How P-Noy can win the Supreme Court

MANILA, Philippines—If there is an agency or group, whether in the government or elsewhere, that can scuttle the avowed anti-corruption and anti-poverty programs of President Aquino, it is the Supreme Court. Being an independent and apolitical branch of government, it is not bound by the election promises or the political agenda of the government. Its fealty is to the Constitution and the rule of law that, per Chief Justice Renato C. Corona in a very recent speech, “will never bend to the ever-shifting political winds and passions of the moment…”

Crucial Supreme Court cases. I wrote last Sunday that I was invited to a tête-à-tête with presidential allies, including Sen. Franklin Drilon, Secretaries Cesar Purisima, Butch Abad, Dinky Soliman, PCGG Chairman Andy Bautista, SSS Chairman Johnny Santos and former Defense Secretary Nonong Cruz.

Among the items we discussed were the crucial cases facing the P-Noy regime: the impeachment of the Ombudsman, the constitutionality of the Truth Commission, the validity of midnight appointments, and the legality of public-private partnerships (PPP). In reaction, readers asked me to share some ideas on how P-Noy could win these cases.

Already, the Court has issued two status quo ante (SQA) orders. The first barred the Committee on Justice of the House of Representatives from hearing the two impeachment complaints filed against Ombudsman Merceditas Gutierrez, while the second stopped the firing of an alleged midnight appointee, Bai Omera Dianalan Lucman of the National Commission on Muslim Filipinos. Earlier, it issued a temporary restraining order (TRO) that halted the toll increases in the South Luzon Expressway (SLEx).

SQAs are worded more benignly than TROs so as not to offend co-equal branches of government against whom they are directed. However, by their nature, they have the same effect as TROs. They are effective immediately since they do not mandate the filing of bonds, which the Rules of Court require in TROs, to answer for possible damages the respondents may suffer in case the courts ultimately rule against the petitioners.

Prima facie meritorious. While SQAs and TROs do not necessarily guarantee the success of the petitioners, their issuance implies that the Court has found the petitions to be prima facie meritorious. In simple language, this means that, unless successfully overturned, the petitioners have preliminarily shown they are entitled to the reliefs they are praying for. It thus behooves the respondents (the House of Representatives and the Aquino administration) to rebut the prima facie case, if they are to win the cases eventually.

And this is precisely what happened in the SLEx case over which the TRO was issued. Convinced by the cogent arguments of the respondents, the Court lifted the TRO. Moreover, it decided immediately the consolidated petitions involving the toll ways in Luzon. In “Francisco vs. Toll Regulatory Board” (Oct. 19, 2010), the Court unanimously upheld the PPP entered into by the government not only with the SLEx but also with North Luzon Expressway (NLEx) and the South Metro Manila Skyway.

Speaking through Justice Presbitero J. Velasco Jr., the Court upheld PPP as a viable mode of economic strategy, thus: “Running through the gamut of our statutes providing for and encouraging partnership of the public and private sector is the paramount common good for infrastructure projects and the equally important factor of giving a reasonable rate of return to private sector’s investments.”

Indeed, the Court answered the exhortation earlier this week of Neeraz Jain, country director of the Asian Development Bank, that investors must be assured that “the judicial system will uphold contractual rights.” Indeed, even without P-Noy’s criticism of the SLEx TRO, the Court upheld the legality of toll road PPPs.

How cases are judged. Without going into the complexities of the other crucial cases facing the P-Noy regime, I shall outline the two main theories on how controversies are decided.

Theoretically, cases are judged by applying the law to the proven facts per this simplified formula: facts times law equals decision (F x L = D). Known as the analytical method, this is the most commonly accepted theory. However, there are many ways of interpreting and applying the law. This is why lawyers argue interminably and justices differ passionately in their opinions. Understandably, the formula sometimes fails to answer the basic question: What is the specific interpretation or application that the court will use?

In turn, the sociological school of legal philosophy holds that to predict how a case would be decided, one must consider the personality of the magistrate and the various stimuli attendant to a case per this formula: personality times stimuli equals decision (P x S = D).

The personality of a magistrate includes intrinsic qualities like upbringing, education, relationships, track record, previous decisions, religious faith, character, skills, habits, personal philosophy, motivations, idiosyncrasies, aptitudes, etc. Stimuli refer to how he/she responds to externals, like public opinion, peer pressure, religious leaders, medical condition, appointing authority, appointment sponsor (if any), close friends, etc.

To win his cases, P-Noy must strategize patiently and properly using—other than his past frontal criticisms—analytical and sociological ways of persuasion and remembering that, in the end, the law is what the Supreme Court says it is.

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