angelic moo

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, Decemb...

I just finished an article by Nobue Suzuki entitled Outlawed Children: Japanese Filipino Children, Legal Defiance and Ambivalent Citizenships (Pacific Affairs, Volume 83, Number 1, March 2010, pp. 31-50) which chronicled the legal battle waged by children born of Japanese men and Filipino women to acquire Japanese citizenship. Japanese law restricted citizenship in these cases only if the father acknowledged paternity before the child is born or if the parents were to marry . In 2008, the Supreme Court of Japan declared this law unconstitutional for being discriminatory. Suzuki writes that this is only the 7th time in its history that the Court had declared a law unconstitutional. I am amazed that the Court demonstrated a willingness to strike down a decades-old law to right what they perceived to be a wrong foisted upon innocents. It stands in contrast to the plight of comfort women in the Philippines who were recently told by the Supreme Court of the Philippines that they " appe...

Selecting a Supreme Court Justice is an important and delicate task. Many lawyers are undoubtedly up to the task. Of late they have come with impeccable academic credentials, advanced degrees, prior judicial experience, teaching experience (especially abroad), or a list of scholarly publications. With an increasingly homogeneous pool of nominees, the trick for the President is to determine who should be appointed. Is there something different about a candidate that stands out? Is there something in this mass of data that suggests how a potential Justice will conduct herself if appointed? There was perhaps one bit of information that could have caught the President Aquino's attention when he was examining the latest list submitted by the JBC. When Chief Justice Renato Corona was appointed Chief Justice towards the end of President Gloria Arroyo's term, there was a genuine issue as to whether the President was then covered by a constitutional ban against "midnight appointmen...

The Philippine Supreme Court, which is presently examining the charges of plagiarism in the case of Vinuya v. Executive Secretary , cannot resolve the issue without demanding the resignation of its ponente, Associate Justice Mariano del Castillo. With the international legal community looking on the Court cannot sweep this issue aside and say there was no plagiarism--there clearly was--and that the US sources used in the decision were incorrectly applied--because they were. The authors have protested the misuse of their scholarship to further ends that they do not support: the absence of recourse to international law remedies for victims of sexual abuse during the Second World War. If the Court sanctions these shortcomings, it informs the world that the victims of Japanese occupation during World War II have no legal recourse according to plagiarized and misinterpreted sources. Nothing could be so appalling and dishonorable. Justice del Castillo's resignation is necessary to sav...

The faculty of the UP College of Law will come out with a statement on the allegations of plagiarism against the Supreme Court in the case of Vinuya v. Executive Secretary (G.R. No. 162230, April 28, 2010). The statement will carry my sentiments so there is no need for me to elaborate on my position here. I add only a few thoughts: I cringe at the thought that at some point in the future, the works of the judiciaries of the world will be compiled and examined to see what States do to vindicate the rights of their citizens. In that collection, the Philippines will offer a Supreme Court decision saying that comfort women who were raped by invading Japanese soldiers during the Second World War "appear to be without a remedy to challenge those that have offended them before appropriate fora." That decision will be founded on plagiarized works, that in fact argued the exact opposite: that these victims do have remedies under international law. The Supreme Court should take...

Supreme Court Midas Marquez issued a statement saying that the President cannot use the recent Court decision ( De Castro v. JBC ) to justify her recent appointments . He explained that De Castro is not yet final and only exempts appointments to the Supreme Court from the ban on midnight appointments (which started on March 10 and ends on June 30). Marquez issued the statement following reports that the President appointed two Justices of the Court of Appeals, an ambassador, and board members to cultural bodies where no vacancy existed. That these new appointments are so blatantly unconstitutional can mean that the President has absolutely no respect for the Constitution and constitutional restraints. Or it can be another display of presidential craftiness. It is entirely possible that these appointments are part of a script designed to stave off criticisms about her control over the judiciary. These appointments will no doubt be challenged before the courts. They will be struck down ...

I am a little puzzled over the concern over the coming vacancies in the Supreme Court. In 2009, the Supreme Court will have seven vacancies and constitutionalist Fr. Joaquin Bernas and civil society groups are calling for increased citizens’ participation in and closer scrutiny of the choice of nominees to the Court. I have reservations about these efforts and what they seek to achieve. President Macapagal-Arroyo has already appointed 14 different Justices after she became President in 2001, 12 of whom are still sitting on the Court (two have already retired). Of those who are retiring next year, two of them—Consuelo Ynares-Santiago, Leonardo Quisumbing—were appointed by other Presidents. This means that in 2009, Arroyo would have increased the number of her appointees from 12 to 14. Chief Justice Renyato Puno, who was appointed by President Ramos will be the only one Justice not appointed by President Arroyo. President Arroyo already appointed 80% of the membership of the Court. After...

Justice Secretary Raul Gonzalez may have inadvertently revealed some secrets of th e Judicial and Bar Council (JBC), the constitutionally created body that short lists nominees for appointment to the judiciary. The Secretary of Justice sits as an Ex Officio Member of the JBC. In a special issue of Newsbreak (Marites Dañguilan Vitug, Stacking the Court), Justice Secretary Raul Gonzalez explained his vote on filling a vacancy in the Supreme Court. He said: “I voted for Reyes because he is senior and has the shortest time left in the judiciary,” Gonzalez said in a telephone interview in August. “I prefer short-term appointments. I don’t like people who plead for their appointment but when they get appointed, they turn against you. You never know what positions they take after they are appointed…. I’ve felt bitter about Supreme Court decisions lately.” This brief quote provides a revealing look into the manner in which the JBC has been operating—at least from the Secretary's point of v...

I think part of Oposa's enduring appeal was the idea that the Philippine Supreme Court signaled it's willingness to step into the political thicket for the sake of the environment. After nearly 15 years since it was promulgated, that potential role has now been clarified by the Supreme Court. The Court will not usurp the functions of Congress in environmental matters and will not so casually order a co-equal branch of government to perform acts that pertain to its sphere. Henares v. LTFRB (G.R. No. 158290, October 23, 2006) in my view, is the opposite of Oposa . The Supreme Court has informed advocates of the environment to take their campaign to the political branches of government to ask Congress to enact the measures that they think are needed. The Court, evidently, will return to its more reactive posture, even in the field of environmental law.

The Supreme Court dismissed the petition in Henares v. Land Transportation Franchising and Regulatory Board (G.R. No. 158290, October 23, 2006) saying that mandamus is available only to compel performance of an act specifically enjoined by law as a duty. Here, according to the Court, there is no law that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. Further, the Court added that mandamus “will not generally lie from one branch of government to a coordinate branch, for the obvious reason that neither is inferior to the other।” The Court explained that “The need for future changes in both legislation and its implementation cannot be preempted by orders from this Court, especially when what is prayed for is procedurally infirm. Besides, comity with and courtesy to a coequal branch dictate that we give sufficient time and leeway for the coequal branches to address by themselves the environmental problems raised in this petition.” As dire as th...

In two pervious works I went against conventional analyses of Oposa v. Factoran , a decision of the Philippine Supreme Court that supposedly recognized standing to sue in behalf of future generations to protect the environment. The first piece posited that Oposa is essentially misunderstood in that everything the Court said about standing to sue is merely obiter dictum , and not binding on any court. In fact, the Court merely remanded the case to the trial court saying that the petitioners in that case had a cause of action and that the trial court should not have dismissed the case in the first place. The lawyers did not pursue the case, however. The second piece showed that the rest of the Supreme Court’s decisions affecting the environment are in fact hostile to the environment revealing that the Court’s reputation for environmental activism is undeserved. Oposa raised a question that lingered for years: Is it possible to invoke the Supreme Court’s jurisdiction directly, based sole...

Speaker Jose de Venecia's attempts to vilify the Supreme Court after it's decision in Lambino was a desperate attempt to pressure the Court to reverse itself. The Speaker has been claiming, without any proof, that there is a clamor for constitutional change in the Philippines. In previous posts, I showed how he presented the Supreme Court as stumbling block to economic progress because it refused to allow the amendment of the Constitution through a “people’s initiative.” Contrary to de Venecia’s claims, there is no evidence that the Court's reputation has suffered because of Lambino . If anything, recent surveys show that the Court's reputation is improving. Recently, the Supreme Court announced that the Makati Business Club recognized the court ( Katrina M. Martinez, MBC Survey: SC is 3rd Best-Performing Gov’t Agency, March 16, 2007 ) as the third-best performing of 37 government offices, institutions, and basic services surveyed in 2006. This is no small feat for the ...

I wrote elswehere that the Supreme Court's decision in Javellana in 1973 destroyed its reputation and signaled the Court's subservience to the executive branch of government. More than three decades later, the Arroyo administration elevated the their own attempt to revise the Constitution before the Supreme Court. The Court was given an opportunity to reprise its role in 1973 and approve a shift to a parliamentary form of government despite the apparent defects in manner the Constitution is amended. When the Court deliberated on Lambino , I suggested that a ruling in favor of the initiative would have been politically safe route; it will shield the Court from heat. I predicted that ruling against initiative would open the Court to vilification by the other branches of government. Indeed, the Speaker of the House aattacked the Supreme Court and went so far as to initiate impeachment proceedings against the Justices who voted against the initiative claiming the Supreme Court d...

The Supreme Court's decision in Lambino v. Commission on Elections is consistent with my prediction I posted last October. In that decision, a bare majority of the Court held that the Commission on Elections did not abuse its discretion when it voted to dismiss Sigaw ng Bayan's petition for initiative. The Court denied a motion for reconsideration on November 21, 2006 with the same vote but added that: Ten justices however reiterated their earlier opinions that RA 6735 is sufficient and adequate as an enabling law to amend the Constitution through a people’s initiative. Chief Justice Artemio V. Panganiban and Justices Consuelo Ynares-Santiago and Adolfo S. Azcuna joined their dissenting colleagues – Senior Associate Justice Reynato S. Puno, and Justices Leonardo A. Quisumbing, Renato C. Corona, Dante O. Tinga, Minita V. Chico-Nazario, Cancio C. Garcia, and Presbitero J. Velasco, Jr. – in opining that RA 6735 suffices as an enabling law to implement the constitutional provisio...

So much is said about the possible appointment of Senator Miriam Defensor-Santiago to the Supreme Court but the truth is that there is no law that prevents her appointment. President Arroyo would be well within her right to appoint her to the Court and to designate her as Chief Justice. This would be nothing new for the President. Arroyo broke the tradition of seniority by designating Artemio Panganiban as Chief Justice and in bypassing Justice Reynato Puno, who was named to the court three years earlier. No other President since Ferdinand Marcos has bypassed the most senior member of the Court when designating the Chief Justice. Marcos’ refusal to honor the tradition of seniority was regarded as a means of retaining control over the judiciary. He bypassed Claudio Teehankee, a Justice critical of the Marcos regime, twice to prevent or delay his rise to the post of chief justice.

Malaya 's editorial on October 9, 2006 in part reads: During the hearing conducted by the Supreme Court, the justices did not fall for the line that the tribunal is limited to settling the issues of law. They pointedly grilled Sigaw and Ulap counsels on the authenticity of the signatures. Chief Justice Artemio Panganiban said in open court that if it could be shown that the signatures were fake and their gathering was attended [by] irregularity, then there would be no need to revisit Santiago vs Comelec . The Sigaw and Ulap petition would be dismissed outright. I am uncomfortable with the fact that the Supreme Court is assuming what is technically the function of the Commission on Elections. The verification of the signatures that accompany a petition for initiative is not a judicial function. But the Court evidently directed the parties to show if the collection of signatures was conducted properly and if it meets the requirements of the law. The Supreme Court's decision and ...