When Manila meets New Delhi
It was that time of the year again. More than 4,000 Asia hands, mostly academics, gathered in Honolulu last week for the annual Association for Asian Studies conference at the convention center—close to the seductive waters of Waikiki.
Among the 700-plus panel discussions in the four-day meet, I gravitated toward Philippine issues (naturally) but what opened new vistas for me was the subject of courts and politics in India.
This South Asian giant is not our historical nor cultural kin but there are striking similarities between our supreme courts.
But first, let’s imagine this. We’re anxiously watching a tight basketball game. The referee blows his whistle to signal a foul and Team A, which is a couple of breathless points behind Team B, is given a free shot.
To the audience’s surprise, amid the anticipation, the solemn-looking referee takes the ball and shoots it himself! What the *!@# is happening?
In a way, this overstepping is beginning to happen in our Supreme Court but this has been the norm, for sometime now, in India. Ours is just a starter crossover Court. India’s is way ahead.
Our story begins in the dirt and slime of Manila Bay and the tangled bureaucracy that oversees this vast body of water. Years ago, a group
of concerned citizens who were frustrated with slow government action on cleaning up the Bay, went all the way up to the Supreme Court asking that the Justices intervene. They hauled various government agencies to Court, led by the Department of Environment and Natural Resources and the Metro Manila Development Authority.
The concerned citizens asked that the Court wield its judicial stick and order all these offices to do their jobs. The Court eventually ruled
in favor of these citizens and, like a conductor of a chaotic orchestra, tried to harmonize the various players.
It was an unprecedented decision. Penned by Justice Presbitero Velasco, the Court, in its ruling, issued a number of orders to its co-equal body, the executive department.
For instance, the DENR had to fully implement its operational plan for the Manila Bay Coastal Strategy “at the earliest possible time and call regular coordination meetings with concerned government departments.”
The MMDA, for its part, should dismantle illegal structures along major waterways and esteros; and establish a sanitary landfill within a period of one year (from promulgation of decision in December 2008).
Other agencies including the Philippine Coast Guard, the interior and education departments, and the Local Water Utilities Administration were all given marching orders.
More than two years later, the Court struck again. In February, it handed down a resolution giving specific deadlines to all the agencies and even providing them a uniform format for progress reports.
Why did the Court need to do this? Because the clean up of Manila Bay still remains a distant goal despite its 2008 decision putting the Court’s weight behind this complex project. The Court’s ruling didn’t really compel the DENR and others to get their acts together.
By issuing a follow-up order, also penned by Justice Velasco, the Court hopes to move the
awesome task forward by serving as monitor.
While the 2008 decision was unanimous, this time, some on the Court dissented. Justice Antonio Carpio argued that the Court was invading executive territory. Whatever happened to separation of powers?
It was Justice Maria Lourdes Sereno who highlighted the case of India in her dissent. She warned that the scenario in India—wherein the judiciary has taken on the role of running the government in environmental cases—can happen in the Philippines. She quoted former Chief Justice A. S. Anand of the Supreme Court of India who expressed alarm: “…the role of a judge is that of a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts, I must neither take part in it or tell the players how to play.”
Here’s where India’s experience comes in—and it serves as a cautionary tale. A bright young lawyer, Shylashri Shankar, vividly showed in her talk at the Asian Studies conference the extent to which the Indian Supreme Court has used its power, sometimes for petty administrative purposes.
She said that more recent judgments of India’s Supreme Court “have threatened to use its contempt power to enforce compliance of its orders” on a variety of issues including “removal of monkey colonies and stray cattle from the streets, illegal constructions or encroachments on public lands, cleaning of public conveniences, and levying of congestion charges at peak hours in airports with heavy traffic.”
(Shankar’s paper, “The Judiciary, Policy and Politics in India,” will be part of a forthcoming book on the judicialization of politics in Asia.)
I don’t think this is the way our Court should go. When they take over executive functions, this heightens expectations—and then what if they fail? We are starting to see this unfold in the Manila Bay decision. This can lead to further erosion of trust in the Court. After all, they have already foisted on us great flip-flops and wrong decisions.
At the end of the day, it is the executive that has to use its political will and wield its power to clean up the Bay.
TAGS: Indian Supreme Court, Justice Antonio Carpio, Justice Maria Lourdes Sereno, Justice Presbitero Velasco, Manila Bay, philippine supreme court, Shylashri Sankar