Clash of consti titans

Constitutional law experts are having a field day. It is just as well that laymen are alerted to constitutional concepts which have a profound effect on their lives. For the Constitution is the fundamental law.

It is often born of the desperation and courage of people power, as our history shows, or the Arab Spring.

Judicial review

Article 7 of our Civil Code states that “When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.”

The first sentence is a check on the legislative department and the second on the executive department.

Judicial review is invoked through the petitions for certiorari, prohibition and mandamus. In Francisco Jr. v. Nagmamalasakit na mga Manananggol etc. (2003), the Supreme Court asserted that the Constitution confers upon it the power of judicial review – “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government” and has described this as an “expanded certiorari jurisdiction.” In the impeachment case against Chief Justice Renato Corona, petitions have been filed with his court against the proceedings.

Marbury v. Madison

Students of constitutional law learn that the doctrine emanated from Marbury v. Madison, a decision of US Chief Justice John Marshall. Not many know that the antecedents are maneuverings which a seasoned “tradpol” of today would appreciate, and which are eerily familiar since the time our republic adopted American-style democracy.

When then US President John Adams of the Federalist Party was severely beaten by the Republican Thomas Jefferson in 1800, he moved to preserve the principle of his party (controlled by property owners) for a strong national government as opposed to a populist one. Since the election also resulted in a Republican-dominated Congress, his only recourse was to have a judiciary controlled by the Federalists.

‘Midnight judges’

Before Jefferson could assume the presidency in 1801, the lame duck Federalist Congress enacted a  law which authorized the appointment of 16 new Federal judges with life tenure and created 42 new positions of Justices of the Peace. Adams quickly filled them from Federalists ranks, their appointments being confirmed the following day by the Senate and their commissions issued. This aroused indignation and protest among the anti-Federalists, who called them “midnight judges.”

Through inadvertence, the commissions of 42 appointees were not delivered and they could not sit on the bench. When Jefferson became President, he ordered the withholding of 17 commissions, which he considered nullities for they were “crowded in by Mr. Adams after he knew he was not appointing for himself.” William Marbury and three others were among them, and they brought a suit in the Federalist-leaning Supreme Court for a writ of mandamus to order James Madison, the Secretary of State, to deliver their commissions.

Jefferson was prepared to disregard the mandamus order to be issued by the court and to impeach Marshall for Federal partisanship. Marshall declared that Marbury had a vested right to his commission (thus rebuking Jefferson) but that the law granting the Supreme Court authority to issue writs of mandamus was unconstitutional because it was not among the cases upon which the Constitution conferred original jurisdiction on the court. By this process, he declared that the Supreme Court had the authority to declare laws of Congress invalid when in violation of the United States Constitution.

Technically, the case was decided in Jefferson’s favor, but Marshall had adroitly established the judicial sanction for the American doctrine of judicial review.

But is the decision of the Supreme Court always correct?

The reasoning of Marshall has been repudiated by many constitutional commentators, yet its influence continues (this and the foregoing antecedents on Marbury v. Madison are found in Marke, Vignettes of Legal History, Rothman & Co., 1965, Pages 1-18).

There is also a debate over whether a judge should follow the original intent of the framers of the Constitution or is free to disregard it. Even St. Thomas Aquinas, quoting Aristotle, is cited on the matter of relevance.

3 branches

It is incongruous to say that the three branches of government clash with each other, since they are abstract beings, not persons of flesh and blood. If the members of a branch act along party lines and they are in the majority or in control of the department, then the confusion arises that it is the institution which is involved.

Nevertheless, American constitutional history records that US  President Andrew Jackson was angered by a decision of Marshall (again), and allegedly burst out: “John Marshall has made his decision, now let him enforce it.” US President Abraham Lincoln ignored the decree of Chief Justice Roger Taney in the case of Ex Party Merryman during the Civil War. Jefferson impeached two Federalist judges and started proceedings against Justice Samuel Chase and had Marshall lined up in his sights. Roosevelt attempted a court-packing law.

This is the real meaning of the principle that the three departments “check and balance” one another. When personalities abuse their power and are guilty of fraud, corruption and violence, the members of the other departments have a responsibility to call them into account.

Rule of law

When persons holding the reins of power are guilty of overreaching and tyrannical conduct, they are accused of violating the rule of law.

The late Justice Claudio Teehankee Sr., in a dissenting opinion (Aquino Jr. v. Military Commission No. 2 [1975]), stated that “as defined by Knovitz, ‘the Constitution and the laws enacted by the legislatures and the judgments and orders of the courts constitute the rule of law.’”

Contraposed against the rule of law is the idea of “mob rule” and denial of due process. But a more benign expression is “people power.”

It is said that the three branches of government are heavily populated by lawyers, a profession with a code of ethics. And when they become judges there is a code of judicial ethics.

We may touch on lawyer’s associations, which are established primarily to discipline their members. They may voice their concern on national issues, but should do so with the highest sobriety and untainted by partisanship. Sometimes they stand up against any of the branches of government which cross the line into illegality. Salus populi est supreme lex.

In the not too distant past, magistrates showed that they were not insensitive to criticism. When lawyers became too vocal or rebellious they were “gently” browbeaten with the threat that while their cases may succeed on clear legal points, the judge has much leeway in areas of “judicial discretion.”

Independence

It is a classic expression that the judiciary has “neither the purse nor the sword,” so it is, for practical purposes, the weakest branch.

Thus, the long tenure and judicial review, to ensure its independence and survival.

There were times when the Supreme Court took a brave stand against the other branches, and was roundly applauded by the people.

In 2006, it struck down a maneuver called the people’s initiative which would have installed the parliamentary system and perpetuate then President Gloria Macapagal-Arroyo in power (Lambino v. Comelec).

Judicial power, however, can lead to judicial abuse. The courts can turn the tables on the other departments in the name of the rule of law and strike down their interpretation of what the law should be.

Whether the courts can command the respect of the people – whether they have credibility – will depend on the stature and prestige of individual judges and justices. In 1952, US President Harry Truman seized the steel mills to settle a strike which was affecting the government’s Korean War efforts. The US Supreme Court declared his acts unconstitutional because Congress had not authorized it. Truman accepted the decision.

Just as transparency and freedom of information are demanded of all government institutions, all courts must be perceived as squeaky-clean and free of cover-up and hanky panky.

Many terms have been used to describe how the judiciary can enjoy the people’s support even against the two other branches – through moral authority, high public esteem, independence and autonomy, and legitimate power to decide.

If judges fail to rise to the heights expected of their office, the people might be tempted to intervene – after all Article 2, Section 1 of the 1987 Constitution says that sovereignty resides in the people and all government authority emanates from them.

In the United States there are confirmation hearings in the Senate covering the candidates’ personal life, professional competence and ideological leanings. There is also a great deal of interest in law schools and not too lukewarm media coverage.

Impeachment

This topic is no longer unfamiliar to the Philippine public. For the more curious, the case of Francisco Jr. v. Nagmamalasakit na mga Mananangol etc. (2003) is a veritable juridical tower of Babel. There were 18 petitions concerning the second impeachment complaint against Chief Justice Hilario Davide, a majority opinion, six separate opinions, two concurring and dissenting opinions, a separate concurring and dissenting opinion, and a separate and concurring opinion.

Impeachment is found in Article 11 of the Constitution on “Accountability of Public Officers.” Section 2 limits the respondents to the officials holding the greatest power and responsibility: the President, Vice President, Justices of the Supreme Court, members of constitutional commissions and the Ombudsman. The grounds are specified and are called “high crimes,” to distinguish them from the common ones in the Penal Code and special penal laws. Section 3 provides that the exclusive power to initiate proceedings resides in the House of Representatives while the Senate shall have the sole power to try and decide the case. The judgment is limited only to removal and disqualification to hold office.

One of a kind

Thus, it is sui generis, or one of a kind, to distinguish it from the common run of criminal cases resulting in the penalties of imprisonment and fines. That it is found in the Constitution and is not a common crime reveals its true character – it is for the protection of national interest.

The same article allows the House and the Senate to adopt their own rules of procedure. Being drafted by lawyers, they make references to the rules of criminal procedure and of evidence. Technical matters are mentioned, such as sufficiency of form and substance, existence of probable cause and rules on admissibility of evidence.

A crafty defense lawyer will see at once that these are fertile grounds for raising issues which may lead to the derailment, if not dismissal, of an impeachment complaint. For he can use a contrary ruling to invoke the “expanded certiorari jurisdiction” of the Supreme Court.

Whether the Senate will accede to the interference by the Supreme Court is an interesting question, especially after the senator-judges donned their new robes.

As to the persuasiveness of evidence there is mention of preponderance of evidence, clear and convincing evidence, proof beyond reasonable doubt and substantial evidence.

But when a senator casts his vote for conviction or acquittal, it will only be between him and his conscience to distinguish whether he acted on preponderance or reasonable doubt or whatever. The idea of proof beyond reasonable doubt comes into the picture because of the reference to the Rules of Criminal Procedure, although the procedure in civil and criminal trials are substantially the same. Not that it matters much, for a vote is not subject to a motion for reconsideration and the judgment of the Senate cannot be reviewed by the courts.

What law does the Senate apply when it renders judgment? Many of the grounds are well-defined in the Penal Code and special criminal laws, but culpable violation of the Constitution, other high crimes and betrayal of public trust can cover a multitude of sins.

Political offenses

The constitutionalists use scholarly and grandiose language. US President Alexander Hamilton observed that the offenses “are of a political nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” US Justice Joseph Story described them as “political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character …” Or to “secure the state against gross political misdemeanors …” Or according to a US Congressional Report, “to protect the integrity of American political institutions.”

What the senators are called upon to do is to apply the people’s mandate, which they receive on Election Day. The bluntest statement of this idea was that of the Republican Sen. William Giles of Virginia, as described by John Quincy Adams:

“Impeachment was not a criminal prosecution; it was no prosecution at all.  The Senate sitting for the trial of impeachment was not a court, and ought to discard and reject all process of analogy to a court of justice. A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him. Congress had no power over the person but only over the office. And a removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices for the purpose of giving them to men who will fill them better.” (Vignettes, Ibid., Page 285).

Political, legal process

Hence the confusing and vague expression that impeachment is both a political and a legal process and that the Senate makes a political decision.

The down-to-earth parlance is that the voting in the Senate is just a “numbers game,” or will go “along partisan political lines.”

Nevertheless, it is also said that the high two-thirds voting requirement for conviction is intended to safeguard a respondent from purely partisan votes.

We will mention the term “political question” which sometimes crops up in connection with impeachment. It is said to be one which the Constitution left to the sound discretion of the legislature, over which the courts have no jurisdiction. They are questions of policy, or concerned with the wisdom, not with the legality, of a particular act or measure, to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branches.

Whenever impeachment proceedings are questioned before the Supreme Court on certiorari, the proponents raise the argument that the matter of impeachment is a political question that must be rightfully addressed to a political branch of the government, Congress. But the Supreme Court has maintained that when a right is involved, this is a justiciable matter which falls under its expanded certiorari jurisdiction.

(Cesar T. Tirol, who holds a Doctor of Laws from Universidad de Madrid, is dean emeritus of University of San Agustin College of Law.)