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Friday, March 29, 2024

Primer on draft Con-Com Charter: Part Sixteen

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Con-Com 2018 Member

Q: There used to be only one Supreme Court that was the repository of judicial power, together with the statutorily created courts.  There are now three besides the Supreme Court; the Constitutional Court, the Federal Administrative Court, and the Federal Electoral Court.  Why the need to multiply high courts?

A: In the first place, the plurality of high courts is not unique to the Philippines.  And with all due respect to Justice Vicente Mendoza, it is not obvious that the Republic benefits from only one constitutional court with a plenitude of power.  A study of French constitutionalism will easily reveal that following the French revolution, there was hesitation to repose too much power in the courts.  Under British constitutional law, it is inconceivable for any court to rule against the validity of an Act of Parliament. And when Mahathir was on his first term as Prime Minister of Malaysia, he drastically cut down the power of judicial review because of what he perceived to be deleterious interference of courts with the operations of government—and while lawyers complained, the average Malaysian enjoyed the blessings of prosperity under Mahathir’s leadership. Second, appeals from lower courts and judgments of administrative agencies as well as of quasi-judicial bodies are raised to the Supreme Court.  To complicate matters, the very broad grant of certiorari power—the power to review for grave abuse of discretion on the part of any branch, agency or instrumentality of government, has kept the Supreme Court’s dockets clogged.  The results have often been unjust particularly for persons suffering imprisonment following conviction after trial—only to be acquitted several years later when the Supreme Court finally had the time to review their cases.

Q: Is there any change in the definition of judicial power?

A: Yes, and a very important one.  While the duty of settling controversies overdue and legally demandable rights remains, as well as the power to review for grave abuses of discretion, the Constitutional Court and the Federal Administrative Court are also granted advisory opinion.

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Q:  What is an advisory opinion?

A:  Generally, there are two classes of jurisdiction: contentious—which is the kind our courts have exercised till now, and advisory.  For the exercise of contentious jurisdiction, it is required that there be an actual controversy.  So, law students were traditionally taught that an actual case or a controversy was the legal opposite of a hypothetical, academic or a moot question.  Sometimes, this was formulated as the requirement that there be some concrete injury or actual and real threat of harm to the petitioner to allow his case to prosper.  By contrast, advisory jurisdiction is the power to render a ruling on a question that may not involve actually disputing parties.  This is the kind of jurisdiction the International Court of Justice also has when it is asked by organs of the United Nations to answer complex questions of law such as the extent of the immunities of agents of the United Nations.

Q: Why was it necessary to give the Constitutional Court advisory jurisdiction?

A: We learned a lot from the French government that has a Constitutional Council (that is not really a court) that renders advisory opinions on proposed legislation first, to preempt the passage of unconstitutional acts; second, to have a guarantee that the Act passed does not transgress constitutional precepts.

Q: Is a judgment of the Constitutional Court in an advisory case binding or does it have the nature of the opinions rendered by the Department of Justice which, though nevertheless persuasive, are not binding?

A: It is binding to the extent that once ruled to be unconstitutional by the Court, it can no longer be enacted into law or signed into law by the President.  However, because a law may be facially valid but infirm in its implementation or may result in a violation of constitutionally protected rights when enforced, a citizen who is aggrieved by provisions of law may nevertheless still challenge the constitutionality of a law or of its provisions notwithstanding a prior ruling of constitutionality by the Constitutional Court in the exercise of its advisory jurisdiction.

Q: Will this not allow political adversaries of legislators or even of the Administration to stall virtually all and every piece of legislation by turning to the Constitutional Court for an advisory opinion?

A: Once more, we learned from the French in this regard.  Not everyone can invoke the advisory jurisdiction of the Constitutional Court.  Only the President of the Philippines, the President of the Senate and the Speaker of the House of Representatives may raise a matter that calls on an advisory opinion of the Constitutional Court.  After all, only these three are directly involved with the passage and due enactment of law.

Q: Why does the Federal Electoral Court also enjoy advisory opinion?

A: Philippine jurisprudence reveals a plethora of cases decided by our Supreme Court on actions and rulings of the Commission on Elections that need not have become full-blown cases (with all the expenditure of human effort and resources that litigation involves) had there been a definitive ruling from the very beginning.  The Federal Electoral Court may be asked by the Federal Electoral Commission to render an Advisory Opinion on any of the latter’s acts or dispositions.

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