Why no supremacy clause in our Constitution?

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When Chief Justice Lourdes Sereno last week told President Benigno Aquino 3rd, that “The Constitution is supreme,” everyone, this writer included, wholeheartedly agreed.

But did you know that nowhere in the 21,000-word charter will you find a clause that proclaims the Constitution as the supreme law of the land? Or even just “the law of the land.” Look for the clause in the text and you will look in vain.

In contrast, the American Constitution contains an explicit supremacy clause, article VI, clause 2, which reads,

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”


This command speaks volumes about the US charter. When it makes the claim of supremacy, you know it is supreme in the United States of America.

Since our charter neglected to provide a similar supremacy clause for itself, it’s not surprising that it failed to provide a clause proclaiming the Supreme Court as the final arbiter of law and the Constitution in our political system.

It appears that the 48 commissioners whom President Cory Aquino tasked to write the Constitution forgot this provision that in the constitutions of other states is considered fundamental.

Power of judicial review in PH charter
But then, to the lasting credit of our charter framers, they did something more than the drafters of the US Constitution.

They wrote into our fundamental law the power of judicial review by the Judiciary.

As several readers, some writing from across the seas, have ably pointed out to me, certain provisions in Article VIII of our charter spell out the power of judicial review and imply judicial supremacy. These are:

“Article VIII, Sec.1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

“Judicial power includes 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….”

“Article VIII, sec.5. The Supreme Court shall have the following powers….

“(2) review, revise, reverse, or affirm on appeal or certiorari. As the law or the rules of court may provide, final judgments and orders of lower courts, in:

“(a) all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.”

In contrast, the US constitution stopped short of recognizing judicial review.
 
Learning from my readers
I must admit here that the many letters I received in response to my column (“The disputed doctrine of judicial supremacy,” Times, August 28), have helped clarify the key points where my analysis was wanting, and my error in assigning too much importance to the continuing US debate on the doctrine of judicial supremacy.

All the comments received were helpful and instructive; alas I can only cite and quote a few here, and will have to content myself with just thanking everyone for writing.

The high degree of public feeling and understanding of the issues of judicial independence and judicial supremacy is remarkable.

To quote some of the letters:

1. Reader Jun Adan sent me the following comment, which is incisive and persuasive.

“ ‘Judicial Supremacy’ only means that the judicial branch of the government, of which the Supreme Court is the highest, has the ultimate power to interpret the laws and Constitution of the land, as emanating from the ‘Judicial Review’ power granted to it by the Constitution, which the two other branches must obey. It means the Judiciary has the exclusive jurisdiction, to the exclusion of the two other branches, to decide on what the law or the Constitution means which form part of the law of the land and must prevail over the two other branches.

“In relation to the power of the Legislative to enact and make laws, including appropriation acts, such power must conform to the Constitution.

On the other hand, in relation to the power of the Executive to enforce and implement the laws and the Constitution, such executive acts must conform to laws and the Constitution.

“The three branches are ‘co-equal’ in terms of each’s power to exercise it within its exclusive jurisdiction and no one reigns supreme over the other. All three branches must respect and obey the Constitution, as the supreme law of the land, the soul and spirit of which fully resides in the people.

“Applying the current Supreme Court (SC) rulings on the PDAF and DAP, the SC is not asserting its supremacy but has merely exerted its Constitutional-given power of judicial review by way of interpreting the law and the Constitution as it relates to the power of the purse of Congress and the Executive (Order) on implementation of the budget GAA.

“In the proper exercise of its power, the SC found PDAF and DAP unconstitutional for reasons therein explained. As such, the Legislative and Executive must obey and respect such SC decisions and must stop actions therein forbidden. It is not an exertion of Judicial Supremacy but a proper exercise of the Judicial Review power mandated by the Constitution.”

2. Reader Raymart Anthony Hernaez helped to clarify why I got caught between Philippine and US jurisprudence. He wrote:

“We have based our Constitution and early jurisprudence on American roots but I believe that we have already departed from the US, at least jurisprudentially.

“The basis of judicial review in the US Judiciary, especially that of their Supreme Court, is solely established by a legal precedent while ours was established by none other than the supreme law of our land. The power of judicial review is explicitly mentioned and even expanded in our Constitution. While the US Judiciary cannot touch purely political questions, our courts can and should as it is their constitutional duty….”

Supremacists vs. departmentalists
Michael Dorff of Cornell University, in an interesting essay on the US debate over judicial supremacy, says that debaters/combatants tend to be either supremacists or departmentalists.

Supremacists believe that the Supreme Court’s interpretation of the Constitution prevails over contrary interpretations by Congress, the President, and just about everyone else, unless and until the Court overrules its precedent or the People amend the Constitution.

Through much of US history, many have differed with this position. And they include such giants as Thomas Jefferson and Abraham Lincoln.

According to Professor Dorff, Jefferson adhered to a view that Stanford Law School Dean Larry Kramer has called “departmentalism,” under which each branch (or department) of government has the power and duty to construe the Constitution for itself.

The danger of this, says Dorff, is that departmentalism can undermine judicial independence.

He cites a famous case where Congress disagreed with a Supreme Court ruling invalidating a law, as Congress did in the 1989 ruling in Texas v. Johnson that the First Amendment’s protection for freedom of speech includes the right to burn an American flag. Congress responded by passing a new law banning flag burning, acting on its different interpretation of the First Amendment.

The Court accepted the invitation to reconsider but then reaffirmed the Johnson ruling. Congress then took no for an answer and stopped enacting statutes that it knew would be struck down. Eventually, the issue died because Congress was not willing to insist on an all-out confrontation with the Supreme Court.

We could be headed in this direction, if Congress presses on with Aquino’s demand for a redefinition of savings and the legalization of DAP.

In all likelihood, the SC will reaffirm its earlier ruling on the DAP.

Our childish president could insist on revising the Constitution so he can win the argument. Drilon and Belmonte, for their own selfish reasons, may indulge him.

And public funds will be commandeered and impounded to raise the wherewithal to secure congressional support. Legislators will join the battle as mercenaries fighting on Aquino’s side.

I think I already know on which side the public will stand in this fight. Most Filipinos are supremacists when it comes to judicial supremacy. They believe in their Supreme Court.

Aquino is fighting a losing battle here because he is on the clock. He will be out of office by June 30, 2016.

In contrast, SC Justices will be around for much, much longer, until they are ready to retire.

Executive supremacy is a fight Aquino will have to fight alone. He cannot win this one.

yenmakabenta@yahoo.com

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14 Comments

  1. The Supremacy of the Constitution has already established under R.A. 8371 ratified in 1997 signed Ex.Pres. Ramos. parallel to Art. XVIII Sec. 25: Terminates the U.S.M.G. Ph. and USA under the treaty, 1898; The IPRA 8371 is a primary government handled under an agency under the O.P. until promulgated;Self-Empowered, thru Self-Gov. Sec. 13 and Judicial 15-Tribunal Judicial already established and Police Power inherent in Art. 2 Sec. 2 of the 1987 -1935 Constitution. Thus, the Constitution is the Preamble, and Article 1 Sec.1 with the Cons. Com. failed to consider which is the Supreme of all. The Land rights is the Supreme over the Admin. without it the is no Government. In which case you must contact the Sovereignty Declared under the Constitution Kingdom Filipina Hacienda for national unity of Occupancy for the Filipino People, That all P.D., E.O. and other prescription found unconstitutional the framer goes to the latter, and make a new ratification under the supreme gov. under FPIC of IPRA 8371; with the present Pres. failed to Promulgate under this constitution as violation on his part in the omission of the supreme Act of admin. as it say FELONY, Corrupted system.
    However, the constitution commission, executive, legislative and supreme court should however, focus the Ratification of the Peace Treaty Agreement in 1898 as that Fundamental guide especially Ang Saligang Batas 1935-Article 1 Sec. 1 which can not be appealed, not be part of any proceeding for this is a private land rights of ownership.

  2. Ramon A.P. Paterno on

    One compelling reason why there is no “supremacy clause” in the Philippine Constitution is that such clause speaks about the supremacy of US federal law over state law (see actual provisions of such clause), and applies where a federal system of government exists (viz, the US). The Philippines is not a federal one….. I don’t believe the framers of our Constitution overlooked this clause. They just considered the same to be not applicable, and rightly so! Cheers -:)

  3. Judiciary interprets the Law; Legislative writes the Law; and, the Executive implements the Law.

    What gives the Supreme Court ultimate power is that they can interpret a Law not only on “how the Congress intended it to be written” but if such has been written in accordance with the Constitution.

    While the President and the Congress can “work together and passed whatever new laws or repeal existing laws”, Supreme Court holds the exclusive and final interpretation of any law by virtue of its “constitutionality”.

    Pen is, indeed, mightier than the sword.

  4. Daniel B. Laurente on

    It could be that the framers of this latest Philippines Constitution intentionaly deleted this word Supremacy because it is well understood that mere mention of Philiippines Constitution already suggest its Supremacy among other laws of the land.

  5. Our constitution actually provides the matter of supremacy. Note in the beginning our preamble states with clarity: “We the Sovereign Filipino people ( Our president calls this his BOSSES), x x x” is the basic foundation of Democracy. And when the people the real ones (Bosses) want to change nothing written can be unchanged. Besides,the rules and principles of case law have never been treated as FINAL TRUTH, but simply working hypothesis, continually being tested and retested in the great laboratories of government, and in that testing and retesting, there is a continuous rejection of the DROSS and continuous retention of what is PURE, GOOD, and FINE.
    The people is definitely are supreme. And that is found in our CONSTITUTION!!!

  6. This article is a nice one. It enriches the knowledge of the readers. It helps us understand more of what the Philippine Constitution is. Apart from the lambasting of one department to the other department and all the mud-slinging that is happening now which is the content of almost all the newspapers and every report that we hear and read. Kudos to the writer.

  7. you said it:

    “It appears that the 48 commissioners whom President Cory Aquino tasked to write the Constitution forgot this provision that in the constitutions of other states is considered fundamental.”

    i think that the commissioners had too much on their minds–the most preeminent of which is that martial law should never happen again.

    also, this underscores the fact that a constitutional convention is better than a mere constitutional commission. i daresay that if there were such a convention, someone would have remembered the concept of judicial supremacy.

    Reply: The Commissioners were in mind of judicial supremacy. But they decided that having it would exalt the Judiciary as being above the two other branches, therefre violating the princi[le of co-equality. They decided that giving the SC he power of judicial review would only be giving it a function and a job to do, which could only be interpreted as supremacy but is not written as a principle. Anyway, The Executive can override the SC by certifying a law to the Legislative branch, which the Legislative can pass, to override the SCs decision. But as in the US, a wise Congress usually defers to the High Court.

  8. Manny F. Reyes on

    True. The US constitution does not give the SCOTUS the power of Judicial Review. But, the landmark case of Marbury v Madison in 1803 provided the rationale for judicial review. Since the power of Judicial Review is not expressly granted to the Supreme Court by the constitution, this power, per the tenth amendment, is “reserved to the States respectively, or to the people.”

    •Justices are appointed, not elected and may only be removed for bad behavior (which has happened in the distant past but these days, appointment to the Supreme Court is like a lifetime appointment). If the court upholds unconstitutional laws, there is no recourse available. We the People cannot simply vote them out to correct the situation. Thomas Jefferson wrote, in 1823:

    “At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.”

    It is the Constitution, not the Supreme Court, which is the Supreme Law of the Land. Even the Supreme Court should be accountable

    •Judicial review turns the Constitution on its head. The Judiciary was created as the weakest branch, controlled by both the Legislative and Executive branches. Judicial review makes the Judiciary master of both the Legislature and Executive.

  9. Edgar G. Festin on

    Again, a very good column that gives us more information about the issue. It also reveals Mr. Yen’s humility, which is a quality very rare among columnists and public intellectuals. More power, sir.

  10. Each of the 3 departments of government, is supreme in its own sphere. The legislative is supreme in its power to enact laws, the judiciary is supreme in its power of interpreting laws and the executive is supreme in its power to implement them. What seems to be the problem with that simple statement of the relationship between the 3 major departments of the government?

  11. There may be no explicit provision of constitutional supremacy in the present Constitution but even law students know one of the most fundamental doctrine in political law, the doctrine of constitutional supremacy. In G.R. No. 166471, TAWANG MULTI-PURPOSE COOPERATIVE vs.LA TRINIDAD WATER DISTRICT, the Supreme Court emphasized that “Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.”

    It is a well-settled doctrine that every treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation must be religiously based on the Constitution because it will be invalid if otherwise.

    Blacks Law Dictionary defines constitution as “The fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil
    rights and civil liberties.” Without the inherent capacity of supremacy, it will be a complete contradiction as it will deviate totally from its fundamental nature. Merriam-Webster’s Dictionary defines fundamental as “1. forming or relating to the most important part of something or 2. of or relating to the basic structure or function of something.”

    Without the assumed supremacy nature of the Constitution, how could it be fundamental?

  12. The President wanted to revisit the CONSTITUTION TO PROTECT HIMSELF once he is out Malacanang. NO WAY.

    No one is above the law.

    The Supreme Court is Supreme to Interpret the CONSTITUTION.
    And its decision is final to be respected by everybody, including the
    President, BS Aquino.

    Any one in Congress (Congressman/Senator) who will run for re-election supporting
    President BS Aquino on this scenario should not be elected and/or re-elected.

    ENOUGH IS ENOUGH – TAMA NA.

  13. It is hard to persuade a President who is, shall we say, ignorant of the law. His “childish” behavior bespeaks of his sloppiness in governance. I fully agree 100% with Yen that the Cory Constitution does not provide judicial supremacy unlike the US Constitution where judicial supremacy is clearly spelled out. But our consolation is that, the framers of Cory’s Constitution did not neglect to provide the power of the SC for judicial review which is absent in the US Constitution.
    Sad to say, there are too many attack dogs in the Aquino administration. It is unfortunate that anyone who disagrees with PNoy will surely be politically
    electrocuted and eventually incarcerated under trumped charges. Oh, my goodness what a B%%%^^^^@@@@$$$$&^&&****S kind of government is this?