Pushing for a constitutional court in federal PH
The Constitution, being the supreme law of the land and the embodiment of the people’s will, must be treated with utmost respect and acquiescence. It does not simply outline a structure for an efficient and effective government, but also deals primarily with limitations on the powers of the government. Since power corrupts and absolute power corrupts absolutely, a constitution is established to restrict the abuse of power by those who perform governmental functions. One of the means to safeguard the sanctity and primacy of the Constitution, as found in other juridical systems across the world, is the establishment of a “Constitutional Court” that is entrusted with jurisdiction over “constitutional review” cases. The constitutional review power is the power to decide when an act or decision by any of the government bodies or agencies is contrary to the constitution and providing remedy when this occurs. Its primary purpose is to defend the normative supremacy of constitutional law within the juridical order.
In varying contexts across different states, constitutional review processes follow two (2) general systems: 1] centralized system and the 2] diffused system (Harding, 2017). It is centralized when an independent and a separate Constitutional Court exercises original and exclusive constitutional review powers where no other court or body can engage in deciding questions of constitutionality. Around 85 countries in the world follow this system like Austria, Germany, Italy and Spain.
Meanwhile, it is diffused when the constitutional review power is carried out by a court with general jurisdiction over all questions of civil, criminal and public law and not limited only to constitutional questions. There is usually a supreme court, the highest body which decides constitutional questions with finality like the systems in USA, Australia, Canada, and the Philippines.
The creation of a constitutional court following the centralized system is now being floated in the current administration’s push for a Federal Republic of the Philippines. The proposal is informed by the recognition of some problem areas that continue to haunt the ability of the judiciary to defend the constitution on one hand and the need to stabilize the relationship between and among the the different branches of government on the other hand.
Concerns in the Philippine Judiciary
In the Philippines, the Supreme Court is considered as the constitutional court but one that follows the diffused system as it concurrently exercises jurisdiction over general questions of law and constitutional issues. Since 1986, the restoration of the democratic institutions in the country has shown some of the challenges that the judiciary had to confront under its current structure.
In 2006, a Judicial Reform Index (JRI) was carried out by the American Bar Association assessing the Philippine judicial system (ABA, 2006). The report showed that the judiciary “suffers from the inordinate backlog of cases, with over 800,000 cases pending at the end of 2005.” This finding has serious implications on the ability of the courts to dispense justice in the most judicious manner, moreso, in cases involving constitutional issues which require urgency in the dispensation of decisions.
The same report showed that one element of inefficiency that affects the functioning of the courts is the shortage in the number of prosecutors and public attorneys under the jurisdiction of the Department of Justice. Although this is already out of the concern of the judiciary, it will have repercussions in the availability of government lawyers knowing that in a federal structure, there will be two layers of court systems to be installed multiplying the need for lawyers to advance the pursuit of justice.
Another serious concern plaguing the judiciary is the public’s perception of significant judicial corruption in the institution and is itself an obstacle to the administration of justice. Allegedly, certain areas of court operations are vulnerable to corruption especially when fees are involved. This is further compounded by some organizational culturesuch as the culture of "gratitude" of judges to the appointing authority or the pervasive reach of influential family and other relationships.
These concerns will have an influence in considering the need to establish a constitutional court in the Philippines. The goal of protecting the constitution will be jeopardized should these concerns continue unabated.
The need for a constitutional court
This part of the paper wishes to advance the support for the creation of a Constitutional Court in the Philippines following the centralized system of review process because of the following reasons. That:
Constitutional Courts are needed in enforcing a new constitution in an evolving democracy. The installation of new structures and the conferment of new powers (granting the federalism project materializes) will create ambiguities that must be answered and settled in the most astute and exigent manner until political stability is achieved.
Constitutional Courts are necessary independent judicial bodies acting as a guardian of democratic institutions and the fundamental rights of the people. This can only be carried our effectively if constitutional review powers are not lumped with the other general questions of law.
Constitutional Courts encourage democratic politics and dialogue between different organs of the state since they provide authoritative interpretation of how relationships between and among the different branches of government should be defined and harmonized. A truly independent Constitutional Court can be a powerful facilitator in maintaining the checks and balances within democratic institutions. It can perform its functions in fidelity to the constitution without fear of the threats from the ire of parliamentary majority or from a very scheming president.
Constitutional Courts can be more circumspect in deciding constitutional questions because of its freedom from being saddled with cases of general questions of fact and law that clog the dockets. The quality of decisions in the constitutional review cases cannot be sacrificed in the name of de-clogging the court dockets.
Constitutional Courts provide the most effective way to achieve finality and uniformity in the interpretation of the constitution unlike having different courts deciding in different ways on the interpretation of the Constitution.
Further questions to ask
Given the Philippine context and political culture, there are warning signs that must be taken into account for a Constitutional Court to be successful in fulfilling its goal of safeguarding the democratic institutions and the constitution itself.
There is a danger that the constitutional court may be threatened with retaliatory action such as reduction or abolition of its powers or even dismissal or might be subject to its independence being compromised via the appointment process. Judicial independence can be compromised and judicial appointments politicized if the selection processes are not well-thought-out. What is the best mix that will constitute the constitutional court? Toward this end, the constitutional court to be created should not be limited only to those in the practice of law. The selection can be expanded to cover those who have expertise in the constitution from the lens of public administration, legal management, political and social sciences, law, conflict management and other essential disciplines even retired justices and/or former presidents. This way, it can ensure that constitutional politicking can be avoided if not eliminated.
In centralized systems there is no court of first instance and therefore no appeals are available in the process. There is only one chance to make the correct decision which is dangerous since the Constitutional Court does not enjoy infallibility in its interpretation of the constitution. Will it be wise if the rectification of erroneous decisions will be done in the constitutional court itself? To address this, the constitutional court must be allowed to overrule itself on its own or via a motion for reconsideration, when in its discernment, a final decision will result to grave injury to the spirit and letter of the constitution.
Given the political climate in the country and the strong peoples movement, we cannot as of yet ascertain how the case load of the constitutional court will turn out. Will the constitutional court be saddled with cases raising constitutional questions just the same - compromising expediency and quality? The justices of the constitutional court must exercise prudence in determining whether or not cases lodged before them fall squarely within their jurisdiction. The number of caseloads is a reflection of the political culture in the country and it can only be dealt with political maturity both on the part of the citizens and of the justices.
In different countries, constitutional courts also exercise different powers and their scope and coverage also vary. We ask, what powers do we give our constitutional courts? Can it have control over the constitution itself, over the legislature, the executive or over the elections? I would say, while it does not exist elsewhere in the world, our constitutional court must have jurisdiction over issues affecting the constitution-making processes, on the laws passed by the legislature, the orders and actions of the executive and even the decisions of the courts. But regardless, the constitutional court must be allowed to provide a remedy where a law or action violates basic human rights. BY remedy, it must also possess the power to impose corrective measures in order for an act or law be in tune with the constitution.
On the selection and appointment process to fill in the constitutional courts, we must consider how the court can be insulated by the influence and power of the appointing authority. The selection can be highly problematic and controversial if the right formula is not employed. How should constitutional court justices be selected? Shall it be done exclusively by the legislature or should it be with the imprimatur of the executive? Should there be a special commission or should there be participation by the judiciary? To my mind, a commission specially selected coming from different representations and guided by special criteria in order for the commission not ending up as a conduit of disgruntled politicians to dismiss the independence of the court. They must all have a fixed term which does not depend on the approval of their performance by the appointing commission.
What kinds of cases should be brought and who can bring these before the constitutional court? Should it only be concrete cases or should it include abstract cases? Can cases be filed by individuals or should it only be those that are referred by lower courts, special bodies or by the legislative branch? I submit that any individual, natural or juridical person, as well as those referred to by lower courts, legislature and special constitutional bodies may file a petition before the constitutional court, either based on a concrete case or an abstract case. This way, a constitutional crisis may be avoided by deciding on abstract cases or may be halted in cases of concrete cases.
Conclusion
There is so much promise in having a constitutional court especially in the Philippines where resolving issues of constitutionality is essential in preserving the democratic institutions. While the reasons to support such a creation, quite a number of considerations should be further assessed in order to meet the demands of local politics in the country. But in whatever form it may be presented, the success of the constitutional court largely depends on 1] how the citizens see the value of the constitution in nation building, 2] the soundness of and wisdom in the decisions of the constitutional court, and 3] on the respect the individuals and institutions give to the rationale of the decisions made by the constitutional court.
Cited Reference:
American Bar Association. 2006. Judicial Reform Index of the Philippines. Asia Law Initiative. Washington, DC.
Harding, Andrew. April 2017. Fundamentals of Constitutional Courts. Constitution Brief. International Institute for Democracy and Electoral Assistance. www.idea.net
