table before the SC, the MOA-AD is. The MOA-AD was not signed and abandoned, therefore there is no issue before the Court. The issue is not even “mootness” but “ripeness”.

but you argue that the court can entertain jurisdiction because the act is capable of repetition, obviously you were raising the issue of “mootness” not “ripeness”. as i have explained, the doctrine of “capable of repetition” was applied by the US courts in regards to lesser adjuncts of the government but not against a co-equal branch of government because such branch requires the respect of the SC. the SC does not enjoy a monopoly of good conduct. even if the MOA-AD is frought with unconstitutionality, such may be purged with its offending provisions, but the MOA-AD itself is valid without the offending provsisions.

if you read Marbury v. Madison, Justice Marshall was not about to pontiticate on the Executive knowing the limitation of the Court in commanding Madision to respect the decision of the Court. He even entertained the idea that compelling Madison to issue the commission to Marbury might be rejected by Madison and would result to the embarassment of the Court.

Such is the respect of one branch of government should bestow on its co-equal branch.

The issue over the MOA-AD does not situate the SCORP to that same position Justice Marshall had
over the Marbury v. Madison case.

The SCORP position could very well result to a constitutional crisis which it could have easily avoided by throwing out the petition on technical grounds.

To the credit of GMA, she has shown sensitivity towards public opinion that she has abandoned the idea of MOA-AD being signed. Had she persisted in signing and implementing the MOA-AD, we would have a Court calling it unconstitional and yet unable to implement its decision because it has no army to command in order to repel the Muslim armed groups from exercising jurisdiction over their so-called “ancestral lands”.

The fear that subsequent Executive might again revive the MOA-AD is purely speculative. The Court cannot make its decision prospective that it has to issue a guideline now for the next President that the people may elect.

I have no problem with people having different take on this issue but would have some issues if they continue just mouthing the position of the SCORP without trying to analyze if such position has a far-reaching consequences.

MY simple question is: Why do we have to respect so much one branch of government over the two others when such branch is not even accountable to the people while the two others are and their members have to seek mandate from the people every four or six years?

If DJB and MLQ3 can answer the question, I too would not have so much problem the SCORP making adventures on unfamiliar territories and making pontifical and sanctimonious pronouncement to guide our future. :)

However, as the Court says in the decision Cotabato v. GRP, it is the unremitting duty of the Court to strike down brazenly unconstitutional acts brought before it, acts that are ultra vires or beyond the legitimate powers of the subject respondents anyway. In this case the Court excoriated the President for usurping the prerogatives of the Congress and the People in the matter of proposing charter amendments and revisions.

It is not in other words some fine difference of opinion on some question of policy or issue of strategy, but rather the discovered fact of brazen violations of the Constitution and grave abuse of discretion.

By making its TRO permanent, the Court is really saying that the actions of the President that it had provisionally prevented purely on the basis of the urgent petitions and interventions of responsible and credible officials and citizens, it is now declaring to be a culpable violation of the constitution worthy of being prevented and anathematized by the highest court in the land, whether in the form of the MOA-AD or any other form containing the same toxic substances, such as the associative relationship between BJE and the GRP, and the various transgressions of the charter on territory and sovereignty.