Criticizing the Supreme Court is no disrespect

Published May 31, 2018, 10:00 PM

by Mario Casayuran and Vanne Elaine Terrazola

Atty. Mel Sta. Maria
Atty. Mel Sta. Maria

By Atty. Mel Sta. Maria


Often, people are admonished to simply accept promulgated Supreme Court decisions, that they should not make observations about its proceedings because a contrary view is contemptuous. That is misleading.

Supreme Court rulings must not be immune from critical debate. While they become part of the law of the land, that legal development may be a horrible one necessitating continued animadversions. Philippine jurisprudence has a number of horrible Supreme Court decisions.

For example, the 1973 Javellana decision perpetuated up to 1986 the late Ferdinand Marcos’ dictatorship. Also during that period, the Supreme Court decided Aquino vs. Military Commission No. 2 disregarding the doctrine that civilian authority, even during the imposition of martial law, must be superior over the military, thus emboldening military atrocities. After the 1986 February revolution, it was reversed in Olaguer vs. Military Commission by an enlightened Supreme Court, saying “A doctrine which should be abandoned or modified should be abandoned or modified accordingly. After all, more important than anything else is that this Court should be right.”

And talking about the Supreme Court being right, many are still aghast at the 2016 decision allowing the Libingan ng mga Bayani burial of Ferdinand E. Marcos — whose regime looted the Philippine treasury of billions of pesos and grossly violated the human rights of many Filipinos through torture, forced disappearance, and extrajudicial killings.

Today many are wondering whether the quo warranto decision ousting Chief Justice Sereno will be hailed as a magnum opus enunciating a timeless and trailblazing doctrine or condemned as the most terrible, unjust, and despicable decision promulgated by the Supreme Court.

Now let’s go to the justices making the decision. Even without a direct mandate from the people, they have security of tenure with high-paying salaries, very generous pensions, and with various amenities such as transportation and security personnel, all funded by hard-earned taxpayers’ money. They are granted great powers to resolve private and/or national issues.

So much entitlements and yet no direct institutional means are available to immediately put them to task on horrendous and wrong decisions. That is why people must be critically and vocally expressive of how they think and feel about the decisions of the Supreme Court, its proceedings and magistrates. That’s the only way to make the justices feel an urgent sense of accountability.

A cloistered judiciary exempted from critical scrutiny belongs to a bygone era. Former US Supreme Court Associate Justice Brewer said it perfectly:

“It is a mistake to suppose that the Supreme Court is either honored or helped by being spoken of as beyond criticism. On the contrary, the life and character of its justices should be the objects of constant watchfulness by all, and its judgments subject to the freest criticism. The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all. The moving waters are full of life and health; only in the still waters is stagnation and death.” (Government by Injunction, 15 Nat’l Corp. Rep. 848,849)

That brings us to the “sub judice” rule requiring that pending court cases should not be discussed in the press or media as it might affect the cases’ result. Dangerously, this judicial tool, if used unsparingly, shall thwart the exercise of the freedom of speech and the press essential to democracy.

While the administration of justice isimportant, debates on national issues are equally, if not more, important.

For example, Chief Justice Sereno’s case is not simply a qualification-issue. It involves a far greater over-arching fundamental consideration — judicial independence. Same with the election protest against Vice President Leni Robredo. More than the issue of ballot-shading, it concerns the right to vote and post-election disenfranchisement — the paramount considerations in a democracy.

Undoubtedly, exercising fairly, reasonably, and in good faith the freedoms of speech and of the press in these cases outweighs the interest in the “sub judice” rule. Without fear or threat of reprisals, citizens must be able to discuss and debate them even when the cases are pending. Justices should not be irascibly thin-skinned.

Justice Oliver Wendell Holmes in his “Path of the Law” said “one may criticize even what one reveres.” That includes criticizing the Supreme Court. Criticizing is not disrespecting.