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.