A court at war with itself

(We are re-publishing a commentary written in February 2011 by UP Prof. Theodore Te for Newsbreak. This puts in context key issues concerning decision-making in the Supreme Court. – Eds)

The Constitution specifies in Article VIII, section 1 that “judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.” In section 4, it provides that “it may sit en banc or in its discretion, in divisions of three, five, or seven Members.”

Currently, the Supreme Court acts through the en banc (all justices) or through its 3 divisions (of 5 justices each). One, single, unitary, and complete Supreme Court.

There is a great significance to the phrase “one Supreme Court” because the obvious intention of the framers of the Constitution is that the Supreme Court is the final arbiter of what the Constitution is.

The contemplation is that it speaks with one voice and as one, especially when it sets policy through its interpretation of what the Constitution and the law mean, even if it acts through its divisions.

In Tugade v. Court of Appeals, the Court said:

“The Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is;  it is the final arbiter of any justiciable controversy.  There is only one Supreme Court from whose decisions all other courts should take their bearings.”

The Court explained further in Vir-Jen Shipping and Marine Services Inc. v. NLRC that:

“A fundamental postulate of Philippine Constitutional Law is the fact that there is only one Supreme Court from whose decisions all other courts are required to take their bearings. The majority of the Court’s work is now performed by its two Divisions, but the Court remains one court, single, unitary, complete, and supreme. Flowing from this nature of the Supreme Court is the fact that, while individual Justices may dissent or partially concur with one another, when the Court states what the law is, it speaks with only one voice. And that voice being authoritative should be as clear as possible.”

Thus, whether the Court acts as a 15-member Court or a Five-member Division, the contemplation is that whatever it says is law because it speaks as one and with one voice, and as Justice Hugo Gutierrez points out in Vir-Jen Shipping, “that voice being authoritative should be as clear as possible.”

Not always clear or united

As with any human institution, the Court has not always been clear, nor has it always been united.

On many occasions, the Court has rendered rulings which could have been clearer or perhaps better explained. However, because of the authoritativeness imbued in its rulings, they are taken as law, ambiguities and all.

On many occasions also, the Court has not acted unanimously.

There have been dissents—whether as a vote or by a separate opinion.  There have also been votes characterized as pro hac vice (only for this occasion) or “in the result,” which is a polite way of saying “I agree with your conclusion but not with your analysis or process.”

During these times, however, the Court has generally and invariably acted with a high degree of regard for the institution and has, even in dissent, acted with a great deal of circumspection, diplomacy and, yes, even respect for each other.

There have, of course, been exceptional instances when the reading public has been made privy to the internal workings of this most secretive of Philippine institutions.

While these have been few and far between, these instances have shown a face of the Supreme Court that is not too familiar and have allowed us a peek into the relationships between the justices who have been part of the Court.

Divided court

On at least two occasions in the past, the dissenting opinion of a justice has allowed us to see how the Court makes decisions and, in that rarest of instances, has allowed us a glimpse into the personal dynamics of these men and women who make up this One Court.

In Misolas v. Panga, the late Associate Justice Abraham F. Sarmiento, in his dissenting opinion, 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.”

This, by itself, was already revealing of the dynamics of the Court which led to a reversal of what Sarmiento had called a  slim majority declaring Presidential Decree No. 1866 (the law on illegal possession of firearms, explosives and ammunition) unconstitutional. 

However, he aroused further curiosity when he cited a previous instance involving another Justice in his succeeding paragraphs:

“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.’”

After this introduction, Justice Sarmiento proceeded to convert his original ponencia into a full-blown dissenting opinion on the matter of Presidential Decree No. 1866 (the law on illegal possession of firearms, explosives and ammunition) being unconstitutional.

The case referred to by Justice Sarmiento in his dissent was People v. Caruncho, a case media old-timers will remember as it involved the manhandling by the then Pasay Mayor of a reporter.

As it turns out, it was originally assigned to Justice Ameurfina Melencio-Herrera who had prepared a draft ponencia already concurred in by nine justices. Subsequently, some justices changed their minds and the original draft majority became a dissent.

The new ponente, Justice Abad Santos, in an attempt to perhaps make light of a possibly tense situation, opened the decision with this:

“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.”

Justice Melencio-Herrera, not one to be trifled with or made fun of, retorted in her dissent:

“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.”

Rare concurring opinion

While the words in Misolas and Caruncho may have been cross and strong, they nonetheless remained at the edges of civility.  While they may have been direct, the Justices (Sarmiento and Melencio-Herrera) stopped short of accusing each other and contented themselves with not-too subtle hints.

In what may be considered an exceedingly rare instance, an Associate Justice used a separate concurring opinion to not only disagree with two dissenters but also to accuse one of the dissenters of plagiarism.

In  the Court’s February 8, 2011 per curiam resolution in “In the Matter of Charges of Plagiarism, Etc. against Associate Justice Mariano C. Del Castillo”  denying the motion seeking a reconsideration of  the Court’s exoneration of Justice Del Castillo in its October 10, 2010 decision, Associate Justice Roberto Abad filed a separate concurring opinion which departed from the usual language as well as reason for the practice.

Rule 13, section 7 of the Internal Rules of the Supreme Court provides that:

SEC. 7. Dissenting, separate or concurring opinion. – A Member who disagrees with the majority opinion, its conclusions, and the disposition of the case may submit to the Chief Justice or Division Chairperson a dissenting opinion setting forth the reason or reasons for such dissent. A member who agrees with the result of the case, but based on different reason or reasons may submit a separate opinion; a concurrence “in the result” should state the reason for the qualified concurrence. A Member who agrees with the main opinion, but opts to express other reasons for concurrence may submit a concurring opinion. The dissenting, separate, or concurring opinion must be submitted within one week from the date the writer of the majority opinion presents the decision for the signature of the Members.

Thus, a separate concurring opinion, according to the Court’s own Internal Rules, is really for the purpose of stating a reason not mentioned by the majority in the main Opinion.

Justice Abad’s separate concurring opinion in In Re: Del Castillo is, however, a rare one. [Justice Del Castillo, subject of another impeachment proceeding at the House of Representatives, was accused of plagiarism. The High Court absolved him of wrongdoing. He’s on sick leave. – Eds]

Against Carpio, Sereno

At the start of his separate concurring opinion, Justice Abad states a very clear and unmistakable purpose:

“I fully concur in the majority opinion and would like to react to the separate dissenting opinions of Justices Antonio T. Carpio and Maria Lourdes P.A. Sereno.”

He makes it clear that he is not giving additional reasons to justify the concurrence but only to take issue with 2 of the 3 dissenters—something which the main resolution could have done easily.

Consistent with this, he proceeds to take issue with Senior Associate Justice Carpio in 5 paragraphs in the usual “diplomatic” language of the Court, i.e., first compliment you and then disagree with you:

“Justice Carpio has again graced the Court’s rulings in this case with his typically incisive dissenting opinion. Still, I cannot agree with his views.”

He, however, reserves his venom for Associate Justice Maria Lourdes Sereno and for her, Justice Abad does not bother with the diplomacy. Using language that would be unmistakable as a “scolding,” Justice Abad starts by saying:

“Justice Sereno castigates the majority in the Court for lowering the standards for judicial scholarship, negating the educative and moral directional value in the writing and publishing of decisions, bending over backwards to deny the objective existence of gross plagiarism, and condoning dishonesty in the exercise of a function central to the role of the courts.

“But our courts are in the business, not of “judicial scholarship,” but of deciding fairly and honestly the disputes before them, using precedents and legal literature that, according to American scholars, belong to the public domain. If this is not honest work for a judge, I do not know what is.”

Then, Justice Abad does the unprecedented: he accuses a fellow justice of plagiarism in a separate concurring opinion. His words:

“And Justice Sereno has no right to preach at the expense of the majority about ‘educative and moral directional value’ in writing published articles. For one thing, her standards are obviously for work done in the academe, not for the judge plodding at his desk to perform government work. For another, I note that on occasions she has breached those very standards, lifting from works of others without proper attribution.”

The rest of the concurring opinion, with the exception of the last 2 sentences are on Justice Sereno’s alleged plagiarism, complete with tables comparing Justice Sereno’s published works and the  supposed copied works.

In her separate dissenting opinion consisting of about 80 pages, Justice Sereno spends the first half of the dissent explaining why she dissented and the other half rebutting point for point the matters raised by Justice Abad in his separate concurrence.  In her point-for-point rebuttal, Justice Sereno minces no words but uses a tone that is sober, academic but decidedly indignant.

At war with itself

The Del Castillo exonerations  (there are now 2: Oct. 10, 2010 and Feb. 8, 2011) are disturbing not only because of the manner by which the majority argued for the exonerations but also because they have demonstrated very serious cracks in the wall of this “one Supreme Court” described by Justice Hugo Gutierrez  as “one court, single, unitary, complete, and supreme.”

The irony of the Abad accusations against Sereno is not lost on those who know the context and circumstances behind the Del Castillo exonerations.

For many who disagreed with the first exoneration on Oct. 10, 2010, it was clear that the majority was looking out for “one of its own.”

What the Feb. 8, 2011 exoneration and the Abad accusations against Sereno reveal, however, is that there are others who are not considered “one of its own” as far as the majority are concerned.  And that does not bode well for this “one Supreme Court.”

Just very recently, Lauro Vizconde, who was admonished by the Court for his outburst against the Court’s acquittal of those accused in the murders of his family, revealed that it was no less than the Chief Justice who disclosed to him and one other the supposed machinations of another Justice in relation to the case.

This “one Supreme Court” is supposed to have the last word on what the law is. 

If this internecine squabbling continues, this Court which is supposed to speak with one voice, credibly and with authority, may lose not only that credibility but also that voice and that authority. – Rappler.com

(This was first published on Feb. 2, 2011 in www.newsbreak.ph)