8/30/14 THE NEW YORK TIMES’ UNTIMELY EDITORIAL ON CHARTER CHANGE. In an editorial entitled “Political Mischief in the Philippines”, the New York Times criticized Pnoy on the possibility of amending the constitution in order to clip the powers of the judiciary. This, after the Supreme Court had clipped the powers of the executive under the Disbursement Acceleration Program. On its face, the editorial refers to a constitution in general and the fact that the constitution of the Philippines has been passed under the term of pnoy’s mother, then president Cory, Apparently, the point of reference is the editorial writer’s constitution, i.e. the U. S. Constitution. Had the writer pored over the constitution of the Philippines, perhaps he would not have been as critical on a charter change. A single provision in the present constitution is the single best argument for charter change. This is because while the constitution, both the US and the Philippines, provides for three branches of government, which, though supposed to be co-equal and independent of each other, hence, may act in whichever way they choose, are reined in course for the common good by the principles of checks and balances, under the Philippine constitution this solitary provision in fact unbalances the time-honored principle. A comparisons of the US and the Philippines on the judiciary and the power of judicial review easily supports this submission. Article III, Section 1 of the US constitution succinctly provides: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” The foregoing was the precursor for the 1935 Philippine constitution, Article VIII, Section 1 of which, though terser, similarly provided: “The Judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law.” During the martial law years, the 1973 constitution was just as similarly worded: “Section 1. The Judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law. The Batasang Pambansa shall have the power to define, prescribe and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section five thereof.” But, the 1987 Constitution radically departed from the foregoing concepts of judicial power with the following provision in its Article VIII, Section 1. “SECTION 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.” Now judicial power includes the power to set aside any act of any branch of the government on the ground of grave abuse of discretion. Before, the courts may only set aside an act of a co-equal branch if this were contrary to the constitution and the laws. Now, the courts may do so on the ground of grave abuse of discretion, irrespective of whether or not an act has in fact some constitutional or statutory basis. But, abuse or grave abuse of discretion are words susceptible of different interpretations. The spectrum of human acts, perceptions and thinking is so broad that the demarcations between proper discretion, abuse of discretion and grave abuse of discretion cannot, to borrow from Justice Enrique Fernando in People vs. Sola, be narrowed down to filaments. What is good for one may be bad for the other. What is merely an abuse for one may be grave abuse to another. It would all be in the mind. In the conflict of opinions between the executive and the legislative, on the one hand, and the courts on the other hand, as to whether or not an act has been done with grave abuse of discretion so as to nullify it, that of the courts would naturally be upheld under the constitution. The DAP controversy should be the best example in this clash of opinion between the executive and the judiciary, with the former insisting that this was good and the latter ruling that this was bad. The DAP petitions were filed under Rule 65 of the Rules of Court. Rule 65 allows access to courts on the ground of grave abuse of discretion. While the DAP decision cite certain constitutional provisions in support of its decision, yet, there is no certainty that in the future the courts would set aside an act of the executive on the ground of grave abuse of discretion, irrespective of whether or not there is a constitutional or statutory basis for it.. A good example should be in the case of contracts for infrastructures. Infrastructures are within the domain of the executive. No matter how much the bidding committee follows the rules on bidding, a disgruntled bidder can always impute violation and seek court redress on the ground that grave abuse of discretion taints the bidding process. Republic Act No 8975, passed in November 2000 when the constitution has already been in effect prohibits the lower courts from issuing temporary restraining orders or preliminary injunctions in government infrastructure projects The courts may simply ignore this as unconstitutional since the constitutions grants the same exercise of judicial review to both higher and lower courts. While decisions of the lower courts may be appealed to the higher courts, ultimate review by the Supreme Court is not a certainty since this is not a matter of right on the part of the parties and merely discretionary on the part of the Supreme Court, which may find the appeal or petition for review unmeritorious despite its highly meritorious arguments. The present constitution would stifle initiatives on the part of both the executive and the legislative because even if they act and exercise their discretion in accordance with what they feel would be compliant with the constitution, the courts may think otherwise and declare it as with grave abuse of discretion. Compounding the dilemma on the exercise of discretion is the fact that the Supreme Court may not be consulted beforehand whether or not an act to be done would be in accordance with the constitution (while there is a process, a petition for declaratory relief, recourse to this is for limited grounds). This is because judicial power may be exercised only in actual controversies, that is, somebody files a case against another. So, if an act of the executive department is questioned long after its execution, it would only be then that there would be a determination of grave abuse of discretion. In the meantime certain acts would have already been done. Critics claim that the proposals for charter change is merely a ruse to extend the term of pnoy. But, if this apprehension would be a bar to charter change, then no charter change could ever be effected because the incumbent president when this is effected would have the possibility of a term extension. This is not the first time that charter change has been proposed but past proposals have been scuttled because of distrust on the sitting president. Now, even critics concede the good intentions on the part of pnoy. Today should then be the most opportune time to revise the charter. Or, should it rather be done when those who are presidential front runners would have already been the president? The proposals to change the charter is not tampering the constitution. Rather, it is to temper the new and extensive powers of the courts. It is not to clip the judicial authority, as ordained in the constitution that the editorial may have in mind. Rather, it is to clip the outgrowth of judicial power that have invaded the traditional domains of the other branches of government which the framers of the present constitution may not have had in mind.
Posted on: Sat, 30 Aug 2014 05:47:14 +0000
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