Why let SC play Pontius Pilate?

Justice Jose Mendoza played Pontius Pilate well. Like the Roman governor of Judaea, Mendoza let politics trump principle. Pilate found Jesus guilty of “no fault at all,” just as Mendoza said Ferdinand Marcos “was not, and will never be, a hero.” While explaining his vote to allow the burial of Marcos’ remains in the Libingan ng mga Bayani, Mendoza—like Pilate before him—raised his hands before the crowd to show they are clean. The Supreme Court “is not passing judgment” on Marcos’ character, he said. “It is merely exercising judicial restraint.” The issue is “truly political in nature,” he continued, thus “best left to the discretion of the President.”

Eight other justices joined Mendoza in this ceremonial washing of hands. Diosdado Peralta, in the main decision, wrote that the issue is “ultimately for the people themselves, as the sovereign, to decide.” Arturo Brion chanted the magic words: The issue is “a political question,” one which “the President has decided, and is not without support from the Filipino electorate.” Jose Perez echoed him: The issue “should not even be touched by the Court since it is a political question.” Lucas Bersamin joined them: The burial is “a political question within the exclusive domain of the Chief Executive.”

The Marcos dictatorship has taught our country the danger of letting our courts wash their hands regularly in the political-question basin. It allowed Marcos to mangle our previous constitutions and encouraged escalating violations of democratic freedoms. First to go was the privilege of the writ of habeas corpus, then free speech, then due process, then congressional elections, etc. This went on until military tortures and murders of nosy journalists and noisy activists went unreported each day. To prevent these from recurring, the People Power Constitution tasked our courts to oversee if political questions are being answered properly. Judicial power now includes the duty to determine if “any branch or instrumentality of the Government”—including the president—gravely abused their discretion. The Constitution also strengthened judicial independence and enshrined plentiful principles to help courts fight against grave abuses of official discretion. Despite all these, the Court still failed to uphold the Constitution’s antidictatorship principle when it allowed the Marcos burial in the Libingan.

Courts play Pontius Pilate when unsure of their place in a democracy. Judges see in elected officials the embodiment of the people’s will and so defer to them, thinking that unelected courts are less democratic than elected officials. But Yale jurist Bruce Ackerman explains that democracy has two levels. Ratifying a Constitution is on a higher level than electing officials for three reasons: First, a larger slice of the population votes for a constitution than for any official. Second, it is harder and takes longer to enact a constitution than to elect an official; that more difficult process sharpens public debate and makes it more serious. Third, constitutions are usually made when the people are united in a way that makes them sacrifice private interests for the public good. Courts therefore uphold democracy when they protect constitutional principles against present politics. Our Constitution’s framers understood this when they strengthened the judiciary’s powers and fortified its independence.

Ultimately, however, it is up to all of us to ensure that courts fulfill their constitutional duty. As James Madison says: The people are always “the primary control on the government.” Judicial independence, separation of powers, etc. are merely “auxiliary precautions.” Unfortunately, the tenor of today’s protests show that we are again letting the Court escape responsibility. We do not protest enough against the Court, as if to say: “Yes, your hands are clean.” Have we not learned from history? How many more times will we let our courts play Pontius Pilate? How many more of our Constitution’s principles will we see nailed on the cross of power politics?

Bryan Dennis Gabito Tiojanco is a doctoral student at Yale Law School and a Yale Fox International Fellow at the National University of Singapore. He graduated cum laude from the University of the Philippines College of Law in 2009.