The Court that became Congress

BARELY A month ago, we celebrated the 30th anniversary of Edsa I, proclaiming #NeverAgain. More importantly, we remembered that a significant result of that “revolution” was the drafting and promulgating of the 1987 Constitution to prevent the return of tyranny. This fundamental document of our people reiterated our rights as citizens, and defined and limited the powers of government.

But that Constitution, like any other, can only be an effective guarantee against tyranny if the people and the institutions it created will respect it and remain vigilant in upholding its provisions in their original meaning.

This was the truth eloquently expressed by Justice Arturo Brion in his dissent in the recently decided Poe vs Comelec:

“To be sure, the applicable measuring standards [in deciding this case] cannot simply be the individual Justices’ notions of the fairness of the constitutional terms involved (which are matters of policy that the Court cannot touch), nor their pet social and human rights advocacies that are not justified by the clear terms of the Constitution.

“If these constitutional terms are clear, the only option for the Court is to apply them; if they lack clarity, the Court may interpret them using the established canons of constitutional interpretation but without touching on matters of policy that an authority higher than the Court’s—that of the sovereign Filipino people—has put in place.

“If indeed the Court deems the constitutional terms to be clear but tainted with unfairness, the Court’s remedy is to note the tainted terms and observe that they should be raised with the people and their representatives for constitutional amendment; the Court cannot act on its own to remedy the unfairness as such step is a political one that the Court cannot directly undertake. Definitely, the remedy is not to engage in interpretation in order to read into the Constitution what is not written there.”

With respect to Poe vs Comelec, the issue is not whether foundlings deserve citizenship or to be allowed to run for higher office. Neither is it about overseas Filipino workers or human rights. The issue is: Who is authorized under our Constitution to make that call? To whom did the Filipino people give the power to make the rules?

The 1935 Constitution was approved by around 202 elected members of the Constitutional Convention and ratified by 1,213,046 Filipino voters (or 96.43 percent of the then voting population).

The Constitution currently in force was approved by 50 individuals appointed by President Corazon Aquino to make up the Constitutional Commission. It was ratified in a plebiscite by 17,059,495 Filipino voters (76.37 percent of the then voting population).

Both those Constitutions clearly laid out the qualifications for president. In effect, it was the millions of Filipinos who laid out those qualifications. And thus, only they, in the proper procedure outlined in the Constitution, can change these qualifications. Not a small group of unelected lawyers, no matter how learned they may be.

Again, it may be that the requirements for a president to be a natural-born citizen and to have resided in the Philippines for at least 10 years immediately preceding the day of the election are unfair to foundlings, OFWs or any other class. It may be—though it is debatable—that the interests sought to be protected in imposing citizenship and residency requirements for the holder of the highest post in the Philippine government have become irrelevant through time.

Because, yes, the Constitution was not made by prescients, fortune tellers who could look into the future. Yes, the Constitution will need updating.

But the way to do that is to allow its authors, the Filipino people themselves, directly to amend it by the proper amendatory process.

To those politicians and commentators who raise the issue of time: If you were truly so concerned about foundlings and OFWs, then why was no law made clarifying their citizenship or their rights when there were decades of opportunity to do so? Why wait at the last moment for an unelected judiciary to be forced to legislate on the matter?

To those applauding the trampling of our Constitution, this question should be asked: Would they feel the same way about the ruling if the foundling were Mar Roxas, Rodrigo Duterte, Miriam Santiago or Jojo Binay?

This insistence on judicial restraint is not to side with any politician but a call to uphold the rule of law and a democratic system of government.

To permit the Supreme Court (or any department of government or any individual) to exercise powers that were not given to it by the Filipino people through the Constitution is dangerous. In doing so, we are setting ourselves up for a judicial oligarchy.

We are sure that the Supreme Court had only good intentions ruling as it did. But the road to hell is not only paved with good intentions, it is also furnished and lighted by them.

The power to do immense good is also the power to do immense evil. It is for this reason that any official, elected or not, must never be allowed to overstep the limits of his or her authority no matter how good his or her intentions are. We invite everyone to reflect on this.

Hashtags are not enough to defend democracy. We must also act consistently and rationally to avoid repeating the evils that made Edsa I necessary in the first place.

Cristina Montes (LLM Navarre) and Jemy Gatdula (LLM Cambridge) are cofounders of the Philippine Principles Institute, an organization dedicated to upholding the true meaning of the Constitution.