Saturday, October 14, 2017

Judiciary ng Pangulo

Relationship of Judiciary with Executive and Legislative: Is there a check and balance?

Legislative makes, alters and repeals laws; executive implements laws; judiciary applies and interprets laws. This is according to them is the ingredient to have a balance of power in the government. Apolinario Mabini said that its important to have sole authority in the land but that should be ensure a balance of government power: an intellect to direct it (legislative power); a will that is active and a resolve to make it work (executive power); and a conscience that judges and punishes what is bad (judicial power). It is clear that our forefather already figured the so called separation of powers. In fact, Montesquieu, a French political philosopher, believes that power should be a check to power. Meaning it shouldn’t dwell on one hand only unless the certain society accepts its tyrannical government, special mention to North Korea. But is this separation of powers or check and balance purely exist in the country or is it just a mere decoration to the principle of our constitution?
In a presidential type of government that we have, let’s take a look at how our judiciary works. First, lets see how it go along with legislative branch. The constitutional power of the judiciary is to determine any grave abuse of discretion aggravating to excess or lack of jurisdiction in the part of the legislative branch. Under the 1987 Philippine Constitution, the judiciary enjoys more powers that are classified into three: 1) the traditional concept of judicial power that is the power to settle actual disputes involving rights that are judicially demandable and enforceable; 2) power of judicial review or the authority of courts to declare void any action of any branch that is in conflict with the constitution and; 3) the expanded certiorari jurisdiction or the power to invalidate any act or any branch or instrumentality of the government when done in grave abuse of discretion amounting to lack or excess of jurisdiction. If you may notice, those mentioned can be observed on the impeachment processes that known to start from legislative. There was once a time when lower house  motion to impeach Hilario Davide was rejected when placed in the high court when high court itself issued status quo ante order halting the impeachment proceedings of the Lower House. The judiciary power to invalidate any act or any branch or instrumentality of the government can be observed in the instance when it was used to delay Corona’s impeachment by issuing TRO to stop the Senate from examining the dollar accounts of the Chief Justice. Because of that, they thought they are untouchable until senate bounced back and finally resolved the problem of penetrating the SALN’s of high judiciary officials and finally thrown out Corona. Hence, due to that resolution, they are no more safe to scrutiny when it comes to their SALN. Take for example Sereno’s proposed impeachment. However, for the benefit of studying this precious course (Polsci), we always enjoy seeing things going down to politics. Yes, as to the impeachment of the past Chief justice, it was purely politically motivated commenced by ever loyal party members of the legislative that are connected to the President. Aquino being GMA’s nemesis wants the former president’s imprisonment nice and easy. So he has to bring it first to his minions in the senate and house of representatives under his strong influence. Do you smell the same thing that is happening now in Sereno?
It all started from appointments ladies and gentlemen. The executive branch should be very careful on selecting his people to be placed in the Supreme Court. Why? Because, the courts are given the power to check the acts of the legislative and executive branches as mandated by constitution and assumed to be independent. That “independent” clause is true but nothing is impossible to politics. Does our high court able to 100% exercise its power of judicial review as a means to check accountability of the executive branch? Someone will say, yes, independent nga di ba? duh. Then why is Pres Duterte so fierce on having his legislative knights throw out the current Chief Justice whom obviously was the sprout of former Aquino? EJK’s? Napagkamalang pusher? Who’s gonna question the accountability of the president? The court ofcourse. And if this court is not the president’s court (just like GMA’s), will the president sleep tight at night thinking about the security of his seat? Yes, the judiciary will stick to the mandate of the constitution and even rule cases that are slightly off or broad to interpret (e.g. jurisprudence or landmark cases), but they are also political animals, they can be influenced. Not only protecting seat but implementing policies that might put general welfare at risk can be backed up by judiciary. The challenges on the exercise of the checking power of the Supreme Court arose most notably during President Arroyo‟s administration. Presidential Decree No. 1017 [PD 1017] (Official Gazette, 2006) and Presidential Proclamation No. 1959 [PP 1959] (Official Gazette, 2009) illustrate the risks of unchallenged emergency powers of the President. These PD’s almost put the nation into martial law again but SC can rule about its constitutionality and they said yes to it. You may say “may JBC (Judicial and Bar Council) naman ah”. But where do they submit the suggestive appointments? As stipulated in Article VIII, Sec. 8 of the Constitution, the Chief Justice as ex officio chairman, the Secretary of Justice, a representative of the Congress as ex officio member, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector compose the JBC. And so? Who are the friends of the president among those? And who are their friends? Politics!  Presidential appointments can become a source of loyalty among appointed members of the bench. These presidential appointees inevitably become the president's political die hards (if properly fed) in the vulnerable judiciary.
Now, do we see an absolute independence between these branches? Are the powers really separated? Ask your lolo and lola about it and they will never reply “papunta ka pa lang, pabalik na ako”. It’s the same thing over the course of history. Executive supremacy in legislative and judicial branches exist! The appointing power of the president to the bench undermined the checking powers of judiciary to the executive branch. It is also the executive that determines the relationship between legislative and judiciary. We call it “hyperpresidentialism”.
Constitutional reforms must be introduced since most of the loopholes in the application of the system of checks and balances are constitutionally allowed. Specifically, reforms should include the apparent limitations of the emergency powers of the president and the one-year ban rule of the impeachment proceeding. Legislators should make use of the legislative committees (e.g. Committee on Oversight, Committee on Good Government, Committee on Ethics, and the Committee on Justice) to oversee the actions of the executive as part of the promotion of the institutionalization of oversight culture by the legislative department. Membership of the Judicial and Bar Council shall be further depoliticized by adopting a non-partisan court plan to ensure real judicial independence. No elected politician shall be allowed to participate in the selection or election of the possible members.

Further studies shall be conducted particularly on voting patterns and behavior in the Commission on Appointments and the patterns of preference in the selection process of the President vis-a-vis JBC shortlist. Lastly, a more proper work ethic must be integrated in the government to promote basic moral virtues such as accountability, integrity, honesty, responsibility, efficiency and others in public service and governance especially those enshrined in the Constitution