Extrajudicial Activism

Former Chief Justice Hilario G. Davide, Jr. has left a terrible legacy for the Philippine Judiciary even as he enjoys a nice retirement and sinecure in New York and the United Nations far from the scene of his destruction. For when the history of our epoch is written, the vast audience of the future will see the legal and moral chaos wrought by his most unwise acts on 20 January 2001 (Edsa 2 coup d'etat disguised as "people power"). His, is an accursed and misbegotten example of judicial activism that goes far beyond anything that other jurisdictions normally call by this term, (which is pejorative though often ill-defined). Indeed, I am coining a new term to describe the especial deviltry of Davide that has been loosed on the Judiciary: extradjudicial activism.

Why be fair when you can be famous?

It is necessary to invent such a new term for application to the modern Philippine Judiciary because the ordinary term, judicial activism, does not encompass the central new role being carved out for the Judiciary by Davide and several of his successors on the High Bench, like the current Chief Justice, Reynato Puno, who appears to be likewise gunning for a nice appointment abroad, perhaps to one of those Kangaroo Courts in The Hague. Moreover, the ordinary term usually applies only to actual DECISIONS or RULINGS that judges make within the context of justiciable cases brought before their Courts.

My new term extrajudicial activism however, covers also the illegitimate POLITICAL ACTS of of these unelected judges OUTSIDE of the normal realm of decision-making and adjudication. The prototytpe and worst transgression was of course Davide's overthrow of the Joseph Estrada in 2001, which he did in the Black Robe costume of the Chief Justice, but which was outside of ANY case before him as Chief Justice of the Supreme Court. His duty on 20 January 2001 was to continue the Impeachment Trial of the President, of which he was the presiding judge. Instead he went to a religious shrine, and in an ACT of extraordinary destructive power, set aside the explicit requirements of the Constitution on Presidential succession and established the present regime of moral and legal chaos. (See the Comment Thread on MLQ3's recent post for an extensive discussion of Edsa Dos.)

"Ordinary" JUDICIAL ACTIVISM has various definitions:

The Harper Collins Dictionary of American Government And Politics depicts judicial activism as the "making of new public policies through the decisions of judges."

Black's Law Dictionary defines it as a "judical philosophy which motivates judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with the restraint expected of appellate judges."

The New Dictionary of Cultural Literacy says it is synonymous with the term "broad construction" - which, according to the dictionary, is a "theory of interpretation of the Constitution that hold that the spirit of the times, the values of the justices, and the needs of the nation may legitimately influence the decisions of a court, particularly the Supreme Court."

When broadly describing the work of American judiciary, the Oxford Companion to American Law, explains that judges have been struggling since the nation's founding "to reconcile their role as impartial legal actors, whose rulings much rely on established principles of law, with their place in the political sphere."

According to this Comment for the California Law Review by Keenan Kmiec the term
judicial activism was first popularized in the United States jurisdiction by Arthur M. Schlesinger in a seminal 1947 essay categorizing the Supreme Court's members at that time, as "activist" or "self-restrained" or "in the middle" of these two. He identifies five core types of judicial activism: (1) invalidation of the arguably constitutional actions of other branches, (2) failure to adhere to precedent, (3) judicial "legislation," (4) departures from accepted interpretive methodology, and (5) result-oriented judging.

Kmiec cites a case that may become of crucial relevance in coming days because I believe it already foretells the rationalizations that the Philippine Supreme Court is about to employ also in justifying its recent resolve to look into the matter of alleged extrajudicial killings by the Military against Leftist activists whom they say are partisans of the CPP-NPA:

One extraordinary exchange takes place in the 1978 Second Circuit decision, Turpin v. Mailet, [FN107] which holds that cities may be held liable in damages for violations of the Fourteenth *1460 Amendment. [FN108] The case sounds much like Schlesinger's hypothetical dialogue between the Champions of Self Restraint and the Judicial Activists. A sharp dissent criticizes the majority for its conception of the judicial role. The majority justify their holding by stating that they are simply creating a "[structure] for enforcement similar to those normally fashioned by legislatures." They say that they are "[invigorating] the political process," that they are indulging in "judicial rule-making" which they liken to "legislative activity," and that they are thus opening a "dialogue with Congress." [FN109] This critique is grounded in the separation of powers, and an understanding of the role of Article III Courts. The dissent argues that the majority has stepped beyond its constitutional bounds by adopting the function of a legislature. This argument would resonate with the Frankfurterian Champions of Judicial Restraint, as Schlesinger portrayed them.

This exercise is relevant today because I think that Chief Justice, Reynato Puno and the present Supreme Court are about do Davide one better (or should I say worse!) by performing a similar coup d'etat as he did on the Presidency, but this time it is the Legislative Branch that is about to be victimized by the marauders of Padre Faura. Puno, et al, may soon lead the entire Judiciary and country into an uncharted quagmire of injudicious new "principles" that will lead to new "rules of court procedure" ostensibly to deal with the alleged political killings being conducted by the Philippine Military against militant leftists and front organizations of the underground CPP-NPA, all in the name of "human rights."

The leitmotif of this new initiative is the elevation of "command responsiblity" as a basis for imputing criminal liability to the entire chain of command for the actions of individuals within it. Here already is the beginning of this slippery slide to perdition:

MANILA, Philippines -- The doctrine of command responsibility may be used in cases involving extrajudicial killings, a Manila Regional Trial Court judge said Tuesday.

Judge Silvino Pampilo Jr. of Manila RTC Branch 26 said the doctrine was still “new” to the courts but that the judiciary was now exploring its use in order to hold military commanders and police officers “criminally liable” for their subordinates’ actions.

The judge sits on one of the 99 special tribunals designated by the Supreme Court to handle extrajudicial killings.

Pampilo said the summit on extrajudicial killings proposed by Chief Justice Reynato Puno would step up the judiciary’s efforts.

Supreme Court spokesperson Jose Midas Marquez said the summit was scheduled for July 16-17.

“In criminal law, a commander cannot be held liable if he is not a principal, an accomplice or an accessory. But [under] the principle of command responsibility, he may be held criminally liable if he tolerated, failed to prevent or played blind to extrajudicial killings and enforced disappearances committed by his subordinates,” Pampilo said.

The Supreme Court may be about to change this long-standing tenet of the law, in ways whose long term consequences may be unforeseeable. It is precisely the kind of "results-oriented judging" that Kmiec mentions in the fifth type of judicial activism.

Even though they are piously invoking the protection of HUMAN RIGHTS as their intention and Constitutional basis, there is every reason to be nervous about EXTRAJUDICIAL ACTIVISM as it is being practiced by the Philippine Judiciary.

I have perhaps been a little unkind, or even disrespectful and cynical of the High Court, in suggesting at various venues that the "hidden motivation" of Reynato Puno is the same fame and adulation that Hilario Davide has so far received for acts done not as cold impartial judges, but as political activists, plain and simple, outside their assigned role in the democratic structure.

In short, these folks are fiddling with Machinery in ways characteristic of the 1987 Charter's penchant for over-reacting to a long-dead Ferdinand Marcos.

My suspicion is that after having blessed, tolerated and acquiesced in the fascist dictatorship of that sorry carcass of a president from 1971 to 1986, the authors of the 1987 Constitution tried to make up for their lack of action as citizens over many years under Marcos by putting many brave words and over-reaching provisions in the Constitution.