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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.

- JEMY GATDULA JEMY GATDULA is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constituti­onal philosophy and jurisprude­nce. jemygatdul­a@yahoo.com www.jemygatdul­a. blogspot.com facebook.com/j

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.

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