THE ONSET OF LIGHT, THE MANY POSSIBILITIES OF HOPE

For a non-lawyer, Marites Dañguilan-Vitug appears to know more about the inner workings of the Supreme Court than most lawyers. Those who do not know her history may think she is a Janie-come-lately, choosing to write about the court system only because of the two libel suits filed against her by an incumbent Associate Justice (the two suits have since been withdrawn).  But Vitug is certainly no Janie-come-lately as far as probing into official narratives designed to conceal the truth; well before it was safe to be an investigative journalist, she was one in a very short list of women and men who would give that description much credibility.

Her passion and pre-occupation at making the courts of the land better places for justice to take root are clear in the way she has doggedly probed and pried open, questioned and challenged existing and enduring traditions of secrecy and confidentiality that the courts, particularly the Supreme Court, have hidden behind. That same passion and preoccupation have put her at odds with Court Administrators and Chief Justices; these have also brought her to the unfamiliar legal terra firma of facing two libel suits brought by a former Court Administrator and current Associate Justice.

Marites Dañguilan-Vitug has done the country and the legal profession a signal service by shining a light into the Court’s decision-making processes through well-researched, sharply dissected and clearly written narratives, accounts and vignettes, threaded together into one compelling narrative.

In “Hour before dawn”, the second book of what appears now to be at least a trilogy, Marites Dañguilan-Vitug’s voice is clearly more confident now than in her first book on the Supreme Court, the runaway bestseller “Shadow of doubt.”  Two years removed from “Shadow…”, she picks up the narrative from the thread that “Shadow…” left dangling—the plan to make Renato Corona Chief Justice, in violation of the Constitution. By choosing to start “Hour before dawn” with the midnight appointment of Renato Corona as Chief Justice of the Philippines and ending it with her interview of the President as he is about to choose a new Chief Justice, Vitug so aptly bookends the narrative with the indelible images of the onset of midnight and the breaking of dawn.

Corona’s shadow is cast long, deep and wide over the book. The “fall” in the title of the book is traced to the “original sin” that was the midnight appointment. Vitug, however, refuses to  yield to the temptation to just let the “original sin” be the only narrative; to do so would have been a simple matter of blaming the one who appointed him and put Corona as one who simply accepted what, to many, would have been an irresistible gift. Instead, she looks into the man who played an indispensable role in the fall of the Court, into his ways of thinking and acting and into those who influenced and continue to influence him; she casts him not as a man thrust by circumstance but as one who took part in shaping the circumstances that led to his taking the center seat on the Court.  

The stories she tells may, at first, appear unrelated to each other but after reading the narrative that runs on a single thread—Renato Corona—Vitug shows the impact of the “original sin” on the fall of the Court. The flip-flopping in the League of Cities case, the closing of ranks against the UP Law 37 in the contempt incident arising from the plagiarism accusation against Justice Mariano Del Castillo and the investigation by the Court that created more questions than provided answers, the letter-writing by counsel for Philippine Air Lines that led to a reversal of what was already a win in favor of FASAP—these and other stories are bound by Vitug, with her insistence on facts, her clarity of prose, her creative use of dialogue, and her passion for the subject, into a very compelling account of just how the Court had fallen and just how far it had fallen.

Aptly culminating the narrative with the trial and the removal of the former Chief Justice and teasing her readers with the possibility of the Court’s rise from the fall because of the then-imminent appointment of a new Chief Justice, Vitug ends “Hour before dawn”in the same way she ended “Shadow of doubt”—with a thread dangling: the appointment of a new Chief Justice. But unlike “Shadow…”, which ended on a rather pessimistic note of then-Congressman Defensor planning Corona’s midnight appointment, “Hour…” ends on a note of cautious optimism and, dare I say, guarded hope. Her interview with the President is a fitting epilogue to this chronicle of the fall and hopeful rise of the Court.

With the appointment of Chief Justice Maria Lourdes Sereno and the inordinately heavy burden placed on her shoulder by the President, I am almost certain that Marites Danguilan-Vitug’s next book on the Court will start with the President’s appointment of the Chief Justice and, still, a critical and independent examination of the relationship between Court and Executive, Chief Justice and President—two fascinating characters who are both similar and different in many respects.

It is always darkest before the dawn and that is what Vitug’s title conveys. It remains to be seen if, indeed, the light has come for the judiciary in the Philippines and particularly the Supreme Court. That is the burden of Chief Justice Sereno but also, in a very real sense, our burden--to ensure that transparency, accountability and genuine reform are brought about in the judiciary, from selection to retirement. Vitug’s chronicles of the Court are brave attempts to do just that—to usher in the onset of light and the many possibilities of hope.

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.

The Eloquence of Silence

From my Trial Techniques blog:

Rule 130, sec. 32 of the Rules on Evidence provides that "an act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him." This admission is what is commonly referred to as an "admission by silence"

The reason behind it is quite simple and straightforward. It is based on human experience, as most of the rules on evidence are. The admission is premised on the natural and human instinct to defend oneself from any act or declaration that would be prejudicial to one's interest if made within earshot or in one's presence and when there is an opportunity to do so. If the act or declaration is such that it would have called for an automatic response and no response was made, then the silence is considered an admission of that fact.

A common analogy given is a bad joke that goes: Person A shouts at Person B, "Hey, you stupid jerk!" Person B retorts angrily, "Hey, I'm not stupid." As with most analogies, this one limps, though I think the point is made.

A more precise example, not analogy, perhaps would be Justice Ruben Reyes's initial silence to insinuations and loud hints that his office was behind the leak of the umpromulgated draft decision in the Limkaichong election case pending before the Supreme Court, which has led to a new controversy with certain quarters insisting on bringing in the Chief Justice.

One would think that Justice Reyes would have been so deafening in his protestations of innocence in the face of such serious insinuations. Yet, from all official and unofficial reports, his silence was the only thing that was deafening. It was only much later, ironically only when media started to pick it up, that Justice Reyes was loudly protesting his innocence (conveniently so, he hinted that any liability might have been from his staff; respondeat superior, Mr. Justice?)

Silence is often a good thing because it places many things in perspective. The eloquence of the silence that accompanied the press conference of Atty. Biraogo's announcement of the leaked draft--which naturally would have pointed only to Justice Reyes's Chambers--speaks volumes in this case.

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.

Strategic Dismembering

It is as if someone took a really dull knife and starting hacking away at parts of one's body--not to kill but to maim, perhaps temporarily but hopefully permanently. That is how I feel when I read and hear the news stories about the way that institutions in this country are being dismembered.

The kennel (este the House of Representatives) came first. The coup d'etat that replaced Jose De Venecia Jr. with Prospero Nograles. Then the Court of Appeals with the Sabio-Roxas-Villarama scandal involving Meralco and GSIS; this resulted in the suspension of Sabio, the dismissal of Roxas and the lid being blown off what was previously only an open secret within the trade, este the profession of lawyering. Then the Senate coup d'etat, replacing Manny Villar with Juan Ponce Enrile. Then the PDEA and DOJ bribery issue, with Gloria taking the side of PDEA and ordering preventive suspensions for one Undersecretary (looks guilty), the Chief State Prosecutor (looks innocent but clueless), several state prosecutors and once again, the lid being blown off what was previously only an open secret within the trade of lawyering--that if you're resourceful enough, you can get the decision you really want. Now, the Supreme Court, with the threat of impeaching the Chief Justice and the reality that Gloria will get to appoint seven Justices before 2010.

All through it all, the people are too numb to scream in pain as parts of this body, especially parts that insure accountability now and in the future (especially after Gloria leaves Malacanang) are strategically dismembered, discredited or simply disregarded.

The greatest danger now is not that Gloria still remains in power, it is that she might remain in power by proxy even after she leaves Malacanang.

Perspective

I've been gone (from Manila) for about 1.5 weeks and things get exciting--explosions at the mall and a pardon for a plunderer. Wow, maybe I really should get out more.

Seriously, when the Erap pardon first came out, I was just about to prepare for a retreat and all of a sudden, I get this deluge of sms from irate friends cussing in all shades of blue (many of them female). Many asked me why, which is funny because I really don't know the answer (I have my speculations but, of course, your guess is as good as mine).

Let me hazard a guess though.

The Erap pardon is not an act of grace nor an act of forgiveness--it is purely political. Gloria is storing capital for 2010 because when she steps down--assuming she's not sooner removed before then--she is going to be sued for plunder, just like Erap. Right now, there is no one looking out for her because when she loses power in 2010, she will just be another ex-president facing a plunder charge. So the Erap pardon is clearly political security for her even as she anticipates the deluge of plunder suits she and Mike Arroyo will face.

As to why Erap accepted it--why shouldn't he? It is a golden opportunity to parlay into political capital once again his tarnished name and reputation. And if it means not calling for Gloria to step down sooner than 2010 and calling her "President", it is a cheap price to pay and a not too bitter pill to swallow.

In the meantime, we, the people, have just been had again.

Old dogs do learn new tricks--Erap and Gloria did. Whyever can't we, the people, learn?

"From strength to strength"

Recent post in Newsbreak on the Chief Justice's public pronouncements. Read here.

Bravo!

You’ve got to hand it to the man.

He’s one of the most effective marketers of the products that he hawks—from travel to newspapers to himself to the Supreme Court.  Artemio Panganiban is a very good salesman.  This much, you get from just a few minutes with the man;  don’t get him started on a speech because he’s going to give it all he’s got—with a powerpoint presentation to boot.

Yet, he has completely befuddled those who marketed him to be the Chief Justice to succeed Hilario Davide Jr.  Instead of being this supposedly political appointee, he displayed a degree of independence not expected from someone who, if rumors are to be believed, owed his appointment to political patronage.  In the one year he has been in office as Chief Justice, Panganiban struck down almost every major component of the Gloria dictatorship thrown at the Court—EO 464, Proclamation 1017, CPR and People’s Initiative.  

I wasn’t a big fan of his when he was appointed Chief Justice;  I’m still not a big fan of his  ponencias which are an acquired taste that I haven’t warmed up to yet.  But I have to give him all the credit for asserting the independence that stamped the Panganiban Court with an identity all its own.  If not for that independence, the Gloria dictatorship would be in full bloom.  For that alone:  Bravo, Mr. Chief Justice!

The Chief, Finally

They got it right, this time.

Reynato Puno Jr. became the 22d Chief Justice of the Philippines a few hours before his predecessor, Artemio Panganiban, ended his birthday.

It is one year late for the most Senior Associate Justice of the Supreme Court, after having been bypassed for what many considered, at that time, to be a political appointment in Panganiban (who, to the surprise of many, including Gloria Arroyo, turned out to be not as malleable as Gloria’s courtiers may have marketed him to be).   Even now, he is already being painted as Gloria’s new puppet.

Chief Justice Puno must show, with his very first act, that he is no one’s puppet and that, as he promised, he is beholden only to a “constituency of one”, Lady Justice.;  Perhaps, he may do that by simply stopping De Venecia and his kennel dead in their tracks by issuing a restraining order;  better yet, perhaps he might put De Venecia and his kennel where they rightly belong—outside the house where all the poop lie.

No other act will suffice, Mr. Chief Justice.  Otherwise, people will truly start to believe that the blindfolded lady does peek—once in awhile.