In an earlier post I wrote about Philippine political dynasties, I argued for the adoption of an anti-dynasty law that would bring into effect Article II, Section 26 of the 1987 Philippine Constitution, which states that “[t]he State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.” Since the Philippines gained its independence, political dynasties have dominated national and local government—70% of the last Congress, for example, belonged to a political dynasty. Because these families have maintained an effective oligarchy over the country for decades, they can easily abuse their discretion and commit corrupt acts without consequence.

While the Framers of the 1987 Constitution recognized the danger these elite families posed to fair governance and their propensity to engage in corruption, the Supreme Court has found that the constitutional ban on dynasties is not a self-executing provision. In May 2014, for the first time in history, an anti-dynasty bill made it out of committee and was sponsored before the House plenary. In his final State of the Nation Address, President Noynoy Aquino urged Congress to finally pass an anti-dynasty law. Politicians in Congress, however, have since blocked efforts to pass such a law. By October 2015, the Senate President publicly announced that no anti-dynasty law would be approved before the May 2016 election. Despite my hope that the recent bill would result in a new law at last, this outcome is not surprising. Political dynasties have controlled the majority of Congress for decades, and numerous politicians seeking office in this year’s election would have been prohibited from running if the law had passed.

Now the results of the May election are in, it looks as though Congress will continue to be dominated by dynastic politicians. President-elect Rodrigo Duterte’s stance on political dynasties is currently unclear, although he himself belongs to a political dynasty. Given this, legislative action may simply be out of reach for the time being. One interesting question is whether the courts could intervene to bring the constitutional ban into effect. Doing so would be a radical departure from past practice, and would require rethinking certain core judicial doctrines, but might be nonetheless be legitimate under the circumstances.

The Supreme Court has time and again indicated its unwillingness to compel the legislature to act–even when the legislature’s inaction violates a constitutional duty–on the grounds that such judicial intervention would violate separation-of-powers principles. Thus, the court adhered to early rulings that the court cannot compel the legislature to perform duties that are purely legislative. Most notably, in its 2002 decision in Montesclaros, et.al. v. COMELEC, the Supreme Court held that it lacks power to dictate the object or subject of bills that Congress should enact into law, because “[t]o do so would destroy the delicate system of checks and balances finely crafted by the Constitution for the three co-equal, coordinate and independent branches of government.” This position has repeatedly stymied the efforts of those who have tried to use the court system to compel Congress or the Commission on Elections (COMELEC) to enact legislation implementing the ban on political dynasties. (For example, the Court rejected a 2012 petition filed by former Vice President Teofisto Guingona, Jr., which argued that Congress had wantonly neglected its constitutional duties by failing to enact an enabling law for over 25 years.)

The Court’s hesitation to order Congress to legislate is understandable as a general matter. There are, however, critical ways in which the political dynasties issue may be different, and may justify the Court adjusting its separation of powers analysis. Here are some approaches the Court could consider if it were to intervene and limit the power of political dynasties:

• First, the Court could argue that intervention is justified because the system of checks and balances is itself so corrupted by the continued success of political dynasties. Political dynasties are dangerous because they elevate family ties over intra-branch loyalty, which compromises the oversight controls different co-equal branches have over one another. For example, impeachment proceedings in Congress over an executive official may be undermined if that official has a child or spouse serving in the Senate. The Framers arguably recognized this need for recalibrating checks and balances. Requiring Congress to comply with its duty to enact anti-dynasty legislation ensures the “delicate system” in fact does its job.
• Second, the Court could say that the political dynasties issue is different because the Court would not be ordering Congress to act on the basis of what the Court believes is the appropriate subject of legislation, but what the constitution names as necessary object of legislation. Unlike in Montesclaros, where Congress had the discretion to decide whether or not it would pass any legislation at all, Congress is constitutionally mandated to prohibit political dynasties. The Court could argue that a mandate in the case of political dynasties does not constitute usurpation of legislative power by the judiciary because the Court is not imposing any legislative agenda of its own.
• Third, and related to the second point, the Court could find that the word “shall” in Article II Section 26 mandates that Congress enact that law within a reasonable period of time so that the rights protected by the constitutional ban are in fact guaranteed. On this rationale, the court could issue a narrower holding that does not compel Congress to act, but simply declares Congress to have failed in its constitutional duty.

Admittedly, judicial intervention is highly unlikely, as it would require departing from recent precedent. A more realistic approach might be for the Court to instead play a gap-filling role by providing its own interpretation of political dynasties in order to rule on the eligibility of certain candidates to run for office. Such an interpretation could be changed by an act of Congress (and might motivate Congress to legislate to control the meaning of the term). The Court has attempted to define political dynasties in the past—in 2011, Justice Antonio Carpio defined them as a “phenomenon that concentrates political power and public resources within the control of a few families whose members alternately hold elective offices, deftly skirting term limits.” Such a definition, though less inclusive than the language of recent anti-dynasty bills, could disqualify members of dynasties from immediately succeeding their relatives in office.

Again, the problem of political dynasties in the Philippines is a drastic problem in need of drastic and perhaps unprecedented solutions, including ones that might not be desirable in other democratic systems. While I do not expect the Philippine Supreme Court to go so far as to compel Congress to pass the type of legislation I advocated for in my previous post, the Court could play a more limited role in ensuring that there is in fact equal access to opportunities for public service in Philippine government.