Neri, en route to judicial despotism

(This piece originally a reaction comment at mlq3’s blogsite is re-posted here, slightly edited, for easy reference)

I remember excusing myself from an invitation of Manolo Quezon 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 out the monster out of the cave to cripple a coordinate branch of the government, or even encroach upon textually committed constitutional functions of the Senate or three of its committees.

To follow at this point Mr. Quezon’s painfully nostalgic drift to legal history, it should be noted that judicial review or the scope of judicial powers for that matter is actually vastly unsaid in the US Constitution. But Alexander Hamilton defended it in the Federalist papers during the campaign for ratification of the US Constitution, by arguing that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them” unlike the executive who has the “sword” and the legislature the “purse.”

“The interpretation of the laws,” according to Hamilton, “is the proper and peculiar province of the courts” although he was also among the first to call such function an “arduous a duty.” The plea was characteristically Hamiltonian. He was countermajoritarian (i.e., anti-people power) and during the constitutional convention, delegate Hamilton was quite straightforward about his preference for a constitutional aristocracy, if not monarchy. Luckily for the Americans, none followed his lead, well, not until Chief Justice Marshall’s exercise in applied politics in Marbury v. Madison (1803), essentially a plagiarized version of Hamilton’s arguments.

Constitutional democracy in America was then in its infancy and yet taking place on a trial and error basis. One of such costly errors was the Court’s decision 50 years after Marbury in Dred Scott v. Stanford (1857). In Dred Scott, it was ruled that black people were not US citizens (because they were in fact not humans but property), heightening the political tensions that attended the American Civil War. The horrible cost was more American lives lost in the fratricidal war than in World War II.

Abraham Lincoln was among those vocally wary early on of “judicial despotism.” During his inaugural address in 1861, Lincoln assailed Dred Scott: “ . . . if the policy of the government upon vital questions, affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers . . ..”

Quite afflicted by the Lincolnian angst as a result of some recent disturbing pronouncements by the Philippine Supreme Court (Estrada v. Desierto, Francisco v. House of Representatives, Santiago v. Comelec, Lambino v. Comelec and Senate v. Ermita) as a student of Constitutional Law I have welcomed the following corrective measures: Make easier the constitutional requirement for people’s initiative, referendum and recall and make judges, lawmakers, political parties, professional politicians and the laws and the Constitution responsive to changing necessities of our own time instead of fawning deference to American jurisprudence, a flawed “jurisprudential colonial mentality” (to borrow the fighting words of Senator Meriam Santiago).

Neri v. Senate Committee is just another exercise of such “jurisprudential colonial mentality,” in a manner so degrading our Court is even willing to substitute a decision of a US court of appeal for what’s expressly mandated by our own Constitution.