RBG in the house. Former President of the Supreme Court of Brazil Ellen Gracie Northfleet, Judge Rosemary Barkett of the Iran-US Claims Tribunal, and Justice of the US Supreme Court Ruth Bader Ginsburg.
Column No. 450, published on July 11, 2017. (What a thrill to meet RBG.)
On the eve of the World Justice Forum at The Hague, I asked the guest of honor, the eminent Ruth Bader Ginsburg, associate justice of the US Supreme Court, about how to build consensus in collegial decision-making institutions. I had the Philippine Supreme Court in mind: One majority decision and 14 separate opinions in a landmark case involving the exercise of extraordinary powers did not seem to me to be a sign of strength, but rather of weakness in the shaping of consensus. I did not say any of this — only that in my impression, building majority decisions could be problematic. She replied, initially, by asking questions.
Do the justices lunch together? she first asked. (Later, she asked a related question: Do the justices have their own dining hall? I confessed that I did not know, but guessed that they did.) Do they live near each other? Most of her questions were in this personal vein. I can remember only two questions that were directly related to the work: How many serve on the Court? (This question may have been asked by Judge David Caron, who sat between us; I am no longer certain.) When I said 15, she asked: Do they work in panels? Continue reading
Published on February 21, 2017.
I have not met Solicitor General Jose Calida, but his reputation precedes him. He likes, shall we say, to cut a figure. Arriving at a function in a convoy with flashing lights; deliberately ignoring his candidate’s vice presidential running mate at a campaign rally; going around town telling officers of the court he is replacing Ombudsman Conchita Carpio Morales, and soon. So it wasn’t exactly a surprise when he justified his startling intervention in Janet Lim Napoles’ serious illegal detention case with yet another act of immodesty.
“It is up to the Justices of the Court of Appeals to assess the weight of our pleading. And, modesty aside, the Solicitor General is considered as the 16th Justice of the Supreme Court,” he told reporters on Thursday.
Of all the things he said in that disturbing news conference, this was in my view the most upsetting.
In the first place, no solicitor general publicly refers to himself as the unappointed member of the Supreme Court; it just isn’t done. The boundaries that divide the work of the executive’s chief lawyer from the work of the judiciary are not only constitutionally determined but also ethically set.
Published on November 22, 2016.
We should join the mass actions to protest the Marcos burial—especially the ones called for Nov. 25 and Nov. 30—because the times call for it. Our dignity as free Filipinos has been challenged, our sense of heroism, of honor even, has been gravely insulted; the democratic project itself is under threat. Allowing the dictator’s remains to be buried in the Libingan ng mga Bayani, a national shrine, undermines the constitutional order.
We must show up in force in protest sites across the country.
We should protest the miscarriage of justice that is the Supreme Court decision in the Marcos burial cases. It is an abhorrent outcome not because it favors the Marcoses but because it is manifestly unjust; it disregards settled jurisprudence, minimizes the import of history, bends over backward to accommodate the incumbent President, and above all self-emasculates the judiciary, in order to favor the Marcoses. I have criticized the careless thinking and cowardly positions of Associate Justice Diosdado Peralta’s unfortunate majority opinion, but you don’t have to take my word for it. Associate Justice Benjamin Caguioa’s comprehensive rebuttal (every point of Peralta’s is dealt with, decisively) ends with the following deeply moving reflection. Continue reading
Published on November 15, 2016.
There is none so blind as he who refuses to see. Associate Justice Diosdado Peralta’s ponencia in the Marcos burial cases will go down in history as the cowardly rationalizations of a willfully blind man; he deserves the opprobrium coming his way. He still has six years to serve in the Supreme Court, but his legacy will be forever defined by this badly written, ill-thought-through, deliberately obtuse majority decision.
Peralta’s opinion begins: “In law, as much as in life, there is need to find closure. Issues that have lingered and festered for so long and which unnecessarily divide the people and slow the path to the future have to be interred. To move on is not to forget the past.” This New Age-speak is nonsense, misleadingly so, because closure does not come from any Court ruling but from a ruling that is truly just.
The opinion ends with a similar lame attempt at an overview: “There are certain things that are better left for history—not this Court—to adjudge. The Court could only do so much in accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the passage of time provides.”
That squeaking you hear? That’s the sound of Peralta and the eight justices who joined the majority trying to fit their bottoms on the fence they’re sitting on. The people had already decided: They ousted Marcos, supported the restoration of democratic institutions, overwhelmingly ratified the Constitution. It takes an extra amount of determination to ignore history.
Published on October 18, 2016.
If the Supreme Court did not exist, an Inquirer editorial once argued, it would be necessary to invent it. We can add a corollary: If an occasion demanded its invention, it would be the series of legal issues arising from the Marcos dictatorship. Ferdinand Marcos rose to power through skillful use of the means of democracy—the same democracy he and his wife then subverted when he imposed military rule and assumed absolute power.
The Marcoses, to steal one of Philip Larkin’s unforgettable opening lines, “they f*ck you up.”
I use the present tense, because even though Marcos himself died a quarter-century ago, many parts of the legal and political and cultural edifice he built persist to this day. So yes, the Marcoses continue to mess with our mind—and proof lies in President Duterte’s unrepentantly legalistic view that nothing bars him from ordering the burial of the dictator’s remains at the Libingan ng mga Bayani (and honoring his campaign promises).
It’s a narrow interpretation of a tenuous legal principle, against the whole weight of history. This is Marcosian in both inspiration and execution, a privileging of the created legal order at the expense of national experience and the public interest.
Published on May 26, 2015.
THE RESISTANCE to the Bangsamoro Basic Law has shifted to the battleground of constitutionality. We still hear the occasional demand for the Moro Islamic Liberation Front to show its sincerity as a partner in the peace process by making amends for the Mamasapano incident—but now that congressional committees have started voting on the controversial measure, the question of MILF sincerity is no longer a determining or even perhaps an influential factor.
Even supporters of the bill recognize the shift in the debate; Rep. Rufus Rodriguez’s strategy to win the bill’s passage at his committee level, for instance, was premised and pushed (and publicized) on the perceived need to align key provisions in the BBL with the Constitution.
We can all agree on one principal reason for the change: It is an attempt to base the debate on firmer ground, on the solid logic of constitutional law rather than the volatile emotionalism of post-Mamasapano blame-mongering. Continue reading
Published on October 7, 2014.
Director General Alan Purisima, the country’s controversial chief policeman, bought a sport utility vehicle last year worth about P4 million for only P1.5 million. Why did he enjoy such a substantial discount? His answer before the Senate committee on public order a week ago could be fairly summed up as follows: Because he was offered a substantial discount.
If Purisima were investigating a crime, would he accept his own answer at face value? It is an explanation that does not explain, and only fosters suspicions about his dangerous and apparently recently acquired naivete.
A skeptical Sen. Grace Poe gave him polite but pointed advice: “I’m not saying it’s your fault that you were able to get it at a discounted price. But you should have taken a second look at that big a discount… Ask yourself, why is this being given to me at a cheaper price?”
But does the chief of the Philippine National Police really need advice about motives, criminal or otherwise? That the car dealer has no dealings with the PNP, as Purisima said at the Senate hearing, does not make the sweetheart deal aboveboard; the lack of a direct relationship between dealer and organization only means that other relationships may be at stake. At least that is how we expect Purisima and other police officers to think, when a public official is offered a discount large enough to make the sale unprofitable. Continue reading
Published on September 30, 2014.
Much has already been said about the incident involving Budget Secretary Butch Abad and a score of student protesters at the University of the Philippines the other week. Inquirer reporter Erika Sauler’s summary sentence, in a report she filed a few days after the incident, can serve as a helpful wrap-up: “As he exited the auditorium [and made his way] to his vehicle, a group of protesters from Stand UP (Student Alliance for the Advancement of Democratic Rights in UP) ganged up on him, calling him a thief as they threw crumpled pieces of paper, placards and coins in his direction.” Other reports described one protester grabbing Abad by the collar.
Regardless of where one stands on the issue, whether the students were justified in their violent protest or not, the incident seems to me to demonstrate that words in fact have consequences in the real world. Continue reading
Published on September 2, 2014.
Conventional wisdom and expert judgment share a consensus: Associate Justice Francis Jardeleza will inhibit himself from Supreme Court deliberations on the fate of the Disbursement Acceleration Program. As solicitor general, he had not only argued the case before the Court; he had also submitted the motion for reconsideration.
I do not know whether he will; I am aware that most people would consider a failure to inhibit as conflict of interest writ large; as a citizen, I would rather that Jardeleza (one of my teachers in constitutional law) inhibit himself, not from the deliberations, but from the voting itself.
As a journalist, however, I would like to question the conventional wisdom that holds that, “of course,” Jardeleza must remove himself from the equation. I am prompted to do so by yet another provocative question posed by former law dean Rayboy Pandan on that virtual commons we all inhabit, Facebook. Continue reading
Published on July 22, 2014.
The law is too important to be left to lawyers alone. Every citizen has the right to join a discussion involving legal issues, especially if the Constitution is at the heart of it. I am certain Fr. Ranhilio Aquino, dean of the San Beda Graduate School of Law and a constant critic of his namesake President, would agree. Like me, the columnist erroneously described as a priest-lawyer is not in fact a member of the Bar.
To be sure, as anyone can see from his biography posted on the Central Books website, he has at least two doctorates, including one in jurisprudence from a school in California. But even if he didn’t (and this is the point), his commentaries would still be welcome. So perhaps that should be our first thesis, if we make a concerted attempt to understand President Aquino’s intemperate reaction to the Supreme Court’s adverse ruling on the Disbursement Acceleration Program (DAP): The law is too important to be left to lawyers alone.
Second thesis: The Aquino administration was right to file a motion for reconsideration, even though the possibility of reversal is small. I did not think it was worth it the week I read the ruling, but have since come to understand that the administration was bound to file the motion, for political reasons. The idea as I understand it is not simply to exhaust all legal remedies, but for the administration to rally the demoralized with a vigorous defense. The President’s speeches on July 14 and 15, however, were too aggressive, and rightly seen as threatening. Continue reading
With links to three previous posts. Published on September 11, 2012.
It is already conventional wisdom to say that Barack Obama’s acceptance speech in Charlotte, North Carolina, fell flat—especially when compared to his wife Michelle’s stirring speech on the first day of the convention, or to the master class ex-President Bill Clinton gave on the second day, or to his own soaring words when he accepted the Democratic party’s presidential nomination in Denver, Colorado, in 2008. Okay, maybe, but flat according to whom?
I have been worrying this question since I read Molly Ball’s assessment of Obama’s anticlimactic, “perplexingly lifeless” address in the Atlantic Monthly. I thought his acceptance speech was solid, substantial, not so much sober as sobering. But Ball, whom I read regularly, thought otherwise (and so did many others). Continue reading
Published on August 7, 2012.
The Judicial and Bar Council, meeting this week to agree on a short list of candidates for chief justice, would do well to remember one specific untruth Renato Corona said at his impeachment trial. He infamously began his premeditated walkout from the Senate trial by intoning the words, “The Chief Justice of the Philippines wishes to be excused.” But in fact, there is no such office, and therefore no such official.* Continue reading
The second of a two-part review of the must-read book of the year. Published April 6, 2010.
Last week, I outlined some of my reserv-ations about the must-read book of 2010, Marites Vitug’s “Shadow of Doubt: Probing the Supreme Court.” My attempt to sketch a fuller picture was part of a two-step process. “I thought, borrowing the conceit of legal language, I might devote much of today’s column to a dissenting opinion, as it were,” I wrote then. “Next week, the concurring opinion follows.”
The first of a two-part review of the must-read book of the year. Published on March 30, 2010.
On the copyright page of “Shadow of Doubt: Probing the Supreme Court,” Marites Vitug’s must-read book-length investigation of the Supreme Court, we find an inadvertent change in the subtitle. SHADOW OF DOUBT, we read, and underneath it: PROVING THE SUPREME COURT.
I think the case can be made that typographical errors are publishing’s equivalent of movie-making’s continuity gaffes, which Graham Greene, in a previous incarnation as film critic, and channelling Jean Renoir (I think it was), referred to as part of the unconscious poetry of films. I certainly like the accidental, new subtitle. It tells us what we need to know about the book: it “proves” the Court, in the sense of trying and testing it. Continue reading
A manufactured crisis; the conventions of opinion writing; coping mechanisms for survey laggards. Published on January 12, 2010.
Yesterday’s editorial piqued my curiosity. “Not least, the history of the Court itself belies [Rep. Matias] Defensor’s contention that the office of Chief Justice had never been vacant, not even for a day.” Good thing the Supreme Court maintains one of the better government websites.
On sc.judiciary.gov.ph, we can find a list of the country’s chief justices, going all the way back to Cayetano Arellano. There are a few mistakes on the list that even a non-lawyer can spot and which can easily be remedied, such as Manuel Moran’s date of retirement (May 29, 1951, not 1966) or the order of Roberto Concepcion’s successors (Querube Makalintal came before Fred Ruiz Castro). But in it too, Defensor can find the perfect rebuttal to his arguments. Continue reading
Blair compared; St. Paul dissed (sort of); Alex Magno deconstructed. Published on March 31, 2009 (with the print version hiding a head-slapping typo–“stringest,” instead of “stringent”–that makes me cringe. I am reminded of my five-year-old son quoting from his favorite cartoon show: “I … was weak.”)
One more word about the Tony Blair speaking tour. It may have been the most complete triumph by a British dignitary on Philippine soil since, well, Brig. Gen. William Draper landed unopposed, somewhere in Malate, in 1762. Of course, two and a half centuries ago, the British easily conquered the capital but faced great difficulty in the periphery. Continue reading
Published on February 3, 2009
Of the many basketball teams I have rooted for, perhaps my sentimental favorite is the Magnolia team of the 1985 Open Conference. Carrying the colors of the San Miguel franchise in the Philippine Basketball Association (at that time, there was only one), the team was probably the weakest ever on paper. Aside from playing coach and import Norman Black and Marte Saldana, once a Rookie of the Year, there were no other top-tier players (or at least none that I can remember). Oh, there was the hard-working Gerry Samlani, who flustered history one unforgettable night when he converted a rebound into two points—-in the opposing team’s goal.
And yet the team ended up dueling with the impossibly talented Great Taste team (coached by Baby Dalupan, led by sweet-shooting MVP Ricky Brown, backstopped by All-Defensive stalwart Abe King) for the conference championship. Great Taste, with its superior firepower, won in six games; Magnolia finally surrendered after Dalupan launched yet another new weapon: Jimmy Manansala’s three-pointers from nowhere. But what a ride for a team with no prospects. As a team, Black’s warriors weren’t destined for anything; they created their own fate.
I was (improbably) reminded of the team after watching the great Roger Federer lose to Rafael Nadal in the Australian Open finals the other night. Don’t ask me why. Perhaps something to do with the difference between destiny and fate. Continue reading