July 20, 2010

IMHO

In today's verbal shorthand (although at the rate that these things go, this might even be soooo dated already), "IMHO" would be "In My Humble Opinion" (for those who don't pretend to be humble, simply omit the "H"). Ironically, phrases like these very frequently demand the opposite reaction--far from being "humble", a preface such as IMHO would generally be a red flag for "hey, this is important, so listen up!"

This is a piece on persons with their respective problems with their own "humble opinions".

The President recently expressed an opinion on a pending litigation which he would later say was his personal opinion. I would be the first to argue and defend vigorously the President's right to hold a personal opinion on many things. However, because he is the President and because he said it publicly, his "personal opinion" takes on a life of its own. It spills over not only into the public domain but it becomes "marching orders" or, technically, policy. So when President Aquino III says in public IMHO Senator Trillanes IV got a raw deal (certainly not a direct quote but it is the same message) and may not have been charged with the proper offense, it becomes much much more than his "humble opinion." It signals the Justice Secretary to initiate an investigation into what the proper charge/s should have been; which, in fact, the Justice Secretary has done and is now doing.

What is wrong with the "personal opinion" of the President is that the case is pending and has been pending for some time (Note: I am counsel for some of the accused in the very same case, not for Senator Trillanes IV, and have, in fact, put on record in the proper pleadings that the charge is wrong and, as a defense, coup d'etat could not have been charged; former counsel of record for Trillanes IV Atty. Roel Pulido and counsel for one of the accused Atty. Rene Saguisag have pleaded the same exact defense. I should be happy that the President agrees with our assessment of the case; yet, I am greatly disturbed by the quality of "legal" advise that the President is apparently getting such that he was not advised that it would send the wrong message to say that in public.) . The President's HO gave all the wrong signals, policy wise. Moreover, it signalled a possible tectonic shift in terms of Executive-Judiciary relations--that the President would make a declaration that would have grave repercussions on the separation of powers.

The President's legal advisers ought to have not placed him in that spot and should have argued vigorously that such a declaration should not have been made public, even if it was the President's personal opinion. This is the refreshing change that President Aquino III brings to the Office--he has a personal opinion, he has a personal life, he values personal space--yet it is also a bane to a more effective handling of the Office--that he has a personal opinion which may, in certain instances, have grave repercussions, such as the present situation with Trillanes IV. The second President Aquino is very much the son of the first President Aquino--he keeps a close coterie of advisers, people he trusts, people he likes and he is very loyal to them. I have no problem with that because a leader should be able to go to people he trusts and believes in. However, there is a value to also bringing in people whose opinions you don't like or you don't hold--they either strengthen your opinion or they make you humbler. Surrounding yourself with "yes" persons affirms you but, in the end, you simply get parrots repeating what you've said. In keeping with the theme of this post, IMHO, aka Unsolicited advise to the President: get some people with contrary opinions and who can pick your opinions, even personal ones, apart and bring them into your circle of advisers; if your or your close advisers' opinions hold against them, then you can be confident that it will pass muster in the courts of law as well as public opinion; but if they don't, then perhaps it might be time to recalibrate, rethink, revision, revise.

It is not only the President who has been having difficulties with his HOs.

The Spokesperson, PIO Chief (and also the Court Administrator) of the Supreme Court of the Philippines has been defending a particular Justice of the Supreme Court accused of plagiarizing international law materials in one of his ponencias. The very same Spokesperson had publicly "interpreted" a very recent Decision on Gloria Macapagal-Arroyo's power to appoint the current Chief Justice.

Court Administrator Midas Marquez is a nice, personable man--well-suited for the job he holds as the public face of the Supreme Court. I have no quarrel with him.

However, when he speaks for the Court and goes beyond the text of the promulgated Decisions of the Court, he is, in fact, giving an Opinion that impacts on matters aliunde or outside the Decision. I tell my freshman students in Criminal Law every year that the only opinions that matter in the class are the opinions of the Justices of the Supreme Court acting as such. When the Court Spokesperson answers questions and gives opinions that are not found in the Decisions of the Court, then he is, in fact, acting very much like the 16th Justice of the Supreme Court. I find it strange that the only institution that we would not begrudge privacy and reticence to would be so open with its "opinions" through its public face and voice.

In my comments to the Chief Justice's recent media forays, I spoke of the potential dangers of such a policy because in unmoderated Q and A, the Chief Justice becomes easy prey to "hypotheticals" and uncontextual questions that might place him in a difficult situation relative to pending cases in the Court. The same danger arises when a media-savvy and accessible spokesperson "interprets" publicly the Decisions of the Court, which should, in every sense of the phrase, "speak for itself." That is what academics, legal scholars and law professors are for--to help others understand what exactly it is the Supreme Court is saying; this should not be the burden nor mandate of the Spokesperson of the Supreme Court (especially when he is also the Court Administrator, having charge over ALL the lower courts in the land). His HO becomes not only "policy", it might even be wrongly taken as canonical.

Recently, the Supreme Court came out with its Internal Rules of Procedure. The Internal Rules provide no standards for "publicizing" an Opinion other than publication in the Official Gazette through the PIO, which the current Spokesperson heads. It does not define the parameters within which the Spokesperson may act, speak for or "interpret" the rulings of the Court. Perhaps, it might be wise for the Court to now do so, IMHO.

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