We have a sovereign nation, a sovereign people and a sovereign state and yet we are not supreme.  There should be no argument that sovereignty does not mean supremacy.  Supremacy is one thing and sovereignty is another thing.  They are not interchangeable, they are not synonymous.  Sovereignty resides in the people; a popular sovereignty, so to speak.  A popular sovereignty is a system of government in which policy choices reflect the preferences of the majority of citizens.  Supremacy is the position of having the superior or greatest power or authority.  When we say rule of law, we mean supremacy of the law over government, over sovereignty and over the people themselves.  In this respect, nothing is supreme but the Supreme Court where rule of law or supremacy of the law conjures with interpretation, discretion and judicial legislation.

In a democracy a sovereign nation, a sovereign people and a sovereign state delegate the exercise of the powers of sovereignty through their chosen representatives in Congress.  Under a rule of law, the same sovereign nation, sovereign people and sovereign state delegate the exercise of supremacy of law to the Supreme Court, the court of last resort.  Supremacy of law, or rule of law, is a doctrine that belies reality; it is something in the book that is not put to practice.  Supremacy of the law is actually supremacy of men and rule of law is in reality rule of men.  The final law is not what the law says.  It is the opinion of the Supreme Court that is the final law of the land.  Their opinion, rightly or wrongly, is superior to the law and the tyranny of the pen is more destructive to people and institutions than the tyranny of the sword.  No one can stop the Supreme Court from voiding any law, rewriting the law through judicial legislation and reinterpreting the law to mean differently.  The potter is more powerful than the clay, the driver is more dangerous then the vehicle.

As final arbiter of justice, there is a need to preserve and protect the independence of the judiciary by a guaranteed tenure of office.  The independence of the judiciary gave it a free hand to do as it wishes in dispensing justice based on law and discretion.  Over the years that independence has gone too far to include abuse of discretion, judicial legislation and partial interpretation which amounts to judicial tyranny.  The independence of the judiciary had transformed our judicial system into a partisan court where justice is discretionary rather than mandatory.  Because of judicial tyranny, supremacy of the law or rule of law orchestrates an appearance and a legal facade.  I don't see justice where there is one law for the rich and another law for the poor amounting to selective justice.  I don't see rule of law where big-time violators are sacred cows while small-time violators are brought to justice to the teeth.  I don't see the independence of the judiciary in a Supreme Court serving as guardian angel to those who put them in office for I do see a debt of gratitude.  I see judicial tyranny in interpretation of the law, judicial discretion and judicial legislation.

The power of interpretation transformed rule of law into a rule of men for with interpretation laws become clay and justices become potters.  The power of interpretation had legalized what is illegal and voided what is valid.  The power of interpretation reworded, rewrote, reinterpreted and redefined the meaning of the laws to suit the idiosyncrasies and ideologies of the justices.  The power of interpretation gave supremacy to the opinion of the court over the language of the law.  The power of interpretation is the reason our rights and liberties dwindle over the whims of the Supreme Court.  The power of interpretation overrides supremacy of the law, rule of law and sovereignty in the altar of judicial independence.  The primacy of interpretation trivialized checks and balances.  Judicial tyranny is a necessary evil of the power of interpretation, biases and prejudices in a kangaroo supreme court.

Judicial discretion is defined as the exercise of judgment by a judge or court based on what is fair under the circumstances guided by the rules and principles of law.  It is the court's power to act or not to act when a litigant is not entitled to demand the act as a matter of right.  Again, what constitutes judicial discretion is a matter of interpretation for there are no guidelines on what is fair other than the circumstances, rules and principles of law which are subject to interpretation.  There is no dividing line between judicial discretion and abuse of discretion although abuse of discretion is defined as the adjudicator's failure to exercise sound, reasonable and legal decision making.  Partial justice and miscarriage of justice are often the result of judicial discretion.  Judicial discretion has been used as a cloak and club to shield the biases and prejudices of a kangaroo supreme court.  It is a safe haven for the preferences and loyalties of the men in the bench.  The superiority of judicial discretion trivialized checks and balances.  Judicial tyranny is a necessary evil of judicial discretion.

The prerogative of judicial legislation in furtherance of checks and balances gave the Supreme Court the power to do whatever it wants with acts of Congress.  Judicial legislation overturned acts of Congress and the policies of the Executive branch.  Judicial legislation reigns over government.  Playing games with facts and evidence, playing politics with law and justice, and playing devil's advocate with right and wrong are prerogatives embedded in judicial legislation.  The monstrosity of judicial legislation comes with impunity and lack of accountability.  The unlimited and unrestricted prerogative of judicial legislation made every rule, regulation, policy or law voidable and revocable.  The supremacy of judicial legislation trivialized checks and balances.  As with interpretation and judicial discretion, judicial tyranny is a necessary evil of judicial legislation.

The independence of the judiciary is a grant of absolute power, absolute privilege, absolute authority and absolute immunity.  No power in government has authority to supervise judicial conduct.  The independence of the judiciary is a franchise for judicial misconduct.  Independence of the judiciary replaced rule of law with rule of men through interpretation, discretion and judicial legislation.  Independence of the judiciary destroyed democracy in a Supreme Court that had overruled the sovereign will of the people when a people's president was ousted on the grounds of constructive resignation.  The independence of the judiciary was compromised when the justices of the Supreme Court danced to the music of politicians to whom they are beholden with a debt of gratitude.  The independence of the judiciary is shattered when bias, prejudice, preference and loyalty weigh heavily in the dispensation of justice.  Independence of the judiciary was viewed as the root cause of selective justice and judicial tyranny.

There is a showdown, a power struggle between the three branches of government.  We are on the way to self-destruction for we are nation standing on divided loyalties and divided trusts.  An institutional showdown shakes the foundations of government as it is a breakdown in leadership.  We all lose when a president is on trial for being a rubber stamp.  We all lose and no one wins when a supreme court is on trial for being partisan.  The entire government is on trial for a breakdown of law and order in the hands of those who make, execute and interpret our laws.  We don't need a president who must bribe Congress with pork barrels to get what he wants.  We don't need a congress that will rally to the whims of a president because of pork barrels.  And we don't need a supreme court whose interpretation, discretion and judicial legislation are tethered to judicial tyranny.

 

 

Munting Nayon News Magazine