With Due Respect

Eradicate poverty, share prosperity

Unlike its US counterpart, our Supreme Court is rarely divided along philosophical or ideological lines. In fact, not many Philippine justices, now or in the past, are known to hold or promote any particular legal philosophy. (See last Sunday’s piece on the legal philosophy of US justices.) Hence, it is difficult to predict how they would vote on specific issues. Why?

Longevity and maturity. First, compared with the US Court which was born 225 years ago in 1789, our Supreme Court is much younger, having been born only 113 years ago in 1901. Hence, it did not have as much longevity to develop jurisprudence along ideological lines.


Second, aside from being appointed young (usually in their 50s), US justices serve for life until their death, or voluntary retirement, or removal by impeachment. Ours are usually appointed in their 60s and serve only until they reach 70.

In the US Court’s 225-year history, only 112 have served as justices (including 17 chief justices). In contrast, in its 113-year existence, our Court already has had 173 justices (including 24 chief justices). On the average, US justices serve for over 15 years, while ours average about four years.


In short, US justices had a long time (26 served for 25 years or more) to perfect their personal philosophies, while their Philippine counterparts barely had time to warm their seats. Lately, however, some justices were appointed young, giving them enough time to mature on the Court, like Justices Antonio T. Carpio (18 years), Marvic M.V.F. Leonen (21 years) and CJ Maria Lourdes P.A. Sereno (20 years).

Libertarian philosophy. Third, US Court watchers have written tons of books on their Court. In contrast, there is a dearth of literature on Philippine magistrates, save for a few like Marites Vitug’s “Shadow of Doubt,” “Hour Before Dawn” and “Our Rights Our Victories”; Justice Isagani A. Cruz’s “Res Gestae”; and Justice Jose C. Campos’ “From the Academe to the Supreme Court.” However, these books speak more of the alleged idiosyncrasies, biases, arrogance or misbehavior of some justices, and less of their legal philosophies or ideologies.

I, too, have written one book a year during my over 11-year incumbency (thereby earning, though unworthy, the accolade of being the “Court’s most prolific writer bar none” from the Court itself upon my retirement). But my hard-covered books were really annual reports on my incumbency, as a measure of transparency and accountability, not as an analysis of my colleagues’ ideologies.

Our Supreme Court publishes selected opinions of retiring justices in separate books. These tomes should make it easy for researchers to read and analyze their favorite jurists. Nonetheless, legal writers have not used them to peer into the judicial minds. Law professors are content writing mostly textbooks.

During martial rule, a strong libertarian philosophy was developed by courageous justices like Claudio Teehankee, Ameurfina Melencio-Herrera and Hugo Gutierrez. After martial law was dismantled, the 1987 Constitution adopted their libertarian advocacy, and the “liberal” decisions of the US Supreme Court.

Thus, the due process and “Miranda” rights of criminal suspects were minutely cobbled into our new Constitution. Too, the Charter required magistrates to be “activists” in striking down gravely abusive acts. Historically, this duty was instituted to protect our people from oppression and tyranny.

Verily, libertarianism ceased to be a mere ideology. It became a constitutional mandate.


Liberty and prosperity. Consistent with this mandate, I firmly espoused, during my over 11 years on the Court (and up to now), an activist stance in safeguarding liberty, but advocated judicial restraint in matters affecting the economy. After all, the “grave-abuse” duty of the judiciary was instituted to safeguard freedom, not to stifle the economy.

Thus, I believe that in litigations involving civil liberty and human rights, the scales of justice should weigh heavily against the government and in favor of the people, pursuant to the doctrine of strict scrutiny. But in matters affecting the economy, courts must defer to the executive and legislative branches, in accordance with the principle of deferential interpretation of laws and executive issuances.

Grinding poverty is the most odious problem of our country. The most recent SWS poll (conducted Sept. 26-29) affirmed that 55 percent of our people rate themselves “poor.”

Days ago, Sen. Grace Poe described this grim reality in an epic privilege speech, “This is a country where skinny street kids share one bowl of instant noodles under the foot of neon ads selling liposuction for the obese. This is a country where there is a fried or roasted chicken stand in every corner but the best seller in the slums do not come in buckets but out of garbage cans—the pagpag double-fried chicken.” (Pagpag is left-over chicken which the poor scavenge from garbage bins, and then washed and refried for them to eat or resell.)

The responsibility for eradicating poverty and sharing prosperity rests primarily on our political leaders. Should they fail this duty, our people can replace them during periodic elections. Consequently, the unelected judiciary should give the elected leaders maximum leeway in fulfilling their duty.

In sum, the unelected should balance activism in safeguarding liberty with restraint in matters affecting the economy, thereby helping the elected eradicate poverty and share prosperity.

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