Advancing a "Centralized" Constitutional Court in Federal Philippines

“The truth is, the judiciary is as dangerous as the political branches of government. The ideal is a judiciary that is not too weak to prevent tyranny in government but not too strong to be the tyrant itself. In fine, we need a judiciary that cannot be underwhelmed by the political branches of government but one that should not also overwhelm them.”

• Former Chief Justice Reynato S. Puno, 2017

Abstract

The Philippines is an unfinished democracy because the process of nation-building since the post-Marcos era is still underway and the vision of a truly democratic country is yet to be realized. One of the institutions that is at the helm of delivering the promise of EDSA is the Judiciary whose primordial duty is to defend the 1987 Constitution, a constitution that seeks to address the social and historical injustices the country faced in the past especially those that occurred at the height of the martial law period. However, in recent years, the Supreme Court’s ability to protect the constitution has been compromised on account of “judicialization of politics” and conversely “politicization of the judiciary.” The Supreme Court and its Justices have been subjected to ridicule and even disrespect not only from the public but also from the two equally powerful branches of the government – the Executive and the Legislative branches, piercing the constitutional veil of separation of powers and disrupting the check and balance with threats of impeachment from a powerful congressional supermajority. Therefore, in ultimately defending the constitution, a Constitutional Court that is beyond the ire of a rancorous congress and a scheming executive becomes imperative.

In the wake of the Philippine shift to Federalism from a Unitary form of government, this paper proposes the establishment of an independent Constitutional Court as a necessary element in judicial reform to ensure the normative supremacy of the constitution within the juridical realm. This push for a Constitutional Court is informed by some of the basic tenets of Constitutionalism learning from the challenges besetting the current judicial structure of the country. This will also outline the reasons why such a court is needed and will further assert the appropriate composition, selection process and jurisdictional requirements that will best suit the Philippine context, including its political climate. The principal objective of this paper is to advance the proposition that - the Federal Republic of the Philippines will need a Constitutional Court with a “centralized” constitutional review power, composed of experts from various disciplines, selected by a special commission, and entrusted to settle questions involving constitutionality of intergovernmental-branch relations, impeachment proceedings, and other cases infringing human rights. This exhortation will conclude with some points for reflection on ensuring the success of a Constitutional Court in Federal Philippines.

Keywords: Constitutional Court, Constitutionalism, Federalism, Judicialization, Politicization

Constitutionalism and the Constitutional Court

There is no singular conceptual definition of constitutionalism across different literatures. According to Sullivan (2017), constitutionalism “is a political philosophy based on the idea that government authority is derived from the people and should be limited by a constitution that clearly expresses what the government can and can't do.” Walluchow (2012) on the other hand refers to it as “the idea, often associated with the political theories of John Locke that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations.” Sweet (2009) sees it as a “commitment on the part of any given political community to be governed by constitutional rules and principles” and for Rosenfeld (1994), “modern constitutionalism requires imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights.” In whatever way it is defined, constitutionalism contemplates a “limited government,” where a higher order, often called the constitution, limits the coercive instruments of the state under the reins of its leaders and agents. In constitutionalism, the hierarchy of laws is of paramount interest and here, the constitution is treated nonpareil. Considering that in the Philippines, a written constitution was ordained by the sovereign people as the supreme law, for Cortes (undated), constitutionalism simple means “fidelity to the constitution by both the governors and the governed.”

Being the supreme law of the land and the embodiment of the people’s will, the constitution must be treated with utmost respect and acquiescence. A constitution does not simply outline a structure for an efficient and effective government, but also imposes limitations on the powers of the government. Since power corrupts and absolute power corrupts absolutely, a constitution is established to restrict the potential 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” or in some countries a “Constitutional Tribunal” or a “Constitutional Council.” Although packaged in different nomenclatures, the same 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 the constitution within the juridical order.

In varying contexts across different states, constitutional review processes follow two (2) general systems: the 1] centralized system and the 2] diffused system (Harding, 2017). It is centralized when an independent and a separate constitutional body exercises original and exclusive constitutional review powers, where no other court or tribunal can engage in deciding questions of constitutionality. According to Harding (2017) this is practiced in around 85 countries in the world including countries like Austria, Germany, Italy and Spain. Accordingly, this was developed by an Austrian scholar named Hans Kelsen, hence sometimes called the European model or system eventhough it has been adopted and adapted in many other regions in Asia, Africa and America.

Meanwhile, it is diffused when the constitutional review power is carried out by a court with concurrent general jurisdiction over all questions of civil, criminal and public law and not limited only to constitutional questions. There is usually a supreme court at the apex of the structure considered as the highest body which decides constitutional questions with finality like the systems in the USA, Australia, Canada, and the Philippines. Sometimes, this is called the American model or system since the inspiration is the structure of USA court system.

In whichever form the constitutional court is established, it is important to underscore that while it primarily defends the constitution, its role must also be seen in the greater demands and challenges of democracy and constitutionalism since the constitution is the law of power (Maruste, 2007) and this power is understood as politics in contemporary times, be it internal or external. This must also be appreciated in contexts of constitutional democracies and not simply constitutional states where a totalitarian regime may still espouse a constitution, albeit, to support its authoritarian narratives.

In other countries, constitutional courts have been created as a result of upheavals. They have been established to restore and uphold democracies emerging from the dark ages of authoritarianism where human rights and democratic values have been abused. These courts were created to safeguard democratic constitutional stability to avoid the recurrence of the wanton disregard of values founded on equality, liberty and democracy.

In the Philippines, the Supreme Court was created with all the powers as the Filipinos’ defense against another authoritarian regime after the harrowing experience in martial law. It is considered a constitutional court but one that follows the diffused system as it concurrently exercises jurisdiction over general questions of law and constitutional issues. It is entrusted with the jurisdiction not only to uphold the constitution but also the laws enacted by the Philippine Congress to ensure that they fall within the purview of the constitution. This is specifically found in Article 8, Section 5, (2) (a,b), of the 1987 constitution, saying:

Section 5. The Supreme Court shall have the following powers:

1. xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

3. 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.

4. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

5. xxx (emphasis supplied)

Jurisdiction over the above-mentioned cases falls within the ambit of the Supreme Court’s expanded judicial power, to wit:

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. (Philippine Constitution, 1987; Article 8) (emphasis supplied)

Therefore, in the Philippines, a constitutional court exists, albeit, “diffused.” Given the natural flaws in a diffused constitutional review process and compounded by the inherent structural defects in the Supreme Court’s judicial review powers, its duty to uphold the constitution suffers a lot of issues hinging on legitimacy especially that it is “neither infallible nor final” (Gatmaytan, 2012). To remedy this, the judiciary must be re-engineered.

Judicialization of Politics and Politicization of the Judiciary

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 constitutional courts are built to insulate the judiciary from politics.

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 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 further 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 avoid permeating into political and partisan affairs.

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 the Supreme Court Justices to testify before the committee hearing. Convincingly, some justices committed to make themselves available before the committee hearing. Appearing before the committee as witnesses, the judiciary has descended from its pedestal of independence only to be wrecked by the vile politics of congress. 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 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 where 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 enough to create presidencies, re-direct policies, and even constructively gag oppositions completely forgetting its solemn duty of protecting the supremacy of the constitution.

Meanwhile, the 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 into 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 was and will always be the constitution. Its normative supremacy is compromised when its guardians fall short of their 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 Philippines. 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 the censure of politics.

Vicissitudes of a Constitutional Court

Apart from curing the political cleavage that may be caused by judicialization and politicization in the judiciary, there are many other reasons supporting the call to establish a centralized Constitutional Court. If the ultimate goal is to avoid the politicization of justice and judicialization of politics, then a Constitutional Court deserves a chance.

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. Our experience tells us that thirty years after the 1986 Constitution was ratified overwhelmingly through a plebiscite in 1987, its interpretation remains to be one of the most contested arena in Philippine jurisprudence. Former Chief Justice Reynato Puno (2017) emphasized the importance of the Judiciary in Federalism and the need to properly delineate its powers for its critical role in meeting the political, economic, and legal challenges that a new government may confront especially that the current judiciary as envisioned by the 1987 Constitution was designed for a unitary government. The new judicial structure must be designed to keep the balance in the overlaps of power between the federal government and the constituent states. It can even advice on constitutional questions to avoid potential conflicts in the application of the charter.

Constitutional democracies need an independent judicial body acting as a guardian of democratic institutions and the fundamental rights of the people. This can only be carried out effectively if constitutional review powers are not lumped with the other general jurisdiction of courts. But this should not mean that the judiciary becomes too powerful that it is eventually consumed by its own powers. While this author asserts that a Constitutional Court following the centralized review system must be established, the new formulation of judicial power must be carefully defined with high level of craftsmanship to correct the errors resulting from the definition in the 1987 Constitution that led to the judicialization of politics. CJ Puno (2017) argued that the test of grave abuse of discretion is “too subjective, too indefinite and can encompass anything and everything under the sun.” Following Supreme Court decisions, grave abuse of discretion has been defined as an “act so whimsical” although determining what is whimsical is whimsical in itself.

Furthermore, one added value of having an independent Constitutional Court is that it encourages 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 (Harding, 2017) in maintaining the checks and balances within democratic institutions. It can perform its functions in fidelity to the constitution without fear of threats from the ire of a parliamentary majority or from a very scheming president. While it should not be a super-powerful fourth branch of government, it must be granted with such autonomy where it is not beholden to any government institutions, other than the constitution itself. However, this can only thrive in a cooperative federalism design and not in competitive or coercive federalism. On this note, the perambulatory clause of the new constitution in a federal Philippines should emphasize the establishment of an indissoluble union where sovereignty of the people in a particular state is inferior to the sovereignty of all the people of all states comprising the union. This way, a Constitutional Court is guided in its interpretation to keep the organs of the state and the federation intact.

One problem in the judiciary identified thus far is the backlog of cases as reported in the Judicial Reform Index (ABA, 2006). It can compromise the quality of decisions involving constitutional questions. Therefore, with a centralized review process, the Constitutional Court 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. Undeniably, the Supreme Court is overburdened. Looking at the Supreme Court for instance, it discharges duties other than judicial. It administers admission to the bar, disciplines the members of the bench and bar, regulates civil and criminal procedures, sits in electoral tribunals, participates in impeachment cases as presider and many more – all contributing to the clogging of the dockets. Yusingco (2017) further argued that a constitutional court can significantly unburden the Supreme Court of its case load. The new charter can task this court to have exclusive jurisdiction over purely constitutional controversies giving regular courts more time to ensure that the political, economic and legal order are on point.

Finally, the Constitutional Court provides 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. If respect for the constitution is the ultimate test of constitutionalism, it must strive to achieve constitutional stability, not only in refraining from a series of amendments but also in keeping a consistent and prudent interpretation of the charter. This can only be possible through a singular body responsible in etching the final word on how the constitution must be carried out.

Constitutional Court in minutiae

What this paper has advanced so far is the rationale behind the need to put up a Constitutional Court. It has laid down the predicate it seeks to address – judicialization and politicization – and the objective it wants to achieve - protection of the constitution. But often said, the devil is in the details. This portion of the paper will attempt to address three fundamental questions as this advances the creation of a Constitutional Court: a] What will be the composition of the Constitutional Court?; b] How will the members be selected? and c] What powers can the Constitutional Court exercise?

What will be the composition of the Constitutional Court?

There are various models of a centralized Constitutional Court across the globe as inspired by different traditions. The Constitutional Court of South Korea for example is influenced by the German model (Ginsburg, 2009) with nine (9) justices who are all engaged in the practice of law either as judges of high courts or prosecutors in their previous engagements, serving a six-year renewable term who are appointed in sets so they may serve on a staggered basis. The Constitutional Court of the Kingdom of Thailand is also composed of nine (9) all lawyer members. In Cambodia on the other hand, their Constitutional Council is composed of nine (9) members who are also appointed in sets to serve three (3), six (6) and nine (9) years respectively. Qualifications to the Council is not limited to the members of the legal profession for as long as they are Khmer by birth, at least forty-five 45 years old, have fifteen (15) years of professional experience and possesses degrees of higher education in the areas of law, administration, diplomacy or economics (CCC, 2017).

Toward this end, this paper proposes a constitutional court of mix disciplines. It should not be limited only to those in the practice of law but must be expanded to cover those who have expertise in the constitution from the lens of public administration, legal management, political and social sciences, economics, law, conflict management and other essential disciplines to include even retired justices and/or former presidents (Aquino, 2017). It will also be helpful if membership includes those with expertise in Sharia Law and Indigenous Justice Systems considering the rich traditions of Isalmic Laws and Indigenous Systems in the country. This is in recognition of the fact that constitutionalism is not resolved solely by strict legalese but more importantly by the vast historical, cultural, social, economic, and social imports of human sciences.

At this point, allow this paper to shift the term from a Constitutional Court to a Constitutional Council to avoid the illusion that the members are limited only to lawyers. It is further proposed that there will be fifteen (15) members to allow plurality of views and will serve a staggered term of three (3), five (5) and seven (7) years respectively to ensure a good mix of institutional memory and fresh mind every so often.

How will the members be selected?

As regards the selection and appointment process to the Constitutional Council, it must be considered how the court can be insulated by the influence and power of the appointing authority to prevent the politicization of the Council. There is a danger that the constitutional council may be threatened with retaliatory action such as reduction or abolition of its powers or even dismissal. Judicial independence can be compromised and judicial appointments politicized if the selection processes are not well-thought-out.

While it is tempting to suggest that the appointing authority shall come solely from the executive department, this is dangerous as it cultivates power of control by the executive through the appointment system. This may be modified by subjecting the nomination of the executive to the confirmation of the legislative department as in the case of the Czech Republic Constitutional Court, where the fifteen (15) justices of the Constitutional Court are appointed by the President of the Republic with the consent of the Senate of the Parliament (Ustavni Soud, 2015). This mechanism however, can be highly politicized when the political beliefs of the executive largely differs from the color of the majority in the legislative branch.

Another modification is by giving all the three branches of government equal chances at appointing members of the Constitutional Council. Cambodia follows this system where the King appoints three (3) members, the Supreme Council of Magistrature for the other three (3) members and the remaining three (3) shall come from the National Assembly and all are subject to a Preah Reach Kret or by Royal Decree (Taing, 2017). While the idea of giving all branches an equal hand in the selection of members is good, it may result to a divided council where the members, on critical issues, vote sympathetically to the institutions that selected them.

In Germany, the selection is done by the legislature alone. According to article 94 section 1 of their Basic Law, one half of the 16 judges are elected by the Bundesrat, the Federal Council, while the other half of the judges are elected by the Federal Parliament, the Bundestag (Heidbach, 2013). The danger in this method is the possibility of sending members to the Council who are all coming from the majority party in the congress. This is tempered somehow by requiring a higher voting requirement like two-thirds to ensure that the opposition is able to assert itself.

Lastly, in some systems, a special selection body is created to name the members of the Council. In Thailand, a special committee with nine (9) members is formed to endorse names for the appointment of the King. This committee is composed of three (3) judges in the Supreme Court of Justice, two (2) judges from the Supreme Administrative Court, two (2) qualified persons from the field of law, and two (2) qualified persons in the field of political science, public administration or other social sciences. The only issue arising from this mechanism is who gets to select the members of the special selection body without it ending up as a conduit of disgruntled politicians dismissing altogether the independence of the judiciary.

What will work for the Philippines perhaps, is having a hybrid of a special council akin to the present Judicial and Bar Council nominating the names, with the President appointing the members and the Senate confirming such appointment. This commission must be specially selected from different representations and guided by a special set of criteria. They must also have a fixed term which does not depend on the approval of their performance by the appointing body.

What powers can the Constitutional Council exercise?

One very important question to be addressed is the jurisdictional requirements for the Constitutional Council. If not clearly demarcated from what the Supreme Court and other courts may hear, try and decide, the Constitutional Council may eventually fail in its role as guardian of constitutionalism.

In the French model, review of abstract cases is allowed. Abstract review happens when constitutional questions are entertained by the courts even in the absence of an actual case or controversy. In fact, a bill can be submitted to the court for pre-determination of its constitutionality before its enactment. Meanwhile, the US model shows that only when a concrete case exists can a constitutional issue be raised. This is known as the concrete review. It implies that a law should have been passed, enacted, implemented and there is a perceived violation of the constitution on account of its implementation. This model results to nullification of acts that are otherwise valid prior to its declaration by the court as unconstitutional (Sweet and Shapiro, 2002). The German model however is found in between the French and American models, called a posteriori (Puno, 2017). In German laws, the constitutional issue may only be raised when a law has been enacted but not yet enforced.

The current practice of limiting the review powers to concrete cases only has enfeebled the democratic guards of governmental institutions. Rights have been violated, costs incurred, properties lost, and dignity trampled before the courts can provide redress for some irreparable damages. A mix of the three models may perhaps promise a more responsive and pre-emptive review process. The Constitutional Council may declare a bill unconstitutional prior to its enactment when the review is being sought. This way, the probability of having actual controversies is avoided since the law is prevented from its enforcement. A potential constitutional crisis is resolved early on thereby increasing the chances of constitutional stability. But should the acts subject to review be coming from executive performance of duties, the concrete review model can be helpful to provide remedy for the excesses committed.

Implicit to this is the question of who may bring these cases for the review of the Constitutional Council? Cases may be brought to the Constitutional Council in different ways – it can either be by reference or by individual petition (Harding, 2017). It is by reference when cases are initiated by and through official agencies like the Office of the President, Election Commission, Commission on Human Rights, Departments, etc. It may also be referred to by the Congress for abstract review of bills and by lower courts for constitutional issues raised before them. Individual petition may also be initiated by any citizen or person, whether natural or juridical who has a legal standing to raise the issues of constitutionality.

It would be challenging to allow all to raise a constitutional issue for it may overburden the Constitutional Council – exactly that which is being avoided in the current structure of the Supreme Court’s judicial review power. There must be limitations for without it, the Constitutional Council will be saddled with cases that will put too much weight on its docket compromising its role of defending the constitution.

Answering who may raise a constitutional question is predicated on the Constitutional Council’s jurisdiction. Some systems have jurisdiction over issues affecting the constitution itself like constitutionality of the amendment processes and substantive review of the proposed amendments. In other countries, their Constitutional Councils have authority to review legislative acts, in determining the constitutionality of bills or laws or to review executive acts performed by officers in various levels and branches of the government including impeachment cases. Special jurisdiction over election contests in some states are also granted to the Constitutional Council. This includes electoral protests and dissolution of political parties.

There is no Constitutional Court or Council in the world that has jurisdiction on all of the above-stated cases. The possibilities can be infinite and specific contexts must come into play in designing the powers of the Constitutional Council. But, to ensure constitutional stability, the only measure necessary is whether or not the Constitutional Council is overburdened to the extent that constitutionalism is jeopardized.

In the Philippines, most constitutional questions come from legislative and executive acts. In the forthcoming federalization of the Philippines, constitutionality may be raised on account of clarifying the relationship between the federal government and the government of constituent states. This may include the appreciation of the asymmetrical power relation, boundary disputes, fiscal regimes, etc. Toward this, the review as well as cases of impeachment may be referred through the Philippine Parliament. In impeaching impeachable officers, the parliament must endorse the articles of impeachment to the Constitutional Council for trial with two thirds (2/3) vote to curtail the capricious power of a parliamentary majority. For cases infringing collective and individual human rights, the petition must be endorsed through the Commission on Human Rights. Therefore, individual petitions must merit the endorsement of the appropriate bodies aforementioned.

In sum, this paper advances that the Philippine Constitutional Council will only have jurisdiction over three (3) sets of constitutional questions – those that involve a] inter-governmental disputes; b] impeachment of public officers, and c] fundamental human rights.

However, in a centralized system, there is no court of first instance and therefore no appeals are available in the process as constitutional questions fall in the original and exclusive jurisdiction of the Constitutional Council. There is only one chance to make the correct decision which is dangerous since the Constitutional Council does not enjoy infallibility in its interpretation of the constitution. 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. This may also be inspired by the internationally accepted principle of stare decisis, or the rule of precedence.

Conclusion

There is so much promise in having a Constitutional Council especially in the Philippines where resolving issues of constitutionality is essential in preserving the democratic institutions. This exhortation has advanced the proposition to install a centralized Constitutional Council to complement the reforms promised by the national project on federalism. The logic had been very simple. Constitutionalism is essential in democracy. However, defense of the constitution is compromised by the judicialization of politics and the eventual politicization of the judiciary on account of the natural weakness in the current formulation of the judiciary in a unitary government under the 1987 Constitution. Therefore, re-engineering the judicial structure is necessary to protect democratic constitutionalism in the Philippines. This includes the creation of a centralized Constitutional Council.

While the reasons to support such a creation are unequivocally clear, 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 Council in the Philippines 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 Council, and 3] the respect the individuals and institutions give to the decisions made by the Constitutional Council – all of which are beyond structural revisions.

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