Judicial exorcism
The robes of justices are a reminder of the priestly origin of the academic and legal tribunals of the Middle Ages from which our modern law courts are descended. And so when the Supreme Court took upon itself to rule on a case involving a prayer to compel Congress to act on an antidynasty bill, it took on something of the nature of a judicial exorcism, with our justices chanting, “The power of the Constitution compels you!”
The Supreme Court found that Congress has committed grave abuse of discretion by failing to enact an enabling law to implement the constitutional prohibition against political dynasties and directed it to do something. Yet of all the Congresses since the legislature was reestablished in 1987, the present one has done something no previous Congress has done: it’s actually deliberated on a bill. To be sure, it has done so without enthusiasm and with maximum mental dishonesty, if you ask the critics of the House measure in particular. But because of the intensity of public opinion, it has been compelled to act. Yet its action, according to the Supreme Court, is too little, too late, and here lies the problem.
The problem, of course, is that there is Congress in the abstract and there is Congress as it actually is. There is the Congress of the Philippines, reestablished in 1987; there are the congresses of the Philippines, with a three-year lifespan, composed of three annual sessions. When it reconvened in 1987, it did so as the Eighth Congress (the one padlocked during martial law was the Seventh); today’s Congress, elected in the midterms, is the 20th Congress, which lasts until 2028. So, which Congress? An abstraction neither has agency nor culpability; but as for individual Congresses, maybe they can be held to account—for the duration of that Congress. This is why, when a Congress passes into history, the clock is reset and pending legislation must start from scratch.
Our justices, who may know the law but know little or, worse, less than nothing, about politics, seem blissfully unaware of this. A Congress can be commanded during its lifetime, but it cannot bind the next. What the Supreme Court has commanded one Congress, no future Congress is bound to do. The Supreme Court cannot command Congress to enact a law within its lifetime in the same manner that Congress could not command the Supreme Court to hand down a decision within a fixed timeframe.
Welcome to the separation of powers. The Supreme Court could, of course, hand down a resolution with the convening of every new Congress, informing its leadership, once elected, of pending obligations, but with some justice, any new Speaker or Senate president could rightfully say, “Noted, but that is history concerning past, defunct Congresses.”
The branch constitutionally authorized to facilitate legislation is, of course, the executive, who can certify the urgency of a bill, which allows Congress to dispense with some of the required readings to speed up enactment; but the power the Constitution grants the Supreme Court is not in the passage but in the repudiation of legislation or parts of a law when either violates the Constitution. It is a court, not a soothsayer or a mind reader, so it has no powers of prophecy as to whether a future Congress will or won’t act on a measure when Congress is as much a deliberative body as the Supreme Court and no one can or should tell the Supreme Court to rush its decision-making.
Demanding from the unelected an order to tell the elected what to do, when the ones who should be doing the telling are the citizens who compose the electorate—when advocates all claim that the public is foursquare behind the demand for an antidynasty law—is to give power to the undeserving to compensate for the failure of legislators to do their duty. Public opinion was widespread and passionate enough to frighten legislators, particularly members of the House, into proposing cosmetic antidynasty legislation; but that same opinion has either weakened or remained so unfocused that legislators are losing their fear of the public. Instead of quarreling over who attends which rally, there could have been text, email, social media, even old-fashioned letter-writing campaigns to flood legislators (and their families) with demands to pass a law with teeth. The galleries should have been packed with young and old, day in and day out, prepared to silently protest or hoot and jeer at action or inaction by Congress.
That is how representative government, when it fails to represent, is reminded of where true authority lies.
Instead, the Supreme Court is being asked to do to Congress what the Danish King Canute did to the sea: command it to obey. With the difference that, so the legend goes, Canute was wise enough to do so to demonstrate the folly of the sycophants who made the proposal. He set up his throne on the seashore, commanded the sea to retreat, and was soaked by the tide. Our justices, apparently lacking any sense of humility, think they can command the uncommendable, and are even applauded for it.