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Popular Constitutionalism in the Corona Impeachment
JURIST Columnist Edsel Tupaz of Tupaz & Associates says that the impeachment of Philippine Chief Justice Renato Corona highlights the tension between the constitutional authority of the judiciary and the elected branches of government...
While the outcome of the impeachment trial against Philippine Chief Justice Renato Corona is far from certain, recent polls conducted by Pulse Asia show that 47 percent of respondents favor conviction. Only 5 percent believe Corona is innocent. This may be disturbing news for the defense. But one thing is certain — constitutional understanding at the grassroots of Philippine society is undergoing dramatic change. While the Philippine Supreme Court is constitutionally designed to be the sole speaking authority of what the Constitution means, the influence of public sentiment on constitutional interpretation is on the rise.
The claim that what the Supreme Court says "is law" and that it has the "last say" in all constitutional questions can be traced to Marbury v. Madison and its progressive entrenchment in Philippine constitutional law, which consciously adopts a stronger form of judicial review compared to US federal practice. The Philippines' adoption of Marbury is understandable, given that the Philippines was a non-state territory of the US between 1898 and 1946, adopted US-style judicial review, and expanded that review power in the aftermath of the Ferdinand Marcos dictatorship. At the other end of the spectrum of constitutional interpretation is "popular constitutionalism," which is a strain of constitutional thought, at least in broad strokes, akin to direct popular action. All impeachment trials involving a venue other than the Supreme Court, or any court of law, will always implicate the question of popular constitutionalism, because in impeachment the space for constitutional choice will be a political choice for the most part. Like the US, the Philippine Senate "shall have the sole power to try and decide all cases of impeachment." By "sole power," the Senate itself is thought to control the substance of the verdict. Interpreting this provision, Senate President Juan Ponce Enrile, the presiding officer of the trial and a Harvard Law graduate, asserted that
It seems well settled among American and Philippine jurists that their supreme courts are supreme in the task of constitutional interpretation as established in Marbury. Following that last utterance, it remains with the political branches, at times thought to be "co-equal departments," to pit and parlay political capital against the constitutional legitimacy which accompanies, or ought to accompany, any supreme court decision. Speaking in the context of US constitutionalism, Frank Michelman spoke of why one ought to avoid the "author-authoritarian syndrome" that could pervade US-style textualist originalism, and Philippine society seems inclined to think only within the confines of a judicial vernacular equating juristic thought to "judicial" thought. Corona's impeachment, rightly or wrongly, can thus strike proponents of popular constitutionalism as something of a positive development, because beyond the Senate, now sitting as the impeachment court from which — least to Enrile — there can be no appeal. The tension between (expanded) judicial review and popular constitutionalism will always be the case whenever a member of the judicial branch, especially a chief justice, has been impeached and stands trial.
At bottom, the Philippines today is struggling with a classic if not extraordinary kind of counter-majoritarian difficulty. It is grappling with what can strike one as an existential tension between constitutional legitimacy, defined as a "majority" of a court, and constitutional legitimacy defined by proponents of popular constitutionalists where a "higher law" resides in "the People" as opposed to an unelected body.
Edsel Tupaz is the founder and managing partner of Tupaz & Associates and is currently a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.
Suggested citation: Edsel Tupaz, Popular Constitutionalism in the Corona Impeachment, JURIST - Sidebar, Mar. 29, 2012, http://jurist.org/sidebar/2012/03/edsel-tupaz-impeachment-v.php.
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The claim that what the Supreme Court says "is law" and that it has the "last say" in all constitutional questions can be traced to Marbury v. Madison and its progressive entrenchment in Philippine constitutional law, which consciously adopts a stronger form of judicial review compared to US federal practice. The Philippines' adoption of Marbury is understandable, given that the Philippines was a non-state territory of the US between 1898 and 1946, adopted US-style judicial review, and expanded that review power in the aftermath of the Ferdinand Marcos dictatorship. At the other end of the spectrum of constitutional interpretation is "popular constitutionalism," which is a strain of constitutional thought, at least in broad strokes, akin to direct popular action. All impeachment trials involving a venue other than the Supreme Court, or any court of law, will always implicate the question of popular constitutionalism, because in impeachment the space for constitutional choice will be a political choice for the most part. Like the US, the Philippine Senate "shall have the sole power to try and decide all cases of impeachment." By "sole power," the Senate itself is thought to control the substance of the verdict. Interpreting this provision, Senate President Juan Ponce Enrile, the presiding officer of the trial and a Harvard Law graduate, asserted that
Our rules do not provide for preliminary hearing. The Constitution says the Senate trial shall forthwith proceed, except that rights of all the parties involved must be respected. ... There is no assignment of error, ... there is no appeal in this court. If it is acquittal, the government cannot appeal; if the verdict is guilty, the accused cannot appeal.But Enrile's ruling, which is presumptively the Senate's ruling, will implicate the tension of judicial review. Can the Senate's constitutional authority, described as the "sole power" to try and decide impeachment cases, trump judicial review? The question is of greater resonance among Filipinos as well as those jurisdictions which imbue their supreme courts with greater (or "stronger") powers of judicial review over governmental action. Most notably is Article VIII, Section 1, which entrenches a "strong form" of judicial review in the 1987 Constitution, which is a provision not found in previous constitutions in many jurisdictions. This section states: "Judicial power includes the duty of courts ... 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." The operative term here, for our purposes, is "any." Does this extraordinary judicial function include within its scope of review the Senate sitting as an impeachment court? Can the Supreme Court, in short, act as a court of last resort if the respondent in an impeachment case lodges an appeal from a verdict of conviction by the Senate? The answer, as intimated, seems to be a "No."
It seems well settled among American and Philippine jurists that their supreme courts are supreme in the task of constitutional interpretation as established in Marbury. Following that last utterance, it remains with the political branches, at times thought to be "co-equal departments," to pit and parlay political capital against the constitutional legitimacy which accompanies, or ought to accompany, any supreme court decision. Speaking in the context of US constitutionalism, Frank Michelman spoke of why one ought to avoid the "author-authoritarian syndrome" that could pervade US-style textualist originalism, and Philippine society seems inclined to think only within the confines of a judicial vernacular equating juristic thought to "judicial" thought. Corona's impeachment, rightly or wrongly, can thus strike proponents of popular constitutionalism as something of a positive development, because beyond the Senate, now sitting as the impeachment court from which — least to Enrile — there can be no appeal. The tension between (expanded) judicial review and popular constitutionalism will always be the case whenever a member of the judicial branch, especially a chief justice, has been impeached and stands trial.
At bottom, the Philippines today is struggling with a classic if not extraordinary kind of counter-majoritarian difficulty. It is grappling with what can strike one as an existential tension between constitutional legitimacy, defined as a "majority" of a court, and constitutional legitimacy defined by proponents of popular constitutionalists where a "higher law" resides in "the People" as opposed to an unelected body.
Edsel Tupaz is the founder and managing partner of Tupaz & Associates and is currently a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.
Suggested citation: Edsel Tupaz, Popular Constitutionalism in the Corona Impeachment, JURIST - Sidebar, Mar. 29, 2012, http://jurist.org/sidebar/2012/03/edsel-tupaz-impeachment-v.php.
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