The ethic of responsible restraint

Twice during the impeachment trial of then Chief Justice Renato Corona, petitions were filed before the Supreme Court praying for its intervention in the unfolding process at the Senate. The first sought to abort the trial on the ground that the complaint endorsed by the majority in the House of Representatives was not properly verified. The high court responded by calling for the submission of written memoranda, but it did not stop the trial. The second petition was for the purpose of preventing the Senate from opening the bank accounts of Corona on the ground that their absolute confidentiality was protected by law. The high court issued a temporary restraining order to that effect, and the Senate voted to comply with the TRO.

What we have here is a fine example of the delicate give-and-take performed by the political and judicial branches of government. The responses could have been different. Invoking its expanded power of judicial review under the 1987 Constitution, the Supreme Court could have ordered the Senate from proceeding with the trial. In all probability, the senators would have defied that order, telling the tribunal that the matter was the sole prerogative of the Senate. The resulting impasse would have provoked more demonstrations in the streets and possibly stripped the high court of what remains of its moral authority. Similarly, the Senate could have rejected the TRO on the bank accounts on the ground that the law safeguarding the secrecy of bank accounts was not meant to conceal criminality. Such open defiance would have buried the present Supreme Court as an institution.

This delicate balancing act is nowhere stated in black and white in the constitutional provisions on separation of powers. It is, rather, what political leaders and magistrates do when they are minded to wield their powers responsibly. I call it the ethic of responsible restraint. It is the antidote to what University of the Philippines law professor and fellow Inquirer columnist Raul Pangalangan calls “judicialized governance.”

Government by judiciary, Pangalangan warns in a recent paper, “shifts to unelected judges the power to apply their own discretion in reviewing decisions by the politically accountable branches of government and, worse, to dress up the review in the language of the law.” In the Philippines, he argues, this habitual turning to the courts to appeal the actions of political bodies serves as a coping mechanism for the failures of the democratic processes. “If the majoritarian process is unable to vindicate public norms, the only other mechanism compatible with liberalism is ‘decision according to law’ rendered by neutral institutions.”

In other words, when the people distrust the political system, their tendency is to run to the courts, believing these to be insulated from political interests and thus capable of rendering justice. What happens, however, is that, instead of strengthening democracy, the judiciary weakens it by intervening in every conceivable issue and not hesitating to nullify the acts of the people’s duly elected representatives. In so doing, it typically resorts to a legal formalism that freezes the meaning of the law and removes it from its evolving social context.

Raul traces this problem to the absence or weakness of shared communal norms in society. “Absent that nomos,” he writes, “the next best option is to devolve that decision to trusted persons and institutions.” And when the latter prove to be not trustworthy, “voila, a new secular religion is found in law-based decision, de-personalized, de-politicized and de-ideologized.” This is fascinating and refreshing to hear from a professor of constitutional theory and law. If I may say so, it is this kind of historically and sociologically sensitive perspective that the Supreme Court needs most at this time.

As a sociologist, I can add nothing to Raul’s analysis, except to say that the absence of a shared moral universe is not unique to societies like ours but is typical of modern society. In most societies today, it has become less and less possible to ground any action on moral consensus. Law replaces morality as a source of definitions of right and wrong, deploying all the authority previously enjoyed by moral systems drawn from religious belief. This is disconcerting to many who rightly complain that legality cannot be equated with morality. But in modernity, there seems no way of going back to a unified moral universe.

We might try to understand how modern societies are adapting to this moral lacuna as they evolve. They make sure that their diverse institutions grow into full autonomy. By this is meant that society commits itself to forming highly differentiated institutions capable of resisting interference in their work, while restraining their own urge to control the functioning of others. Modern societies nudge their institutions to solve their problems their own way, warning them not to leave internal problems unsolved as this invites outside intervention.

Despite the glitches that attended the Corona impeachment, I believe that on the whole we can draw pride from the way in which it was brought to a clear conclusion. Had the Senate leadership been less resolute in its conduct of the trial, it would have created ample room for the Supreme Court to intervene. And, had the Corona Court been more judicious in the exercise of its review powers, it might have avoided the disaster in which it had found itself. There are many lessons to learn from this sad episode in our nation’s life, but, to me, the most important is the one that tells our institutions that autonomy’s twin is restraint.

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