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By J. Art D. Brion

J. Art D. Brion

I write this column in the morning of Sunday, June 11, the anniversary of the Supreme Court’s founding day. The Court was established on June 11, 1901, pursuant to Act No. 136 entitled “An Act Providing for the Organization of Courts in the Philippine Islands” under the Second Philippine Commission.

In its 116 years, the court has been through two organic laws (the Jones Law and the Tydings-McDuffie Act) and four constitutions (the 1935, 1973, the revolutionary “Freedom Constitution,” and the current 1987 Constitution). Over these years and as a collegial body, it has earned satisfactory ratings in discharging its duties.

But an entity like the Supreme Court cannot rest on past glories. There will always be the question: Is the court satisfactorily complying with its mandate as the third great branch of government, and is it responding, pursuant to this mandate, to the problems and the evolving needs of Philippine society?

Once again, the Court finds itself today at the center of momentous events, the most disturbing of which is the fighting in Marawi City between the AFP and the police, on one hand, and the Maute/Abu Sayaf/ISIS groups threatening not only the peace and order of Marawi but the very integrity of the Philippine Republic. And this is not the only problem that may sooner or later metamorphose into legal disputes; Marawi is just the most immediate and the most urgent.

From the start of this term, President Duterte has declared war on illegal drugs and has spent time, energy, and political capital in this “war.” It has earned the attention of some Western nations and, in particular, the United Nations Commission for Human Rights for reported extrajudicial killings and violations of human rights.

No less than the Vice President – now facing her own electoral problem before the court’s Presidential Electoral Tribunal – reported in a video show at an international forum that extrajudicial killings that have taken place in her own country. Two opposition lawmakers have charged the President with mass murder and extrajudicial executions before the International Criminal Court.

Undeniably, people have died in drug-related incidents; wherever they may be found in the world, the drug trade and the enforcement of laws against illegal drugs have always spawned violence. The arena for many of these incidents has shifted to the courts where charges have been filed against both the law enforcers and the accused drug violators; one senator, in fact, already languishes in detention for charges of drug dealing during her term as secretary of justice.

Egged on by the local political opposition, Special Rapporteur Agnes Callamard of the UN Human Rights Commission has not hesitated and in public forums has called the President’s attention to human rights excesses in his war on drugs. The President, true to form, did not react gently to what he labelled as foreign intervention in Philippine internal affairs. Sooner or later, this head-on clash will give rise to legal disputes for the courts to pass upon.

Externally, the President has deviated from the country’s traditional diplomatic paths in dealing with the West Philippine Sea dispute and with the threats against its territorial integrity. He has sought more active ties with Russia and China, to the discomfort of our traditional ally, America. The nation now watches and waits how the President’s innovative approaches will turn out. In an indirect way, the court has a presence in this problem due to the personal and unofficial advocacy of its senior associate justice on the issue.

Internally, the President’s attempts to unify the nation through peace talks – in particular, the peace talks with the Communist NPA-NDF and with the MILF of the Bangsamoro group – now languish in the background. The NPA talks have been called off as fresh NPA offensives took place after the declaration of martial law in Mindanao. The Bangsamoro end shows more promise after the Bangsamoro Transistion Commission announced that it has finished the draft of the Bangsamoro Basic Law for submission to Congress. But whichever way these initiatives turn, they cannot but be seeds for future legal disputes in the litigation-oriented society that we have become.

Amidst these developments came the Marawi fighting that led the President to halt his state visit to Moscow and to declare martial law and the suspension of the writ of habeas corpus in Mindanao.

Congress responded through resolutions declaring support for the declaration of martial law. With the fighting now entering its 4th week and with at least 58 soldiers and policemen dead and 191 terrorists reportedly killed, a minority group of lawmakers saw it fit to file a petition with the court questioning the factual basis of the President’s declaration of martial law. One opposition senator even called the President’s step unwise and premature on the reading that the Constitution demands a gradual and measured approach in handling the Marawi developments.

Two other petitions were subsequently filed, asking the court to compel Congress to convene and pass upon the validity of the President’s declaration of martial law, citing the terms of the Constitution as basis.

Speaker Pantaleon Alvarez responded to the latter petitions by vowing to rip up a court decision unfavorable to Congress. The President, with some hint of his characteristic sarcasm, did not share the show of defiance and instead declared that he will follow the court’s ruling on martial law.

These actions, with the recent national developments as backdrop, are now at the Supreme Court’s doorsteps begging for attention and action. The court responded by immediately calling for oral arguments and consolidating the three filed petitions, based apparently on the view that they all relate to the martial law declaration.

The court cannot be wrong in its immediate response as the petitions before it are of the kind that cannot be handled through the traditional cold and measured judicial steps. The court can do no less than act decisively to signal to the citizenry that the third branch of government has opened its judicial door to discharge its sworn duty as guardian of the Constitution.

But beyond the act of opening lie crucial tests for the court: it must firstly ensure that it acts and is seen as the impartial third party that it should be. The present disputes are still part of the never ceasing political contests and rivalries that have bedeviled the democracy we practice in this country. Despite the situation of turmoil and threat to national unity, the politicians are still at play and the court cannot even be seen as a combatant in this fray.

Indeed, some participants, rather than feel and show their sentiments for our soldiers, callously act and speak in a manner that would even encourage the terrorists. It appears lost on them that we enjoy the relative safety of Luzon and the Visayas because men and women are out there risking their lives for our national safety and unity. Not everything is politics and the court, as an impartial and independent tribunal, must strictly hew to this standard.

To be sure, a legal dispute is many times a zero-sum game: one party wins and the other losses. A constitutional dispute, however, is like no other; one party does not win over the other, as it is the Constitution that wins when its terms are interpreted in the manner they are meant to be understood and implemented.

The court should not also forget that the Constitution gave it life and commands how it should act. Powerful though it may be within the judicial domain, it still is just one of three great branches of government and must act within the limits of the separation of powers principle underlying the Constitution.

Its role is solely to interpret the Constitution and to apply its interpretation to the established factual situation; it cannot add or detract from the terms of this Constitution based on what some justices would want to see written there, nor can the court second-guess the Legislative or the Executive in laying down or implementing national policies.

It takes determination and courage to keep the court’s actions within these defined parameters, and to defend itself against attempts to subvert its independence and effectiveness. The nation can only hope that the men and women of the court have an abundance of these traits and can fully discharge the trust reposed on them.

I further expound on these observations about the court in my book A Judicial Journey – my greeting to the Supreme Court on its 116th anniversary. The book is now available at Central Book Supply. You can reach me at jadb.legalfront.mb@gmail.com.

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