#AnimatED: Bersamin vs Leonen

#AnimatED: Bersamin vs Leonen
Supreme Court justices shouldn’t use secrecy as a cover for wrongdoing

Justice Marvic Leonen’s stirring dissent on the bail case of Senator Juan Ponce Enrile has riled up his colleague, Justice Lucas Bersamin, who penned the decision. What was most telling was Leonen’s revelation that the version of the decision which Bersamin submitted for an en banc vote was different from what he circulated for signing.

Bersamin struck back, saying that Leonen’s dissent contained “gross distortions” and that he violated the Supreme Court’s internal rule on secrecy of deliberations.

We should welcome this exchange, coming as it does from the most secretive branch of government. This is like listening to senators and congressmen debate on the floor, except that on the Court, it’s all on paper. We see the written word slung like an arrow, hitting its target bull’s-eye, or simply scraping or missing it.

This is not the first time that a justice has disclosed the process of deliberations on the 15-member Court.

Twenty-five years ago, in Misolas vs. Panga, Justice Abraham Sarmiento wrote in his dissent vivid details on how he leaped from justice-in-charge to dissenter. He was upset that one of the justices who “stamped [his] imprimatur on my decision” – and he named him – changed his mind at the last minute. “…[This] took me aback for which I strongly voiced my protest for a case that I had thought was a settled matter,” he wrote.

When Maria Lourdes Sereno was appointed justice, she became known for her vocal dissents, pointing out deficits in the processes of the Court.

Remember when former President Gloria Macapagal Arroyo wanted her name out of the Department of Justice’s watch list so she could seek medical treatment abroad? The Supreme Court almost let her go. The justices hurriedly issued a temporary restraining order (TRO) against the DOJ but it turned out to be defective.

Sereno narrated the back-and-forth among the justices on the TRO in her dissent, prompting Justice Roberto Abad to write, in his separate opinion: “If our deliberations cannot remain confidential, we might as well close down business.”

Similarly, in the Flight Attendants and Stewards Association of the Philippines vs Philippine Air Lines, Sereno chronicled the twists and turns of the case. PAL initially lost but its lawyer, Estelito Mendoza, through some legal stunt, was able to convince the court to reverse its ruling. 

Justices complaining against their colleagues thus comes with the territory – and they take different forms.

Bersamin, feeling aggrieved, wrote Chief Justice Sereno urging her to include the Enrile case in the Court’s en banc agenda in the light of Leonen’s revelations and followed it up with a rejoinder dripping with vitriol.

Before this most recent outburst, Justices Arturo Brion and Presbitero Velasco Jr were, for a time, locked in a feud. In 2009, Brion wrote then Chief Justice Reynato Puno to vent against Velasco whom he suspected to have caused a death threat against him. Not getting any response from Puno, Brion wrote the en banc a memorandum on the events that led to the threat. Brion wanted Puno to docket this as an administrative case but nothing came of it.

When the Court was probing the plagiarism case against one of its justices, Mariano del Castillo, two justices – Sereno and Roberto Abad – got into a heated exchange. Sereno was among those who dissented – the Court absolved Del Castillo – and she tended to argue in a lecturing tone.

Abad, who was with the majority, took offense and, in his separate opinion, charged Sereno with plagiarism, citing some of her works when she was still in the academe. Sereno had to ask a panel of faculty members from the University of the Philippines to go over the disputed papers; she was cleared of plagiarism.

It is only through the justices’ opinions and dissents do we get to know what’s happening on the Court, how decisions are arrived at, the dynamics of the debates. We grant that the Court needs to keep its deliberations confidential – but this has its limits.

Secrecy ends when rules are bent and processes violated; when the road to a decision is marred by dubious steps. – Rappler.com

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