During tense political times, unity is Supreme Court's prime quest

The Supreme Court, among the most secretive institutions, has recently been giving glimpses into its hallowed halls with a uniform message: "We are collegial, we are united."

The fiercest dissenter on the bench, Associate Justice Marvic Leonen, appeared on live television on Friday, October 11, to heap praises on retiring Chief Justice Lucas Bersamin: "We have become good friends because that's how the Chief Justice is, he is very collegial."

Not so long ago, in 2015, Bersamin lodged a complaint against Leonen for the latter's strongly-worded dissenting opinion in the Chief Justice's ponencia that granted bail to Juan Ponce-Enrile.

Leonen had called Bersamin's Enrile ponencia "a result of obvious political accommodation." Bersamin lambasted Leonen's dissent as having "impugned the integrity of the seven members of the Court."

Three years later, Leonen was master of ceremonies in Bersamin's retirement party held during a special en banc session live streamed from the High Court's session hall.

"I think I have the most dissents against the current chief justice, Lucas Bersamin, and these are very important cases, yet in his retirement ceremony he has chosen me as the master of ceremonies, I will host the retirement ceremonies....He will take the risk, he told me, 'Just say anything you want to say,'" Leonen told CNN Philippines' The Source.

Leonen added: "He thinks it's important to send the message that despite our ideological differences in ideological and judicial philosophies, we can still act as an institution."

Post-Sereno

The messaging still smacks of criticism directed at ousted chief justice Maria Lourdes Sereno, whose portrait no longer hangs in the halls of the Supreme Court.

Outside the session hall where portraits of past chief justices are, the portrait of impeached chief justice Renato Corona is followed by retired chief justice Teresita Leonardo-de Castro, skipping Sereno as if she did not sit as top magistrate for 6 years.

Sereno was ousted in an unprecedented quo warranto mode, a process that exposed cracks in the Supreme Court, with justices voluntarily going to the House of Representatives to rant against Sereno's alleged unilateral decisions in the Court.

In a press conference on September 4, Bersamin said: "Hindi kailangan masyadong mataas ang IQ (intelligence quotient), kailangan mo EQ (emotional quotient) lang." (You don't need to have a high IQ, you just need EQ."

"I wish to be remembered and known as the healing chief justice who brought stability and normalcy back to the judiciary and particularly to the Supreme Court," Bersamin said during his retirement ceremonies on Friday, in front of former chief justices and justices alike.

"Yes the judiciary needed healing and it became my responsibility as chief justice to initiate and ensure such healing," said Bersamin, who will retire on October 18.

The ousting of Sereno was intensely divisive, resulting in an 8-6 vote, with Leonen calling the decision a "legal abomination." That was barely a year ago, in 2018.

Collegial

But the dissenters never faltered in the Bersamin Court.

In the 3rd decision that upheld President Rodrigo Duterte's martial law in Mindanao, Associate Justice Francis Jardeleza said he has "grave concerns over the Court's seeming abdication of its duty."

In the decision that upheld Duterte's closure of Boracay as constitutional, Associate Justice Benjamin Caguioa said his colleagues' ruling "leads to the realization of the very evil against which the Constitution had been crafted to guard against – tyranny, in its most dangerous form."

Leonen called the Boracay ruling as one that "invites a regime that is borderline authoritarian.”

"They have the fullest freedom of what they will write in their dissenting opinions...Wala kaming restriction sa kanila, in fact I dissented in a few cases and I can even say that I criticized the majority opinion, kasi kung hindi mo gagawin 'yun walang kuwenta 'yung dissent mo. That is what gives us the dynamism," Bersamin said.

(We have no restrictions for them, in fact I dissented in a few cases, and I can even say that I criticized the majority opinion, because if you do not do that, your dissent is useless.)

"We need people like Leonen, Jardeleza, and Caguioa telling us that we're shit," Bersamin said, laughing it off after.

Another kind of dissenter is Associate Justice Estela "Telly" Perlas Bernabe. She dissented in the Leila de Lima jailing case and the Sereno quo warranto, the few times she found herself on the side of the losing bloc.

As she told the Judicial and Bar Council (JBC) during her chief justice application, her ponencias are mostly unanimous.

"I am very collegial and I think with proper justification, I don’t think they will reject any proposal I will make," said Bernabe. 

Bersamin backed that: "She has contributed a lot to the discourse and has often explained to me why my arguments were wrong or misdirected. I have not complained, Justice Telly, because as usual, I was easily charmed by the way you explained things."

Marcos-Robredo case

An upcoming highly political issue that is perceptibly a divisive one is Bongbong Marcos' electoral protest case against Vice President Leni Robredo, where Caguioa is member-in-charge.

Caguioa has already submitted his report on the assessment of the initial recount of Marcos' chosen 3 pilot provinces. Robredo's lawyer Romulo Macalintal told media, citing reports, that Caguioa's report showed no substantial recovery from the pilot provinces, meaning the recount should uphold Robredo's win.

The issue has been thrice deferred since September, with the next deliberations set for October 15, Bersamin's last en banc session before he retires.

In his retirement ceremony, Bersamin told Caguioa: "I have always valued your opinions, many of which I have adopted without hesitation, even if they initially conflicted with mine just because you were right after all. I wish you to continue being strong and persistent in your opinions."

Earlier that day, Leonen told CNN that they were close to a consensus.

"I think we’re getting there, that there is an emerging consensus on how to move with respect to this case," said Leonen.

Bersamin had teased that the ruling is "not what you would expect."

Duterte's winning streak

Duterte has enjoyed an overwhelming winning streak in the Court, with Bersamin always voting in favor of the President.

"I think that's an unfair implication there, para bang kinakampihan ko na ang administration. Lagi kong ipinapaliwanag na ang isang hukom kagaya ko kapag sinuri namin ang isang case may kanya-kanya kaming pag-aaral," Bersamin said in a CNN Philippines interview earlier this October.

(I think that's an unfair implication there, that I am siding with the administration. I always explain that judges like me have our appreciation of cases based on our respective examinations.)

But even he would admit that he is more for judicial restraint, or a philosophy where justices avoid superseding the policies of elected officials.

“I am more on the side of restraint. Why? Because I happen to believe the 3 branches should work together, and the 3 branches should respect each other’s boundaries,” Bersamin said when he was appointed chief justice.

With his and Senior Associate Justice Antonio Carpio's back-to-back retirements, only 3 of the 15 members of the Court will be non-Duterte appointees.

"Hindi naman (Duterte court)," Bersamin said. (It's not gonna be a Duterte court.)

"Ayaw namin ng bansag na rubber stamp lang kami ng executive. Ayaw din namin 'yung bansag na rubber stamp kami ng legislative. Our history in the Supreme Court, we are no president's court. I can give you that assurance," said Bersamin.

(We don't want to be called a rubber stamp of the executive, we also don't want to be called a rubber stamp of the legislative.)

Duterte has started to pack the SC with young appointees who will serve in the High Bench long after he leaves the presidency.

Bersamin has advice for them: "May you quickly adapt to the rigors of dealing with court business in the SC on a daily basis."

Indeed, the responsibility of rebuilding an institution that had been rocked to its core in the past falls upon the next generation of magistrates.

Forging an image of unity may seem superficial, but in a bench of 15 people, collegiality may just pave the way for good decisions. After all, the en banc is also largely a numbers game, and the one with good convincing power can win. – Rappler.com

Photo of the en banc from a June 2018 oral arguments by Ben Nabong/Rappler

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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