THIS may disappoint some of my readers, or lead others to wonder whether I have abandoned constitutional principles.
But in the interest of fairness and objectivity, I feel duty-bound to state that I do not believe the Supreme Court’s decision on the Disbursement Acceleration Program (DAP) is the absolutely final word on the subject, even though I have hailed it as a landmark ruling and a possible “tipping point” in national politics and governance.
After the decision was handed down, I embarked on a search for authoritative materials that will shed light on the issue. I did so out of both curiosity and skepticism, and the distant possibility that the court may revise or reverse its ruling. Philconsa on judicial supremacy
When the president and chairman of the Philippine Constitution Association (Philconsa) — Rep. Martin Romualdez and former presidential legal counsel Justice Manuel Lazaro — declared the other week that there is such a thing as “judicial supremacy,” which should leave in no doubt the finality of the SC ruling, I thought their opinion might render my research moot and academic.
My readings say otherwise, however. Indeed, the claim of supremacy only makes the matter more debatable.
Constitution silent on SC as final arbiter
I began my research with Philippine sources, particularly the 1987 constitution and certain rulings of the SC. The following points were quickly established:
First, The Constitution is silent on SC as final arbiter on judicial supremacy. The powers of the SC are expressly enumerated in Section 5, Article VIII of the charter, and nowhere affirms either.
Second, The Constitution introduced some new provisions (as distinct from the 1935 and 1973 constitutions), notably The provision that judicial power now includes the duty of the Supreme Court not to refuse to decide a case on the ground that the question or issue raised involves a political question.
Third, In his separate and dissenting opinion in the DAP case, Associate Justice Arturo Brion underscores the importance of keeping all three branches of the government in balance. He wrote:
“While we have the duty to pass upon the validity of the DAP, we must, at the same time, do so fully aware of the consequences of our decision. As I have said, the highest stakes are involved for the country…
“If the DAP is unconstitutional, then we should unequivocally so declare as we did in the PDAF case, but we should do this with an eye on consciously protecting our institutions, whether they be executive, legislative or judicial; we cannot aim to destroy or weaken, or impose the superiority that the Constitution did not grant us. Our aim should be to maintain the balance intended by our Constitution, the guiding instrument that must at all times reign supreme.”
“The superiority that the Constitution did not grant us” shows plainly that Justice Brion does not entertain any claim of judicial supremacy for the High Court.
The US and judicial review
The Philconsa position is more widely discussed in American politics and US jurisprudence.
US chief justice John Marshall affirmed the judiciary’s leading role in interpreting laws and determining their constitutionality with his court’s unanimous assertion of judicial review in Marbury v. Madison (1803).
First, the decision declared that “it is emphatically the province and duty of the judicial department to say what the law is.”
Second, it declared that the Supreme Court has the duty of weighing laws against the Constitution, and invalidating those that are inconsistent with it.
In their authoritative book on the US Congress and its members (CQ Press, 2008), professors Roger Davidson, Walter Oleszek and Frances Lee provide an informative discussion of judicial review and the following findings:
1. Although since the US civil war, the Supreme Court has invalidated 159 congressional statutes, in whole or in part, the court does not necessarily have the last word in saying what the law is. Its interpretation of laws may be questioned and even reversed.
One study found that 121 of the court’s interpretive decisions had been overriden in the 1967-1990 period, an average of ten per Congress.
2. The US high court is not the sole judge of what is or is not constitutional. Courts routinely accept customs and practices developed by the other two branches. When courts do strike down an enactment, Congress may turn around and pass laws that meet the court’s objections or achieve the same goal by different means.
Judicial supremacy: A doctrine challenged
Turning now to the doctrine of judicial supremacy, there’s no question that it is widely popular in this country. Most Filipinos look at the idea as reassuring.
The doctrine is of vital importance today, because many burning issues in our public life are hanging upon the question of whether the Supreme Court can be challenged in its recent rulings on the constitutionality of the DAP and PDAF. And whether the tag-team of President Aquino and Congress can legally clip the powers of the SC.
In this light, judicial supremacy sounds like a neat solution. But significantly, there is much disagreement over the doctrine.
Author William J. Watkins, Jr. writes: “JUDICIAL SUPREMACY IS THE gospel of modern American constitutional law. It is the doctrine that the Supreme Court has the last word on most of the country’s important issues from electing a president to campaign finance reform to treatment of the Guantanamo detainees.”
Watkins reports that in recent years there have been few critics of judicial supremacy. When someone of influence has questioned the doctrine, they have been excoriated in the media and academic press. For example, when then-Attorney General Edwin Meese questioned the doctrine in 1986, academe all but called for his political exile. Faced with criticism from left and right, Meese backpedaled.
Some American legal scholars have criticized judicial supremacy as a case of “judicial over-extension.”
Even more critical is Professor Larry D. Kramer, dean of the Stanford Law School, whose 2005 book, “The People Themselves: Popular Constitutionalism and Judicial Review” (Oxford University Press, 2005) is a comprehensive attack on the doctrine of judicial supremacy.
Kramer contends that the standard interpretation of Marbury that John Marshall declared the Court to be the final arbiter of the Constitution is erroneous. At most, the Court may make reference to the Constitution when deciding a case.
Had Marshall truly declared the Supreme Court to be the final arbiter, President Jefferson would likely have had him sent to federal jail.
Jefferson denied that the judiciary was the final arbiter of the Constitution. To give any one “co-equal” branch such a power would make it “despotic.” Of course, a final arbiter is needed if the branches cannot reach an accommodation on certain issues. And for Jefferson this ultimate power resided in the people—the ultimate sovereign in the American system.
A tripartite system: No one supreme
What emerged from my research is the fact that the contentions between the Supreme Court and Congress and the Executive are even more intense in the US than here in the Philippines.
The tension between policymaking by lawmakers versus judge-made decisions is perennial.
The most sensible conclusion I reached is this:
The Judiciary, like congress and the president, is an important forum for resolving the political, social and economic conflicts in Philippine society.
All three branches of government constantly interact to shape and influence the laws our people will live under.
Through this process of interaction, says legal scholar Louis Fisher, “all three institutions are able to expose weaknesses, hold excesses in check, and gradually forge a consensus on constitutional values.”
All this just brings us back to the premise where our political system begins. Ours is a system of three separate powers and branches of government: the legislative, the executive and the judicial.
No branch is supreme over the others. And all must protect and obey the Constitution.