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The Supreme Court has always been perceived to be the weakest of
the three co-equal branches of government, because it possesses neither
the power of the purse nor the might of the sword.
This perception of weakness is also brought about by the nature of its
function of judicial review which, by the Court’s own terms, makes the
Court a passive arbiter and not an active intervenor.
In his first few weeks in law school, the elements of judicial review
are drilled into every constitutional law student’s head: proper party,
proper case or controversy ripe for resolution, and the absolute
necessity of deciding on the constitutional question. These elements
ensure that the Court remains a passive receptacle, waiting for a
controversy to reach it.
However, recent pronouncements by Chief Justice Reynato Puno have
surprised many and led them to reconsider their traditional views and
perceptions of the High Court.
First, the Chief Justice announced, in response to the Philip
Alston Report on extrajudicial killings and disappearances, that the
Court would designate special trial courts all over the country to
resolve these cases with dispatch. Administrative Order No. 25-2007
defines as part of the mandate of the special trial courts the speedy
resolution of cases involving the killing of political activists and
journalists.
Second, he declared that the Court would exercise its power on
judicial rule-making, which is little known to the general public but
granted to the Court by the Constitution. Article VIII, section 5(5)
vests the Supreme Court with the sole authority to "promulgate rules
concerning the protection and enforcement of human rights." It is a
power that is not frequently invoked except by a few lawyers and then,
only as a last resort.
Third, and in relation to the exercise by the Court of the power to
promulgate rules on the enforcement of human rights, he also announced
the holding by the Supreme Court of a multi-sectoral summit to discuss
issues relative to the extrajudicial killings, stressing that the
summit would have implications on the principle of "command
responsibility."
The Court likewise stated aloud that it would review its own ruling
on Executive Order 464 (which prohibits top government officials from
appearing in congressional probes without clearance from the President)
and that should an appropriate case arise, it would, in Puno’s words,
"plug the holes" in the decision.
What is surprising about these three announcements is not only that
they have been made at all but that they have been made publicly by the
Chief Justice, speaking as the head of the judicial branch.
In making these announcements through public statements, not
decisions (as the Court usually does when it wants to educate the
public on matters of law), the Court through the Chief Justice has
effectively declared that it would take on a new role: from passive
receptacle, it would now shift to being an active intervenor in the
national debate on human rights.
The power to promulgate remedies to protect and enforce human
rights is a significant power for the Court to exercise. By invoking
this, the Court effectively recognizes that no effective or meaningful
remedy exists at the moment to protect certain fundamental rights.
Where a right exists, there must be a remedy. Clearly, the right to be
protected from extrajudicial killings and forced disappearances exists,
but there is no meaningful remedy to enforce these rights. Thus, the
power in Article VIII, section 5(5) is significant.
The idea behind that power came from the chairman of the judiciary
committee of the 1986 Constitutional Commission, the late former Chief
Justice Roberto Concepcion, in connection with his proposal to come up
with a writ of amparo (from the Spanish amparar, or "to protect") for
the Philippines.
In 1999, the Free Legal Assistance Group (FLAG), in the case of
Pablito Andan v. People of the Philippines, asked the Court to exercise
this power by coming up with a writ of amparo as contemplated by the
CONCOM; in its petition, it argued that there were no existing remedies
available to address the violation of the right to life when it came to
the death penalty and thus sought the promulgation of rules to enforce
the writ of amparo.
The Court did not act on this, ignoring the prayer for the writ of
amparo. In the next years, this particular argument would be raised
over and over again, the last occasion being the oral arguments against
the National Police’s Calibrated Pre-emptive Response case.
Nine years later, the Court is now set to promulgate rules
governing the writ of amparo and other rules to protect human rights.
What exactly it will extend to and what situations it will cover
are unclear at the moment; what’s clear is that the Court, in
exercising this power under Article VIII, sec. 5(5), is free to define
the rights that may be covered by the protection, the extent of
protection, the acts or omissions that would constitute a violation of
these rights, the consequences thereof, if not penalties for violation.
Indeed, Chief Justice Puno’s invocation of the exclusive power
under Article VIII, section 5(5) has placed the Court in a role that is
quite welcome but also unfamiliar, even to itself.
Emphasizing the inherent weakness of the great writ of
liberty-habeas corpus-in the face of brazen disappearances like Jay Jay
Burgos’s, the Chief Justice has drastically upped the ante for
constitutional protection and, at the same time, dramatized the utter
helplessness or unwillingness of the two other branches of government
to address serious charges of human rights violations.
To use a phrase that Puno coined, the need for a remedy to address
the existing situation has been "brightlined in scarlet" by the Court;
that it has done so-after what appears to have been half-hearted
efforts by the executive and legislative branches-is quite telling.
This early, Chief Justice Puno has lived up to his reputation as
one who is deeply concerned about fundamental rights and adherence to
civil liberties.
Puno’s insightful response to the perception that there exists no
meaningful remedy to the current situation of unabated extrajudicial
killings and forced disappearances is a welcome move by a Court which
many had written off as being irrelevant for being too passive.
By taking the initiative and building on the momentum that his
predecessor started, Chief Justice Puno has taken the Court from
"strength to strength." And we are all the better for it.
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