Most powerful court in the world?

Bold and forthright was Joan S. Largo, dean of the University of San Carlos (USC) School of Law and Governance in Cebu City, when she characterized the Philippine judiciary as no longer the “weakest and least dangerous” branch of government. In fact, if its powers and duties are compared with those of its counterparts in the United States and other countries, our Supreme Court can be termed the most powerful in the world.

Three judicial prerogatives. At 38, Dean Largo is the youngest and only woman among the 10 holders of the “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity.” These chairs were created and endowed by the Foundation on Liberty and Prosperity, cosponsored by the Metrobank Foundation and the Metro Pacific Investments Corp. in the nine leading law schools in the country and one in the Philippine Judicial Academy.

In her lecture at the 500-seat USC Audio-Visual Room packed by Court of Appeals justices, trial judges, lawyers, business leaders, professors and students, Largo explained that our Supreme Court is armed with three judicial prerogatives: (1) the “traditional power” to settle “actual controversies that are legally demandable and enforceable,” (2) the “judicial review” authority to determine whether the acts of the other branches of government are “in accord with the Constitution,” and (3) the “expanded extraordinary certiorari jurisdiction” to strike down grave abuse of discretion of any branch or instrumentality of the government.

In most countries, supreme courts are granted only the first (traditional) power of settling actual controversies, but not the second and third. In most parliamentary governments, the second prerogative (judicial review) is given to especially created constitutional courts, not to supreme courts. Example: In France, the court of final appeal (called Cour de Cassation) has no power to nullify statutes.

The US Constitution did not expressly grant the US Supreme Court the power of judicial review. But in Marbury vs Madison (Feb.  24, 1803), the US Supreme Court ruled that such power inherently belongs to the US judiciary. Since then, US courts have routinely voided statutes that violate the US Constitution.

Our Supreme Court is the only one in the world that has been expressly granted the third (expanded certiorari jurisdiction) to strike down grave abuse of discretion. Notably, our Constitution describes it as a “duty,” not just a power. A duty cannot be waived; it has to be exercised when circumstances call for it.

Grave abuse. In her lecture, Largo stressed that the Constitution did not define “grave abuse of discretion.” But the Supreme Court has limited its application only to acts done “in an arbitrary, capricious or whimsical manner by reason of passion or personal hostility… so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to act at all…”

Yet, in actual practice, grave abuse of discretion had been used by the high court to decide cases that at times do not approximate this limitation. For example, the Supreme Court nullified the Truth Commission (Lagman vs Ochoa, Dec. 10, 2010), and peremptorily voided a Board of Investments decision transferring a petrochemical plant from Bataan to Batangas (Garcia vs BOI, Nov. 9, 1990).

Largo courageously opined that our courts’ expanded certiorari power is not needed because “the fundamental rights brushed aside during the martial law era… have already been codified in the Constitution. For instance, the authority of courts to determine the factual basis of the declaration of martial law and the suspension of the privilege of habeas corpus is safely ensconced… in the Constitution. The guarantees against unreasonable searches and seizures are absolutely secured in Article III thereof, and… the Supreme Court has issued various rules in further protection of rights, such as the Rules on the Writ of Amparo and Writ of Habeas Data.”

She warned of the “undemocratic practice of permitting unelected judges to reverse and set aside the acts of elected officials…” and asked: “Who is to guard the guardians themselves?”

Liberty and prosperity. With due respect to Dean Largo, I think that the expanded certiorari duty is still needed to safeguard the liberty of our people against the incursions of an intrusive and abusive President. This was the real intention of Chief Justice Roberto Concepcion when he proposed this judicial duty. Verily, “eternal vigilance is the price of liberty.”

However, I agree with her that utmost judicial restraint is needed in matters involving prosperity and the economy. The third judicial prerogative was not intended to torpedo economic decisions. I agree also that Garcia vs BOI is probably the most glaring example of the misuse of the expanded certiorari duty.

Here the Supreme Court foisted its judgment on a purely economic issue outside its expertise. Where a petrochemical plant should be located, and what the feedstock for that plant should be—whether naphtha only, or naphtha and/or liquefied petroleum gas—are not judicial in character. These choices should have been left to the discretion of the private investors and the policymakers.

As a result of this unwelcome judicial intervention in a purely economic matter, the investors abandoned the petrochemical project, thereby upsetting the country’s budding industrialization in the early 1990s.

(The full text of Dean Largo’s lecture may be accessed at www.libpros.com.)

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