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In Bruselas’ defense 

(Article published in the Jan  17, 2007 issue of Manila Standard Today)  

If the report that came out on Friday in a daily broadsheet is accurate, then last week was probably the first time that I know of that former Senate President Jovito Salonga could be considered less than fair

 The statesman was reported to have told the daily newspaper that Justice Apolinario Bruselas, the ponente of the Court of Appeals decision in Lance Cpl. Daniel Smith vs Honorable Benjamin Pozon, et al., CA-G.R. SP 97212, promulgated Jan. 02, may be held criminally liable for a violation of the Revised Penal Code.  If proven guilty of the crime of falsification by a public officer (apparently he had in mind Article 171(6) of the RPC penalizing “any alteration or intercalation in a genuince document which changes its meaning”) the good Senate president further said, the appellate court justice may face a penalty of prision mayor or up to six years of imprisonment.

 Why, of what grievous act is the justice being accused by the good Senate president? Apparently, of, allegedly, falsifying and altering, in the Court of Appeal’s decision that rendered the aforesaid Smith’s petition “moot,” the last sentence of a decision of the US Federal Supreme Court which was decided more than 100 years ago, on May 2, 1904.  Part of that decision read as follows:

“…legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” (Missouri, Kansas and Texas Railway Company v. May, No. 185, 194 U.S. 267, 270; 24 S. Ct. 638; 48 L. Ed. 917; 1904 U.S. LEXIS 853).

 As it appeared in the decision written by Justice Bruselas, the passage, in italics, was as follows:

 “The other branches of government are ultimate guardians of the liberties and welfare of the people in quite as great degree as the courts”.

 The obvious difference is that the word “legislatures” was replaced by the phrase “the other branches of government”.  The real question is whether the change altered the meaning of the passage. A look at the U.S. decision shows the change is clearly inconsequential.

Missouri, Kansas and Texas Railway Co. was a case brought by the owner of farm contiguous to the railroad of the train company to collect the amount of $25 (which may not have been a pittance at that time, 1904) based on a statute in Texas.  The law penalizes railroad companies if they permit a kind of grass, called Johnson grass or Russian thistle, to grow in their right of way.

 The Johnson grass is, if you are a farmer, a hateful grass.  It is very aggressive, occurs in dense clumps, spreads by seed, and has roots that form nearly pure strands.

 The grass emerges late in spring and forms seed by July 1, reaching a height of eight or more feet. Stems and leaves die after the first frost, but the dead litter often covers the ground all winter. Rhizome cuttings commonly form new plants, making it very difficult to eradicate. It spreads rapidly and is not affected by many of the agricultural herbicides. It quickly dominates the herbaceous flora, crowding out the natives species and slowing down what agriculturists call “plant succession.”It is unsightly to observers.

It was therefore in everyone’s interest that the growth and spread of Johnson grass was controlled.However, the Texas law imposes the penalty of letting Johnson grass to grow only on railroad companies.Hence, it was challenged, eventually, before the US Federal Supreme Court as a violation of what we in our Constitution call the equal protection clause.We Filipinos take the presence of this clause in the constitution as for granted, but in the United States, it came in (together with “due process”), not in the original text, but only, after the Civil War, as the 14th Amendment of the Constitution.

What is being questioned is a law and thus the case was, at its roots, a challenge against an act of a legislature and not an act of any other department of government.That is why the American ponente, Justice Oliver Wendel Holmes Jr. specifically had to speak of “legislatures” in the quoted passage.

But actually, the logic of the thought that he was expressing with the last sentence of his ponencia applied to other non-judicial entities of government and not just to legislatures.  The last two sentences of the Holmes ponencia (of which the Bruselas quote was a part) read as follows:

“Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.”

The phrases “great constitutional provisions” and “joints of the machine” clearly indicate that Holmes had signaled the orchestra to step up the volume for the final flourish in his opinion.   That final flourish states that the courts have no monopoly of the duty of guarding the liberty and welfare of the people.He specified “legislatures” because the case was only against the lawmaking authority in Texas; but clearly, he had no intention to state that only the legislatures, besides the courts, are the guardians of the people’s liberty and welfare.

I am not the only one who reads Holmes in this manner. Sixty-four years later, Justice John Marshall Harlan II, grandson of another Justice Harlan that sat in the same court as Holmes, read it the same way I do. In his dissent in the case of Flast v. Cohen, 392 US 83; 20 L Ed 2d 947, 979; 88 S Ct 1942, Justice Harlan wrote:

“…We must as judges recall that, as Mr. Justice Holmes wisely observed, the other branches of the Government ‘are ultimate guardians of the liberties and welfare of the people in quite as great degree as the courts.’”

In short, the main idea of Holmes, as also seen by Harlan, was that the courts are not the only guardians of the people. The word “legislatures” was therefore a mere adjective for the intended universe of other governmental entities; hence, Justice Harlan freely substituted “the other branches of government” for it.

Admittedly, Harlan was more careful in placing the opening quotation marks before the word “are”. The one who typed Justice Bruselas’ ponencia was not as meticulous.But what is clear is that neither Harlan nor Bruselas changed the meaning of Holmes.

It thus appears to be an uncalled for reaction to the Smith decision of the Court of Appeals to speak of criminal liability for the ponente on account of an errant placement of the open quotation marks. It is one thing to disagree with the substance of a decision; it is another to make a big thing out of a simple error, which for all we know could have been a mere typographical error.

           The time of the justices of the Court of Appeals, and of all magistrates for that matter, is better spent in deciding with justice the cases before them than in ensuring that punctuation marks are always in the right place in all their decisions and resolutions.