Justices rarely telegraph their punches

The questions asked by Supreme Court justices during oral arguments do not necessarily reflect their opinions. Many times, they are innocent inquiries. Sometimes, they test the parties’ theories and arguments, and show how outlandish or indefensible they are. At other times, they probe the strengths and weaknesses of the arguer’s propositions. Justices rarely telegraph their punches.

Justices’ homework. For instance, during the recent oral argument on the constitutionality of the Enhanced Defense Cooperation Agreement (Edca), much was said of the alleged desire of some justices to remand it to the Senate for ratification, instead of tackling it head-on.

I think the roasting justices did not necessarily favor such referral and the consequential avoidance of their constitutional duty; they merely wanted to test the alleged prematurity of the petitions. In fact, I am confident they will rule squarely on the Edca’s constitutionality.

Also, questions on whether the United States would automatically defend the Philippines if attacked by a foreign power do not necessarily mean that the querying magistrates held a negative position. They may in reality hold the opposite.

To be sure, most justices complete their homework before every oral argument. They minutely scrutinize the pleadings, review jurisprudence, and ingest the case summaries prepared by their court attorneys.

Pity the lawyers who come to court unprepared, or are tongue-tied by complex questions, or simply overwhelmed and star-struck! Even seasoned advocates get confused when peppered with sudden shifts to seemingly irrelevant topics.

Seasoned lawyers always “overprepare.” Like aspiring actors priming for auditions, they practice their arguments before their peers. After I retired, newbie oralists came to me to be grilled in imitation of the actual hearing.

But whatever the substance or tenor of the questions and the seeming passion by which they are asked, do not be beguiled into believing that the questions necessarily reflect the real positions of the magistrates. Their final opinions and votes are determined only after the written memoranda of the parties are submitted and after the justices had deliberated among themselves to craft their decision.

My unsolicited advice to would-be oralists: Master the facts, double-check your theory, relax and expect the unexpected. Remember, the justices may be more familiar with your own case than you are. So, they may publicly prick you.

Accept this humbly. Never bluff, lie, or mislead. Always be candid, thorough and sincere. A little well-timed humor may help ease tense moments.

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Teehankee remembered. The 25th death anniversary of Chief Justice Claudio Teehankee was commemorated last week by the Rule of Law Center at Ateneo Law School in Makati.

As one of the guest speakers, I hailed the late chief’s (1) giant intellect and (2) moral courage. He finished summa cum laude both his bachelor of arts and bachelor of laws degrees at Ateneo, and topped the 1940 bar exam.

After distinguishing himself as one of the most sought-after law practitioners in the country, he was named secretary of justice and later associate justice of the Supreme Court by President Ferdinand Marcos. In the highest court, he actively espoused libertarian causes and became a painful thorn in the side of the compliant Supreme Court during martial rule. Though deserving as the most senior justice, he was twice bypassed as chief justice by Marcos.

After the dictator was toppled in 1986, President Corazon Aquino appointed him the 16th chief justice of the country. He retired from the Court in 1988. But President Cory asked him to continue serving as this country’s permanent representative to the United Nations. He died in office in New York City on Nov. 27, 1989. His remains are

interred at the Libingan ng mga Bayani.

During those perilous times, there were many intellectually gifted public officials but few had the moral courage to stand up to their benefactor.

Teehankee stood for his principles and sacrificed his (and his family’s) entitlements, safety and comfort.

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Professorial lecture. Dean Mikhail Lee Maxino of the College of Law of Silliman University, one of the 10 holders of the Chief Justice Panganiban Professorial Chairs on Liberty and Prosperity, theorized that the three basic constitutional rights to life, liberty and property are coequal.

Surveying jurisprudence from states that observe the rule of law like the United States, Canada, India, South Africa and the Philippines, he explained that “the democratic government which provides utmost liberty to its people achieves the greatest general peace and prosperity.”

He cautioned, however, that “the rich, the powerful and the privileged” should not “forcefully invoke their liberty and fundamental rights to trump those of the poor and less privileged, especially their socioeconomic rights.”

Though couched in legalese, his lecture clearly echoed the necessity of safeguarding the liberty and nurturing the prosperity of our people. Indeed, as espoused by the Foundation for Liberty and Prosperity, justice and jobs, freedom and food, peace and progress, liberty and prosperity must always go together; one is useless without the other.

Cosponsored by the Metrobank Foundation, the professorial chairs are held by the deans of our nine leading law schools and the chancellor of the Philippine Judicial Academy.

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