Thursday, November 24, 2005

Judicial review, people power and the blogosphere, revisited

(The following is an excerpt from the exchange between FEU Constitutional Law professor Edwin Lacierda, Philippine Daily Inquirer editorialist John Nery and myself in Newsstand, which took place between August 21 and 23, 2005. I’m just hoping John will take this repost as an exercise in fair quotation, as part of the continuing Charter change debate, or perhaps as a side commentary on the latest episode of the Garci saga, this time a petition to the robed sires for freedom from a congressional arrest warrant.)

x x x

EDWIN: Abe, while it is true that the SC and the Legislature are co-equal branches of government, the SC, though has never frowned on intervening albeit in gentle and courteous terms, especially when it deals with legality and not wisdom. It has done so in Francisco and in several landmark cases in the past.

Why? Because (a) nature abhors a vacuum - that is the abbreviated way of the SC reminding the legislature that sometimes, the House leaves their brains at the door and certainly, while it can define the rules for themselves, the House sometimes forgets that their acts are not in accord with the Constitution. We saw that in Francisco; (b) to paraphrase the late Justice Teodoro Padilla in Constitutional law cases which he often found himself in dissent with his other brethren: “Constitutional law is about power, not wisdom, policy or expediency.” The SC has the responsibility to define that powers enumerated in the Charter and as observed by long standing tradition are properly exercised by the pertinent branches of government.

As such, judicial power involves the power to settle acts or powers that may be at war with the constitution. This war always involves legality, never wisdom. And that is why the SC will intervene, if called upon, to determine the legality of its decision . . .

ABE: Edwin, first, re: the amended (impeachment) complaint. I don’t see any obstacle, constitutional or otherwise, to amend the Lozano complaint at this stage of the initiation of the impeachment proceedings. The Committee moto propio may amend the complaint anytime at its discretion. The Committee may also entertain additional complaints other than those already filed and thereupon decide to consolidate all of them in the Articles of Impeachment. This is so because the “initiation” is not yet completed; hence, the one-year bar is not yet in operation. It goes without saying that Pedro Ferrer’s Motion to Strike, based, among other things, on amendment of the complaint without leave of court, is way premature.

Now, if you examine Francisco (quite thoroughly I did here) it was precisely the SC who left their collective brains at the door. In fact, if they didn’t, the decision would have been a culpable (intentional) violation of the Constitution. The pertinent House impeachment rules were perfectly constitutional. Unfortunately, the “Brat Pack” congressmen were equally remiss and slovenly in keeping their gray matters together to argue more convincingly. Thus, the justices finding for the Chief as well as for themselves, UNCONSTITUTIONALLY declared the House rules in question unconstitutional. (Incidentally, the one-year ban is already over even assuming, arguendo, the Francisco ruling is not erroneous. So, if everyone, as GMA, is interested in the Rule of Law, there ought to be another impeachment, other than the pending one. In fairness to Chief Justice Davide, he should be allowed another opportunity to prove his innocence.)

In the main, the SC in Francisco was basically being TERRITORIAL, i.e., it claimed, quite gratuitously, that its province to interpret the Constitution is more expansive than Congress’ even on matters solely and exclusively vested in Congress and where the Constitution itself precludes judicial review. Francisco is such an amusing exercise of “judicial activism” - for a self-serving cause.

Your quote from Justice Padilla somehow affirms Justice Frankfurter’s view of constitutional interpretation. It “is not at all a science, but applied politics,” Frankfurter said.

EDWIN: Abe, I agree with you that the complaint can still be amended at this point. The Justice Committee is skating on thin ice if they do dismiss the amended impeachment complaint.

I guess the hearing in the Justice committee may all be a charade cloaked in legalities and technicalities so when Datumanong finally brings down the gavel, he will not be accused of denying due process to the other side. He may be accused with shallow reasoning and but I guess he already knows that.

Being a political process, impressing the public a semblance of fair play in the Justice Committee hearings is of primordial importance for the administration to avert a parliament of streets. And I think it unwittingly trapped the opposition to dawdle in details such that the pro-administration solons can justify they gave the opposition ample time to argue their points.

On the Supreme Court ruling in Francisco as being territorial: That is Darwin at work. And no matter how you feel an unfair or stupid a decision may be, they are the final arbiters of the law in our scheme of things. Hard cases really make bad laws.

But now that it is the season of charter change, any suggestions to change the status quo of your benevolent despots?

ABE: Edwin, a decision of the Supreme Court is final only if acquiesced in by the people.

Accordingly, the infamous Javellana v. The Executive Secretary, which declared that “there is no further judicial obstacle to the (Marcos) Constitution being considered in force and effect” ultimately failed the test of public acquiescence. So was the Dred Scott decision, where the U.S. Supreme Court had ruled that the “enslaved African race” is not within the contemplation of “all men are created equal” in America’s Declaration of Independence. And then despite the Philippine Supreme Court’s attempt in Estrada v. Desierto to demote People Power II to mere speechifying, most Filipinos believe that Estrada was ousted by popular revolt and not by the sleigh of “constructive resignation” pulled off by the Court. (A revolutionary People Power II would have the effect of rendering all the Court’s seats vacant.)

In the context of the larger Philippine society, People Power has served more than once as the social checks and balances of a flawed procedural democracy. It is the same force that today is being brought to bear upon the members of House Committee on Justice to conduct themselves, in the impeachment proceedings against President Arroyo, within reason and plain decency. Without the Great Beast intently watchful from the wayside, the Committee could casually get away with political murder.

Hence, the carnival atmosphere that Arroyo’s apologist, Alex Magno, bewails is in fact a welcome one. The educative as well as the participatory nature of the whole shebang attests to the vibrancy of Philippine democracy, something that’s waning or wanting in “mature” democracies such as that of the United States.

It is always a joy to observe that political capacities in the Philippines are as much explored in the buffooneries of text messages and the networked culture of the blogosphere as on a routine cab ride. In the Philippines, taxi drivers, as a rule of thumb, are democrats.

The sense that judicial activism is anti-People Power has been quite symptomatic in my previous comments. Impetuous resort to activism by the Supreme Court towards the language of the Constitution preempts the people’s right to keep or change the Constitution by themselves or through their delegates. Not being directly accountable to the people, the Supreme Court has the taller order to exercise restraint.

Now, how do we limit the reviewing itch of the justices? One option would be to ENUMERATE their powers. Another would be to require them to run for their offices just like the rest of our politicians.

In the equation of blame peddled by the media, the whipping boys as we all know are the “trapos” (the people’s representatives, fortunately or unfortunately). Insulated are the brethren in robes and the economic elites who by the way are no less political simply because realpolitik does take place in courtrooms as well as in boardrooms. One reason for this unequal treatment is that both the justices and the economic elites operate in their “arcane” realms.

When the Estate of media slackens (or is blindsided) in its supposed role to decode those other cryptic worlds, someone, some bloggers, have to pick up from the slacks.

EDWIN: Abe, I am not sure that an SC decision is final only if acquiesced by the people.

You may be right if you refer to moral acquiescence but legal acquiescence is final and requires no moral assent from the people.

Roe v. Wade is a case in point. Legally, it is settled law and all the states have acquiesced to the legality of abortion but morally, it is constantly being challenged especially in Red states.

Do we take Roe as not being final? If it is not final, can public hospitals disregard it by prohibiting abortion services in their wards? Obviously, at the risk of civil and criminal sanctions, they cannot. And that is where we come at the crossroads of the “what is legal is not necessarily moral and what is moral is not necessarily legal” argument. It is settled law until overturned by a contrary decision by the SC as what happened to the Dred Scott decision.

With reference to Javellana, while Chief Justice Roberto Concepcion had moral qualms about the 1972 Constitution proof of which he retired much earlier than the mandated age of retirement, the fact was the Marcos Constitution was the legally accepted charter for 15 years and quite obviously, even against those who opposed it, it was settled law.

Talking about Dred Scott, shouldn’t the Americans be amending their own charter considering that they consider Negros as three-fifths of a person?

With respect to people power, it is a potent moral force but I think it was not launched against this president because rightly or wrongly, the people have taken a pragmatic approach and not a principled stance on this current controversy. Hence, the ebb of people power.

With respect to the justices running for office, the SCOTUS justices do not run for office and they are appointed till death takes them or sickness strikes them. I think I am happier that there is a retirement age for our justices than the US system. And I am not sure that letting them run for office is a step in a better direction.

Incidentally, the 1987 Constitution enumerates the powers of the SC but then, they have been guilty of judicial legislation for so long that no one bothers to question them anymore.

When media writes about the weakest branch of government, it writes in reverent tones. And even if a journalist is lawyer trained, the same pitfall occurs. There ought to be a system, outside of legal journals and circles, where a lawyer or a journalist can honestly critique an SC decision without inviting contempt or disbarment. The SC will defend to death your right to free speech, so long as you don’t do an Alan Paguia on them.

ABE: Edwin, what I’m basically saying is that just because the Court has issued a “final” judgment, non-judicial actors or the people must suspend theirs. The judiciary leaves its footprints on society, no doubt. But vigilant citizenry must drive the “political” agenda of the courts. Hence, to safeguard its institutional turf, the judiciary must make accommodations with public opinion when it dabbles in policymaking. It has to be so because the judiciary is not the only participant in shaping constitutional values, or even if co-participation is acknowledged, the justices should not arrogate upon themselves that they are supreme among co-equals.

The suggestion then that the justices should campaign and run for their offices is more of a derision of their “trapo” behavior of late – which of course has not escaped your notice.

Under the Fourteenth Amendment (1868) to the U.S. Constitution, former slaves were granted citizenship and “equal protection of the laws.” The Amendment became the basis for claims of legal equality. Ironically, it is the same Amendment utilized by the US Supreme Court to accept the argument that corporations are “persons” and their money was protected pursuant thereto, and that paved the advance towards industrial capitalism, American-style (Shades of the Mining Law decisions?).

On judicial reforms in Cha cha, what I’m really advocating is that aside from the enumeration of judicial powers, there should also be express enumeration of the LIMITATIONS of those powers, such as judicial review shall NOT apply to:

1) Impeachment cases;
2) Political questions (“political questions” being clearly defined);
3) etc.

I have attempted to explain “the ebb of people power” once here.

EDWIN: Abe, one of the reforms I would encourage is to bring back the confirmation hearings of SC justices before the Commission on Appointments.

The Judicial and Bar Council has not served its purpose. The late Chief Justice Roberto Concepcion’s noble intent of the JBC to remove politics from the judiciary is honored more in the breach than in the observance.

Whereas, before, the Justices would have to play politics against a greater number of people, all one has to do now is to woo 7 or 8 members of the JBC.

But a comparison of the quality of jurists pre and post Marcos years seems to suggest that the confirmation process in the CA worked for the commonweal. You have justices then who were giants in the legal field and who were never involved in shenanigans.

It would have been unimaginable during the tenure of CJ Concepcion to have a Justice Purisima (Cesar Purisima’s dad) not recusing himself as Chief Bar Examiner where a nephew was taking the bar exams, or a Justice Hugo Gutierrez being accused of not actually penning his own decision in a high profile commercial case. The high standards of the bench have, over the years, been compromised and lowered and I think this was due in no small part to the Judicial and Bar Cabal.

Confirmation hearings offer the public the opportunity to expose, free for all, the warts and all of a justice-nominee. It would be better for nominees of sterling reputation and quality to stand the mettle of fire and come out confirmed rather than be confirmed in the hushed dark corridors of power. The process may be longer but since these justices are going to decide how the law will impact our daily lives, a lengthy debate is but a small price to pay.

Finally, if as you say, people power is a check on the flawed procedural democracy and on erring presidents, would you advocate the same people power overturning flawed SC decisions especially political ones? It has never been done in any jurisdiction since it will unsettle the very idea of judicial precedence and stability, but if parameters are carefully delineated, who is to say it wont work? If that happens, then our society will truly live out the “vox populi, vox dei” ideal in all 3 branches of government.

JOHN: I happen to share the view (and have written more than once about it) that the so-called weakest branch of government has in fact and in the last several years turned out to be the last true bastion of our democracy (vexing economic rulings very firmly aside).

ABE: John, I agree with Edwin that your observation is truer before Marcos bastardized the judiciary as an institution. Indeed, Marcos possibly ruined as much Filipinos of great standing, reputation and intellect as Hitler had done to many well-meaning Germans.

But before going further, some disclosure first. I am partial to People Power democracy. As such, at least theoretically, my court of last resort (in so far as the so-called three-branch interpretation of the Constitution is concerned) is Congress since it is the most representative of the three branches and the most accountable.

Such preference for greater deference to Congress (rather than the Courts, for instance) is influenced by the belief that democracy is a good deal authentic when ordinary citizens could exert more effective control over leaders through popular sovereignty and political equality.

Unfortunately, Congress is also the most demonized (the perceived undisputed breeder of “trapo” politics), its political clout being more diffused than those of the executive’s or the judiciary’s, and therefore for many practical reasons it could in fact be the weakest of the three against assaults of varied forms. (It was much easier for a nimble SC to hail the Chief in Francisco than for the “Brat Packs” congressmen to regroup for the critical 1/3 vote and ignore the ruling.)

JOHN: I doubt, however, if (Edwin and Abe) will disagree with what I will say next: When the high court directed Hyatt 10 leader Cesar Purisima, a non-lawyer and therefore not an agent of the court, to explain his opinion that political considerations entered into the SC decision-making on the VAT law, or be cited for contempt, I felt a chill in my non-lawyer’s bones.

ABE: First of all restraining the collection of tax through TRO upon such ground, for example, as property rights violation (e.g., excessive and confiscatory taxation) could be tantamount to issuing a TRO to Erap, against what was then his “wristband” policy of an all-out war in Mindanao, because bombing terrorist lairs would be “cruel and unusual punishment” or would violate the basic requirement of “presumption of innocence.”

Now, the SC is just overly thin-skinned (which is another way of saying it lacks self-confidence). “Men in public life may suffer under a hostile and unjust accusation,” Justice Malcolm said in U.S. v. Bustos; “the wound can be assuaged with a balm of clear conscience.” (If clear, yeah.)

The threat of contempt against Cesar Purisima has been just a classic case of constitutional collision of two great democratic ideals, freedom of expression and fair administration of justice. Constitutional litigation in many ways is not about black and white, or guilt or innocence. As in the Kapisanan case, constitutional law cases could often be a choice between values that could be both morally acceptable (public’s right to know versus the right of an accused to impartial trial). If the threatened contempt is not about clear and present danger against the independence of the SC, it could only mean that “truth hurts,” really.

What if Purisima (when still in power) ignored the contempt citation? Now, the harder question is: What if an irate Iron Lady (that’s emerging) ignores the TRO (given the supposed loss to the public coffer of P160 million daily and all the consequences of negative reactions from rating agencies), who will enforce the TRO? (Unless this is another “mock” battle, you know.)

EDWIN: One of the reforms I would encourage is to bring back the confirmation hearings of SC justices before the Commission on Appointments.

ABE: Got you. CA confirmation is as effective checks and balance mechanisms as: 1) ignoring SC rulings, 2) constitutional amendment, 3) court-packing, and 4) impeachment.

EDWIN: Confirmation hearings offer the public the opportunity to expose, free for all, the warts and all of a justice-nominee. It would be better for nominees of sterling reputation and quality to stand the mettle of fire and come out confirmed rather than be confirmed in the hushed dark corridors of power. The process may be longer but since these justices are going to decide how the law will impact our daily lives, a lengthy debate is but a small price to pay.

ABE: Also, when political parties are now formed on party programs or along ideological lines, confirmation is also a way of exposing the political values and proclivities of the nominee … when that day ever comes.

EDWIN: Finally, if as you say, people power is a check on the flawed procedural democracy and on erring presidents, would you advocate the same people power overturning flawed SC decisions especially political ones? It has never been done in any jurisdiction since it will unsettle the very idea of judicial precedence and stability, but if parameters are carefully delineated, who is to say it wont work? If that happens, then our society will truly live out the “vox populi, vox dei” ideal in all 3 branches of government.

ABE: One US SC justice once said (in a court case but I don’t recall now), the SC “are not final because we are infallible, but we are infallible because we are final” or words to that effect. The answer to that arrogance is People Power. What would have happened if the SC ruled in favor of Erap and against People Power II?

I will say it again: The decision of the Supreme Court is final only if the community accepts it is a well-reasoned one. Otherwise blogging like this will carry on. haha

x x x

Thursday, November 17, 2005

The sires who would be kings

The interesting debate on judicial review highlighted by Edwin Lacierda deserves some serious attention.

Attorney Lacierda who teaches Constitutional Law at Far Eastern University is on the side of preserving the powers of the Supreme Court as currently defined by the Constitution. “Let us . . . not tweak the Supreme Court powers,” he contends. “It is fine as it is right now.” Lacierda was actually reacting in particular to what he thought is a proposal from two members of the (Constitutional) Consultative Commission, Attorneys Raul Lambino and Rita Jimeno, to curb the Court’s powers in so far as reviews of government contracts are concerned.

On the other hand, my own opinions on related matters have been to the effect that any debate now on Charter revision should focus first of all on the powers of the High Court before any other proposals such as on the form of government or certain constituional economic provisions. My concern is that the activist, if radical, and certainly different (from those of Chief Justice Roberto Concepcion’s) interpretation of judicial review makes the power so breathtakingly limitless as to allow the justices to assume the role of Philosopher-kings in the guise of what the Court has already arrogated as its so-called expanded certiorari jurisdiction. The pertinent constitutional provision, which was proposed by Chief Justice Concepcion, reads:
Judicial power includes the duty of the courts of justice to settleactual controversies involving rights which are legally demandable and enforceable, and 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. (Article VIII, Section 1, paragraph 2 of the Constitution) (Italics mine.)
I have criticized at length here (and off the cuff in Newsstand) the Court’s new-found powers as directly contravening the tripartite system that is self-evident in the broader context of the Constitution and will not belabor it further for now except to quote in part what I wrote, thus:
To avoid the misplaced assumption of judicial supremacy as a necessary adjunct to the supreme character of the Constitution, which - when placed in the wrong hands - potentially could lead to the pitfall of judicial despotism, this so-styled expanded certiorari jurisdiction under the aforementioned provision of the Constitution must perforce be regarded as subordinate to the long-standing fundamental principle of coequality among the three branches of the government that presupposes reciprocal limitations. It is not enough indeed to pay mere lip service to such a constitutional value as the Court did in Francisco, for, without it being so engrained in the nation’s psyche, it would be too tempting for men and women to treat the Constitution as merely marking out the skeletal form of the government but they will flesh it out as they please.
I would like to talk briefly nevertheless about the historical perspective involving certain parallel issues that Edwin Lacierda has taken on with the two Consultative Commissioners, i.e., the supposed “obstructionist” meddling by the Court “in government contracts that have international consequences” and the Court’s vacillation on the Mining Law.

In American constitutionalism, there has been the so-called Lochner era (the period between the Lochner decision in 1905 and President’s Roosevelt’s New Deal in the 1930s) when the U.S. Supreme Court infusing free enterprise ideology into the due process clause stuck down nearly 200 pro-poor social and economic legislations. The Court invariably held the legislations as “meddlesome,” “unreasonable,” “arbitrary,” “capricious” and violated the individual’s right to enter freely into contracts. In Lochner, the SC invalidated a New York law regulating the length of the work hours of bakery workers. Business, seeing advocates for its interests in the activist robed sires, welcomed the expansive power of judicial review.

Now, if Professor Lacierda is right in his perception of the somewhat reverse course the Consultative Commission is heading as regards the “expanded powers of the Supreme Court,” would it be fair to infer that business in the Philippines is more comfortable entrusting in the long-haul its interests in the political branches (or perhaps the Parliament) rather the judiciary? But, is the trust in that case really a compliment?

Saturday, November 12, 2005

Just try a little bit harder

There are two developing narratives in the Philippines that may turn out as a watershed, flowing either backward or forward, in the country’s juridical and political history.

One is the “trial” of the charges against President Arroyo before the Citizens’ Congress for Truth and Accountability, practically the same charges thrown out by the House of Representatives dominated by pro-Arroyo partisans during the attempt to impeach her a couple of months ago.

The other is a presidential project to tamper once more with the Constitution in a fundamental way, that is, to shift from the present presidential-bicameral-unitary system to potentially a parliamentary-unicameral-federal form, through a Consultative Commission (for constitutional revision).

The Citizens’ Congress and the Consultative Commission are first a study in contrast by the way they have come about.

The Citizens’ Congress, for instance, is an initiative of Bukluran para sa Katotohanan, a broad coalition (for truth) of disparate groups which include civil society organizations, religious groups, political parties and students and other movements. The commonality of the coalition efforts appears to have emerged rather autonomously through collaboration and cooperation for the purpose of investigating the dismissed impeachment accusations against the President.

On the other hand, the Consultative Commission has been created or mandated via Executive Order 453 promulgated by President Arroyo; the members of the Commission, while supposedly to “come from various sectors of society,” are widely perceived to just follow the President’s bidding already spelled out in the order (i.e., to shift to a new government structure as above indicated and to “refocus” and “review” economic policies in the Constitution with a view to “[matching] the country’s vision for global competitiveness”).

It may be worth mentioning at this point that the present Constitution was drafted by another commission whose memberships, a cross-sectional representation of the reformist and progressive segments of the Philippine society, were a closer mirror of Bukluran’s rather than of the Consultative Commission’s.

It is also interesting to note that Arroyo did not run during the presidential elections held last year on any program that committed to revise or change the Constitution. By many accounts, Arroyo’s unexpected interest in revising the Constitution has been regarded as a designing political afterthought to deflect the cascading ouster momentum following the revelation of the “Garci tapes.” The controversial tapes might have recorded Arroyo’s direct participation in what majority of the Filipinos believe to be the grand conspiracy to alter the results of the presidential elections.

Still others have seen the charter change scheme as a political accommodation for two politicians, former President Ramos and House Speaker De Venecia, the critical supports of both before and during the impeachment were instrumental in keeping Arroyo in office. The interest of De Venecia in the parliamentary form is an open secret: to be the head of the government without being elected nationally as president. Ramos’ motivations are not as well contoured: some still regard him as the country’s elder statesman in the mold of Singapore’s Lee Kuan Yew, or he could be, quite ambivalently, America’s strongest link to its former colony.

Returning to the main topic of this piece, a people’s court that the Citizens’ Congress for Truth and Accountability is supposed to be and so functions - the purpose of which is to unravel the truth suppressed by a highly partisan vote during the impeachment proceeding - is by itself an attempt to re-order the system. It is a clear instance of civil society asserting its primacy; as a mature manifestation of people power, it has a better chance of graduating from what had been seen as ad-hoc expressions of the power during the staging of “street parliaments,” whether small- or large-scale. Literally speaking, the whole exercise may be extra-constitutional, but it is not contra-constitutional. For one thing, aside from the people-powered conception of the 1987 Constitution, there are specific provisions in the present Constitution (e.g., Article VI, Section I in relation to Article 32, reserving to the people a provision for initiative and referendum, and Article XII, Sections 15 and 16 as well as Article II, Section 23, recognizing the national role of people’s organizations, NGOs and community-based organizations and facilitating the establishment of adequate consultation mechanisms) that expressly admit of sharing of sovereign authority, a radical drift from the purely “representative form” under the older charters.

In another sense, the people’s residual and direct authority to try the impeachment charges in an alternative venue on the basis of the foregoing constitutional provisions as well as in pursuance of the underlying spirit of the 1987 Constitution may be considered as being akin to the putative and delegated authority of the judiciary to read into the Constitution certain inherent rights, such as the individual’s right to privacy that is not so provided in the explicit language of the Constitution.

In furtherance therefore of a transformative governance paradigm and moving still further forward, the coalition forces should take on the task of discovering more commonalities despite the disparate interests of their respective constituencies. The more expansive the common interests and the more persistent the efforts on other fundamental issues affecting the country whether social, political and economic, the greater would be their share of the sovereign authority and the less would be the need for the formalities of revising the written charter via some backward-looking fiat that could have been directed by personal interest or driven by the devious motivations of other agencies, whether individual, institutional, governmental, foreign or otherwise.

It is then hoped the traditional notion of centralizing sovereignty that underlies the debate about what form of government to adopt might ultimately give way to a People Power democracy that is anchored on solidarity, participation, inclusion and shared policymaking. The coalition will then just have to try harder to make a real difference.

Saturday, November 05, 2005

Blogging, bewteen the ancient and the primitive

Blogging may be defined as an ancient liberty in a time warp.

But first, it may be well to know that there are two ancient liberties that are equated with democracy: 1) the liberty to rule and be ruled in turn, and 2) the liberty to live as one chooses. The first is also the liberty of an individual to share with others the right to run the government (political equality) and the second is the liberty to be free from the interference by such government and others (negative liberty or, sometimes, the “freedom from interference”).

In Athens during Aristotle’s times, there was no distinction between public and private sphere or between state and society where each citizen found ultimate fulfillment in public debate and politics. Direct and active participation in self-government (both legislative and judicial) was the end goal of citizenship.

Athenian democracy, now known as direct democracy, was where most Athenians served as a public official at least once during their life time; hence, to conceive of a form of representative government as practiced today was problematic for them. However, there was one essential condition for direct democracy to function well: the citizens must have enough free time to engage in public talk and participate in public administration. The convenience of slave economy (and the exclusion of women) freed up time for ancient citizens to carry those duties.

In the absence of a constitutional framework, demagoguery in Athens unfortunately allowed the occurrence of democratic tyranny (tyranny of the majority) which, for one, endangered negative liberty (the liberty to live as one chooses). Plato, the quintessential elitist, thought that strict political equality - accorded to those who were neither experienced nor knowledgeable about public affairs - sidelined the wise. The philosopher also believed that both notions of liberty (political equality and negative liberty) were inconsistent with the maintenance of order and stability. Plato’s worries were apparently resolved by the latter-day constitutional and representative democracy.

Moving fast-forward, blogging may essentially be classified into public and private electronic discourses (also exercised now by hybrid-citizens with increasing frequency). The public discourse is more closely related to political equality exercised in the realm of deliberative democracy and the private talk to negative liberty plied in the marketplace of ideas.

In a deliberative democracy, participants dialogue, reason out and then, transcending the initial conflict, DECIDE or VOTE to attain the common good; it is a counterweight to the old-fashioned policymaking. In the marketplace of ideas, participants, skirting the intervention of traditional media, disseminate ideas and information and directly compete for audience (readers, customers, critics, peers, leaders or policymakers) who BUY or TUNE OUT; it is a counterweight to the conventional media.

When blogging takes the form of free expression so exercised in the realm of deliberative democracy (which I believe was the function taken on by Philippine Center for Investigative Journalism during the run-up to the Arroyo impeachment vote), it occupies the highest rung in the hierarchy of democratic and constitutional values involving as it does the sharing of sovereign authority. This so-called public liberty ordinarily trumps negative liberty for the simple reason that the individual is less than the community.

The Philippine Supreme Court speaking through Justice Malcolm in U.S. vs. Bustos (1918) correctly stressed that: “The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of the officialdom.” At the very least, this ancient liberty in the form of modern-day blogging requires judicial modesty at all times from an unaccountable organ of the government.

Wherefore, when the present Supreme Court ruled in Jonathan M. Tiongco vs. The People of the Philippines (G.R. 199676, October 2005) that “Free expression is guaranteed by the Constitution and any deviation from rule through judicial restraint can only be had after a proper trial of facts,” it is only reaffirming an ancient democratic tradition and a well-settled constitutional law. A temporary restraining order (TRO) issued by a trial court without the benefit of “a proper trial of the facts” and in defiance of the Supreme Court’s ruling is an act of judicial immodesty and therefore void ab initio. (Having thrust himself into the Gloriagate controversy, Tiongco has assumed the notoriety of a public figure.)

As against an ancient liberty, the order by the lower court requiring PCIJ to remove a post from its blog supposedly “as the safer and more prudent recourse” and banning PCIJ, for the 20-day duration of the TRO, from “broadcasting, publishing or posting or causing to broadcast, publish, or post articles and statements similar and related to, or connected and in conjunction with,” the post in question is primitive (aside from being obviously unenforceable according to blogger and constitutionalist Edwin Lacierda). It does not have the force of law and must be ignored.