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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

Location: San Juan, Metro Manila, Philippines

Tuesday, November 15, 2005

Curb The Supreme Court - Not!

Caught on ANC Attys. Raul Lambino and Rita Jimeno, two members of the Constitutional Consultative Commission. They were proposing to curb the expanded powers of the Supreme Court. If I heard them right, they want to prevent the High Court from reviewing government contracts.

Atty. Lambino claimed that the expanded powers of the Supreme Court were brought about as a reaction to the restricted role of the Supreme Court during the Marcos era. As a result, without saying so, they accused the Supreme Court of running riot since 1987.

They are especially peeved with the idea that the Supreme Court can meddle in government contracts that have international consequences. Again without saying so, they must be referring to the decision rendered in the Petrochemical Case where the Taiwanese wanted to build a petrochemical plant in Batangas but the Supreme Court ordered the venue maintained in Bataan.

They are also referring to the decision of the Supreme Court canceling the award of Manila Hotel to a Malaysian consortium and instead, awarded the now first-class motel to Mr. Emilio Yap, citing as a ground for reversal, Manila Hotel being part of national patrimony.

They are also referring to the decision of the Supreme Court declaring unconstitutional the Mining Law and then, reversing itself and declaring it valid.

And so, because the justices are just doing their jobs, they want to emasculate their powers. How logical!

The Supreme Court may seem to be obstructionist in those regards but one must remember that the role of the judiciary is reactive, never pro-active. We do not have activist jurists who believe that the Constitution is a living breathing constitution that can be interpreted according to the times. Most, if not all, are strict constructionists. Thus, they craft decisions according to how a contract measures up to the law, and nothing more. Therefore, the fault, my friends, does not lie with the Court, the fault lies with the two other branches.

The problem lies with the Executive Branch which thinks that just because the members of the Court are appointed by the president, she owns their life, their tenure, and their conscience. And so, any contract entered into becomes “executive privilege” that cannot be touched upon.

The fault lies with the Legislative which thinks that because they crafted the law, it will stand the test of judicial scrutiny. Quite so, but when a decision declares a law they crafted as unconstitutional and are therefore, embarrassed, they cry “judicial tyranny”, “judicial legislation”, or “judicial interference”.

More than anything else, the judiciary is the scapegoat that is thrown to the wolves because the judiciary foolishly does not engage in media debate. It believes its works speak for themselves. Perhaps, but with such outmoded thinking, the obstructionist impression foisted upon media by their detractors will go unchallenged.

If the Commission removes the expanded powers from the Supreme Court, then you curb the remaining bulwark to review onerous contracts, to overturn government abuses and excesses and you diminish the authority of the last jurisdiction where one can still expect justice to prevail.

It is the Supreme Court that is the least powerful among the branches but which can arrive at their life-changing decisions collegially. At the very least, one can argue that the decisions they render have been thoroughly threshed out in argumentation and debate. Not like the Cabinet which is in a survival mode or the Speaker or the Senate President who are engaged in a war of usurpation.

If they successfully curb the powers of the Supreme Court, forget about what we learned in law school or heard from legal commentators. All they taught will become bunk. Let us therefore not tweak the Supreme Court powers. It is fine as it is right now.

Let justice be done though the heavens fall - one of the earliest maxims a law student learns upon entering law school. But apparently, for this government, the sky is falling and thus, the need to burn the Supreme Court.


Blogger Rizalist said...

Good morning Ed, just want to add something to your thoughts here because I also caught Raul Lambino on ANC yesterday. (BTW, I know him, he's a very good man at heart.) What I did hear him say was this. As it stands today, ANYONE can go directly to the Supreme Court and question such contracts, EVEN IF they are not a party in interest. He gives the example of Garcia vs. BOI where Gov. Tet Garcia used this aspect of the 1987 Constitution to stop the SWITCH of a petrochem plant from Bataan to Batangas. The foreign investor LEFT because it was a clear case of politics not business or law, but they knew they couldn't win.

BTW, I did not get the impression from him, under close questioning by ANC, that he was arguing against judicial review of these contracts, he was just arguing for a saner process that doesn't allow such direct access to the Supreme Court because it is a TRIER OF LAWS and not of FACTS. The 1987 Charter has evidently given the Supreme Court the awesome power of deciding by itself, which identity it wants to exercise. THAT is a danger to DEMOCRACY because it vastly expands judicial powers and encourages judicial putschism as in Estrada vs. Arroyo(March, 2001), and a whole string of other such cases, that being the most destructive.

9:58 AM  
Anonymous dawin said...


That is a valid point. I think he was questioning the concept of legal standing as enunciated by the SC under the 1987 Constitution.

I think, however, that while the SC may have taken a more liberal view of legal standing, the positive effect of it was that it democraticize access to justice and fair play at the highest levels.

Also, I think the expanded powers really limited the scope of the political question doctrine where in the previous Marcos regime, a valid petition could be stopped dead right at the start. Incidentally, the petrochemical plant I mentioned was the issue in the Garcia case you stated.

Obviously, there is debate as to the wisdom of the expanded powers as exercised by the Supreme Court where men of good will may differ. But personally, what I have discovered in my readings is that the SC has, by and large, lived up to ideals set forth by the late Chief Justice Roberto Concepcion in the 1986 Constitutional Commission.

But you are right about the EDSA DOS participation by the SC. It was an extreme exercise of judicial activism that even the decision by the SCOTUS in Bush v. Gore paled in comparison.

Regarding the SC being a trier of law and not of facts, it just recently dismissed the North Rail petition precisely on that point. So, we can take refuge that the SC is still faithful in its mandate as a trier of law.

By the way, you may have a comrade in the person of Abe Margallo. His pessimistic view of the Supreme Court as the last determinant of what the law should be is equally enlightening and a good read.

11:01 AM  
Blogger marvin said...

Emasculate the Supreme Court so the executive can have a freer hand in raiding the treasury? Sounds like a common agenda for all trapos and their taipan financiers. I can almost hear my friendly neighborhood congressman saying, " Mas madaling pumitik ng kontrata kung walang judiicial review." Tangalin na lang kaya nila ang judiciary.

5:45 PM  

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