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Duterte's federalism downgrades the present Supreme Court. - "The Federal Supreme Court is but a shadow of the present Supreme Court."

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Draft charter downgrades Supreme Court
Creating mini supreme courts has never been advanced as solutions because it is contrary to the idea of One Supreme Court

By Retired SC Associate Justice Vicente V. Mendoza

Published 7:47 PM, August 04, 2018
Updated 7:47 PM, August 04, 2018

Arguably the most renowned court in the world today is the Supreme Court of the United States. Its importance lies in the fact that it stands at the top in a hierarchy of state and federal courts, while its prestige owes to the fact that it has the power to determine the constitutional validity of the acts of the other departments of the government, legislative and executive.

The Constitution of the United States vests “the judicial power of the United States . . . in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.” The Constitution does not speak of “a Supreme Court,” but of “one Supreme Court,” and “inferior courts” to emphasize the intention to make it the highest and the most important court.

The U.S. Supreme Court owes its prestige from the fact that it possesses the power of judicial review, by virtue of which it has the power to pass upon the validity of the acts of the other departments of the government.

Although not expressly granted by the U.S. Constitution, the Supreme Court, by declaring in its 1803 decision in Marbury v. Madison that it is “emphatically the province and the duty” of courts to say what the law is, established their power to declare acts of the other branches contrary to the Constitution to be void.

This declaration had far reaching significance. Although for decades since its organization the U. S. Supreme Court was only “occasionally involved” in important political events in the early days of the American Republic, it soon became a significant branch of the American government. Since then, hardly had a political question arisen which was not sooner or later decided as a judicial question, as the French writer Alexis de Tocqueville observed in his travel to America.

Repudiation of one Supreme Court

We have patterned our Supreme Court after that of the United States.

Although it cannot be quite compared with its American counterpart, our Court has nevertheless captured some of the influence of that Court.

We have adopted the concept of One Supreme Court in our Constitutions from the 1935 document to the present one. On this ground the Supreme Court invalidated a law disqualifying from the consideration of treason cases members of the Court who had served during the war and temporarily replacing them with lower courts judges.

Now this idea of One Supreme Court is compromised in the proposed Constitution by the creation of 3 special courts in addition to a Federal Supreme Court: a Federal Constitutional Court, a Federal Administrative Court, and a Federal Electoral Court.

What was done is to strip the Supreme Court of its jurisdiction over some cases and transfer it to the special courts.

Under the proposed Constitution, “disputes or matter” involving constitutional questions and petitions for the writ of habeas corpus, writ of amparo, writ of habeas data, and writ of kalikasan are cognizable by the Federal Constitutional Court.

Appeals from the decisions of the Federal Commission on Human Rights, Federal Commission on Audit, Federal Ombudsman Commission, and Federal Competition Commission and other administrative and regulatory agencies are placed under the jurisdiction of a Federal Administrative Court. Electoral cases relating to the elections, returns, and qualifications of the President, Vice President, Members of Congress, as well as elective regional, provincial, city, municipal and barangay officials are placed under the jurisdiction of a Federal Electoral Court.

The Federal Supreme Court is but a shadow of the present Supreme Court.
Its jurisdiction is limited to appeals from the decisions and orders of lower courts not cognizable by the special courts, cases involving questions of jurisdiction and errors or questions of law, or the legality of any tax, impost, assessments, or toll or any penalty imposed in relation to it, cases involving conflicts between the Federal Government and the federated regions, those involving ambassadors, other public ministers and consuls, and petitions for certiorari, prohibition and mandamus, and quo warranto.

The purpose for the creation of additional courts is said to be to solve the backlog of cases in the present Court.

This is a problem that has been with the Supreme Court since 1946. Attempts to solve it have been by increasing the membership of the Court from 11 as provided in the 1935 Constitution to fifteen as provided in the 1973 and 1987 Constitutions and/or allowing the Court to sit in divisions.

Mini supreme courts

But creating mini supreme courts, however great the apprehension that a crowded docket may impair its essential function may have been, has never been advanced as solutions because it is contrary to the Idea of One Supreme Court.

Instead of additional supreme courts, attention should be paid to the method of work of the Supreme Court.

Only cases of general importance should be heard and decided by it. For this purpose appeals from the decisions of lower courts to the Supreme Court should be limited to petitions for review on certiorari of questions of law or questions of fact and law, leaving ordinary appeals on questions of fact to such appellate tribunal as may be created by law.

The difference between these modes of appellate review is that jurisdiction under certiorari is discretionary enabling the Court to select the cases it will review, while jurisdiction under ordinary appeal is obligatory. Although review by certiorari is provided in the 1997 Rules of Court, this mode of review can be made more effective not only by limiting review to questions of law and mixed questions of fact and law as at present done in practice, but also by screening them before they are placed in the regular docket of the Court.

Limited jurisdiction

Indeed, it is the power of judicial review which has enabled the Supreme Court to play an important role in our system of government.

It is a power which constitutes a significant intervention into the political process. As Bishop Hoadly said in his Sermon to the King of England on March 31, 1717: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purpose, and not the person who first spoke or wrote them.” In truth, only self-restraint stands between timidity and interventionism.

This power is most effective in the hands of the courts because it is exercised in the course of doing their regular business of deciding ordinary cases. It makes them powerful institution. It is this aspect of the American Court’s function that we have sought to endow our own Supreme Court with. It has somehow made them more than a regular court.

A special court of limited jurisdiction, like the Constitutional Court, to which this role is given, is not likely to wield the same influence in government that the present Supreme Court does, not only because its doctrines are not evolved in the ordinary course of business but also because of the type of cases that are likely come before it. Under Article IX, Section 11, the Federal Constitutional Court is given exclusive and original jurisdiction over “disputes involving the constitutionality of a law” as well as “disputes or matter involving questions of constitutionality.” This means that even ejectment cases, which involve questions of the constitutionality of a law or a constitutional question, can be brought only in the Federal Constitutional.

In addition, most likely the proposed Constitutional Court will be swamped with requests for advisory opinions on pending legislation and executive action.

The proposed Constitution provides that its opinions will not bar private parties from questioning the validity of laws declared valid by the Constitutional Court. Its authority will certainly suffer if it can repudiate its opinions and flip-flop in the decision of actual cases and controversies. The result will be the impoverishment of the judicial process.

On the other hand, the Federal Supreme Court may be relieved of its heavy caseload, but it will become an ordinary court and its status as a coequal and coordinate branch of government will be undermined. It will become a mere shadow of its original self.

Constitutional courts, such as the Verfassungsgerichtshop in Austria, were instituted in Europe because the ordinary courts did not have power “to say what the law is.” As their only function was to apply the law, it became necessary to establish special courts with power to interpret the constitution. Constitutional questions were referred to them and the cases in which the constitutional questions were raised had to await their resolution before the ordinary court could proceed. There is no reason to have a special Constitutional Court with exclusive to decide constitutional cases such as that proposed in the draft constitution.

'Demandable' rights

Three categories of rights are placed under the Bill of Rights in the proposed Constitution: Civil and political rights, social and economic rights, and environmental and economic rights. Its drafters, following some European writers, refer to the three categories as first, second, and third generation rights, respectively.

Article III, Section 1 provides that, The rights under this article are demandable against the State and non-state actors and their enforcement shall be consistent with international standards.

By declaring these rights to be “demandable against the State,” the draft Constitution in effect make them enforceable in the courts, because under Article IX, Section 1 it is “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.”

Political questions are excluded from the constitutional grant of power to the courts because their resolution is committed to the other branches of the government or there are no “judicially manageable or discoverable standards” for resolving them.

There is no question that civil and political rights can be enforced in courts in proper cases. But the judicial enforcement of social and economic rights and environmental and ecological rights are problematical.

For example, can an action be filed in the Federal Constitutional Court to demand from the government “adequate food” based on the right of every person under Section 26(a) to “Adequate food”? Or, can a citizen bring an action against the government to demand that Manila Bay be cleaned up because under Section 28(a) he has a right to a “healthful environment and balanced ecology, clean air, clean water, clean soil, and clean surroundings”?

Indeed, social and economic eights are different from the civil and political rights because they require the positive furnishing of resources which courts obviously cannot do. In contrast, actions for the enforcement of civil and political rights, all cast in the negative as “don’ts, involve the redress of wrongs which courts are eminently suited to hear and decide.

After declaring that rights under Article III, Section 1 to be “demandable against the State and no-state actors,” that provision states that “their enforcement shall be consistent with international standards.” This is vague. Does the phrase “in accordance with international standards” mean standards for resolving issues otherwise political by non-judicial method, such as by simply referring complaints for violations of Environmental and Ecological Rights to appropriate agencies of the executive department for compliance perhaps by the of writ of kalikasan?

The International Covenant on Economic, Social, and Cultural Rights does not provide for the judicial enforcement of these rights, doubtless because those who wrote them were aware that these rights are not justiciable. Instead the Covenant relies for the enforcement of these rights on the good faith of states parties to the treaty.

The attempt to enforce these rights by court action can only cause frustration of expectations because of the declaration in Article III, Section 1 that the rights are “demandable against the State and [even] non-state actors.”

In the present Constitution some of the so-called second and third generation rights are found elsewhere than the Bill of Rights, obviously because the drafters of the 1987 Constitution were aware of the non-justiciable character of these rights. For example the right to a balanced and healthful ecology is found in the Article II (Declaration of Principles and State Policies), in which it is declared to be not a right of the people but a duty of the state to protect and promote.

I think provisions for so-called second and third generation rights can best be located in the Proposed Constitution elsewhere than in the Bill of Rights. –

The author is a retired justice of the Philippines’ Supreme Court and a faculty member of the UP College of Law

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