Judicial courtesy

Two separate orders by the Supreme Court, temporarily restraining co-equal branches of government from proceeding with their actions until a judgment on pending cases challenging these has been issued, have once more raised the specter of a constitutional crisis.

In the first, the high court stopped the House of Representatives from further acting on impeachment charges filed against the Ombudsman.  In the other, the justices ordered the president to restore the head of the Commission on Muslim Filipino Affairs to her position, from which she had been removed on the ground that she was a “midnight appointee,” while her petition is being heard.  Both the president and the legislators have protested these orders, calling them unwarranted judicial interference.

Not being a lawyer or a constitutionalist, I must begin by explaining where I’m coming from on questions like these.  As a sociologist, I’m interested in the analysis of social processes – like law and politics – and what they tell us about the larger social realities we face as a result of the kind of society we are becoming.  These problems are not unique to us.  They confront all societies in the course of their transition to a differentiated institutional order.

We often talk of the rule of law as though the law has its origins outside of society, and therefore stands above it as an independent source of authority.  Social science has come a long way from this mystical and naturalistic interpretation of law.  It sees law instead as a product of society itself — specifically of its politics — that acquires, in the course of its evolution, a level of autonomy appropriate to the growing complexity of society. “Law is frozen politics,” says the legal scholar Roberto Unger.  But this sharp formulation does not take into account the other side of the relationship, i.e. how law influences politics.

Law is expected to regulate politics.  It must do so as a condition for the maintenance of a stable political order.  Nowhere is this more evident than in the importance assigned to a nation’s constitution. A constitution is inseparable from the people in whose name it is written.  The constitution “creates” the people for whom it speaks.  In the process, it may appear to acquire a life of its own.

We know that the constitution is not a self-implementing document.  Most of its provisions have to be enacted by the legislature into specific laws. Its fundamental vision has to be carried out by the executive branch. And the unavoidable gulf between the constitutional text and its shifting meanings has to be bridged by the Supreme Court.

This unity and separation of the powers of government is a precarious one.  The unity is held together by the constitution.  But, paradoxically, the constitution can do this only to the extent that it can ensure the separation of these powers – meaning, that it equips each of the branches enough powers to restrict the influence of the others on their affairs. The viability of this arrangement is tested at almost every point.

Supreme Court justices are appointed by the president.  But a high court that becomes no more than a tool of politics is next to useless. By the same token, though the President and Congress draw their authority from their election by the people, they can exercise their powers only within the terms of the constitution. But an executive and a legislature that allow their initiatives to be routinely blocked by a court that is insensitive to the context in which the constitution operates face paralysis.

“The constitution is delegated neither to politics nor law exclusively, but simultaneously within and outside each of the two systems,” writes Andreas Philippopoulos-Mihalopoulos, a professor of law at the University of Westminster.  This is an interesting rejoinder to the common view that assigns to the Supreme Court the exclusive right to interpret the intentions of the constitution.  It reminds us of the need for judicial caution when passing judgment on the actions of political bodies, and equally, of the need for a form of politics that is tempered by respect for the legal framework in which political prerogatives are exercised.  In short, courtesy on both sides of the functional divide.

“Courtesy,” curiously, is a word that often appears in the statements of the high court itself.  Except that the court tends to see courtesy mainly as something to which it is entitled, rather than as something it must also, as often, extend to the political branches.  On Oct. 13, the day the Court issued a status quo order on the petition of Lucman, court spokesman Midas Marquez said that the order covers only the case of Lucman, and not all the pending “midnight appointment” cases.  “However,” he added, “the exercise of judicial courtesy may go a long way.” That unfortunate addendum implied, as the Inquirer report understood it, “that Malacanang could use Lucman’s petition in dealing with four other midnight appointees who submitted their respective motions to the Supreme Court.”

In the wake of President Aquino’s strong reaction to the high court’s order, we hear a differently calibrated message from the SC. On Oct. 15, Marquez said: “The fact that the SQA order covers only the Lucman petition shows that it is a class of its own and it cannot be invoked as a blanket remedy for all the so-called midnight appointees.” One wishes he had said this from the start, instead of trailing off with a vague reference to judicial courtesy. I doubt if Malacanang would have been provoked to criticize the SC so directly.