Requiem for separation of powers
SEARCH FOR TRUTH - Ernesto P. Maceda Jr. (The Philippine Star) - June 2, 2017 - 4:00pm

Yes, Congress chose not to convene in joint session. There are arguments to be made for standing behind the President and presenting a united front in times as grave as these. But so many wish that they would have done the joint session – if only to justify Congress’ continued raison d’etre.

We know the central institutional feature of the Constitution to be separation of powers. This means limited government. It would prevent a single branch from consolidating strength to act tyranically. The best protection was the interest of each branch in jealously defending its prerogatives. That is what the framers naturally assumed.

Conscientious objectors!? In this context, the constitutional duty of Congress in this entire Martial Law and suspension of the writ of habeas corpus episode should have been to insist on the exercise of its prerogative, even if it meant rising above personal partisan choices. It is the duty of all three branches to preserve the Constitution and the expectation was that they would clash and quarrel about what that preservation meant. Without this tension, the balance sought to be calibrated would be illusory and tilt strongly towards Malacanang. Such a shift would irreparably damage an already fragile constitutional equilibrium.

“The doctrine of the separation of powers was adopted …. not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction …., to save the people from autocracy.” Justice Louis D. Brandeis. It is precisely in situations such as these that the subdivision of power into different channels, according to Blackstone, was designed to prevent power rushing down in one single torrent, sweeping away all it encounters in its wake.

Doctrine of appeasement. This week, Congress did not even struggle. It was not even a dilemma. They meekly capitulated and surrendered their duty. You can’t blame the old guard for crying uncle. The reliable Senator Rene and the redoubtable Senate President Nene simply articulated what well meaning freedom fighters believed. These are safeguards of democracy that people fought for, as they did, and many other heroes died for. This decision of Congress stains and discredits their memory. It is also a self inflicted wound on the institution, a stigma that future members are honor bound to redeem.

The confounding part is that, with their individual positions publicly expressed, it would have been a simple matter to pass the necessary House and Senate concurrent resolutions to meet, have the joint session over within one day and even adopt a joint resolution in support of the President’s declaration as there was clearly no clamor to revoke.

Packing the Court. This week, we started to see Judicial and Bar Council notices for the public to comment on the applications/nominations of candidates to the vacancy occasioned by the latest retiring Supreme Court justice, Bienvenido Reyes. Justice Reyes is the fraternity brother of the President who administered his oath of office, once again in a break from tradition. (Chief Justice Ma. Lourdes P.A. Sereno was supposed to be around to swear in three Presidents during her 18 year term. Now, there are only two chances remaining for the CJ.)

By the time the President’s term ends, he shall have had the opportunity to appoint at least 12  c new justices. This number may even increase as his first two appointees, Justices Samuel Martires and Noel Tijam, are both 68 and will retire also within President Duterte’s term.

Justices Martires and Tijam are the President’s schoolmates. Of the 12 vying for the Reyes berth, two of the front runners are also from San Beda Law: Court of Appeals Justices Jose Reyes Jr and Ramon Paul Hernando. There are only 4 constitutional litmus tests to be appointed Justice of the Supreme Court: competence, integrity, probity, and independence. While these four gentlemen are jurists of the first order, their shared San Beda law pedigree has led certain quarters to decry this as a 5th qualification for appointment.

Independence? Judge Clifford O’ Sullivan of the United States Court of Appeals, 5th Circuit believed that when dealing with the Supreme Court, “political trading is not only unwise and unpatriotic, it is immoral.” The late US Chief Justice William Rehnquist, however, asserts that there is “no reason in the world” why a President should not appoint someone sympathetic to his political principles. And we agree. Indeed, as designed by the Constitution, the public will – as expressed through the popularly elected President – does have a say in the composition of the Court.

Of course, it is not so much the question of delicadeza as it is the matter of the appointee’s independence that is worrisome. But independence will come with the territory reassures Chief Rehnquist who observed that the Supreme Court is “an institution far more dominated by centrifugal forces, pushing toward individuality and independence, than by its centripetal forces pulling for hierarchical ordering and institutional unity.” There is the tenure until 70 rule. Also, the guaranteed non-diminution of compensation. These operate to weaken any residual outside loyalties and strengthen identification with your institution’s interest. The institutional pressures also heighten each member’s extraordinary independence from his colleagues. This further bolsters the Court’s security against encroachment from the other branches.

We may very well see a Court dominated by schoolmates and political party mates by the time the President retires. But, for as long as the Constitutional safeguards are respected, that should be fine by all.

Tidbits. Welcome to the world little Edrian!

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