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Judicial activism and its limits



Filed Under: Crime, Law & Justice

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 lawmaking 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
Many Filipinos have criticized Malacaang 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.??