Sigaw ng konsiyensia

Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP), both Charter change proponents, have asked the Philippine Supreme Court to reverse a ruling by Commission on Elections (COMELEC) rejecting their petitions to propose amendments to the Constitution via a people’s initiative. The initiative is being pursued on the basis of the same enabling law (the Roco Law) the Supreme Court declared nine years ago in Santiago v. COMELEC to be inadequate for the purpose. The petitioners are seeking a reversal of the Santiago ruling.

Even before the petitions were filed, what I had weighed in here and here is for the Supreme Court to rule swiftly in this manner: 1) reverse Santiago by recognizing and upholding People’s Initiative under the Roco Law in deference to the people-powered character of the 1987 Constitution, and 2) take judicial notice - which simply recognizes a fact of obvious public or common knowledge - that the Sigaw ng Bayan and UPLAP initiatives are anything but the people’s.

Reversing Santiago and itself is matter of humility on the part of the Supreme Court; while upholding the Roco Law is also an act of respect that the Court under the Constitution is obligated to accord to the legislature, a co-equal branch of the government. On the other hand, taking judicial notice that the so-called initiative is in fact not of the people’s is both a question of plain common sense and an affair of the conscience.

“A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional,” said Justice Reynato Puno in his dissent in Santiago. Puno was somehow explaining how the court-invented “political question” doctrine should operate as regards the Court’s relationship with the legislature flowing as it should from the fundamental tenet underpinning the tripartite system of our constitutional regime.

The doctrine, which distinguishes the role of the unelected judiciary from those of the elected branches of the government, the legislature and the executive, has no precise formulation except that to prevent encroaching upon the two political branches of the government, the court should decline to rule on matters best resolved through the political process. Ultimately, the electors under the doctrine make the final decision so that if the law or its enforcement is unwise or inefficacious, then they ought to vote for or against those involved in the political decision in the next electoral reckoning. Moreover, when what’s at issue is a direct sovereign act by the people, the majoritarian principle requires that it be entitled to an even greater deference from the court.

Despite the myth that the judiciary is supposed to be apolitical or to proceed with the cold impartiality of a neutral arbiter, the interpretation of the Constitution by the Supreme Court is a political, nay, partisan act. As such, decisions rendered by the Court particularly those that involve the power and structure of government are exercises in “applied politics,” often with the opinion-writer making findings according to his or her own political predilections or theories of constitutional interpretation.

For instance, Artemio Panganiban, the present Chief Justice, is of the position that there is now “firmly embedded in the Constitution” an “activist mandate” to the Philippine Supreme Court. He asks: “Are the courts required to pass upon each and every act of the political branches of government?” One would hope his answer is not in the affirmative for that would be a bit too presumptuous. Will the Court review under this supposed “activist mandate” an order by the President as commander-in-chief for a naval blockade in Spratlys Islands or a congressional declaration of war against an invading foreign country? The point being driven of course is that “judicial activism” is a state of mind of the individual justice and not a constitutional mandate, the so-called expanded power of the Court under Article VIII, Sec.1, paragraph 2 of the Constitution notwithstanding.

In Francisco v. The House of Representatives (2003) Justice Puno expressed a contrarian preference in this manner: “I prefer to take the contextual approach of the coordinacy theory which considers the constitution’s allocation of decision-making authority, the constitution’s judgments as to the relative risks of action and inaction by each branch of government, and the fears and aspirations embodied in the different provisions of the constitution. The contextual approach better attends to the specific character of particular constitutional provisions and calibrates deference or restraint accordingly on a case to case basis. In doing so, it allows the legislature adequate leeway to carry out their constitutional duties while at the same time ensuring that any abuse does not undermine important constitutional principles.”

One of the first to become a judicial activist was Justice Oliver Wendell Holmes who sat on the U.S. Supreme Court in the first quarter of the 21st Century. He challenged the long-standing school of thought founded by the English jurist Blackstone that judges should only discover and declare the law. “The prophecies of what the courts will do in fact and nothing more pretentious,” Holmes wrote, “are what I mean by the law.” To him, the life of the law is experience not logic. Perhaps, more revolutionary than Holmes who presumed that judges do make laws was Roscoe Pound, former dean of Harvard Law School, who went as far as suggesting that judges as “social engineers” should manipulate the law according to the needs of society.

Pre-martial law in the Philippines, the country might have seen the emergence of a philosophical differentiation between the Poundian sociological approach (which draws on social science in deciding cases) that then Justice Enrique Fernando might have fostered and the analytical formalism championed by Chief Justice Roberto Conception.

In J.M. Tuason v. Land Tenure Administration (1970) for example, Fernando has echoed Pound’s legal philosophy when he postulated that “(the constitution) is not so lacking in flexibility and suppleness that it may be a bar to measures, novel and unorthodox as they may appear to some, but nonetheless imperatively called for,” it being not “a printed finality but a dynamic process.”

On the other hand, where the 1935 Constitution provided that all the amendments to the constitution to be proposed must be submitted to the people in a single “election” or “plebiscite,” a constitutional interpretation, according to Chief Justice Roberto Concepcion in Tolentino v. COMELEC (1971), based on a strict literalist construction of “election” in the singular was considered sufficient to rule out a ratification process involving more than one plebiscites.

The healthy if conflictive philosophical encounter between the two great Filipino jurists who respected each other might have been upset by the Marcos dictatorship, culminating in Javellana v. The Executive Secretary (1973). In Javellana, six members of the Supreme Court (out of an 11-man tribunal) lifted the judicial obstacle to the Marcos constitution “being considered in force and effect.” Two justices, holding that the ultimate question was the acquiescence (acceptance) by the people of the constitution, which was a political question, joined with four others holding that the issue of the validity of the questioned presidential proclamation (announcing the ratification by the Filipino people of the Marcos constitution) was a political question.

Fernando who was as much syllogistic as sociological rejected not only “the mode employed for the ratification of the revised Constitution” but also the claim of public acquiescence. He explained: “The thought persists, however, that as yet sufficient time has not elapsed to be really certain. Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of popular will did take place during a period of martial law. It would have been different had there been that freedom of debate with the least interference, thus allowing a free market of ideas. If it were thus, it could be truly said that there was no barrier to liberty of choice.”

On the other hand, Concepcion simply applied his practical judgment: “Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the people in the citizens’ assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that there have been no such citizens’ assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines.” Finding the violation of the law clear, Concepcion so declared. The result was that Fernando and Concepcion found themselves on the same camp with justices Zaldivar and Teehankee who voted to oppose the shameful Marcos stratagem that every well-meaning Filipino already knew.

Like Fernando and Concepcion, Panganiban and Puno despite their opposing constitutional philosophies find themselves today on the same alliance upholding the Roco Law, which is at the heart of the Sigaw ng Bayan and ULAP petitions. Is there however any need to offer any elitist theory or philosophy of constitutional interpretation to resolve the obvious?

Justice Story’s more simplistic principle is certainly of the moment: “A constitution of government is addressed to the common sense of the people, and never was designed for trials of logical skills or visionary speculation.” Isn’t common sense or plain conscience enough to dispose of another patent Marcosian attempt to turn the political house upside down? What’s keeping the Court then if politicians as judges are supposed to have plenty of both?