Persida Acosta and a justice’s cogitations

Video clips of Chief Public Attorney Persida Acosta being grilled by the unflappable Angelina Sandova-Gutierrez have gone viral, and comments have not always been favorable to Persi, undoubtedly a very hardworking government official who has come to the rescue of many an unjustly beleaguered citizen.  

All was not well during the interview, because Persi had to admit repeatedly that she had not read the decisions of the High Court that Justice Angelina asked her about, and relied on what she had read from newspapers. Was this line of questioning fair? That’s not an easy question.

If all that Justice Helen wanted to know was whether or not Chief Persi was updated in her readings, that question might as well have been asked of some justices now – for not all read leading judgments in all areas of law. It is just overwhelming. But the persistent Justice Helen wanted something more: “Would you have concurred or dissented?” She wanted to here how one aspiring to be a member of the High Court of the land would have reasoned her way to a conclusion. That, to me, is a fair question. (WATCH: JBC interviews)

I have this romantic notion of Supreme Court justices being embodiments of the most exalted forms of juristic cogitation. At least, that is how it should be. Thomas Kuhn says that science occurs in two phases. “Normal science” is when science proceeds by established laws and works on commonly accepted premises. “Revolutionary science” occurs after a scientific revolution – like thinking of planets orbiting around the sun not because the sun draws them – by gravitational force – towards itself, but because the space around the sun is curved space. The Supreme Court is most helpful when it launches a juridical revolution and initiates revolutionary jurisprudence.

When Justice Isagani Cruz, for one, ruled that courts did not have to choose between applying the law and being just – because what they had to do was to apply the law, construe the law, interpret the law according to principles that were to bring about just results, that was revolutionary, commonplace though it may have sounded.

Chief Justice Rey Puno’s analysis of church-state relations in terms of “benevolent neutrality” and what it meant both for the ambit of free exercise as well as state interference in the practice of religion – that too was revolutionary, especially as it resulted in the dismissal of administrative charges against a court employee who was cohabiting with a married man, not her husband.

Chief Justice Hilario David’s doctrine of “intergenerational responsibility,” his pronouncement that a State principle and policy on “healthful ecology” was in itself an executory provision of the Constitution and the children yet unborn had the standing to bring suit to protect the interests of the future, that has found its way into books on environmental law throughout the world.

Care for the poor? Not enough

High Court = high levels of cogitation. That much is expected. 

And so while it may not exactly be to the point to ask a candidate whether she knows the facts, the law and the disposition of the Court in some reported cases (computers do a much better job at storing and compiling such data), it certainly behooves a candidate for Supreme Court justice to be able to draw from the juridical insights of decided cases to craft novel, provocative – yes, revolutionary answers to new questions and challenges.

It is not enough to have cared for the poor. One can do that in the DSSWD. It will not do to be able to identify oneself with the ‘masa’ alone. There is a legitimate aristocracy in the world – the aristocracy of the mind, and justices must belong to that circle of aristocrats. It is what is expected of them. It is what they need to decide the cases that find their way to the highest reaches of our judicial system.

And there are concerns that the JBC has not being doing a very good job – the vigilance of a feisty Angelina Sandova-Gutierrez notwithstanding. Among circles of lawyers, law professors and judges, some appointments have raised eyebrows that have not yet returned to normal levels, and a collection of judgments penned will show just how strained the logic and the grasp of juridical concepts –  to say nothing of articulate language – is in some of those who sit on our country’s superior courts.

Let’s continue then asking candidates for the Supreme Court really tough questions – and more philosophy, please, after all the Supreme Court is a court of legal philosophy. Let’s ask them if the “free exercise” clause should apply to atheists and agnostics, if the Constitution should be construed according to the framers’ manifest intent or according to present-day exigencies, whether or not the “grave abuse of discretion” scope of judicial power has upset  the delicate balance between the three branches of government.

Let us discern the candidates’ intellectual and personal aptitude for engaging in the “revolutionary juridical science” we need in a landscape of lengthening shadows! – Rappler.com

The author is Dean of the Graduate School of Law, San Beda College, and chair of the Department of Jurisprudence and Legal Philosophy at the Philippine Judicial Academy, Supreme Court of the Philippines.