A constitutional court in new charter?

Impeachment in the Philippine context may involve legal mechanisms and procedures but it is not actually a judicial proceeding. According to Fr. Joaquin G. Bernas, SJ, it is a politically charged exercise that is inherently susceptible to partisan subversion.

This description is spot-on, as exemplified by the aborted impeachment of President Joseph Estrada in 2001. But the more alarming development is the number of impeachment complaints since filed. Even more exasperating is the existence of a fraternity of “habitual” complainants.

In stark contrast is the experience of South Korea which has had two presidents face impeachment charges — Roh Moo-hyun in 2004 and Park Geun-hye just last year. But unlike the impeachment proceedings initiated in the Philippines, the impeachment of President Park was viewed by many as a “historic milestone in the development of modern democracy across Asia.”

I believe the key difference lies in the fact that an impeachment charge in South Korea is adjudicated by its Constitutional Court and not by an organically politically partisan body like the Senate.

The Constitutional Court of Korea treats the impeachment process as a constitutional mechanism designed to protect the national charter from infringement by ranking public officials, whereas experience has shown that the settling of political interests prevails in the Senate when sitting as an impeachment court.

This contrasting reality underscores the supremacy of the constitution in South Korea’s legal and political order and affirms the solemn duty of all public officials to abide by its commands on pain of punishment. Our impeachment process itself is proof that this is not the case in the Philippines.

Most, if not all, contemporary constitutions establish the various government offices; prescribe their composition, powers and functions; and moderate the relations between them. And the establishment of a proper constitutional court to enforce the constitution as a normative document that regulates the operation of the government and the behavior of public officials has become part and parcel of constitutional state-building.

Given that charter change is just beyond the bend, Filipinos must reckon with the question of whether establishing a constitutional court in the new charter can lead to the improvement of our judicial system and ultimately to the consolidation of the constitutional democratic order of the country.

The fact is the Supreme Court, as the court of last resort, is overburdened. And worse, cases with economic ramifications have been piling up in its docket. Consequently, the productivity potential of many properties involved in these litigations is severely compromised.

A constitutional court can significantly unburden the Supreme Court of its case load. The new charter can task this court to have exclusive jurisdiction over purely constitutional controversies. It can even be given authority to provide advice on constitutional questions to avoid potential conflicts in the application of the charter.

Similar to the South Korean Constitutional Court, it can be mandated to have exclusive jurisdiction over impeachment cases. It can even function as the electoral tribunal for national candidates (i.e., senators, vice president and president).

In the federal setup, the constitutional court can be the state agency mandated to resolve disputes concerning the allocation of powers between the different levels
of government.

We must bear in mind that if the same ill-designed institutions are still in the new charter, and if the now defective ones are retained, then enduring the difficulties and pains of charter change would be all for nothing.

Hence, subjecting radical reform ideas, such as establishing a constitutional court, to critical examination at this early stage is vital. It cannot be overemphasized that the new constitution must be more reflective of the times and responsive to our needs.

Filipinos must be prepared to present intelligent and coherent proposals concerning their new charter. This is one way to ensure the revision process will usher in genuine change in our political system.

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Michael Henry Ll. Yusingco, a practicing lawyer, is the author of the book “Rethinking the Bangsamoro Perspective.” He conducts research on current issues in state-building, decentralization and constitutionalism.