E·N·Q·U·I·R·Y
DEMAREE J.B. RAVAL
DEMAREE J.B. RAVAL
A constitutional court?
Sunday, 09 14, 2008
Dean Amado Valdez of the UE College of Law could have been deliberately provocative when, advocating the implanting of a constitutional court in our body of judicial institutions, he said: “This is the last chance to redeem the Judiciary.” (Nowadays, the Judiciary has its high — and low — moments, but I would not venture to use the word “redemption.” Its swift resolution of the imbroglio at the Court of Appeals over the Meralco-GSIS case is redemption enough.)
Dean Valdez was speaking at a forum sponsored by the Konrad Adenauer Stiftung and LawAsia on the concept of a constitutional court. Interspersing his reactions to the presentation on constitutional courts by the German scholar Rudolf Dolzer with references to Plato’s Utopia and the obsessive dream of Icarus for man to fly, Dean Valdez beautifully presented the imperative for a constitutional court, if not right now, in the near future.
A constitutional court is a tribunal in the judicial system — separate and apart from a Supreme Court — primarily and exclusively concerned with the interpretation, application, protection and enforcement of a country’s constitution. Constitutionalists dub such a court as the “guarantor” of the supremacy of the Constitution as it applies to a country and its people.
Across jurisdictions and from among not less than 50 countries around the world — most of them in Europe and principally in the Federal Republic of Germany — a constitutional court decides whether the laws and other enactments by the legislature are in conformity with the constitution, and whether the acts adopted by the executive branch of the government are in compliance with the Constitution and the laws.
A constitutional court has the power to annul and suspend laws, regulations and ordinances if they contravene the fundamental law of the land. In some jurisdictions, a constitutional court has the power to decide matters concerning elections and the registration of political parties. It may function as an electoral tribunal — deciding matters relating to challenges on the legality of the election of the president, his vice-president, and down to the members of the parliament. It also adjudicates the constitutionality of treaties or other international agreements, and settles jurisdictional conflicts between courts or between courts and administrative bodies.
The power of a constitutional court extends even to the impeachment or removal of the chief executive of a country. It is given the power to decide whether or not the president has failed to fulfill a constitutional obligation. It may even conclude whether the state of health of the president allows him to continue to hold office; or declare that his conduct is violative of some constitutional norm. For instance, look at the decision of the constitutional court of Thailand last Tuesday, forcing out Prime Minister Samak Sundaravej for hosting a TV cooking show while in office! (What People Power could not achieve in two weeks, the constitutional court of nine members did in one morning.)
Given the above enumeration of what it can possibly do, one can readily appreciate the redemptive value of a constitutional court in our body politic. Such a court will free our regular courts, including the Supreme Court (SC), of the burden of resolving conflicts between the often contentious and self-serving political branches of our government. Consider, for example, how the constitutionality of the establishment of the Bangsamoro Juridical Entity could be resolved with dispatch by a specialized tribunal like the constitutional court; or the matter of executive privilege at issue between the Senate and the Executive; or the issue between the province of Palawan and the national government on the division of revenues from the oil extracted off the shores of Palawan; or the sacrosanct finality of the issue of whether former President Joseph Estrada may run again for president.
The list of cases in our judicial system that have taken far too long to resolve stretches “back to the future,” as former Comelec commissioner Manolo Gorospe, who was present at the forum, says with a rueful grin. What he means is: many cases need not have languished for an eternity had there been a constitutional court in the Philippines.
Put simply and sans the hyperbole, as retired judge Dolores Español commented, it could contribute to the unclogging of court dockets. Justice must not only be done (no matter how exceedingly slow), but it must also be shown (promptly).
To be realistic about it, our entrenched orientation toward the American model granting the SC the sole power of judicial review makes the establishment of a constitutional court a bit thorny - and predictably controversial. Surely, this will be seen as the extinguishment of a power that has for generations been the exclusive domain of our SC. And then, there is the suspicious public: “What? Another Court of Lost Resorts?”
But wait - once amending the 1987 Constitution gets underway, it may be opportune to interject the concept of a constitutional court. The following questions, however, would have to be addressed, before any serious consideration can be given to it: (1) Will it be good for us? (2) How can it be assimilated to our system?
The answer to the first question requires empirical data. LawAsia, as the proponent, would have to convince the constitutional convention or the constituent assembly that this is the solution to the gridlock that is often blamed on a system that is heavily politicized. The second requires — once the first question is answered in the affirmative — simply the willingness to accept a concept that has worked well in many jurisdictions.
After all, as Justice Oliver Wendell Holmes had always said, the life of the law is experience. Our judicial system needs to change, as new circumstances require a new tack. We need not deviate; we simply have to adopt our system to changed circumstances to remedy seemingly unchanging ills.
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