Magic tricks and contortions

I thought that the Supreme Court decision that justified the midnight appointment of Renato Corona as Chief Justice was a breathtaking exercise in judicial legerdemain, exceeding by far the legal contortions it engaged in later to show that plagiarism by a justice is not plagiarism. But I think I can safely say that it has been put to the blush by the arguments forwarded by the majority in its recent decision (7-2, with 5 abstentions) involving the Flight Attendants and Stewards Association of the Philippines (Fasap).

I urge the reader to read both the majority decision and the dissenting opinion, the latter penned by Associate Justice Ma. Lourdes Sereno, who showed up the majority arguments for what they are. In the meantime, please allow me to describe, in layman’s language, some of the latest magic tricks and contortions on this 14-year-old case:

In June 1998, Philippine Airlines retrenched 5,000 employees, including 1,400 cabin crew, members of the Fasap (the continuing ordeal of the other 3,600 is still a nightmare issue). The retrenchment was described as a “cost-cutting measure” by PAL, which claimed to have incurred P90 billion in liabilities as a result of the 1997 financial crisis. Suffice it to say that a series of decisions, reversals and appeals found the case in the Supreme Court in 2007.

The high court (in one of its finer moments) found in favor of Fasap in 2008, a decision which of course PAL appealed in a motion for reconsideration (MR). This was denied in October 2009.

PAL filed for a second MR, which the high court denied “with finality” on Sept. 7, 2011, using pretty strong language (e.g. “PAL appears to be less than honest in its claim” and “This case has dragged on for so long and we are now more than duty-bound to finally put to an end to the illegality that took place; otherwise the illegally retrenched employees can rightfully claim that the Court has denied them justice”). That decision was written by Associate Justice Arturo Brion.

Less than a month later (Oct. 4, 2011), the Supreme Court en banc recalled its Sept. 7 resolution.  Not on the basis of any appeal or MR filed by PAL but because PAL counsel Estelito Mendoza wrote four letters—not even addressed to the high court or any of its members, but merely to the clerk of court. And rightly so, because the questions were in effect administrative in nature—the composition of the Supreme Court’s divisions in the case, whether the case might have been transferred from one division to another.

Fasap filed an MR, claiming among others that not only had there been no formal appeal by PAL, but it was also not even asked by the high court to give its comments on the Mendoza letters before it made its recall decision.

Fast forward to the March 2012 7-2 decision of the high court “In Re: Letters of Atty. Estelito Mendoza re …” The bottom line of this decision is that Fasap is now back to square one, because the high court en banc was taking jurisdiction of the case and would now be studying not only PAL’s second MR but also its first MR, which questioned the original 2008 decision.

In other words, it is a complete victory for PAL, without its even having formally asked for it, and a complete defeat for the 1,300 illegally retrenched Fasap members. Because as sure as my name is Winnie, the high court en banc will, in due time, rule that way.

How did it arrive at that conclusion? Here are examples of the magic tricks and contortions:

Magic trick No. 1 is a disappearing memo: When the high court en banc met on Oct. 4, 2011, with Mendoza’s letter on the agenda, Chief Justice Corona did not mention that the clerk of court had written a memo which debunked Mendoza’s claims of administrative faux pas in the assignment and raffling of the cases. Which was why there was no dissent from the justices when Corona said that the questions merited a recall of the Sept. 7 resolution until they could be studied, and particularly because Brion, the ponente of the resolution, made no demurrer.

Magic trick No. 2: The majority decision listed all the errors made by the raffle committees (all justices) and the clerk of court in the assignments of the case, thus supporting Mendoza’s contentions and ignoring the clerk of court’s memo. But it concluded that no fault could be attributed to the clerk of court or to any of the justices. Administrative faux pas galore, but no one at fault.

Sereno, to whom the case was raffled after the Oct. 4 recall resolution, found absolutely nothing wrong in the assignments of the case—in other words, the Mendoza questions were without basis, and there should have been no recall if only the justices had been shown the memo of the clerk of court.

Now the contortions. No. 1, really major, was transforming the administrative mistakes into a jurisdictional issue, in order to lay the basis for the high court en banc taking over jurisdiction and reviewing the case on its merits all over again. The point is that whether PAL’s MR was assigned to the first, second or third division becomes irrelevant and immaterial against substantive justice.

Contortion No. 2 is the concept of a “nominal” ponente, who presumably has the authority to admit an MR, but cannot rule on it, as opposed to a “ruling” ponente, who has the authority to write the decision on its merits. Shades of plagiarism that is not plagiarism—a ponente who is not a ponente.

But the biggest contortionist—the king of all flip-flops—has to be Brion, who was the ponente of the Sept. 7, 2011, resolution that gave the “final” victory to Fasap, and also the ponente of the recent decision that took it away from Fasap and gave it to PAL instead. Infamous.