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The least dangerous branch

Should President Aquino’s recent tirades against the Supreme Court have given the people serious cause for concern? I guess the easy answer to this question is the result of the more recent public opinion survey which showed the President’s popularity plunging to its lowest. But the more technical answer to the question is that our constitutional structure can absorb explosions like that of the President’s. Even under the most serious assault on the system, namely the Marcos martial law declaration, the bare bones of the constitutional structure survived and the flag of democracy, though tattered, continued to flutter in the air. What allowed President Marcos to succeed as far as he did was the fact that he managed to take control of the military. When he lost that control he lost everything. President Aquino has not made any allusion to the military.

In fact, there was nothing like the Marcos explosion in the recent outburst of the current President. The Supreme Court caught his hand in the cookie jar and told him to stop. Arguing that the cookies were not for him but for his “bosses,” the President launched strong words  against the Supreme Court, but finally cooled down and did the democratic thing to do: He filed a motion for reconsideration in the hope that the Supreme Court would finally see the light, that is, his light. That is where things are at the moment.

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In the title to this piece I referred to the Supreme Court as the least dangerous branch of the government. It neither has the arms like what the President has, nor the money under the control of Congress. It only has the Constitution for its shield and armory.

There has been no hint at all that there might be a military threat against the members of the Court. President Aquino himself has not really threatened the Court with anything; he has only strongly urged the Court to see things his way so they can work together in the service of the “bosses.” And the President has not added, “Or else!”

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Rightly, the Court’s reply has only been dead silence. Meanwhile we wait for the resolution of the motion for reconsideration. When it comes, will it be something that can fan to flame whatever embers might still be burning? My sense is that things are settling down.

But what of Congress, the other more dangerous branch? It, too, or some of its elements, claim to be supreme. But its supremacy is only over the public purse. “No money shall be taken out of the Treasury except in virtue of an appropriation made by law.” In fact, this is the root of the current controversy. What the DAP (Disbursement Acceleration Program) decision in essence said was that money had been moved not according to the disposition of the “Supreme Congress.”

Some congressional voices, in defense of its own law which has been declared unconstitutional, are being heard to threaten punishing the Court where it can hurt most, in the money allocated for the Court. Should this be a cause for concern? I do not believe so. There are enough level-headed members of Congress who will refuse to maim the Supreme Court. In fact, the Constitution itself has a monetary protection for the Court that can assure it of enough money at least for essential operation year after year. Article VIII, Section 3 says: “The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.” And the beautiful thing about this is that it is the Supreme Court that will decide what else “fiscal autonomy” means beyond the assurance of continued annual support.

Incidentally, does it matter that a good number of the membership of the Court, including Chief Justice Maria Lourdes Sereno, are appointees of the current President? (He also should appoint another one soon.) I do not believe this should matter. In the DAP case, the justices voted unanimously against the side of the President. Once appointed, the justices are secure in their position and they should have no reason for currying favor with the powers that be. They also have their honor and reputation to protect.

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