The sires who would be kings

The interesting debate on judicial review highlighted by Edwin Lacierda deserves some serious attention.

Attorney Lacierda who teaches Constitutional Law at Far Eastern University is on the side of preserving the powers of the Supreme Court as currently defined by the Constitution. “Let us . . . not tweak the Supreme Court powers,” he contends. “It is fine as it is right now.” Lacierda was actually reacting in particular to what he thought is a proposal from two members of the (Constitutional) Consultative Commission, Attorneys Raul Lambino and Rita Jimeno, to curb the Court’s powers in so far as reviews of government contracts are concerned.

On the other hand, my own opinions on related matters have been to the effect that any debate now on Charter revision should focus first of all on the powers of the High Court before any other proposals such as on the form of government or certain constituional economic provisions. My concern is that the activist, if radical, and certainly different (from those of Chief Justice Roberto Concepcion’s) interpretation of judicial review makes the power so breathtakingly limitless as to allow the justices to assume the role of Philosopher-kings in the guise of what the Court has already arrogated as its so-called expanded certiorari jurisdiction. The pertinent constitutional provision, which was proposed by Chief Justice Concepcion, reads:

Judicial power includes the duty of the courts of justice to settleactual 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. (Article VIII, Section 1, paragraph 2 of the Constitution) (Italics mine.)

I have criticized at length here (and off the cuff in Newsstand) the Court’s new-found powers as directly contravening the tripartite system that is self-evident in the broader context of the Constitution and will not belabor it further for now except to quote in part what I wrote, thus:

To avoid the misplaced assumption of judicial supremacy as a necessary adjunct to the supreme character of the Constitution, which - when placed in the wrong hands - potentially could lead to the pitfall of judicial despotism, this so-styled expanded certiorari jurisdiction under the aforementioned provision of the Constitution must perforce be regarded as subordinate to the long-standing fundamental principle of coequality among the three branches of the government that presupposes reciprocal limitations. It is not enough indeed to pay mere lip service to such a constitutional value as the Court did in Francisco, for, without it being so engrained in the nation’s psyche, it would be too tempting for men and women to treat the Constitution as merely marking out the skeletal form of the government but they will flesh it out as they please.

I would like to talk briefly nevertheless about the historical perspective involving certain parallel issues that Edwin Lacierda has taken on with the two Consultative Commissioners, i.e., the supposed “obstructionist” meddling by the Court “in government contracts that have international consequences” and the Court’s vacillation on the Mining Law.

In American constitutionalism, there has been the so-called Lochner era (the period between the Lochner decision in 1905 and President’s Roosevelt’s New Deal in the 1930s) when the U.S. Supreme Court infusing free enterprise ideology into the due process clause stuck down nearly 200 pro-poor social and economic legislations. The Court invariably held the legislations as “meddlesome,” “unreasonable,” “arbitrary,” “capricious” and violated the individual’s right to enter freely into contracts. In Lochner, the SC invalidated a New York law regulating the length of the work hours of bakery workers. Business, seeing advocates for its interests in the activist robed sires, welcomed the expansive power of judicial review.

Now, if Professor Lacierda is right in his perception of the somewhat reverse course the Consultative Commission is heading as regards the “expanded powers of the Supreme Court,” would it be fair to infer that business in the Philippines is more comfortable entrusting in the long-haul its interests in the political branches (or perhaps the Parliament) rather the judiciary? But, is the trust in that case really a compliment?