‘Judge-made law’

A good friend of mine, Manoling de Leon, who reads my columns with the analytical mind of a well-read autodidact, sent me a question the other day for which I thought I had an adequate answer. “If the prime motive is to attract foreign investment, why not simply ask the Supreme Court how to legally enable foreign investors to own land? This will bring in the wisdom of the SC to our quest for economic growth. Wala pang gastos at gulo.” The context of his question is the ongoing debate over the restrictive economic provisions of the 1987 Constitution.

I wasn’t sure if my friend was serious. In any case, I texted back this quick reply: “Good question. The reason it can’t be done is because this is a policy matter and, as such, it is strictly political—the sphere of elected officials, not the domain of the judiciary.” His follow-up text convinced me that he was posing a thoughtful question: “Oh, but can’t the executive branch ask?”

My answer was quick and certain: “No, the executive branch cannot ask the judiciary for advice on policy issues—unless it is doing so in sarcasm, as a way of mocking judicial overreach.” My friend thanked me for the explanation, but the question refused to leave me. I turned to some references on the difference between legislation and jurisdiction for some enlightenment, and what I found was quite fascinating. I began to see that the disagreements between political leaders and the courts have a long history, reflecting the twists and turns in the evolving relationship between law and politics.

In the old world, those who were in positions of political authority also interpreted the laws and dispensed justice.  With the growing autonomy of the legal system from the political sphere, however, the task of interpreting the law and rendering decisions became the exclusive function of the courts.  This task is not as simple as it may seem.  Laws pile up over time, creating a complexity that has to be remedied by codification. Courts develop methods and rules of statutory construction that entail recalling the intentions of those who made the laws, and distinguishing the law’s letter from its supposed spirit.  The result of all this is the belief that the law is really no more than what the courts say it is.

In his classic work, “Law as a social system,” the German theorist Niklas Luhmann wrote:  “Judge-made law became accepted as a source of law of its own kind.  This led gradually to the insight that the relationship between legislation and jurisdiction should be seen not as asymmetrical and linear, but as circular, and as mutual limitation of the ambit for decisions.”

But, this insight is not easily accepted by legislators who are naturally protective of their lawmaking powers, or by administrators who think that judges may not always be sufficiently conversant with the realities of their work as to render fair judgment of what is lawful or unlawful in what they do.  If courts effectively make laws by the act of legal interpretation and decision-making, how do they avoid falling into the fatal circularity of making the law and applying it too?

One technique by which courts avoid this circularity, says Luhmann, is by the use of a peculiar terminology.  Decisions are always presented as a “finding of law,” suggesting that the law exists in all its clarity prior to its application.  Courts will never say that they cannot decide because the law is unclear.  They are legally bound to render a judgment—under pain of the prohibition against denial of justice—even if it is only to say that a case is not justiciable because it concerns a political question.  The doctrine of political questions “is a self-limitation within the legal system which is accepted by the courts, and is not a politically enforced limitation.”

It is remarkable that, since the period of martial law, our Supreme Court has avoided using the doctrine of political questions even when prudence would have dictated otherwise.  A case in point was the high court’s decision to legitimize the succession to the presidency of then Vice President Gloria Macapagal-Arroyo in January 2001 even before the office had been declared vacant on valid constitutional grounds.  The Court found a reason for its action in the novel concept of “constructive resignation.”  This judgment virtually added to the Constitution another condition for declaring the presidency vacant.

During the term of Chief Justice Artemio Panganiban, there was a conscious effort to put into practice a philosophy that would help the Court decide in a general way when to play an activist role and when it must defer to the decisions and actions of elected political leaders.  Titled “Liberty and Prosperity,” this philosophy was not without its problems, but, I think, on the whole, it was what enabled the Panganiban Court to articulate a consistent voice on many difficult cases.

I should have quoted CJ Panganiban’s famous words to my friend Manoling in support of my view that matters of economic policy are better resolved by political debate than by judicial determination. Here is a succinct formulation of that philosophy in CJ Panganiban’s own words: “Laws and actions that restrict fundamental rights, like freedom of expression and of the press, come to courts with a heavy presumption against their validity. This policy is commonly referred to as ‘heightened’ or ‘strict’ scrutiny. In conflicts affecting prosperity, development and the economy, deference must be accorded to the political branches of the government. This approach is more widely known as ‘deferential’ interpretation of laws and executive actions.”