Uncommonly civil

The Philippine legal system is a mixture of the civil law and the common law. Generally speaking, the common-law tradition is prevalent in the development of Philippine constitutional law since the country’s constitution and constitutional jurisprudence are basically of American origin and influence; whereas, the civil-law tradition predominates in criminal law, and in the laws of persons, family relations and property. Appreciating the difference between the common-law tradition and the civil-law tradition would help in the understanding of certain approaches taken by the justices of the Supreme Court in rendering their opinions in recent high-profile constitutional law cases.

In the civil-law tradition, recourse must be made to the language of the legislative code (or the written constitution) as the sole source of the decision, the relevant provision of the code being the major premise in the deductive reasoning.

The keystone of civil law is “the Code” or the written constitution as enacted or posited (or as in earlier times inscribed into stones). One reason for positing the law (the positive law as opposed to the case law or the judge-made law) is to give the citizenry an open access and the means to view and learn for himself, without consulting a lawyer, the applicable legal standards of the day contained in some handbook, much like a family bible. The other reason for positive law is to restrain judicial abuses. The objective of having an all-encompassing code underpins the civil law philosophy, that is, that the law is supposed to come from the enacted code, and not from the decisions of the judiciary. Hence, the authority of the legislature to make laws has been zealously guarded (by the French revolutionaries who were influenced by Montesquieu and others) against incursion by “royal” judges who historically were beholden to the powers that be (the monarchy or the aristocracy). Closely limiting the power of judges merely to law-application function is paramount to this legal philosophy.

The foundation of the common-law tradition, on the other hand, is the concept of stare decisis. Precedents or stare decisis demands adherence to the most recent higher court decision, whether the original legal precept stems from an enacted law or case law, such decision being thereby given the force of law. This tradition also requires lower courts to follow decisions of higher courts.

Common law systems pay tribute to the role of the judge and his law-giving functions within government, in competition and sometimes in derogation of the lawmaking function of the legislature (or of the framers and drafters in the case of written constitutions).

While the common law system is considered as a process built up by the gradual accretion of specific instances, where stare decisis is developed inductively as the judges reconcile a series of narrow rules emanating from precedents, civil law is all at once all-encompassing as the codifiers are supposed to have striven to make the Code complete and free of conflicting provisions, comprehensive and clear to prevent the judge from choosing between, filling the gaps or engaging in “lawmaking” in the guise of law interpreting.

The English declaratory theory of law championed by Sir William Blackstone, which holds that judges in common law jurisdictions only declare the law and have no discretion to make it, was as close as it could get to the civil law ideal. This was the theory obtaining in the United States at the time of the adoption of the U.S. constitution up until the late 19th century when common law activist rebelled against it.

Justice Oliver Wendell Holmes was among the first to demystify the Blackstonian principle but it was dean of Harvard School of Law Roscoe Pound, the founder of “sociological jurisprudence,” who was at the forefront of encouraging judges to mold the law like “social engineers” to conform to the needs of society. Legal realists in America, more radical than Pound, went as far as prodding judges to manipulate both the law and the facts when deciding cases.

Civil law judges are not completely immune from the temptation to commit the same judicial machinations given that the professed completeness, comprehensiveness and lucidity of the code are far from being punctilious; nonetheless, when fine-tuning the law, civil law judges are deemed to do it with conscious reverence for the code, and with due recognition of their secondary place relative to the code provisions and the legislature. In the process, the purpose of the code as the sole source of positive law is not defeated by such act of judicial refinement.

The dichotomy of the two dominant legal systems in the opinions of two outstanding Filipino jurists has been observed in the following pre-Lambino post:

Pre-martial law in the Philippines, the country might have seen the emergence of a philosophical differentiation between the Poundian sociological approach (which draws on social science in deciding cases) that then Justice Enrique Fernando might have fostered and the analytical formalism championed by Chief Justice Roberto Conception.

In J.M. Tuason v. Land Tenure Administration (1970) for example, Fernando has echoed Pound’s legal philosophy when he postulated that “(the constitution) is not so lacking in flexibility and suppleness that it may be a bar to measures, novel and unorthodox as they may appear to some, but nonetheless imperatively called for,” it being not “a printed finality but a dynamic process.”

On the other hand, where the 1935 Constitution provided that all the amendments to the constitution to be proposed must be submitted to the people in a single “election” or “plebiscite,” a constitutional interpretation, according to Chief Justice Roberto Concepcion in Tolentino v. COMELEC (1971), based on a strict literalist construction of “election” in the singular was considered sufficient to rule out a ratification process involving more than one plebiscites.

The healthy if conflictive philosophical encounter between the two great Filipino jurists who respected each other might have been upset by the Marcos dictatorship, culminating in Javellana v. The Executive Secretary (1973). In Javellana, six members of the Supreme Court (out of an 11-man tribunal) lifted the judicial obstacle to the Marcos constitution “being considered in force and effect.” Two justices, holding that the ultimate question was the acquiescence (acceptance) by the people of the constitution, which was a political question, joined with four others holding that the issue of the validity of the questioned presidential proclamation (announcing the ratification by the Filipino people of the Marcos constitution) was a political question.

Fernando who was as much syllogistic as sociological rejected not only “the mode employed for the ratification of the revised Constitution” but also the claim of public acquiescence. He explained: “The thought persists, however, that as yet sufficient time has not elapsed to be really certain. Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of popular will did take place during a period of martial law. It would have been different had there been that freedom of debate with the least interference, thus allowing a free market of ideas. If it were thus, it could be truly said that there was no barrier to liberty of choice.”

On the other hand, Concepcion simply applied his practical judgment: “Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the people in the citizens’ assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that there have been no such citizens’ assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines.” Finding the violation of the law clear, Concepcion so declared. The result was that Fernando and Concepcion found themselves on the same camp with justices Zaldivar and Teehankee who voted to oppose the shameful Marcos stratagem that every well-meaning Filipino already knew.

Like Fernando and Concepcion, Panganiban and Puno despite their opposing constitutional philosophies find themselves today on the same alliance upholding the Roco Law, which is at the heart of the Sigaw ng Bayan and ULAP petitions. Is there however any need to offer any elitist theory or philosophy of constitutional interpretation to resolve the obvious?

In Lambino v. The Commission on Elections (October 2006), Puno and Panganiban parted ways not on the “inadequacy” or adequacy of the Roco Law or in such a way as to stress further the foregoing dichotomy but basically, it seems, because of the tactical choice of remedy (certiorari and mandamus) pursued by the petitioners in somewhat nuanced constitutional law litigation. Simple declaratory relief - where the court only makes a declaration about the rights or duties of the parties without the issuance of executory process - in the light of the obtaining Santiago v. Comelec (1997) would have been a safer route away from resolving the issue of whether or not the Comelec committed grave abuse of discretion and yet forcing the Court to a revisiting of Santigao. But that won’t be the highlight for now, although my initial blog reaction to Lambino was the following:

The ironic thing is that the Puno opinion states the right law, the correct constitutional doctrine and is on the money on the authorities (both American and Philippine). Even the fine distinctions between “revisions” and “amendments” are cogently presented and indeed more reasoned that those in the main opinion.

Puno’s scholarship definitely outshines Tony Carpio’s. But where’s the rub? Well, it’s scholarly yet dumb. Dumb because after all the erudite paeans for “people power” and “direct” or “participatory” democracy, he ultimately decided to feed them to the wolves in the COMELEC . . . yes, the same pack who would have been condemned for their shameless operation in the Mega Pacific scam.

Philippine Constitutionalism would had been well served had the Puno and Carpio opinions been fused together and the justices were unanimous against the PIG (in a poke).

What seems quite striking is that Chief Justice Panganiban decided to join the majority to pay lip service to “people power” by effectively emasculating its implementation through people’s initiative. I am referring to the majority’s requirement that when it comes to complex amendments amounting to a revision a deliberative body is demanded for the purpose. Reading this requirement into the constitution of sovereignty is amendment by judicial fiat at the expense of people power. Non-deliberative bodies are incapable of informed judgment? Certainly like many political blogosphere habitués, Justice Tinga, alluding to the nocturnal council and the covert rule of the “demigods” that had produced an elitist American Constitution, was not convinced in this regard, and rightly so, as he paid tribute to the exchanges in the Internet blogosphere, among other public spaces in the Athenian mold.

On the other hand, speaking for a majority in Lambino, Justice Carpio, who in the main managed to avoid the highbrow schemes that had attended the machinations of the facts and the law by the majority in Javellana, prove to be as straightforward as Concepion and as biblically deferential to the fundamental law as a civil law judge – well, if only he had steered clear not from Santiago but from resolving the amendment/revision question.

In a different breadth, aside from the blunt admission by Carpio that “there can be no fixed rule on whether a change is an amendment or a revision,” the precedential law in the Philippines appears to be against his “green to red spectrum” formulation; indeed, even in Javellana there was well-neigh unanimous concurrence (or in fact the matter was simply taken for granted) that revision was permissible notwithstanding that the 1935 Constitution only spoke of amendments that, were it approved and ratified in a plebiscite, would form “part of this Constitution” according to its express language.

Moreover, when Carpio wrote “The present initiative is indisputably located at the far end of the red spectrum where revision begins,” he was merely telling but not showing how to calibrate whether a proposed amendment initiated by the people in the future will amount to a revision or a mere amendment except that the Court as the self-appointed gatekeeper arrogated unto itself the power to examine and review what essentially is a sovereign political act. The override was therefore unnecessary. In the meanwhile, the media hype was irresistible but there was no imperative at all to make a landmark out of Lambino.

Surely, if the initiative is found to be not of the people’s but of “the incumbent president” in the juridical sense (as the “citizen assemblies” were not in Javellana) even on the basis alone of the written and oral pleadings, how could there be compliance with the requirements of the Code, the constitution? If Santiago is case law or at least the Court’s injunction therein mandated is standing at the time of the disputed Comelec resolution, how could there be “grave abuse of discretion” on the part of the Comelec? So, whether Carpio has proceeded in the civil law or the common law tradition, that was no way for the PIG to escape the skewer.

'Probable cause' for a failing Philippine state

A pro-Arroyo and lawyer-sounding commenter in the blogsite of Filipino top political blogger mlq3 has made the following post: GMA appears to have said “I’m sorry” for a phone conversation that she should not have participated in. What is wrong with that? Did she admit “cheating” or is that a figment of (one’s) imagination?

The phone conversation between President Arroyo and Commission on Elections (COMELEC) Commissioner Garciliano captured in the infamous “Garci tapes” may not constitute an “admission” of cheating in the legal sense but remaining unexplained save for Arroyo’s “I’m sorry” piece, it is proof sufficient to establish a “probable cause” for the impeachable offense of “betrayal of public trust” and enough to indict (impeach) Arroyo and send her to face impeachment trial before the Senate.

Probable cause is not “proof beyond reasonable doubt” but only a reasonable ground for belief that an offense has been committed and that the person to be charged for the commission of the offense may have committed it.

The President talking by telephone to a COMELEC commissioner during the relevant election period in a manner suggestive, based on the entire context of the conversation, that she wanted about a million votes by which to win convincingly in the presidential election is unquestionably a probable cause for “betrayal of public trust.”

In the same manner, a 10 to 5 Supreme Court decision in the Infotech case finding that the resolution of the Commission on Election awarding a billion-peso contract to Mega Pacific (to automate the Philippine election system) to be “in clear violation of law and jurisprudence,” and “in reckless disregard of its own bidding rules and procedure” is clearly a probable cause for “graft and corruption” and/or for serious misconduct in office amounting to “betrayal of public trust” at least for the purpose of initiating impeachment against the commissioners.

In the failed impeachments of Arroyo, the anti-impeachment members of the House betrayed and renounced their role as “representatives of the people,” the overwhelming majority of whom by some credible and reliable surveys would want Arroyo to explain herself in a full-dress impeachment trial and resolve the issue of legitimacy once and for all. In the failure to prosecute those whom the Supreme Court has found to have acted illegally, fraudulently and unconscionably in the Infotech case, the Ombudsman and her Deputies, by choosing to defy the Court’s finding, betrayed and renounced their constitutionally mandated role as “protectors of the people” (tanodbayan).

Marcos’ dictatorship, like Hitler’s, has destroyed not only long-established institutions in the Philippines such as the Senate and the Supreme Court theretofore commonly regarded for their independence but also well-meaning Filipinos and national leaders theretofore generally respected for their integrity.

Today, in consequence of a state losing its political nerve because of misuse of its power system by different dysfunctional agencies and personalities, Arroyo as the one at the wheel is running roughshod with impunity, much like Marcos or Hitler, even without formally proclaiming martial law or Nazism.

The extra-judicial killings of journalists, activists and militants as well as the capricious disregard of the freedom of speech and the wanton curtailment of the right of peaceful assembly, which are revealing tell-tale signs of a failing state, still strike awe. There are nevertheless acts or omissions by state agents that are equally polity-shattering but seem to not inspire dread anymore possibly owing to the relentless desensitization of the public mind to what ought to be respectable standards of official conduct.

For example, press secretary and presidential spokesman Ignacio Bunye in a Senate budget hearing, seemingly caught off guard, cavalierly admitted spending taxpayers’ money to propagate the so-called people’s initiative. But then Bunye unabashedly stuck to his script in a subsequent press release and provided the lame excuse for the expenditure by stressing that “it is the inherent right of the people to be informed on matters of vital importance to their future,” and therefore “there is nothing wrong with the government information agencies working to disseminate information and educate the masses on the true meaning of People’s Initiative (PI) for Charter change.” These statements were given with unfortunate temerity as official talking points.

As Bunye may very well know, there is a case pending before the Supreme Court wherein squarely presented for resolution is the question: Whether the Charter change initiative is truly of the people’s pursuant to Section 2, Article XVII of the Constitution, or in fact in the private interests of some enterprising politicians’ like House Speaker De Venecia (who would want to be the head of government without running for the office of the president) or Arroyo herself (who may be personally interested to extend her term of office beyond the current constitutional limits).

Just as the “Garci tapes” are a probable cause for the impeachable offense of betrayal of public trust on the part of President Arroyo and the Supreme Court’s finding of unconscionable and glaring illegality is a probable cause for graft and corruption on the part of the COMELEC commissioners and their cohorts, so are the Bunye statements a probable cause for a criminal misappropriation of public funds. Why are we not hearing anything about the Ombudsman investigating on its own such an admission by Bunye, a public officer, which appears to be “illegal, unjust, improper or inefficient”?

The institutional cost of Arroyo clinging to power, come hail and high water to the republic, amidst the “Garci tapes” scandal has become extremely prohibitive. Aside from the prostitution of the electoral body and Philippine military during the last presidential election as indicated in the tapes and testified to by high-ranking military officers of solid or daring scruples, the other obvious casualty of course has been the built-in checks-and-balances mechanism of impeachment when the pro-Arroyo members of the House opted to hide behind the narrow reading or misreading of the law or the brutal application of technicality. But the Catholic Church hierarchy has not been far behind; under the humiliating shadow of Palace payola to some bishops, the hierarchy has joined the chorus to bury the tapes for the “common good” while ignoring the clamor of the flock. The middling Filipino, on the other hand, which like the Church was once at the core of two great upheavals, has cast its lot with the “let’s move on” bandwagon choosing to sweep the tapes under the rug or let the matter melt into thin air as if it were a “figment of one’s imagination.” The first uprising was the birth pangs of a people-powered Charter of individual and collective rights among which is the people’s initiative. The fruition of people’s initiative as an institution is under extreme duress today by the reckless pursuit of self-interest by people in high office who do not blush in public anymore even as they lie, cheat or deceive the people.

Now, Ombudsman Merciditas Gutierez, whose constitutional office has likewise yet to emerge as a veritable institution in the judicial system, is willing to shame her authority both as the Ombudsman and as an officer of the court by feigning an unconventional definition of probable cause in the callous manner the House has dealt with the “Garci tapes.” Yet, it may be conceded here that under normal circumstances the Ombudsman’s decision whether or not to prosecute in a given case is a final resolution, which may not subject be to judicial review. Given however that the Supreme Court had made a prior prima facie finding of illegality and fraud that does not appear to be merely whimsical but carefully and logically reasoned, the dismissal by the Ombudsman of the case against the COMELEC commissioners and the other respondents in defiance of such finding by the Court misses the whole point: in the final analysis what is at stake at this juncture is the public perception of the integrity of the Philippine judicial system with the Highest Court of the land being at the helm. Had the case been promptly elevated for trial instead of being dismissed supposedly for lack of probable cause, the respondents (as Arroyo in the impeachment cases) would still have a full day in court. What then is the motivation of the Ombudsman other than to spite the Supreme Court?

On the other hand, what is the actuation of official sounding board Ignacio Bunye a probable cause for in the overall scheme of things? By many accounts Bunye is symptomatic of this creeping realization: “Absolute power corrupts and power corrupts absolutely.”

Sigaw ng konsiyensia

Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP), both Charter change proponents, have asked the Philippine Supreme Court to reverse a ruling by Commission on Elections (COMELEC) rejecting their petitions to propose amendments to the Constitution via a people’s initiative. The initiative is being pursued on the basis of the same enabling law (the Roco Law) the Supreme Court declared nine years ago in Santiago v. COMELEC to be inadequate for the purpose. The petitioners are seeking a reversal of the Santiago ruling.

Even before the petitions were filed, what I had weighed in here and here is for the Supreme Court to rule swiftly in this manner: 1) reverse Santiago by recognizing and upholding People’s Initiative under the Roco Law in deference to the people-powered character of the 1987 Constitution, and 2) take judicial notice - which simply recognizes a fact of obvious public or common knowledge - that the Sigaw ng Bayan and UPLAP initiatives are anything but the people’s.

Reversing Santiago and itself is matter of humility on the part of the Supreme Court; while upholding the Roco Law is also an act of respect that the Court under the Constitution is obligated to accord to the legislature, a co-equal branch of the government. On the other hand, taking judicial notice that the so-called initiative is in fact not of the people’s is both a question of plain common sense and an affair of the conscience.

“A due regard and respect to the legislature, a co-equal and coordinate branch of government, should counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional,” said Justice Reynato Puno in his dissent in Santiago. Puno was somehow explaining how the court-invented “political question” doctrine should operate as regards the Court’s relationship with the legislature flowing as it should from the fundamental tenet underpinning the tripartite system of our constitutional regime.

The doctrine, which distinguishes the role of the unelected judiciary from those of the elected branches of the government, the legislature and the executive, has no precise formulation except that to prevent encroaching upon the two political branches of the government, the court should decline to rule on matters best resolved through the political process. Ultimately, the electors under the doctrine make the final decision so that if the law or its enforcement is unwise or inefficacious, then they ought to vote for or against those involved in the political decision in the next electoral reckoning. Moreover, when what’s at issue is a direct sovereign act by the people, the majoritarian principle requires that it be entitled to an even greater deference from the court.

Despite the myth that the judiciary is supposed to be apolitical or to proceed with the cold impartiality of a neutral arbiter, the interpretation of the Constitution by the Supreme Court is a political, nay, partisan act. As such, decisions rendered by the Court particularly those that involve the power and structure of government are exercises in “applied politics,” often with the opinion-writer making findings according to his or her own political predilections or theories of constitutional interpretation.

For instance, Artemio Panganiban, the present Chief Justice, is of the position that there is now “firmly embedded in the Constitution” an “activist mandate” to the Philippine Supreme Court. He asks: “Are the courts required to pass upon each and every act of the political branches of government?” One would hope his answer is not in the affirmative for that would be a bit too presumptuous. Will the Court review under this supposed “activist mandate” an order by the President as commander-in-chief for a naval blockade in Spratlys Islands or a congressional declaration of war against an invading foreign country? The point being driven of course is that “judicial activism” is a state of mind of the individual justice and not a constitutional mandate, the so-called expanded power of the Court under Article VIII, Sec.1, paragraph 2 of the Constitution notwithstanding.

In Francisco v. The House of Representatives (2003) Justice Puno expressed a contrarian preference in this manner: “I prefer to take the contextual approach of the coordinacy theory which considers the constitution’s allocation of decision-making authority, the constitution’s judgments as to the relative risks of action and inaction by each branch of government, and the fears and aspirations embodied in the different provisions of the constitution. The contextual approach better attends to the specific character of particular constitutional provisions and calibrates deference or restraint accordingly on a case to case basis. In doing so, it allows the legislature adequate leeway to carry out their constitutional duties while at the same time ensuring that any abuse does not undermine important constitutional principles.”

One of the first to become a judicial activist was Justice Oliver Wendell Holmes who sat on the U.S. Supreme Court in the first quarter of the 21st Century. He challenged the long-standing school of thought founded by the English jurist Blackstone that judges should only discover and declare the law. “The prophecies of what the courts will do in fact and nothing more pretentious,” Holmes wrote, “are what I mean by the law.” To him, the life of the law is experience not logic. Perhaps, more revolutionary than Holmes who presumed that judges do make laws was Roscoe Pound, former dean of Harvard Law School, who went as far as suggesting that judges as “social engineers” should manipulate the law according to the needs of society.

Pre-martial law in the Philippines, the country might have seen the emergence of a philosophical differentiation between the Poundian sociological approach (which draws on social science in deciding cases) that then Justice Enrique Fernando might have fostered and the analytical formalism championed by Chief Justice Roberto Conception.

In J.M. Tuason v. Land Tenure Administration (1970) for example, Fernando has echoed Pound’s legal philosophy when he postulated that “(the constitution) is not so lacking in flexibility and suppleness that it may be a bar to measures, novel and unorthodox as they may appear to some, but nonetheless imperatively called for,” it being not “a printed finality but a dynamic process.”

On the other hand, where the 1935 Constitution provided that all the amendments to the constitution to be proposed must be submitted to the people in a single “election” or “plebiscite,” a constitutional interpretation, according to Chief Justice Roberto Concepcion in Tolentino v. COMELEC (1971), based on a strict literalist construction of “election” in the singular was considered sufficient to rule out a ratification process involving more than one plebiscites.

The healthy if conflictive philosophical encounter between the two great Filipino jurists who respected each other might have been upset by the Marcos dictatorship, culminating in Javellana v. The Executive Secretary (1973). In Javellana, six members of the Supreme Court (out of an 11-man tribunal) lifted the judicial obstacle to the Marcos constitution “being considered in force and effect.” Two justices, holding that the ultimate question was the acquiescence (acceptance) by the people of the constitution, which was a political question, joined with four others holding that the issue of the validity of the questioned presidential proclamation (announcing the ratification by the Filipino people of the Marcos constitution) was a political question.

Fernando who was as much syllogistic as sociological rejected not only “the mode employed for the ratification of the revised Constitution” but also the claim of public acquiescence. He explained: “The thought persists, however, that as yet sufficient time has not elapsed to be really certain. Nor is this all. There is for me an obstacle to the petitions being dismissed for such ascertainment of popular will did take place during a period of martial law. It would have been different had there been that freedom of debate with the least interference, thus allowing a free market of ideas. If it were thus, it could be truly said that there was no barrier to liberty of choice.”

On the other hand, Concepcion simply applied his practical judgment: “Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by the people in the citizens’ assemblies all over the Philippines, when it is, to my mind, a matter of judicial knowledge that there have been no such citizens’ assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines.” Finding the violation of the law clear, Concepcion so declared. The result was that Fernando and Concepcion found themselves on the same camp with justices Zaldivar and Teehankee who voted to oppose the shameful Marcos stratagem that every well-meaning Filipino already knew.

Like Fernando and Concepcion, Panganiban and Puno despite their opposing constitutional philosophies find themselves today on the same alliance upholding the Roco Law, which is at the heart of the Sigaw ng Bayan and ULAP petitions. Is there however any need to offer any elitist theory or philosophy of constitutional interpretation to resolve the obvious?

Justice Story’s more simplistic principle is certainly of the moment: “A constitution of government is addressed to the common sense of the people, and never was designed for trials of logical skills or visionary speculation.” Isn’t common sense or plain conscience enough to dispose of another patent Marcosian attempt to turn the political house upside down? What’s keeping the Court then if politicians as judges are supposed to have plenty of both?