The late US Supreme Court Justice Antonin Scalia was famous not only for his intellect or his role as avatar of the American conservative movement, but also for his searing sarcasm whenever he found himself on the losing side of a decision—sarcasm directed at his own colleagues on the court.
There was, for instance, the case of the mythical fortune cookie. Vehemently dissenting against the decision favoring same-sex marriage, written by Justice Anthony Kennedy, Scalia attacked even Kennedy’s writing style.
“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Senior Associate Justice Antonio Carpio is no Scalia, in the good sense. He is the leading intellect on the Philippine Supreme Court, but if he finds himself on the losing side of a case he does not regard his colleagues in contempt. He limits his criticism strictly to the argument (or the lack of it) in the majority decision.
But his closely argued dissent in the consolidated Poe vs. Comelec cases begins with an uncharacteristic and powerful broadside at the very concept of a court majority.
“With the ruling of the majority today, a presidential candidate who is deemed a natural-born Filipino citizen by less than a majority of this Court, deemed not a natural-born Filipino citizen by five justices, and with no opinion from three Justices, can now run for President of the Philippines even after having been unanimously found by the Commission on Elections en banc (Comelec) to be not a natural-born Filipino citizen. What is clear and undeniable is that there is no majority of this Court that holds that petitioner Mary Grace Natividad S. Poe Llamanzares (petitioner) is a natural-born Filipino citizen.”
What Carpio chose not to highlight is that there was in fact a majority of justices who concurred with the ruling’s main disposition. The decision written by Justice Jose Perez ends with the following words: “Petitioner MARY GRACE NATIVIDAD SONORA POE LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and Local Elections of 9 May 2016.”
In her own concurring opinion, Chief Justice Maria Lourdes Sereno took direct aim at Carpio’s undermining of the hard-won majority.
“With the majority of the members of the Court declaring, by a vote of nine as against six, that petitioner Mary Grace Poe Llamanzares has no legal impediment to run for the presidency, it is most unfortunate that one of the dissenting opinions opens with a statement that tries to cast uncertainty on an already tense situation.”
She added: “The dissent gives excessive weight to the fact that there are five justices in the minority who believe that petitioner does not have the qualifications for the presidency, while ignoring the reality that there are at least seven justices who believe that petitioner possesses these qualifications”— referring to Senator Grace Poe’s status as a natural-born citizen and as a resident in the Philippines for at least 10 years. “Out of the 12 members who voted on the substantive question on citizenship, a clear majority of seven voted in favor of petitioner. As to residency, seven out of 13 voted that petitioner complied with the 10-year residency requirement.”
This is not the first time that the Supreme Court has reached a major decision with several layers of voting. For instance, the landmark decision in Estrada vs. Macapagal-Arroyo, which gave the second Edsa uprising legal imprimatur, was the result of many-layered voting: Two of the justices inhibited themselves, two wrote separate concurring opinions, and five concurred only “in the result.” It was a controversial decision, but it became binding.
Losing lawyer Manuelito Luna, counsel for one of the parties questioning Poe’s qualifications, challenges this jurisprudential tradition by saying the Poe vs. Comelec ruling “binds no one.” There is a direct line between Carpio’s opening statement and this open challenge.