Wednesday, June 17, 2015

Expanded power of judicial review

See - Weak pillar | Opinion, News, The Philippine Star |

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With only a year left in P-Noy’s term, and the possibility that he may spend his days after the presidency fending off lawsuits for official acts during his days in power, he seems to have backed off from squabbling with the Supreme Court.
I know people from several sectors who agreed with his complaint about “judicial overreach” – although he blunted the impact by making it a personal thing, whining, in so many words, that the SC was effectively curtailing his powers.
The SC is taking on anything and everything that comes its way, including highly technical issues where it lacks the expertise to render judgment. It makes our regulatory bodies largely useless – everything goes to the SC anyway for review.
This means a heavy caseload for the high tribunal, and consequently a long wait for many final decisions to be handed down.
That long wait can wreak havoc on business plans. Guilty persons who remain free even after conviction by a lower court will find many opportunities to permanently escape punishment during the long wait for final judgment. Slow justice encourages speculation on court outcomes, and is the biggest reason why (as Pinoys like to put it) jumping to conclusions is a national sport.
In electoral contests, the lack of a final ruling on guilt or innocence has allowed rapists, plunderers, murderers and other felons to run for public office, serve and finish their term in case of victory, and even serve additional terms. It has allowed candidates accused of wrongdoing to cry political persecution (often with basis).
Like the slow resolution of electoral protests, which encourages poll cheating, the snail-paced administration of justice encourages criminal impunity.
Ideally, any legal case questioning the qualifications of a candidate for public office should be settled long before election day. This rarely happens in our country. In the case of Joseph Estrada’s seeking re-election as president in 2010, the SC even shirked its duty, refusing to rule on the case and arguing that his defeat had rendered the issue moot.
In many other matters, the SC readily dips its fingers.
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Several justices have told me that the SC is merely performing its duties as defined under the Constitution. P-Noy is right – the judiciary was given sweeping powers by his mother’s Constitution.
One particular clause, which was not present in the country’s previous Constitutions, ensures that courts of justice can take on anything brought before them, including business disputes and regulatory matters. Justices told me that this is the provision in Article 8, Section 1, declaring: “Judicial power includes the duty… 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.”
Justices and judges can exercise restraint in taking on cases that may involve “grave abuse of discretion,” but they generally don’t. Some probably worry that they might be accused of dereliction of duty. Others have more self-serving reasons: that all-encompassing clause has led to a lucrative business in issuing temporary restraining orders. Each TRO can fetch several hundred thousands to millions of pesos. There’s big money to be made from justice delayed.
P-Noy, who must be aware of that constitutional provision, has said he might support Charter change to rationalize judicial powers. But every time it looks like there is a serious Cha-cha effort, he announces that he may seek a second term. Surely he knows it’s the surest way to kill any Cha-cha attempt.
Perhaps the SC, which supervises the judiciary, can act on its own, without the need for Cha-cha, to reduce its own caseload and compel lower courts to speed up proceedings. There must be structural reforms that can be implemented to discourage delays.
Rules can also be passed to penalize magistrates, prosecutors and lawyers alike who delay litigation.
Many countries, including several in Asia such as Singapore and South Korea, are renowned for swift and efficient justice. It’s no coincidence that these countries are among the most competitive and prosperous.
An efficient judicial system is one of the pillars of a strong and progressive republic. If our democracy is a mess, one of the reasons is the weakness of the justice system.
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