Supreme Court Decisions As English Grammar and Composition

Because I belong to the tribe of human beings called Physicists (we built the Core of the Internet and invented the World Wide Web!) I am proud to say that the laws of nature and mathematics with which we must work, appear to be in far better shape than the kind of Laws that Supreme Courts write long complicated decisions about. But that may only be because people are a lot more complicated and unpredictable than molecules and neutron stars, especially when Presidents, full of hubris and heedlessness, wantonly violate the Law, and the rest of us can't seem to do anything about it. Not even the Supreme Court!

Yes, despite many revolutionary and wonderful things going on in the world of science and technology, this weblog has been mainly preoccupied in its first few months of life, with politics and the Law, with religions and constitutions, with terror and war, perhaps because there ARE more urgent things for even scientists to care and blog about. Things like freedom of information, speech and assembly, things like freedom of the press, and the right of the public to know what their government has been doing. Things that are the essential ingredients of a free and open democratic society. Without such a society, we cannot even hope to engage in the quintessentially human endeavours like science and education, art and music and poetry and religion, and the other tasks involved in nation building. Most of all, without a fundamental framework of justice and liberty for all, there cannot be peace or stability in any society.

Because of the particular political situation that has arisen in the Philippines under President Gloria Macapagal Arroyo, Constitutional issues have assumed central importance, as the Chief Executive has displayed a willingness to test the limits of Constitutional government in the name of personal political survival. After a year of devastating strife between the President and a determined democratic Opposition composed largely of the President's erstwhile allies and supporters in civil and political society, the President's chickens are coming home to roost, as the Supreme Court chips away at three big bricks of the Palace's stonewall.

Now, the Philippine Supreme Court, the highest court in the land, has been in session in the cool aerie of Baguio City, the Summer Capital. The High Court has displayed an admirable productivity while in the High Country, perhaps by virture of escaping the lowland oven of heat-misery that the Archipelago turns into at this time of the year (which the inhabitants rightly call "summer"--though it is asynchronous with a similar season in the temperate parts of the earth.) But the Panganiban Court during the last month or so has treated the nation to a rare trio of evidently momentous Decisions on three highly controversial matters, two of them six months old but we shall let that pass.

Writing Supreme Court decisions is hard work, Chief Justice Artemio Panganiban told reporters with evident sincerity during a break in the Court's deliberations, "because they must also write with authority."

As writers, webloggers have gotta sympathize with that. CJ Panganiban is probably referring to all the Footnotes that represent the citations and quotations in the bodies of these decisions, from Philippine and other jurisprudence, especially American. But take a look at some statistics about the three recent Supreme Court Decisions:

109 Footnotes in the EO464 Decision (16,405 words)
26 Footnotes in the CPR/BP880 Decision (12,369 words)
158 Footnotes for the PP1017 Decision. (24,625 words)

(For comparison purposes, a typical Op/Ed column in a broadsheet like the Inquirer or Manila Times runs between 500 and 1000 words, shorter at the Manila Bulletin, unbearably longer at the Philippine Star.

One has to marvel too, at the high quality of the writing in the three recent cases decided by the Supreme Court. Statements and arguments in the body of the decision are amply supported by authorities and quotations in the Footnotes. In many ways this is like any well-written weblog, which usually has content backed up by links to material that supports or illustrates the points being made.

Non lawyers should really not be intimidated by Supreme Court Decisions, for they are but a genre of English Composition called rhetorical writing that bloggers are very familiar with.

One thing I have noticed about authorship in the Decisions is that although a single Justice writes the Decision, the work of many hands is quite obvious to people like editors who easily detect changes in the style and tone of the judicial prose from paragraph to paragraph.

It helps to know about the various "rules of construction" that ponentes and justices adhere to, in order to follow many lines of argument and reasoning about precedents and other jurisprudence. There is in some sense, very little that is truly creative or original in any given Supreme Court decision. The tradition in the Philippine Court is apparently that enunciated in Javellana -- to rely heavily on precedent and not to disturb what has been previously decided. Each successive decision must build on the whole superstructure that has already been erected before it in Constitutions, statutes and precedents.

Morphologically speaking, a Supreme Court decision is actually less complicated than a modern weblog! There is a kind of "header" that presents the Petitioners versus the respondents -- a kind of Title and Dramatis Personae Listing as one often finds in plays and other such divertissements. Then there a lengthy Statement of the Facts of the case which ends in a succinct statement of WHAT the issues are exactly, that the rest of the decision will attempt to decide. Then begins a long careful review of laws and previous decisions, and how they apply to the Facts. After weighing and balancing the various rights, privileges, interests and positions of the petitioners and respondents, the Decision comes to its Disposative portion, where judgment is rendered. Their value as additions to the edifice of the Law will be debated for years to come.

But I am happy just to read these Decisions as freshly written essays by intelligent men and women on timely issues of the day, and not have to run into grammatical or spelling errors. Indeed, there is downright fine prose in some of these. We must give the Justices of the Philippine Supreme Court that much. I guess my favorite of the three is Justice Conchita Carpio Morales in Senate v. Ermita.

The Supreme Court Website has done a good job of immediately posting these Decisions of the Court as soon as they are promulgated. Although the Court Administrator Ishmael Kahn usually beats their webmaster to it by contacting mass media with a summary of the decisions, there is still nothing like the text of the decision in toto -- otherwise one falls into the spin cycle, which is furiously active these days.

I took the liberty of referring to these decisions according to the customary practice of calling a decision "A versus B" where A is the first petitioner and B is the respondent. Lo and behold, the resulting case names neatly reflect the substance of the issue at bar in the three recent cases before the Court involving EO464, CPR-BP880 and PP 1017:

(1) SENATE VERSUS ERMITA (EO464) Separation of Powers is the underlying theme of Senate versus Ermita, the unanimous decision (14-0) partially striking down Executive Order No. 464, which was a gag rule on executive department heads in Pres. Arroyo's Cabinet. Executive Privilege and the Legislative Power of Inquiry and Oversight are the separate powers in antagonism. Weighed in the balance are the rights and duties of the Chief Executive to control privileged information known to public and private persons against the "Right of the Public to Know when in Congress assembled." The term "Solomonic Decision" recently made an appearance in the current lexicon because of Senate v. Ermita. I certainly thought King Solomon Cut the Baby In Half. The term "Solomonic Decision" is applicable as follows. Recall that King Solomon proposed to cut an infant in half to settle a dispute between two women claiming it as her child. Seeing that one of them would rather give up her claim than agree to kill the baby, King Solomon awards it to her, reasoning she must be its true mother! In this case, however, the Supreme Court as King Solomon actually does cut the baby right between the (2a) and the (2b). Notice that Senate v. Ermita strikes down Sections 2b and 3 of EO464 thereby declaring as illegal the a priori prohibition on attendance at Congress hearings of virtually all Executive Dept. employees below the level of department heads, but upholds the "President's opinion" on Executive Privilege expressed in Sections 1 and 2a. To the Senate goes the booby prize that they can go ahead a summon all the lower level officials they want to, but Department Heads are now given a negotiating point with which to possibly stymie any call to testify before Congress: Is your hearing, Mr. Senator or Mr. Congressman, in aid-of-legislation or for oversight? So what's the baby? Why the Power of Inquiry itself, which has just been abridged, in my humble opinion, by Senate v. Ermita. And should they be subpoenaed or shanghaied to attend, there is still the whole plethora and rich armamentarium of judicial instruction just rendered to invoke almighty Executive Privilege! Hey, and if they can't agree, they can always go back to Court. Six months of gridlock later ... (you see how this works?). By the way, in the United States jurisdiction, the distinction involving the question hour does not even seem to exist, as power to make laws is seen as being ONE with the power of inquiry, and the power of inquiry as ONE with the power of oversight. (Someone please enlighten us on this...). It seems to make sense that since Executive Privilege covers only privileged information, that privileged information could easily reside in the person of someone in the Section 2b category. Therefore I believe Executive Privilege can potentially cover such persons' testimonies before Congress. Consequently, there should also be no limit to the Congress' power to summon any executive department official to any House or Senate hearing, except for the President. Also, any executive department official, wanting to communicate directly with the House or Senate, should not need the President's permission if it involves personal knowledge of violations of law. Such officials are covered in the US jurisdiction by many so called anti-gag and Whistleblower Protection Laws.

(2) BAYAN VERSUS ERMITA (CPR-BP880) Here the valuable early observation is from Dean Raul Pangalangan of the University of the Philippines Law School, who notes the use of a complex injunction by the Court to force the creation of Freedom Parks in all towns and municipalities. Though the vote was also unanimous (13-0), I think this Decision was big win for Manila Capitol Region chief of police, Dir. Vidal Querol, who revealed on Dong Puno Live on ABSCBN ANC last night thbat it was he who resurrected Batas Pambansa BP880, the Public Assembly Law and used it as the guiding legislation of his mass rally control policy since before the eruption of the Gloriagate scandal last year. That the Court has upheld its Constitutionality was something Chief Querol could justifiably rejoice about and hold up as proof that this Decision went to the Police. The "Calibrated Pre-emptive Response" policy, which was indeed struck down in the decision, was a convenient bone to throw to petitioners, since it was in the final analysis, merely a label used in a Press Release. In the deftest escape of a Supreme Court strikedown ever seen, the Palace has blithely claimed that CPR is really just Maximum Tolerance by another name and that it is BP880 that is important anyway. The Police were able to keep May Day at bay with this Decision firmly on their side. To the extent that leftist mass organizations have adopted a fairly sophisticated system of planning, propagandizing and holding marches and demonstrations as part of their "legal urban struggle" on every issue they engage, they serve as canaries in the mine shaft for the civil liberties of all citizens vis-a-vis police tactics and practice. Given the objectives of the Left in their use of "People Power" --a bus they've several times missed or been thrown off of--I doubt that even the establishment of Freedom Parks will stop them from using peaceful assembly as a weapon against the State in aid of Joma's Maoist revolution.

(3) DAVID VERSUS GLORIA MACAPAGAL ARROYO (PP 1017)
UP Profs. Raul Pangalangan and Harry Roque of the Law School were on tv last night discussing the 11-3 Supreme Court decision on Proclamation 1017. They are both happier about this decision I think, than either of the two above. Here, about the only thing the President is cut some slack on by the Court is her accurate quotation of the Commander-in-chief provision of the 1987 Constitution vesting her with the power to call out the Armed Forces in order to quell lawless violence and only lawless violence as the Court emphasizes. But as Dean Pangalangan points out, in each of the wherefores and howevers that follow, the Supreme Court strikes down as unconstitutional and illegal a whole series of acts and pronouncements allegedly done in obedience to PP 1017, the February 24 presidential proclamation declaring a state of national emergency and recalling Marcos' martial law era behavior. In fact a I learned a new term to describe such Constitutional aberrations: ULTRA VIRES which translates to BAD GURRLL! BAADD GURRLLL!

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations.

We had to wait months for this? Heck the bloggers covered most of this ground way back in February. Here's where we were in early March when I predicted Proclamation 1017 would be rendered moot and academic not by the FIAT of the Supreme Court, but by their long delay before deciding such a "transcendental issue." Although the Court says at the beginning of its summation that

In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed “if the May 1 rallies” become “unruly and violent.” Consequently, the transcendental issues raised by the parties should not be “evaded;” they must now be resolved to prevent future constitutional aberration.

I would be happy to admit that my prediction was off, and happily rejoice with Raul and Harry, except for the way that Rick Saludo seemed to be sneering at everybody during his interview on ABSCBN ANC last night and the generally remorseless tone of Bunye, Gonzalez, Ermita and the rest of the unrepentant President's men. Yesterday the newspaper headlines carried the Palace's show of open defiance to the EO464 ruling, as three Cabinet officers snubbed a Senate hearing in aid of legislation.

As if nothing's happened and they haven't been slammed by the Supreme Court for screwing the pooch all along.

As for the Supreme Court, it's still got a long, long way to go before Moral Authority sets in to back up its Decisions and makes them effective in the world of molecules and human beings.

THAT is not automatic you know!