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Anti-democratic constitutionalism

We need to respond to the fear of “lynch-mob populism,” the fear that impeaching Chief Justice Renato Corona today will weaken the constitutional protection for our rights in the future. We need to confront the underlying theory for this anxiety, especially since, in the words of an American jurist, “the validity of a doctrine [should] not depend on whose ox it gores.”

That fear is anchored on the principle of “judicial supremacy,” the theory that the courts are “the surest expositors” of the Constitution, in contrast to common people who are caricatured as “creatures without reason, ever in thrall to irrational emotions.”

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Its critics call it an “anti-populist constitutionalism” that conveniently forgets that revolutions are fought by the common folk (as ordinary Filipinos did at Edsa), who then adopt constitutions by which they are governed. The anti-populists tend “to dwarf the political capacity of the people, and to deaden [their] sense of moral responsibility.” We have “inflate[d] constitutional law, its grandiose puffing as law imagined to be ‘higher’—because ‘better’—than ordinary law made by ordinary people. … [W]e constitutional lawyers have fed on disdain for the political energy of ordinary people.” The result is a “chronic fetishism of the Constitution”—the “extravagant if not obsessive reverence for the icons, liturgies and orthodoxies of our Constitutionalism to which quasi-supernatural powers, beyond human agency, are commonly attributed.”

In the impeachment of Chief Justice Corona, for instance, it has been asked: How can we accuse him of being a “midnight Chief Justice” when the Supreme Court itself has spoken? Wouldn’t Congress thus arrogate unto itself the power to override the Supreme Court?

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This was ably answered by my former student, Joel Butuyan, in an essay widely circulated in the Web. Calling it the “Let It Be” argument, he says that this account will “completely strip the Impeachment Court of any role in deciding constitutional issues.” How can that be, Joel asks, when the Constitution itself considers it impeachable to commit a “culpable violation of the Constitution”? “This is nothing less than the power to determine the constitutionality of an SC Justice’s action(s),” Joel concludes.

The anti-impeachment rejoinder goes: So we have judicial review over the Supreme Court exercised by a political agency half of whose members are non-lawyers? My answer is: No, this is not judicial review. What the Senate is doing is express its disagreement with judicial doctrine—not to overturn a decided case but to remove a person, by telling the courts that their reading of the Constitution is out of sync with that of the sovereign people. Impeachment is the only democratic safeguard when the Court’s verdicts collide with the people’s sense of justice. Judicial review is power to review a decision. Impeachment is power over the person who makes that decision. It is an extraordinary remedy, for sure, but that is why it is hedged in with heavy-duty institutional safeguards.

This big constitutional theory doesn’t quite settle the real fear of a politicized impeachment, namely, the unfairness of being tried in the court of public opinion. Just because it is political doesn’t necessarily make it unfair. To start with, we start from slightly different premises. Of our “senator-judges,” we cannot exact the “cold neutrality of an impartial judge.” They are political creatures who are called upon to feel the pulse of the public. The impeachable offenses are themselves intrinsically political or open-ended and subjective: “culpable violation of the Constitution [and] other high crimes, or betrayal of public trust.”

To that extent, the senators will have to be attuned to their voters’ sense, for instance, of whether their trust had been betrayed. What does fairness mean in a highly politicized trial before an elected Senate? How do we reconcile politics with due process? Politics lies in the “who,” as in, who decides whether to impeach, i.e., who gives the answer to the questions. Due process lies in who asks the questions and what questions are asked.

The people’s answer must be heard. Impeachment is a democratic check on our highest officials. But what questions they answer—that is governed by the Constitution. The people are not asked: Is it good for us to get rid of the Chief Justice? Rather they are asked: Did the Chief Justice commit impeachable offenses?

This constraint applies to the senators as well. I have often heard the reply: I will decide on the basis of the evidence. Sure, but evidence of what? It must be evidence solely of the facts constituting the offense charged—and even that is subject to each senator’s intuitive appreciation of the evidence.

An author explains: “[Judicial s]upremacy is an ideological tenet whose whole purpose is to persuade ordinary citizens that, whatever they may think about the Justices’ constitutional rulings, it is not their place to gainsay the court. It is a device to deflect and dampen the energy of popular constitutionalism. [H]istory has repeatedly demonstrated how irresistible political pressures will be brought to bear against a Supreme Court that goes ‘too far.’ The object of judicial supremacy is to make this breaking point as distant as possible.” The impeachment trial signals the Supreme Court that, with their TRO on the Department of Justice’s watch-list order, they had gone “too far” and reached precisely that breaking point.

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TAGS: constitutional law, corona impeachment, democracy, featured columns, judicial review, judicial supremacy, opinion
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