The Philippine Law Journal is turning 100. What a lovely epitaph for the storied academic journal of the University of the Philippines College of Law.
Becoming PLJ chair 10 years ago, during its 90th anniversary, was my happiest moment. I was a mortal allowed to glimpse gods when I, a mere student, was sworn in by Jovito Salonga (a former Senate president) in front of academic titans Francis Jardeleza (now associate justice of the Supreme Court), Rafael Morales (SyCip Salazar managing partner), Raul Pangalangan (then UP Law dean and now Inquirer publisher), and Salvador Carlota (then future UP Law dean). But the moment was made bittersweet by the thought that the PLJ had become irrelevant, far short of the “handmaiden of jurisprudence” we students told our betters it should be.
Ten years ago, I counted how many times the PLJ was cited in Supreme Court decisions, and even scrounged for those incorrectly formatted footnotes that would be missed by a normal search. In 1991-2003 the PLJ was cited only 23 times, or less than twice a year. Worse, 16 out of 23 were for minor points and 13 out of 23 were by then Justice Reynato Puno (whose retirement would dramatically reduce this count). Only one PLJ article truly influenced a decision, a landmark student article of one Antonio Carpio (now required reading in UP Law) revisited in his own ruling.
Repeating the exercise today, in 2004-2013 the PLJ was cited only 11 times by the high court, or once a year. Eight were for minor points, and one was made while alleging that a fellow justice’s article was plagiarized. In comparison, the Ateneo Law Journal was cited only five times, or once every two years. The Harvard Law Review was cited 25 times.
These damning statistics can only imply that we have unconsciously outsourced our legal reflection to foreign writers. The apolitical academe is supposed to check the apolitical high court and help communicate what it says in its dignified silence, but this crucial intellectual relationship has vanished.
This proposition is bolstered by other worrying counts. Taking the Cybercrime Law decision, for example, 50.4 percent of its citations were to Philippine decisions and textbooks, 24.9 percent to foreign decisions and textbooks, 14.5 percent to foreign websites, and 3.7 percent to foreign law journals. Taking the Reproductive Health Law decision, 43.3 percent of its citations were to Philippine decisions and textbooks, 14.9 percent to foreign decisions and textbooks, 8.8 percent to foreign websites, and 2.2 percent to foreign law journals. Neither landmark decision cited a single Philippine law journal, despite being extremely important rulings that covered a broad range of subjects on which Philippine authors have written.
The immediate explanation is as simple as it is unfortunate. Foreign journals are compiled in special electronic databases, from which a justice’s staff can retrieve dozens of articles in seconds. Philippine journals at best have websites that must be searched individually, per journal, and at worst demand a time-consuming trip to the library to browse through physical pages. Reflecting the convenience of electronic searches, note the numerous citations to shorter articles in foreign websites in both the Cybercrime and RH decisions. The long-term explanation, however, can only be a lack of vibrant academic debate surrounding high court decisions in our memory-driven, bar-exam-obsessed legal education system.
The cost of our system’s unknowing reliance on foreign thinking is apparent. Our rule is that it is more difficult to convict for libel if an accused wrote about a “public figure.” US doctrine defines a public figure as a celebrity, someone who naturally attracts public attention because of his acts. Philippine doctrine is far more liberal, also counting as a public figure anyone who has become involved in an issue of public interest even if he did nothing to attract attention. Carpio emphasized this difference, crucial in Internet contexts, when he dismissed libel charges by an Ampatuan lawyer against journalists last year. However, libel decisions as recent as the 2009 Yuchengco decision have cited the wrong doctrine because they cited American, not Philippine, sources.
The “death” of the PLJ is reflected in our lack of critical commentary. When impeachment charges against President Aquino were dismissed in Congress, the media focused on counts of his allies, and only a belated Inquirer editorial went through the charges’ scant legal merits. When the President protested the Disbursement Acceleration Program’s nullification, his defenders moved to nonlegal “higher” discussions that seemed to argue that the ends justify the means, skipping legal arguments that judges should give more leeway in interpreting technical budget rules. Reacting to the RH decision, pundits argued policy and overlooked how several portions reversed existing doctrine without citing legal authorities (“RH decision’s booby traps and reinvented doctrine,” Opinion, 4/21/2014).
The academe’s absence should worry the high court most of all, because a lack of critique also means a lack of credible praise. In the face of the President’s recent outbursts, it would have been the law journals that reiterated how the antipork-barrel decisions were strictly legal and contained no politicking, or how the Cybercrime decision tackled far more than cyberlibel, on which the media had overly focused. One hopes our justices, the fonts of legal academe, will uplift the unsung student editors nursing our near-dead law journals.
The complete paper of Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan), “The Death of the Philippine Law Journal” (88 Phil. L.J. 539 [2014]), will be released as part of the PLJ centennial issue on Sept. 13.