A question of restraint

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 constitutional power.” 

For more on this, read <http://www.jemygatdula.blogspot.com/2013/08/law-morality-and-judicial-restraint.html>.