Among the responses to Marcosian authoritarianism the Filipinos have decided to entrench in the Constitution are: 1) the expansion of powers of the Supreme Court, 2) the placing of additional curbs to executive powers via more specific provisions of congressional control, and 3) the augmenting of the Bill of Rights to strengthen the protections of individuals and minorities against improvident exercise of authority.
It is however the new-fangled power of the Court under Section 1, Article VIII of the 1987 Constitution that has disquieted me most.
In April 2008 I had the following to say on this subject in Manolo Quezon’s blogsite:
I remember excusing myself from an invitation of Manolo to participate in the discussion on “separation of powers” in his talk show. However, I did draw his attention to a constitutional issue I had had a chance to delve into in an older commentary regarding the implication of the so-called expanded certiorari jurisdiction of the Philippine Supreme Court under Section 1, Article VIII of the Constitution as construed today by the justices. I was referring to the Court’s “judicial power” as defined in the said constitutional provision as including “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not 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” (italics mine).
The suggestion was meant to express my apprehension about the potential for “judicial despotism” in the Philippines in the long term rather than the resort to Marcosian authoritarianism by President Arroyo in the short term.
I have pointed out in my commentary that Section 1, Article VIII is the realization of a singular mission of Mr. Chief Justice Roberto Concepcion (“Mr. Rule of Law” himself). The former Chief Justice’s hope, grown out of his unfortunate experience as chief justice, was to obviate another Javellana scenario wherein his brethren in robes conveniently have chosen to evade, on “political question” pretense, their judicial “duty” to rule on transcendental constitutional matters such as the adoption of a constitution.
Today, instead of a prescription for judicial duty, Section1, Article VIII is emerging as an alarming source of seemingly unlimited judicial powers, with the Supreme Court effectively transforming itself as a branch of government more equal among co-equals.
The Court had brandished a couple of times before this self-branded expanded certiorari authority, but in the most recent Neri v. Senate Committee decision, it brought the monster out of the cave to cripple a coordinate branch of the government, even encroaching upon textually committed constitutional functions of the Senate or three of its committees.
I had the same angst again when the Supreme Court, with minimal information, had first issued a restraining order against the signing by the Philippine contingent of the MoA-AD between the Government of the Philippines and the rebel group MILF and then on October 14, 2008 handed down the Cotabato v. GRP decision striking down as unconstitutional the MoA-AD.
My worry actually lies in sensing the danger that “political” justices (including those, to borrow DJB’s florid words in the preceeding entry, with “murky and sadistic thoughts” and into “egoistic power trips”) quite enamored by newfound mandate might well succumb to the temptation of hoarding judicial powers and one day upset for good the delicate constitutional checks and balances mechanism, one of the critical pillars of our system of government.
It is in this light that instead of exalting the Supreme Court for supposedly exhibiting independence from the executive in dealing with the MoA-AD cases, I have raised serious concerns about the activist route the Court has taken given the wide opportunity available to it to exercise judicial self-restraint.
I do not wish however to express any sympathy for President Arroyo whose lack of foresight may have been contributory to the scuttling of the peace process that the peace negotiators have worked so hard to forge. It appears Arroyo even kept her congressional allies and partisan local politicians out of the loop; consequently, they were not there to lend support or rally others to endorse her bold peace initiative.
What I think we have so far witnessed is that when executive activism (e.g., attempting to make way for peace “outside of the box”) clashes with judicial activism (e.g., encroaching on executive prerogative in the guise of judicial oversight) the party who as a matter of rule of law submits to the sway of the other often gets the short end of the stick. Bit by bit in this conflict, the judiciary, unrestrained by any other check than the consciences of the individual justices, has been surely keeping in total control of the longer opposite end.
Thus, incautiously aggrandizing judicial independence – the way Smokey HP is ennobling the “angel of vision” (per DJB) for bringing “economic and political stability in this country” (per HPOS) – while trespass of defined constitutional boundaries may be occurring, similarly amounts to encouraging impulses to Shamanism or, in Dean Jorge Bocobo’s no-holds-barred rhetoric, the role of “destabilizers and destroyers of the Constitution.”
If today we are thinking of cataloguing potential changes to the Charter, Section 1, Article VIII should top the list.
Popularity: 1% [?]
Hahaha, very good Abe. Just one correction for now, those “florid words” came not from me, but from the High Priest. And yes, I agree that the Supreme Court has become activist because of the innovation you berate. In fact, Edsa Dos was judicial putschism since even the 1987 constitution clearly and explicitly gives Congress the “sole and exclusive” jurisdiction over “all cases of impeachment” — yet Arroyo was made President by Davide and Reyes at the height of an impeachment trial!
And who indeed can deal with such a monumental crime considering it was coup d’etat executed by the AFP and the Supreme Court and the OVP. It doesn’t even fall under “grave abuse of discretion” since the Court had NO discretion whatsoever. The Senate was gonna acquit Erap, simple as that, as the Craven Eleven had shown. Davide could not accept that, so he conspired with Reyes and Arroyo to junk the Constitution and swear her in.
Even the Supreme Court — especially the Supreme Court — can screw the pooch of the Rule of Law.
great insight
although the Supreme Court is now, as it seems, MORE powerful than ever, with the idea of them being able to interpret the LAW, according to their whims and opinions, i believe they have, so far, done a good job in taming a powerful, creative and a rather exploring executive while drawing the line to the limits of the rabid inquiries of congress
2001 really made me raise an eyebrow, in spite of my current affiliation.
it seems there is a new ‘king-maker’ in the country
Davide will go down in History as the Destroyer of Constitutionalism. Edsa One was revolution that resulted in a new Constitution which sought to prevent another fascist dictatorship like Marcos. But it swung wide to the other side and gave the Supreme Court these vast powers. But let us be clear about Edsa Dos. That was not even a proper exercise of those vast powers, but a bald transgression of the Separation of Powers. It was a judicial-military coup d’etat.
The case tried in 2001 should not have been Estrada v. Arroyo, but Estrada v. Davide. Under our Constitution, the Supreme Court has absolutely no jurisdiction, original or acquired or imagined, over “any case of impeachment”. It belongs solely and exclusively to Congress. Here is a wall of separation between the powers that stands like a geological formation–bulldozed to the ground by Angelo Reyes, the unpunished mutineer who has held five (six?) successive cabinet posts, in which he has done nothing but grow fat and flaccid, as if no one else is qualified, and Hilario Davide, the biggest Hoodlum in Robes that ever was. It’s just too bad his victim was the despicable Erap Estrada. But mark this, he destroyed Constitutionalism and set us up for the coming fascist dictatorship of Gloria Macapagal Arroyo.
coup d’etat executed by the AFP and the Supreme Court and the OVP.
I wonder what would happen if Panfilo Lacson did not withdrew his support.
I also wonder if then senate president Nene Pimentel’s role were different he was so excited during the oath taking),because they say he was promised the VP position.
At least lacson had no choice,
it was still a people power even if it is only a fraction the Philippine population,would you have wanted the people to be annihilated instead.Even Lacson thought withdrawal of support was the only choice he had at that time.
But forget about the past for a while,think 2010.
First let me categorically state that i don’t think THOS is an assistant solgen,anyone could have typed that his office in Amorsolo.
And I don’t think Liam=highpriest
Liam is a writer,a content provider. He writes better than Hpos.Not all lawyers write and speak that good anyways,ok HPOS maybe an assistant solgen or an ASG.
But their arguments for another term , extension and popularity comes from a fanatic rather than an employee.
Jocjoc is back,right?
even if it is time consuming I hope the fertilizer scam gets revived,as well as that hyperoverpriced northrail .If the impeachment fails at least they already have voluminous documents.
And whoever is president hopefully won’t block initiatives to bring gloria et al to court,I think ASolGen smokey won’t mind prosecuting her.
What if she plays the hey I pardoned ERAP trump card? But I will have to say innocent until proven otherwise no matter how i dislike her.
I don’t think that there would be amendments before 2010. Even the HP backtracked that he did not say he wanted chacha before 2010.
“Jocjoc is back,right?”
Wala pa pala.
I am watching this pnp dilg stuff.Miriam is really after Puno,after that drug testing controversy.
THPoS works for the OSG? really?
Jes, naughty you.
For a moment there I thought you were equating tHPos to a frightening illness. What’s that you’re whispering Patricio? HPofSht? you rascal you. Seriously now, the more I chew on Prof. Abe’s writings about the Supreme Court, I ask myself if the 8-7 voting declaring the MoA-AD was a defining moment or if the high court, given its latest ruling allowing Neri to keep his virginal mouth shut sort of balances things out?
We should note as well the reports in recent days of several upcoming vacancies in the Court. Abangan, the dice will be further loaded as even this Euro general Dela Paz is questioning the Senate’s jurisdiction to grill him about their delegation’s most generous allowance… err contingency fund for oh-so-expensive Russia.
Another issue set to be tackled by the SC is the aspect of the two chambers of Congress voting separately as one cha-cha. This I bet i the source of the cockiness of our recent visitors here at FV who, of course, continue to be most welcome to regale us.
I’m back. I have a meter high of papers to read and write about; that’s why I was conspicuously absent. Unlike most people here in this “FilipinoVoices”, I’m a dutiful official, minding the affairs of the State in truest fashion. They have time to spare.
Now, going back to what Mr. Abe wrote here. Swimming from all these loong winded rhetoric is a very simple fear expressed by Abe on Section 1, Article VIII of the 1987 Constitution. Unknown to all, there’s nothing new or amazing to what Mr. Abe wrote here. It only becomes “new” to many because many of you here are ignorant on the law. Well, I’m not surprised. Most writers here are not law students. They don’t understand the ramifications of what they’re expressing here.
The “fears” expressed by Mr. Abe here have been resolved already with commentaries made by Fr. Joaquin Bernas on this. Likewise, Justice Sarmiento’s views are most relevant.
There’s nothing wrong with how this constitutional provision was framed by the Constitutional fathers. The “fear” that the Supreme Court would arrogate the powers of the Executive has been clearly resolved by the application of the concept of checks and balances. There is still one body which can question Supreme Court decisions and it is the legal counsel of the Executive Department. Or even a lowly taxpayer can simply file a motion for reconsideration. This is to remind the Highest Tribunal that maybe, it needs to re-examine its decisions in the light of new evidence or new interpretation.
The fact of the matter is, even Congress has the power to check the SC, not solely being the holder of the purse. It can use its parliamentary powers to re-examine a particular provision, construe it and make that construction law. In that matter, the perspective on that law is totally changed. And in constitutional fashion, the Supreme Court just merely follows what the framers of the law want to say.
ding, karl alluded so in his 12:42:
as for THPoS’ 1:55:
what are you doing writing comments during work hours? i’m a taxpayer, your salary’s from my pocket. is blogging and commenting part of your job description as a government lawyer? if so, i want to know where you work, who you work for, and why blogging is part of your job description.
if not, good sir, get back to work. :D
Jester to the High Priest of Soot at 3:18:
“is blogging and commenting part of your job description as a government lawyer? if so, i want to know where you work, who you work for, and why blogging is part of your job description.”
Ooh I so wanna know too. This guy who boasts about being a “government official” is here blogging during official hours. No wonder you guys have all those pending RoWA and expropriation cases. Ooops. Dude, go back to work and give us our taxes’ worth.
@jes
well.. i consider it a part of my job to read news, editorials, opinions, and sometimes blogs like this so i can stay attuned or somehow stay objective as to what i write.
there are also times that we are compelled to write a reply either to get certain facts straight or air our side of the story
i was asking THPoS, liam. obviously, being a presidential staff officer of Malacaňang’s Correspondence Office, it would indeed fall under your portfolio.
in fact, with your position, i would suppose your pronouncements on presidential policy would have greater weight than that of THPoS.
unless, of course, THPoS = liam?
We’ll have to ask Bencard.
no.. i think thpos is a ‘ranking’ official close to the president.. im just a ‘back-office’ coterminus worker and not really involved with policy.. well im sorry if i cant say much, im still under the Office and i think deference is due to the president.. ill ask first if im allowed to say what i exactly do.. but its not even close to impressive..
i got my suspicions, but just look at who’s 37 years young, a lawyer and close to the pgma, then i think you have a pretty good chance of guessing who thpos is..
@thpos: do you work in: mabini, arlegui small, arlegui tall, neb, bonifacio, kalayaan, or where heroes hall is located?
< mabini
OK. Jester: cage match still stands.
I guess I am with you on this point Abe. The Supreme Court is, in one sense, a far greater danger to us than the Presidency. After all, as long as we protect the right to free, fair and REGULAR elections, we can throw the bums out, at least every six years. But with a bunch of unelected judges, appointed by the President, and having already tasted blood, already sullied their hands with the blood of separation of powers, Padre Faura is new Frailocracy that is truly accountable to no one. Having further made impeachment “assault with a dead weapon” during the attempt to impeach Davide, using that silly impeachment initiation rule, the Court has emasculated the Congress, which is the only real check and balance to the Hoodlums in Robes, where billions are quietly exchanged in so many low-profile, high price cases.
The Mass Media has not been doing its job on the Judiciary, primarily because Puno has so very deftly put them to sleep. I think too that newspapers like the Philippine Daily Innuendo think of the Court much as they do the Roman Curia, given that its editor-in-chief and owners are Catolicos cerrados.
Much as I disagree with you on the matter of the MOA-AD this was a ground-breaking post with whose sentiments I strongly sympathize, at least on the matter of Separation of Powers.
@thpos
what a dose of statutory construction. the SC’s new found role, though seemingly powerful, it is still limited to whats written and what’s in the journal..
and although what the SC is doing is, for lack of a better word, something, i still think of it as a positive development, so far.. it seems our institutions are evolving..
Honestly, mr. djb, I agree with some of your comments, especially your dig at Former Chief Justice Davide. Short of accusing the former Court of prostitution, the fact is, many disagreed on the points raised by the Court in giving this administration a cloak of legitimacy. The decision was not based on facts. It was based on a poorly constructed letter, purportedly signed by the former president and deemed as proof of “constructive resignation”.
Having said this, I think that the present constitution of this august chamber has proven itself competent in dispensing what you so arguably describe as People’s Justice (If I interpreted you correctly). Though I thought that the government position on the MOA-AD is one brilliant defense on the powers of the Executive to enter into treaty-making, I still subscribe to that unfortunate decision to declare the agreement void ab initio. Now, whatever the Supreme Court say, we should, as mortals, obey.
You need to accept that, in this world, cruel as it is, those who win the game always get the pot.
mr. tinio,
thank you. statutory construction which I took at my freshman days, is a useful tool in my profession.
@djb,
let me add to my earlier comment.
I want to add this statement. ” Nonetheless, as the Court already spoke on the matter (on the Davide decision), we should just obey. The legitimacy of this administration has been resolved and must be respected. This should have been the second paragraph.
HP,
On 20 Jan 2001 when Davide swore in GMA, the reason the Presidency was purportedly vacant was “permanent disability” NOT “constructive resignation”.
What a laugh! Talk about being a trier of facts post non facto. (My Latin fails me!)
It wasn’t until 2 months later that they had to change it to “constructive resignation”–because obviously Erap must have come out of the coma by Monday to file the case, Estrada v. Arroyo.
But it just proves this was a coup d’etat. There wasn’t even a case involving the Presidency in the Court. So what was the guy in the Black Robes doing at a partisan political affair??
Hoodlum!
“People’s Justice?” You must mean “vigilante”, no?
hehehe. very good. yes, I agree that it was that way. such is History. and yes, short of saying that Davide prostituted himself, what I just wrote is simply that this issue has been resolved and now part of the terra legalis.
nonetheless, this supposed “error” by Davide should not desist you from your faith with the law. as you said, ” we are a government of LAWS and not of men” simply betrays you’re true nature as a faithful adherent of the law. And Davide, is no law.
having said that, like what I asked Mr. Marocharim, you can always join us.
Join you? Where? In jail? Or in hell? No thanks, priest. That’s where you are all headed. BTW, don’t forget even the US Supreme Court rendered a century of pro-slavery decisions. But this year, a black man who snubbed the Moral Pygmy will prove that Frederick Douglass was right:
“Your forefathers were men of peace; but they preferred revolution to peaceful submission to bondage. They were quiet men but they did not shrink from agitating against oppression. They showed forbearance but they knew its limits. They believed in order but not the order of tyranny. With them nothing was “settled” that was not right. With them, justice, liberty and humanity were “final” — but not slavery and oppression. You may well cherish the memory of such men, for they seized upon eternal principles, and set a glorious example in their defense. Mark them.”
Smokey HP,
Please tell us something how Fr. Bernas has “resolved” my fears and also about Justice Sarmiento’s relevant views.
Meanwhile, let me tell a bit more where I’m coming from. I view judicial review as undemocratic (albeit constitutional) and, the way the SC is construing Sec. 1, Article VIII, as making, or “evolving” itself into, not only a super-Legislator but also a super-Executive.
btw, do you agree that the doctrine of separation of powers is not about running the business of government efficiently but saving the people from autocracy and that autocracy may obtain when one branch of the government accumulates too much power at the expense of the other branches?
DJB,
Now you are echoing the Jeffersonian philosophy we both love about. The SC is not the interpreter of the Constitution by its perverter. And while the members of the two other branches are accountable to the people every 4 or six years, the Membersof the SC are life tenured, and yet they would like to lord it over the two other branches.
I shall quote part of my book latter, I have to go to work. :)