Courts as Policymakers: Untangling Judicial Activism in the Philippines

Alicor Panao

March 22

*The Supreme Court. Photo by Mike Gonzales via Wikimedia Commons.*

Theories of democracy generally value citizen activism as an essential component of a healthy democratic system. Hence, when people engage in protests, participate in signature campaigns, and contribute to online and offline public discourse, there are bound to be inconveniences, but democracy would certainly still be thriving.

What happens, however, if instead of individuals, institutions or branches of government engage in activism? Consider courts, for instance. What if judges interpret laws based on their own normative beliefs or political predispositions, or if courts make a habit of striking down an action of either the Congress or the president?

As the questions hint at, judicial activism is far from one's usual notion of political activism. Simply put, judicial activism refers to the judiciary's willingness to interpret the Constitution and laws in a manner that actively shapes public policy. In the literature, there is judicial activism when a court undertakes any of the following: a court invalidates the constitutional action of another branch (e.g., legislature, executive); a court fails to adhere to a precedent; a court engages in judicial policymaking; a court departs from accepted interpretive methodology; or when a court engages in result-oriented judging (Kmiec, 2004). In judicial restraint, judges limit their interpretation to the text of the law; whereas in an activist court, members delve into broader societal issues and make themselves architects of legal and social change.

Figure 1. Filipinos' trust in courts

Note: The survey question reads: "I'm going to name a number of institutions. For each one, please tell me how much trust do you have in them? (Do not read: Do not understand the question, Can't choose & Decline to answer)" Source: Asia Barometer, 5th Wave (2022)

Distinguishing judicial activism from political activism

Although conventional political activism and judicial activism share advocacy as a common thread, the similarity ends there. As a distinctive form of activism, judicial activism unfolds within the hallowed halls of courts rather than on bustling streets or in community centers. Conventional activism typically conjures images of impassioned protesters and grassroots organizers. Judicial activism, on the other hand, operates within the legal system, with judges leveraging their interpretive authority to shape legal precedents and to influence policy.

Another significant difference between judicial activism and political activism evolves around the issue of democratic legitimacy. Political activism, inherently requiring citizen participation, operates within the principles of representative democracy. Activists seek to influence elected officials and operate within the structures of accountable governance. In contrast, judicial activism involves unelected judges who make decisions that have far-reaching repercussions on public policy, but who are insulated from democratic accountability.

Another point of contention is the timing of response. Political activism is often reactive and undertaken to address pressing social concerns or issues requiring immediate public attention. Judicial activism, on the other hand, operates within the more deliberate and reflective temporal dynamics of legal proceedings. Decisions require contemplation and a good amount of legal scholarship.

The Supreme Court in session for the oral argumentsfor the consolidated cases of G.R. No. 261123 (Duty to Energize the Republic Through the Enlightenment of the Youth [Duterte Youth] Party-List v. Commission on Elections, et al.) and G.R. No. 261876, (Duty to Energize the Republic Through the Enlightenment of the Youth [Duterte Youth] Party-List v. Maria Rowena Amelia V. Guanzon). Photo from the official Facebook page of the Supreme Court of the Philippines.

Judicial activism in the Philippines

A major critique of judicial activism is its potential to undermine democratic legitimacy. When courts engage in policymaking through excessive judicial activism, they are not only usurping legislative prerogatives but also undermining electoral accountability. Unlike legislators who citizens can discipline by not reelecting, for instance, members of the judiciary cannot be made directly accountable to the citizens except perhaps by public opinion. Excessive judicial activism can also result in inconsistent legal decisions, as when courts interpret laws differently, based on their members' ideological or moral predispositions. This lack of consistency can create uncertainty in the legal system, and may erode confidence in the ability of the judicial branch to provide stable legal interpretations.

However, some also contend that judicial activism is a crucial safeguard against executive overreach, a means to champion minority rights, and a framework to pursue social justice. In the Philippines, in particular, instances of judicial activism by the Supreme Court seem to underscore its dynamic role in shaping a socially conscious legal milieu. During martial law, when confidence to political institutions was low, the high court was said to have actively engaged in redistributive policymaking in favor of the have-nots, as a means of preserving its own legitimacy (Haynie, 1994). When democracy was restored under the 1987 Constitution, on the other hand, the high court is said to have performed a balancing role consistent with the pursuit of social justice as a constitutional principle (Panao & De Leon, 2018).

Figure 2. Opinion on the function of courts

Note: The survey question reads: "Many things may be desirable, but not all of them are essential characteristics of democracy. On the scale of 1 to 10, one means not an essential characteristic of democracy and 10 means an essential characteristic of democracy, please choose the level for each statement: Q91. The court protects the ordinary people from the abuse of government power." Source: Asia Barometer, 5th Wave (2022)

There are numerous accounts of the high court actively interpreting and applying the law to address significant legal, constitutional, and societal issues. For instance, in the case of Association of Small Landowners of the Philippines v. Secretary of Agrarian Reform (G.R. No. 78742, July 14, 1989), the Court creatively construed agrarian reform legislations as both compensable taking and police power to ensure equitable land distribution. In the groundbreaking case of Ang Ladlad LGBT Party v. Commission on Elections (G.R. No. 190582, April 8, 2010), meanwhile, the Court recognized the right of the LGBTQ+ community to political representation, thereby marking a significant step towards inclusivity and equality.

Judicial activism in the Philippines also extends to environmental matters, as seen in the oft-cited case of Oposa v. Factoran (G.R. No. 101083, July 30, 1993), where the court recognized the right of the present generation (erstwhile having no legal standing) to sue on its behalf and that of future generations for the protection of the environment. The Court also actively made sure that equal opportunity and freedom of speech are protected, as when it upheld the right of a perennial nuisance candidate to run for public office (Pamatong v Commission on Elections, G.R. No. 161872, April 13, 2004); and recognized the importance of properly conducted exit polls to ensure orderly and credible elections (ABS-CBN v. Commission on Elections, G.R. No. 133486, January 28, 2000).

Figure 3. Belief in a proactive judiciary

Note: The survey question reads: "Now I am going to read to you a list of statements that describe how people often feel about the state of affairs in [country name]. Please tell me whether you strongly agree, somewhat agree, somewhat disagree, or strongly disagree with each of these statements: Q111: When government leaders break the laws, there is nothing the court can do." Source: Asia Barometer, 5th Wave (2022)

Citizens and activist courts

Notwithstanding scholars' mixed views of judicial activism, what do citizens make of an activist judiciary?

It is interesting to note that even though members of the judiciary do not need to court votes, courts seem to be among the most trusted government institutions in the Philippines. The fifth wave of the Asia Barometer Survey for the Philippines, for instance, shows that Filipinos generally have a high regard of courts as government institutions. As Figure 1 indicates, 78 percent of respondents say they either trust courts fully or trust them somewhat. However, survey results do not necessarily imply that people want courts to perform more proactively than necessary. As to the question whether it is essential in a democracy for courts to protect people when there is abuse of government power, in particular, people's opinion is generally mixed (see Figure 2). Although about a quarter of the respondents say it is definitely very essential, 21 percent take the middle ground. Nevertheless, as Figure 3 suggests, about six in ten Filipinos disagree that courts are passive and cannot do anything when government leaders break the law.

In summary, the extent by which judicial activism undermines democracy remains to be an empirical question. It is possible that despite the absence of electoral accountability, citizens ultimately shape the environment within which judicial actions take place. In the case of the Supreme Court, one study even suggests that such strong public support provides motivation for the high court's exercise of its review powers over other political actors (Deinla, 2014). As societies evolve and face new challenges, the ongoing discourse on the appropriate role of judicial activism in democracies will remain a crucial aspect of legal and political discussions.