Detrimental proposal

What for is the voting conducted by the Con Com on some proposed Constitutional amendments? Will their unanimous vote bind the legitimate body tasked with the real function of making the amendments? These questions crossed my mind especially after learning that there was even a dispute among the Con Com members regarding the unanimity of their voting on the proposal to trim the powers of the Supreme Court (SC). Whether they turn down or unanimously adopt a suggested amendment, the rejected amendment may still be adopted while the unanimously approved one may be rejected anyway by the duly authorized and properly convened constitutional assembly. Hence this process of going through the motion of voting is entirely useless and waste of time especially with regards to that unanimous vote on the proposal to clip the powers of the SC.

To be sure, some constitutional provisions on the judiciary really need to be reviewed and amended or abrogated. For one, the powers and functions as well as the manner of selecting the members of the Judicial and Bar Council (JBC) should be looked into and changed accordingly. But the proposal to divest the SC of its existing power "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", should require a more in depth and thorough study. It is quite ill advised to rush headlong into removing this provision just because there are some cases decided in the past where the SC seemingly encroached on the policy determining and implementing powers of the legislative and executive branches by substituting and imposing its own decision in lieu of the decisions made by these branches of government. The Manila Hotel and the Petrochem cases are often cited to prove this point.

Before the 1987 Constitution, the SC usually refrained from exercising its power of judicial review despite obvious grave abuse of discretion of other government branches and instrumentalities because of the "political question" doctrine. Under this doctrine, courts are not allowed to look into questions in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. Hence the framers of the 1987 Constitution thought it best to incorporate this "grave abuse of discretion" provision to limit the scope of the application of the "political question" doctrine. As explained in Estrada vs. Desierto (353 SCRA, 491), before this provision was adopted, "the judiciary has focused on the ‘thou shalt not’s’ of the Constitution directed against the exercise of its jurisdiction. With the new provision however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government". This provision therefore gives more teeth to the principle of checks and balances by expanding the power of judicial review and "trimming the so called political thicket" that sprouts between the three branches of government.

This expanded judicial power should not therefore be taken away. Sufficient guidelines should only be set so that the courts tasked to check the grave abuse of discretion committed by the other departments will not itself gravely abuse its own discretion or encroach on the powers of the other departments when exercising it. These guidelines need not be detailed in the Charter itself. The SC may establish them. To be sure, sufficient guidelines are already set in a 1962 American case, Baker vs. Carr, (369 US 186, 82 S.Ct. 691). As held in the said case, the courts should not exercise its power of judicial review over a case if: (1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) there is a lack of judicially discoverable and manageable standards resolving it; (3) there is impossibility of deciding it without an initial policy determination of a kind clearly for non-judicial discretions; (4) there is impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; (5) there is an unusual need for unquestioning adherence to a political decision already made; or (6) there is potentiality of embarrassment from multifarious pronouncements by various departments on the question.

I am sure the SC has taken these guidelines into consideration when they decided the Manila Hotel and Petrochem cases. The decision in these cases may not be universally acceptable. Some have scorned them as a form of "judicial legislation". Others have openly expressed their disagreement or even disgust with these decisions because they are somehow adversely affected by them. But these are not enough reasons to deprive the SC of a basically inherent power to review and reverse actions that amounts not only to errors of judgment but errors of jurisdiction because they are done with grave abuse of discretion affecting the public interest or even private rights; with more reason if the body proposing the amendment clipping SC’s power, lacks, or has questionable authority to do so.

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