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.

Judicial Touch Move?

In 1990, retired Supreme Court Justice Abraham F. Sarmiento, in Misolas v. Panga, G.R. No. 83341, wrote:

"It perplexes me why this dissent should first of all merit what appears to be repartees from the majority. I am but casting a contrary vote, which, after all, is in performance of a constitutional duty.

I am also concerned at how this case has journeyed from ponente to ponente and opinion to opinion, which, rather than expedited its resolution, has delayed it-at the expense of the accused-petitioner.

I was originally assigned to write the decision in this case, and as early as June, 1989, I was ready. On June 14, 1989, I started circulating a decision granting the petition and declaring Presidential Decree No. 1866, as amended by Presidential Decree No. 1878-A, unconstitutional and of no force and effect. Meanwhile, Madame Justice Irene Cortes disseminated a dissent. By July 18, 1989, my ponencia had been pending in the office of the Chief Justice for promulgation. It carried signatures of concurrence of eight Justices (including mine), a slim majority, but a majority nonetheless. Five Justices, on the other hand, joined Justice Cortes in her dissent. The Chief Justice did not sign the decision on his word that he was filing a dissent of his own.

Subsequently, and as events would soon unfold quickly and dramatically, the Chief Justice returned my decision to the Court en banc, and declared that unless somebody changed his mind, he was promulgating my decision. Justice Edgardo Paras, who was one of the eight who had stamped their imprimatur on my decision, indicated that he did not want to "clip the wings of the military" and that he was changing his mind. This sudden reversement under the circumstances surrounding its manifestation, took me aback for which I strongly voiced my protest for a case (although the majority is very slim) that I had thought was a settled matter.

I am aware that similar events in the Supreme Court are nothing uncommon. The following are the ringing words of my distinguished colleague, Justice Ameurfina Melencio-Herrera, but they could just as well have been mine, as far as the instant controversy is concerned, and I could not have put it any better:

It has taken all of a year and four months to what, I hope, will see the final disposition of this case, notwithstanding periodic reminders for an earlier resolution. It is this delay that has caused me a great deal of concern. It is, to me, a crying example of justice delayed and is by no means "much ado about nothing," ... Nor is the question involved "none too important." ... The bone of contention is whether or not a criminal complaint, which is an offense against the State, may be dismissed on the basis of an amicable settlement between the complainant and the accused, who is a public officer.

As assigned initially, I was to prepare the opinion of the Court. My original "ponencia" annulling the Order of respondent Municipal Judge Eriberto H. Espiritu dismissing the criminal case against respondent Mayor Emiliano Caruncho, granting the petition for Certiorari and Mandamus, and ordering respondent Municipal Judge to reinstate and proceed with the trial on the merits of the criminal case against respondent Mayor without further delay, was circulated beginning July 30, 1982."

Justice Sarmiento proceeded to convert his original ponencia into a dissenting opinion, which he published in full as a dissent.

I recalled this case from law school when I heard of the Limkaichong case which has led to impeachment whispers again, this time of the Chief Justice.

The Supreme Court is--or should be--well known for its reclusiveness and its almost obsessive compulsion for privacy (although one may argue that cannot be the case where a photogenic and articulate PIO like Midas Marquez trolls the screens of our television sets). Very little is known about its internal processes and what little is known is not always confirmed.

That is why the leaked draft (being attributed to the newly-retired Ruben Reyes, controversial in his own right by virtue merely of being a Justice) in the Limkaichong election case pending before the Supreme Court is such a big deal.

The former Congressman, whose wife stands to benefit from the Reyes draft if promulgated, has been making the rounds saying that the Justices are presumed to know what they are signing and if they have signed it, then it can't be changed anymore. Something akin to judicial "touch move", to borrow a phrase from the sport of Kings.

The dissent of Justice Sarmiento in Misolas v. Panga (quote above) clearly shows that it has happened before--at least twice on record as his dissent quotes another Justice who experienced a similar reversal of fortunes, the venerable Ameurfina Melencio-Herrera in People v. Caruncho). In the Caruncho case, the new writer, Justice Abad Santos, made light of the circumstances by saying:

"This case is a good example of the saying: "much ado about nothing. And it serves as a reminder of the suggestion that we should relax, take it easy and not get unduly excited. For these reasons, a little whimsy is not out of place.

This case was originally assigned to Justice Ameurfina A. Melencio-Herrera who was an outstanding student of the Chief Justice. The facts which led to the filing of the case had attracted national attention so it was thought that Justice Melencio-Herrera would once again pen a significant opinion. Due solely to the vagaries of chance, according to the Chief Justice, the lady justice was writing the decisions in leading cases. At one time Justice Antonio P. Barredo remarked that despite his long service with the Court he had not penned a landmark case. But that was before the Federation of Free Farmers case (107 SCRA 352-490 [1981]) which competes with the McDougal and Feliciano tomes in their soporific effects.

Justice Melencio-Herrera in fact already had a ponencia to which nine (9) other justices concurred. But alas, before it could be promulgated some of the brethren changed their minds. No, they did not exactly flip-flop; they merely flipped. Justice Melencio-Herrera has "threatened" to write a separate opinion and hopefully she will tell it all."

Not one to be intimidated or made light of, the Lady Justice from Cavite (direct descendant of Emilio Aguinaldo) quite pointedly replied to this:

"It has taken all of a year and four months to what, I hope, will see the final disposition of this case, notwithstanding periodic reminders for an earlier resolution. It is this delay that has caused me a great deal of concern. It is, to me, a crying example of justice delayed and is by no means "much ado about nothing" * Nor is the question involved "none too important." ** The bone of contention is whether or not a criminal complaint, which is an offense against the State, may be dismissed on the basis of an amicable settlement between the complainant and the accused, who is a public officer."

In Misolas, Caruncho and now Limkaichong, the Court changed its mind before promulgation of the Decision, which is the operative act for the effectivity of the Court's Decision. Anytime before the Court's Decision is promulgated, it may still be changed--as Justices Sarmiento and Melencio-Herrera and probably other Justices (who never told) discovered.

In all these instances, the Chief Justice was the determinative factor before a Decision could be promulgated. Does that indicate that the Chief Justice is partial, one way or the other? I do not believe so.

In discharging this function, the Chief Justice may be seen to operate on two levels--as an administrator and as a jurist. In the first role, he ensures that there is compliance with the number of votes so that the Decision may be promulgated. In the second role, he ensures that what the Court will be promulgating will carry weight.

That is apparently what Chief Justice Puno did in Limkaichong. While the number of votes was sufficient to indicate a ruling in favor of one party, the number of "in the result" votes cast sufficient doubts on the binding nature of the Decision for all future cases. It may be argued that the other Justices should simply have been polite enough to tell Justice Reyes that they could not go along with his reasoning; instead, they chose to do it with their votes. As Chief Justice, it was the role of Puno to ensure that what emerged from the Court would not be something that would apply only to a specific person in a specific instance but would be good enough to be a rule for many ages to come.

I am not an apologist for the current Chief Justice though I have written favorably about him. (I still cannot read the Gloria Arroyo legitimacy case without cringing at the triple hearsay rule adopted by the Court in that case.) But there is a line between legitimate criticism of the Court and its Justices and outright and outright political maneuverings. Right now, I do not see the legitimate criticism, especially of the Chief Justice because all I see are the political maneuverings.

Septembers at Taft

You will recognize an old-er lawyer when s/he invariably shakes his/her head at the organized chaos that is the Bar Ops and mutters soto voce but almost enviously, "we never had this before."

For one that prides itself on not being bar-oriented, UP has jumped wholeheartedly on to the bandwagon that is the Bar Ops. While there are many mixed feelings about this from all quarters, one thing must be said about it: there is value to having an entire institution come out in support of you as you walk along Taft for four (4) Sundays in September.

So, it must be said, and I'll say it here: Congratulations to Arianne Reyes and her team for this year's bar ops; quite aptly called, simply, "100% UP LAW."

When the phrase ("100% UP Law") first came to my mind after 2007's bar ops, I gathered Lobit and PY and pitched it to them, both agreed with the concept; when I asked for names to head bar ops, many came up but one name was common to all three of us: Arianne's. And so it came to pass that before she was even elected VP of the UP LSG, she was already de facto the bar ops head.

I've been to many bar ops but I think this year was one of the best organized (at least from my point of view); it also enjoyed, for once, institutional support coming from no less than the Dean who, after being pleasantly surprised to see the organized chaos that was Bar Ops during the second Saturday, pleasantly surprised the volunteers and the examinees by showing up every Saturday and Sunday thereafter and even getting a room at the hotel to ensure that he would be on the first bus to Taft. (I think more than anything also, the Dean ensured that this year's bar ops would be unforgettable because he not only stood through two masses, but even actively participated in one of them.)

The bar ops this year has led to many epiphanies for many people. This year's experience, for instance, has shown the Dean just how important it is to the examinees that they get the support of the law school and not only the perception of support; and so it will be that next year's effort will build on this and previous year's efforts. Already, plans are underway for more concerted efforts towards hitting the 100% that was the call for this year but is part of the Dean's program for his term. Even now, as September has just ended, preparations are in earnest for next year, with hopes that these will become institutional muscle memory in a law school that must see itself as not just in its many traditions, not just in its many memories but also in the many lives that it encounters.

I do not know all the names involved in Arianne's team and so I will not attempt to list them down for fear that I will forget one. I will just leave to Arianne the task of disseminating my regard and esteem for this year's bar ops leaders, core team and volunteers. Job well done, all!

Septembers, for lawyers and law students, will always bring memories of that rite of passage known as the Bar. Until next September then . . .

Life Lessons Learned, Grandly

(A send-off to UP Law Batch 2007-2008, taught in the grand manner, and hopefully to become great lawyers and even greater Filipinos)
[NB. Supposed to come out in their Annual, Memorandum '08; first time, the OLA director's been asked to write something there.]

While I was still a student at Malcolm Hall, I heard someone say, “you don’t have to love the law to serve the people, but you do have to love the people.” That got me thinking.

I did not love the law then—there was very little about it that I could love; it was (and still is) written in archaic language and embodied concepts that were, to my mind, not directly relevant and even, to some extent, greatly oppressive to the people I aspired to serve. I did love the people I aspired to serve—then as a paralegal and later as a lawyer. It came to a point that I was in despair that I was going to be a lawyer because I felt, then, that lawyering would be useless as the law I did not love had very little relevance in the lives of the people I did love.

Of course, I later did become a lawyer and a law professor—helping to train litigators and form advocates; struggling to instill character and inculcate values; trying mightily to witness to batch upon batch of wide-eyed and idealistic law students the scarred beauty of the law and the limited justice it could render; always, conscious of my role to help each batch passing through Malcolm’s portals understand that the law is but one of the many things a lawyer can use to truly help.

Each year, I look at the graduates and wonder, “did these streams rise higher than the source?” This year, I take a look at you, Batch 2007-2008 and ask myself the same question- “have these lives, these hearts, these souls, been transformed, changed, inspired and moved to become great lawyers and even greater persons?”

I have seen many of you learn valuable life lessons in the year you were at OLA in the many instances of helplessness when you just had nothing to file or argue to help your clients, or nothing left; in the many instances when you held back tears as you empathized with the poverty of resources of the many lives who walk in through Malcolm’s Room 107; in the many instances when clenched fists and whoops of joy were the order of the day as unexpected surprises and wins came our way; in the many instances when you just shook your head in awe at the reality that the cases you simply read before were coming alive before your very eyes. Two semesters is not a lifetime but for all the lessons you have encountered, it might as well have been.

I have seen how, despite the many frustrations and the few joys, many of you marched on with great passion, heedless of the obstacles in your way, mindful only of the rare opportunity you had to show that while you may not love the law you are studying, you love the people you are serving.

All these gives me the confidence to boldly hope that, from your ranks, will come the next great nationalist, the next great professor or dean of law, the next great advocate, the next great litigators, the next great corporate or tax lawyers, or even the next great rebel or social gadfly or simply the quintessential UP lawyer, one who loves the people, if not the law.

Alan Dershowitz, in his Letters to a Young Lawyer, writes, “(i)f you don’t love the law, what should you love. . .? Love liberty. Love justice. Love the good that law can produce. Aspirations don’t disappoint, so long as you realize that the struggle for liberty, justice and anything else worth pursuing never stays won.”

As you temporarily step out of Malcolm Hall (because no one ever leaves Malcolm forever as little fragments of memory remain with us—be it a funny anecdote, a favorite nook in the library, a particularly detested/respected/admired professor), I congratulate you for allowing yourself to be moved by the experience of learning law and, more importantly, life in the years you spent in Malcolm Hall. May you continue loving the people whom the law seeks to serve, the very same people whose toil and tears you have shared and whose very lives have helped you to receive what many only dream of—lessons in life and law learned, grandly.

Intergenerational courtesy and hubris

I did not land in the top ten when I took the bar in 1990; nor did I land in the top twenty (I know because the first 20 names in our batch were published). That does not make or unmake me, as a lawyer or as a person.

My batch did not have the benefit (or stigma?) of having our passing average adjusted upward by means of across-the-board points or having the 75% average required to pass the bar lowered or the 50% disqualification per subject lowered. That does not make or unmake my batch, as lawyers or as persons.

My having failed to land in the top 20 does not make me a success or a failure--as a lawyer or as a person. It only credentials me as one who was fortunate or blessed enough to pass, based on the standards of that year.

My batch's distinction of not having adjustments to the passing grade does not make my batch better or worse than any other batch. It just makes it a fact that no adjustments were made for that year.

The bar examinations are a test of a particular batch's entitlement to join the legal profession based on the standards of the Examination Committee for a particular year. It is not a standard for all generations, nor for all time. It is a standard only for a particular year because every year the standards change with the selection of a new Chairperson and the selection of new examiners.

Thus, one batch is not necessarily better or worse than another as each batch can only be compared to itself (if that is at all possible, factually and logically). That is the design of the bar examinations; each year's bar is sui generis. (Is this a flawed design? Yes. Would I want it changed? Yes. But that is fodder for another post, another occasion.)

So, all the buzz and the heat generated by a rather insensitive blog post by a lawyer who has yet to identify him/herself by the name he signed on the roll is quite understandably being passionately dissected by this year's bar passers.

I say it is insensitive because the post essentially blacklists this year's batch of passers and brands them as "second rate" and "unworthy" lawyers simply because the Supreme Court chose to lower the average--sight unseen. The lawyer blogger chooses to tar everyone with the same brush and writes off this year's batch as unworthy of his attention or employment.

I do not know if the blogger/lawyer (whose blog links to this site) teaches. I do. I taught this batch from U.P. And I know these people very well--personally; with the exception of a handful (and my hands are very small, so it is a very small handful), I can say at least one fact about each of them that a casual acquaintance would not know. I can speak of how good or bad they were in class and also in court, having supervised them through the clinical legal education program.

I can speak of how passionate they can get over trivial and non-trivial things. I have seen how intense they have gotten over issues. I have seen many of them in court, I have read their pleadings, I have corrected their work, I have graded them many times over. Yes, I can speak, from personal knowledge, of this batch and I choose not to write them off because I know better--than to write them off.

I only teach law at U.P. so I cannot speak, from personal knowledge, of passers from other law schools because I do not know better. And for that same reason, I choose not to write them off as unworthy or second rate simply because I also do not know better.

And that is, as De Quiros puts it, "the rub."

Blogger/lawyer chooses to write off an entire batch without knowing the ENTIRE BATCH of bar passers; s/he chooses to dismiss them without the benefit of having seen some or most of them in class or in court; s/he chooses to stigmatize the batch for something they had absolutely no hand in--the lowering of the average.

Would this batch have preferred not to have the grades lowered so that only 5% would have passed? I do not know; perhaps some would have, some wouldn't.

What I do know is that they had no hand in having the grade lowered and to stigmatize them for something the Court did, apparently motu propio, is uncalled for and is foul.

And to cast aspersions, by way of asking rhetorical questions--as blogger/lawyer does in his post, as to the supposed influence exerted by some powerful quarters is quite simply cheap. That is something gutter journalists do, in the absence of something significant to write--not one who has passed the bar and would evidently have such high standards that s/he would not hire anyone from this batch. As far as the new U.P. lawyers are concerned, it is blogger/lawyer's loss--not theirs.

I am not picking a fight with blogger/lawyer. Those who passed this year have already thrown down the gauntlet and they, more than anyone else, can speak for themselves quite eloquently and well.

I simply want to say, from the vantage point of one who passed the bar many years ago under very different conditions than this year, that it is sheer hubris and unmitigated arrogance for one to sit in judgment simply on the basis of the past and without knowing better.

Hegel (and Sting) remind us that the best lesson we learn from history is that we learn nothing from history; many times, however, when we live too much in the past and reflect too much on history, we also end up not learning anything about the present.

I have no words . . .

. . . to describe just how disappointing it is that some faculty members (I won't name names here because my source will get into trouble) and students of the law school choose to nitpick instead of 1) being constructive or 2) simply getting out of the way. (For perspective, go to Lobit's multiply site for her text exchange presumably with some student who, to her credit, she does not identify; for perspective on the faculty member/s, let us just say that media friends have been houding me for comment on what they have been saying.)

Yesterday, the Dean and some members of the faculty and students issued a statement that was carried over the media. It was deliberately sub-titled "A Statement from the UP Law Community" NOT "An OFFICIAL Statement of the UP Law FACULTY AND STUDENTS" or "An OFFICIAL Statement of UP LAW." To my mind, "community" means a group of people united by some principle or purpose; and those who signed the statement were.

Some have said we should have deliberated--we did.

Was everyone invited? Yes.

But not everyone invited chose to go. And I respect that; I respect your silence on the matter--but I would ask that you respect as well the sentiments of those who chose to participate and sign.

I have my first draft which is radically different from the one that came out to show just how deliberated upon the statement was. Truthfully, and the Dean and the others who were there will tell you--I do not completely agree with everything there. For instance, if that were my statement, it would consist only of the following words--'GLORIA, GET OUT--NOW!!!" But I was writing for a community and, therefore, my own thoughts and opinions and even style of writing would have to be subordinated to what the others felt they wanted.

Were contrary opinions entertained? Yes. I have always held the belief that the Senate investigations have outlived their purpose and should be terminated with dispatch; many who were around did not. So, I respected that and did not put that in the final draft that appeared.

Why did I sign it if it did not exactly reflect what I believed in? Because I believed it was time for UP Law to speak up and because it contained the essential points I wanted said--Gloria must go. Everything else in the statement was a means toward that end.

It is frustrating to see us fighting each other instead of the common enemy right now. That, by itself, is a victory for Gloria and Mike Arroyo and their minions.

Unity cannot be legislated or forced because many times egos get in the way. Would that we were to once again remember what it is that is truly important to us and not be weighed down by minor details like "why call it a law community statement if it did not reflect a majority view?" or even more minor details like "who gets the credit?" or "whose turn is it before the camera?" But I think that might be an even more difficult task than to get Gloria out.

Giving 5.0s (a reply of sorts to Jobert Navallo)

A former student of mine (Crim Law 1, first year) Jobert Navallo blogged about this in his blog (and it was reprinted in PDI's Youngblood today); this, referring to getting a failing grade in law school. The big five dot zero.

I read Jobert's post with great interest because, of course, I know him--having been his professor in crim law--and also because it was a brave post--because the professor might still be his professor in the very same subject next year. For the civilians (read: non UP law students), getting a 5.0 and writing about it might not seem like too much of a big deal but if you've been following events in THE law school (for the ateneans and the other law schools, sorry) in this blog and others related to it, you will realize that it is not easy to write about law school especially when you do not mince words. My posts on the deanship selection have grown legs while my rants on frat violence have taken on separate lives in cyberspace. It is in this context that I say that Jobert's post is quite brave; it also has the feature of being very well-written and also very sincere--from the gut (as I texted someone).

I never got a 5.0 in law school so I cannot relate to Jobert's experience--not to say that my grades were all extremely high though. I have, however, given 5.0s and it is not an easy experience--until now, I find it extremely difficult--actually painful--to do.

The very first five I gave was during my second year of teaching to someone who never showed up in class and when he did, answered so unintelligibly that he could have been speaking in a foreign language. In his finals, his answers were the written equivalent of grunts--such was the brevity and the paucity of the answers. To my knowledge, he never made it beyond first year, at least in U.P.; he may have gone to some other law school though and may be grunting his way through law practice for all I know. Even then, it was difficult for me to give a 5.0 but no amount of massaging the raw scores could bring the grade to a 4.0 or even a 3.0.

You would have expected that, after the first five, it would become easier. It has not. For my students who read this blog, it may sound difficult to believe but giving a 5.0 has not become easier for me, but harder. But unfortunately, I have given many 5.0s since that time, each one being more difficult than the previous.

The staff at the Secretary's Office know this: when I give my grade sheets, all the grades are filled in except for those who fall below 3.0; and I take time before I decide to circle in the 5.0. Many times, I've recomputed on the spot; rechecked, redistributed points in the hope that 1 or 2 more points could help. But many times also, these efforts prove fruitless. And so, despite the difficulty, I am left with no choice but to give the 5.0.

I do not know about other professors but it pains me to give a 5.0 to someone because to me, it signifies a total disconnect between myself and that person. I see it as a failure on my part to bring across a point which the others in the class were able to see; a failure to move someone to read more, study more, read more carefully, think better, think more critically. Many times, the chore of correcting blue books becomes even more difficult when you read from the answers given a clear disconnect, a failure of minds to meet, an absence of that confluence of thoughts from teacher to student. That 5.0, to me, represents one more aspect of failure: mine.

It may be small comfort to those who have failed subjects under me or to Jobert, who failed his nego class. But Jobert is right, there is life after a 5.0; many times, that 5.0 is a reality check. Many have left law school after a 5.0 convinced that it is only passion that they have and not skill; others have struggled through after a 5.0 borne by the passion that the day will not be lost at the hands of "such as you"; others have continued in law school and even excelled after a 5.0, convinced that whatever does not kill you, at first, can only make you stronger.

It is like Kingsfield in The Paper Chase telling Hart, who tells him to his face, "Kingsfield, you are a son of a bitch", to "sit down, Mr. Hart, that is the most intelligent thing you have ever said in this class." In his blog, Jobert resolved to not only confront his Kingsfield but conquer it. That is an admirable quality. Whether he succeeds or not, often it is enough that he tries.

Lives resume, never to be the same again

As the beating of the snare drums dies down, and the last barricade removed, Taft becomes normal again, signalling the end of the Bar Examinations of 2007.

Far from going back to normal, lives are resumed but are changed--never more to be the same again.

4 years of law school does not prepare you for the 5 months of review and the one month of last-minute preparation to take the 8 exams spread across 4 Sundays.

4 years of law school does not prepare you for the terrible bouts of confusion, despair, depression, anxiety, fatigue, illness, and surrender that dances across one's emotional spectrum every day.

4 years of law school also does not prepare you for the joy of newly-discovered relationships with others in the same journey; of bonds formed and forged forever in the crucible of shared anxieties, shared triumphs, shared joys and shared decisions; of unlikely friendships created out of perhaps a mutual need, truly serendipitous moments or perhaps even divine intervention.

4 years of law school will never prepare you for the epiphany that there is more to life than law school but that a life lived in the pursuit of the law may, after all, be one of life's nobler callings.

After 4 years of law school 5 months of review and 4 Sundays, lives resume but are never the same again.

To the U.P. bar examinees of 2007: may you truly live changed lives--seeking always for what is best in this profession that is often a picture of what is worst, striving always for the justice that is desired by many yet is elusive to they who need it most; speaking always the truth that sets people free but is often masked and hidden by the lies that chain and bind; standing always for freedom that is the greatest gift yet is often never received.

To the U.P. Bar examinees of 2007: many of you have said, "we hope to make you proud." You honor me greatly by that, as I do not deserve that privilege. My answer to you has always been--and remains still--"you already have."

A Primer (of sorts) on The Hazing Law (RA 8049)

For a more constructive debate and a clearer idea of what the Hazing Law can do or cannot do --

Q. How is hazing defined?
A. As used in the law, hazing is an initiation rite or practice used as a prerequisite for admission into membership in a fraternity, sorority, or organization. (sec. 1)

Q. How is it done?
A. Under RA 8049, the essence of hazing is "placing the recruit, neophyte, or applicant in some emarrassing or humiliating situations such as forcing him(her) to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury." (sec. 1) [My observation: the only difference apparently between hazing as defined and recitation in the UP Law School is that the law student is already in the college of law but the neophyte is still aspiring to enter.]

Q. Who are covered by the hazing law?
A. Any club, or the Armed Forces of the Philippines, Philippine National Police, Philippine Military Academy, or officer and cadet corps of the Citizen's Military Training or Citizen's Army Training except those "physical, mental and psychological testing and training procedure and practices to determine and ehance the physical and mental and psychological fitness of prospective regular members" of the AFP, PNP as approved by concerned government officials. (sec. 1)

Q. When is hazing allowed?
A. It is allowed only if there is a prior written notice to the scholl authorities or head of organization seven (7) days before the initiation; the notice shall indicate the period of the initiation which shall not exceed three (3) days, shall include the names of those to be subjected to the activities and shall "contain an undertaking that no physical violence be employed by anybody during such initiation rites."(sec. 2) [My observation: Yeah, right.] Additionally, under section 3, the head of the school or organization or their representative must assign at least two (2) representatives of the school or organization to be present. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant. (My observation and query: now who was the representative during the hazing of Cris Mendez? Your guess. . . should be kept to yourself unless you want to be sued for libel. )

Q. What are the legal consequences of hazing? Who are liable for hazing?
A. It depends on what happens to the neophyte or applicant.

a) If he/she is physically injured or dies as a result of hazing (whether authorized or otherwise), the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals and shall suffer a range of penalties raning from prision correccional (six months and one day to six years) to reclusion perpetua (20 years and 1 day to 40 years), depending on the extent and nature of injuries inflicted (if death results, the penalty is automatically reclusion perpetua). The maximum of the penalty, in each case, will be imposed if: (a) the recruitment is attended by force, intimidation, violence or deceit; (b) the person who decides to quit is prevented from doing so; (c) the person, after being hazed, is prevented from reporting the incident to parents, police or other authorities; (d) the hazing is committed outside the school or institution; (e) the victim is below 12 years old at the time of hazing.

b) The owner of the place where the hazing is done is liable as an accomplice when he actually knew that hazing would be conducted but failed to prevent the same; if the hazing is held in the home of any of the officers or members, the parents are liable as principals when they have actual knowledge of the hazing and failed to prevent it.

c) The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to prevent the same are liable as accomplices.

d) The officers, former officers, alumni who actually planned the hazing although not present when the acts are committed are liable as principals. Officers or members who knowingly cooperate by inducing the victim to be present are liable as principals. The adviser who is present when the acts are committed and failed to take action is liable as principal.

e) The president, manager, director or other officer of a corporation engaged in hazing as a requirement for employment.

Q. What is the liability of a person who is merely present?
A. The presence of any person during a hazing is prima facie evidence of participation as a principal unless he prevented the hazing.

Q. Can the mitigating circumstance of "no intention to commit so grave a wrong" or praeter intentionem be allowed?
A. No, under sec. 4, this mitigating circumstance is expressly disallowed.

That Hah-vahd thing

Apparently, I have friends from abroad and also from the country who read my blog and also know the subject of my previous post and also HLS. Suffice it to say, I've gotten my fair share of ribbing and also a lot of information (from my students, current and previous) about the background leading to the commencement address. Suffice it to say that, instead of res ipsa loquitur (the thing speaks for itself), it is apparently a case of "there is more than meets the eye" in this Oscar Tan thing.

I cannot reveal though what has been sent to me because a lot of them, even if true, would be defamatory. Apparently, Oscar elicits the same reaction everywhere he is--either you like him or you don't. But the hidden story behind the Harvard commencement address of 2007 is apparently more interesting and funnier than the actual fact that Oscar Tan was "selected" to give it.

Oscar at Hah-Vahd

Since the "advanced" copy of his speech came out--wonder how it got leaked and who leaked it--and started to make the rounds of the email groups, those who know him and know me have been asking me what I thought of it. It, being Oscar Tan addressing his Hah-vahd graduating class.

My honest answer: I'm happy for him and I'm happy for his family.

Oscar Tan is a gifted writer, not so gifted in social or relational skills, but definitely a gifted writer--and it shows in his speech, which is so Oscar (if you've ever read what he has written, you know what I mean).

Congratulations Oscar, sincerely.

Hopefully, those nameless peasants and farmers who bore our legal education can start being paid back though by us, with undersubsidized U.P. and overpriced Hah-Vahd degrees*, through quality legal service rendered free and willingly. A first step perhaps would be to leave the current firm you're in right now and perhaps start treading the ground trod by those nameless peasants and farmers who bore our legal education? Practicing the law from the ground up or at ground level. Now, that would be putting an overpriced Hah-Vahd degree to good use and that would be practicing law in the grand (whatever that means)** manner.


* Disclaimer: I do not have a Hah-Vahd degree; I don't intend to get one. I do have a UP degree, which I am extremely proud of and which, pound for pound, I sincerely believe, despite everything, is worth more than an overpriced Hah-Vahd degree not only for what it gave me in terms of legal education but for what it did not give me but allowed me to look for, in terms of learning about law and lawyering for the people--lawyering from the ground up.

** The U.P. College of Law quite pompously advertises in granite in its lobby that "The purpose of a Law school is not sufficiently described by saying it is to teach law and to make lawyers but it is to teach law in the grand manner and to make great lawyers." It is a quote attributed to Justice Oliver Wendell Holmes, of the U.S. Supreme Court (the same Justice who advocated eugenics in Buck v. Bell); it fails to sufficiently define what "grand" manner means, thereby leading to a surfeit of interpretations.

Waiting for the 3rd . . .

What are the odds that in my less than ten years of teaching law, I'd be able to say I taught law to two Bb. Pilipinas Universe winners?*

After my Research Assistant won that major beauty title over the weekend, I now find myself unable to attract applications for a second RA apparently because interested parties think all my RAs should be beauty queen material; this would have been so funny except that those applications I’ve already gotten are from male law students. Come to think of it, that makes it even funnier.

In the meantime, there's hope for beauty contests if a 22-year old who lists among her talents "case digest making" (and this I can attest to, as she practically wrote half a case book that's attributed to me) can win the top prize.

Congratulations Tere; for someone to whom the decision to join didn't come easily, this one looked easy for you because you worked extremely hard for it.


*And both were in my criminal procedure class.