Consensual text

Manolo Quezon has raised the question before: Why did the Supreme Court take such a long time to reach its decisions on 464, CPR, and 1017?

My own guess is that the search for unanimity caused part of the "delay." I don’t think we’ve paid sufficient attention to the consensual nature of the Supreme Court’s decision-making process. (The same can be said about the Catholic bishops’ twice-yearly deliberations.)

While we would like all high court decisions to be marked by a compelling logic which sweeps all in its path, we also need to acknowledge the principal role unanimity (or the lack of it) plays. The decisions striking down the essential provisions of 464 and the calibrated preemptive response policy as unconstitutional seem to me, in both cases, to be a reasonable, even inevitable, drawing-out of constitutional principles, but what really recommends the decisions is that the justices were unanimous. (And not merely unanimous in the result, but also in the reasoning. Unlike say the unanimous decisions upholding the events of Edsa II, there were no separate concurring opinions in these two cases, which have the effect of diluting the mainstream argument.)

I think Chief Justice Artemio Panganiban sees his role, in these cases of incomparable import, as in part that of a shepherd of consensus; the way to resolve disputes with finality is to act as one. That is the way I understand the 464 and CPR decisions, and that is the way I understand the flurry of opinions in the wake of the 1017 decision.

As I understand it (from many sources, including former court insiders), our Supreme Court follows the US tradition: After arguments, a preliminary head count is made; the ranking justice in the preliminary or original majority assigns the writing of the decision; over time, drafts of the decision are circulated, partly to strengthen support, partly to solicit it. Rival drafts may circulate; the minority view can become the new majority. At a certain point, the justices decide on the final draft.

That’s why it takes time. (And that is why a conscienceless executive can pay lip service to the principle of the separation of powers and still "get away" with democratic barbarities, by acting with that slow, deliberative process in mind.)

And that is why, or so it seems to me, Panganiban wrote his concurring opinion (although he had already joined in Justice Angelina Sandoval-Gutierrez’s 11-3 ponencia). He wanted to mitigate the damage done, by Justice Dante Tinga’s dissent, to the consensus decision he must have sought.

The Chief Justice’s separate opinion is short enough to insert right here.

PANGANIBAN, CJ:

I was hoping until the last moment of our deliberations on these consolidated cases that the Court would be unanimous in its Decision.  After all, during the last two weeks, it decided with one voice two equally contentious and nationally significant controversies involving Executive Order No. 464 [1] and the so-called Calibrated Preemptive Response policy. [2]

However, the distinguished Mr. Justice Dante O. Tinga’s Dissenting Opinion has made that hope an impossibility.  I now write, not only to express my full concurrence in the thorough and elegantly written ponencia of the esteemed Mme. Justice Angelina Sandoval-Gutierrez, but more urgently to express a little comment on Justice Tinga’s Dissenting Opinion (DO).

The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and finds nothing wrong with PP 1017.  It labels the PP a harmless pronouncement — “an utter superfluity” — and denounces the ponencia as an “immodest show of brawn” that “has imprudently placed the Court in the business of defanging paper tigers.”

Under this line of thinking, it would be perfectly legal for the President to reissue PP 1017 under its present language and nuance.  I respectfully disagree.

Let us face it.  Even Justice Tinga concedes that under PP 1017, the police — “to some minds” — “may have flirted with power.”  With due respect, this is a masterful understatement.  PP 1017 may be a paper tiger, but — to borrow the colorful words of an erstwhile Asian leader — it has nuclear teeth that must indeed be defanged.

Some of those who drafted PP 1017 may be testing the outer limits of presidential prerogatives and the perseverance of this Court in safeguarding the people’s constitutionally enshrined liberty.  They are playing with fire, and unless prudently restrained, they may one day wittingly or unwittingly burn down the country.  History will never forget, much less forgive, this Court if it allows such misadventure and refuses to strike down abuse at its inception.  Worse, our people will surely condemn the misuse of legal hocus pocus to justify this trifling with constitutional sanctities.

And even for those who deeply care for the President, it is timely and wise for this Court to set down the parameters of power and to make known, politely but firmly, its dogged determination to perform its constitutional duty at all times and against all odds.  Perhaps this country would never have had to experience the wrenching pain of dictatorship; and a past President would not have fallen into the precipice of authoritarianism, if the Supreme Court then had the moral courage to remind him steadfastly of his mortality and the inevitable historical damnation of despots and tyrants.  Let not this Court fall into that same rut.

ARTEMIO V. PANGANIBAN
Chief Justice

As I hope others will agree, Panganiban’s concurring opinion did not only seek to put Tinga’s dissent in perspective; it also sought to signal Malacanang. This Supreme Court has learned its lesson from the Marcos years.

PS. Does anyone know the basis of CJ Panganiban’s "defanging nuclear teeth" reference? I was, as they say, absent from the classroom on this one.

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6 Comments

Filed under Readings in Politics

6 responses to “Consensual text

  1. That was masterful prose by Justice Panganiban – almost brought a tear to my eye.

    Perhaps that’s why I’m not that worried about having a controversial President in the chair – this is one instance where Separation of Powers worked as intended. Too bad we can’t say the same thing of Congress or the Senate.

  2. I concur. If ever there was a doubt in my mind that the SC would toe the line when it comes to GMA because most of them have been appointed by the President, that dashed it all. Talk about making a stand.

    Btw, I checked Google for the phrase “defanging nuclear teeth” and though nothing came up, it does seem that the phrase “nuclear teeth” is prevalent enough.

    Google is our friend. 🙂

  3. Thanks, micketymoc. Of course, because the Supreme Court does not have an army, much depends on how the executive (which does, as well as a national police force) behaves. Cat, I looked it up too; I couldn’t find the right reference. I’m guessing it was either Nehru or Mao. (Or maybe Sukarno?)

  4. renmin

    “All reactionaries are paper tigers”–that’s the title of one of Mao’s famous quotations.

    http://www.marx2mao.com/Mao/RPT57.html

    But, afaik, he didn’t use the phrase “defanging nuclear teeth.”

    It is amusing/intriguing though, given the substantial Maoist constituency in the Philippine left, that the Chief Justice chooses to rather conspicuously show off an implied familiarity with Mao.

  5. Re use of the term, nuclear teeth, try in this context:

    From:

    http://pakistantimes.net/articale03060601.htm

    One is reminded of the remarks of Chairman Mao in the early ninety-sixties. Those were difficult days for the Chinese who were under a looming threat of nuclear attack by either of the two superpowers. Asked if China was intimidated by the threat of the superpowers, Chairman Mao replied, “Why should China be frightened? They are nothing but paper tigers”. When reminded that the ‘paper tigers’ possessed ‘nuclear teeth’, Mao retorted, “Even these are paper teeth!”

  6. Many, many thanks, renmin and Amadeo. Yes, it is curious that a chief justice would make such a reference. But then again, time has a way of “defanging” a famous quote of its circumstantial teeth. Again, many thanks. This is most interesting.

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