Judge-made law!

I had an unorthodox professor in Legal Philosophy, my second-year Law school subject. He always came to school in sartorial elegance. His predictably neatly-pressed coat and tie contrasted to the unpredictability of his lectures. One day, he asked us, his students, what we understood by the term “judge-made law”. The topic was not previously assigned for our research and we looked at him blankly. We did not have the slightest idea what animal it was. Silence reigned supreme in our class. No one dared to answer his question. Perhaps out of his frustration of our obvious ignorance, he said a shocking one-liner. “When I decide a case filed in my sala, that is judge-made law!” Or words to that effect. From where I sat, I noticed my classmates slightly nodding their heads, although after our class I heard one of them saying that our professor seemed to have exhibited undisguised arrogance. His decision is law?

Years later, I learned that common law originated in England and adopted by many states. In comparison, the Philippines is a civil law country where our systems rely on comprehensive legal codes and statutes as the primary source of law. I also came to know that judge-made law is a common law term to refer to a body of laws that grew more from judicial decisions, rather than by legislative statutes. In a manner of speaking, our teacher was right! What he wrote in his decision was law. The “undisguised arrogance” of my Law professor, as observed by my classmate, was not entirely misplaced. Just imagine that according to the internet, judge-made law is a system where judges interpret and apply existing laws, and in doing so, create new legal principles or clarify existing ones through their rulings. There is kinship in what my Legal Philosophy teacher said.

In our jurisdiction, when the courts decide, their reasoning must be clear, logical, and based on the established facts and legal principles found written in our Constitution, codes and other statutes. We may not be a part of common-law countries where the core principle of common law is "stare decisis," which means "to stand by things decided” and which principle requires judges to follow prior court decisions but we also observe stare decisis.

Pasayloa nga may pagkataas ang akong pasada. The labyrinthian introduction I have given above is important in order that my stand on the decision of our Supreme Court declaring the impeachment articles against Vice President Sara Duterte Carpio as unconstitutional may be viewed as part of my freedom of expression rather than a contemptible opinion. Let me just talk of one fundamental issue, separation of powers. In layman’s understanding, it is the constitutional division of governmental authority among distinct branches, typically the legislative, executive, and judiciary. These departments are co-equal and independent of one another. Each department is not supposed to interfere with the others. The objective is to prevent any one branch from becoming too powerful.

In Article XI of the 1987 Philippine Constitution, the principle of Accountability of Public Officers is written. This article emphasizes that public office is a public trust as it mandates that public officers and employees must be accountable to the people, serve them with integrity, and lead modest lives.

This same Article XI also details the process of impeachment for high-ranking officials like a vice president and in this case Vice President Sara Duterte Carpio. The constitution gives this power to initiate an impeachment proceeding to the House of Representative and to the Senate to try. Both chambers can set their rules not inconsistent with the fundamental law to the exclusion of the other departments like the executive and the judiciary. The familiar label is separation of powers. When the Supreme Court went into the nitty-gritty of the rules on impeachment, a clear domain of Congress, it seemed to spew the undisguised arrogance of my Legal Philosophy professor’s “that is judge-made law”.