Sunday, August 3, 2014

MEL STA.MARIA | The President within Constitutional Bounds In Criticizing the Supreme Court


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Atty. Mel Sta. Maria is the resident legal analyst of TV5. He is Dean of the FEU Institute of Law. He also teaches at the Ateneo School of Law and daily co-hosts the program 'Relasyon' on Radyo Singko 92.3 News FM.

The Integrated Bar of the Philippines (IBP) was reported to be studying the possibility of filing a motion to declare the President in contempt of court for criticizing the Supreme Court in declaring some DAP acts and practices unconstitutional. In effect, the IBP contends that the President should not talk about the DAP while the case is pending with the Supreme Court. This "shutting up" is what we call the sub judice rule in court litigation.

But is the sub-judice rule applicable in this particular case where the powers of a great branch of government is questioned in and will be decided by another branch of government?

I do not think so.

We must look at this issue from the more fundamental context of our constitutional system of checks-and-balances and not merely from the perspective of ordinary litigation. For, after all, the question of DAP is not merely a private issue but a matter of public policy.

We must remember that our Constitution demarcates three separate great branches of government: the Executive, the Legislature and the Judiciary. Each one is supreme in its own sphere. No branch can encroach on the prerogatives of another.

More importantly, this constitutional separation highlights that the powers of each branch are not limitless. And, to assure that no branch exceeds its respective boundaries, each branch is empowered to check the other so that the balance of power is maintained. As a consequence, it becomes the duty of each branch, if necessary, to remind the other branches of not only an actual encroachment but also a possible intrusion. This is part of what we know as the system of checks-and-balances.

Thus, the Supreme Court can check the Legislature. For instance, it can declare a law passed by Congress as unconstitutional and therefore not implementable. This happened to some parts of the RH Law and the CyberCrime Law. It is the duty of the Legislature to obey the declaration of the Judiciary.

The Supreme Court can likewise check the Executive. The DAP case is a clear example. In its original decision, it declared as unconstitutional "acts and practices" of the Executive Department in the implementation of the DAP. At the moment, the said decision is subject of a motion for reconsideration. But if it is not reconsidered, the President said that he will abide by it.

How about the judiciary? Which branch checks the Supreme Court in its decisions in matters involving issues of departmental prerogatives? The answer is none. The legislature and the executive departments cannot immediately do anything regarding any final decision promulgated by the Supreme Court on these matters.

Whether right or wrong, final decisions of the Supreme Court must be obeyed.

This is the legal reality. But history taught us that the Supreme Court, constituted by fallible and imperfect men and women like all of us, was not always right. In fact, our most dreadful historical experience during the second half of the 20th century -- the period of Martial Rule under the Marcos Regime -- was also brought about largely by the perceived legitimation given to it by the Supreme Court. This terrible period led to "summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986" as recognized by Republic Act No. 103688, otherwise known as the "Human Rights Victims Reparation and Recognition Act of 2013".

Since no great branch can check the decisions of the Supreme Court, only the justices' self-restraint is the assurance against their own possible abuses, if such self-restraint is at all existing and assuring. The words of former United States Supreme Court Justice Felix Frankfurter becomes very relevant: "All power is ... of an encroaching nature. Judicial power is not immune against this human weakness. It must be on guard on going beyond its proper bounds, not the less so since the only restraint upon it is self-restraint. The Court must observe a fastidious regard about limitation of its own power, and this precludes the Court’s giving effect to its own notions of what is wise and politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what the legislative and executive branch may do."

What if there is no self-restraint leading the Supreme Court to make a fundamental far-reaching error? That is always a possibility. Who will tell the Justices that they are wrong or about to commit a wrong?

It is in this light that the constitutional system of checks-and-balances becomes very important. It is also in this context that we must view and understand the acts of the President in going out and strongly explaining to the people what the DAP is all about and informing them of the possible negative economic consequences which he sincerely believes might happen if the Supreme Court DAP decision is not overturned.

If a President at any given time honestly believes that the Supreme Court, another branch of government, might encroach on executive prerogatives or has effectively already encroached on the same, it is the President's or the Legislature's duty to put the Supreme Court on notice. This is true regardless of whether a case concerning an involved issue has been decided or is still on-
going. It is the President's obligation to speak up and say that the Supreme Court has over-reached and has dangerously gone beyond its limits. It is his obligation to tell the people that the Supreme Court is wrong. Supreme Court decisions should not be beyond debate.

For example, when the US Supreme Court ruled that US corporations, like ordinary natural individuals, can also donate limitless amount of money for election campaign purposes, President Obama openly and sharply criticized the US Supreme Court, not merely in an ordinary interview, but in no less than his 2010 State of the Union address in the presence of not only the legislators but the members of the court in their full regalia and the whole world. He said the decision of the US Supreme Court “reversed a century of law to open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections.” It was a critical indictment of the failure of the highest court of the land to consider history and the sentiment of the American people.

This must likewise be so in the Philippines if we are to faithfully adhere to our democratic system of checks-and-balances. The acts of President Benigno Aquino III may appear to be strong and ostensibly combative but they cannot be considered as gestures of disrespect to or contempt for the Supreme Court.

They are fundamentally an exercise of his bounden duty to try to stop what he honestly believes is an encroachment on executive prerogative. This becomes so important when we realize that, in doing so, the President is not even violating any statute but merely expressing his point as President. In our Constitutional setup where even the Justices are not special government officials but also public servants, they must be told, if necessary, of their errors and they must be open to criticisms. As Justice Brewer, former US Supreme Court Justice, said
justices should be the objects of constant watchfulness by all, and their judgments subject to the freest criticism. The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all. The moving waters are full of life and health; only in the still waters is stagnation and death.
Warning another branch of a possible intrusion is legitimate. That much we have to give to the President for, after all , when the 15 justices of the Supreme Court finally decide on the case, we will just have to accept that decision whether we like it or not. But this does not mean that the decision is beyond legitimate and critical debate.

I would say that, being a lawyer myself, the filing of contempt charges against the President would be a wrong move. But if the IBP does so, I expect nothing less from the Supreme Court than to rise to the occasion, to treat this as an opportune moment to show that rightly or wrongly, the President's act of criticizing them no longer should be examined through the miniscule lens of sub-judice but within the broader concept of the system of checks and balances. I trust that the Supreme Court has the wisdom to make this distinction.

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