The unintended consequences of the draft judiciary provisions

By J. Art D. Brion (ret.)

(First of a series)

I write this commentary, the first of a series, on the Consultative Committee (ConCom) draft of judiciary provisions, mindful that this draft is meant to be a working copy that the Constituent Assembly shall start with when it begins its deliberations; it was never intended to be “the” proposed constitution that the Constituent Assembly would submit to the people for ratification. Like the rest of the interested public, I wish to contribute my own thoughts to our nation’s constitutional drafting efforts.

While the ConCom enriched the 1987 terms with a lot of noteworthy details, I believe that the Constituent Assembly should nevertheless take a close look at the structures the ConCom introduced, particularly the four Supreme Courts and the distribution to these new courts of the jurisdiction of the 1987 Supreme Court.

I agree with the ConCom that the backlog of cases and the consequent delay they entail should be top priority concerns. I differ, however, with the ConCom’s structural or specialization approach in addressing these concerns. Specialization is not the only effective way of ensuring the smooth and efficient disposition of cases. Specialization, too, can be partial and does not necessarily need to result in the division of the present Court into 4 Supreme Courts.

In my view, the ConCom’s approach is wasteful because it would lead to a bloated judiciary. More than this, its approach could lead to the unintended consequence of weakening the Supreme Court as the third branch of government, particularly as against the Executive. The weakening of one branch of government undermines the separation of powers principle and the system of checks and balance that underlie our democratic system. To borrow a religious term, it is a mortal sin that we should avoid at all cost.

On my first point, consider the number of offices (and accompanying budgets) that four different Supreme Courts would entail. The four different Courts (with a complement of 42 justices) would necessarily need their own suppoting adjudicative and administrative machineries composed of en banc and division officials and staff.

Add to these the Court Administrator’s Office that will service the lower courts, as well as the Judicial Appointments and Disciplinary Council (an expanded version of the Judicial and Bar Council now servicing the present courts) with its own Executive Board. The total number of employees and budget these new or expanded structures would require could be mind-boggling compared to the present Court’s budget. Should we not put these extra funds to better use by channeling them to the statutory and the lower courts that, by experience, are perennially short of funds, manpower and resources?

On my second and more important point, the separation of powers principle and the checks and balance it fosters, are old mainstays that have been with us since our 1935 Constitution.

The separation principle, admittedly, simply confines the great departments of government to their specifically assigned tasks. While the 1935 Constitution’s distribution of tasks to the three departments of government might not have been perfect, it stood the test of time; it was essentially sound and coherent, and it worked as the 1935 constitutional framers intended.

It gave us a robust Legislature to lay down the laws; a fairly strong President to execute these laws, with the two departments kept to their assigned tasks by an independent Supreme Court that saw to the interpretation of the Constitution and ensured the preservation of the boundaries among the departments. Effectively, this was the system of checks and balance that kept the government on an even keel.

The separation of powers principle and its accompanying system of checks and balance only went out of kilter when the 1973 Constitution and its “strong President” regime came. The 1973 Constitution, of course, was littered with aberrations from the start – from the deliberations of the 1971 Constitutional Convention, to the approval of its proposed constitution and its submission to the people for ratification, and later, in the Court’s confirmation that the Constitution was in “full force and effect.”

The correction to the “strong President” regime came through the 1987 Constitution. The required corrective process, however, was itself far from regular. It involved the declaration of a revolutionary government; the drafting of a new constitution by a group of appointed framers; the dismissal of select members of the Court and the appointment of acceptable replacements; and constitutional terms that gave the Court not only the power to resolve actual controversies and to interpret the constitution, but likewise the authority to pass upon the political acts of the executive and the legislature allegedly committed with grave abuse of discretion.

The last of the above-listed powers “expanded” the Court’s jurisdiction and allowed it to intrude even into the political or discretionary acts of the two other departments. The judiciary thus assumed the ascendant position; from the 1973 imbalance where the executive was supreme, the 1987 Constitution swung the system of checks and balance into the Supreme Court’s way.

The present draft, sad to state, may just again swing the pendulum the other way, instead of simply providing for a real and principled checks and balance that all departments of government would be happy to live with.

Note that with the 1987 Supreme Court structurally dismembered and with its jurisdiction distributed, there is no single effective Court, represented by one Chief Justice, who can be the equal of a President who wants rulings in his favor and who only needs to deal with diffused tribunals with narrowed jurisdictions. Divide and rule, is how some would call this.

This consequence, of course, is based on a speculative scenario that may or may not happen. But this scenario, when it happens could be an unintended consequence of the ConCom’s otherwise legitimate desire to speed up the disposition of cases for the litigating public’s benefit.

Oh, how I wish the Constituent Assembly could locate the pendulum somewhere nearer the middle!

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