Foreword
If I recall correctly, it was on July 15, 2006, when Chief Justice Artemio V. Panganiban spoke to me
about writing the Foreword to his eleventh and last book while a sitting member
of the Supreme Court. I felt so touched and moved by his gesture I just
kept quiet. I would allow him, I told myself, to change his mind, should
he want to.
But a formal letter dated July 20, 2006, confirming his request, ruled out this
possibility. He stressed a fact I could not deny: I had written the
Preface to his first book - Love God, Serve Man – a year before he was
appointed to the High Court. I now quote his letter: “I thought I
would request you to write the Foreword to my last book as a sitting justice of
the Court.” The quoted portion might, in a subtle sense, qualify as a non
sequitur. Obviously, others, perhaps better situated, could write the
Foreword. But how do I say that to a Chief Justice, without being somehow
guilty of false humility?
I
In any case, there are some facts that are worth repeating in the case of Chief
Justice Panganiban, whom I have fondly called Art
since his student days:
In evaluating President GMA’s appointment of Art in
December 2005, two facts that can neither be changed nor erased stand out: (1)
this is the first time a poor man’s law school, the FEU Institute of Law, ever
produced a Chief Justice since its foundation in 1930;
(2) also, this is the first time a person born poor, orphaned while
studying in school, a former newsboy and bootblack, from Sampaloc,
Manila, rose to become Chief Justice of the nation.
Incidentally, from Chief Justice Cayetano Arellano in
August 1901 up to Chief Justice Ramon Avanceña before
the outbreak of the Pacific War in December 1941, or a long period of 40 years;
from Chief Justice Manuel V. Moran in 1945 to Chief Justice Roberto Concepcion until Ferdinand Marcos declared martial law in
September 1972, or a turbulent period covering 27 years; and after the People
Power Revolution of February 25, 1986, from Chief Justice Claudio Teehankee to Chief Justice Davide,
Jr., who retired in December 2005, no one came from the ranks of the very poor
– until Art Panganiban was formally appointed by the
President on December 21, 2005.
On December 7, 2006, Chief Justice Art will reach 70 and forthwith retire from
his position of honor, as many would probably say. But the honor, in
Art’s case, belongs to the person holding the position, not the position
regardless of the person.
The
Five Pressing Problems
of Our System of
Justice
Whether one is an impartial observer or a habitual faultfinder, here or abroad,
the first thing one asks about our system of justice may involve one or more of
these traits: corruption, lack of independence, incompetence, delay or
inefficiency and no access by the poor.
Chapter
10 discusses what he has done as a jurist to solve these problems. And
because he considers the problem of delay very important – in fact, there are
so many cases that have been pending in the Supreme Court for decades, despite
the time limitations set forth in the 1987 Constitution – he created a
“Committee on Zero Backlog,” chaired by Senior Justice Reynato
Puno to immediately monitor the flow of cases and to
resolve the “old” ones.
Chief Justice Panganiban is not awed by all sorts of
criticisms, whether from friends, well-wishers, skeptics, or cynics. As
soon as he was appointed by President Gloria Macapagal-Arroyo
(GMA), who has been berated by political foes for her “authoritarian
inclinations,” former Senate President Franklin Drilon,
a leading critic of GMA, conceded the Chief Justice was “extremely qualified”
since he had the necessary attributes – an unblemished record, integrity,
intellect and industry; nevertheless, the people will be watching “the
independence of the Panganiban court.” Which is
why his performance since he assumed the highest position in the judiciary, as
well as his latest book, is right on the nose.
Decision-Writing
Style
In his second book, Justice and Faith – a collection of Justice Panganiban’s selected writings and speeches for the period
1995-1997 – there are relevant passages at the beginning of the opus that
speak of his decision-writing style:
“. . . I have endeavored to write in simple English, comprehensible as much as
possible to a college graduate. I want to be understood not only by the
legal profession but also by the parties themselves, especially by persons
accused of crimes, and by the public at large as regards cases involving the
interpretation of the Constitution. As I wrote in my Dissenting Opinion
in Marcos:
‘The Constitution is the most basic law of the land. It enshrines the
most cherished aspirations and ideals of the population at large. It is
not a document reserved only for scholarly disquisitions by the most eminent
legal minds of the land. The Constitution is not intended only for
lawyers to quibble over. . . . Its contents and words should be interpreted in
the sense understood by ordinary men and women who place their lives on the
line in its defense and who pin their hopes for a better life on its
fulfillment.’
“More than lingual elegance . . . I strive for simplicity, clarity and
precision in nuances and shades of meanings.”
Not
for him are the polished style and clever turn of phrases with which some
justices – before and after Art’s appointment to the High Court in October 1995
– try to impress one another and the legal profession.
Considering that our Supreme Court was patterned, with some modification, after
that of the United States Supreme Court, whose members are well-versed in
English, how do we compare with them in point of style and content?
Distinguished justices in the
Holmes is best remembered for “his wit, style and ability to sum up an argument
in a pithy epigram.” Many judges, lawyers and law professors in
Anglo-American jurisdictions, as well as in countries like the
In Constitutional law cases, terms and concepts keep on changing and evolving.
Holmes believed that such terms as “freedom of speech” and “due process of
law,” embodied certain “fundamental principles of right” that should be viewed
from the perspective of the common law and from centuries of experience.
Because individual liberty lies at the very core of the American constitutional
system, he wrote what has become a classic: “A word is not a crystal,
transparent and unchanging, but the skin of a
living thought.”
He laid down the “clear and present danger” rule
to protect honest expressions of opinion. “The best test of truth,” said
Holmes in the 1919 case Abrams v. United States, “is the power of
thought to get itself accepted in the competition of
the market, and that truth is the only group upon which our wishes can be
safely carried out.” In other words, political dissent, honestly
expressed by a citizen, must be protected. This may well correspond to the
emphasis of Chief Justice Art on Liberty, the first part of what he calls his
judicial philosophy.
While on the New York Court of Appeals, Benjamin N. Cardozo
became the most celebrated common law judge of
his time. In contract law, he exerted his efforts to instill fairness into
ambiguous contracts rather than permitting contracts to entrap one of the parties.
He was invited to deliver the Storrs Lectures at
After he was appointed by President Hoover in 1932 to the Supreme Court,
replacing Holmes, he became a famous dissenter, together with Brandeis and
Stone. He contributed to the redefinition of a constitutional rationale
in Palko v. Connecticut (1937) in which
Cardozo’s formula, “the essence of a scheme of
ordered liberty,” became the basis for incorporating most of the Bill of Rights
into the Fourteenth Amendment (the due process clause).
It was Brandeis, a well-known legal practitioner and social activist before his
appointment to the High Court, who became famous for his “Brandeis
brief.” In the 1908 case Muller
v. Oregon, he devoted only two pages of his brief to the discussion of
legal issues; the remaining 110 pages presented evidence of the harmful effects
of “long hours of labor on the health, safety, morals and general welfare of
women.” His evidence was culled from medical reports, psychological
treatises, statistical compilations and expert studies. The Brandeis
brief was unprecedented – it was used to demonstrate that there was a
reasonable basis for the
Before that, Supreme Court justices merely imposed their own views about what
constituted reasonable legislation. The brief’s analysis was in line with
fact-oriented sociological jurisprudence. It forced the Court to consider
data that state legislators employed in drafting reform laws. The success
of the Brandeis brief led many lawyers and courts to support a wide ranged
economic legislation – which may well pertain to nurturing our poor people’s Prosperity,
the second part of Art’s judicial philosophy. The Mining Law case,[1] the
resolution of which was penned by then Associate Justice Panganiban,
may be cited as a relevant example of the
Brandeis approach.
How about the importance of communicating the decisions of the Supreme Court to
our people? In other countries, such as
The fact of the matter is that Tagalog, the basis of
Filipino, has been used in political discourse and campaigns since the 1930s.
Today, TV and radio broadcasts, especially for entertainment and for the
dissemination of local news, are usually in Filipino, the language of the
masses. As usual, the courts, in a manner of speaking, seem to be far
behind.
II
The
Leadership of Chief Justice Art
The leadership of Chief Justice Art is not a new trait. Consider only
these 2 cases that could have diminished his chance to become Chief Justice,
given the bias and predisposition of the appointing power.
During the time of President Joseph “Erap” Estrada,
who, even before he assumed office, had been for a compromise settlement with
the Marcoses and their major cronies, Associate
Justice Panganiban ruled that the General and
Supplemental Agreements (otherwise known as the “Compromise Deal”) between the
PCGG and the Marcos heirs dated December 28, 1993, were null and void, in that,
inter alia:
1. “Criminal immunity cannot be granted to
the Marcoses who are the principal defendants in the
state of ill-gotten wealth cases now pending before the Sandiganbayan.”
2. Exempting the properties to be retained
by the Marcos heirs from all forms of taxes “is a clear violation of the
Constitution since the power to tax and grant exemptions is vested in
Congress.” (Sec. 28 (4) Article VI of the Constitution)
3. The provision in the Agreement binding
the Government “to cause the dismissal of all cases against the Marcos heirs is
a direct encroachment on judicial powers, particularly in regard to criminal
jurisdiction. Once a case is filed before a court of competent
jurisdiction, the matter of its dismissal is within the full discretion and
control of the judge.”
4. The provision in the Agreement that the
Government waives “all claims . . . past, present and future” against the Marcoses is “contrary to law. . . . It is a virtual warrant
for all public officials to amass funds illegally, since there is an option to
compromise their liability in exchange for only a portion of their ill-gotten
wealth.”
In addition, be it noted that the compromise deal was entered into by PCGG
Chairman Magtanggol Gunigundo,
with the consent of President Fidel V. Ramos, who had appointed Art Panganiban to the High Court in October 1995.
Then, at a time when it was uncertain whether Estrada would remain President or
whether GMA would succeed him as President, Justice Panganiban,
as ponente, ruled against Eduardo Danding Cojuangco in Republic
v. Cocofed, et al., GR 147062-64. Justice
Art declared in this landmark case that “coconut levy funds are not only
affected with public interest” (as held by ex-Chief Justice Narvasa);
“[t]hey are, in fact, prima facie public funds, because they are moneys
belonging to the State or to any political subdivisions,” raised by taxes,
customs duties, and other operations. . . . Coconut levy funds are levies
imposed by the State for the benefit of the coconut industry and its farmers.”
Since he occupied the position of Chief Justice, his leadership – particularly
in the timely disposition of the three cases involving Executive Order 464, the
CPR policy, and Presidential Proclamation 1017,
each of which was very important to President Gloria Macapagal-Arroyo
who had appointed Art – was placed at stake and became crucial. All the
three decisions on these crucial cases showed beyond doubt the independence and
the competence of the High Court and, in particular, the quality of Chief
Justice Panganiban’s leadership.
The Administration spokesmen said the President would follow the Supreme Court
in each of these cases. Meantime, the Chief Justice was accorded glowing
tributes by respected commentators and legal luminaries. (Nevertheless,
the new Solicitor General filed Motions for Reconsideration in two cases – EO
464 and PP 1017 – both of which the Supreme Court, in a restatement of its
independence, denied with finality.)
In any case, of the three departments and agencies of Government, the July 6,
2006 SWS survey of Enterprises on Corruption gave the Supreme Court the most
favorable rating: Net +40. The President, Congress, and the other
agencies, such as the Comelec and the present PCGG,
obtained negative ratings.
Leadership
Functions
of a Chief Justice
In the cover article of the January 2006 issue of Kilosbayan-Bantay
Katarungan Magazine, we stated that in every
organization, three things are essential – leadership, leadership, and
leadership. For example, in the U.S. Supreme Court, the Chief Justice, as
Presiding Officer, controls the flow of the proceedings; as Titular Leader, the
Office affords special opportunities for leadership; as Court Manager and
Guardian, promoting intracourt harmony are tested to the
limit. Each in his own time, Chief Justice John Marshall, Charles Evans
Hughes, and Chief Justice Earl Warren possessed these talents and earned the
respect of Bench and Bar and the entire nation.
In the Preface to his latest book, Chief Justice Panganiban
informs his readers here and abroad about the roles and functions of a
Philippine Chief Justice, the gist of which is as follows:
The
Roles and Functions
of a Chief Justice -- a
Gist
1. He is the primus inter
pares among the 15 members of the Supreme Court. As presiding
officer, he is able to control the flow of the proceedings, shape the Court’s
agenda, summarize the discussions and influence the
pace and direction of the Court’s work. Because he has only one vote, sometimes
he may find himself voting with the minority in important litigations.
2. He is the leader of the entire judiciary
and might become the role model of all public servants. The 2,000 judges
and 26,000 employees hold him up for inspiration and example. In a
corrupt, graft-ridden government, he is expected to be the role model and
exemplar of many public servants. As the CJ is the head of the
third branch of government, ambassadors routinely make courtesy calls on him
upon their assumption of office.
3. He is a reformer and action
person. Because the judiciary must cope with the judicial, social,
economic, scientific and technological developments, he has to institute
reforms. To keep up with the Information Age, the judiciary must automate
and computerize; it must also interact with other offices, agencies and
persons, public or private -- and even with foreign governments and
international aid institutions.
4. He is also the uncrowned leader of the
bar. As the Constitution vests in the Supreme Court supervision over
admission to the practice of law and the integrated bar itself, the CJ
is looked upon by all lawyers and bar associations for guidance, direction and inspiration
in the practice of law.
5. As ex-officio chair of the
Philippine Judicial Academy, he is also a leader of the academe. He must
be a teacher and scholar. He is expected to make the education of the
judges a necessary component of his judicial priorities.
6.
As chair of the Judicial and Bar Council, his crucial job is to
find new and better ways of searching for, screening and selecting applicants
for vacancies in the judiciary, especially in the lower courts. Because
of the many vacancies in about 600 trial courts, the CJ is constrained
to work for better compensation, better security for judges in remote areas,
and better working conditions and facilities, and thereby entice competent,
upright attorneys to join the judiciary.
The
current task is to get the JBC to select nominees in about 300 vacant courts,
thus reducing the past vacancy rate from 30%-40% to around 15%. Assuming
an average of 10 applicants per position, the JBC must process, interview and
select from 3,000 applicants. Failure to do so will mean no major
breakthrough in carrying out the judicial reform program. The problem of
delay in trial courts will not be solved.[2]
7. He is an administrator,
manager and financial wizard all rolled into one. Though the Constitution
vests in the Supreme Court “administrative supervision over all courts and the
personnel thereof,” in actual practice, it is the CJ that discharges
administrative functions.
This is inevitable. The Administrative Code and the General Appropriation
Act recognize the Chief Justice as the administrative head of the Judicial
Department. The Judiciary Development Fund (PD 1949) and the Special
Allowance for the Judiciary Law (RA 9227) places “sole exclusive power” upon
the Chief Justice to disburse the JDF and the excess SAJ funds.
ALL the foregoing roles of the Chief Justice detract from his basic judicial
work of decision-making. But he cannot shun public appearances and
speaking engagements. He must be reasonably visible in many social
functions and receptions. He cannot isolate himself from the world but he
must not be involved in the darkness and corruption of our society.
One final word. Up to now, Chief Justice Art
refers to me as his mentor or guru. He has exaggerated my role, as
I stated elsewhere. He has spoken for the Supreme Court on various
subjects beyond my limited range – including mathematics, the latest advances
in science and technology, economics, accounting and even canon law. In a
deeper sense, Art is my mentor. For he is no longer the same person I
used to know. Like
As I wrote in the Preface to his first book, Love God, Serve Man:
God is not finished with him yet. For life is a continuing process … all
of us are enroute on some kind of never-ending
journey. In Art’s case, it has been a spiritual journey more than
anything else. From the usual concern for himself and his worldly
pursuits, his post-EDSA speeches reflect a deeper concern for the riches of the
human spirit; his strong faith in a power bigger than himself; and his abiding
concern for the poor, the weak and the marginalized in a society that should be
just, more caring and more compassionate.
JOVITO R. SALONGA
July
31, 2006
[1]
La Bugal-B’laan Tribal Association, Inc., et al.
v. Victor O.Ramos et al., GR No. 127882, December
1, 2004.
[2]
Unfortunately, there is a widespread perception among many capable judges and
bright lawyers that the JBC is not independent, as envisioned under the
Constitution. This is reportedly due to the pervasive influence of Malacañang in the nomination of aspirants for important
positions in the judiciary. Even those who have worked for the JBC in the
ConCom, such as Fr. Joaquin G. Bernas,
SJ, are now for its abolition. Perhaps. A change
for the better must be initiated now by all the members, especially its regular
members.
In fairness to Chief Justice Panganiban, the problems
happened before his appointment by the President in December 2005. Since then,
he has been working hard to make the JBC independent, in terms of higher salary
for every JBC member. The monthly pay of a JBC member is now equivalent
to the monthly compensation plus allowances of a Court of Appeals Justice.
The hope is that outstanding judges and practising
lawyers will now be induced to apply for vacant
positions in the JBC, because of incentives in terms of more prestige and
higher salary.