Judicial overreach?

President Aquino wants to clip the “judicial overreach” of the Supreme Court after it struck down four acts under his pet economic stimulus project, the Disbursement Acceleration Program or DAP. He was particularly stung by the last two paragraphs of the Court’s decision which ascribed bad faith, if not criminal fault, to the “authors, proponents and implement[e]rs of the DAP.”

Hero or heel? Of the many prerogatives of the Court, none is more awesome than its “duty” (not just its power) to strike down “grave abuse of discretion (GAD)… on the part of any branch or instrumentality of government.”

Flexing its prerogatives, the Court stopped attempts in 1997 and 2006 to install the parliamentary system via a people’s initiative, defrocked Joseph Estrada and validated Gloria Macapagal-Arroyo’s ascent to the presidency in 2001, annulled presidential issuances (declaring a national emergency in 2006 and creating the Truth Commission in 2010), nullified acts of Congress, invented the writ of kalikasan, and voided contracts (like the Naia Terminal 3 concession).

For these and similar acts, the Court has been hailed as a savior of democracy during good times, and condemned as an unwanted interloper at other times. Whether hero or heel, one thing is certain: The Court will continue to be “activist” even “interventionist” on all gravely abusive acts.

The big question is: Who will police the Court from abusing or “overreaching” its GAD duty? The Constitution has no answer. It has not even defined the meaning of GAD. It has left that definition to the Court itself, which makes it theoretically the most powerful tribunal in the world. No other tribunal, not even the US Supreme Court, has been given such an awesome responsibility to define the extent and scope of its own duty. Notably, “overreach” is not one of the grounds for impeachment.

Public opinion. Nonetheless, I believe the Court’s prerogatives have two inherent limitations: public opinion and judicial self-restraint.

As I wrote in my Aug. 24 column, litigations are not won or lost due to popularity polls. But the Court knows that, as a democratic institution, it must retain the long-term trust of our people, which must be distinguished from the shifting winds of public emotion.

This is especially true in public-interest cases. Example: Three times, the Court unanimously upheld the constitutionality of the pork barrel. However, when public opinion was stirred, the Court dug deeper into the facts and struck it down also unanimously.

Another example: In two decisions, the Court restricted the release of the statements of assets, liabilities and net worth or SALNs of the justices. Lately, however, it relaxed the restrictions and provided copies of the SALNs to several media outlets. Judicial restraint. Historically, the Constitution instituted the GAD duty to compel the Supreme Court to strike down gravely abusive acts of an authoritarian president, and to protect the people from the torment and repression of martial law. It was meant to uphold human rights and basic freedoms. In short, it was crafted to safeguard liberty.

The GAD duty was not intended to interfere with the government’s economic programs, even if our Constitution was made at a time when the prevailing economic mantra was the protection of Filipino enterprises and services, summed up in the slogan “Filipino First.”

At the time also, the government was deeply entrenched in business; it owned and operated basic industries. Not only were the government enterprises inefficient, they also lost heavily.

National Power Corp. alone lost almost P1 trillion and yet failed to produce enough electricity, resulting in rotating blackouts in the early 1990s.

However, soon after our new Constitution was ratified in 1987, the world changed. The protectionist economic theories were abandoned in the world and the era of liberalization, globalization, deregulation and privatization bloomed when the World Trade Organization (WTO) was born on Jan. 1, 1995.

In a unanimous decision (Tañada vs Angara, May 2, 1997) which I had the honor of writing, the Supreme Court upheld the Philippine adherence to the WTO, holding that “[w]hile the Constitution mandates a bias in favor of Filipino goods, services, labor and enterprises, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity, and limits the protection of Filipino enterprises only against foreign competition and trade practices that are unfair.”

The Court said that the responsibility for promoting and developing the country’s economy rested with its political leaders. Should they fail in this duty, our people can replace them during periodic election. This landmark decision spelled out my philosophy of “liberty and prosperity under the rule of law.”

The point is: the Court observed judicial restraint in economic matters by prudently citing countervailing constitutional provisions, as it did in the WTO case, or by thinking more innovatively, as it did recently in Initiatives for Dialogue vs PSALM (Oct. 2, 2012), which ruled that water flowing in a river is a natural resource reserved for Filipinos. However, once “appropriated” by a qualified local company and “collected in a dam,” it becomes private in character and may thereafter be used by a foreign firm to generate electricity.

Indeed, in my humble view, the Supreme Court can use its awesome powers to safeguard liberty and exercise restraint to nurture prosperity.

* * *

Comments to [email protected]