By By Atty. Romulo P. Atencia
Judges as custodians of civil liberties
posted 25-Jun-2015  ·  
4,876 views  ·   0 comments  ·  

"The cardinal article of faith of our civilization," according to Justice Frankfurter, a noted jurist who was appointed to the U.S. Supreme Court in 1939, "is the inviolable character of the individual." Thus, we believe that a government's legitimacy and moral right to use state power is only justified and legal when consented to by the people or society over which that political power is exercised. This theory of consent is historically contrasted to the divine right of kings and has often been invoked against the legitimacy of colonialism. In the leading case of Ex-parte Milligan decided by the U.S. Supreme Court earlier, in 1886, the following words are unforgettable: "The Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances." 

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The 1987 constitution, as the fundamental law, establishes the character of our democratic government by defining the basic principles to which our society must conform; and by describing the organization of the government and the regulation, distribution, and limitations on the functions of different government departments. Our government has three interdependent branches: the legislative branch, the executive branch, and the judicial branch. The powers of the branches are vested by the constitution in the following: a) Legislative power is vested in the two-chamber Congress of the Philippines—the Senate is the upper chamber and the House of Representatives is the lower chamber; b) Executive power is exercised by the government under the leadership of the President; and c) Judicial power is vested in the courts with the Supreme Court of the Philippines as the highest judicial body.

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Those too young then or who were born after the declaration of Martial Law in September 1972 when President Marcos officially declared it will not remember the Plaza Miranda bombing, which occurred a year earlier. But I was about to take the Bar examinations of that year and I will never forget the incidents which happened that eventful night of August 21, 1971. While the Liberal Party was holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the general elections scheduled for November 8, 1971, two hand grenades were thrown, one after the other, at the stage where said candidates and other persons were. As a consequence, eight persons were killed and many more injured, including practically all of the LP candidates, some of whom sustained extensive, as well as serious, injuries which could have been fatal had it not been for the timely medical assistance given to them. On August 23, soon after noontime, President Ferdinand E. Marcos announced the issuance of Proclamation No. 889, dated August 21, 1971, suspending the privilege of the writ of habeas corpus, “for the persons presently detained xxx for the crimes of insurrection or rebellion xxx”, As stated earlier, then came a year later Proclamation 1081, the declaration of Martial Law which essentially made Marcos a dictator.

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Petitions for writs of habeas corpus were filed by some of those who were arrested without a warrant and then detained, upon the authority of Proclamation No. 889. A writ of habeas corpus, also known as the great writ, is a summons issued by a court addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. They assailed its validity, as well as that of their detention. The petitions were anchored on the mandatory provisions of the Bill of Rights that no suspension of the writ of habeas corpus is allowable, except in cases of invasion, insurrection or rebellion, when the public safety requires, and, even then, only in such places and for such period of time as may be necessary. The concurring and dissenting opinion of Justice Enrique M. Fernando (later Chief Justice of the Philippine Supreme Court) who was already recognized at that time as one of the country's leading authorities on constitutional law, and as an ardent civil libertarian, is very enlightening on the function of the judiciary as guardians of civil liberty. His dissent stated that the deeply-rooted conviction as to the primacy of constitutional rights precludes him from joining the Justices who ruled not to release the petitioners in said petitions.

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To be sure, the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the judiciary. The exercise thereof according to Justice Laurel requires that – to give effect to the supreme law – it can go to the extent of setting aside legislative and executive action. Speaking for the Philippine Supreme Court, Justice Abad Santos once pertinently observed: "This court owes its own existence to that great instrument and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this court is bound by the provisions of the Constitution." Justice Tuason would thus apply the constitutional rights with undeviating rigidity: "To the plea that the security of the State would be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is never a justification for courts to tamper with the fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so-called 'judicial statesmanship.' The Legislature itself can not infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository of civil liberty are bound to protect and maintain undiluted individual rights."

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CONCLUDING THOUGHTS: In the organization of our government as stated in our Constitution that the province and duty of the judicial department is to say (interpret) what the law is. While senators and congressmen enact laws (“legislate”), and executive officers carry out (“execute”) the laws, judges are the ones who actually apply the law to particular cases filed in their courts. The specific application of the law to particular individuals is a task incumbent on them. Hence, a judge should not meddle (by helping or opposing) other government functionaries in the performance of their own duties, such those in the executive department whose function is to see to it that the laws are carried out. Otherwise, the judge’s impartiality may be compromised should the actions of executive officers be later questioned in court. There is thus an assurance that as far as human foresight can anticipate matters, the possibility of abuse is minimized.

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