Today is Tuesday, May 22, 2018

The View From The Mountaintop

by: Chief Justice Reynato S. Puno

I have been asked the reason for blowing the trumpet call for this Summit on Extrajudicial Killings and Forced Disappearances. In the beginning, the question did not bother me and with the patience of Job, I tried my level best to explain its rationale. It seems, however, that the question has a long life and it kept on hounding me whenever I meet people. It dawned on me that the persistence of the question has its salience for it shows at the very least the surprise with which people greet the Summit. If you scratch the surface further, you will discover that a large slice of our people appear to have their concern over these killings and disappearances already interred by time. Their sense of shock has been anaesthesized by the escalation of the killings and disappearances despite the size of the space given to them by the print media. If there are compelling reasons for this Summit, one of them is to prevent losing eye contact with these killings and disappearances, revive our righteous indignation, and spur our united search for the elusive solution to this pestering problem. At this moment, we may not know how to solve this problem, but we do know that the sure way to lose its solution is to be immobilized by doubt, to be terrorized by the thought that any effort to lick the problem will no more than amount as an effort to square the circle. This Summit is envisioned to thus provide a broad lens, synoptic perspective on our problem of extrajudicial killings and forced disappearances. We have summoned the most authoritative scholars representing the rainbow of interests of the different stakeholders of the justice system, including international experts, all of whom, we hope, can lead us in this journey, for certainly we do not expect this journey to be an easy one, a no brain, follow the dot journey. By calling this Summit, we are affirming our belief in human rights not only in the abstract; we are affirming that before the universal altar of human rights there can be no atheism, nor agnosticism on our part.

This submission is no longer an arresting thesis for it can be confirmed by even a sideglance at our 1987 Constitution. The 1987 Constitution is the most pro-human rights of our fundamental laws. It ought to be for it was a robust, reactive document to the trivialization of human rights during the authoritarian years, 1972 to 1986. Indeed, it was written by those whose common thread is their bountiful bias in favor of human rights. This pre-eminent prejudice in favor of human rights induced our constitutional commissioners to reexamine the balance of power among the three great branches of government – the executive, the legislature, and the judiciary. The reexamination easily revealed that under the then existing balance of power, the Executive, thru the adept deployment of the commander-in-chief powers, can run roughshod over our human rights. It further revealed that a supine legislature can betray the human rights of the people by defaulting to enact appropriate laws, for there is nothing you can do when Congress exercises its power to be powerless. It is for this reason and more, that our Constitutional Commissioners, deemed it wise to strengthen the powers of the Judiciary, to give it more muscular strength in dealing with the non-use, misuse, and abuse of authority in government. Let me just cite two of these new prominent powers given to the Judiciary. First, the judicial power was expanded to include the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. In the landmark case of Tolentino vs. Secretary of Finance, I made the submission that “in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed the Court from passivity to activism. This transformation, dictated by our distinct experience as a nation, is not merely evolutionary but revolutionary. Under the 1935 and 1973 Constitutions, the Court approached constitutional violations not by finding out what it should not do but what it must do. The Court must discharge its solemn duty by not resuscitating a past that petrifies the present. Secondly, the paucity of power of the Judiciary in checking human rights violations was remedied by stretching its rule making prerogative. Article VIII, Section 5 (5) empowers the Supreme Court to promulgate rules concerning the protection and enforcement of constitutional rights x x x. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.”

In expanding the judicial rule-making authority to enhance the protection and enforcement of constitutional rights, our Constitutional Commissioners were endowed with prophetic eyes. For two decades later, we would be bedeviled by extrajudicial killings and forced disappearances that would expose the frailties of our freedom, the inadequacy of our laws if not the inutility of our system of justice. Given these vulnerabilities, the Judiciary, on its part, has decided to unsheath its unused power to enact rules to protect the constitutional rights of our people, the first and foremost of which is the right to life itself. But even while this power is textually committed by the Constitution to the Judiciary, still we find some archantagonists of judicial power warning against the wisdom of its exercise. With due respect, let me say that such a sense of unease is now but a footnote in the debate on the proper role of courts in protecting human rights. After World War II, countries that embraced liberal democracies as their political ideology have given their judiciaries the explicit authority to protect the human rights of their citizens. Indeed, this is congruent to the global expansion of judicial power, which has been observed as one of the most significant trends in late 20th and early 21st century governments. Some legal eagles call this phenomenon as the “judicialization of politics.”

This new role given to courts both in developed and developing democracies is not difficult to understand. Heretofore, the protection of human rights has been entrusted to the political branches of government or to our electorally accountable officials and not to politically independent judiciaries. Over the years, however, the expectation that human rights could best be protected by the political branches of government has been diluted. There is a catalogue of causes for this failed expectation, but let me just cite the main ones. Elected officials usually go for what is popular but the vindication of human rights sometimes demand taking unpopular decisions especially in instances, where due to technicalities, the right of the righteous is trumped by the rights of the wicked. Likewise, elected officials sometimes demur in making decisions that will displease their powerful constituencies. Such a tilted stance cannot be taken by protectors of human rights who must at all times maintain an even keel on the rights of the opposites. The Constitution is not only the refuge of the worthy but also the worthless, it is not only the fortress of the strong but also the weak. Also, it is the findings that elected officials are sometimes more interested in high profile issues or those with great impact on the larger number of their constituents. Oftentimes, however, human rights cases are low profile especially when they affect the marginalized, or people whose existence some would hardly recognize or worse, people dismissed as the invisibles of society. Indeed, no less than the United Kingdom itself, the bulwark of parliamentary supremacy, recently adopted the Human Rights Act of 1998 conceding to the courts the power to enforce human rights as defined in the European Convention for the Protection of Human Rights. All these justified the constitutional scholar, Professor Mark Tushnet, to proclaim that the debate among constitution designers over parliamentary supremacy versus judicial review is over. Proponents of judicial review have carried the day … “If I have gone to some length in explaining the rise in the role of the judiciary in protecting human rights, it is simply to stress that nothing less is required by the universality of human rights than a seamless, synchronized, and synergistic action on the part of the political and apolitical branches of government to address violations of human rights.”

The time has come to say less and do more. Driven by the conviction that the Constitution is more than a cacophony of creeds, we in the Judiciary have requested you to join us in this Summit. You have all come and taken the full steps, regardless of your political conviction, and rightly so for in the crusade to protect constitutional rights there is no room for neutrality. They who seek to remain in the safety of the sidelines when human rights are under assault shall be condemned by history into irrelevance.

This is the summit, the mountaintop where we have the opportunity to view the different profiles of the problem of extrajudicial killings and forced disappearances. There is one significance to this Summit: its altitude allows us to be above the problem, and this significance is more than symbolic. The view from above is the clearest, error free view. It tells all of us to stay above, above our prejudices, above our predilections, above our prejudgments.

We have begun a great undertaking but a work begun is only half done. Let us finish our work. May the God of Justice, the Author of Life, bless this Summit. Victory awaits those who will persevere.

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