Being Right


(First of two parts)

The function of the Supreme Court is pretty clear cut: to exercise judicial power, which “includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not 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.”

Article VIII does also provide that the Supreme Court shall exercise “administrative supervision over all courts and the personnel thereof,” as well as “promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.” However, the foregoing “shall not diminish, increase, or modify substantive rights.”

In essence, the mandate of the Supreme Court is to decide cases in accordance with the Constitution and the laws made by Congress. It does not make policy or create rights. It instead is supposed to uphold the policy and rights determined by the two political branches (i.e., the Congress and the Executive) in accordance with the Constitution.

Hence, it is a bit baffling why the Supreme Court, through its Court Administrator “Officer in Charge,” would issue a Memorandum (dated May 12, 2023), addressed to all judges and court personnel, that “in celebration of the Pride Month” it will “hold its first ever nationwide ceremony on June 13, 2023 (Tuesday), to acknowledge and honor the LGBTQIA++ community by putting up the Pride Month tarpaulin bearing the official theme in all court stations and the placement of the Freedom Wall in every office.” Furthermore, “all are encouraged to wear the Pride shirts during the event.”

Baffling because it raises quite substantial questions that could affect the Supreme Court’s objectivity and the public’s perception of such objectivity. Perhaps this may be error, but as far as can be determined, the Supreme Court has not gone to such extents “to acknowledge and honor,” for example, indigenous peoples, handicapped children, single mothers, Muslims, entrepreneurs, or any other such sector in society, as it stated to do for the LGBTQIA++ community.

Ironically, it is indigenous peoples, handicapped children, single mothers, Muslims, and entrepreneurs that have actual specific laws enacted by Congress (some even with Constitutional provisions) that recognize them and their rights. This is important because, to repeat, the function of the Supreme Court is not to create policy but merely to uphold (by way of its rulings) the policy created by Congress and the Executive.

In the case of the LGBTQIA++, no law explicitly recognizes it. Not even the Safe Spaces Act refers to it. What the latter does mention is “sexual orientation.” However, heterosexuality is also an orientation and yet why hasn’t the Supreme Court expressly and specifically acknowledged and honored that as well? In fact, the recognition of the LGBTQIA++ as a legal category is still being debated in Congress, as can be seen in the years-long running deliberations on the SOGIE (Sexual Orientation and Gender Identity Expression Equality) bills. Which is as it should be. But it also means that the Supreme Court should refrain from judicially legislating a concept that the elected branches of government have deemed so far not to give official or legal recognition to.

Also consider that it would be profoundly inappropriate to excuse the Supreme Court’s decision to give particular treatment to the LGBTQIA++ by classifying it as a “marginalized community” because,

a.) as provided for in the immediately preceding paragraphs here;

b.) there is the indecipherable issue of what and who exactly makes up the LGBTQIA++ community; even setting aside the question of how the courts can determine if one is really a member of that community so as to enable the legal apportionment of rights, there are also the inherent contradictions (e.g., how can “L” be said to have any commonality with “T,” and what shared interests could “L” and “G” have vis-à-vis “B”?, and so on) that have been long ignored and need to be addressed; then, finally,

c.) how can a community that has “every June of the year” set aside to celebrate it be seriously called marginalized?

A community with likely 2-5% share of the Philippine population, a smaller share than the indigenous peoples (20%) and Muslims (10%), and yet one able to make universities, local government units, businesses, and even the Supreme Court itself feel obligated to pay homage to it can hardly be considered marginalized. The LGBTQIA++’s influence goes beyond the month of June: corporate policies, university courses, advertising, public parades, restaurants, and churches are compelled to adapt their facilities, even legislation or ordinances proposed or enacted. The LGBTQIA++ are practically extolled and celebrated every day all year round. That is not a marginalized community.

But to reiterate the crux of the issue, unlike the other aforementioned entities, the Supreme Court is duty bound to exhibit neutrality. Such practically is its inherent nature, as well as its job description.

What is interesting is that June is the anniversary month of the Supreme Court’s founding. June is also significant for the celebration of the National Flag and Independence Day. Finally, it is the month dedicated to the Sacred Heart of Jesus, a matter important to Catholics, of which 80% of the population belong to. And yet, it is the LGBTQIA++ that get not merely a day but an entire month to be acknowledged and honored by the Supreme Court.

(To be continued.)


Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence

Twitter  @jemygatdula