MANILA, Philippines — In my column last Feb. 18, I wrote that “in litigations involving civil liberties, the scales of justice should weigh heavily against the government,” while in those relating to “the economy, courts must defer as much as possible to the actions taken by the President and Congress.”
The recent Supreme Court order releasing Rep. Satur Ocampo from detention has led some readers to ask: Why do courts use “strict scrutiny” when liberty is endangered (like in the Ocampo case) and “deferential interpretation” when prosperity is promoted?
Strict scrutiny on liberty. The liberties of our people are listed in the Constitution’s Article III, commonly known as the Bill of Rights. The Supreme Court has held that the basic law is not the source of our rights; that liberty is inherent in our democracy and that the purpose of this article is to restrict the State’s power to interfere with the free exercise of these rights. The Bill of Rights shields the people from the misuse and abuse of the awesome powers of the State.
In legal parlance, the provisions of Article III are “self-executory.” Study for example the commanding words of the very first section, “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” To enforce it, courts need no other law.
The Constitution cherishes the people’s rights. Any government action that encroaches on them is presumed invalid and scrutinized strictly, a stark contrast to the general rule that laws and executive orders are deemed valid unless otherwise proven.
Deferential interpretation on prosperity. On the other hand, the mandates on development and prosperity are contained principally in Articles II and XII of the Constitution. They do not similarly limit the prerogatives of the government; they are general policies or instructions addressed to the executive and the legislative branches to alleviate poverty and nurture prosperity. To enforce them, courts generally need “enabling” legislations.
For instance, Section 9 of Article II urges the State to “promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty x x x.” Primarily, “State” refers to Congress, and secondarily, to the President.
Article XII declares the goals of the national economy to be “a more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.”
Unlike the Bill of Rights, these provisions are not self-executory; they do not spell out specific demandable rights. Rather, they are broad visions and goals that our elected leaders are tasked to implement through the enactment of laws and the pursuit of programs for which they are accountable to the people.
As a general rule, the judicial branch has no power to pass upon the wisdom, merit and propriety of discretionary acts that have been lodged by our people on the other branches of the government. Thus, it has refrained from intruding into purely policy matters and allowed the President and Congress maximum discretion in the exercise of their respective powers.
As the Supreme Court often states, “The judiciary is loathe to interfere with the due exercise by coequal branches of government of their official functions.” Consequently, the Court has ruled that the issue of whether the State should adopt deregulation or globalization as economic policies is addressed to the sound discretion of the political branches of government.
While the Court, or at least some of its members, may believe that these policies are not advantageous to the national interest, it has no authority to substitute its judgment for those of the people’s elected representatives. After all, if the people believe these policies to be detrimental to their interests, they may reverse or modify them by electing candidates opposed to these programs.
Exceptions to the deferential stance. This no-interference rule on economic programs is subject to exceptions. Our judiciary had been vested by our Constitution with a unique duty, not just power, to nullify the acts of any branch or instrumentality of the government that are tainted with “grave abuse of discretion”; that is, (1) those that clearly violate the Constitution, the laws, or settled jurisprudence; and (2) those that have been issued with patent arbitrariness, whim, bias or personal hostility.
Thus, the Court nullified the first Oil Deregulation Law, because it violated the constitutional prohibition against monopolies. Thereafter, Congress passed a new statute that remedied the defects pointed out by the Court, and facilitated the entry of new petroleum competitors like Total, PTT and Seaoil.
Similarly, the Court invalidated the contracts for the construction and operation of the new Manila airport terminal, the reclamation of portions of Manila Bay, and the supply of automated election counting machines, for being gravely abusive actions done in violation of the Constitution, the law and/or the rules issued by the very government agencies that were parties to these agreements.