Pangalangan v. Puno on Judicial Activism and Rule of Law

Former University of the Philippines Law School Dean Raul Pangalangan wrote an essay last week in which he criticizes the recent Supreme Court Circular on Libel as "enhancing Press Freedom at the expense of institutionalization of the Rule of Law." He also calls Edsa DOS "constitutionally awkward". It's a breakthrough piece of writing that shows off Dean Pangalangan's "Passion For Reason." Couched in a classical and courteous style, it is also politically incorrect and must've touched a raw nerve on the High Bench for it elicited a rare, full-fledged reply with legal citations from no less than the Chief Justice Reynato Puno, who may have a future in Journalism as a Pundit. Both pieces are reproduced below. I think Mr. Pangalangan sends a message to the Supreme Court that the days when they could ignore intellectual challenges to their actions and decisions in the outside world are over! There ARE brains out here to match wits with theirs, who can understand and explain the Law without gobbledygook and won't necessarily let theirs, go completely unchallenged. For me, the Libel Circular unfairly and unjustly prejudices hundreds of existing cases. Read it all.

Judicial Activism and its Limits
by Raul Pangalangan (via Inquirer.net)

MANILA, Philippines -- Chief Justice Reynato Puno has advised the judges to stay the hand that punishes libel, by leaning toward fines rather than jail terms. I support his end goal, which is to decriminalize libel, a welcome burst of light in this dark hour when the administration of President Gloria Macapagal-Arroyo has declared open war against the media. However, I would have much preferred that it be carried out by Congress, the law-making arm under our Constitution, rather than by the Court. We have strengthened press freedom at the expense of the institutionalization of the rule of law.

Justice Secretary Raul Gonzalez suggests, on the other hand, that the Chief Justice be impeached. I strongly disagree.

The memo was well-crafted, as befits the masterful pen of Reynato Puno, and deliberately steers clear of that charge. Judicial power is exercised by the judge when he applies generally applicable rules to actual cases and controversies. Only our elected deputies in Congress however can make those rules. The Puno memo does not cross that line because it amply leaves the weighing of penalties to the trial judge. The law gives to the judge the discretion whether to imprison or to fine. The Chief Justice did not curtail that discretion, but merely tilts it one way. After all, as Holmes said, we cannot demarcate the powers of government “with mathematical precision [nor] divide the[m] into watertight compartments”; they form “a penumbra shading gradually from one extreme to another.”

The title says it all -- “Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases” -- and it actually shows how several Court decisions have now given rise to an “emergent rule of preference” for fines rather than prison.

That doesn’t make the memo illegal but it makes it woefully ill-advised, at a time the republican forces in this country have censured President Arroyo for precisely this sort of constitutional shortcut. For how can a judiciary that can barely contain its powers censure a President who abuses hers?

Sure, the “emergent rule” reflects settled case precedent, but the Supreme Court, when it wants to shape how lower courts decide actual cases, speaks through precedent, not through guidelines. In other words, Congress said through law: Punish with prison, or fine, or both. Now the Court says via memo: Among all of the above, use cash fines as far as possible.

Many Filipinos have criticized Malacañang for trying to amend the law via press release, media advisory or unwritten proclamation. Executive Secretary Eduardo Ermita declared a “calibrated preemptive response” policy against protest rallies, when the law mandates “maximum tolerance.” Gonzalez threatened journalists with jail if they insisted on covering anti-coup assaults, but explained it was a mere “advisory.” Whereas Marcos proclaimed martial law first before he declared a curfew, Ms Arroyo simply announced the curfew, who cares by what authority? The Constitution calls for a professional civil service, so what to do with unqualified political favorites? Call them presidential assistants and place them a cut above civil service rules.

Now the Court has taken a step along that same path. Though no one can accuse it of trying to undermine our liberties, the memo short-circuits the separation of powers just the same.

This is not about whether the end (protecting media) justifies the means (the guideline). The debate is actually between two competing ends: the immediate (press freedom) and the long-term (the rule of law, as embodied in a government of separated powers). In constitutional law, it’s called the theory of “pre-commitment.” We bind our hands in advance, because we know that when faced with pressing dilemmas, we will be tempted to barter systemic detriment for episodic advantage.

The Chief Justice is an activist who wants to solve problems in the here and now, but he is also a jurist, duty-bound to pay heed to institutional safeguards. Many Filipinos have lauded Puno’s judicial activism. That praise is well-deserved. When the entire administration showed callous disregard for the hundreds of victims of extrajudicial killings, it was the Puno Court alone that stepped forward to reach out to the victims. But the finest legacy that the Court can bequeath to the nation is a judiciary that is strong as an institution.

The Chief Justice cannot be blamed if he is impatient at the indifference of the two other branches of government. His activism is by no means isolated. At a recent constitutional law forum at the Hong Kong University where I spoke, it was called “Judicialized Governance,” when principled courts step into the void left by dysfunctional democratic majorities.

In May 2001, as the nation basked in glory of the EDSA People Power II uprising, I said in a lecture held at the Supreme Court for its centennial: “Given the constitutional awkwardness of EDSA II, the popular impulse, apparently, is simply for an entire society to look the other way, or more felicitously, not to look a gift horse in the mouth. I worry about this practical, pragmatic impulse.”

Today, despite dismal aftermath of EDSA II, we have remained “consequentialist.” We ask only, “What’s the immediate advantage?” but not “What principles do we sacrifice along the way?”

In 2001, I recalled Holmes who said that “great cases, like hard cases, make bad law,” and Cardozo, who warned against the “expediency of the passing hour … the derision of those who have no patience with general principles.” My conclusion then, as now: “For [Filipinos], the real legacy of these ‘great cases’ is that they have taught us the painful way, apparently the only way we truly learn, that … we need greater ‘patience with general principles,’ and that for our Republic to flourish, we must ever rely on ‘those wise restraints that make us free.’”

Amazingly, the Supreme Court Chief Justice Reynato Puno replied within days to Dean Pangalangan who has published the rare Letter to a Pundit in full today.

JUSTICE PUNO: I write in reaction to the column of former UP [University of the Philippines] Dean of the College of Law, Raul C. Pangalangan entitled “Judicial Activism and its Limits,” which appeared in the 1 February 2008 issue of the Philippine Daily Inquirer.

At the outset, I thank Dean Pangalangan for some praises but I wish to clarify some points when the Court en banc approved the Circular calling the attention of judges to some of its decisions imposing fines on accused convicted of libel.

First. Dean Pangalangan says he supports our end goal to decriminalize libel. This is not our end goal. The decision to decriminalize libel belongs to Congress and not to the Supreme Court. There ought to be no argument on this point.

Second. If the intent of the Supreme Court is to decriminalize libel, the Circular would have advised judges to dismiss all criminal cases for libel and inform the victims that their only remedy is to file civil damages. The Circular did not give that advice but merely called the attention of judges to decisions where fine was imposed under certain circumstances.

Examples of these circumstances are: (1) when the accused wrote the libelous article merely to defend his honor against the malicious messages that earlier circulated around the subdivision, which he thought was the handiwork of the private complainant; (2) when the accused committed the libel in the heat of anger and in reaction to a perceived provocation; (3) when passions evoked during the election period in 1988 agitated the accused into writing his libelous letter; and (4) when the accused was merely exercising a civic or moral duty to his client when he wrote the defamatory letter to private complainant. Stated differently, the judge, in the exercise of his discretion, should impose the penalty of imprisonment when these circumstances are inexistent.

The imposition of fine does not decriminalize libel for the simple reason that fine is a criminal penalty. Let me just quote the pertinent provisions of the Revised Penal Code, viz: Art. 25. Penalties which may be imposed … [and] Art. 26. Fine -- when afflictive, correctional, or light penalty….

Needless to state, when a court imposes fine, it is imposing a criminal penalty. Indeed, pursuant to Article 39 of the Revised Penal Code, an accused who fails to the pay the fine will suffer subsidiary imprisonment [“If the convict has no property with which to meet the fine”] viz: Art. 39. Subsidiary penalty….

Fourth. In imposing fines, courts are given leeway by … the Revised Penal Code, viz: Art. 66. Imposition of fines [taking into account] “the mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit.” The article speaks for itself.

Fifth. Former Dean Pangalangan says the “Supreme Court, when it wants to shape how lower courts decide actual cases speaks through precedent, not through guidelines.” We agree but a side glance at the Circular will show that the Court spoke to the judges through precedents. Precisely, the Court called their attention to the following decided cases: Sazon v. CA (1996); Mari v. CA (2000); Brillante v. CA (2005); and Buates, Jr. v. People (2006).

Sixth. The former dean asks: “For how can a judiciary that can barely contain its powers censure a President who abuses hers?” It is perplexing how the Dean can use the premise of a “judiciary that can barely contain its power” yet laud judicial activism. There were only two instances when the Court used its expanded power to promulgate rules to protect the constitutional rights of our people to life, liberty and security -- that was when it promulgated the rule on the remedy of the writ of amparo, and the writ of habeas data. We cannot, therefore, complain of “a judiciary that can barely contain its powers.”

Seventh. The former dean has no reason to lament the short-circuiting of the principle of separation of powers and the erosion of the rule of law. The Circular does not violate the doctrine of separation of powers because it is based on cases decided by the Court in the constitutional exercise of its power to interpret our laws. It does not erode the rule of law but strengthens its sinews, for it follows the architecture of our Constitution that gives preferred status to freedom of speech and of the press.

In any event, we thank former Dean Pangalangan for his valuable thoughts on the Circular.

...AND, one of these days, I'd like them to talk about the picture in this post and why the Supreme Court deserves to wear it as an albatross around their honorable neck!