is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:
Contrary to what most people (including law
students) think, the Supreme Court is not the branch of government
entrusted with “defending” the Constitution, much less “protecting” the
Constitution against the other two branches of government (i.e., the
legislative and the executive) and ensuring freedom.
That job actually lies with all the branches of government:
Congress is supposed to make laws it knows to be constitutional, the
Executive is supposed to apply laws it knows to be constitutional and
apply it in a constitutional manner. Ultimately, however, it is the
people themselves, through a mature political culture, that is
responsible for ensuring that the Constitution is upheld, freedom is
ensured, and dictatorships prevented.
As far as the Supreme Court is concerned, what the Constitution actually
says is that “judicial power shall be vested” in the Supreme Court and
for it to decide cases, usually on appeal, “in which the
constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.” Even the “grave abuse” clause
does not give carte blanche and must be read in context.
The myth that the Supreme Court is the ultimate defender of the
Constitution lies in the thinking that since the members of the Supreme
Court are “not political” individuals (they are unelected after all),
they are thus free from the passions of the time or of the need to seek
popularity. But such argument is neither here nor there. The reason is
simple: Supreme Court justices are people too.
In reality (and this in no way is intended to denigrate the members of
the Supreme Court), people appointed to the SC are political and
necessarily so. Otherwise they wouldn’t get themselves to be appointed
in the first place. And the person appointed to the SC would logically,
to varying degrees, share in the political beliefs and persuasions of
the appointing power. That is just human nature.
But there are even more profound reasons to disregard the idea that the
Supreme Court is like a parent wading in to correct legislative or
executive childishness. Because, believe it or not, even justices of the
SC will make mistakes. They will do so even on points of law or engage
in erroneous reasoning because that’s what humans do. Witness the Dred
Scott and Roe vs Wade cases in the US, while locally the Manila Hotel
and Imelda Marcos cases come to mind.
Incidentally, the foregoing also illustrates the dangers of adhering to
the “living constitution” theory, by which judicial activism and
judicial legislation are usually justified.
Another thing about being human is the inclination to impose one’s will
on others. Not even Supreme Court justices are immune from this. The
danger of any individual or group succumbing to the temptation of
becoming tyrannical due to a surfeit of powers is always there.
So we devised mechanisms to prevent the judiciary from imposing their
own beliefs on others, usually by what is called “judicial legislation,”
the same way we devised mechanisms to put a restraint on the Congress
and the president. We call these mechanisms collectively the system of
“checks and balances.” And we also created an objective standard or norm
that is external to and independent of all of us and that is what we
call the “rule of law.”
The rule of law requires everyone to always act within the
constitutionally prescribed limits of their authority. The rule of law
demands that judges always remember that it is not their function to
legislate for that is the job of the legislative branch (and, to a
lesser, delegated, extent, the executive branch).
Rather, the true, actual duty of the judiciary is to objectively and
impartially apply the law as mandated by the people through the
Constitution. The judicial branch has no authority whatsoever to
substitute their judgment or discretion in lieu of Congress’. To do so
would be an usurpation of authority no matter how noble the intention.
In the end, all it accomplishes is to encourage not only the tyrannical
imposition of that long discredited policy of the ends justifying the
means but also of giving license to tyranny itself.
As one legal commentator puts it, “the unchecked power to do good is unavoidably also the unchecked power to do evil.”
The best security against bad laws is not to ask the Supreme Court to
act outside their mandate, it’s to elect better individuals to the
legislature and the presidency. Thomas Jefferson, writing more than 200
years ago, said it best: “I know no safe depository of the ultimate
powers of the society but the people themselves; and if we think them
not enlightened enough to exercise their control with a wholesome
discretion, the remedy is not to take it from them, but to inform their
discretion by education. This is the true corrective of abuses of
For more on this, read <http://www.jemygatdula.blogspot.com/2013/08/law-morality-and-judicial-restraint.html>.