Friday, May 22, 2009


Whenever there is serious disagreement between the executive and legislative branches of our government, or among members of the latter branch, especially on political issues that are laced with legal questions, which by the way seems to be usually the case these days, the third branch - the judiciary, particularly the Supreme Court - is called upon to solve the dispute. In other words the Supreme Court has become a parent, if you will, who settles quarrels among his children.

This has not always been the case. Prior to the 1987 Constitution, the Supreme Court has taken a flip-flopping position in disputes involving the political branches by either accepting or declining jurisdiction whenever in its "supreme wisdom" it considers the issue as political rather than legal, or vice versa. The standards it used were at best murky; some decidedly political cases were taken cognizance of while some that presented clearly legal issues were denied of the court's attention.

Now that the 1987 Constitution has expanded the jurisdiction of the Supreme Court it would appear that the debate on whether political questions may be entertained has been settled. The second paragraph of Section 1, Article VIII of the Constitution now defines judicial power as including the duty "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." This is called the court's expanded certiorari (pronounced as ser-shee-uh-rair-ree, or if you prefer the more sophisticated ser-shee-uh-rair-ahy) jurisdiction.

There is now an express directive for the Supreme Court to subject to judicial review actions of even the other branches of government, such as Congress, whenever such actions - although political in nature - constitute grave abuse of their discretions. Even more revolutionary is the fact that the Supreme Court's certiorari jurisdiction, aside from being a power, is now an express duty which, once invoked by a party to a controversy, the Supreme Court cannot shirk from. I said revolutionary because having copied our republican system of government and constitution from the United States, Section 1, Article VIII constitutes a radical departure from the American norm wherein the US Supreme Court retains wide discretion on whether to exercise its jurisdiction in cases involving the political branches under the political question doctrine.

The framers of our Constitution, however, made it clear during floor deliberations on Section 1, Article VIII that the definition of judicial power contained therein does not do away with the political question doctrine, that is . . . purely political questions that come to the court. This means the Supreme Court will have to distinguish between justiciable political questions (those which the court can rule upon because of the legal issues involved) and non-justiciable political questions or purely political questions. This is now the battleground in constitutional litigations involving the political departments of the government.

As early as now, we are already hearing the invocation of the political question doctrine in the petition filed before the Supreme Court by the senate minority, led by Sen. Aquilino Pimentel, which seeks to block the majority in the Senate from trying the ethics charges against erstwhile senate president Manny Villar. To be sure, the respondents will claim political question by saying that the issue involves matters purely internal to the Senate. Senate president Juan Ponce Enrile may say that the Constitution gave the Senate authority to determine its own rules of proceedings and to punish its members for disorderly behavior. The rules it adopts are, therefore, outside of the court's power of review.

Senators Pimentel and Allan Peter Cayetano, who are both lawyers, are of course aware of the political question doctrine or, as applied to the Philippines, the dichotomy between purely political and justiciable political questions. While concededly the issue on Manny Villar's ethics trial is internal to the Senate and therefore a political matter, they were careful to inject in their petition legal claims such as the violation of Villar's right to due process and equal protection under the law. More important, they allege violation by the majority of the constitutional rule on quorum in the conduct of the Senate's business. Senator Pimentel claims that instead of applying the quorum requirement of 13 to legitimize a senate proceeding when it transferred to the committee of the whole Villar's case, Senator Enrile used the much smaller quorum requirement of the ethics committee where Villar's case was originally pending. Corollarily, Pimentel and company are invoking the Supreme Court's constitutional duty to assume jurisdiction whenever a department of the government is guilty of grave abuse of discretion, as when a law is violated or disregarded in the exercise of its discretion.

Will the Supreme Court take cognizance of this new dispute involving a political body, as it has consistently done so in the past? Without going into the issue of standing, if Pimentel and company frame their issues well by clearly showing violations of the Constitution by the senate majority, there is a strong likelihood that the Supreme Court will step into the controversy. Francisco, Jr. v. House of Representatives - which involves the constitutionality of the second impeachment complaint against former Chief Justice Hilario Davide, Jr. - is instructive of the standards to apply in determining what is a justiciable political question. It held that where there are constitutionally imposed limits on the powers or functions to be exercised by the political bodies, the court has the power, a duty even, to determine whether or not the powers were exercised in accordance with those limits.

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