Judicial review, people power and the blogosphere, revisited

(The following is an excerpt from the exchange between FEU Constitutional Law professor Edwin Lacierda, Philippine Daily Inquirer editorialist John Nery and myself in Newsstand, which took place between August 21 and 23, 2005. I’m just hoping John will take this repost as an exercise in fair quotation, as part of the continuing Charter change debate, or perhaps as a side commentary on the latest episode of the Garci saga, this time a petition to the robed sires for freedom from a congressional arrest warrant.)

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EDWIN: Abe, while it is true that the SC and the Legislature are co-equal branches of government, the SC, though has never frowned on intervening albeit in gentle and courteous terms, especially when it deals with legality and not wisdom. It has done so in Francisco and in several landmark cases in the past.

Why? Because (a) nature abhors a vacuum - that is the abbreviated way of the SC reminding the legislature that sometimes, the House leaves their brains at the door and certainly, while it can define the rules for themselves, the House sometimes forgets that their acts are not in accord with the Constitution. We saw that in Francisco; (b) to paraphrase the late Justice Teodoro Padilla in Constitutional law cases which he often found himself in dissent with his other brethren: “Constitutional law is about power, not wisdom, policy or expediency.” The SC has the responsibility to define that powers enumerated in the Charter and as observed by long standing tradition are properly exercised by the pertinent branches of government.

As such, judicial power involves the power to settle acts or powers that may be at war with the constitution. This war always involves legality, never wisdom. And that is why the SC will intervene, if called upon, to determine the legality of its decision . . .

ABE: Edwin, first, re: the amended (impeachment) complaint. I don’t see any obstacle, constitutional or otherwise, to amend the Lozano complaint at this stage of the initiation of the impeachment proceedings. The Committee moto propio may amend the complaint anytime at its discretion. The Committee may also entertain additional complaints other than those already filed and thereupon decide to consolidate all of them in the Articles of Impeachment. This is so because the “initiation” is not yet completed; hence, the one-year bar is not yet in operation. It goes without saying that Pedro Ferrer’s Motion to Strike, based, among other things, on amendment of the complaint without leave of court, is way premature.

Now, if you examine Francisco (quite thoroughly I did here) it was precisely the SC who left their collective brains at the door. In fact, if they didn’t, the decision would have been a culpable (intentional) violation of the Constitution. The pertinent House impeachment rules were perfectly constitutional. Unfortunately, the “Brat Pack” congressmen were equally remiss and slovenly in keeping their gray matters together to argue more convincingly. Thus, the justices finding for the Chief as well as for themselves, UNCONSTITUTIONALLY declared the House rules in question unconstitutional. (Incidentally, the one-year ban is already over even assuming, arguendo, the Francisco ruling is not erroneous. So, if everyone, as GMA, is interested in the Rule of Law, there ought to be another impeachment, other than the pending one. In fairness to Chief Justice Davide, he should be allowed another opportunity to prove his innocence.)

In the main, the SC in Francisco was basically being TERRITORIAL, i.e., it claimed, quite gratuitously, that its province to interpret the Constitution is more expansive than Congress’ even on matters solely and exclusively vested in Congress and where the Constitution itself precludes judicial review. Francisco is such an amusing exercise of “judicial activism” - for a self-serving cause.

Your quote from Justice Padilla somehow affirms Justice Frankfurter’s view of constitutional interpretation. It “is not at all a science, but applied politics,” Frankfurter said.

EDWIN: Abe, I agree with you that the complaint can still be amended at this point. The Justice Committee is skating on thin ice if they do dismiss the amended impeachment complaint.

I guess the hearing in the Justice committee may all be a charade cloaked in legalities and technicalities so when Datumanong finally brings down the gavel, he will not be accused of denying due process to the other side. He may be accused with shallow reasoning and but I guess he already knows that.

Being a political process, impressing the public a semblance of fair play in the Justice Committee hearings is of primordial importance for the administration to avert a parliament of streets. And I think it unwittingly trapped the opposition to dawdle in details such that the pro-administration solons can justify they gave the opposition ample time to argue their points.

On the Supreme Court ruling in Francisco as being territorial: That is Darwin at work. And no matter how you feel an unfair or stupid a decision may be, they are the final arbiters of the law in our scheme of things. Hard cases really make bad laws.

But now that it is the season of charter change, any suggestions to change the status quo of your benevolent despots?

ABE: Edwin, a decision of the Supreme Court is final only if acquiesced in by the people.

Accordingly, the infamous Javellana v. The Executive Secretary, which declared that “there is no further judicial obstacle to the (Marcos) Constitution being considered in force and effect” ultimately failed the test of public acquiescence. So was the Dred Scott decision, where the U.S. Supreme Court had ruled that the “enslaved African race” is not within the contemplation of “all men are created equal” in America’s Declaration of Independence. And then despite the Philippine Supreme Court’s attempt in Estrada v. Desierto to demote People Power II to mere speechifying, most Filipinos believe that Estrada was ousted by popular revolt and not by the sleigh of “constructive resignation” pulled off by the Court. (A revolutionary People Power II would have the effect of rendering all the Court’s seats vacant.)

In the context of the larger Philippine society, People Power has served more than once as the social checks and balances of a flawed procedural democracy. It is the same force that today is being brought to bear upon the members of House Committee on Justice to conduct themselves, in the impeachment proceedings against President Arroyo, within reason and plain decency. Without the Great Beast intently watchful from the wayside, the Committee could casually get away with political murder.

Hence, the carnival atmosphere that Arroyo’s apologist, Alex Magno, bewails is in fact a welcome one. The educative as well as the participatory nature of the whole shebang attests to the vibrancy of Philippine democracy, something that’s waning or wanting in “mature” democracies such as that of the United States.

It is always a joy to observe that political capacities in the Philippines are as much explored in the buffooneries of text messages and the networked culture of the blogosphere as on a routine cab ride. In the Philippines, taxi drivers, as a rule of thumb, are democrats.

The sense that judicial activism is anti-People Power has been quite symptomatic in my previous comments. Impetuous resort to activism by the Supreme Court towards the language of the Constitution preempts the people’s right to keep or change the Constitution by themselves or through their delegates. Not being directly accountable to the people, the Supreme Court has the taller order to exercise restraint.

Now, how do we limit the reviewing itch of the justices? One option would be to ENUMERATE their powers. Another would be to require them to run for their offices just like the rest of our politicians.

In the equation of blame peddled by the media, the whipping boys as we all know are the “trapos” (the people’s representatives, fortunately or unfortunately). Insulated are the brethren in robes and the economic elites who by the way are no less political simply because realpolitik does take place in courtrooms as well as in boardrooms. One reason for this unequal treatment is that both the justices and the economic elites operate in their “arcane” realms.

When the Estate of media slackens (or is blindsided) in its supposed role to decode those other cryptic worlds, someone, some bloggers, have to pick up from the slacks.

EDWIN: Abe, I am not sure that an SC decision is final only if acquiesced by the people.

You may be right if you refer to moral acquiescence but legal acquiescence is final and requires no moral assent from the people.

Roe v. Wade is a case in point. Legally, it is settled law and all the states have acquiesced to the legality of abortion but morally, it is constantly being challenged especially in Red states.

Do we take Roe as not being final? If it is not final, can public hospitals disregard it by prohibiting abortion services in their wards? Obviously, at the risk of civil and criminal sanctions, they cannot. And that is where we come at the crossroads of the “what is legal is not necessarily moral and what is moral is not necessarily legal” argument. It is settled law until overturned by a contrary decision by the SC as what happened to the Dred Scott decision.

With reference to Javellana, while Chief Justice Roberto Concepcion had moral qualms about the 1972 Constitution proof of which he retired much earlier than the mandated age of retirement, the fact was the Marcos Constitution was the legally accepted charter for 15 years and quite obviously, even against those who opposed it, it was settled law.

Talking about Dred Scott, shouldn’t the Americans be amending their own charter considering that they consider Negros as three-fifths of a person?

With respect to people power, it is a potent moral force but I think it was not launched against this president because rightly or wrongly, the people have taken a pragmatic approach and not a principled stance on this current controversy. Hence, the ebb of people power.

With respect to the justices running for office, the SCOTUS justices do not run for office and they are appointed till death takes them or sickness strikes them. I think I am happier that there is a retirement age for our justices than the US system. And I am not sure that letting them run for office is a step in a better direction.

Incidentally, the 1987 Constitution enumerates the powers of the SC but then, they have been guilty of judicial legislation for so long that no one bothers to question them anymore.

When media writes about the weakest branch of government, it writes in reverent tones. And even if a journalist is lawyer trained, the same pitfall occurs. There ought to be a system, outside of legal journals and circles, where a lawyer or a journalist can honestly critique an SC decision without inviting contempt or disbarment. The SC will defend to death your right to free speech, so long as you don’t do an Alan Paguia on them.

ABE: Edwin, what I’m basically saying is that just because the Court has issued a “final” judgment, non-judicial actors or the people must suspend theirs. The judiciary leaves its footprints on society, no doubt. But vigilant citizenry must drive the “political” agenda of the courts. Hence, to safeguard its institutional turf, the judiciary must make accommodations with public opinion when it dabbles in policymaking. It has to be so because the judiciary is not the only participant in shaping constitutional values, or even if co-participation is acknowledged, the justices should not arrogate upon themselves that they are supreme among co-equals.

The suggestion then that the justices should campaign and run for their offices is more of a derision of their “trapo” behavior of late – which of course has not escaped your notice.

Under the Fourteenth Amendment (1868) to the U.S. Constitution, former slaves were granted citizenship and “equal protection of the laws.” The Amendment became the basis for claims of legal equality. Ironically, it is the same Amendment utilized by the US Supreme Court to accept the argument that corporations are “persons” and their money was protected pursuant thereto, and that paved the advance towards industrial capitalism, American-style (Shades of the Mining Law decisions?).

On judicial reforms in Cha cha, what I’m really advocating is that aside from the enumeration of judicial powers, there should also be express enumeration of the LIMITATIONS of those powers, such as judicial review shall NOT apply to:

1) Impeachment cases;
2) Political questions (“political questions” being clearly defined);
3) etc.

I have attempted to explain “the ebb of people power” once here.

EDWIN: Abe, one of the reforms I would encourage is to bring back the confirmation hearings of SC justices before the Commission on Appointments.

The Judicial and Bar Council has not served its purpose. The late Chief Justice Roberto Concepcion’s noble intent of the JBC to remove politics from the judiciary is honored more in the breach than in the observance.

Whereas, before, the Justices would have to play politics against a greater number of people, all one has to do now is to woo 7 or 8 members of the JBC.

But a comparison of the quality of jurists pre and post Marcos years seems to suggest that the confirmation process in the CA worked for the commonweal. You have justices then who were giants in the legal field and who were never involved in shenanigans.

It would have been unimaginable during the tenure of CJ Concepcion to have a Justice Purisima (Cesar Purisima’s dad) not recusing himself as Chief Bar Examiner where a nephew was taking the bar exams, or a Justice Hugo Gutierrez being accused of not actually penning his own decision in a high profile commercial case. The high standards of the bench have, over the years, been compromised and lowered and I think this was due in no small part to the Judicial and Bar Cabal.

Confirmation hearings offer the public the opportunity to expose, free for all, the warts and all of a justice-nominee. It would be better for nominees of sterling reputation and quality to stand the mettle of fire and come out confirmed rather than be confirmed in the hushed dark corridors of power. The process may be longer but since these justices are going to decide how the law will impact our daily lives, a lengthy debate is but a small price to pay.

Finally, if as you say, people power is a check on the flawed procedural democracy and on erring presidents, would you advocate the same people power overturning flawed SC decisions especially political ones? It has never been done in any jurisdiction since it will unsettle the very idea of judicial precedence and stability, but if parameters are carefully delineated, who is to say it wont work? If that happens, then our society will truly live out the “vox populi, vox dei” ideal in all 3 branches of government.

JOHN: I happen to share the view (and have written more than once about it) that the so-called weakest branch of government has in fact and in the last several years turned out to be the last true bastion of our democracy (vexing economic rulings very firmly aside).

ABE: John, I agree with Edwin that your observation is truer before Marcos bastardized the judiciary as an institution. Indeed, Marcos possibly ruined as much Filipinos of great standing, reputation and intellect as Hitler had done to many well-meaning Germans.

But before going further, some disclosure first. I am partial to People Power democracy. As such, at least theoretically, my court of last resort (in so far as the so-called three-branch interpretation of the Constitution is concerned) is Congress since it is the most representative of the three branches and the most accountable.

Such preference for greater deference to Congress (rather than the Courts, for instance) is influenced by the belief that democracy is a good deal authentic when ordinary citizens could exert more effective control over leaders through popular sovereignty and political equality.

Unfortunately, Congress is also the most demonized (the perceived undisputed breeder of “trapo” politics), its political clout being more diffused than those of the executive’s or the judiciary’s, and therefore for many practical reasons it could in fact be the weakest of the three against assaults of varied forms. (It was much easier for a nimble SC to hail the Chief in Francisco than for the “Brat Packs” congressmen to regroup for the critical 1/3 vote and ignore the ruling.)

JOHN: I doubt, however, if (Edwin and Abe) will disagree with what I will say next: When the high court directed Hyatt 10 leader Cesar Purisima, a non-lawyer and therefore not an agent of the court, to explain his opinion that political considerations entered into the SC decision-making on the VAT law, or be cited for contempt, I felt a chill in my non-lawyer’s bones.

ABE: First of all restraining the collection of tax through TRO upon such ground, for example, as property rights violation (e.g., excessive and confiscatory taxation) could be tantamount to issuing a TRO to Erap, against what was then his “wristband” policy of an all-out war in Mindanao, because bombing terrorist lairs would be “cruel and unusual punishment” or would violate the basic requirement of “presumption of innocence.”

Now, the SC is just overly thin-skinned (which is another way of saying it lacks self-confidence). “Men in public life may suffer under a hostile and unjust accusation,” Justice Malcolm said in U.S. v. Bustos; “the wound can be assuaged with a balm of clear conscience.” (If clear, yeah.)

The threat of contempt against Cesar Purisima has been just a classic case of constitutional collision of two great democratic ideals, freedom of expression and fair administration of justice. Constitutional litigation in many ways is not about black and white, or guilt or innocence. As in the Kapisanan case, constitutional law cases could often be a choice between values that could be both morally acceptable (public’s right to know versus the right of an accused to impartial trial). If the threatened contempt is not about clear and present danger against the independence of the SC, it could only mean that “truth hurts,” really.

What if Purisima (when still in power) ignored the contempt citation? Now, the harder question is: What if an irate Iron Lady (that’s emerging) ignores the TRO (given the supposed loss to the public coffer of P160 million daily and all the consequences of negative reactions from rating agencies), who will enforce the TRO? (Unless this is another “mock” battle, you know.)

EDWIN: One of the reforms I would encourage is to bring back the confirmation hearings of SC justices before the Commission on Appointments.

ABE: Got you. CA confirmation is as effective checks and balance mechanisms as: 1) ignoring SC rulings, 2) constitutional amendment, 3) court-packing, and 4) impeachment.

EDWIN: Confirmation hearings offer the public the opportunity to expose, free for all, the warts and all of a justice-nominee. It would be better for nominees of sterling reputation and quality to stand the mettle of fire and come out confirmed rather than be confirmed in the hushed dark corridors of power. The process may be longer but since these justices are going to decide how the law will impact our daily lives, a lengthy debate is but a small price to pay.

ABE: Also, when political parties are now formed on party programs or along ideological lines, confirmation is also a way of exposing the political values and proclivities of the nominee … when that day ever comes.

EDWIN: Finally, if as you say, people power is a check on the flawed procedural democracy and on erring presidents, would you advocate the same people power overturning flawed SC decisions especially political ones? It has never been done in any jurisdiction since it will unsettle the very idea of judicial precedence and stability, but if parameters are carefully delineated, who is to say it wont work? If that happens, then our society will truly live out the “vox populi, vox dei” ideal in all 3 branches of government.

ABE: One US SC justice once said (in a court case but I don’t recall now), the SC “are not final because we are infallible, but we are infallible because we are final” or words to that effect. The answer to that arrogance is People Power. What would have happened if the SC ruled in favor of Erap and against People Power II?

I will say it again: The decision of the Supreme Court is final only if the community accepts it is a well-reasoned one. Otherwise blogging like this will carry on. haha

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