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When Manila meets New Delhi

FAIR GAME: Marites Danguilan Vitug

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

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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 famous Manila Bay sunset

The concerned citizens asked that the Court wield its judicial stick and order all these offices to do their jobs. The Court eventually ruled

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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

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awesome task forward by serving as monitor.

Justice Ma. Lourdes Sereno (Photo: AIM)

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.

CATEGORY: Blogs, Marites Dañguilan-Vitug
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  1. Johnny Lin says:

    Simply put, SC is acting like a sheriff personally enforcing and monitoring the Writ of Execution it ordered; contrary to a sheriff enforcing and monitoring the auction sale of a foreclosed property the court ordered. The court order is under Judiciary branch and the enforcing sheriff, under Executive branch. What will Judiciary do if the Executive branch does not follow the order and meet the deadline? Arrest and put in jail PNoy, DENR Sec, MMDA chairman, Coast Guard commander, et al for contempt? Does the SC have police power and prison facilities spelled under the Constitution? Will it order the Executive branch to imprison themselves? That is the simple logic of separation of power of the 3 branches! Common Sense! Judgment to the Judiciary, Execution to the Executive, Crafting Laws to Legislative.

  2. Johnny Lin says:

    Interesting, CJ Corona in his recent doctorate graduation rites spoke of his desire that his court legacy be known as the “Environment Court”. Ensuring success of any SC decision about the environment is through pro active participation of the court in the implementation of the judgment. Justice Velasco is the ponente of this Manila Bay clean up who wanted regular progress reports, usurping the function of the Executive branch. He was also ponente of the Ombudsman Status Quo Ante decision (usurping the function of the Legislative branch) in which the unnecessary en banc session was approved by Corona. Is Velasco a stooge of Corona or do they partnership, like a syndicate, in their decisions. Wonder if in all their SC decisions, Newsbreak can compile and compare their votes side by side? Bet, they
    voted together in their SC decisions, so far, no lower than 98%.

  3. Romel Bagares says:

    This is what happens when the other branches of government do not do what they’re supposed to do. It is called “political avoidance” in the legal literature. In the long run, it does not really help the cause to strengthen our democratic institutions. Everything now becomes the work of the Courts. The Manila Bay cleanup case should be the exception rather than the rule. Ideally, courts only step in when it is absolutely necessary. Otherwise it becomes for us solely a governance by judicial fiat.

  4. Thanks for you insights! I’d love to get hold of CJ Coronás PhD dissertation as well–which, according to reports, is on environment and the Court.

  5. :) :) oh boy, oh boy…

    The most insidious environmental hazard that could prove more fatal, is the garbage the court magistrates churn out from the bowels of their bankrupt intellect which are oftentimes masqueraded as “landmark decisions”, because they gnaw at the very core of the country’s sense of justice and transport our judicial institution into the dark ages.

    BTW Maritess, Got hold of your book few months after I purchased it. My daughter arrived today from 3 weeks vacation in RP with the book. I hope I can offer a review of the contents thereof, the way I did with Sionil F. Jose’s Ermita and Mass and Nick’s Joaquin’s “The Woman With To Navels” which are in my blog.

  6. Johnny Lin says:

    Unfortunately, our constitution was framed having separate powers of the 3 branches. I am not a lawyer but I assume the “political avoidance” mentioned was applied when GMA was sworn president and Erap was declared resigned by SC. It was legal and technically accepted because the military under the executive branch and defender of the constitution concurred with the court decision. Constitutionally, the court could never appoint itself as executor and administrator of rendered judgments without exceptions. It could designate private entities enforcing its decisions but could not commandeer other branches of government directly become its subordinates without concurrence of the head of the government branch. The same reason in cases of family estates without wills, the jurists could not appoint themselves as executors of wealthy estates. It is not constitutionally allowed without exception.

  7. If i am not mistaken, the framework of this environmental cases was judicially “legislated” because through its rule-making power, the SCORP have authorized citizens to sue anyone that is causing pollution in the environment. From legal viewpoint, the rule created a substantive right in favor of the citizens, which is an anomaly because only Congress through legislation can create/confer substantive rights that can be judicially protected if it is violated.

    The rule-making power of SCORP are only remedial and procedural. The substantive law itself must be passed by congress. Here is another anomaly here: Who will challenge the rule established by SCORP before the SCORP?

  8. Johnny Lin says:

    SC could issue judgments or rulings anytime. The bottom lone is the punishment rendered. The environmental rulings of Velasco are perfect examples. What punishment is he going to render if the ececutive agency would not follow because of simple reason, it is costly, the government could not afford. That is executive branch prerogative; lets say, the next ruling is jail for contempt of court. President would not follow because he believes judiciary overstepped their jurisdiction and issue executive order not to imprison or plain pardon the culprit. It becomes a vicious cycle. Even in civil cases with monetary judgment, the court could not force the guilty to pay up if the income is protected by law. OJ Simpson lost his civil case with $33M judgment. Court could not force him to pay up a penny because his monthly pension is protected by law. Reasonable or unreasonable judgment is separate from unenforceable punishment. Example, Justice Carpio could render judgment to GMA to be exiled to the moon, executive branch could not logically enforce his punishment? She would be technically free!

  9. “Other countries regard their Supreme Courts highly, even using the metaphor ‘soul’. (Shadow of Doubt, p.33).

    We used the same metaphor: ‘wicked soul’ to refer to our own.

  10. Johnny Lin says:

    Marites
    It is the official duty now of CJ Corona to release his dissertation papers because of his ambitious idea. As member of SC he should not be perceived bias or prejudicial. By publicly exposing his target principle about the environment he has now a moral obligation to inhibit himself in every environmental cases reaching the Court. I am not a lawyer but this is how I perceive the lack of judicial intelligence of our chief arbiter. Writing a dissertation in general is probably unquestionable but publicly specifying preference of a targeted idea is prejudice by itself. There are existing laws not favorable to the environment. That means Corona would disregard those laws to ensure sucess of his pet project. Simple common sense!

  11. Johnny Lin says:

    Marites
    I forgot to include this classic example above.
    Imagine CJ Corona publicly saying, “I prefer Willie Revillame Willing Willy show than Vic Sotto Eat Bulaga”. If the current controversy of Revillame reaches the Supreme Court, what kind of position did he place himself in his public declaration of prejudicial preference? That is the irony of being a SC justice, their own constitutional freedom of speech is lost!

  12. the SC merely interprets the provisions of the constitution. as held in landmark decision on Oposa vs Factoran, this environmental issue is nothing new.

    I find it puzzling on people accusing the SC of violating the separation of power in this issue, when it fact on daily basis, the judiciary is issuing order directing, prohibiting or annulling decision of executive or legislative branch of government.

    Under our Constitution the SC is the final arbiter/interpreter of the Constitution and other laws of the state. Furthermore, It has the power to review acts of any branch of government to determine whether the grave abuse of discretion amounting to lack or excess in jurisdiction.

    Thus, the SC decision regarding the manila bay cleanup, the ombudsman case and the truth commission, are well within their powers, and perhaps those who accuse the SC of encroaching the other branches of government should read the constitution itself!

  13. Johnny Lin says:

    Hello Newsbreak:
    Related event to the article, if you dont mind!
    Supposedly SC justices will inspect visually and make an official report on Friday, April 15, the West Tower condo in Makati if their Environmental Order was implemented vis a vis gas leaks and tower basement seepage. Why dont you send your investigative reporters to find out what these justices utilize and employ in their visual investigation/inspection and how they suddenly become experts on geological, civil, chemical and mechanical engineering? Why dont they leave the inspection and reporting to certified experts? What happened to the government bureau, DENR? Is SC creating its own set of government agencies? Only in the Philippines again!!!

  14. Johnny Lin says:

    The issue is not about the interpretation of the constitution, remedial or procedural deciding powers of the justices. The question is about the constitutionality of justices receiving regular reports, doing physical investigation, visual inspection and putting out official reports of their personal findings on the compliance of their environmental orders. What is their technical expertise on environmental matters beyond their judicial scope? Philippine Star, today April 12, under opinion column of Federico Pascual, SC Justices are supposed to do visual inspection of West Tower building in Makati to find out if the gas company properly complied with their order which includes technical corrective measures on a 117 km gas pipeline. Proving technical compliance, isn’t it better left to certified experts of the particular field in question? Isn’t visual inspection such as crime scene, the duty of a trial judge?

  15. In my blog I have posted that Filipinos are incorrigible masochists because we granted in our constitution the power to review every act of co-equal branch of the government to the SCORP, instead of giving the other two branches the good faith presumption that everything has been validly executed and performed in accordance with the Constitution.

    The U.S. jurisprudence from which we copied our long line of cases before the Marcos and the GMA court appeared in the judicial horizon, has adopted well-defined criteria before a court can only entertain a case involving the constitutionality of the act of the two other branches of government. These are:

    1. Judicially manageable standard
    2. Political question
    3. Standing, Ripeness-Mootness, Redressability
    4.Prudential limitation

    We do not follow these criteria anymore because of the “judicial windfall” the Cory Constitution had conferred on the Supreme Court.

    Under these “environmental cases”, the Court is over-stretching itself at it has to employ a lot of people to supervise whether the clean-up of Pasig river has been complied with in accordance with its Order. Compliance and supervision issues are tangled, thorny and “unmanageable”. This is how the U.S. Supreme Court in the course of existence, had developed the theory of “judicially manageable standard”. If the Court will be called upon to micro-manage the clean-up of Pasig River, then it has overstepped its bound and it is something the framers of the Constitution had never envisioned about.

    Did our framers envision a very strong Judiciary? Or was it the result of anti-Marcos hysteria and we were simply carried away by a wave of emotionalism? (Justice Regalado, Shadow of Doubt, p. 108).

    If this was intentional, then we just undo a Republic. If it was purely emotionalism, then we have a piece of garbage we call the Constitution.

    But in my blog, I took a different path:

    “We saw how our own Supreme Court, connived with Mr. Marcos during martial law, and yet after he was deposed in 1986, the Cory Constitutional Convention gave more power to the Supreme Court than what the 1935 constitution had given it. We have entrusted the protection of our civil liberties and our freedom to the very institution that has shown historical capacity to degrade and desecrate them.”

    “We Filipinos are incorrigible masochists and we enjoy our self-flagellation with enduring pleasure and satisfaction.”

    http://jcc34.wordpress.com/2011/03/01/filipinos-are-incorrigible-masochists/

  16. Johnny Lin says:

    Jcc, nice explanatory discourse. Despite; justices are human, their integrities, honor and legacies at stake. They have powers delegating responsibilities and exercise restraint. Now, their micro-management mock themselves. Time to realize their duty restoring respect and dignity to the institution unless political corruption is the secret evil. First step, ruling one final decision! Or else, their “slinky” decisions deserve perpetual criticism!

  17. thanks johnny, :)

  18. decision of the court need to be imposed, otherwise the decision is meaningless. the receiving regular reports, doing physical investigation, visual inspection and putting out official reports of their personal findings on the compliance of their environmental orders are necessary for the court to see whether their decision are properly implemented. The method is no different from a judicial administrator on an estate, judicial guardian, or in the execution of decision.

    the SC decision before marcos was based on the 1935 constitution. the very consitution created by the U.S, so it will only be logical that SC decision that day is patterned on US jurisprudence. However, that constitution is no longer in effect. it is just right and logical to interpret
    our present one based on the intent and aspiration of the filipino people, without any reference to the previous ruling made by foreign oppressor.

    Furthermore, we are already an independent state and are political and cultural and judicial norms are different from the U.S.

    Finally, the SC is just exercising the constitutional power vested to it. If people have problem with the “too much” power of SC. the right of recourse will be to amend the constitution and limits its power.

  19. killem, get real. please review your political science subject.

  20. Johnny Lin says:

    Killem, I did not study law but out of common sense the constitution would not allow jurists appointing themselves direct estate administrators because that is conflict of interest or abuse of power. If done in the Philippines we really do have a corrupt judicial system.

  21. @jhonny lin what i mean is that the court exercise control and supervision over a judicial administrator in settlement of estate. SO in the same manner it just right and proper for the court to give enough supervision and control over those people who are task to implement their decision.

    @jcc maybe you should be the one who should review your constitutional law and phil history.

  22. killem,

    The U.S. tripartite system worked for hundred years and their institutions had been strengthened by their strict adherence to the respective roles each branch of the government had to play. Their political unrest were fewer while we have 13 years of martial law, EDSA 1 and EDSA 2, mutinuous soldiers in Metro Manila, raging NPA, and MILF violence in the countrysides.

    You deride the U.S. model and would want a RP model of constitutionalism. Be my guest!

  23. killem,

    We had a constitutional government in 1935, technically, and the U.S. had theirs in 1787. Up to now, the U.S. system of government still works while our constitutional government you want to veer away from the Western model is sputtering like a kakarag-karag na jeep sa kalsada. Typical Pnoy inward-looking nationalism which brought us always to miseries and disaster.

  24. killem,

    add this fact too: RP is no bigger than California and we could not manage it efficiently and well. U.S. have 50 States and up to now it is still the most powerful country despite her economic problems.

  25. Johnny Lin says:

    Killem
    So you agree with me! Problem is the justices are NOT delegating. They are performing as DIRECT ADMINISTRATORS of their decisions. Justices directly ordered the defendant, First International Petroleum Corp to show the justices visually how they performed the corrective measures ordered by SC. Same thing with Manila Bay clean up. Defendant to directly report to Justice Velasco what they have done and Justice Velasco will visually inspect afterwards if the report on corrective measue is properly done. What expertise do the justices claim on environmental clean up?

  26. America and Phil have different political, cultural and social norms. It does not mean that if it works for them, its going to work for us. The npa, milf, and the wide spread poverty is just a effect that a system of governance now simply does not fits with the filipino’s way of life.

    @johnny lim, just read previous post. =)

  27. People around the world are the same. They loved power, fame and wealth. In the ancient times, the Kings (Rulers) monopolized all these avarice. The social contract theory popularized by Locke, Hobbes and Rousseau questioned this doctrine of “divine rights of kings”. Newer civilizations have put up system of governments where “power” is lodged with the people, hence they invented a system of appointment and recall of government leaders through elections.

    With the power belonging to the people, the proponents of the social contract theory hope that perpetual monopoly of power, hence wealth, could be diffused by the governed through this system of “recall”. It works along the theory that the leaders were elected to serve the greatest interest of the people but if they violate this covenant, the people have the inherent right to remove them from power. This social contract doctrine was the basis for the concept of “accountability”, that officials must account to the people for their acts.

    The tripartite form of government grows out from this “social contract doctrine”. Congress to pass laws, Executive to implement them and Courts to interpret the laws. The original concept of “law interpretation” refers only as to their applications and not on their “constitutionality” because the forefathers of the U.S. constitution believed that the interpretation of the constitution should be left to those agencies of the government whose members were elected directly by the people. They never envisioned that the Supreme Court of the U.S. as the interpreter of the constitution until the famous Marbury v. Madison case was promulgated.

    But in arriving at this decision, CJ Marshall had to tiptoe on the political landmine. (tiptoeing is the origin of “prudential limitation”).

    “When the Supreme Court finally met, Madison ignored the Court’s order, failing to appear or to send a lawyer to appear for him. This left Marshall in a dilemma. At this stage he might easily have decided in favor of Marbury, especially because Madison offered no counterarguments or defense. However, Marshall believed that Madison would ignore any order from the Supreme Court. This would humiliate the Court and make it appear powerless.” (Marbury v. Madison).

    It came to pass that the people of the U.S. accepted the power of the Court to review, because it has been exercised prudently most of the time by observing the four criteria I have enumerated:

    1. Judicially manageable standard
    2. Political Question
    3. Standing, Ripeness-Mootness, Redressability
    4. Prudential Limitation

    Americans believed in the vitality of their institutions hence they resolved most of their conflicts in the modern age in their political systems, not through the streets like EDSA, Liwasang Bonifacio, Mandarin and Peninsula Hotels.

    You do not want the Western model to apply to RP because it is not within our “norms” as a people to resolve our conflicts through our political institutions but in the cutthroat process of street parliaments where passion sets the tone rather than reason.

  28. Johnny Lin says:

    Killem, thanks for clarifying your stance again, the very point I have been driving in my postings above citing specific example of unwilled estate administrations. Reiterating, there are current justices raping the constitution by appointing themselves Direct Administrators of their environmental decisions instead of delegating to independent expert administrators. Delusion of grandeur!

  29. western style democracy is not one size fits all system of governance that will fit in every culture. In fact, no other state, aside from the west, have succeeded using that form of democracy.

  30. Johnny Lin says:

    You have a point, “to each its own”. On the other hand, the overzealousness of current SC justices granting themselves irrevocable new environmental powers is unconstitutional and deplorable. We cant tolerate their abuses. Congress should investigate, people should wake up before its too late and too costly, caused by justices personal caprices. Eventually, unnecessary clean up and technical costs incurred by corporations from ignorant directives of the justices will pass it to the consumers.

  31. killem,

    there are dozens of countries that have tripartite form of government following the montesquieu, rosseau, hobbes model.

    http://en.wikipedia.org/wiki/Separation_of_powers

  32. Johnny Lin says:

    Justice Velasco and staff reading comments in Newsbreak.
    He put out new directives on the West Tower condo gas leaks, which he should have done before in the first place. He is ordering experts now to make official investigation, present report to him so he could present it en banc then remand the case back to Appeals court. This is what we have been talking about that he could have done before without him doing visual inspection. He wasted precious time unnecessarily. He should have written all his directives to certified experts in his first ruling and remanded immediately to Appeals. Later, the en banc will finally decide depending on action of Appeals on the findings and recommendations of the experts Thats how the courts should function by comon sense.

  33. I finished reading “Shadow of Doubt.” It took me three days because I have to put it down sometimes to leave the house, make money somewhere and when I was about ready to twiddle my thumbs back on its pages back again, some house chores provide obstinate distractions. You could say that you can finish the book in one – day because it was a soft read. Unlike some materials of Camus, Sartre, Nietzsche, James Joyce or Hume, which provide troublesome headache digesting , “Shadow” is written in crisp journalist language, factual and incisive that you can breeze through its contents smoothly.

    SinagTala points to Newsbreak as the mouthpiece of the Justice Carpio’s group in the Supeme Court. The book, “Shadow of Doubt” is more of a “Justice Carpio’s” position paper, mouthpiece if you will, that considers the jurist a reformer and visionary who should have lead the Court better than CJ Corona. Thus when you vet J. Carpio over CJ Corona, you consider his stand against constitutional amendment with the objective of prolonging the terms of Fidel Ramos and GMA a stellar in his career as a jurist, but when Justice Carpio proactively pulled the rug from Joseph Estrada’s feet and deposed a popularly elected President, Ms. Vitug heartily announced that it was to prevent the economy from collapsing. There is some self-righteous tone in that assertion.

    But I can forgive Ms. Vitug for this, for my own bias, would be too forgiving to J. Carpio also. If you consider the other CJ’s Puno, Davide and Corona, you can easily discern that Carpio is out of their league. These are midgets before a towering giant. But a giant can be mendacious as well. The public have to be ever vigilant! Let us wait until J. Carpio leads the SC to see if his “visionary ideals” can offer some measure of relief to an institution that has been so battered and damaged.

  34. J.Carpio is not yet a jurist during the pirma case of FVR.

    although J. Carpio is an excellent private practitioner before he joins the court,it does not mean that he is far more superior than corona or puno. the former and current SC have a very good credential to boost.

    personally, i dont like the way carpio penned his decision, so full of arrogrance and disrespectful to say atleast to his fellow jurist. As if, he has the monopoly of legal knoweledge. So its a good thing CJ Corona was appointed because i dont trust those self-righteous people!

  35. that is where we differ killem. its like calling a spade a spade. it is not arrogance. respect is earned. corona and puno, including davide, from my perspective, should earn the respect from their colleagues and not to demand for it.

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