Generation gap in the Supreme Court

IF SUPREME Court Associate Justice Lucas Bersamin could have had his way, Justice Marvic Leonen, the most junior associate, should have limited his dissent from the majority’s decision to grant bail to Sen. Juan Ponce Enrile to his personal views. Bersamin took offense at Leonen’s criticism that the majority decision he wrote for the signature of seven other justices was not the version voted upon in their earlier deliberations. According to Bersamin, Leonen’s disclosure on how the decision was arrived at violated the Court’s internal rule on maintaining the confidentiality of their proceedings.

This is not the first reported breach of the Court’s confidentiality rule.

In 2011, then Associate Justice Maria Lourdes Sereno stated in her dissenting opinion from the Court’s order lifting the hold departure order on former president Gloria Arroyo that then Chief Justice Renato Corona blocked the promulgation of her opinion. She also criticized the Court’s spokesperson then, Jose Midas Marquez, for wrongly interpreting the Court’s decision on the case.

Bersamin’s displeasure with Leonen’s disclosure of the internal goings-on that led to the grant of bail to Enrile does not come as a surprise. It is a natural consequence of his long years of service in the judiciary. After passing the bar in 1973 and a short stint in private practice, he was appointed regional trial court judge in 1986. In 2003, he was promoted to the Court of Appeals and eventually elevated to the highest court by then President Arroyo in 2009. Thus, for the past 29 years, Bersamin has been working in an environment that demanded obedience to higher judicial authority, and observance of norms of conduct that are unique to the judiciary. From Bersamin’s point of view, after the justices have been heard on a case and the majority have made their decision, it is the moral and legal responsibility of the justices in the minority to follow it. If they entertain personal misgivings or doubts over the majority decision, they should keep their peace and not air them in public. This way, the confidentiality of their proceedings and the integrity of the Court as a collegial body are not impaired.

Leonen, on the other hand, has a different upbringing in the law profession. After graduating from law school in 1987, he was actively involved in organizations that extended legal services to urban poor and indigenous people’s communities. He was dean of the University of the Philippines College of Law from 2008 to 2011. Prior to his appointment to the Court in 2012, he was the chief negotiator of the Philippine government in peace talks with the Moro Islamic Liberation Front.

The environment in which Leonen honed his professional skills is markedly different from that of Bersamin’s. The generations in which they grew had sharply contrasting mores and codes of conduct.

In Leonen’s case, the late 1980s and succeeding years were characterized by ideological ferment and critical questioning of the ways of the past that influence government policies.

After the fall of the Marcos dictatorship and the return of democracy in our country, no government policy or principle was immune from questioning and critical reevaluation. The “old” order, or the way things were done in the past, was no longer accepted at their face

value, much less considered impervious to changes if such ways had become anachronistic or out of step with the needs of the times.

Given these circumstances, it does not come as a surprise that Leonen (and for that matter, Chief Justice Sereno who is two years younger than him) chose to break the Court’s confidentiality rules on Enrile’s bail petition to express his dismay over the way the majority of his colleagues bent the rules to give Enrile special treatment.

Leonen probably felt the issue was too important to be glossed over or ignored in his dissenting opinion (which was concurred in by three other justices) that he had to make it public. He may have thought that, in the hierarchy of values, strict adherence to the rule of law in the determination of the right to bail in plunder cases, rather than the subjective concept of “humanitarian considerations,” occupies a higher rung. If, in the process of espousing that principle, the confidentiality rule had to be violated and, as a result, earn the ire of Bersamin and seven other justices who agreed with him, so be it. It was a small price to pay for fighting for what he believed was an irregular handling of Enrile’s bail petition.

When Sereno was asked in a recent media briefing (something which past chief justices never did) about Leonen’s dissenting opinion, she said her concurrence with his opinion is unqualified. i.e., she agrees with it in all respects and that includes the criticism about the handling of the majority opinion penned by Bersamin.

It bears noting that Leonen’s opinion also drew the concurrence of Justice Antonio Carpio, the most senior and longest serving associate justice, whose probity and competence are beyond reproach.

There is much to be read in Carpio’s action: He does not find anything wrong with breaching the Court’s confidentiality rule to prove a significant point.

The rules of transparency that the Court has consistently required other government agencies to strictly follow should apply foursquare to it. What is sauce for the gander should be sauce for the goose.

Raul J. Palabrica (rpalabrica@inquirer.com.ph) writes a weekly column in the Business section of the Inquirer.