Amending the Judiciary provisions

THOSE monitoring the media coverage of proposed constitutional amendments cannot but notice that only a few topics have so far been given focused attention. At this point, the federalism issue has been accorded primacy. Closely following are the issues on political dynasty and the presidential / parliamentary form of government. Notably, these are issues with direct bearing on politics.

The Judiciary provisions have drawn very little interest and have hardly been examined despite extensive news reports on the ongoing impeachment of Chief Justice Sereno, One is thus tempted to ask: are we already happy with the current constitutional provisions on the Judiciary?

Or, have these provisions simply failed to generate the kind of attention that federalism is drawing because people are more interested in politicsrelated events and developments? Or, can it be that these are provisions whose time has not come and shall yet, in due time, be the focus of greater attention?

Whatever these reasons may be, the Judiciary is not only useful but is very necessary for the nation’s proper and effective governance. Its range of activities may not also be as wide as those of the Legislature or as immediate and forceful as the Executive’s, but a Judiciary must firmly be in place to ensure that the government’s wide-ranging and forceful powers are properly used to serve and protect the people.

1. The Bill of Rights, for example, which substantively defines people’s rights against the essential powers of government, would be meaningless if the Judiciary would not be there to resolve disputes arising from claims of violation of these rights.

This definition of rights is complemented by the grant of expanded adjudicatory power to the Judiciary. This expanded feature, unique to the 1987 Constitution, allows people to directly access the courts for grave abuse of discretion committed by any branch or instrumentality of government.

This was the judicial power invoked to immediately reach and check past abuses like the DAP and the PDAF. As a precautionary note, we should make sure that we will not be hoodwinked into allowing this expanded power to be cut, diluted or rendered inutile in the coming constitutional amendments.

2. The structure of the Judiciary is necessarily a function of the political structure the country shall adopt. Our current system is tailor-fitted for a unitary structure under a presidential form of government, but may not necessarily be the best for a federally-configured structure where the nation and the federal regions have their respective constitutions.

On this point, I reiterate my suggestion, made in a previous article, that we should have a separate constitutional court established purely for constitutional questions, whether federal or regional.

Conflicts and questions will inevitably arise in the future in reading these legal instruments so that their resolution by a focused specialized tribunal is best provided for, early on, under our Constitution. Constitutional questions involve elemental issues that must be resolved clearly, without delay and without equivocation for the good of the body politic. These questions should ideally meet and be threshed out by a single tribunal – the constitutional court.

3. The administration of the courts – the source of several of the charges in the Sereno impeachment proceedings – likewise deserves special attention.

Even a cursory glance at the Houseformulated articles of impeachment shows that a good number sprang from alleged excesses in the exercise of the powers of administration. This reality alone demonstrates that the time may have come to minutely examine the administration of our courts and to provide terms drawn from the lessons of experience.

To be sure, matters directly relating to the resolution of cases (from the filing of complaints to the promulgation and execution of court decisions) should continue to rest with the Supreme Court. This means, for example, that control over rules of remedies and procedures in the handling of cases should continue to be with the High Court; they pertain to the Court’s main function and should not lie elsewhere.

Separately from these matters are purely administrative tasks supporting the operation of the courts (such as human resources, purchasing and handling of supplies and properties, finance and accounting, security services, etc.) which do not have a direct and immediate bearing on the handling and disposition of cases.

To my mind, these latter tasks should not only be separately treated but should also be under the direct responsibility of a separate body. This body should still be within the Judiciary; should be subject to the general supervision of the Supreme Court; and should have express constitutional basis for long term stability.

In a limited way, we already operate under this system through the present Office of the Court Administrator (OCA) which acts on lower court matters. But this system should be fine-tuned and widened to cover all courts, with a specialized group specifically handling the Supreme Court account.

4. Another task worth singling out is the handling of administrative and disciplinary matters involving lawyers, magistrates and personnel of the Judiciary. This critical task is very important for the dignity and integrity of the Judiciary and is now directly handled by the Supreme Court. Many times, however, parts of this task (such as fact finding and recommendation) are simply assigned by the court for handling on an ad hoc basis to intermediate court or retired justices.

Shouldn’t this task be uniformly handled and assigned to an independent judicial office based on an express constitutional mandate (with limits on the penalties that the independent office may impose without need of court review) to further free up the time and attention of the Supreme Court for the resolution of other cases?

Of course, an exception should be made for matters involving justices of the Supreme Court; reason and the Court’s position in the judicial hierarchy dictate that the court itself should internally handle the discipline of its own members.

But the Constitution should expressly mandate the existence of an effective Ethics Committee for the Supreme Court with the authority to impose the whole range of disciplinary powers, including the removal of a member if so confirmed by the court through a super majority vote of all its members. This latter authority, a self-defense measure for the court, should be separate and distinct from other causes of removal such as impeachment.

Interestingly, we already have an office within the Judiciary – the Judicial and Bar Council – that can serve as a model of how specialized agencies or offices within the Judiciary can relate to and be under the supervision of the Supreme Court.