eaching With Documents: Constitutional Issues: Separation of Powers

Background
It is safe to say that a respect for the principle of separation of powers is deeply ingrained in every American. The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches so that each branch checks the other two. Even when this system thwarts the public will and paralyzes the processes of government, Americans have rallied to its defense. At no time in this century was the devotion to that principle more vigorously evoked than in 1937, when Franklin Roosevelt introduced a plan to increase the number of Justices on the Supreme Court. The conflict set off by the President's plan is more understandable when viewed in the historical context of expanding judicial power as well as in the contemporary context of pro- and anti-New Deal politics. In the early national period, the judiciary was the weakest of the three branches of government. When Chief Justice John Marshall established the principle of judicial review in MarburyMadison by declaring an act of Congress unconstitutional, he greatly strengthened the judiciary. Even though the high court exercised this prerogative only one other time prior to the Civil War ( Dred Scott v. Sanford), the establishment of judicial review made the judiciary more of an equal player with the executive and legislative branches. After the Civil War, the Court entered a phase of judicial activism based on a conservative political outlook that further enhanced its own power. In accepting the view that the 14th amendment should be interpreted to protect corporations, the Court struck down laws that protected workers, such as minimum wage laws and laws prohibiting child labor. Critics of the Court's stand, including Justice Oliver Wendell Holmes, argued that these decisions were not based on the Constitution but upon the laissez-faire theory of economics. By 1937 the Court was widely regarded by the public as an enemy of working people. This sentiment was exacerbated by the Great Depression. In 1935-36, the Court struck down eight of FDR's New Deal programs, including the National Recovery Act (NRA) and the Agricultural Adjustment Act (AAA). Public antijudicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional

amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional. FDR remained silent, hoping that the antijudicial public sentiment would continue to grow without his having to enter the fray. He avoided any direct references to the Court in the 1936 election campaign. After his election victory, however, he submitted to Congress early in February 1937 a plan for "judicial reform," which forever came to be known as his attempt to "pack" the Supreme Court. Given Roosevelt's record for legislative success, it is interesting to discover why this plan to reconstitute the Court with Justices more favorable to the New Deal backfired. Franklin Roosevelt and his Attorney General, Homer Cummings, had considered several options. They could have attacked the issue of judicial review head on, as Congress's proposed amendments had sought to do, but they chose not to, perhaps anticipating the public's attachment to the idea of the judiciary as the guardian of the Constitution. Instead, they chose to change the number of Justices on the Court, which had been done six times since 1789. Their plan had a different twist, however, for it proposed adding a justice for every justice over the age of 70 who refused to retire, up to a maximum of 15 total. This proposal was all the more appealing because Justice Department lawyers had discovered that the very same idea had been proposed by Justice James C. McReynolds, one of the most conservative justices then sitting on the Court, when he had been Wilson's Attorney General in 1913. The administration could not resist the appeal of such irony, and without consulting Congress, the President and his New Deal aides blundered into one of the biggest political miscalculations of their tenure. By masking their true intentions, they created a split within their own party from which they never fully recovered. It was expected that the Republicans would cry foul, but when the chairman of the House Judiciary Committee, Democrat Hatton Sumners of Texas, announced his opposition, the plan was as good as dead. Further resistance to the plan developed in Congress as the Court began a reversal of its previous conservative course by ruling in favor of such legislation as then National Labor Relations Act and the Social Security Act. Congressmen urged the White House to withdraw the bill, but confident of victory, FDR refused to back down. The cost

was the alienation of conservative Democrats and the loss of the fight in Congress. Letters poured into the White House and the Justice Department both attacking and supporting the President's plan. Many of the letters of support came from ordinary citizens who had worked in industries hurt by the Great Depression. The Worker's Alliance of Kalispell, MT, wrote, "We consider that Recovery has been delayed materially by the dilatory action of the Supreme Court. . . . An immediate curb on the Supreme Court is of utmost importance, then an amendment to put it in its proper place would be well and good." But others, most notably the legal establishment and the press, thought that the Supreme Court was already "in its proper place." One of the most outspoken members of the press was the Rochester, NY, newspaper publisher, Frank Gannett. Our study document (99K JPEG) is a letter sent by Gannett to the Office of the Solicitor in the Justice Department and then referred to the Attorney General. Like many others in the file, it expresses the concern that the real issue is not judicial reform but the continued expansion of executive power. {Atext version of study document is available.} Even those who trusted Roosevelt, and who believed in what the New Deal was trying to accomplish, were wary. The following excerpt from a telegram to President Roosevelt is typical. Please watch your step while attempting to curb the powers of the honorable Supreme Court of the United States. Such action may be in order while so able a person as your excellency may remain in the president's chair but please let us look to the future when it might be in order for the citizenship of our great country to look to the Supreme Court for guidance which we might justly require. This month's document and the others quoted here can be found in the records of the Justice Department, Record Group 60: Correspondence of the Attorney General, case file 235868. "separation of powers" The legislative power shall be vested in the Congress of the Philippines The executive power shall be vested in the President of the Philippines The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. (Phil. Constitution: Art IV, Sec. 1; Art. VII, Sec. 1; Art. VIII, Sec. 12) Thus provides the 1986 Constitution of the Republic of the Philippines without expressed mention of the so called Separation of Powers which is however strongly presumed as a republican principle. In other words, just as the said principle is the fundamental premise of democracy, the effective bundling of both the legislative and

judicial powers in the executive power is the reality actualized by authoritarianism, totalitarianism or dictatorship. This is when the maxim of Absolute power corrupts absolutely becomes a lamentable reality. The Philippines, its people in particular, is not a stranger to such socio-political transit from freedom to serfdom, from self-determination to subjection. The two long decades of Martial Law is not only well recorded in Philippine History but also much remembered by most of the Filipino elderly. While many of the Martial Law mortal victims are already all gone to the hereafter and beyond one of whom is in fact proclaimed a national hero those still counted among the living retain the memory of the big atrocities and the horrible memories of the long Martial Law Regime in the Country. It is definitely not something appealing much less delightful to perceive and note that the ruling administration appears to be more and more inclined to nullify the principle of Separation of Powers. Instead, the executive power exhibits a propensity to invade not only the legislative but also the judiciary powers in the exercise of its seeming majestic reign. In other words, Malacanang appears to have its far-reaching tentacles gradually but surely capture a good number of key public officials in the two other arms of governance to the fear or horror of a good number of people. There is even the saying going around that What Malacanang wants, Malacanang gets! precisely on account of the non-observance of the Separation of Powers through its well-rewarded and well-known strong allies and faithful followers in Congress and in the Courts of the land. That is possibly why all options or alternatives are on call ultimately in order to favor someones tenure of power to be forever and ever if such were possible though much censurable. In such a dismaying scenario, it is however both inspiring and consoling to take cognizance of the perception that up to this writing at least, there are still some SC Justices who make judgments according to law and jurisprudence. By June and specially by November this year, the SC landscape could drastically change.
Angara v. Electoral Commission Facts : Petitioner Jose A. Angara and the respondents Pedro Ynsua, Miguel Castillo, and Dionisio Mayor were candidates voted for the position of members of the National Assembly for the first district of Tayabas. : On Oct. 7, 1935, the provincial board of canvassers proclaimed Angara as member-elect of the National Assembly and on Nov. 15, 1935, he took his oath of office. : On Dec. 3, 1935, the National Assembly passed Resolution No. 8, which in effect, fixed the last date to file election protests. : On Dec. 8, 1935, Ynsua filed before the Electoral Commission a "Motion of Protest" against Angara and praying, among other things, that Ynsua be named/declared elected Member of the National Assembly or that the election of said position be nullified. : On Dec. 9, 1935, the Electoral Commission adopted a resolution (No. 6) stating that last day for filing of protests is on Dec. 9.

: Angara contended that the Constitution confers exclusive jurisdiction upon the Electoral Commission solely as regards the merits of contested elections to the National Assembly and the Supreme Court therefore has no jurisdiction to hear the case. Issue : Whether or not the Supreme Court has jurisdiction over the Electoral Commision and the subject matter of the controversy upon the foregoing related facts Held : The Electoral Commission is acting within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent, Pedro Ynsua against he election of the herein petitioner, Jose A. Angara, and that the resolution of the National Assembly on Dec. 3, 1935, cannot in any manner toll the time for filing protest against the election, returns, and qualifications of the members of the National Assembly, nor prevent the filing of protests within such time as the rules of the Electoral Commission might prescribe. : Separation of powers states that each department of the government is supreme within his own sphere and jurisdiction but it does not follow that the three powers are to be separate because the constitution has provided a system of checks and balances to secure coordination in the various parts of the government. : Judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments : Although the Electoral Commission may not be interfered with, when and while acting wihtin the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restrictions Tanada vs. Cuenco Facts : Senate, in behalf of the Nacionalista party elected respondents Cuenco and Delgado as member of Senate Electoral Tribunal. : 2 seats originally for minority party nominees were filed by Nacionalista party to meet constitutional requirements over objection of senator Tanada. : Chairman of Tribunal appointed the rest of the respondents as staff of Cuenco and petitioner alleges that the nomination are unconstitutional because seats are supposed to be reserved for the minority party representatives. : Furthermore, as respondents are about to decide on Electoral Case No. 4 of Senate, the case at bar is a violation not only of Taada's right as CP member of ET, but respondent Macapagal's right to an impartial body that will try his election protest. : Petitioners pray for a writ of preliminary injunction against respondents, to be made permanent after a judgment to oust respondents is passed. : Respondents contend that the Court is without jurisdiction to try the appointment of ET

members, since it is a constitutional right granted to Senate. : Moreover, the petition is without cause of action since Taada exhausted his right to nominate 2 more senators; he is in estoppel. : They contend that the present action is not the proper remedy, but an appeal to public opinion. Issue : W/N court has jurisdiction over the matter Held : Yes the court has jurisdiction; The case at bar is not an action against the Senate compelling them to allow petitioners to exercise duties as members of ET. : The ET is part of neither House, even if the Senate elects its members. : The issue is not the power of the Senate to elect or nominate, but the validity of the manner by which power was exercised (constitutionality). : The Court is concerned with the existence and extent of said discretionary powers. : The Senate cannot elect members of the ET not nominated by the proper party, nor can the majority party elect more than 3 members of the ET. : Furthermore, the CRS has no standing to nominate, and the election of respondents Cuenco & Delgado void ab initio. : The appointment of the staff members are valid as it is a selection of personnel - a matter under the discretion of the Chairman. Tanada vs. Angara Facts : There was a World Trade Organization (WTO) agreement and petitioner was seeking to nullify the ratification of the Philippines on it. : WTO opens access to foreign markets, especially its major trading partners, through the reduction of tariffs on exports, in agricultural and industrial to provide new opportunities for the service sector cost and exports and more investment in the country -- These are the predicted benefits as reflected in the agreement and as viewed by the signatory Senators, a free market espoused by WTO. : Petitioners believe that WTO limits the economic sovereignty and the legislative power, also that the Filipino first policy of the constitution was intervened. : Petitioners questioned the acts of the respondents (senators) in signing the agreement. Issue : Whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Senate in giving its concurrence of the said WTO agreement. Held : Petition dismissed for lack of merit. : Principles of state policy - adopts the generally accepted principles of international law as part of the law of the land.

: Doctrine of incorporation - country is bound by generally accepted principles of international law, which are considered automatically part of our own laws. : In WTO, the sovereignty of the state is not absolute because it is commercial relations among other nations. : Senate validly exercised its authority and to determine whether such exercise is wise, beneficial or viable is outside the realm of judicial inquiry and review. : The act of signing the said agreement is not a legislative restriction because WTO allows withdrawal of membership if its a political desire of a member. : It should not be viewed as a limitation of economic sovereignty because WTO remains as the only structure for multilateral trading and for the development of international trade law.

Sanidad v. Commission of Elections Facts : Petitioners questioned the constitutionality of the presidential decree calling for a referendum-plebiscite to abolish the National Assembly (Marcos regime) and replacing it with Batasang Pambansa (legislative) through constitutional amendment. : Petitioners further alleged that in 1935 and 1973 constitution, no grant for the president to propose amendments to the new constitution. : Solicitor General argued that the question at bar was a political one, lying outside the domain of judicial review. Held : Petition dismissed. : There is no judicial question Ratio : If the Philippines is in crisis, governmental powers are concentrated in the president. : Presidential exercise of legislative power is a valid act in times of martial law; it is within the constitutional and legal bounds of the president to assume the constituent power of the national assembly. : No reason of not validly discharging the function of the assembly, to propose amendments to the constitution. : SC rejected the contention of the Solicitor General that the issue was a political one. : Political questions are associated with wisdom, no legality of an act. : If the controversy refers to the validity of act, it is justiciable or nonpolitical. : Whether the amending process confers on the president the power to propose amendments, is a justiciable question; the actuation of the president would be brutum fulmen. (Void judgment)

Casibang v. Aquino Facts : Respondent Remigio Yu was proclaimed elected mayor of Rosales, Pangasinan on 1971, by plurality of 501 votes : His rival, petitioner, filed protest against the election of the former w/ the court of first instance : For anomalies, terrorism, rampant vote buying, open voting on balloting, excessive campaign expenditures and other violations of the Election Code. : Political question theory respondent judge dismissed case Held : Reversed, order of dismissal set aside, Respondent court directed to immediately proceed with the trial : The only issue in the electoral protest case dismissed by respondent judge on the ground of political question is who between protestant herein petitioner and protester herein petitioner Osmena v. Pendatun Facts : Petitioner congressman Osmena, in his privilege speech made imputations of bribery against the President. : A special committee was created to investigate the truth on the charges of petitioner who refused to produce before the committee. : The special committee suspended from office the petitioner for serious disorderly behavior. : Petitioner asked the Supreme Court to annul the said resolution on the ground of infringement of his parliamentary immunity. Held : Petition dismissed. Ratio : House of Representatives is the judge of what constitutes disorderly behavior. : The courts will not assume a jurisdiction in any case which will amount to interference by the judicial department with the legislature. : Parliamentary Immunity; Judiciary shall not interfere with the legislature. Javellana vs. Executive Secretary Facts : Congress of the Philippines passed Resolution No. 2, which was amended by Resolution No. 4 of said body calling a Convention to propose amendments to the Constitution. : Resolution No. 2, as amended, was implemented by Republic Act No. 6132, and the 1971 Constitutional Convention began to perform its functions on June 1, 1971. : While the Convention was in session on September 21, 1972, the President issued Proclamation No. 1081 placing the entire Philippines under Martial Law. : The Convention approved its Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of the Philippines issued Presidential Decree No. 73, submitting to the Filipino

people for ratification or rejection the Constitution proposed by the Convention, and appropriating funds therefore as well as setting the plebiscite for said ratification or rejection of the Proposed Constitution : Charito Planas filed a case against the Commission on Elections on the grounds that such plebiscite and setting of guidelines and appropriation of funds should be lodged in the Congress. : On December 17, 1972, the President had issued an order temporarily suspending the effects of Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. : No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on January 15, 1978, be postponed until further notice ." : Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the proposed Constitution." : The main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to call a plebiscite and appropriate funds therefore, which Congress unquestionably could do : Petitioner filed an "urgent motion," praying that said case be decided "as soon as possible, preferably not later than January 15, 1973." : That a restraining order be issued enjoining and restraining respondent Commission on Elections, as well as the Department of Local Governments and its head, Secretary Jose Roo; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the National Ratification Coordinating Committee and its Chairman, Guillermo de Vega; and all other officials and persons who may be assigned such task, from collecting, certifying, and announcing and reporting to the President or other officials concerned, the so-called Citizens' Assemblies referendum results allegedly obtained when they were supposed to have met during the period : While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the President : On January 20, 1973, Josue Javellana filed a case against the Executive Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents and their subordinates from implementing any of the provisions of the propose Constitution not found in the present Constitution. : Javellana alleged that the President had announced "the immediate implementation of the New Constitution, thru his Cabinet and that they are acting without, or in excess of jurisdiction in implementing the said proposed Constitution upon the ground: that the President, has no authority to create the Citizens Assemblies; without power to approve the proposed Constitution; the President is without power to proclaim the ratification by the Filipino people of the proposed Constitution"; that the election held to ratify the proposed Constitution was not a free election, hence null and void."

Issue : Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question? Held : The court was divided on the following issues raised in the petition, but when the question of whether the petitioners are entitled to relief, six members of the court (Justices Makalintal, Castro, Barredo, Makasiar, Antonio and Esguerra) voted to dismiss the petition. : Concepcion, together Justices Zaldivar, Fernando and Teehankee, voted to grant the relief being sought, thus upholding the 1973 Constitution. :Six members of the Court, hold that the issue of the validity of Proclamation No. 1102 presents a justiciable and non-political question. : Justices Makalintal and Castro did not vote squarely on this question, but, only inferentially, in their discussion of the second question. : Justice Barredo qualified his vote : Justices Makasiar, Antonio, Esguerra, or three (3) members of the Court held that the issue is political and "beyond the ambit of judicial inquiry."

Isagani A. Cruz THE DOCTRINE of separation of powers, a major principle in the presidential system, is misunderstood by many laymen, who tend to interpret it literally as importing the exclusive authority of the three major branches of the government in the discharge of their respective powers. This is a mistake insofar as it suggests hostility among the said departments which must deal with each other at arms' length in jealous protection of their assigned functions. As President Franklin D. Roosevelt said, "The letter of the Constitution wisely declared a separation, but the impulse of common purpose declares a union." Our own Justice Jose P. Laurel, whose expertise in Constitutional Law in this country has yet to be surpassed, declared that the keynote of the conduct among the three departments should be not independence but interdependence. One of the purposes of the doctrine is to promote efficiency, which can be attained if each of the departments can perform its functions without interference from the other departments. Thus, it is Congress that enacts laws, it is the President who enforces them, and it is the Supreme Court and the other courts that interpret them. Negatively stated, the Legislature cannot execute or interpret the laws, the Executive cannot enact or interpret them, and the Judiciary cannot enact or execute them. However, this separation cannot be enforced with "pedantic rigor" or given "doctrinaire application," according to Justice Frankfurter. The reason is that some powers defy exclusive classification because, as Justice Holmes observed, "The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in penumbra shading gradually from one extreme to another." To take just one example, the power of investigation can be validly exercised by the President against a suspected criminal, by Congress in the consideration of a proposed bill, and by the Supreme Court to resolve the validity of a challenged contract. There is a gray area in the Constitution that permits the valid exercise of the same function by all the three principal branches of the government as part of their major powers. Assuming no such penumbra, the doctrine of separation of powers is still subject to the corollary principle of checks and balances. This enables any of the three

departments to protect its independence by preventing encroachments on its jurisdiction and to ensure proper respect for the rule of law by correcting mistakes or abuses committed by the other departments in excess of their lawful authority. To illustrate, the Senate may refuse concurrence to a treaty it believes to be inimical to the country's interest; thus repudiated, the President may re-name the document as an executive agreement and implement it without such concurrence. Congress may limit the jurisdiction of the courts, and the President may influence and intimidate them with his power of appointment and promotion. The Judiciary may be regarded as the weakest of the three departments, but it may revoke as unconstitutional the even unanimous act of Congress and the President as in, say, the proclamation of martial law. While it is true that the Constitution should be interpreted according to the clear intention of the framers, this admonition has been scornfully rejected by Executive Order No. 464 where President Arroyo has unlawfully limited the power of legislative investigation over executive officials, who are now banned from appearing before Congress without her permission. The order is based on that part of Art. VI, Sec. 22, providing that department heads may appear before either House of Congress "upon their own initiative, with the consent of the President" as if that were the sum and substance of the rule. The rule may be valid as long as it applies only to "the heads of department" but certainly not to other subordinate officials, like members of the Armed Forces and other inferior agencies. Worse, it also intentionally omits the other part of the section providing that the appearance of department heads may also be made "upon the request of either House of Congress," which does not require presidential permission. The pertinent part of Sec. 22 provides that "the heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments." Note the disjunctive "or" that rejects President Arroyo's arrogant argument that all appearances of executive officials before any legislative investigation, including those requested by Congress, require her indispensable consent. Her other desperate contention is that all such appearances without her consent are covered by "executive privilege," a lame excuse disallowed by our highest tribunal in at least two previous cases. Such defense was dismissed by the US Supreme Court when it was invoked by President Nixon during the Watergate scandal, but our own Supreme Court may have other ideas about President Arroyo.