Alphonse and Gaston

A popular comic strip in America many years ago featured two bumbling characters, Alphonse and Gaston, both of whom had a penchant for politeness. Gaston, the tall one, would say, “After you, Alphonse,” and the latter, the short one, would insist, “No, you first, my dear Gaston!” The show of excessive politeness would go on and on, with the result that neither could do anything or go anywhere because each insisted on letting the other precede him. Today, the catchphrase “After you, my dear Alphonse” is heard whenever a dare is made to a person to do something difficult or even dangerous.

It seems to me Congress and the Supreme Court are engaged in a game of Alphonse and Gaston, as each waits for the other to act on the constitutional objections raised against the Cybercrime Prevention Act of 2012 (Republic Act 10175). With 15 petitions filed by various individuals and organizations, the high court took one week to decide whether to enjoin immediately the enforcement of the law by the government, and when it finally decided to do so, it issued a 120-day temporary restraining order that indicated it did not expect the cases to be decided shortly. Instead of rushing amendments to the law as some members of both the Senate and the House had earlier indicated, Senate President Juan Ponce Enrile cautioned his colleagues “to wait for the Supreme Court to make a decision so that we will know what are the defects that they want us to correct,” while Sen. Edgardo Angara asked the legislators “to take a pause out of respect for the Supreme Court [as] the final arbiter of any legal question.” (Inquirer, 10/10/12)

But the responsibility for attending to the public’s complaints in these cases isn’t the Supreme Court’s. It is our nation’s lawmakers’, many of whom admitted that they failed to give the law the attention it needed when it came before them for consideration. It is ironical that even those who voted for the Cybercrime Prevention Act in Congress are crying for its invalidation by the Supreme Court, alleging that it violates freedom of expression or that some of its provisions are overbroad and vague. On the other hand, those who voted against the law and lost the fight in Congress think they can bring their fight to the courts. Thus, it would seem every legislator wants the Supreme Court to do the job! Suffice it to say “it never was the thought that a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”  That party’s recourse is to work harder in Congress for the amendment of the law he thinks is undesirable.

Nor is the Supreme Court the place for rallies and demonstrations. Courts are a poor reflex of public opinion. It is Congress, as the popular assembly. It is Congress that is the place for the marketing of ideas. Moreover, there is a civic lesson to be learned here. As James Bradley Thayer said, those who rely too much on the courts to do what they ought to do with their senators and representatives “lose the political experience and the moral education and stimulus that come from fighting the question out in the ordinary way and correcting their own errors,” as judicial intervention has a tendency “to dwarf the political capacity of the people and to deaden their sense of moral responsibility.”

In truth, the responsibility of courts arises only when there is an actual case filed because a party complains of some injuries suffered as a result of the application of the law to him. Short of an actual case or controversy, courts have no jurisdiction to pass on the constitutionality of the acts of the other branches of the government. The reason for this is that only facts adduced during the trial can show to the courts how the law operates and enable them to appreciate the impact of the challenged legislation on the civil liberties. The constitutional issues raised by the 15 petitions are not of the sort that can help courts decide difficult questions soundly. They are issues for the elected branches of our government to consider.

Because these 15 cases raise difficult questions, the Supreme Court took a week to decide whether or not to issue a TRO, and when it finally did, it issued one for an unusual period of 120 days. The constitutional issues raised by the 15 petitions are far-ranging and unfocused. The judicial process is not fitted for this task, which is not its assigned task anyway.

On the other hand, Congress can more easily do the job at hand, which concerns a few provisions dealing with the extension of the libel provisions of the penal code to cybercrimes, the powers of the Department of Justice to restrict or block computer data to prevent access to data deemed to constitute cybercrimes, and the overbreadth or vagueness of certain provisions. There are, however, more provisions, such as those dealing with cybersex, cyberporn, frauds, and other cybercrimes, as to which there is consensus on the need to repress them.

For this reason, it behooves Congress to act with dispatch by amending the law if necessary and not to wait for the Supreme Court to do its part by deciding the cases before it. An assist from a coequal and coordinate branch of the government might just be welcomed by the Supreme Court. Playing a waiting game can lead us to nowhere.

Vicente V. Mendoza is a retired justice of the Supreme Court and at present a professor of constitutional law at the University of the Philippines College of Law.