Constitutional government. Depending on English tradition and classical theory, the Founders designed a government by the "deliberate sense" of the people. The "sense" originated with the people, but it was made "deliberate" by the delaying institutions built into the constitutional structure. This system aims at government not by majorities alone but by stable consensus, because under the Constitution major changes almost always require a consensus that lasts over a considerable period of time. Though the Supreme Court stands as constitutional arbiter, it is not a legislature. The correct workings of the system depend upon mutual restraint among the branches. And the court, which is the weakest of the three, should behave with due modesty toward the legislature. The legislature is the closest to "We the people," the basis of legitimacy in a free society. Legislation is more easily revised or repealed than a court ruling, and therefore judicial restraint is necessary.JOAQUIN BERNAS, S.J. renowned Jesuit Constitutionalist and a literal "forefather" of the Philippines 1987 Constitution, writes in Inquirer OpEd this week about The Bible and the Constitution
A key problem for Bible interpreters is the "literal sense" of the text. They have to deal with the tension between the historicity of the events described and their spiritual meaning. For the Constitution, what is often debated about is what the "original intent" of the framers was and whether that intent has been ossified in the text. The debate is between "originalists" or "literalists" and the "progressives" or "judicial activists." We recently saw a little bit of this in the Supreme Court's divided opinion on the constitutionality of the Mining Act where, incidentally, the new Chief Justice played a leading role.I have long maintained that judicial activism is a mild term for the behavior of the Philippine Judiciary in the post martial law period. Father Bernas reveals the moralistic and paternalistic roots of the philosophy that produced a literal putschist like Chief Justice like Hilario G. Davide Jr. with decisions like Estrada v. Arroyo (March, 2001) and Estrada v. Desierto. (April, 2001) -- whose main conceptual mutations are:
For as long as we have a Constitution, the tension between "originalism" and "activism" will continue. Several reasons are given in defense of originalism. Originalists say that judges should not usurp the power of elected representatives. They say that originalism preserves the authority of the Court as guardian of the authority of the law. Non-originalism leads to subjectivism or even elitism. Amending the Constitution should be left to the people after serious public debate. In that way respect is given to the Constitution as a binding contract.
Non-originalists have their reasons, too. They say that it is not always easy to deduce the original intent of the framers and much less of the people who ratify the Constitution. Intentions are not always unanimous, or clear, or meant to be permanent. Besides, no written Constitution can anticipate the various ways in which government might oppress the people. What Constitutional Commission ever thought of EO 464? Since the amendment process is difficult and rarely used, non-originalism allows judges to head off crises not anticipated by the framers. The Constitution must be seen not as unchangeable matter but as an evolving organism. Finally, while the spirit can give life, the letter can kill.
(1) that VOLUNTARINESS is not ESSENTIAL to RESIGNATION and,
(2) That PERMANENT DISABILITY can be REVERSED by judicial FIAT.
I think that Fr. Bernas continues the ceaseless mythologizing of Edsa-II by politically correct civil society in justifying Davide's towering judicial activism with: "non-originalism allows judges to head off crises not anticipated by the framers." Like most people, he knows what Davide did on 20 January 2001 was UNCONSTITUTIONAL (I say TREASONOUS), but rationalizes the judicial coup d'etat as having "prevented violence" -- Cardinal Sin's justification for it too. It's the dirty parternalistic lil secret few of the unrepentant Edsa II participants want to admit.
Father Bernas would have us trust unelected Judges because they will know when it is okay to break the Constitution. Especially when the Judge is also a Framer like Davide was, then in whom could greater wisdom be invested, and the people's trust be better guarded, than by a Chief Justice or a Pope?
Say AMEN Brothers and Sisters. Say AMEN. You have been told -- trust in your Betters!
OH! So you want to know about that new guy, Panganiban?