Justice Perlas Bernabe’s swing vote

Low-key Justice Estela Perlas Bernabe is our US Justice Anthony Kennedy. His swing vote is so crucial it legalized same-sex marriage. A New York Times editorial begged him not to retire, lest President Donald Trump appoint an ultraconservative successor.

Agence France-Presse correspondent Ayee Macaraig asked me whether decisions are influenced by which president appointed which Supreme Court justice. I replied one should not focus on this.

A case cannot be reversed merely by citing who appointed who, instead of dissecting legal arguments.

I was happy she was conscious of this. Media can unintentionally dumb down legal debates with analysis by conspiracy theory. I am proud Inquirer news reports do not stoop to this.

There is a persistent narrative that justices appointed by former president Gloria Macapagal Arroyo vote as a bloc—except Acting Chief Justice Antonio Carpio, who is a force unto himself—and President Duterte’s appointees continue the pattern.
Carpio and President Benigno Aquino III’s five appointees vote against them. The alleged 9-6 equilibrium entrenches Mr. Duterte’s agenda.

But Bernabe, an Aquino appointee and former Court of Appeals justice, breaks the conspiracy theory.

She first took the spotlight as lead justice in the 2013 pork barrel case. She is all business, floating no sound bites that beg to make headlines.

De Lima’s 2017 case ended 9-6. Where many publications (not the Inquirer) cited the above pattern, I framed that career judges outvoted the private lawyers and academics.

Bernabe dissented that drug charges against De Lima were intertwined with her being secretary of justice. Thus, the Sandiganbayan, not a trial court, had jurisdiction.

But she did not explicitly disagree with the career judges who objected that De Lima filed a high court case before the trial judge could rule on her objections.

Thus, the case suffered from glaring procedural problems, though I criticized the actual charges in past columns.

The 2016 Marcos burial case ended 9-5. Pundits demonized the decision’s numerous sentences condoning Marcos. But only four justices adopted it.

Joined by Bernabe and three others, Justice Jose Mendoza wrote a moderate concurrence: Marcos’ burial was up to the President because no law prohibited it. He explicitly affirmed the 1987 Constitution denounces Marcos and ended: “the burial of President Marcos in the Libingan ng mga Bayani will not rewrite history.”

This again implies a badly framed case. It principally invoked a “national pantheon” law. Both majority and dissenting justices—
except, inexplicably, Marvic Leonen—threw this out as referring to the wrong cemetery.

The 2017 martial law case ended 11-4. Bernabe and two other Aquino appointees wrote moderate opinions allowing martial law.

Bernabe opined the Supreme Court should only check whether there was rational factual basis for the President to declare martial law. This is a low threshold in line with broader legal doctrine on commander in chief powers.

She emphasized judges are not competent to second-guess military strategy and intelligence.

She later voted martial law may be extended until all rebels are arrested. I disagree, but she argued that beyond actual armed combat, elements of rebellion such as recruitment, intelligence and fundraising are just as crucial.

One cannot demonize a judge merely for disagreeing with one’s political beliefs, without criticizing her reasoning. If an allegedly biased judge cites a correct doctrine, it is stronger to attack the doctrine, not the judge.

Our toddler democracy must outgrow soap opera approaches to legal analysis.

The next time you make a blanket criticism of a Supreme Court decision, ask yourself if it calls a demonstrable independent, such as Bernabe, biased and corrupt.

Your interpretation may be absurd, does not make sense, unreasonable and oppressive.

On “I have a tape of the Chief Justice lying” (4/23/2018), @candideph on Twitter and Ombudsman Conchita Carpio Morales reminded it was a Civil Service Commission regulation misrepresented in the April 10 hearing, not the Ombudsman’s.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.