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Constitutionalism & Mimicry: A Post-colonial critique of judicial review in the Philippines (Hilbay)

Brief outline: Colonialism can manifest itself in the form of a textual mimicry, as evident in the features of various Constitutions of the Philippines from 1935 to the present. According to Hilbay, all Phil Constitutions bore the marks of the US Constitution. But while the fact of appropriation is a reality that must be ingested by every post-colonial society, both the extent and function of mimicry are open to analysis and reevaluation, especially when presentday effects are on the table. The aim of the article is to articulate some important links between the US & Phil in relation to the way the latter has actively appropriated constitutional rhetoric of the former with the hope of unraveling some insights and problems with the way the Phil SC has adopted foreign doctrines. The author questions the double standard of judicial review applied by American courts a template for evaluating constitutional claims in the Phils (this double standard of judicial review finds its clearest formulation in the case of US vs Carolene Products). The main problem with the colonial mimicry is the rhetorical dissonance: lack of fit between the normative linguistic template for adjudicating constitutional issues and the constitutional history that informs the institutional practices of a community. The double standard of review is not only incompatible with the present Phil Constitution, it: (1) incorporates non-liberal norms that are alien to American constitutional law discourse and (2) it has the effect of binding the courts to the exigencies of Phil democracy as the use of inappropriate doctrinal tools crowds out and makes invisible problems such as creeping authoritarianism, corruption, etc. The Politics of Judicial Review: The power of review is an optional weapon: it is fundamentally subjective and therefore a political matter. This is so because the preliminary decision to decide or not to decide a particular case is a powerful signal to the community of what is important enough for the court, or what the court thinks is in need of legal articulation. Ultimately, judicial review as a tool for regulating affairs of citizens and governments rests on the judges view of their place in society. In the US, most constitutional cases involve either (1) tug-of-war between the government of the US and the various state governments or (2) intertwined debate over liberty, property rights, and self-reliance on one hand and the role of market economics and the governments function of maintaining the system of property on the other. Such themes has never been part of Philippine political discourse due to plain differences between the Phils and US (ex. Phils is a unitary state). Hence, simply put, in the process of borrowing, something is LOST IN TRANSLATION. C

Furthermore, colonialism affects not merely language deployed by judges but also the concepts that construct their vision of politics. The purpose of this article is to provide students of Phil law with the opportunity to break away from colonial mindset and adopt a vision of the role of the judiciary that is more responsive to the present demands of Phil political life. Judicial Review and Political Revision: At any given stretch of time, institutions develop practices that become accepted and normal, if not canonical. Certain beliefs lose their status as normative claims and become accepted as descriptive accounts of reality. This status of institutions as human constructs unravels to impt characteristics: contingency and temporality. This makes transitional states (periods of instability or transformative/revolutionary moments) very enticing events for those who wish to understand and articulate basic assumptions that underlie any particular set of practices. An example of period of instability in the US is the Great Depression of 1930. Prior to the Great Depression, the dominant philosophy was that if people, as moral and economic agents, were at once free and selfinterested, then the role left for law was simple to police actions that impaired peoples ability to act as free and rational agents, and nothing more. The Great Depression made people question underlying policy. The realization brought about by the Great Depression, that so-called free markets could actually fail, made the electorate more open-minded and receptive to alternative solutions with immediate and real-life implications. For legislative and exec branches, the shift in philosophy can be achieved through law and policy. The case of the judiciary, however, being justices with life tenure who have been set in the old ways and who view their roles as protectors of present arrangement, are quite different. The problem arises when the judges traditional conception of their roles collide with the goal of other political branches to recalibrate social arrangements in response to emergencies. During the Great Depression of 1930, US SC impeded efforts of the exec/legis to recalibrate the economic policies by using arguments of due process clause, among others. By the 1940s, however, the SC eventually gave in to the efforts of exec/legis in setting out new policies. In the case of US vs Carolene Products1 (the most famous footnote in constitutional law), the US SC was seen as stabilizing its relationship with the other departments by limiting its jurisdiction in a way that solves the tensions brought about by the Great Depression. This is because ultimately, the appropriate role of the court is contingent upon its ability to fit within the political climate. Judicial Review as Colonial Tool: While Spain used religion as an excuse to conquer the Phils, the US legitimized their claim over the islands by sating that they were on a civilizing mission (recall: White Mans Burden). This civilizing mission was the promotion of a democracy focused on the establishment of the rule of law, which, in turn, embodied their conception and rights. 2 major

See page 17 of the article for the actual excerpt

areas of concern: (1) property rights and (2) free speech rights. 2 The role of the Phil SC was two-fold: (1) validate new property rules and (2) use the due process clause as the doctrinal tool to evaluate claims against diminution of property rights. Looking at the developments in Phil and US constitutional law during the same period, one will see a wide divergence in the way such cases were evaluated by Phil and US Courts. In the US, it was a period of strong concept of liberalism, free trade, etc. The Philippines, however, did not parallel these developments: there was regulation of property, etc. Hence, the US SC was able to rationalize strong regulatory authority of the colonial administration which, coupled with the equally deferential attitude of the court to the chief executives, made the judiciary a rubber stamp of overtly political organs of the colony. Through this strategy, the court effectively became the legitimizing organ of an apparent democratic but operationally authoritarian regime. One sees: (1) the use of separation of powers to shield governor-general fro inquiry; (2) conviction of artists and dissidents while simultaneously extolling the value of free speech; (3) prosecution of communists engaged in speech despite guarantee of freedom of association; (4) use of police power to justify preferential status to American businesses over others (THESE ARE ALL TRANDITIONAL STRATEGIES OF DOMINATION AND EXACTION BY THE COLONIZERS) The foundation to promote the self-serving goals of the US colonizers rests on the ff principles: (1) lack of independence of the judiciary from exec/legis (2) manipulative use of foreign jurisprudence to justify extravagane use of public power by the exec/legis. (3) Inability/refusal to localize constitutional discourse, that is, the failure to particularize the application of constitutional doctrine to normative demands of Philippine politics. The problems of History, Culture and Text* Unfortunately, the search for a theory that can provide a normative framework for the Phil SC to exercise its powers is a project that has yet begun. What currently passes as frameworks are: (1) CJ Panganibans Liberty and Prosperity 3 (2) What one can gather from Phil jurisprudence (which relies heavily on US vs Carolene Products doctrine) The problem with the 2 frameworks is that while they work for some cases, they also pose problems that cannot be addressed because of theoretical constraints of the courts borrowed paradigm. These are the problems: (1) History: The Carolene Products framework is a politicallynegotiated compromise between US SC and other branches of US govt during the Great Depression. The role assigned to the US SC in the famous footnote is not necessarily one ought to be played by other courts simply because they follow the same principle of separation of powers. This means that while borrowed models will

The article enumerated various cases of property rights and free speech in which it was shown that the Phil SC decided cases in a double standard manner. See page 24-32.

See page 36 *this part is kind of vague to me

always be able to respond to SOME targeted concerns, there is always perennial danger of over/under-inclusion. (2) Culture: Tension between the police power-friendly type of constitutionalism that was cultured in the Philippnes and the liberal bias of the Carolene Products model of constitutional adjudication. (3) Text: Recall the case of La Bugal Blaan Tribal Association Inc v Ramos where the court reversed itself in a later ruling, allowing the exploitation of natural resources by foreign corporations. Because the majority followed the Carolene Products doctrine and discounted the nuance added by the Constitution, it was able to dismiss contrary arguments for reading the Constitutions textual mandate as parochial.