Panganiban: Judicial greatness

To arrive at a decision, most judges simply apply the law to the facts by using the formula: law times fact equals decision, or LxF=D. This formula is espoused by the Analytical School of Jurisprudence pioneered by John Austin.

Abstraction vs reality. This is the same formula consciously or unconsciously taught in most law schools. Students are told to master the Constitution, codes, statutes, rules of procedure and precedents, and to apply them to hypothetical facts. Verba legis or the strict literal meaning of the legal texts is a must. To take liberties with words is denounced as “judicial legislation.”

When verba legis produces a bad result, textualists wash their hands and shrug it off as “dura lex sed lex” (the law may be harsh, but it is the law). They then pass the blame to lawmakers.

This formula reduces decision-making to an Aristotelian syllogism with the law (L) as the major premise, the facts (F) as the minor premise, and the decision (D) as the conclusion of the syllogism. Example: Anyone who kills shall be jailed (major premise). Pedro killed Juan (minor premise). Ergo, Pedro goes to jail (conclusion).

Like math, this formula (LxF=D) is consistent. In math, one plus one is always equal to two (1+1=2). And one divided by four is always equal to one fourth (1÷4=¼)—in the abstract.

Though both the formula and math are always valid in the abstract, they are not always true in reality. Hence, when one drop of water is added to another drop of water, the result is not always two drops of water, but one bigger drop. And when one piece of wood is divided by four, the result is not one-fourth, but four smaller pieces.

Yes, Austin’s formula is always good in the abstract. But often, problems arise in applying it to the real world. The first problem is how to determine facts. No known science assures the discovery of “the truth, the whole truth and nothing but the truth.” Witnesses sometimes lie, or cannot remember, or are confused, or fail to observe details. Documents can be incomplete, vague, or fake. Scientific and historical evidence can be faultily extracted or badly preserved.

The second problem arises when laws are incomplete, or unclear, or confusing, or contradictory, or obsolete. Laws are not infallible. They cannot provide for all circumstances. Here, the textualists default and say, “If it is not found in the text, then it is outside legal contemplation; and therefore, cannot claim the protection and benefit of the law.”

Right and justice. Yet, justice must be served. Under the Civil Code, “No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.”

In such events, the Civil Code provides the general guideline: “In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.”

When verba legis fails, great jurists rise. They search for “right and justice” beyond the text and look for the spirit, the intent, and the substance of the law in (1) overarching constitutional principles, (2) grand intentions of the constitution framers, (3) great judicial axioms, (4) landmark judicial precedents, (5) international conventions, and (6) legal presumptions.

Concededly, the case of Sen. Grace Poe is unique. The texts of the governing laws neither include nor exclude foundlings in their lists of citizens. The facts of her residency are torn between her mistaken computation in her 2013 certificate of candidacy for the Senate and the truth that she actually transferred her domicile to the Philippines as early as 2005.

Beyond the text. I believe her case presents a rare moment for judicial greatness for those who see beyond the text and ponder on these:

1. Poe is a foundling who certainly deserves the overarching social justice principle of giving more law to those who have less in life.
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3. The framers of the 1935 Constitution explained that it was never their intention “to exclude foundlings from natural-born citizenship … and the only reason that there was no specific reference to foundlings … was that foundlings are few … [and] by international law … children or people born … of unknown parents are citizens…”
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5. The grand axiom “Salus populi est suprema lex” (the welfare of the people is the supreme law) may be invoked “extra-constitutionally” (beyond the constitutional text) to render social justice, famously wrote the eminent Justice Jose P. Laurel.
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7. Frivaldo vs Comelec teaches that “in case of doubt in the interpretation of constitutional and legal provisions involving popular sovereignty, it is best to interpret such provisions in a manner that enables our electorate to elect freely their leaders.” Bengzon vs HRET affirms that natural-born Filipinos who became aliens reacquire their original citizenship when repatriated. And Marcos vs Comelec instructs that the truth, not the mistaken statements in a certificate of candidacy, prevails.
8. The Universal Declaration of Human Rights and the covenants on civil and political rights, on the reduction of statelessness and on the rights of the child favor foundlings like Poe.
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10. The presumptions of good faith, nondiscrimination and regularity in the performance of duties undoubtedly benefit her.
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Judging from the gutsy “Comment” filed by Solicitor General Florin Hilbay in the Supreme Court, I believe he, too, has seen the moment for judicial greatness. Given his sterling track record as a bar topnotcher and law professor and my personal knowledge of his writing ability and excellent reports as a court attorney 15 years ago, Hilbay—if he were a sitting jurist—can, in my humble view, rise to the moment and craft a grand historic decision.

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Comments to chiefjusticepanganiban@hotmail.com

source:  Philippine Daily Inquirer

CJ Panganiban: Constitutionality of Edsa 1 and Edsa 2

This year will be marked by two milestones of our two people power revolutions: the 30th anniversary of Edsa 1 on Feb. 22-25 and the 15th anniversary of Edsa 2 on Jan. 16-20, which catapulted Corazon Cojuangco-Aquino and Gloria Macapagal-Arroyo, respectively, to the presidency.

Edsa 2. The Supreme Court characterized these historical events as “extra” and “intra” constitutional ways of upholding and protecting democracy, the Constitution, and the great libertarian and egalitarian principles overarching and underlying them.

Let me begin with Edsa 2, which was ignited 15 years ago on Jan. 16, 2001, by the walkout of 11 prosecutors from the Senate impeachment trial of President Joseph Ejercito Estrada and ended on Jan. 20, 2001, when he left his office and Vice President Arroyo ascended to the top post. Its constitutionality was upheld on March 2, 2001, by the unanimous 13-0 decision of the Supreme Court in Estrada vs Desierto.

As a participant in Edsa 2, I recorded the judicial events in my diary. Some parts (mainly the “spiritual”) of my narratives were highlighted in a speech I delivered on Feb. 19, 2002, at the University of Santo Tomas Central Seminary. The speech was published as Chapter 11 of my book, “Reforming the Judiciary.”

Printed by the Supreme Court, this tome was never sold in any bookstore or anywhere else; thus, contrary to some critics’ claims, it was never “withdrawn” from circulation. Copies are in archives, like the Court library.

Withdrawal of support. Recall that the prosecutors’ walkout was triggered by the refusal of the Senate, voting 11-10, to open the so-called second envelope that allegedly contained damning evidence showing that Estrada allegedly “held P3.3 billion in a secret bank account under the name ‘Jose Velarde.’” The Senate trial, at which Chief Justice Hilario G. Davide Jr. presided, was covered live by TV-radio and “enjoyed the highest viewing rating.”

Estrada vs Desierto detailed the aftermath of the walkout thus: “In disgust, Senator [Aquilino] Pimentel [Jr.] resigned as Senate President. The (11-10) ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the Edsa Shrine and speeches full of sulphur were delivered against [Estrada] and the 11 senators.”

On Jan. 18, 2001, a “10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino monument on Ayala Avenue in Makati City to the Edsa Shrine to symbolize the people’s solidarity in demanding [Estrada’s] resignation. Students and teachers walked out of their classrooms in Metro Manila to show their concordance. Speakers in the continuing rallies at the Edsa Shrine, all masters of the physics of persuasion, attracted more and more people.”

On Jan. 19, the Armed Forces chief of staff, Gen. Angelo Reyes, defected and announced publicly, in the presence of the heads of all armed services, that the “130,000-strong members of the armed forces were withdrawing their support to the government.” A little later, Panfilo Lacson, the head of the Philippine National Police, made a similar announcement. Several Cabinet and sub-Cabinet officials followed suit.

After the Cabinet, the armed forces and the police withdrew their support from Estrada and pledged their allegiance to Arroyo, I knew that Estrada could no longer govern. Neither could Vice President Arroyo legally lead. Hence, there was no functioning government from that point.

Saving the Constitution. On Jan. 20, I woke up at around 4 a.m. On TV was a panel discussing the tense situation. The panel host grimly announced that Jaime Cardinal Sin, through Msgr. Socrates Villegas, was pleading with the demonstrators at the Edsa Shrine to refrain from marching to Malacañang and confronting a large pro-Estrada crowd massed there.

The demonstrators adamantly refused and said they would storm the presidential enclave by 6 a.m. and forcefully oust Estrada. I was aghast at the violence and bloodshed that would ensue. Images of past Mendiola “massacres” haunted me.

At around 5:30 a.m., I called up CJ Davide and explained that the imminent encounter in Malacañang would be bloody and chaotic. Estrada could no longer govern. Arroyo could take over only by declaring a revolutionary government which would obliterate the Constitution. The situation was ripe for a coup d’état.

To avoid a power vacuum and a coup, I asked him to swear in Arroyo by 12 noon. I opined that the demonstrators would probably refrain from marching to Malacañang upon learning that VP Arroyo would be installed as chief executive by noon. The extraordinary crisis needed an extraordinary solution.

Davide (and, later, my colleagues in the Court and media reporters) asked for a legal justification to swear in the Vice President when the incumbent President was still physically in his office. I replied that, while the text of the Constitution did not expressly cover the critical situation facing the nation, the CJ could lean on the grand maxim “Salus populi est suprema lex” (The welfare of the people is the supreme law) precisely to save our Constitution and our democratic system from destruction. To cut the long story short, Davide agreed and swore in Arroyo at 12:29 p.m. of that day.

Next Sunday, I will discuss how this milestone started by my proposal to Davide and approved by the justices to swear in an “acting president” metamorphosed into an oath for a “President” (without the word “acting”) and how, in turn, this metamorphosis was later unanimously judged constitutional by the Court, voting 13-0 (Davide and I inhibited).

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Comments to chiefjusticepanganiban@hotmail.com

source:  Philippine Daily Inquirer

The Judicial and Bar Council, April 23, 1995

by Justice Isagani A. Cruz 

In 1995 on November 2, 2015 at 11:52 pm

THE Judicial and Bar Council is a creation of the 1987 Constitution and did away with the confirmation of judicial appointments by the Commission on Appointments. The purpose was to depoliticize the judiciary by removing as much as possible the influence of politics in the selection of judges and in their subsequent conduct in office.

It was felt that by continuing the old practice, the new charter would be perpetuating one of the most serious threats to the independence of the judiciary. Judges appointed or confirmed with the help of padrinos tended to repay their debt of gratitude with rigged decisions at the behest of patrons cashing in their chips. Others curried favor with senators and congressmen in hopes that these legislators may prove helpful for future promotions and confirmation.

The Judicial and Bar Council is a constitutional body. It is composed of the chief justice as chairman, the secretary of justice and a member of Congress as ex officio members, and a representative of the integrated bar, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The regular members are appointed by the president of the Philippines for four years with the consent of the Commission on Appointments. Each of the seven members has one vote. The representation from Congress is shared by a senator and a congressman, each of whom casts one-half vote.

Charges against aspirants for judicial positions are considered in private by the JBC. Complainants may be given a chance to support their objections and the candidate may be allowed to refute them. Hearings are not obligatory, however, and the council may simply act summarily on the charges. There is no right to be nominated after all, and the decisions of the body are highly discretionary.

Among the criteria for the nomination of a candidate are competence, integrity, record in the bar examination, experience in the legal profession, and personality. One perennial aspirant for the Supreme Court has been consistently rejected for lack of delicadeza in openly and personally campaigning for his nomination., Another candidate has been bypassed several times because of a rather servile manner and serious doubts about his integrity and morality.

I sat as a consultant of the JBC for some time and was especially impressed with the diligence of the members, particularly the regular ones, in screening hundreds of applications for the various judicial vacancies. These members even go around the country to interview prospective nominees, many of whom are unable to come to Manila for financial and other reasons. Visits of the JBC members and the schedule of interviews are announced in advance by the local IBP chapters.

But for all the improvement it has effected in the selection of judges and justices, the JBC has not completely succeeded in resisting the influence of politics. The secretary of justice is in that body to express and protect the wishes of Malacañang and there are also the members of the legislature whose principal role is to submit to the council the recommendees of their colleagues in Congress. The fact that the regular members of the JBC are appointed by the president may also emasculate their independence. Where the president’s own preferences are at stake, it is not unlikely that the chief justice may find his only ally in the retired justice of the Supreme Court, but even this is not certain.

The staggering of the terms of the regular members at yearly intervals is good, but perhaps there should also be a prohibition against their reappointment as in the case of the constitutional commissions. The secretary of justice could be retained for his valuable insights in the judicial and prosecutorial systems but only as a consultant without the right to vote. The representation from Congress should be taken out as inimical to the very purpose of the creation of the JBC.

The JBC is supposed to make at least three nominations for each judicial vacancy, but no maximum number is prescribed. The bigger the number of nominations, the wider the discretion given to the president and the weaker the independence of the council becomes. At one selection of the nominee to the Supreme Court, the JBC chose five names but when the Malacañang candidate was not included, his supporters moved to expand the list. This is one way a candidate favored by the president may be accommodated and eventually appointed.

I believe the incumbent justices of the Supreme Court should be consulted on the filling of any vacancy in the body because they will be working with whoever is chosen to sit with them and it is imperative that they have confidence in his ability and integrity. It takes only one member to throw a monkey wrench into their proceedings and make the entire membership ineffective if not suspect, or at least embarrassed by the pariah among them.

Residency issue can proceed – radio man

Radio commentator Rizalito David on Friday said it is only “logical” for the Commission on Elections (Comelec) to wait for the Senate Electoral Tribunal’s ruling on a petition he had filed seeking Sen. Grace Poe’s removal from office.

But the Comelec can already proceed hearing the disqualification cases with respect to Poe’s residency, he added, because the issue before the electoral tribunal pertains to citizenship.

“Comelec can start on that. [There is no] prejudicial question [there],” David told The Manila Times in a phone interview on Thursday.

“But in the end, it’s their discretion [still] if they want to wait for the [Senate Electoral Tribunal],” he said.

The poll body’s law department earlier recommended suspension of legal proceedings in the disqua¬li¬fication cases filed against Poe until after the resolution of her pending case before the electoral tribunal, according to Comelec Commissioner Arthur Lim.

Lim told the House Committee on Suffrage and Electoral Reforms on Wednesday that the Comelec commissioners were told that resolution of a quo warranto petition of David with the tribunal would have an effect on the disqualification cases filed against the senator.

Poe is facing complaints before the Comelec filed by the radio commentator, political science professor Antonio Contreras, lawyer Estrella Elamparo and former senator Francisco Tatad that all assailed the senator’s citizenship and residency.

David filed the petition for quo warranto (by what warrant) last August before the electoral tribunal seeking Poe’s removal from office over her citizenship.

On his Facebook account, he posted in connection with the Come¬lec law department’s recommendation to suspend proceedings against Poe, “It is just logical that they do. However, if the [Senate Electoral Tribunal] rules that Grace Poe Llamanza¬res is not a natural-born citizen, then there may be no further need to hear the cases against her in the Comelec. If she is unseated as a senator, then she is not eligible to run for President.”

The Comelec has summoned Poe for a hearing on November 3 so that she could respond to the charges against her.

source:  Manila Times

Lawyer asks SC to sack Binay from BSP

A LAWYER on Friday filed a petition before the Supreme Court (SC) seeking to declare as unconstitutional the holding by Vice President Jejomar C. Binay of the national presidency of the Boy Scouts of the Philippines (BSP) concurrently.

In a 15-page petition for certiorari and prohibition, lawyer Jesus Nicardo Falcis also sought the immediate issuance of a temporary restraining order (TRO) to enjoin Binay, who is eyeing the country’s presidency in 2016, for discharging the functions and duties of the BSP president.

Falcis argued that Binay acted with grave abuse of discretion in holding another office during his tenure as vice president. He said Binay is covered by the prohibition under Section 13, Article VII of the Constitution.

The said provision states: “The President, Vice President, the Members of the Cabinet and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the government or any subdivision, agency, or instrumentality thereof, including government-owned or -controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.”

Falcis said he is entitled to the issuance of a TRO to restrain Binay from discharging the functions and duties of the president of the BSP, as he has a “clear and unmistakable right to be protected”; “there is material and substantial invasion of such right”; and “there is an urgent need for the writ to prevent irreparable injury to the applicant.”

“Petitioner submits that the continued holding by Binay of the office of president of the BSP concurrently with the Office of the Vice President constitutes irreparable injury, since the invasion of petitioner’s right cannot be adequately compensated in damages,” Falcis insisted.

source:  Business Mirror

The cases vs Grace Poe are not only constitutional but also criminal

Sen. Francis Escudero, who is running embryonically as Sen. Grace Poe Llamanzares’s running mate in the 2016 elections, was reported to have voiced an appeal to the Jojo Binay and Mar Roxas camps not to support any moves to disqualify Grace from the presidential race for not being a natural-born Filipino and for lacking the 10-year residency required of all presidential candidates. The appeal is rather presumptuous and offensive, based on the specious presumption that the two presidential candidates —Vice President Jejomar Binay and former DILG Secretary Mar Roxas—are involved in the petitions before the Commission on Elections (Comelec). Indeed, both may be praying that the constitutional nuisance called Mrs. Llamanzares should be instantly removed from the race, but to say that they are involved in any of the petitions is certainly derogatory and contemptuous.

Three petitions are now before the Comelec. Two are for the cancellation of Mrs. Llamanzares’s certificate of candidacy on the ground of lack of citizenship and residence; one for her permanent disqualification from public office. The two were filed separately by former Government Service Insurance System chief legal counsel Estrella Elamparo and by political science professor Antonio Contreras from the De La Salle University; the disqualification suit by myself. There may be more coming in the next few days.

Both Binay and Roxas were asked by the press about my petition. Both expressed sympathy for my action, but maintained respectful distance from it. This was but consistent with their position on the issue. Not only was I the first one to publicly raise the issue of Mrs. Llamanzares’s constitutional eligibility to run for President or sit in the Senate; I have also written the most extensive discussion of this issue in this space. For a while I was the only one who seemed to be interested in this constitutional issue, which to me involves a question of sovereignty.

At first, Navotas Rep. Toby Tiangco, speaking for Binay and UNA, tried to say something about Mrs. Llamanzares’s lack of the required 10-year residency immediately preceding the election. By our count, she would have resided in the country for only a few years by May 9, 2016, if we computed her stay from the time she lost her American citizenship and theoretically became a Filipino on February 3, 2012. Nowhere near 10 years.

Tiangco’s quote landed on the front page of some newspapers, but the very next day, he apologized to Mrs. Llamanzares and her family for raising doubts about her constitutional eligibility to run for President or to remain in the Senate. This was because Binay, who campaigned for Fernando Poe Jr. in 2004, did not want to be seen as wanting to inflict any personal injury on FPJ’s adopted daughter, Mrs. Llamanzares.

On Roxas’s part, he said he respected my right to pursue a course of action that I thought was right. But Roxas was never known to have publicly inveighed against Mrs. Llamanzares’s constitutional ineligibility to seek the highest office. In fact, until he settled on Rep. Leni Robredo as his running mate, he tried everything to convince Mrs. Llamanzares to run as his vice president. This meant that he did not consider her constitutionally impaired from running for president. Under the Constitution, a candidate for vice president has the same qualifications as a candidate for president.

When I last spoke to Roxas about Mrs. Llamanzares at Mount Carmel church during the wake of the departed Philippine Daily Inquirer columnist Neal Cruz, he showed no clear position on her constitutional status. I cited her obvious disability, and he said he would have it studied. But not since has Roxas said anything about it. Escudero therefore was speaking out of turn when he said Binay and Roxas should desist from supporting any of the moves at the Comelec against Mrs. Llamanzares.

Apparently the cases against Mrs. Llamanzares have acquired a life of their own. My petition, and presumably the two other petitions, were reported to have been raffled off to the Second Division of the Comelec; which means the Comelec should be able to rule on them before they begin printing the official ballots on Dec. 10.

But in addition to that, the Comelec has decided to conduct a preliminary investigation on the criminal case filed by petitioner Rizalito David against Mrs. Llamanzares for violation of Sec. 74 in relation to Sec. 262 of the Omnibus Election Code, having to do with misrepresentations in her 2013 COC that she was a natural-born Filipino.

This charge could open a new Pandora’s box. More criminal charges could be forthcoming. Some quarters are reportedly preparing to file graft and corruption charges against Mrs. Llamanzares, for having accepted an obviously illegal appointment and collected a salary and other emoluments as Chairman of the Movie and Television Review and Classification Board in 2010, while she was still an American citizen, and therefore prohibited from accepting a position in the Philippine government.

One real problem is the negative impact of all these developments on Mrs. Llamanzares’s financial contributors. A number of business tycoons who had earlier decided to bankroll her campaign were reported to have begged off, leaving just two top executives of a conglomerate to support her campaign until the Comelec decides on her disqualification. This could have a crippling effect on her operations, including her ability to mount a legal defense on her disqualification and other cases.

This could replicate what happened to FPJ’s campaign in 2004. FPJ had accepted the draft to lead the challenge to then-President Gloria Macapagal Arroyo on the basis of strong commitments by a financial group to fund his campaign. After the first few weeks at the hustings, the campaign began to show early signs of failing to sustain itself because of the failure of the standard bearer to adopt an offensive posture. A well-known bloc-voting institution, which had committed to support FPJ, asked for an extended session with the candidate to “help him” develop the necessary speaking lines that would put GMA on the defensive, and his campaign ahead.

This failed to change the situation in our favor. As a leading senatorial candidate, I was delivering the only sharp lines against the administration —all my colleagues on the ticket were either clowning or saying absolutely nothing. But for reasons that became clear to me only after my silent colleagues handily won and I was robbed even of my “historic vote,” I lost live media coverage every time I spoke, despite the fact that such media coverage was legitimately paid for by our party organizers. I then asked FPJ if he could use my lines, so that they could at least reach a wider audience. He cheerfully declined the suggestion saying, “Pare, hindi pa naman puno ang salop” (Friend, the rice container is not full).

Mrs. Llamanzares’s problem is of a different nature altogether. Should a perverse miracle happen, and she is judged to be qualified to run for president, after all, we would be compelled to raise other issues about her moral character. There is no need to talk about these now. But the first basic issue will have to be this: can we afford to have a President and Commander-in-Chief who sleeps with an American husband and would be at the mercy of her American children? We might as well adopt the late Congressman Bartolome Cabangbang’s proposed US Statehood status for the Philippines.

fstatad@gmail.com

source:  Manila Times Column of Sen. Kit Tatad

Serge Osmeña: Poe by a nose at SET

Sen. Serge Osmeña believes Sen. Grace Poe will win a favorable decision in her disqualification case before the Senate Electoral Tribunal (SET) “by a narrow margin.”

“If I look at the composition [of the SET], I’d say the numbers would be in favor of Poe by a narrow margin but (my analysis) is a secret,” Osmeña told reporters on Thursday in reply to a question on whether Poe would get the needed votes with the composition of the nine-member tribunal.

The SET is chaired by Supreme Court Senior Associate Justice Antonio Carpio and has as members Associate Justices Teresita Leonardo de Castro and Arturo Brion and six senators—Tito Sotto, Loren Legarda, Cynthia Villar, Pia Cayetano, Bam Aquino and Nancy Binay.

The tribunal is looking into the question of Poe’s citizenship.

Early this week, Carpio said Poe was not a natural-born Filipino unless she could prove blood relations to biological Filipino parents.

On the fact that six senators sit on the SET, Osmeña said: “These six politicians have their beliefs, their interests and so you can’t discount that it might be a political decision.”

He said the composition of the SET was “favorable” to Poe and this would mean a “favorable” decision for her.

But even if Poe wins the case at the SET, Osmeña said the complainant, former senatorial candidate Rizalito David, is expected to appeal in the Supreme Court.

source:  Philippine Daily Inquirer