Encounter with Canadian SC justices

Many readers asked why Filipino lawyers are fond of citing the American Supreme Court and American jurists to support their cases and causes. My short answer is: Because our political, constitutional, international, corporate, and tax laws are American in origin.

Logic and authority. Thus, US precedents in these subjects are cited as authority for local litigations involving the same facts and issues as their counterpart American cases. Jurisprudence is authoritarian in the sense that sometimes logic is not enough to understand and interpret a legal provision; it should be buttressed by accepted usages and precedents from the foreign jurisdiction where the legal provision was sourced.

In the not-so-distant past, our Supreme Court also relied heavily on Spanish decisions and authorities, like Manresa and Sanchez Roman, in interpreting our civil laws (on family affairs, marriage, property relations, inheritance and basic commerce) because of the parallel reason that our Civil Code (and old Code of Commerce) was sourced from Spain.

This same question of why we lean heavily on American authorities was asked when, together with some of my colleagues in our highest court, I visited the Supreme Court of Canada in Ottawa. The Chief Justice of Canada, the Right Honorable (that’s how Canadian justices are addressed) Beverley McLachlin, hosted lunch in the inner sanctum of the Canadian Court (known simply as the “Judges’ Dining Room”) on that fine, sunny Tuesday, June 18, 2002.

After breaking bread, we were ushered to one of the Court’s internal conference rooms where we had a lively discussion with our hosts. To start our dialogue, Senior Justice (now retired) Claire L’Heureux-Dube remarked, “I notice that your decisions in the Philippines liberally quote from the US Supreme Court, especially from Justices Oliver Wendell Holmes, Hugo Black and Felix Frankfurter. However, I have yet to see one that cites our Supreme Court or our Canadian justices.”

Breaking the ice. For a moment, our delegation was stunned into speechlessness. But after a second or two of silence, I found my tongue and replied, “I must admit that Your Honor is correct. In its over 100 years of history, our Supreme Court has not used a Canadian precedent to buttress its judgments. But may I also venture my respectful observation that I, too, have yet to read a Canadian decision citing the Philippine Supreme Court.”

That exchange of banter broke the proverbial ice, so to speak, leading to our more in-depth discussions on the role of the judiciary in our respective nations’ history and development.

May I also say that I took the banter to heart.

After returning to the Philippines, I penned a decision, People vs Genosa (Jan. 15, 2004), adopting for the first time the “battered woman syndrome” as a form of self-defense, or at least as a mitigating circumstance, in a prosecution for parricide committed by a wife against her husband. In that landmark case, I expressly cited a decision of the Supreme Court of Canada as authority. I made sure that a copy was sent to the justices in Ottawa.

That encounter may have been a minor incident in the great history of the Canadian Court, but it was a major event of my judicial career. I even remember the menu served: onion soup, gingered steak with Napa cabbage salad, vanilla ice cream with fresh fruits, and coffee/tea. Indeed, it is not every day that the Canadian Supreme Court goes out of its somber ways to host and banter with jurists from a little country halfway across the globe.

Chief Justice McLachlin’s visit. I used that opportunity to invite Chief Justice McLachlin to visit us, which she did in October 2006. She attended the Global Forum on Liberty and Prosperity, which I convened as my valedictory as chief justice of our country. Over 300 chief justices, jurists and lawyers from all over the world attended, but I think the brilliant Canadian CJ so loved it here that she extended her stay from her original three days to one week.

McLachlin is the first woman and longest-serving chief justice in Canadian history. She started her term on Jan. 2, 2000, and will end it on Sept. 7, 2018, when she turns 75, the retirement age in her country (it’s 70 here). Ateneo de Manila conferred on her, during her extended stay, an honorary doctoral degree in law.

Though appearing stoic and unreachable while presiding on the bench, she is cordial and friendly in informal gatherings among colleagues. She could eloquently deliver scholarly speeches just as she could gracefully pirouette on the stage. She gamely danced the swing and the boogie with me during the farewell party I hosted for her. My wife Leni and I cherish a personal friendship with her and her low-profile husband Frank who accompanied her.

At another time, I will relate my encounters with our other foreign counterparts, especially the Spanish, Chinese, Russian, Egyptian and Asean judiciaries. We have historical and jurisprudential relations with them, which I will explain later. As a sidelight, I will also recall my interesting conversation with then Spanish Prime Minister Jose Zapatero during a luncheon he hosted in Madrid.

Incidentally, the Asean chief justices, at the invitation of CJ Maria Lourdes P. A. Sereno, will be in the Philippines in late February to attend the General Assembly of the Asean Law Association (ALA) in Makati and Boracay. The official host is the ALA Philippines Chapter headed by Accra Law’s top honcho, Avelino V. Cruz.

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