During the past two months, we have witnessed unpleasant bickering between the two houses of Congress. It could have been resolved if we did not have the misfortune of having a Senate chair who is impervious to mounting criticism from the public. This had encouraged some of us to explore other means and alternative systems that can be adopted by our judicial system for controversial cases such as the impeachment charges filed against Vice-President Sara Duterte. The behavior of Senate President Chiz Escudero and his buddies was to delay the process by dribbling the ball and searching for loopholes. Some of them had already made up their minds rather than act like impartial judges. Many citizens believe that a case like this is too serious for it to be taken lightly with lame excuses.

Perhaps a Constitutional Court could provide such an alternative. But this would entail constitutional change which we are not quite prepared to undertake now. It is not the right “constitutional moment” as several aspects of our economic and political life are in a state of instability. But we should perhaps give this matter some thought, endeavor to explore various options on how to go about it. Our Supreme Court is already over-burdened by case backlogs. This was the reason given by the 1987 Constitutional Commission when it suggested that impeachment cases be handled by the Senate.

As constitutional law expert Victor Comella noted, judges of Constitutional Courts have a degree of “insulation” and “leisure” to reflect upon fundamental values and have the advantage over ordinary courts to interpret the abstract values of political morality.”

I was fortunate to have been invited to an international consultation of constitutional specialists sometime in 2011 in South Africa which is known to have one of the most progressive Constitutional Courts. During the time I was there, our group spent a day in Johannesburg watching a session of their Constitutional Court. It is presided over by 11 judges who serve no-renewable 12-year terms The court has acted on cases such as the abolition of the death penalty, same-sex marriage, land rights of informal settlers and several other human rights and social justice issues. Like us, their Constitution also provides the appointment of an Ombudsman.

The damage that this recent action by the Senate has done to our perception of law and justice is incalculable. While we may not be able to turn to another option now, we should be thinking of how we can prepare for that possibility.

Some 85 countries have Constitutional Courts. The world’s first court was established in Austria. Most of the courts in East and Southeast Asia were established at the same time as the transition of the countries concerned are from authoritarian to liberal constitutional democracy. The countries include Bangladesh, Hong Kong, India, Malaysia, Pakistan, Singapore, Thailand, South Korea, and Taiwan.

According to constitutional expert, Po Jen Yap of the University of Hong Kong, the politics and legal issues in these countries have been addressed and understood in relation to the configuration of political power in these nine countries.

In Indonesia, Thailand, South Korea, and Mongolia, constitutional courts have emerged as real constraints on political authority. Some countries with a federal system may have both a federal supreme court such as the Supreme Court of the United Kingdom.

As noted by constitutional scholars, tensions and conflicts were shown to have emerged in countries with both a Supreme Court and a Constitutional Court. The former is several decades older than the latter, many of which had been established after World War II.

In the Philippine context, the establishment of constitutional courts may be more acceptable because of case backlogs experienced by the former.

Another justification is the need to address controversial issues such as political dynasties, gender issues, and other important concerns that have emerged during the recent decades. ([email protected])