An Ode to Jurisprudential Disruption

Foreword by retired Chief Justice ARTEMIO V. PANGANIBAN to Number 1, Volume 63 of the Ateneo Law Journal (August 2018) printed and circulated in January 2019


In his letter requesting for this Foreword, Lead Editor Angelo Francesco F. Herbosa advised me that the overall theme is “Updates to Law and Jurisprudence.” Updates the aim may have been, but at my first blush, the 10 articles in this volume appeared to be unrelated and disparate, producing a cacophony of voices without any uniting melody to weld them into a symphony. However, on closer look, I find their very disparateness and seeming disunity as the arching melody itself. In a word, the uniting theme I sense is “disruption,” the very oxymoron of symphony, as in “disruptive symphony” of legalities, or more commonly, unity in diversity of law.

The disruption begins with the author of the very first article, Jose Manuel I. Diokno, the intrepid dean of De La Salle College of Law writing for the Law Journal of rival Ateneo de Manila School of Law. The article itself titled “Now or Never: Judicial and Legal Reforms in the Philippines” disrupts the present state of our jurisprudence and of the judiciary itself. The disruption continues with Dean Diokno’s deep dive into history – tracing how our justice system was robbed of its independence and integrity by an unwanted dictatorship, and how our procedural rules had been borrowed rather sketchily from the American jury system and imbedded into our judiciary bereft of juries. To be fair, Dean Diokno did not just criticize. True to his calling as a compleat reformer, he offered solutions and remedies to transcend these lapses.

Diokno is aptly followed by Ateneo’s own immediate past dean, Sedfrey M. Candelaria (and Patrick Edward L. Balisong), who in addition to his many titles and awards is one of the 13 holders of the “Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity.” Dean Candelaria again demonstrated his prolificacy in analyzing one of the most controversial decisions of all time, Republic vs Sereno. From a new perspective, he treated it mostly as the Supreme Court’s way of cleansing itself of what it, or at least what the slim majority, considered as the void ab initio ascension of its Primus Inter Pares. In this way, the Court, in his view, consolidated its power to exact accountability even from its own leader.

The Candelaria opus should, I think, be read together with the 9th article, “Republic v. Sereno: Revisiting Constitutional Qualifications for Impeachable Officers” written by Ray Paolo Santiago and Jose Ryan Pelongco. It dissects the ponencia and the various dissenting and concurring opinions succinctly, addressing with aplomb and direction the apparent misuse of a remedy found only in the Rules of Court to undermine a constitutional remedy that is historically intended as the only method to oust impeachable officials.

I will no longer delve into the arguments pro and con so carefully posited by the ponencia, by the separate opinions, and by the Authors. I will leave that to the reader to figure out and to argue for or against. As for me, I would rather look at the future: When the composition of the Court would have changed – which is not remote since most of the incumbent justices would be retiring in the next few years – will the decision withstand a petition to declare it void on the ground that it was rendered without due process by a biased majority who apparently had not only prejudged their Chief but in fact conceived the very weapon of quo warranto to oust her? If such a time and reversal would ever come, would Maria Lourdes P. A. Sereno be returned to her post with the distinction of being the first woman to head the highest court of the land?  This, and the corollary questions it would spawn, I leave for the academe to deliberate on and debate in the meanwhile.

Another article that ably dichotomizes controversial jurisprudence, this time nonpolitical in character, is “From Van Dorn to Manalo: An Analysis of the Court’s Evolving Doctrine in the Recognition of Foreign Divorce Decrees in Mixed Marriages.” I recommend its close reading, written quite authoritatively by Amparita S. Sta. Maria, a renowned women’s rights and family lawyer who chairs the Urduja Women’s Desk of the Ateneo Human Rights Center. The sole provision of the Family Code (Article 26, Paragraph 2) on divorce in mixed marriages has been zigzagged by the Supreme Court, in the process succumbing to judicial legislation in the guise of interpretation. Meanwhile, whether we like it or not, the latest jurisprudence is Republic v. Manalo, promulgated on April 24, 2018 and dissected severely by the author.

Another jurisprudential article, “Trends and Developments in Intellectual Property Law: Investigating Recent IP Claims” by Ferdinand M. Negre and John Jacob D. Kaufman, I will no longer comment on, given the Authors’ clear allusion to comparable decisions of the Scotus that may be applicable in the Philippine setting.

The last piece on disruptive jurisprudence is “Marcos v. Robredo: A Tale of Two Shades and the Ramifications of Having Different Thresholds in Discerning the Electorate’s Will in the Automated Elections System.” Penned by Howard Calleja, the commentary tackled the issue of which shading threshold, 50 percent or 25 percent, should be used in revising the contested ballots in the electoral protest lodged by former Senator Ferdinand “Bongbong” Marcos Jr. against Vice President Maria Leonor “Leni” Robredo. It critiqued the PET’s April 10, 2018 Resolution first, for being ultra vires, and second, for violating the equal protection clause.

As for me, I would rather focus on the September 18, 2018 PET Resolution. Penned by an Ateneo alumnus, Justice Alfredo Benjamin S. Caguioa, it patiently explained that, as explained in my column in the Philippine Daily Inquirer on 7 October 2018, the PET Rules originally allowed the 50 percent threshold because the Commission on Elections (COMELEC) calibrated the Vote Counting Machines (VCMs) at 50 percent for the 2010 elections. Further, the Tribunal denied Robredo’s first motion to change the threshold to 25 percent because at the time it resolved the motion, it had not been advised of a new calibration for the 2016 polls.

But after having been officially advised by the COMELEC via its Comment dated July 18, 2018 that the VCMs were calibrated at 25 percent during the 2016 polls, the PET Resolution expressly set aside “the use of the fifty percent (50%) threshold…” Moreover, it observed, “The submissions of the COMELEC and protestee show that, during the 2016 elections, instead of a single numerical threshold, what was applied was a threshold that ranged from twenty percent (20%) to twenty-five percent (25%) of the oval space in the ballots.”

More significantly, the PET held that the “purpose of the revision process is simply to recount the votes of the parties; and this is implemented by mimicking (or verifying/confirming) how the VCMs read and counted the votes during the elections.” (bold types in original)

To achieve this “mimicking,” the PET required the COMELEC to provide it with 50 VCMs to which the ballots would be “re-fed.” However, the COMELEC replied that “making said units operational … poses many serious technical challenges” involving the secure data (SD) cards. As law professors and law students know, the automated ballots were precinct-specific, given that the local candidates were different from town to town. Unfortunately, the SD cards which recognized these differences were no longer available.

In lieu of this “re-feeding,” the COMELEC proposed the use of “the decrypted and printed digital ballot images to determine if a particular shade was read by the VCM as a valid vote or not.” However, the PET found this to be “an extremely an tedious process… it would entail going through all the printed ballot images to find the one that matches the ballot in issue, and then inspecting such printed ballot image to determine if there is a square that indicates that the shade in the ballot in question was read by the machine.”

To hasten the proceedings and to avoid the difficult task of manually determining whether the automated ballots fell within the 20-25 percent threshold, the PET directed the head revisors (HRs) to refer to the “Election Returns (ERs) generated by the VCMs.” The HRs “shall be guided by the number of votes indicated in the ERs. In this way, the reading of the VCM is mimicked and verified/confirmed.”

Example: if an ER shows that a candidate got 395 votes but the physical count totals 398, the “HR shall reflect 395 in the Revision Report.” The candidate may claim the three “stray” ballots, and the Tribunal shall resolve the claim later during the “appreciation stage, taking into consideration the intent of the voters.”

In sum, the PET veered away from using numerical thresholds. Instead, it directed the HRs to report to it the vote results reflected in the ERs because this was how “the VCMs read and counted the votes during the elections.” Thereafter, the PET shall appreciate the “stray” ballots “taking into consideration the intent of the voters.”

In my humble view, the electorate won in this PET Resolution of September 18, 2018. Definitely, the voters’ choice will prevail in the revision of the protested and counter-protested ballots. And truth and logic too!

From jurisprudence, the disruptive articles veered to tax reforms with “Amendments to the National Internal Revenue Code Introduced by TRAIN 1” by taxation law specialist Euney Marie J. Mata-Perez. I will no longer comment on her exhaustive review except to ask: Why is the government – in the guise of pursuing its “Build, Build, Build” program – raising new revenue streams when the new infrastructures it desires could be constructed without imposing new taxes through the current Public-Private Partnership (PPP) agreements. The PPP program succeeded in improving potable water delivery in the Greater Manila Area and in providing smooth tollways in Luzon. Why, indeed, should all the country’s taxpayers be forced to contribute to the construction of say, a port in Iloilo or a road in Davao, when logically and sequentially only the users of those facilities should pay for them via tolls over a specified period of time to recover their cost plus a reasonable profit? Thereafter, they would be turned over to the government for free.

The three remaining articles – (1) on the World Trade Organization by Raymond Marvic C. Baguilat, (2) on the “Online Sexual Exploitation of Children” by Benjamin Lawrence Patrick E. Aritao and John Stephen B. Pangilinan, and (3) on “The Data Privacy Act and the National Privacy Commission’s Five Pillars of Compliance” by Ivy D. Pardu and Jamael A. Jacob – examine quite fittingly the most disruptive phenomenon of our time: technology. Truly, technology is eliminating the middlemen and connecting the ultimate buyer in the West with the manufacturer in China thereby bypassing the Western department stores and supermarkets. Viewed in this context, technology harasses the free-trade wisdom used by the erstwhile dominant Western economies to invent the WTO. But with the phenomenal rise of China as the factory of the world, the Western countries, led by the United States, realized that the export-oriented Asian countries have overtaken them in their advocacy and practice of free trade. Thus, their leaders, notably US President Donald Trump, veered from free trade and started to set up the tariffs and quotas they dismantled not too long ago. Ironically, it is China – which the Western economies hoped to dominate via free trade – that now uses the same free trade ideology to win the international war of economic dominance.

Though not expressly provided in the Constitution but inherently imbedded in it is the right to privacy that is disrupted by the Internet, and soon, by its three most advanced derivatives: Artificial Intelligence, Blockchain Technology and Internet of Things.

Indeed, law, lawmakers, magistrates and lawyers must keep pace with the speedy march of science, if they must maintain the balance between the right to privacy and the utter indispensability of transparency to promote good governance both in the public sphere and in corporate settings.

The Internet and its digital ramifications have been used both for good and for bad. True, as pointed out by the Authors, they have been weaponized to victimize children and women. But they have also metamorphosed into various social media apps, from Facebook to Google, that are used for human progress and at the same time misused by hackers and trolls to vilify and spread fake news; created new lucrative jobs for about 1.15 million Filipinos in the business process outsourcing (BPO) outfits in which the Philippines ranked second in the world according to the global advisory firm Tholons (second only to India but above the US, Canada and all of Europe); connected overseas Filipino workers with their families at home for free via Skype, Viber, WhatsApp, etc. (in lieu of expensive long distance calls and snail mails); and helped advance all branches of knowledge including the longevity of life.

At bottom, the 10 articles in this volume are worth reading for their intrinsic merit and extrinsic advocacies. Together, they present a powerful disruptive force that opens new areas to study and conquer. Congratulations to Lead Editor Herbosa and his coworkers. Potential great lawyers they are who write and edit, and those who verbalize and moot. This is why the English divided them into solicitors and barristers. But the Philippines and the United States combined them into singular attorneys capable of becoming judges, justices, lawmakers and implementers. To them surely belong Herbosa and his team of editors and writers. My wish is to live long enough to witness their passage as topnotch advocates and eminent justices. Cheers!

Comments Off on An Ode to Jurisprudential Disruption

Filed under Speeches

Comments are closed.