Political question

In my more than 40 years of being a lawyer, I have never seen a busier Supreme Court than the present one, more specifically the Supreme Court after the 1987 Constitution. So many controversial issues have seen their way into the halls of this highest court in the land which in the past should have been initially resolved by the lower courts. Government contracts and transactions of public interests have been brought for scrutiny at the first instance before this supposed court of last resort by just about any individual or juridical entity having doubts as to their factual validity and regularity. The emerging belief, though erroneous, is that the Supreme Court’s approval is required in government deals or in any government action; a belief that has engendered the tendency to run to the Supreme Court for all sorts of grievances or disagreements with certain government decisions. A case in point is the recent filing by two lawyers of a petition questioning the controversial appointments of two commissioners to the recently vacated posts in the Comelec.

To be sure, the Supreme Court seems to be "busier" now not because it wants to dip its finger into every pie. It really has more work to do now because the 1987 Constitution expanded its power of judicial review not only to settle actual controversies involving rights which are legally demandable and enforceable but also 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 (Section 1, Article VIII). The new provision clearly "did not just grant the court the power to do nothing". It gave the court greater prerogative to determine what it can do to prevent such grave abuse of discretion on the part of any branch or instrumentality of government (Estrada vs. Desierto 353 SCRA 491). But can the Supreme Court use this expanded power to review the presidential power to appoint, particularly of the two Comelec commissioners?

Under the "political question" doctrine arising from the principle of separation of powers, the Judicial Branch cannot decide questions "in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government" (Tañada vs. Cuenco 103 Phil.1068). In the matter of the power of appointment, there is no question that it is executive in nature (Gov’t vs. Springer 50 Phil. 259). It is essentially a discretionary power of the president performed according to "his best lights". (Luego vs. CSC 143 SCRA 327). The selection of the appointee–taking into account the totality of his qualifications, including those abstract qualities that define his personality – is the prerogative and a matter addressed solely to the discretion of the appointing authority (Lapinid vs. CSC 197 SCRA 106). Thus both the Luego and Lapinid cases categorically declare that "this is a political question involving considerations of wisdom which only the appointing authority can decide".

The 1987 Constitution has indeed limited the scope of the political question doctrine when it expanded the power of judicial review. Thus in the case of the president’s appointing power, judicial review may be done if grave abuse of discretion amounting to lack or excess of jurisdiction has been committed. This means that the president’s exercise of the discretionary power to appoint according to his best lights is subject to the condition that the appointee "should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred" (Luego, Supra). If he does not, then the appointment may be questioned as a grave abuse of discretion.

In the case of the two Comelec Commissioners, there is clearly no grave abuse of discretion, not even any abuse of discretion. It is unquestionable that the President has the power to appoint them (Sec.1[2] Art. IX C, Sec. 16, Art. VII). Apparently, nobody has also questioned their qualifications for the position fixed by the Constitution (Sec.1[1] Art. IX C). Questions have been raised only as to their character and personality and their alleged partisan inclinations which have nothing to do with the minimum qualification requirements for the position. The Supreme Court should therefore junk the petition for it merely raises issues dependent upon the wisdom, not legality of their appointment. The wisdom or folly of their appointment, or any appointment for that matter, is the sole responsibility of the President to the sovereign people. This is purely a political question.

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