by Jeffrey “Ka Eric” Celiz
Pointedly, it needs to be emphasized that legislation by judicial action refers to situations where the court (particularly the Supreme Court) makes decisions the Implications and effects of such decisions are tantamount to enactment of laws that should instead be rightfully determined by the legislative branch of government, Congress in particular.
In the context of the Philippines, the long running issue of so called red tagging has sparked another debate about the role of the Supreme Court in shaping laws and policies related to national security and the protection of human rights vis-a-vis the inherent right of the state to self-preservation and protection against the forces and actors that promote rebellion, subversion and terrorism with the deliberate intent of overthrowing the democratically established government.
Individuals and groups connected with, and are actually part of the communist terrorist movement of the CPP-NPA-NDF in the Philippines that ‘red tagging’ is an act of labeling individuals or groups as communists or terrorists without due process and has, therefore serious implications for their freedom of speech, dissent, and democracy itself.
Plainly, however, this is only intended to hide their communist terrorist operations and involvement with the armed terrorist component that is the NEW PEOPLE’S ARMY or the NPA.
Such involvement and connections are covertly embedded and integrated into the so-called communist terrorist “white area operations” or their urban-based activities where they hide under the cover of their own created or infiltrated aboveground (legal) organizations and alliances.
Allowing the Supreme Court to engage in legislation by judicial action in relation to such a very controversial issue of so-called red tagging, the national security Implications of such cannot be understated.
Dangers and Implications
- Erosion and undermining of the principle of Separation of Powers:
Allowing the Supreme Court to make laws pertaining to red tagging undermines the principle of separation of powers, a cornerstone of democracy.
The court’s role is to interpret laws, not to create them. When the judiciary oversteps its bounds and enters into legislative territory, it sets a dangerous precedent that blurs the lines between branches of government, and eventually weakens the core integral unity of components of the state, thereby giving undue advantage to the enemies of the state.
Exactly how the CPP-NPA-NDF and their urban operatives functionaries, colluders and enablers are now exploiting to their advantage this latest decision of the Supreme Court is apparently an act tantamount to legislation by judicial action.
- Lack of Public Accountability
Judges or even the Supreme Court Justices are not elected officials and do not have the same level of public accountability as that of elected legislators. When the Supreme Court engages in legislation by judicial action, it bypasses the democratic process and deprives the public of its right to hold lawmakers accountable for their decisions and such action of the Supreme Court may amount to internal weakening of the democratic institutions of government, as well as adversely creating negative blows to the very important function of the government in relation to national security and public safety.
- Threat to Judicial Independence
Engaging in legislation by judicial action in the context of the red tagging decision by the Supreme Court exposes the judiciary to political pressures and influence-peddling operations that can result to the undermining of the Court’s real independence.
Justices may be influenced by external forces, leading to decisions that are not based on legal merit but on political considerations and a political interventionist standpoint, such as what happened to the latest Supreme Court decision on “red tagging” claims by the CPP-NPA-NDF and their communist terrorist urban operatives and urban-based organizations.
- Violation of Due Process
Deciding on the controversial mythical claims of red tagging individuals or groups as asserted by the communist terrorist group of the CPP-NPA-NDF through their urban operatives and functionaries without due process being afforded to state witnesses to properly present their case to the court clearly violates the fundamental right to a fair trial and presumption of regularity into the action of the Executive Branch of government.
When the Supreme Court engages in legislation by judicial action related to red tagging issue, it risks further eroding the due process rights of those who execute the laws pertaining to national security and suppression of threats of terrorism especially the pervasive threat to national security being posed by the communist terrorist group of the CPP-NPA-NDF and their colluders and component operatives.
- Implications to Suppression of Free Speech and Free Flow of Information
The recent act of the Supreme Court, which is obviously a controversial act of legislation by way of judicial action on its decision about the mythical claim of the communist terrorist group of the CPP-NPA-NDF urban operatives has a paralyzing effect to the overall comprehensive National Security and anti-terrorism policies of the government, especially in the fight to decisively defeat the over half a century old nd pervasive national security problem of the country, the communist terrorist CPP-NPA-NDF.
Allowing the Supreme Court to legislate on “red tagging” issues can further stifle legitimate forms and conduct of national security and anti-terrorism operations of the Executive Branch of government.
In conclusion, the dangers and implications of legislation by judicial action in relation to red tagging claims of the CPP-NPA-NDF through their urban operatives and components in the urban operations, such as decision made by the Philippine Supreme Court comes with profound dangers and serious consequences for the entire national security of our country and our people.
Such actions undermine the principles of separation of powers, public accountability, judicial independence, due process, and national security protection rights.
It is imperative that the judiciary respects its role as an interpreter of laws, refrain from overstepping its authority into legislative matters, more especially when national security and state protection, as well as public welfare are seriously at stake. Upholding the rule of law and protecting human rights vis-a-vis the inherent right of the state to preservation and protection require a careful balance of powers and a commitment to protect both our democracy and national security.
