‘Save the Constitution from the Court…’

“We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. …. We want a Supreme Court which will do justice under the Constitution and not over it.”

These words were uttered not by President Benigno Aquino III in 2011, but by US President Franklin Delano Roosevelt (FDR) in a fireside radio broadcast in 1937. The alarmists amongst us don’t remember much, and that is why their logic is bizarre. The Supreme Court hurriedly issues a TRO that would let Arroyo evade Philippine justice, and they chant “Hallelujah, the rule of law has triumphed!” Congress hurriedly uses its constitutional power to impeach, and they cry “bully” and “dictatorship.” We forget our history.

One. It is not true that this is all “unprecedented.” There had been an earlier showdown under the 1987 Constitution between Malacañang and the Supreme Court where the Court was seen as an obstruction to the Palace’s chosen policies. It was President Fidel Ramos versus the Narvasa Supreme Court.

Ramos wanted to liberalize telecommunications in the country but the old PLDT monopoly stood in the way. The Court reversed itself only after the ponente of the pro-monopoly decision was forced to resign by an exposé charging that it wasn’t he who wrote the verdict. And the proof? A foreign English professor said the writing style wasn’t the justice’s usual! Now you tell me. Will that kind of flimsy evidence thrive had they gone through a proper impeachment? Would today’s critics prefer the stealth and subterfuge of that attack, and the injustice of that forced resignation?

Two. President Aquino certainly isn’t wanting for precedent in his public harangues. Last year, Barack Obama himself denounced the US Supreme Court in the presence of several justices for their ruling in Citizens United v. Federal Election Commission, that “open[ed] the floodgates” for corporate spending in electoral campaigns. Chief Justice John Roberts said he found it all “very troubling,” lamenting the lack of “courtesy and respect.” President Aquino’s in-your-face lambasting might be a bit too forward for our tastes, but would you prefer the facelessness of the phantom enemy that the Narvasa Court had to battle?

Three. Will this lead to a Court subservient to Aquino? Not necessarily so, and P-Noy can take a leaf from FDR on this. That same argument was made as well against FDR’s “court packing” plan when a conservative US Supreme Court blocked New Deal legislation, America’s response to the Great Depression: welfare state benefits, minimum wage, maternity leave, overtime pay, etc. It was juristic heresy at that time. Thus FDR’s plan where, as allowed by their Constitution, he would appoint an additional justice for every old (and old-thinking) judge who would remain in office after the age of 70. (Congress scuttled the plan but the court soon changed its tune.)

“If … it is charged that I wish to place on the bench spineless puppets who would disregard the law … decide specific cases as I wished them to be decided, I make this answer: that no president fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of [judge].

“But if … the charge is made that I would appoint [judges] who understand modern conditions … who will act as justices and not as legislators … then I [and] the vast majority of the American people favor doing just that thing—now. ”

He concludes: “This … is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our system of constitutional government ….”

The face-off we now see re-calibrates our separation of powers and restores the executive’s proper place as the source of leadership. Since 1986, the fall of the dictatorship has fostered a knee-jerk bias against executive power and in favor of judicial checks and balances. But this has led to government by stalemate, the primacy of procedure over results, where due process is misunderstood as endless process.

This is the best time to correct that. Cory didn’t want to; it was too soon after Marcos. Fidel Ramos preferred to do it behind-the-scenes, efficiently but not institutionally. Erap took to rhetoric, called them “hoodlums in robes” but didn’t stay long enough to disrobe them. Gloria Arroyo alone had the gumption to flex executive muscle upfront; alas she possessed Machiavellian virtù but not true virtue. And comes now Noynoy, riding the crest of popularity for his anti-corruption campaign.

The real lesson here is that “We, the People” own this Constitution. The courts do not hold a monopoly over the power to divine its meanings. Holmes recognized that “legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Justice (later Chief Justice) Reynato Puno would say on the impeachment of then Chief Justice Hilario Davide Jr.: “The President and Congress also have an obligation to interpret the Constitution…. courts listen to the voice of the President and Congress but their voice does not silence the judiciary.” (See Oscar Franklin Tan, It is Emphatically the Province and Duty of Congress to Say What Congress Is, 79 Phil. L.J. 39 (2004)).

Presidents have an equal duty to develop our constitutional traditions. Abraham Lincoln defied the US court’s ruling in the infamous Dred Scott case that upheld slavery, and how! He emancipated the slaves and fought a civil war. The incivility between our political and judicial branches is no great shakes by that standard, but I sure hope it would yield as liberating a legacy.

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