Sunday, October 29, 2006

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.

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