Biggest loser

The Court of Appeals (CA) decision on the Smith custody case is one for the books. I think it is one of fastest decisions ever made by a judicial body that has so far already acquired a reputation for resolving cases at snail’s pace. It is also rare because usual court decisions somehow plainly determine the winning and the losing party. In this case all parties involved are claiming victory. A clear sign indeed that the issues raised have not been conclusively and satisfactorily settled.

The camp of the alleged rape victim who wants Smith held in the Makati jail claims victory because Smith’s petition questioning the RTC order of confinement in said jail has been dismissed by the CA. The CA said RTC Judge Pozon did not commit a grave abuse of discretion in issuing such order. But to Smith the dismissal of his petition does not matter anymore because he already got what he was asking for in said petition even before the CA ruling.

The CA cannot really be faulted for declaring Smith’s petition as "moot and academic". It has to recognize a fait accompli, a reality that has already happened and could not be undone by mere stroke of its pen. It is fully aware that if one of the parties involved in the case could get what they are asking for without awaiting its ruling on the matter, then it is futile and impractical to require them to revert back to the status quo ante. In all probability the CA could even be said to have been "pressured" by the adverse and serious repercussions on our country’s relations with the US and on our credibility in the international community if it ruled otherwise.

The CA situation is reminiscent of the situation faced by the Supreme Court in 1973 in the case of Javellana vs. Executive Secretary (50 SCRA 30) regarding the issue of whether the 1973 Constitution has already been ratified by the raising of hands of the people herded by the Marcos Regime in various "Citizens Assemblies". In said case, the SC was told that that the Government was already being run under the new Constitution since January 17, 1973; that the political department of the government has recognized said Constitution; that our foreign relations were being conducted under such new Constitution; that the Legislative Department has recognized the same; and that the people in general have by "their acts or omissions indicated their conformity thereto." Confronted with such reality, the SC was constrained to declare that "there is no further judicial obstacle to the new Constitution being considered in force and effect".

While the parties involved in this Smith case both claimed victory, it cannot be said that there is no loser here; in fact it is the biggest loser. And this is no less than the Judiciary itself through the exacerbation of its judicial power.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government (Art. VIII Section, Constitution). The essence of judicial power is the power of a court to hear and pronounce a judgment upon controversies presented to it and implies the construction of law and the adjudication of legal rights (The Attorney’s Pocket Dictionary). During the early years in law school one of the first basic principles we learned is the delineation of the different powers of the Executive, Legislative and Judicial Branches of the government so as to distinguish one from the other. Thus Legislative power refers to the power to enact laws or to declare what the law shall be, whereas Judicial power is the power to construe and apply said laws as it adjudicates the rights of citizens, while Executive power is the power to enforce and implement the laws enacted by the Legislature as construed and applied by the Judiciary.

In the Smith case, it is very obvious that the Executive Branch has intruded into or even usurped the judicial function. It interpreted, applied, and implemented the law or the VFA supposedly for the preservation of our international relations in the best interest of the country. In so doing the Executive Department has demonstrated a new mode of winning a case it has filed in court – by a "calibrated" preemptive move that will render the case moot and academic. The President may mean well and only has the best interest of the country in mind, but the end still does not justify the means.

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