courts end up substituting their own policy decisions for those made by the elected
branches of government. Second, the drafters transformed the power of judicial
review into an ineluctable “duty” of the courts to decide. Finally, they maintained
the Supreme Court’s rule-making powers over judicial procedure. These three
clauses would set the stage for the aggrandizement of judicial power.
In 2007 , the United Nations Special Rapporteur on extrajudicial, summary or
arbitrary executions noted the alarming rise ofdesaparecidos^40 in the Philippines
and accused the entire executive and legislative branches of “an [“institutional”]
passivity, bordering on an abdication of responsibility by government.” “On paper
[the institutional remedies] remain strong. In practice, they are of all too little use,
and often this is the result of official design.” He noted how they evaded action
despite glaring instances, and how for instance the ombudsman received forty-four
complaints between 2002 and 2006 and failed to act on even a single case.
The Supreme Court, as it were to distance itself from such governmental
indifference, expansively exercised its rule-making power to create the writ of
amparo,
41
which would plug the loopholes of the erstwhile remedy, namely the
writ of habeas corpus. The court granted the writ of amparo to two brothers
abducted and tortured allegedly by the military, but who were able to escape.
Habeas corpus would have been mooted, but the court granted amparo relief,
stating that the right to security
42
of a person includes “freedom from threat[s]”
to life, liberty, and security, and includes the right to an “effective investigation”
and deployment of government resources to extend such protection.
43
The court flexed its rule-making power further, and issued the rules on the writ
of habeas data, for compulsory production of evidence^44 and the guidelines effect-
ively decriminalizing libel.^45 For the latter, the chief justice, by way of a mere
circular to lower-court judges, cited an “an emergent rule of preference for the
imposition of fine only rather than imprisonment in libel cases.” He said that
this was a “rule of preference set by the Supreme Court” that should guide all
lower courts.
However, the chief justice thus undermined the separation of powers. While
expressly affirming that the statutory penalties remain, he prodded lower courts not
to apply a penalty that Congress has prescribed by statute. In a sense, he merely
mirrored President Arroyo’s penchant for interpretive brinkmanship through
phantom “non-formaliz[ed] acts.”
46
(^40) Secretary of National Defensev.Manalo, G.R. No 180906 (October 7 , 2008 ).
(^41) A.M. No 7 - 9 - 12 -SC (September 25 , 2007 ).
(^42) Constitution Art.iii§ 2. See also Art.iii§ 1. (^43) Secretary of National Defense.
(^44) A.M. No 08 - 1 - 16 -SC, promulgated January 22 , 2008 , effective February 2 , 2008.
(^45) Administrative Circular No 08 - 2008 , Guidelines in the Observance of a Rule of Preference
in the Imposition of Penalties in Libel Cases (January 25 , 2008 ).
(^46) Chavez.