Wednesday, December 14, 2011

Obscenities in Court Opinions: Some Thoughts

Obscenities in Court Opinions: Some Thoughts

            There is a disturbing trend in recent Supreme Court decisions that needs to be immediately addressed.  In a number of cases involving the crime of rape, the word “fucked” appears many times either as part of the stenographic notes of the direct examination of the complainant or in excerpts of the trial courts’ decisions under review.  The word is used as a translation of the complainant’s testimony describing an alleged rape.

            The word first appeared in 1983 in the case of People v. Banasen, and since then has appeared in seventeen other decisions.  In these decisions, the word appeared forty-four different times.  The most recent decision is a May 2011 ruling.  The following are the cases:

People of the Philippines v. Domingo Banasen, G.R. No. L-55487, December 21, 1983.
2
People of the Philippines v. Jessie Mayoral, G.R. Nos. 96094-95, November 13, 1991.
1
People of the Philippines v. Edgar Sadang, Arnulfo Sayo, and Leodigario Espinar, G.R. No. 105378, June 27, 1994.
2
People of the Philippines v. Roger Laray, Rewel Rabanes, Noli Enerio, Federico Laray, and Gorospe (Juario) Omilao, G.R. No. 101809, February 20, 1996.
3
People of the Philippines v. Cabillan, G.R. No. 117684, January 30, 1997.
5
People of the Philippines v. Reynaldo Acala, G.R. Nos. 127023-25, May 19, 1999.
1
People of the Philippines v. Domingo Brigildo, G.R. No. 124129, January 28, 2000.
1
People of the Philippines v. Delano Mendiola, G.R. No. 134846, August 8, 2000.
1
People of the Philippines v. Rogelio Bulos, G.R. No. 123542, June 26, 2001.
1
People of the Philippines v. Mario Hamto y Coderas, Ronald Cuesta y Overo, Fernan Pervera (At Large), G.R. No. 128137, August 2, 2001.
3
People of the Philippines v. Bonifacio Ariola, G.R. Nos. 142602-05, October 3, 2001.
4
People of the Philippines v. Fernando Cañaveral, G.R. No. 133790, August 1, 2002.
4
People of the Philippines v. Artemio D. Ochea, G.R. Nos. 146452-53, December 10, 2002.
5
People of the Philippines v. Rodrigo “Rudy” Opeliña and Mary Rose Leones Opeliña, G.R. No. 142751, September 30, 2003.
1
People of the Philippines v. Ricardo Balatazo, G.R. No. 118027, January 29, 2004.
4
People of the Philippines v. Salvador Nieto y Cabalse @ “Ador”, G.R. No. 177756, March 3, 2008.
2
People of the Philippines v. Pedro Nogpo, Jr. a.k.a. “Tandodoy”, G.R. No. 184791, April 16, 2009.
3
People of the Philippines v. Ernesto Mercado, G.R. No. 189847, May 30, 2011.
1


There were also four cases which used the word “fucking” to describe the rape:

People of the Philippines v. Bawit, G.R. No. L-48116, February 20, 1981.
1
People of the Philippines v. Tuando, G.R. No. L-47720, May 20, 1987.
1
People of the Philippines, v. Andaya, G.R. No. 126545, April 21, 1999.
1
People of the Philippines, v. LO-AR, G.R. No. 118935, October 6, 1997.
1

            This tally excludes the use of “fuck”[1] because in these cases, they are uttered by the lawyers or the judge when they are asking the witnesses questions and not uttered by the witnesses themselves when they are describing the commission of the offense.  I am concerned here with the translation of the word when uttered by the complainant.  I think that mistranslating the testimony into “fucked” has a particular harm to the complainants.
            “Fuck” is a vulgar term that has no place in a court opinion.  I have yet to come across a dictionary that says otherwise.  Of course, the word should appear in a court decision whenever it is relevant as when use of the word might be an element of a crime.  It may also be relevant when the use of the word is alleged as a provocation to justify an assault.  The use of the word cannot be avoided if the issue is whether the phrase “Fuck the Draft” is protected speech under the U.S. Constitution.[2]  It is pertinent in a case where the issue is the extent of the power to censor television shows.[3]
In rape cases, the use of vulgarities does little to restore the dignity of the victims.  It debases the victim further by shrouding the alleged crime in foul language. 
            The other problem with the use of this obscenity is that it connotes consensual sex.   When people “fuck” they copulate.  They have sex.  The use of the word suggests that there was force or intimidation used in the act.  When judges evaluate the evidence after the parties have rested their case, does it affect their appreciation of the evidence when it appears that the sex was consensual?  It seems obvious to me that there is a huge difference when the complainant says "he raped me" and when she says "he fucked me."  I suspect that the mistranslation can have that unintended effect: a subliminal mantra that suggests the innocence of the accused.  What crime was committed when the sex was consensual?   

            I do not suggest that court stenographers are a crude lot.  I do not suggest that the task of translating the testimonies of witnesses is an easy one.  But I think the legal profession can do better than this.  The word was used first in 1983.[4]  Before then the courts used other ways to translate the alleged rape.  Why then did we need to shift to the use of crude language?
            I may be overstating the problem, but at the very least, courts should ensure that their opinions are better crafted than scrawling on a bathroom wall.  The Judiciary should address this problem to dignify both the complainants and the profession as well.




[1] See e.g. People v. Siao, G.R. No. 126020, March 3, 2000, People v. Galeno, G.R. No. 135976-80, June 20, 2001, and People v. Bracero, G.R. No. 139529, June 20, 2001.

[2] Cohen v. California, 403 U.S. 15 (1971).
[3] Soriano v. Laguardia, G.R. No. 164785, April 29, 2009.
[4] Technically, “fuck” first appeared in People v. Alipis, G.R. No. L-17214, June 21, 1965.  The word was not uttered in the course of the complainant’s testimony.

Wednesday, September 28, 2011

South Cotabato's Ban on Open Pit Mining


Late last year, DILG Secretary Jesse Robredo said that the provincial government of South Cotabato did not have the power to ban open-pit mining and should instead review its Environmental Code that prohibited such mining method.[1]  According to Robredo, “The Philippine Mining Act of 1995 does not prohibit open pit mining.  A local government ordinance cannot undo an act of Congress.”[2]  In a Memorandum Circular dated November 9, 2010, Robredo directed the provincial government of South Cotabato to review its Environmental Code.  According to the Memorandum Circular, "[i]n view thereof, you are hereby enjoined to cause the immediate suspension of the implementation of said ordinance pending its review.”[3]


Secretary Robredo’s actions in this case are inconsistent with law.


a.      Robredo’s legal analysis is flawed. 


There is no law that prevents local governments from imposing additional strictures to safeguard the environment so long as it does not contradict an express provision of law.  The Mining Act of 1995 does not prevent local governments from banning open-pit mining or from adopting measures that protect the environment.  The efforts of South Cotabato in banning open-pit mining may also be justified as a police power measure under the Local Government Code.[4]  Ordinances enacted by local governments must be consistent with the Constitution and national laws.[5]  But if an act is not prohibited by national law, there is no reason why the prohibition cannot be required by an ordinance.  Thus, in Newsound Broadcasting Network Inc. v. Dy,[6] the Supreme Court held that:



Nothing in national law exempts media entities that also operate as businesses such as newspapers and broadcast stations such as petitioners from being required to obtain permits or licenses from local governments in the same manner as other businesses are expected to do so. While this may lead to some concern that requiring media entities to secure licenses or permits from local government units infringes on the constitutional right to a free press, we see no concern so long as such requirement has been duly ordained through local legislation and content-neutral in character, i.e., applicable to all other similarly situated businesses.



In another case, the Supreme Court recognized the power of local government units to prevent the operation of drug stores despite the fact that they were authorized by the Food and Drug Administration.[7]  In that case, the Court held that (then) Mayor Richard Gordon could not disallow the operation of a drugstore after it was allowed to operate by the FDA.  However,” the Court continued, “it was competent for the petitioner (Gordon) to suspend Mayor’s Permit No. 1955 for the transfer of the Olongapo City Drug Store in violation of the permit.” In other words, while the Mayor could not contradict the decision of the FDA in allowing drugstores to operate, he can prevent their operation for their failure to follow local ordinances.  National and local laws are two separate hurdles that can impose an entirely different set of standards.



b.      Secretary Robredo exercised control over a local government. 


The President does not have the power of control over local government officials, only the power of supervision.  Supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties.  Thus, if the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties.  Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.[8]  Since local government units are subject only to the power of general supervision of the President, the President’s authority is limited to seeing to it that rules are followed and laws are faithfully executed.  “The President may only point out that rules have not been followed but the President cannot lay down the rules, neither does he have the discretion to modify or replace the rules.”[9]

In the case of South Cotabato, Robredo reversed the decision of local officials of South Cotabato and in effect, he violated the Constitution. 



c.       Secretary Robredo usurped judicial functions.

DILG Secretary Robredo also usurped judicial functions by claiming that the ordinance is illegal and should be struck down.  The Constitution empowers courts to determine the validity of laws.[10]  The Constitution gives the Supreme Court the power to “[r]eview, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in:  All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.[11]  Nowhere in the law is the Interior and Local Government Secretary empowered to assess the constitutionality or validity of an ordinance.



For his part, South Cotabato Governor Arthur Y. Pingoy Jr. said that his administration will implement the South Cotabato Environment Code that the previous provincial board passed last year.  He correctly pointed out that “[a]s the governor of this province I have to implement the ordinance. There will be no open-pit mining operation in the province of South Cotabato unless and until this ordinance will be nullified by the proper court.”[12]




[1] Daxim Lucas, DILG says Cotabato open-pit mining ban illegal, Philippine Daily Inquirer, December 9, 2010.  Available at http://business.inquirer.net/money/topstories/view/20101209-308059/DILG-says-Cotabato-open-pit-mining-ban-illegal.  The Tampakan Mine is considered as the biggest undeveloped copper-gold prospect in Southeast Asia and is one of the biggest foreign investments in the country.  It is owned by the Australian mining firm, Xstrata PLC  while conglomerate San Miguel Corp. owns a minority stake in the project‘s minority partner, Indophil Resources.  The mine is estimated to contain 13.5 million tons of copper and 15.8 million ounces of gold, but the estimated 2016 commencement of its production run remained in doubt because of the prevailing ban.  Id.
[2] DILG: South Cotabato Governor Cannot Ban Open Pit Mining, Department of Interior and Local Government, December 9, 2010.  Available at http://www.dilg.gov.ph/news.php?id=54&newsCategory=Central.
[3] South Cotabato guv junks local government chief’s order, Sun Star Davao, December 3, 2010.  Available at http://www.sunstar.com.ph/davao/local-news/south-cotabato-guv-junks-local-government-chief-s-order.
[4] SECTION 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
[5] The Solicitor General v. The Metropolitan Manila Authority, G.R. No. 102782, December 11, 1991.
[6] G.R. Nos. 170270 & 179411, April 2, 2009.
[7] Gordon v. Verdiano II, G.R. No. L-55230, November 8, 1988.
[8] Hebron v. Reyes, G.R. No. L-9124, July 28, 1958.
[9] The Province of Negros Occidental v. Commissioners, G.R. No. 182574, September 28, 2010.
[10] Brokenshire Memorial Hospital, Inc. v. Minister of Labor and Employment, G.R. No. 74621, February 7, 1990.
[11] Constitution (1987), Art. VIII, section 5.
[12] Dani Doguiles, South Cotabato stays pat on implementation of environment code, PIA Press Release, September 26, 2011.  Available at http://www.pia.gov.ph/?m=1&t=1&id=56180.

Tuesday, January 11, 2011

Justice Puno's Call for Charter Change

Former Chief Justice Reynato Puno's call for renewed debate for constitutional amendment was disappointing. Justice Puno made his call during the inaugural lecture of the UP College of Law's Centennial Lecture Series. However, he cited no new reasons for the debate and there was an unsettling JDV-esque ring to his entire lecture. Many of these grounds he cited as reasons for change have already been examined and debunked by scholars. One recycled argument--legislative gridlock is presently being addressed by the Aquino administration by holding a Cabinet workshop to identify priority bills that will be presented to the Legislative Executive Development Advisory Council. These steps are being taken precisely to address potential gridlock.

I expected more from the first lecture that starts the UP College of Law's centennial lecture series. I thought it should have been a scholarly forum that examines important legal issues and not a venue for political posturing.