Crisis by design

The central institutional feature of the Constitution is the principle of separation of powers – the division of government authority among the executive, legislative and judicial branches.

Separation of powers was designed to prevent any single branch from accumulating sufficient power to act tyrannically or unlawfully. Each institution is anticipated to be congenitally wary of the others in a strategic tension calculated to preserve the peace. A more colorful and modern label for it would be a mexican standoff.

All public officials are charged with the duty to preserve (or uphold) and defend the Constitution. What that preservation means to President Duterte may not be the same as its meaning to Chief Justice Sereno nor to Senate President Pimentel or Speaker Alvarez who all swore the same oath. But that is exactly the point! US Supreme Court Justice Louis D. Brandeis explains the doctrine’s purpose: “The purpose was not to avoid friction, but, by means of the inevitable friction xxx among three departments, to save the people from autocracy.”

The conflict we are witnessing now between the President and the Chief Justice is typical of the friction generated by the healthy exercise of the checks inherent in each department. This is not problematic for as long as kept within workable levels. Rather than being a cause for worry, it should be a cause for celebration. To students of law and of government, this is the Constitution come to life and it is a delight to watch. Law schools welcome these clashes of the titans as it supply the wide-eyed students with perspective, not to mention drama. For the citizenry, it is actually beneficial competition among the giant branches that serves like a periodic assessment or evaluation of the instrument to weigh its continuing viability. I like the way President Kennedy puts it: “the task is xxx to weave from all these tangled threads a fabric of law and progress.” The end reward is the enhancement of the rule of law and an insurance against any one branch predominating.

In this context, the bounden duty of each branch is to defend its  prerogatives. The constitutional order (Madame Chief Justice Sereno referred to this in her letter to the President) that the doctrine of separation of powers was relied on to uphold would be illusory if she won’t or can’t defend her institution against the other branches.

Should the President begrudge the lady and ask her to stand down? I think not. And certainly not with the threat of martial law which we know cannot be validly imposed in this context. I share the hope that this is mere bluster or another of his “antics” as the Senators would suggest. Instead of flexing muscle, let us flex patience as there is no substitute for restraint in engendering more comity and, accordingly, more productive relations between branches. This constitutional equilibrium is too fragile and prone to shattering when the balance of power tilts too far and leaves one branch predominant. Only thus can we move forward in our plans for our people.

The Chief Justice deserves a reward rather than a rebuke. The President, always the perfect gentleman, was famously right to apologize. The courage she displayed reassures us that the constitutional power to check still has a pulse, at least in the Judicial branch. This is critical specially when we consider that, with supermajorities in both houses, the Legislature surrendered its balancing role without a struggle. This was a self-inflicted extra judicial killing.

“Mr. President, the judiciary shares with you and the Filipino people a common desire to see a country that is rid of drugs in the same manner that you share with the judiciary and the Filipino people a common desire to see a country that is governed by the rule of law.” The President is doing his job. The Supreme Court with its long and proud tradition of ardent and principled defense of its constitutional station, particularly in the face legislative or executive intemperance, should also do its job and not waver from its high constitutional duty. Like its Jurisdiction, the exclusive power of the Supreme Court to discipline judges which is intended to guarantee the independence of the Judiciary is, as well, in the august words of Father Bernas, “not just a power but also a solemn duty.” The renunciation of this power would be a dereliction.

Constitutional crisis? No. This crisis is constitutional.

Epicenters, conclusion. At our July 30 column, my brother Emmanuel “Manny” Maceda wrote of the major differences in the US – Philippines electoral process that may affect how the general elections would play out. The role of the Vice President, the 2 party system and the “winner take all” electoral college. The 4th major difference is the complex segmentation of the US voter population. In a Pinoy election, segmentation does matter to a degree. There are the so called A to E segments based on wealth. Obviously, you have strategies by region or province. Increasingly we have to have plan for the Muslim vote, the devout Catholic vote, the endorsement of the Iglesia vote etc. But we have a largely homogenous ethnic population, perhaps with some candidates only beginning to tap the ethnic Chinese vote. This is different from elections in Malaysia or Singapore where politics around ethnic Malays vs Chinese or Indians are meaningful. In the US, you have to account for the African-American vote and the Hispanic vote in addition to the standard segments. The Asians as a group (or by country specifically) have not mobilized as much as the other minorities. Concerns of Indians vs. Chinese vs Filipinos are different.  But with Trump tapping into some latent racial fears (initially at African-Americans, Hispanics and Muslims) this could become an issue with Asian implications, too. Gender dynamics, the strong LGBT lobby, and even the gun control advocates or opponents are all very meaningful segments who might vote largely on policy around one or two issues. The result is that is very hard to get a candidate with a broad mandate.