THE ROLE OF JUDGES IN RESOLVING NATIONAL DEBATES
It is not the function of the judiciary to resolve national debates. That is up to Congress or the people themselves to resolve.
It best starts with the oath: “ilalapat ko ang katarungan nang walang pagkiling sa sino mang tao at ipatatamasa ang pantay na karapatan sa mahirap at mayaman; na tutuparin ko ng buong husay at katapatan, sa abot ng aking kakayahan, ang mga tungkulin ng aking kasalukuyang katungkulan; na aking itataguyod at ipagtatangol ang Saligang Batas ng Pilipinas; na tunay na mananalig at tatalima ako rito; na susundin ko ang mga batas, mga kautusang legal at mga dekretong ipinaiiral ng mga sadyang itinakdang maykapangyarihan ng Republika ng Pilipinas; at kusa kong babalikatin ang pananagutang ito, ng walang anumang pasubali o hangaring umiwas. Kasihan Nawa Ako ng Diyos.”
That’s the oath all Philippine judges take. Presumably, Supreme Court justices too.
Such is remarkable ( and admirable) for its content: the objective application of justice, regardless if one is rich or poor, the upholding of the Constitution, and the fact it ends with an appeal for God’s help.
The foregoing also should be read alongside the Supreme Court’s function, as described in the Constitution: “to settle actual controversies involving rights which are legally demandable and enforceable” and determine the constitutionality of any treaty, international or executive agreement, or law; decide on the legality of any tax or any penalty imposed in relation thereto; cases in which the jurisdiction of any lower court is in issue; all criminal cases in which the penalty imposed is at least reclusion perpetua; and all cases in which only a question of law is involved.”
The point here is this: contrary to what activist lawyers noisily try make it out to be, the function of judges is simply to decide cases. Not make law.
And when judges decide a case, it entails merely that he (or she) identify and apply what the law is, either as expressed in the Constitution or in the statutes our Congress promulgated. Neither more nor less. It is never the judge’s job to make policy or solve the nation’s ills or to use cases as an opportunity to advance a political or social agenda.
Should the Constitution or a statutory law be unsatisfactory, then it is up to the people or Congress, respectively, to make the correction. Not the judiciary.
One of the more damaging legal theories to have ever crossed our shores is that of the “living constitution”; i.e., the argument that constitutional or statutory provisions change (evolve) through time to meet the exigencies of the present.
The problem with that theory (so beloved by the so-called prestigious local law schools) is that the absence of textual basis in law or democratic logic.
“The Constitution is not an organism; it’s a legal text!” says the late Justice Antonin Scalia. And he is right.
The Constitution is a legal text, just like any legal document. The validity of the living constitution theory is as flaky as saying that one’s contractual obligations could change because one of the parties unilaterally decided that the words thereof have evolved through time.
With the living constitution theory, what you have is a body of jurisprudence that is (to borrow from lawyer Michael McConell) “sloppy, results-driven, plagued with fuzzy three- part tests and fuzzier four-part tests, all of them concocted … with little basis in constitutional text.”
To law students: what this means is that your constitutional law studies could have been easier had our judiciary stuck to their function of simply declaring what the law is. Law books would have been slimmer, consistent, and focused had it not been filled with judicial standards and tests whose foundations are mostly tenuously connected (at best) to the Constitution.
If such standard or tests were necessary, it is up to Congress — the elected legislative representatives of the people — that should make it. Not the judiciary.
No. As Justice Scalia cogently puts it: “the provisions of the Constitution have a fixed meaning, which does not change: they mean today what they meant when they were adopted, nothing more and nothing less.”
Granted, there are the “majestic generalities,” as Holmes would say. Also the unfortunate “grave abuse of discretion” clause, which allows an unelected judiciary to substitute its preferences over that of the people’s elected legislature.
But even then, Supreme Court’s function is merely to apply the Constitution’s specific Judeo-Christian philosophy, principles, and values at the time it was authored by the Filipino people.
Not the justice’s personal wisdom or current views, no matter how progressive it may be.
Ultimately, what is being called for here is humility and trust in the democratic system and in the Filipino people.
As Justice Scalia urges: “The good judge must suppress his personal views and must decide each case as the law dictates, not as he would have resolved the matter if he had drafted the law or the constitutional provision at issue.”
It is not the function of the judiciary to resolve national debates. That is up to Congress or the people themselves to resolve.