The Bangus Ultimatum

But it is not lightly to be supposed that a legislature is less faithful to its obligations than a court.
- Justice Holmes, Gray v. Taylor (227 U.S. 51)

The Sassy Lawyer is keeping watch over the opposition’s petition to declare the canvass by joint committee unconstitutional. My take on the issue is not how the Supremes should or could rule on this, but whether or not they should rule on it AT ALL. Call me old-fashioned, but I’ve always been concerned with our self-styled activist court’s propensity to open new frontiers of judicial review. I’ve said it before: the idea of unelected justices overturning the actions of our political representatives is an anomaly to democratic principles. Threshold requirements of standing and justiciability, though couched in technical terms, lie at the very heart of what it means to function within a democracy, and how the judiciary can find it’s proper place in the balance of power.

I am particularly concerned about the issue of justiciability. Before the Marcos-era Court abused it, and before the current Court’s activism kicked it to death, the political question doctrine gave the Court a convenient escape hatch to “avoid” ruling on controversies that are just too hot handle. This has nothing to do with moral fortitude or courage for that fiat justitia, ruat coelum moment. The so-called rules of avoidance are put in place because often, controversies are not susceptible to judicial determination, or there are no judicial standards extant for a principled determination, or the Court is not competent to fashion the appropriate relief. As a law student I operate under the presumption that our justices know the law and interpret it with integrity. But they are accountable to us only in an attenuated manner, and the tyranny of an enlightened guardian class is still a tyranny. Deference to an elected legislature, elected by a people who aren’t as stupid as many would believe is not alien to our legal tradition, and to respect that tradition is not necessarily an abdication of duty.

Constitutional law is tradeoff and balance. Stripped of the rhetoric of the “sanctity of the ballot” (true, but sanctity is harder to operationalize), the functional statement of the problem is this: Shall we have 100% election integrity at n efficiency, or less than 100% integrity at n-x efficiency? For good or bad, the Constitution has reposed the power to determine that tradeoff in Congress. That’s just great, you say. We’ll end up having the likes of De Venecia and Dilangalen striking the balance (not a tradeoff, but a sellout). Hey, I never said it was a good choice, only a democratic one. The possibility of review remains in our capacity to vote them out, brittle and broken our elections may be (We’ve managed to unseat dynasties this time, and Dilangalen is out of Congress for now—so I guess the system still works somewhat). Ultimate electoral responsibility subsists in in: voter education, electoral reform, and our capacity to remember the transgressions of these bastards, so come election time, we can place their heads on pikes and feed their eyeballs to the crows.