11:41 PM December 11th, 2011

By: Fr. Joaquin G. Bernas S. J., December 11th, 2011 11:41 PM

Appeal has repeatedly been made to the will of the sovereign people as guide. Popular sovereignty in fact is the bedrock upon which a democratic system rests. Our Constitution begins with the assertion that “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”

The sovereign people assert their sovereignty in two distinct processes. The two processes should not be confused.

The first is through their vote in a plebiscite ratifying or amending the Constitution. Through this process the people express in a permanent manner what the powers of government should be, what the limitations are, how the people who are to exercise the powers of sovereignty are to be chosen and what the extent and limits of their power are. As presently found in the Constitution, powers are divided among three departments. Succinctly, this means that the legislature makes the law, the executive implements the law and the Constitution, and the judiciary determines what the law and Constitution mean, thereby achieving orderly checks and balances.

The second is through the sovereign people’s vote in an election. This vote is not an unlimited grant of power. Nor is it a grant of power to navigate outside of the limits of the will of the sovereign people as expressed in the Constitution. To assume that an overwhelming vote of the people in an election or a high approval rating in a periodic survey is an expression of popular revision of what they have expressed in a constitutional plebiscite is an invitation to disaster.

Government officials have only so much authority as is given to them by law and the Constitution, and not what they might assume to be given to them by popular rallies. A great lawyer once said to a “reform”-minded English monarch, “This country is planted thick with laws from coast to coast. If you cut them down, do you really think that you will be able to withstand the winds that will blow then?” True, the lawyer was beheaded later! But the consequences of his beheading confirmed the correctness of his warning.

In this critical moment of our constitutional history, my hope is that the justices of the Supreme Court, imperfect though they may be, will not capitulate and that others in the judiciary will not tremble in their boots and yield what is constitutionally theirs to President Aquino. If they do, it would be tragic for our nation.

Impeachment. Impeachment is very much in the air. It is a legitimate tool enshrined in the Constitution. But it is a two-edged sword. It can be an instrument of reform but it can also be an instrument of vindictive persecution carried out by blindfolded followers. For this reason the Constitution has surrounded the process with safeguards which limit the number of people subject to impeachment and which makes its success difficult to achieve.

The obvious goal of the current move toward impeachment is to scuttle the membership of the Supreme Court and remove the “obstacles to progress.” The initial target has been revealed, with more expected to follow. But there are 15 justices of the Supreme Court. I am not surprised if the Palace people do not expect impeachment, a very arduous partisan and political exercise, to achieve a pro-Palace Supreme Court. Not in the near future anyway. Hence, another impatient rallying cry is beginning to be heard: Occupy the Supreme Court!

Roosevelt tried to neutralize a Supreme Court whom he found to be a stumbling block by trying to pack it with people of his choice. He failed. In the end, Roosevelt had to wait until the retirement of the justices he disagreed with. It did not happen during his term. And to date divisions in the US Supreme Court continue. Count the continuing number of cases where the vote is 5-4.

I have been teaching constitutional law long enough to realize that there often are two or more possible sides to a constitutional argument. And the outcome of a constitutional debate often depends upon the modality of constitutional interpretation a justice might use. As one political writer has put it, describing the Supreme Court is like discussing the theories of Karl Marx—one has to indulge in half-truths correcting each other and exaggerations of important truths. This is because the Supreme Court is not just a court. It is also a political institution. Because the key provisions of the Constitution are couched in grand ambiguities and because the key provisions concern the larger issues of our life, of our liberties, and of our happiness, the Supreme Court, by the exercise of judicial review, wields tremendous political power.

Moreover, the composition of a Court at any given time in history is not just a product of chance. It is the result of a deliberate creation. One only has to look at the confirmation debates and what precedes them in the choice of US Supreme Court justices to see how personal, political and ideological considerations play a determinative role. It is just too bad that we see nothing as thorough in our process of choosing justices. If we did, the Court would now have a different face.

What is now referred to as the Arroyo Court took nine years in the making through a selection process heavily tilted in favor of an incumbent president. That tilted process remains, but I doubt that President Aquino will have time, within constitutional limits, to create an Aquino Court during his term. And since so much depends on the outcome of constitutional debates, what is required of him, if he wants the constitutional upper hand without resorting to bullying, is to build a strong, not necessarily loud, constitutional litigation team.

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