Friday, July 20, 2018
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Sisyphus’ Lament

Easy to manipulate legal media coverage

The same-sex marriage case barely discussed same-sex marriage. Rather, it was an unprecedented scolding over glaring jurisdiction violations — by justices who seemed open to same-sex marriage. This made the hearings last June 19 and 26 a reporter’s nightmare, impossible to summarize with normal journalism.

For example:

Justice Estela Perlas Bernabe: “What direct and actual injury have you sustained as a result of the Family Code?”

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Petitioner Jesus Falcis: “As an individual, I possess the right to marry because the right to marry is not given to couples alone….

“[Under Pimentel vs Aguirre] the mere enactment of a law suffices to give a person either an actual case or standing, because we are invoking the expanded power of judicial review….

“Therefore the direct injury that I suffer was the passage of a law that contradicts the Constitution in grave abuse of discretion because of the disregard of other fundamental provisions such as the equal protection clause, the valuing of human dignity, the right to liberty and the right to family.”

Bernabe: “But we have existing jurisprudence that says that if you challenge the constitutionality of a law, it is not enough that the law is invalid. There must also be a direct injury.”

Falcis: “We are aware that there are cases to that effect, however we again are guided by the most recent jurisprudence….”

Bernabe: “Have you actually tried applying for a marriage license?”

Falcis: “No, I would concede that I do not have a partner.”

You might picture Bernabe as “The Mountain,” with Oberyn Martell circling her in a majestic duel.

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But a law student would picture Arya Stark and Nymeria’s one-sided beating of Joffrey in Season 1.

Bernabe asked a standard freshman midterm question. Generally, he who claims a law is unconstitutional must be the one specifically affected.

Here, this is no mere technicality.

Our Constitution’s Article VIII, Section 1 requires “actual controversies.” Justices could theoretically be impeached for ruling on a marriage case with no one to marry.

Without this crucial context, and emphasizing that Bernabe’s questions on jurisdiction had nothing to do with same-sex marriage itself, merely summarizing the back-and-forth creates false balance.

A reporter could add that a couple married by an LGBT Christian church were added as “intervenors.” But justices who spoke, except Marvic Leonen, opined that intervenors cannot cure the petition.

Or, add that Acting Chief Justice Antonio Carpio raised the position that one may challenge a law not yet implemented under a “facial challenge.” But he added that this is allowed for criminal laws, not the Family Code (and this took effect in 1987).

Clearly, it takes effort to follow a hearing’s nuances. But no one complains that there are too many characters in “Game of Thrones.”

My excerpt covers only three minutes from over six hours. Summarizing a Supreme Court hearing in context, in 600 words, is as difficult as summarizing “Game of Thrones.”

For a young journalism graduate under a tight deadline instead of a Yale or Stanford Law graduate like US Supreme Court reporters Linda Greenhouse and Dahlia Lithwick, it is near impossible.

Because it is so difficult to convey what was actually said in Supreme Court hearings, we end up debating what was said about what was said, such as post-hearing TV interviews.

There is no accountability for what was actually said in Supreme Court hearings.

Our Supreme Court reporters are brilliant, dedicated and learning fast. Some will grow into our Greenhouse or Lithwick and immortalize the intricate beauty of Supreme Court arguments done well.

But lawyers sorely need to help fact-check hearings. Readers must demand this. Beyond audio files, the Supreme Court could release transcripts to facilitate fact checks.

The stakes are immense.

In 2012, we did not grasp that online libel was criminalized by a 1930 law, not the Cybercrime Act. In 2017, we did not grasp that a disbarment case against the Ombudsman is prohibited.

Today we do not grasp that the same-sex marriage case barely discussed same-sex marriage.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan. This column does not represent the opinion of organizations with which the author is affiliated.

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TAGS: Antonio Carpio, Estela Perlas-Bernabe, Family Code, Jesus Falcis III, Oscar Franklin Tan, same-sex marriage, Sisyphus’ Lament, Supreme Court
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