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In defense of Carpio

(Article published in the Nov. 8, 2006 issue of Manila Standard Today)  

The ponencia of Justice Tony Carpio for the majority in Lambino v. Comelec, G.R. No. 174153, promulgated October 25, 2006 will most likely hold the record for quite some time for having elicited the most reaction from the public, not so much on its substance, but on its style.

  The ratio decidendi excited nobody.  But it was the style that raised some people’s blood pressure. Presidential Chief of Staff Michael Defensor reports the President was “perplexed” at the “stinging” words of her appointees.  Sigaw ng Bayan was supposedly “hurt”; some were “appalled” and Sen. Miriam Defensor Santiago is said to have described it as “vicious” and in “extremely strong condemnatory language”.

  From press accounts, the criticism is focused mainly on the ponencia’s exposition of how the petition failed to show that the people who signed were properly informed.  Thus, after pointing out that the Lambino Group verbally made public representations that were clearly contrary to the text of its proposal, the ponencia said that “the result is a grand deception on the 6.3 million signatures who were led to believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local elections.”

  The supposedly offending phrase is “grand deception”.  But then, if there is misrepresentation, is there not a “deception”.  And, if as judicially admitted, the false representation was made to at least 6.3 million, was the deception then to be soberly described as “minor”? or “insignificant”? 

  Then, the ponencia proceeded to point out that the proposed changes included a topic that not only was unrelated to the disclosed subject (in effect prohibited “logrolling”) but also requiring, not just making possible, other amendments, unknown to us all in shape or form they will be.

Moreover, the ponencia noted, the proposal would pave the way for the effective exclusion of the present Senators and limit to the present members of the House of Representatives the opportunity of being the Prime Minister.

  Thus, only the present congressmen can possibly be, for lack of a more appropriate term, “opportunists” for the position of Prime Minister and the present Senators cannot.  That, in my view, is rank discrimination; birds of the same feather should be permitted to flock together and be included in the list of possible Prime Minister. 

  Thereafter, the ponencia then proceeded to explain why the constitution requires the full disclosure of the proposal. “An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people.”  Calling the initiative “Gigantic fraud on the people” is the offense.

  However, stylistically, it is to be observed that the ponencia, in that paragraph, has clearly stopped talking of the Lambino Group’s proposal. This is obvious from the use of “An” instead of “The”.  But then, many saw it otherwise.  That only goes to show that beauty is really in the eyes of the beholder.

  At any rate, the summary of criticisms against the ponencia was made by Atty. Estelito Mendoza.  He was reported to have said, it was “un-Supreme Court like.” The premise is that a judicial opinion ought to be no more than an exposition of what the law is as it applies to a certain set of facts.  Therefore, it must stand exclusively on its logic and must not show any trace of strong emotion.

  With due respects, I disagree.  A judicial opinion, I submit, is, if I may use the terminology of Howard Gardner, a “mind-changing” instrument.  Its purpose is to persuade and may pursue that objective using any fair rhetorical device that may suit the judge writing it.

  I go with Richard A. Posner’s observation, in his book entitled “Law and Literature” with the subtitle “A Misunderstood Relation”, that judicial opinions are “unavoidably rhetorical.” Certainly, the writer of the opinion for the majority must persuade his concurring colleagues, the dissenters (if any), the law professors ever in the look out for judicial lapses, the practitioners, and the media people, that the dispositive provision is the right and just thing to do.

  Posner, a judge of the US Circuit Court of Appeals for the Seventh District, is supported by the findings of Ray Laura Krugman who in “Judicial personality: Rhetoric and emotion in Supreme Court opinions” published in the Winter 2002 issue of Washington and Lee Law Review, analyzed the decisions of the Roosevelt Court, particularly those of Justices Black, Frankfurter, Douglas, and of the Rehnquist Court, such as those of Chief Justice Rehnquist and Justices Kennedy, Scalia, and Blackmum.  She demonstrated the use by these justices of a variety of rhetorical strategies to persuade and convince.

  Decisions of the Philippine Supreme Court likewise bear unmistakable marks of rhetorical devices, mostly hyperbole. In his dissenting opinion in U.S. v. Bumanglag (14 Phil 644), Justice Moreland, as early as 1909, described an attacker as “a desperate and reckless criminal” and as “desperate, vicious, criminal, and powerful…”  Justice Malcom, for his part, used metaphor in his dissenting opinion in Government of the Phil. Islands v. El Hogar Filipino (50 Phil 399), saying “They [the abuses]  disclose El Hogar Filipino as an octopus whose tentacles have reached out to embrace and stifle vital public interests.”

  Figurative speech was not limited to dissents.  In People v. De Los Santos (122 Phil 55), Justice J.B.L. Reyes described the result of the conditions of the prisons thus: “All this led inevitably to the formation of gangs that preyed like wolf packs on the weak, and ultimately to pitiless gang rivalry for the control of the prisoners, abetted by the inability of the outnumbered guards to enforce discipline, and which culminated in violent riots.”

  Most stinging language is against rapists.  Says Justice Cruz, in People v. Desuyo (G.R. 71173, Aug. 9, 1988): “Defilers of women are an especially despicable ilk of evil men, and more so those who would inflict their lasciviousness upon innocent and defenseless children.  They are filthier than the slime where they belong.  Whatever punishment is imposed on them can never expiate their loathsome offense, for which forgiveness itself, from a mortal court at least, would be a sin.”

  The court’s venom is directed not only to persons but also to places. This is how my beloved Tondo, where I spent many happy years of my distant youth, was described (falsely, I must say) in People v. Taruc (G.R.69337-38, March 8, 1989): “This is the home ground of the notorious gangs, the restless battle ground of their countless confrontations, the scene of many murders that have exacted during these many years a terrifying toll in lives, and not only of the wicked but unfortunately also of the innocent.”

  On occasion we also read praise that is very profuse. Here is one that is just a bit short of beatification. “The respondent’s contrition, so noticeably absent in his earlier pleadings,” said the Supreme Court in Zaldivar v. Sandiganbayan (G.R. No. 79690-707, April 7, 1993), “has washed clean the offense of his disrespect.”  Further on, the Supreme Court said, “Like the prodigal son in the Biblical story, respondent Raul M. Gonzales come before us repentant.  The passage of years has indeed the effect of making people wiser and humbler, as it has to respondent Raul M. Gonzales.  We are convinced of his sincerity…”  It is not true, however, that still President Gloria Macapagal Arroyo, for this reason, sings the Halleluja when addressing him during cabinet meetings.

  There are more of the same to read in Volume One of the Philippine Supreme Court Centenary Reader 1901-2001, entitled “Supreme Court Decisions as Literature.”  Compared with the excerpts reproduced in that work, Justice Carpio’s  “grand deception” and “gigantic fraud on the people”, are, in my view, convent language.

  I submit that, provided no compromise is made of the logic of the law, judges and justices, in writing their decisions, ought to be at liberty to choose whatever rhetorical device they think proper to persuade their readers that the dispositive portions of their opinions are the right and just result of the application of the law to the facts.  As Justice Fernando said, in Bartolome v. Hon. De Borja (A.M. No. 1096-CFI, May 31, 1976), “[T]here is nothing objectionable to the use of vigorous and strong language to characterize what for the judge would be attempts to obstruct the administration of justice….If there be display of wit or sarcasm, however, that is not to be deplored.”  Indeed, “A little style will help liven the opinion trapped in the tortuous lexicon of the law with all its whereas and wherefores.  A judicial decision does not have to be a bore.” (Francisco v. Permskul, G.R. 81006, May 12, 1989).