Monday, January 2, 2006

Bernas and Biblical Judicial Activism

ANDREW SULLIVAN points to a description of the American conservative mind by the Wall Street Opinion Journal's Jeffrey Hart
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 Legislation is more easily revised or repealed than a court ruling, and therefore judicial restraint is necessary.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.

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.
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:


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?


Edwin Lacierda said...


What would the Philippine blogosphere be without such a gadfly like you? You are by far, the most insistent in stirring in the hornet's nest and with that, elevate the level of discussion on a higher plane. We owe you one.

Having said that, let me say that I used to agree with judicial conservatism. But civil liberties are not advanced by an insistence on the original sense of the framers. They could not have possibly anticipated the rise of novel issues besetting the present crisis. If we follow the framers of the US Constitution, the blacks would still be 3/5 of a person and following the Dred Scott decision, they would still be chattel.

Unfortunately in this juridiction, judicial activisim has been largely limited to procedural rules, big business issues, and in your loudest criticism yet, Philippine judicial activism was at its worst with the EDSA Dos coronation of GMA. There is validity to your criticism but unfortunately, that act is quite irreversible to the detriment of our country today.

But to decry judicial activism in all its forms is to throw the baby out of the bath water. There is merit in judicial activism especially when it comes to promoting and expanding the power of civil liberties against the assault of big government. And this is one area where the Supreme Court has been lagging and very conservative.

In time, we ought to weigh the utility of judicial activism and temper it with the "sense" of judicial conservatism. Andrew Sullivan's notion of conservatism must be construed in the light of the activism in the US where activist judges have thrown caution and sense to the wind. That is not the activism I espouse. There should and must be a balance of both schools of thought and I think we can find it somewhere and someone in the High Court.

But of course, my dear gadfly, and in your view, you will not find it in the Panganiban High Court. Still, hope springs eternal.

Rizalist said...

Thanks for this Ed. You've raised an excellent point about activism and conservatism. Frankly I don't know what to expect of the Panganiban Court though as an amateur I know my skills at comprehending the Court's English Composition will always be meagre to the task so I really appreciate your expert opinion on these matters. Part of the pleasure I get from thinking about the Law is talking about it with Lawyers -- who are the only people trained to argue and still be civilized.

I do see the Law as a living, growing thing, almost like a weblog, something Man writes and rewrites, creates and recreates, and expands to fill the voids in our customary treatment of situations that arise in society and history. Now the conservatives seem to think that the filling of such voids and expansion of the Law's coverage ought to be left to the elected, not the appointed members of the government. I think we'll have a lot of interesting times with the Supreme Court this year.

(Coronation? Wow I like that formulation!)

Amadeo said...

In my personal opinion, I do not believe that judicial conservatism is at the other end of judicial activism. Because if we take it from the US context, judicial activism is popularly meant to refer to judicial decisions which are way beyond precedent or considered exceeding the scope of established law. Thus, it does not refer to whether the decision favors liberal issues or not. Rightfully, it is judicial restraint that is at the other end of it.

Except that in reality where I live in San Francisco, seat of liberalism here in the West Coast, is where the 9th Circuit Court is domiciled. And decisions coming from this court are emblematic of this judicial activism, although a good many of its decisions have been reversed by the higher appellate courts.

And thus also, the challenges have been less than over the content and impact of the decisions than that these "unelected" officials are usurping the function of the "elected" legislature.

What muddles the distinction is that by and large, Democrats find cause to favor this judicial activism because of their apparent inability to push through legislation favoring their causes. They have lost control of both executive and legislative branches, and thus are throwing in their support on the last branch of government, where they might find more agreeable voices. And of course, Republicans want more judicial restraint.

And what contributes even more to this haze is the fact that waiting on the wings to be confirmed is Judge Alito, who if confirmed will be the 5th Supreme Court justice who is Catholic!

So where will this new SC go?

Rizalist said...

AMADEO -- I myself used to believe that the Judiciary was the "weakest" of the three branches, which made me wonder why it has always been cautioned to exercise judicial restraint. At one time, I really thought that judicial activism should be a SLOGAN of the judiciary, because of it potential to right so many wrongs. Edsa II changed all that for me, philosophically, because as Ed Lacierda just put it on this thread, the weakest branch is capable of pulling off a CORONATION, with the merest flourish of its awesome pen. I guess the Judiciary does not know its own strength, but bitter experience does. Not to say I don't like revolutionary decision making by Courts (such as anti-slavery decisions after a whole century upholding slaver's rights) but Sullivan and Hart's point is that they should always do things "with one had tied behind their back". Or something I still believe: The SC must be absolutely RIGHT in their decision making, so much so that it is better NOT to make a decision if they aren't sure it's right. I'm not a big judicial conservative really, but the biggest decisions, such as who should be President next should take a whole lot more than 45 minutes to decide.

Good thoughts Amadeo! Don't know much about Alito, so keep us posted.