Constitutionalism, Populism and Human Rights in the Philippines
Dressel and Bünte (2014) aptly observed that constitutional politics in Asia is once again taking the spotlight. Allegedly, there is a growing tension between political branches of the government and the judiciary and as a response, institutional safeguards like human rights commission, ombudsman and constitutional commissions are built to insulate the judiciary from politics.
In an age strongman populism, it appears that these structures protecting the constitution are also prey to governmental attacks. Recently, impeachment cases, real or imaginary, hounded the Office of the Ombudsman, the Commission on Elections, the Supreme Court Chief Justice, and even shockingly reducing the budget of the Commission on Human Rights to one (1) peso only. Clearly, the judiciary has been politicized and at the endtail of this is the impact that human rights in the Philippines have to absorb.
The freedom we enjoy today is etched from the blood of our martyrs who fought for human rights. They have died so that we may live and not one man can kill the spirit of human rights that was built upon the souls of the multitude. An attack against one is an attack against all human rights activists, here and around the world.
The threats of possible execution of human rights defenders made by President Rodrigo R. Duterte when he said that that he would kill Human Rights Defenders along with drug personalities if the drug problem worsens in the country is an alarming sign of popular politics in the country. Public statements like this coming from the most influential leader of the country leave some chilling effect and stifles the role human rights defenders play in a constitutional democracy. It is replete with despotism cloaked in executive prerogative.
No less than the Universal Declaration of Human Rights recognized the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in every nation and the world.
Historically, the disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of humanity, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.
These among others, are what human rights defenders stand and fight for.
Human Rights Defenders, according to the UN Declaration on Human Rights Defenders, are people who are working for the promotion and protection of human rights. This broad definition includes both professional and non-professional human rights workers, volunteers, journalists, lawyers any anyone else carrying out, even on occasional basis, a human rights activity.
Human Rights Defenders are important because they serve as watchdogs to the actions of the state to see to it that the state has not abused its use of legitimate power. According to Keith Faulks (2000), Human Rights Defenders are very important because they act as a countervailing force to the powers of the state. They ensure a political balance as they remind the state being the primary duty bearer of the threefold obligations to respect, protect and fulfill the rights of the claim holders.
In this light, there should always be a mutual respect between the state and its critics, because without criticism, the state would not be able to assess whether or not its actions are already encroaching upon the liberty of its citizens. When opinions are silenced and the human rights defenders are gagged, the essence of democracy is destroyed. Our constitution and tradition respect this principle of democracy which even the President should respect having sworn to defend the constitution of the land.
PRRD’s statement is problematic because it is condemning the human rights defenders without logical and concrete evidence. It is misleading how the President hastily connected the increase of drug personalities with the call to respect and protect the rights of all, regardless. With such statement coming from the President, it creates an illusion that killing under his command is legitimate. The ease with which the President can declare an order to kill, especially Human Rights Defenders in this pronouncement is nothing short of sowing terror.
The Human Rights Defenders must be treated by the government as a conscience block of the nation and not as enemies in this war against illegal drugs. Once and for all, we have to understand that Human Rights Defenders do not advocate the use of illegal drugs nor protect the drug users and pushers. Rather HRDs only assert that the government must do the right things the right way in its anti-drugs campaign, that is, founded on the respect for human rights and due process of law.
As the sovereign citizens of this democratic state with a constitution that has a bill of rights, we must strongly urge the administration to commit to the principles of human rights in its governance – to uphold the dignity of every human being, to promote the culture of life and to preserve the fundamental freedoms and liberties we are all entitled to.
With a popular mandate afforded to the President, human rights appear to be antithesis to the administration’s promise of change. The only protection human rights has now is the normative supremacy of the constitution. But the constitution itself has become vulnerable especially with the Supreme Court’s judicialization of politics and eventually the politicization of the judiciary.
Since the re-organization of the judiciary in the post-1986 EDSA revolution, democracy in the Philippines has had its share of triumphs and tribulations enroute to democratic constitutionalism. The Supreme Court had been and is still being plagued with problems organic to how it exercises judicial power and to how it is constituted.
For instance, 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 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 and accuracy. This puts into question the quality of decisions the judiciary is able to promulgate.
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 additional layers of court systems to be installed multiplying the need for lawyers to advance the pursuit of justice.
Another serious concern hounding 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. With this, their duty to protect the constitution is compromised.
However, the constraint to the Supreme Court’s function as guardian of the constitution is principally coming from the judicialization of politics (Tate, 1994: Ciencia Jr., 2016) and in the eventual politicization of the judiciary in the Philippines (Gatmaytan, 2012).
According to Ciencia Jr. (2016), there is judicialization of politics when there is a growing reliance on the courts to decide questions that traditionally fall within the executive and legislative branches of the government opening the institution to the vulnerability of being subjected to public attacks, ridicule and disrespect. This supports Tate’s (1994) formulation of judicialization as an “expansion of the province of the courts at the expense of the administrators, that is, transferring the decision-making powers from the executive-legislative bodies to the courts.”
Whereas, politicization of the judiciary refers to the growing perception that the court, instead of being an impartial and independent body, has turned partisan and therefore is coopted in its decision making processes (Gatmaytan, 2012). In both situation, constitutionalism is in mortal peril. If democracy needs to be protected, the constitution through the judiciary must be insulated from any political or partisan encroachments, at the same time it must avoid permeating into political and partisan matters.
In the Philippines, Tate (1994) proffered several factors that led to the judicialization of politics. These include the “separation of powers, a politics of rights, ineffective majoritarian institutions, and use of the courts by interest groups and the opposition,” among others. But to Ciencia (2016), it is the text itself of the 1987 Constitution that grants the courts an expanded judicial review power that is principally driving the judicialization of politics in the Philippines, which perhaps the framers were not able to foresee. In its expanded powers of judicial review, the courts may now check on the executive and legislative branches of government and declare their acts unconstitutional under the pain of “grave abuse of discretion amounting to lack or excess of jurisdiction.” This pushed the judiciary to confuse its judicial review powers and fall into the trap of reviewing political questions and sometimes weaponized its judicial powers against non-conforming institutions of government.
This is illustrated in the recent impeachment cases involving the Chief Justices, where the Supreme Court often finds itself in a conflict of interest situation. When Chief Justice Hilario Davide was voted by Congress to be impeached, the Supreme Court in turn voted the impeachment unconstitutional through its decision in the Francisco Jr vs. House of Representatives (Supreme Court, 2003) case. In Chief Justice Renato Corona’s impeachment, the question of whether or not a writ of certioriari from the Supreme Court be honored by the Senate whose exercise of discretion has been gravely abused in the course of its proceedings as the “sole judge” in impeachment cases, created a tug-of-war power relation between the legislative and the judicial branches. This is a clear conflict between the Senate and the Supreme Court since the issue cannot be resolved by the Supreme court whose own powers is in question (Aquino, 2017). Most recently, there seemed to be a constitutional crisis when the House of Representatives Committee on Justice hearing the impeachment case against Chief Justice Lourdes Sereno wanted to subpoena some Supreme Court Justices to testify before the committee hearing and convincingly, some justices committed to make themselves available before the committee hearing. While the Supreme Court exercised its judicial supremacy in the Davide case, the Congress took the power back in the Corona case. And in the on-going Sereno impeachment case, the Supreme Court seemed to have surrendered its independence to the politics of congressional majority.
Apart from the impeachment proceedings, several other cases showed how judicialization has eventually grown its roots in Philippine politics. All of these began in the Javellana vs Executive Secretary (Supreme Court, 1973) case where majority of the Supreme Court justices affirmed the validity of the 1973 Constitution despite its highly infirmed ratification process purportedly to appease the whim of Ferdinand Marcos. Since then, the integrity of the Supreme Court to maintain its independence has dissipated and it has become an accomplice in emasculating Philippine democracy. This was reinforced when it decided on the unconstitutionality of the people’s initiative for the transformation of the bicameral congress into a unicameral parliament in 2006 and the Memorandum of Agreement – Ancestral Domain (MOA-AD) creating a Bangsamoro Juridical Entity (BJE) between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front in 2008.
The judicialization of politics consequently creates a phenomenon of judicial hegemony in the Supreme Court through its expanded judicial power where it can dip its fingers in almost all decisions of the executive and legislative branches. If unabated, the Supreme Court can be swallowed by its power to create presidencies, re-direct policies, and even constructively gag oppositions completely forgetting its solemn duty of protecting the supremacy of the constitution.
Meanwhile, traditional view of the courts shows that they are and should be apolitical institutions. In fact, its authority and the legitimacy of its decisions are largely based on its ability to make decisions free from political influences and pressures. When politics creeps in to the judicial structures, its role as an arbiter of conflicts is put into question and its function as guardian of the constitution becomes doubtful. Unfortunately, the politicization of the judiciary has taken its toll on the independence of the judicial branch and on the legitimacy of its decisions.
The judicialization of politics that was observed by Tate in 1994 has evolved into politicization of the judiciary according to Ciencia Jr. (2016). Gatmaytan (2012) theorized that the recent spate of public ridicule on the Supreme Court “reflects a level of politicization that provokes such criticisms.” When this happens, the legitimacy of its decisions is put into question. As a consequence, calls for impeachment come quickly and frequently as faced by the currently sitting Chief Justice Maria Lourdes Sereno.
The public furor over the decision of the Supreme Court to allow the burial of former President Ferdinand Marcos in the “Libingan ng mga Bayani” reflects the public’s seeming refusal to accept the decision on historical and moral grounds. Allegations like the decision being a political accommodation to the President’s expression of gratitude to the Marcoses who supported his presidential bid clearly gives the judiciary a taint of politicking. Yusingco (2015) also feared that the Supreme Court will lose its constitutional fortitude with the recent case allowing Enrile to post bail for his plunder case disregarding the limits of right to bail in Article 3 of the 1987 Constitution. This is the second time Enrile got a preferential decision following his rebellion case in 1990.
Politicization is also evident in the selection of the judges and justices that further casts suspicion on the integrity of the SC’s decision-making powers. Civil Society Organizations warned of the appointments that President Duterte will have to make in the next three years having twelve of the fifteen justices as Duterte appointees before he ends his term. Allegedly, there will be a danger of a Supreme Court replete with Duterte partisans who shall be beholden to the executive department in the entire Duterte administration.
The politicization of the judiciary is further strengthened through the selection of judges and justices. The process does not require confirmation by the Commission on Appointment but only the endorsement of the Judicial and Bar Council. This mechanism has not insulated the judiciary from partisan politics. Instead, it led to the cooptation of justices through the Filipino culture of “debt of gratitude” (Gatmaytan, 2012). This arrangement has been mutually beneficial to the executive and the judicial branches.
Because the Supreme Court judicialized politics, it created a crack for judiciary to be politicized. From the judicialization of politics to politicization of the judiciary, the ultimate victim will always be the constitution. Its normative supremacy is compromised when its guardians fall short of its duties due to politicization and judicialization. Even the Supreme Court emphasized over and over again the supremacy of the constitution. Thus,
“It cannot be overstressed that in a constitutional government such as ours, the rule of law must prevail. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest official of this land, must defer. From this cardinal postulate, it follows that the three branches of government must discharge their respective functions within the limits of authority conferred by the Constitution.” (Supreme Court, 1992)
But this supremacy is immaterial in the absence of judicial independence. Without judicial independence, there will be no rule of law. Without rule of law, the whole democratic institution will fall apart. To ensure protection of constitutionalism, a centralized Constitutional Court must be set up in the federal republic. Since judicialization of politics and the politicization of judiciary are deeply embedded in how the current judicial branch is organized, revising it seems to be the logical means to ensure that the constitution prevails and is beyond reproach of politics.
Cited References:
(photo from oowah.com)
American Bar Association. 2006. Judicial Reform Index of the Philippines. Asia Law Initiative. Washington, DC.
Aquino, Ranhilio Fr. 2017. The Judiciary in Federal Philippines. Conference on Judicial Institution Building and Reforms. New World Manila Bay Hotel, November 21-22, 2017. Federalism Institute, Konrad Adneauer Stiftung, Forum of Federations, Philippine Center for Islam and Democracy.
Ciencia, Alejandro Jr. 2016. From Judicialization to Politicization of the Judiciary: The Philippine Case. The Law Explorer. Retrieved from https://lawexplores.com/from-judicialization-to-politicization-of-the-judiciary-the-philippine-case/
Dressel, Björn and Bünte, Marco. 2014. Constitutional Politics in Southeast Asia: From Contestation to Constitutionalism? Contemporary Southeast Asia, Vol. 36, No. 1, pp. 1-22.
Faulks, Keith. 2000. Political Sociology: A Critical Introduction. New York University Press. New York City.
Gatmaytan, Dante. 2012. Politicisation and Judicial Accountability in the Philippines. Philippine Law Journal, Vol. 87, No. 21. Pp 21-50.
Supreme Court. 1973. Javellana vs. Executive Secretary. G.R. No. L-36142.
Supreme Court. 1992. Bengzon vs. Drilon. GR. No. 103524
Supreme Court. 2003. Francisco vs. House of Representatives. GR. No. 160261.
Tate, Neal. 1994. The Judicialization of Politics in the Philippines and Southeast Asia. International Political Science Review, Vol 15, No. 2.
Yusingco, Michael Henry Ll. 2015. Martial Law and Constitutionalism. Philippine Daily Inquirer. http://opinion.inquirer.net/88871/martial-law-and-constitutionalism#ixzz50YBC2lab
