CURRENT SOCIAL CONCERNS
Elpidio V. Peria
24 November 2012
As reported by the Manila Times recently, it seems some Justices in the Supreme Court and the Court of Appeals have expressed their misgivings and sense of demoralization with the recent appointments by President Noynoy Aquino of Chief Justice Sereno and Justice Marvic Leonen to the Supreme Court , as these jurists think these selections were made with political considerations in mind rather than for the appointees’s sheer excellence in the law profession. According to these justices and as reported by the newspaper, these Presidential appointees were “inexperienced” in the judiciary and are both “legal lightweights”.
These criticisms should be taken for what it is, personal opinions tinged with sourgraping, but they have a point, it would have been worthwhile if the vetting process for judicial posts administered by the Judicial and Bar Council would have delved deeper on the judicial philosophies of these nominees and not just be a rote itemization of their academic credentials and recent professional accomplishments.
But is there such a thing as a clearly articulated judicial philosophy that can be gleaned from all the decisions of the Supreme Court dating back from its precursors during the Spanish and American colonial eras and can we really identify our Pinoy Supreme Court Justices by their judicial philosophies?
Perhaps there is but these philosophies may not just be as clearly articulated here in the Philippines in much the same way as the US Supreme Court where the ideologies and beliefs of sitting Supreme Court Justices are regularly analyzed and figured out on the basis of their professional background, writings before they were appointed, stance on public issues and current decisions or what we call here as ponencias on key issues litigated before them.
So, in the US, we have conservatives in the mold of Justice Antonin Scalia who wants to interpret provisions of the US Constitution used in testing statutes under litigation in the US Supreme Court on the basis of their original meaning, based on how they were intended by the Constitution’s original framers. But they also have an activist judge in the mold of Justice William O. Douglas who read from the “penumbras” and “emanations” of the US Constitution’s Bill of Rights a certain right of privacy for married couples in the case of Griswold v. Connecticut, and this right of marital privacy became the basis later for a woman’s right of privacy which led to her right to abortion as enunciated in the still controversial decision of Roe v. Wade back in 1973.
So, based on his professional background and writings and stance on public issues, what could be the judicial philosophy of Justice Mario Victor M.V.F Leonen, but if not for the hubris of the effort, can this be really figured out with clarity at all?
It should be stated at the outset that this will be a difficult and if it should be said now even, a futile exercise to undertake, especially in the Philippine setting where this is not a regular effort done on a body of Supreme Court decisions much more so on the individual Justices and used as a basis for assessing his or her impact on Philippine jurisprudence.
But perhaps, an attempt should be made still so that this will become a habit later, and this may be picked up by the Judicial and Bar Council, and this may be used regularly as a part of their methodology in assessing a Justice’s fitness to the judicial position. Or perhaps they may already be doing this, but it is not just reported well in the papers for people to figure out and make their own judgments.
By way of disclosure, Justice Leonen was my teacher in Agrarian Reform law during my sophomore or was it junior year, I can’t recall now, in the UP College of Law, but before we delved on the cases, he made us read law journal articles and other non-law related write-ups, perhaps to prepare us to analyze and understand the cases later. Some of these articles he made us read were articles on critical legal studies, and though I cannot recall now what the theses of those readings were, those readings pointed out that the law is a product of social relations, thus, what he was lecturing us then was that our subject matter then, agrarian reform law, and we just had then the newly-passed Comprehensive Agrarian Reform Program (CARP, or Republic Act 6657), the way the provisions of the law were written was that they reflected more the interests of the landlords who were then the majority holders of position in the Philippine Congress which passed the law. Even the interpretations of these laws that were the subject of the cases we were studying then in agrarian reform law were sometimes bleak, since even the Justices writing the decisions, also reflect the kind of persons they are, who they were before, and to whose interests they are beholden to. I remember being pessimistic in some of the cases he was explaining to us, since these decisions reflected also the biases and the tendencies of the Justices and these interpretations then, like that one on just compensation, reflect more the interests of the landlord, rather than that of the tenant.
After that, he got famous for defending a farmer leader who was jailed, and students who took his Remedial law class were asked, what will you get from an instructor who has a client that was jailed, but he got better teaching the subject year after year since then and when we became law practitioners ourselves, whether your client got jailed or not is no longer your fault, but what mattered was how you handled the case before the magistrate who had the discretion in ruling for or against your client and there are built-in mechanisms for appeal, that the loser in a case has all chances in the system to fight the loss and seek to overturn the adverse decision, should the client decide to do so.
He was also one of the co-founders of a law and policy center on natural resources, which became a template later on how a law and policy center should be run, and that think tank became the crucible on which many progressive lawyers and development workers on natural resources and indigenous peoples rights first found their mettle and has since moved on to other careers along the same lines.
I happened to ask him in one public forum what should be done to indigenous peoples who themselves find ways to sell or transfer their lands to private hands, and his answer was, the Indigenous Peoples Rights Act has put at the forefront the indigenous peoples’ right to self-determination, thus, if they decide that way, there’s not much you can do about it, it’s their decision.
Will the critical legal studies template now apply to Justice Leonen’s ponencias in the Supreme Court? We don’t actually know till we get to read his first decision, and hopefully, the practice of figuring out a Supreme Court Justice’s judicial philosophy should start in earnest with that kind of event that will surely arrive in the coming days.