Separation of powers

Though I am not a lawyer, I am, as a citizen and as a sociologist, interested in the exercise of state power in a republican system like ours.  It seems to me that the crisis of the presidency, given the defensive responses of its current occupant, will increasingly put the doctrine of separation of powers to a test.

Executive Order No. 464, which bars Cabinet officials, military officers and government executives from testifying at congressional inquiries without presidential approval, has been interpreted as an unwarranted restriction of the congressional power of legislation. The constitutionality of this EO will surely be challenged in the Supreme Court. The Court still has to decide on another motion seeking the invalidation of the vote recently taken by the House of Representatives on the impeachment complaints against Gloria Macapagal-Arroyo. A decision giving due course to the motion could be interpreted as judicial meddling in the affairs of a co-equal branch of government.  Also pending before the SC is a challenge to the constitutionality of the EVAT law, an act of Congress approved by the executive.  How long can the Court suspend its implementation without impairing the presumption of constitutionality of legislative enactments?

There have been other instances.  The one that quickly comes to mind is the decision of the Supreme Court in 2001 to administer the presidential oath of office to then Vice President Arroyo, even before there had been an actual determination of the existence of a vacancy in the office of the president.  The lawyers of ousted president Joseph Estrada saw this as an unjustified interference in an ongoing political process.  The issue came to a head when Ms Arroyo’s assumption of the presidency was subsequently challenged before the same tribunal. In two separate decisions, the SC upheld the presidency of Ms Arroyo.

My impression is that the principle of separation of powers may not be as simple as it seems, and that it is heir to many ambivalences.  In what could be his last major lecture (Supreme Court Centenary Lecture Series), the late Chief Justice Enrique M. Fernando, examined this question and the specific contributions of Justice George Malcolm and Justice Jose Laurel to its clarification.  The citations here are taken from that lecture.

Justice Malcolm wrote: “[U]nder our system of government, each of the three departments is distinct and not directly subject to the control of another department….Each department may, nevertheless, indirectly restrain the others.”

The principle provides not only the separation, but the balancing and checking of powers. The three branches are separate from one another, and in this autonomy lies precisely their power to check one another.  There is no question, therefore, that each of the three departments “may indirectly restrain the others.”  But this can be done only within a department’s own sphere.

Malcolm cites the opinion of Judge Cooley in a U.S. case: “The Legislature cannot dictate to the courts what their judgments shall be, or set aside or alter such judgments after they have been rendered. If it could, constitutional liberty would cease to exist; and if the Legislature could in like manner override executive action also, the government would only become a despotism under popular forms. On the other hand, it would be readily conceded that no court can compel the Legislature to make or to refrain from making laws, or to meet or adjourn at its command, or to take any action whatsoever, though the duty to take it be made ever so clear by the constitution or the laws.  In these cases, the exemption of one department from the control of the other is not only implied in the framework of government, but is indispensably necessary if any useful apportionment of power is to exist…”

In the natural course of events, the exercise of these powers by the key branches of government is bound to pose problems of jurisdiction.  There are bound to be charges of encroachment into another’s territory, and abuse of power.  But that is the reason, wrote Justice Laurel, why our Constitution expressly vests in the judiciary the mandate to settle conflicting claims of authority.

Justice Laurel’s words could have been written for today’s controversies:  “The Constitution is a definition of the powers of government.  Who is to determine the nature, scope and extent of such powers?  The Constitution itself has provided for the instrumentality of the judiciary as the rational way.  And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.”

In the same lecture, from which I have liberally quoted, Chief Justice Fernando discussed the prerequisites for the exercise of the power of judicial review.  These are valuable notes for those who must perform that task in these times of political disquiet.  My own interest is in the social conditions that make it possible, or difficult, for the public to continue believing in the wisdom and impartiality of the courts.  At no other time has it become more critical for our justices to demonstrate that they can stand above the political fray.


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