Opinion: The SC Decision on VP Sara Duterte is a Cause for Alarm

The Supreme Court (SC) exhibited both judicial supremacy and judicial arrogance in its recent decision, Duterte vs. House of Representatives. The former represents its constitutional duty, whereas the latter is arguably a breach of the same. The people see the SC as the court of last resort for justice-seeking citizens, but it cannot appoint itself as the lone and final arbiter of anything and everything.

As per the very old case of Angara vs. Electoral Commission, judicial supremacy is a normative consequence of the separation of powers principle. Our constitution defines the powers of government and allocates demarcated authority to the three branches, namely, the executive (President), legislative (Congress), and the judiciary (SC).

To the SC is assigned the power of judicial review. Basically, this means having the final say as to what the constitution means. But the SC, in this decision, points out what judicial supremacy truly entails:

“And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.”

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Two caveats must be highlighted here. First, the SC is a court of law. Hence, it can only render its determination of what the constitution means when a constitutional question is brought before it. In other words, it cannot offer an interpretation of the constitution unilaterally. It can only exercise its constitutional adjudication power to resolve justiciable controversies tabled in its docket.

Second, while the SC has the final say on constitutional meanings, it does not have the only say. In fact, the SC exhorted in City of Makati vs City of Taguig:

“This Court, while being the final arbiter of actual cases and controversies, does not possess the exclusive competence to read and interpret the organic law. Indubitably, We share this power and duty with the other branches of government and the people themselves.”

Clearly, all Filipinos bear the responsibility to read and interpret the constitution. Hence, a blind deference to SC decisions can never be the norm. They must be obeyed because they are part of the laws of the land as prescribed by Article 8 of the Civil Code. But this does not mean they cannot be dissected and discussed by the people. Concomitantly, our constitutional rights empower us to publicly and collectively express support for or grievances against SC decisions.

Ironically, it is actually the 1987 Constitution which spurred the evolution of judicial supremacy to judicial arrogance because Article VIII, Section 1 expanded the power of the SC, to wit:

“Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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.”

The underlined phrase motivated the SC to push the boundaries set by the separation of powers principle, albeit under the belief that this was the constitutional directive. This red line that fenced the judiciary against the political departments of the state is enunciated in the “political question doctrine”. According to the SC in Syjuco vs. Abaya:

“As a general assertion, the political question doctrine prohibits the courts from interfering with the workings of a co-equal branch of government. It is predicated on the principle of separation of powers, such that this Court cannot substitute its judgment and decide a matter which by its nature or by law, is exclusively lodged on the concerned executive or legislative official.”

Pertinently, this limitation is also underpinned by philosophical and practical considerations. It is worth noting that the SC justices are not elected by the people, whereas the President and members of Congress carry with them an electoral mandate. Meaning, the latter are empowered by the people to act on their behalf, particularly on public matters that require government intervention. Although it is not always the case, it can be reasonably assumed that the people elected by voters possess the wherewithal to meet these expectations.

But the same cannot be said of the SC because justices do not have sufficient training in policy and governance. Their proficiency lies in legal research and reasoning. Therefore, it only makes sense to keep this constitutional boundary robust. It is pretty clear that the fundamental design is for the SC to be prudent when ruling on constitutional issues that will impact executive and legislative functions. Indeed, it is unwise and deleterious to arrogate oneself over matters beyond one’s competency.

Sadly, under the auspices of the 1987 Constitution, the SC weakened the responsible approach prescribed by the political question doctrine. As per the Syjuco decision:

“As it is, the political question doctrine is "no longer [an] insurmountable obstacle of judicial power" which protects executive and legislative actions from judicial review. Thus, while this Court cannot substitute its judgment for that of the executive or legislative branches, it may look into the question whether the exercise of their power has been made in grave abuse of discretion.”

The Duterte decision is just the latest to expose this amplified judicial regime, but it is the most audacious, claiming that the 1987 Constitution “has considerably reduced, if not totally eliminated, the pre-1987 Constitution concept of “political question”.” This bold declaration implies that the SC will not hesitate to impose rules that it believes to be right. Thus, it is only natural to ask, does not this tilt the balance of power in their favor?

While emotions are still high after the Duterte decision, it is obvious that we are not facing a constitutional crisis. Not yet because other constitutional safeguards are still operational. But it has become palpable as well that political forces have doubled down in using the SC as a weapon to achieve partisan objectives. Instead of being the dispassionate and disinterested branch amongst the three, the SC is now a player, a significant one at that, in the political arena. And this is indeed a cause for alarm.

Michael Henry Ll. Yusingco is a constitutionalist, law lecturer, and a senior research fellow of the Ateneo Policy Center.