Thursday, September 20, 2007

Our "Bantay Salakay" Supreme Court and the Separation of Powers

Tagalog term, "bantay salakay" is almost impossible to translate into English. Roughly speaking, it means a guardian who attacks that which it must guard. In this case, I am referring to the Supreme Court itself, and its history of destroying the Constitutions it has been given to defend.

I have already considered in great detail (in the Commentary entitled The Law As Prediction: Javellana at 33) the historic dereliction of duty of the Supreme Court in the matter of Ferdinand Marcos' Martial Law Constitution of 1972 when it issued the infamous Decision, Javellana vs. Executive Secretary in which the Court proclaimed a new principle of surrendering to fascism: the principle of political acquiescence, by which we the People are said to have acquiesced to a new Constitution by a mere show of hands under the watchful eyes and guns of the fledgling Fascist Dictator.
My own disgust for Ferdinand Marcos and his legacy is rather COMPLEAT: it is personal, political, ideological and even religious. I visited his floating cadaver in Sarrat once just to savor the Ozymandian truth that only words and ideas survive, not men and their power--only now to realize that the evil Marcos did lived on after him -- specifically in the Supreme Court of the Philippines--even after he was overthrown.

Many others are commemorating this week the imposition of martial law in 1972 and are worth reading:

Conrad de Quiros who compares Gloria to Marcos when he says, "People who are not bothered by the crypt that holds the remains of the national hero won’t be bothered by the papyrus, or its modern equivalents, that holds the essence of their being, also called their word."
Manolo Quezon who asks the philosophical question: "Why do we look back at the lives of people like Ferdinand E. Marcos? As long as humanity is around, a fundamental question will always be, how is power gained, maintained and ultimately for what purpose is it wielded?"

In a democracy, power is gained by free, fair and regular elections of representatives of the people in whose name and for whose benefit that power is wielded. But power in a democracy is invested in a divided government composed of a Legislature to make the laws, an Executive to enforce and apply the, and a Judiciary to resolve the inevitable conflicts that arise among men and institutions. The secret of maintaining power within beneficial bounds in a democracy lies in this principle of the Separation of Powers in a divided government in which the separate parts serve as check and balance on each others hold on power.

Without a strictly and scrupulously obeyed Separation of Powers, there is actually very little to distinguish a democratic government from an authoritarian or autocratic state in which power is indeed, concentrated in one man or one party.

That of course was the evil in the Javellana decision: it acquiesced to the monopolization of power in one man, Ferdinand Marcos, and later on to that of his party of relatives, cronies and sycophants when it blessed their criminal wrong doing in case after infamous case.

But was Javellana the nadir of the Supreme Court's history of moral and intellectual failures? I don't think so! At least in that case, the ACTS sought to be over-ruled in the Supreme Court were acts of the President turned fascist dictator, Ferdinand Marcos. What they blessed in that instance was an act of the Chief Executive to inaugurate a new regime: Marcos' New Society. However, in 2001, in the equally historic decision, Estrada vs. Arroyo, the Supreme Court touched an even lower level when it blessed an unconstitutional ACT of the Chief Justice Hilario G. Davide, Jr., in which the principle of Separation of Powers was violated directly by the Supreme Court itself!

For the little-recognized FACT explicitly stated in the Constitution is that the Supreme Court has NO JURISDICTION, not even JUDICIAL REVIEW when it comes to the question of how this Democracy decides upon the removal from office of Constitutional Officers, like the President and the Chief Justice themselves by a process other than election or appointment, namely that of IMPEACHMENT.

The matter is exhaustively examined in a recent post that looks at the true limits of SupremeCourt power, What Is Fair Has Just Priority Over What Is Good.

Many Filipinos, for one reason or another, have come to regard the Supreme Court as the secular equivalent of the Roman Curia of the Catholic Church--such that when it speaks through the Chief Justice or when it rules upon a case before it--then it is just like the Pope teaching the Catholic Magisterium, interpreting the Word and Will of God, in this case, the People and their Constitution. In other words, being the good Roman Catholics that they are, (and even when they are not!) too many Filipinos actually believe that the Supreme Court is largely infallible, or at least, unquestionable and unassailable. It is even believed that every Supreme Court decision is final, as if the Supreme Court has never reversed itself.

It has become almost impossible for many Filipinos to even imagine that the Supreme Court's powers are actually limited, and that there are cases in which it has no jurisdiction and does not even have the power of judicial review.

This is a "childhood" illusion, an infantile phase of our advance to political maturity in which our faith and understanding of Democracy is still largely mystical and not rational. Filipinos have not yet come to appreciate the genius of Democracy as a system of checks and balances in which a well-defined separation of powers MUST be maintained if the machine that we call the Government is to function smoothly and beneficially. This idea of democracy as a machine with separate parts comes from Thomas Jefferson and James Madison.

The Supreme Court, which is the only Constitutionally vouchsafed part of the Judicial Branch of the Government, actually has a very well-defined JURISDICTION or domain of justiciable cases that are within its power to adjudicate and rule upon.

Is there anything the Supreme Court may not decide upon?
Are there JUSTICIABLE cases that are OUTSIDE the jurisdiction of the Supreme Court?

YES there are, a big one being the entire matter of how this society gets rid of criminals it finds in high office. It is a two step process in which the official must first validly be removed from office and deprived of the particles of sovereignty won at election, a step EXCLUSIVELY and SOLELY invested in the House and Senate as the political departments of the government; then, and only then, do they fall into the jurisdiction of the Judiciary for criminal prosecution.

In 2001, the Supreme Court usurped the Congress' powers, with ACTS and WORDS that surpass Marcos' own duplicity and his fascistic violation of the separation of powers with their own judicial putschism. They are worse than Marcos in the sense Conrad de Quiros mentions: for we have have acquisced to their "papyri" -- to the evil content and consequences of their written words.


Davide's Chicken Is Coming Home To Roost

The Paradox of People Power

Laughable Textbook Errors In Crucial Supreme Court Decisions

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