The decision today of a unanimous Senate passing a resolution, which declares “that any attempt by the House of Representatives to unilaterally propose amendments to, or revision of, the Constitution without the approval by three-fourths of the Senate voting separately is unconstitutional,” shows that self-interest is a great motivator. The honorable senators must have come to their full senses that once the House, with the Supreme Court’s assent, succeeds to constitute itself as a constituent assembly, nothing can stop it from proposing the abolition of the Senate as a Philippine institution.

Let’s backtrack a bit.

While the Constitution is supposed to consist of the traditions and practices of the Philippine polity, constitutional law is basically the handiwork of the Supreme Court.

So, whether the brazen attempt of Arroyo’s House toadies to install a tyrannical republic (even sans martial law) will be legitimized or not will depend, at least for now, on what the Court will do once the issue is brought before it.

If the history of constitutional law jurisprudence is any guide, it tells us that when the constitutional provision in question is ambiguous (it lends only general direction so the judge must give effect to the constitutional logic behind the provision), the window of opportunity to be flexible has allowed the judiciary to mess around with its powers somehow. (For that matter, we can say any lawyer quite versed in Philippine constitutional law can also come up with a legal brief for or against the Villafuerte Charter change initiative, and either way it could possibly stand serious scrutiny.)

The reality of the matter is that the Constitution contains both rules and principles. In cases where the Constitution, for instance, requires an up or down decision such as the1/3 votes of the members of the House to impeach a president, there is not much that can be done to go about the “numbers” rule. But, in the case of the recent impeachment against President Arroyo, did the congressmen who actually voted down the impeachment complaint comply with the principle of rudimentary fairness by ignoring the requirement of “probable cause”?

Article XVII, Section 1 of the Constitution may be silent on how Congress should vote to convene itself as a constituent assembly for the purpose of proposing amendments or revisions to the Constitution, but does that follow that the basic principle of bicameralism (the institution of a two-house congress as an intra-chamber “checks and balances” mechanism) may not be read into the plain letter of the law as a matter of course?

We should know by now that the Court as a neutral balancer of interests is a myth; on the contrary, it is a formidable “political” powerhouse. In the US, for example, a unanimous court against Richard Nixon on the release of the Watergate audio tapes forced him to resign the US presidency. In the Philippines, a bunch of “supreme cowards” has put the Marcos constitution into effect by a viva voce ratification process that was not clearly sanctioned by the 1935 Constitution, allowing Marcos to rule as a despot as a result.

Here’s the rub for the Court as it awaits for Marcosian phantom redux to happen: What good is the redoubtable expanded certiorari jurisdiction of the Court (by which the Court is made decidedly a primus inter pares in our tripartite system) if it can no longer be used against a congress that may be vested by the constituent assembly with parliamentary sovereignty (assuming a worst case scenario where absolute power succumbs to corruption absolutely)?

For one, a sovereign parliament could spell the end of constitutional law as the handiwork of the Supreme Court as we know it today. But, even more gravely, with the institution of the judiciary itself hanging in the balance because of a Cha cha firestorm (and all the filth behind its tumult), is it too foolhardy for the black-robed sires not to pick up, when the opportunity strikes, from where the self-regarding senators left off?

 

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