POWERS
MANILA, FEBRUARY 28, 2012 (FILIPINO VOICES) Judicial
review, or the power to hold legislative, executive and other governmental
actions unconstitutional, somehow allows the Supreme Court to be first among
equals or otherwise claim judicial supremacy.
The power ebbs and flows, however, depending on the Court's obtaining
judicial philosophy – judicial self-restraint or judicial activism.
As an aftermath of the impeachment of Chief Justice Corona, this
constitutional power relationship has become liable to be recalibrated.
Already the Senate has asserted in unmistakable terms its authority as the
only Constitutional Court in the impeachment trial of Chief Justice Corona,
threatening in the process to unravel the delicate fabric of judicial review,
the pretended powers in the so-called expanded certiorari jurisdiction of the
Supreme Court notwithstanding.
In a prolonged impeachment trial that has the potential of being an all-out
constitutional conflict the Court cannot win, the judiciary may actually end up
in the red, i.e., ceding great powers it has steadily "hoarded," heretofore with
little or no resistance from the political departments or the people.
Consequently, the impeachment could turn out to be as much about the fitness
of Corona to hold his high office as the ability of the Court to keep the metes
and bounds of the judiciary's province it has zealously defined and assigned
itself.
Does this impending development allay the fears that political justices
enamored by a newfound mandate (the expanded certiorari jurisdiction) might well
succumb to the impulses of Shamanism concocting powers as they please and one
day upset for good the delicate constitutional checks and balances mechanism?
The apprehension seems justified given that in a number of significant cases
of recent vintage, the Court has freely engaged in judicial activism (the
imputation that judges confuse their own idea of justice and right with the law)
rebuking both the Legislative and the Executive where opportunity for judicial
self-restraint, upholding separation of powers and the republican principle, was
widely available. For instance, during a parallel conflict between the Court and
the Executive in the MoA-Ad case (Province of North Cotabato v. GRP), we have
expressed the concern that
. . . when executive activism (e.g., attempting to make way for peace [in
Mindanao] "outside of the box") clashes with judicial activism (e.g.,
encroaching on executive prerogative in the guise of judicial oversight) the
party who . . . 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.
The decision in the MoA-Ad case has in fact been in line with the Court's
lingering counter-majoritarian instincts to keep that control.
On the other hand, the hoarding binge has been unabashed as the Court
leveraged its grip of the longer end of the stick in critical cases:
Santiago v. COMELEC where it struck down the Roco Law, the enabling law for a
direct democracy or the people's initiative to amend the constitution (prompting
then Justice Artemio V. Panganiban in his dissent to call the majority decision
as "all too sweeping and too extremist"); Estrada v. Desierto where it demoted EDSA II to an inchoate cousin EDSA I
(because the Court held what had taken place was not actually an uprising but
only speechifying); Lambino v. COMELEC where it amended the Constitution by judicial fiat, by
reading a requirement, at the expense of People Power, that when it comes to
complex amendments amounting to a revision, a deliberative body, not just a
people's initiative, is demanded for the purpose; Francisco, Jr. v. House of Representatives where to hail the Chief (CJ
Davide) it interpreted the House impeachment rules against the House and stopped
the impeachment of Davide; Neri v. Senate where to serve President Arroyo it emasculated the Senate's
oversight power by justifying executive privilege to button the lips of former
NEDA director Romulo Neri (thereby preventing Neri to give more answers before
the Senate committees investigating the infamous NBN-ZTE deal);
and, of late, Biraogo v. The Philippine Truth Commission, where neither
trusting in nor deferring to the intention and action of President Noynoy
Aquino, it voided his very first executive order (EO1) creating the Truth
Commission.
The runaway Supreme Court has been impossible to stop in its track –
cementing as a result its title as "the final arbiter," "the ultimate
interpreter," "the last bastion of democracy" and "the philosopher-kings" –
until a midnight Chief Justice led the Court's majority contrive a fishy
temporary restraining order (TRO) that would have allowed President Arroyo and
spouse to escape law enforcement thereby diminishing further executive
authority.
The TRO has derogated the Court the way Malacañang involvement in a numbers
game of jueteng had demeaned the ousted President Estrada, all in a manner a
run-of-the-mill Mang Pandoy could easily understand.
Now, the Legislative with the presumed blessing of the President is poised to
inch its way on the scepter of power with the end in view of sorting out those
powers attached to it (House prosecutors, for instance, plan to have some
justices subpoenaed or ordered to appear before the Impeachment Court).
And while "legal errors" in decisions by the Supreme Court may not be subject
to review and reversal by any other authority than the Court itself, the Senate
as the Impeachment Court is now unlikely to shy away from scrutinizing, if
necessary, those decisions to arrive at a verdict on the indictment of "betrayal
of public trust" and/or "culpable violation of the Constitution."
This is happening owing not so much to the Court losing the éclat of its
activism as to the shared sense of being restrained (not by itself but) by a
watchful constituency that may be ready to reassert its political capacity (or
to occupy ) once again.
There is a way out of this imminent rebalancing of power in which the Court
might find its cached powers squandered: Corona exit now, not later.
THE BLOGGER:
[Abe N. Margallo was once expelled from all schools in the
Philippines for leading a student rally. Fortunate to be reinstated, he went on
to graduate from law school after serving as editor of the college law review.
At 25 he started teaching constitutional law while engaged in corporate law and
litigation practice.
Semi-retired after a long stint in banking and financial services, he now
likes to teach special ed students, write a column for New Jersey-based
"Filipino-Asian Bulletin" and blog at Red's Herring. Abe's parting words in
Build or Perish!, a book he has authored (and published by UST) reveal his
enduring trust in Filipinos' People Power:
Today, the high spirit of EDSA is beckoning anew. And whether we answer to
flesh it out—and answer we all must—as Tsinoy, Tisoy, Pinoy or Amboy, and as
Taipan or Mang Pandoy is really of no moment, if we believe we are all
Pinoy-rin.
We know this as the liberating instruction of People Power. So, every
Filipino, and anyone committed to the deeper tides of democracy, must keep on
deferring to its wisdom, well beyond and into the next and more arduous chapters
of nation building.]
SOURCE: Filipino Voices, Powered By A Collective Voice @ http://filipinovoices.com/about
Chief News Editor: Sol Jose Vanzi
© Copyright, 2012 by PHILIPPINE
HEADLINE NEWS ONLINE
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