Judicial greatness

To arrive at a decision, most judges simply apply the law to the facts by using the formula: law times fact equals decision, or LxF=D. This formula is espoused by the Analytical School of Jurisprudence pioneered by John Austin.

Abstraction vs reality. This is the same formula consciously or unconsciously taught in most law schools. Students are told to master the Constitution, codes, statutes, rules of procedure and precedents, and to apply them to hypothetical facts. Verba legis or the strict literal meaning of the legal texts is a must. To take liberties with words is denounced as “judicial legislation.”

When verba legis produces a bad result, textualists wash their hands and shrug it off as “dura lex sed lex” (the law may be harsh, but it is the law). They then pass the blame to lawmakers.

This formula reduces decision-making to an Aristotelian syllogism with the law (L) as the major premise, the facts (F) as the minor premise, and the decision (D) as the conclusion of the syllogism. Example: Anyone who kills shall be jailed (major premise). Pedro killed Juan (minor premise). Ergo, Pedro goes to jail (conclusion).

Like math, this formula (LxF=D) is consistent. In math, one plus one is always equal to two (1+1=2). And one divided by four is always equal to one fourth (1÷4=¼)—in the abstract.

Though both the formula and math are always valid in the abstract, they are not always true in reality. Hence, when one drop of water is added to another drop of water, the result is not always two drops of water, but one bigger drop. And when one piece of wood is divided by four, the result is not one-fourth, but four smaller pieces.

Yes, Austin’s formula is always good in the abstract. But often, problems arise in applying it to the real world. The first problem is how to determine facts. No known science assures the discovery of “the truth, the whole truth and nothing but the truth.” Witnesses sometimes lie, or cannot remember, or are confused, or fail to observe details. Documents can be incomplete, vague, or fake. Scientific and historical evidence can be faultily extracted or badly preserved.

The second problem arises when laws are incomplete, or unclear, or confusing, or contradictory, or obsolete. Laws are not infallible. They cannot provide for all circumstances. Here, the textualists default and say, “If it is not found in the text, then it is outside legal contemplation; and therefore, cannot claim the protection and benefit of the law.”

Right and justice. Yet, justice must be served. Under the Civil Code, “No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.”

In such events, the Civil Code provides the general guideline: “In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.”

When verba legis fails, great jurists rise. They search for “right and justice” beyond the text and look for the spirit, the intent, and the substance of the law in (1) overarching constitutional principles, (2) grand intentions of the constitution framers, (3) great judicial axioms, (4) landmark judicial precedents, (5) international conventions, and (6) legal presumptions.

Concededly, the case of Sen. Grace Poe is unique. The texts of the governing laws neither include nor exclude foundlings in their lists of citizens. The facts of her residency are torn between her mistaken computation in her 2013 certificate of candidacy for the Senate and the truth that she actually transferred her domicile to the Philippines as early as 2005.

Beyond the text. I believe her case presents a rare moment for judicial greatness for those who see beyond the text and ponder on these:

1. Poe is a foundling who certainly deserves the overarching social justice principle of giving more law to those who have less in life.
2. The framers of the 1935 Constitution explained that it was never their intention “to exclude foundlings from natural-born citizenship … and the only reason that there was no specific reference to foundlings … was that foundlings are few … [and] by international law … children or people born … of unknown parents are citizens…”
3. The grand axiom “Salus populi est suprema lex” (the welfare of the people is the supreme law) may be invoked “extra-constitutionally” (beyond the constitutional text) to render social justice, famously wrote the eminent Justice Jose P. Laurel.
4. Frivaldo vs Comelec teaches that “in case of doubt in the interpretation of constitutional and legal provisions involving popular sovereignty, it is best to interpret such provisions in a manner that enables our electorate to elect freely their leaders.” Bengzon vs HRET affirms that natural-born Filipinos who became aliens reacquire their original citizenship when repatriated. And Marcos vs Comelec instructs that the truth, not the mistaken statements in a certificate of candidacy, prevails.
5. The Universal Declaration of Human Rights and the covenants on civil and political rights, on the reduction of statelessness and on the rights of the child favor foundlings like Poe.
6. The presumptions of good faith, nondiscrimination and regularity in the performance of duties undoubtedly benefit her.

Judging from the gutsy “Comment” filed by Solicitor General Florin Hilbay in the Supreme Court, I believe he, too, has seen the moment for judicial greatness. Given his sterling track record as a bar topnotcher and law professor and my personal knowledge of his writing ability and excellent reports as a court attorney 15 years ago, Hilbay—if he were a sitting jurist—can, in my humble view, rise to the moment and craft a grand historic decision.

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