September 22, 2017 | MANILA, PHILIPPINES

Not every ‘voice of dissent’ is helpful, not every dissenter is great

With all due respect, to the Supreme Court and everyone else, different versions of Justice Marvic Leonen’s dissent must be spreading around the legal community. I say this because having read it myself, I simply cannot see the reason for the awe and outright emotional fan-gushing that some members of the legal community are heaping on it.


Because Justice Leonen’s dissent far from defends our Constitution (for it had no practical grounding in that document’s text) nor does it advocate for democracy (as it seemingly transgresses the doctrine of separation of powers).


At its very outset, Justice Leonen declares his unwillingness to grant “the President undefined powers of martial law.”

First of all, the powers are not his to grant.

Secondly, the powers are already defined, exhaustively so. It’s right there in Article VII.18 of the Constitution.

And as I pointed out in a previous article (“No highs, all lows with martial law,” 23 June 2017), the Supreme Court’s job in this matter should reasonably be limited to “whether the procedural requirements for martial law ... have been met.”

Why? Because the judgment to call martial law is not with the unelected justices of the Supreme Court. Our people gave that power to the elected president of the Republic.

As regards abuses of discretion, in the “fog of war” they are to be lamented but expected.

It also means not every abuse of that discretion, assuming there is, empowers the Supreme Court to invalidate the actions of an equal branch of government.

Because the abuse must also be “grave,” a standard significantly high that common sense, prudence, and restraint -- not conjectural technicalities -- should play major parts.

Such virtues, unfortunately, are absent in Justice Leonen’s dissent.

He even goes on to create a two-part test (e.g., that “facts are sufficient when (a) it is based on credible intelligence and (b) taken collectively establishes that there is actual rebellion and that public safety requires ...”).

Nowhere in the Constitution’s pages is the foregoing found. Justice Leonen was essentially legislating, a function obviously not granted to the Court.

To my mind, Justice Leonen’s dissent, in a theoretical legal sense, could actually be said to constitute an attempt (consciously or not) at a power grab.

By which I mean to expand the powers of the Court, concededly perhaps for benevolent motives, but nevertheless something which historical figures and legal commentators have been long suspicious of due to the dangers of creating a “judicial oligarchy.”

If so, Justice Leonen is not alone in this. Activist lawyers and members of the legal academe have long dreamt of establishing a legal doctrine whereby the unelected judiciary can advance policies by reading the Constitution in a manner detached from the actual words therein.

But the Supreme Court was purposely not designed to be a policy-making body. Our Constitution wisely gave that function to the two elected coequal branches of government.

The non-elected, permanent until 70-year-old appointees to the Court have, collectively, a simple function: to decide cases, determine grave abuse of discretion, and examine laws or treaties -- all in accordance with the Constitution.

No more, no less.

Imagine a policy unacceptable (perhaps because it is “leftist,” etc.) to the Filipino citizenry. This likely means that no elected official will support it and thus such policy cannot democratically be made into law.

But if the logic of Justice Leonen’s dissent were to hold sway way, imagine that same unaccepted policy now supported by a small group of like-minded academics, activist lawyers, and even jurists. As it stands, a mere 5 justices of the Supreme Court (majority of its en banc quorum, which is 8 justices) can overturn the will of the elected 297 House members, 24 senators, and the president.

Going back to the martial law case, J. Leonen’s dissent sought to impose his discretion, his evaluation of the facts, his reading of the powers of the Executive branch, his desired policy approach not only over the head of a Branch of government but over the Constitution itself.

Yet the common good, democratic principles of limited government and separation of powers, and the rule of law all cry for judicial restraint, where doubts are to be resolved in favor of deference to a coequal branch.

Thankfully, the majority 11 upheld our constitutional principles.

Admittedly, many people are wary of President Duterte’s handling of the matter in Mindanao. But the fact is: he is the elected president for six years and not Justice Leonen.

And as much as some people may dislike the president, the remedy is not to expand the powers of the Court beyond that granted in the Constitution. It is simply to be more effective in the political process and encourage the Filipino people to vote better in the next elections.

Always remember: power once given will rarely be surrendered, and that the power to do good is also the power to do evil.

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

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