Who made the Supreme Court king?

Although lawyers are officers of the court, they are not expected to treat the Supreme Court as king. For one (and this is submitted with all respect due to the Highest Tribunal), the Supreme Court is not superior to the other branches of the government. Second, the Supreme Court is subject to the principles of separation of powers and checks and balances. Finally, the Supreme Court, although the final arbiter as to what the law means, is not privileged to decide cases unconstitutionally.

Adherence and support to the Supreme Court are a good thing but "Supreme Court worship" may be a reason for many people's (especially, law students) misplaced understanding of our legal system.

The Philippines is a tripartite democracy and the principle of separation of powers is fundamental principle in our system of government. This principle is one of the cornerstones of our constitutional democracy and it cannot be eroded without endangering our government. The 1987 Constitution divides governmental power into three co-equal branches: the executive, the legislative and the judicial. It delineates the powers of the three branches: the legislature is generally limited to the enactment of laws, the executive department to the enforcement of laws and the judiciary to their interpretation and application to cases and controversies. Each branch is independent and supreme within its own sphere and the encroachment by one branch on another is to be avoided at all costs. (Biraogo v. Philippine Truth Commission, G.R. No. 192935, December 07, 2010; Angara v. Electoral Commission, 68 Phil. 139, 156; Secretary of Justice v. Lantion, G.R. No. 139465, 17 October 2000; Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, 29, August 2007)

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. (68 Phil. 139, 156)

A question, thus, has been raised about the proper remedy in case (if) a decision of the Supreme Court is issued but such decision is unconstitutional. On the Facebook page of Project Jurisprudence - Philippines, it was asked: "What is the remedy if the Supreme Court decides a case unconstitutionally?"

Responses submitted by followers to answer the above question are very interesting. They can be summarized into the following:

1. How can the Supreme Court decide a case "unconstitutionally"?

2. Is it not that the Supreme Court's decisions form part of the legal system?

3. Is it not that the Supreme Court is the final arbiter of what the Constitution means?

4. Is impeachment a remedy against such unconstitutional decision?

5. Is a petition for certiorari a remedy?

6. Is a motion for reconsideration a remedy?

UNCONSTITUTIONAL DECISION. One of the followers who submitted their comments even mocked the phrasing of the question because he said the Supreme Court can only declare a law, ordinance or regulation unconstitutional, not a case. It seems that this follower thinks that the question is exploring a situation in which the Supreme Court declared "a case" unconstitutional, which does not makes sense.

The adverb "constitutionally" was used in the question. An adverb modifies a verb, an adjective or another adverb. Therefore, the term "constitutionally" does not refer to "a case" but to "decides." This means that the question is actually about the basis of and the manner by which the decision was rendered.

The question (How can the Supreme Court decide a case "unconstitutionally"?) is a valid one. However, the next query is whether it is possible for the Supreme Court to make such as an inexcusable mistake. In response, others would point to the case of La Bugal B'Laan Tribal Association v. Ramos, a highly criticized decision which, allegedly, decided the case by disregarding the plain language of the fundamental law.

Beyond the realm of jurisprudence, we can also explore the hypothetical scenario in which the Supreme Court declares valid the election of a Japanese national to the Vice Presidency. Obviously, this would be a blatantly unconstitutional decision because Article VII says: "No person may be elected President unless he is a natural-born citizen of the Philippines xxx. There shall be a Vice-President who shall have the same qualifications xxx." (Sections 2 and 3) This is exactly what the question is trying to explore.

SC DECISIONS AS PART OF THE LEGAL SYSTEM? Nowhere in the 1987 Constitution does it say that decisions of the Supreme Court or lower courts form part of the legal system. In fact, it is even safe to say that there is no direct constitutional mandate for the President or Congress to respect the decisions promulgated by the Judiciary.

Some of the questions and points of clarification raised on the Facebook page are along the lines of: "How can there be remedy against the wrong (unconstitutional) decision of the Supreme Court if it is the final arbiter of what the law means and if its decisions form part of the legal system?"

The question can be broken down into two parts: (1) the final nature of Supreme Court's decision powers; and (2) judicial decisions forming part of the legal system.

THE FINAL NATURE OF SC'S DECISION POWERS. The Supreme Court is not final because it is infallible; it is infallible because it is final. And because its decisions are final, even if faulty, the Supreme Court has had much occasion to mention that, "There must be every energy expended to ensure that the faulty decisions are few and far between." (Justice Robert Jackson)

Although the Supreme Court's decisions are final and, (allegedly because it will be discussed below that there are, actually, remedies), no other court exists to review its rulings, it must be emphasized that this rule does not mean that its decisions are always correct and constitutional. It is only a guarantee that public policy is maintained that there is an end to every litigation.

PART OF THE LEGAL SYSTEM. Yes, this is an oft-repeated maxim in law school that judicial decisions interpreting or applying the law or the Constitution shall form part of the legal system. However, most law students forget that it is not the Constitution that dictates this but Article 8 of the Civil Code of the Philippines.

It can be recalled that the President implements the law and Congress write the law. Since the Civil Code, a law, mandates respect for and adherence to judicial decisions, the President has no choice but to implement them. However, we should learn from history and the case of Dred Scott v. Sandford, a US Supreme Court case that declares unconstitutional the freeing of the slaves which was perceived as a deprivation of property without due process of law, then US President Abraham Lincoln opposed the High Court's ruling, citing it as erroneous and advocating for its reversal.

Without Article 8 of the Civil Code, the President can easily dodge Supreme Court decisions, although a strong argument can be made on the basis of separation of powers and co-equality among the Three Great Branches. In short, the President's compliance with judicial decisions and Congress' respect therefor are constitutional traditions, not direct and positive constitutional commands.

ACTUALLY, THE PRESIDENT AND CONGRESS CAN INTERPRET THE CONSTITUTION. Contrary to popular belief, it is not only the Supreme Court that interprets the law. Of course, the Highest Court is supposed to have the final say in any issue regarding what the law means and how a controversy should be settled in light of the law and the established facts. However, in the Congress' exercise of its plenary power of legislation, it makes an interpretation not only of the law being crafted but also of the Constitution. Congress' writing of the law is informed but its own interpretation of the policies and rights in the fundamental law.

On the other hand, the President, while exercising its powers of implementation and other powers, also makes an interpretation of the law sought to be enforced. The Presidency also makes its own interpretation of what the law seeks to achieve and how based on its own reading thereof and fed by its own understanding of constitutional law. Therefore, when the President and Congress exercise their constitutionally-allocated powers, their interpretation of the law comes first and, if wrong, (it is hoped) gets corrected by the Supreme Court via its power of judicial review.

RE-LEGISLATION AS THE REMEDY. It is proposed by many followers, who attempted to answer the question, that the remedy is re-legislation. In sum, if the Supreme Court declares a law void but such decision is wrong, Congress should enact a law to correct what it perceives to be error on the part of the Judiciary.

What is overlooked here is the case of Sameer v. Cabiles (G.R. No. 170139, August 05, 2014). In said case, it was held: "[W]hen a law or a provision of law is null because it is inconsistent with the Constitution, the nullity cannot be cured by reincorporation or reenactment of the same or a similar law or provision. A law or provision of law that was already declared unconstitutional remains as such unless circumstances have so changed as to warrant a reverse conclusion."

In Sameer, a provision of law that was earlier declared unconstitutional by the Supreme Court in Serrano v. Gallant (601 Phil. 245, 2009) was reenacted and reincorporated into a new law that took effect in 2010. (Section 7 of Republic Act No. 10022)

From our jurisprudential history, it can be predicted that re-legislation would be a weak remedy because the Supreme Court can easily strike down the law as unconstitutional the second, third, etc. time around. This would result in a tripartite ping pong wherein Congress writes a law, the Executive implements it, the Supreme Court declares it void, the Executive stops implementing it, Congress re-writes, it takes effect again, the Executive implements it again and the Supreme Court declares it avoid again, ad nauseam.

Moreover, re-legislation is only a (weak) remedy if the decision of the Supreme Court affects a statute or a Presidential issuance or action. It would be difficult to place within a hypothetical scenario in which the Supreme Court declares valid the election of a Japanese national to the Vice Presidency.

MOTION FOR RECONSIDERATION. Many of those who attempted to answer the question venture the guess that the remedy would be a motion for reconsideration with the Supreme Court. 

Under Rule 15, Section 3 of the Internal Rules of the Supreme Court, the Court shall not entertain a second motion for reconsideration, except in the higher interest of justice, and before the finality of the decision being assailed. Higher interest of justice will prevail if there is showing that the "assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties." (Adm. Matter No. 10-4-20-Supreme Court, Rule 15, sec. 3)

The general rule is that no motion for reconsideration is allowed in the Supreme Court. Even if one wants to avoid of the exception, there is a need to show that the assailed decision is (1) legally erroneous AND (2) patently unjust. These two (2) elements are very difficult to show, aggravated by the natural tendency of the (members of the) Court to admit that its decision is wrong and unconstitutional.

IMPEACHMENT AS THE REMEDY. It is humbly submitted that the remedy is impeachment under Section 2, Article XI of the 1987 Constitution. It says: "The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment."

The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (Section 3, Par. 1) The Senate shall have the sole power to try and decide all cases of impeachment. (Par. 6)

As mentioned above, Congress has its own interpretation of the Constitution. If it thinks that the Supreme Court decided a case unconstitutionally, the House, by a vote of one-third of all its members, may impeach and the Senate may convict the Justices who are behind the unconstitutional decision.

For example, if, in the case of XXX v. YYY, the Supreme Court declared valid the election, oath and assumption to office of a Japanese national (not a natural-born Filipino) who ran for Vice President by a vote of ten to five. Obviously, this is unconstitutional.

The ten Justices who voted to declare the above valid may be impeached and removed from office after Senate's decision to convict. This will vindicate the five who opposed the majority opinion.