Justice

We can offer the most generous investment incentives in the region, but investors will still bypass us in favor of countries like Thailand and Vietnam. It is because our judicial system sucks. It is a system of men, not laws.

Lack of trust in Chinese justice led business people to support the recent massive demonstrations in Hong Kong. They, too, are afraid a proposal allowing easy extradition of anyone in the territory to China exposes them to Chinese style justice.

Before investors risk their capital in a country, they must first make sure that they can live with the judicial system.

Unfortunately for us, our judicial system is rather neglected. We don’t commit enough resources to make the system work. There are too many vacant salas at the Regional Trial Court level. Not only does being a good judge often mean a life of poverty… honest judges are also in danger of getting shot.

Corruption in our judicial system is widely acknowledged. Litigants are wise to choose their lawyers not because they have a good knowledge of the law, but more because they know the judge or the justices.

As a reaction to the Marcos Martial Law era, the 1987 Constitution gave the judiciary more powers than before. It seems to have somehow evolved into another law making body and a super executive as well.

It would have been fine if the Supreme Court exercised judicial restraint. But often enough, their decisions go beyond the intention of the framers of the law.

Take that party list provision in the Constitution. It was clearly intended to give representation to marginalized groups like indigenous peoples, the poor, the youth, labor and other such collection of ordinary citizens whose voices would find difficulty being heard in Congress.

The Supreme Court interpreted the party list provision to include almost any group, including those obviously not marginalized. Thus, a billionaire who runs a port service in Manila leads one party list group, the LPG dealers have a party list congressman, the Tulfo family effectively has a party list, and so do an assortment of political dynasties. It is a mess.

The quality of our judicial system came to mind when the Supreme Court Chief Justice told a candidate for a vacant SC seat that “You should be biased.”

During the public interview of international law expert Jeremy Benigno Gatdula, CJ Lucas Bersamin insisted that “being biased is often misunderstood because philosophers have given it a bad name.”

Bersamin admitted that he is a “biased judge” because he cannot resolve any complex case without bias. So, the Chief Justice told lawyer Gatdula he should be biased as a SC justice.

In a sense Bersamin is right. Everyone has a bias. It grows out of our own experiences that form the basis of our world view.

Journalists are often accused of bias and it is futile to deny. It is enough that journalists are fair in the presentation of facts. Context is everything.

It must be the same with those entrusted to interpret the law… the judges and the justices. It is tough to keep personal feelings from clouding final judgment. Their job is to rule on the basis of the law and avoid what is called judicial legislation.

US Supreme Court Chief Justice John Roberts said it best:

“Judges and justices are servants of the law, not the other way around… Judges are like umpires. Umpires don’t make the rule; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is limited role. Nobody ever went to a ball game to see the umpire.”

It is in that context that lawyer Gatdula replied to CJ Bersamin.  Gatdula said that though certain provisions of the Constitution allow the high court to have some “flexibility,” judicial activism is “undemocratic” as it overturns the will of the people who crafted the Constitution.

“The constitution was drafted by the people in a certain way with a certain meaning. The duty of the court is to uphold whatever it is was essential to the people at that time the Constitution was made,” Gatdula said.

“It would be undemocratic for five Supreme Court justices – because five would be the majority of a quorum – to overturn the will of the people,” said the applicant who earned his international law degree from the University of Cambridge.

“I would have my biases as an advocate, but as a justice of the Supreme Court, my oath would be to uphold the Constitution which I believe would be in text,” the SC justice applicant said.

The Constitution places a “certain limit” on how it should be interpreted by the Supreme Court, which is “essentially a referee,” Gatdula said.

“There is a certain limit built in the Constitution either thematically, philosophically, or also with the words that are contained there,” he said.

“I don’t think, with all due respect to the members of the body that I hope to join, that it is not within the ir purview or their mandate or duty to create something, or legislate, or dwell on policy,” he said without mentioning specific cases.

Gatdula said he did not agree with the Chief Justice’s view, but conceded that each person has a bias.

“All of us have biases. My bias would be for the Philippines. My bias would be for the Constitution,” he said.

What a refreshing view in this era when the judiciary, specially the Supreme Court, often go beyond their mandate.

The Supreme Court can use someone who thinks like Jemy Gatdula. They need someone who can go into the basics of legal philosophy, why they are deciding cases one way and not the other. Case overload has made judges and justices see the details, but ignore the complete picture.

Hopefully, Atty. Gatdula is appointed. Maybe his San Beda roots will overcome his Cambridge credentials.

Boo Chanco’s e-mail address is [email protected]. Follow him on Twitter @boochanco