NEW YORK, OCTOBER 29, 2003  (BULLETIN) Blas F.. Ople - Davide’s dilemma: A civil war between the branches of gov’t

The California Personnel Pension Plan, (CALPERS), which invests billions of dollars around the world, has to decide whether or not to keep their $50-million investments in the Philippines. Its board has invited Finance Secretary Jose Isidro Camacho and Philippine Ambassador Albert del Rosario to explain recent developments in the Philippines. Principally they have expressed concern over two events bearing on the courts, namely a court decision suspending the governor of the Central Bank and the current impeachment of the Chief Justice of the Supreme Court Hilario Davide Jr.

That the Davide impeachment case has economic ramifications cannot be doubted. Any number of the regular international investor surveys has elicited the fact that a country’s political stability and the independence and integrity of its judicial system heads the list of foreign investor criteria for investing in a country.

The Philippine Constitution provides for a strong judicial system, at the apex of which sits the Supreme Court, which says what the law is and is the final arbiter of all legal questions. The Constitution provides that no law may be passed if its effect is to undermine the security of tenure of sitting justices or judges. In the debates in the Constitutional commission of 1986, I drew the ire of the mighty lawyers in that Commission when I said that “in building walls of independence to surround the courts, you may well be constructing bastions of special privilege instead.” One of these lawyers was Hilario Davide, Jr. of Cebu, who was overheard saying, “I hope I don’t have to meet Blas Ople in the Supreme Court one day.” He could have said it in jest but I wholly disregarded what sounded like a veiled threat. That was before Davide was appointed by President Corazon Aquino an associate justice of the Supreme Court.

Davide in fact stood out in the Constitutional Commission for his wide-ranging intelligence and immense productivity. As Chief Justice, he drew raves from the public when he presided over the impeachment trial of former President Joseph Estrada although to us in the Senate he bore the responsibility for the aborted trial; he should have stopped the prosecutors from walking out and ensured the completion of that process instead of allowing its abrupt termination in mid-course.

I also do not believe that the Supreme Court is legally inaccessible to the scrutiny of Congress. In the US Federalist Papers, Alexander Hamilton is quoted as saying, “The executive wields the sword, the legislative commands the purse, and the third branch (the judicial) is the least dangerous to the liberties of the people.” On the eve of the American Civil War, President Abraham Lincoln, told that the Supreme Court had ruled against the federal government in a matter involving the detention of some federal troops in the state of Virginia, curtly said, “Let them enforce their own ruling.” The judicial branch interprets the law but has no power to enforce it.

In my honest opinion, the Chief Justice should have acknowledged the right of Congress to oversee the expenditure of public funds, even by the Supreme Court. His cooperation with the justice committee of the House of Representatives could have forestalled any possibility of his impeachment for alleged graft and corruption and betrayal of public trust. The Chief Justice instead chose to be finicky about the “fiscal autonomy” of the Supreme Court. Having served in the Constitutional Commission which wrote the present Constitution, he should have known that fiscal autonomy is not equivalent to immunity from the oversight function of Congress over funds appropriated by it.

Having said that, I believe that Congress is barred from impeaching the Chief Justice a second time within one year. The first impeachment complaint was dismissed by the justice committee for insufficiency of substance. The initiation of a second complaint is clearly prohibited in the Constitution. For this reason, President Gloria Macapagal Arroyo is right in calling for a “principled solution”.

The separation of powers between and among the three branches of the government might have been intended to install checks and balances, although in the US Constitution, on which we have modeled ours, the professed intent is to ensure an efficient and energetic government by the proper allocation of powers to the three branches of government. The framers wanted to shape a strong and effective government capable of competing with the European great powers in the 18th century. It was never intended that the branches will engage in a civil war between or among themselves, which is happening in the Davide impeachment case.

If this is not resolved with dispatch, as former President Aquino has stated, the result will be a constitutional stalemate, a crisis that can harm the country’s political and economic stability. One doesn’t have to be a seer to know that the Supreme Court will issue a unanimous injunction against the impeachment of the Chief Justice. The House of Representatives will of course disregard this injunction, and like Lincoln, Congress will tease the Supreme Court on enforcing its own ruling.

The President herself is looking for a “principled solution.” The solution is for the High Court to open its books to congressional scrutiny, through the intermediation of the Commission on Audit, another constitutional body. This will satisfy the claims to a principled stand of both the Congress and the Chief Justice of the Supreme Court. This will solve Davide’s dilemma and stave off a dangerous constitutional crisis, which some frustrated military men may seize as a pretext to gain power for themselves.

Secretary Ople may be accessed at the Internet, through his e-mail address: and and or his website:

Reported by: Sol Jose Vanzi

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