Restraint in favor of government.
I came upon this sort of “watchword” on the morning of Jan. 16 while on my way to a meeting with colleagues to discuss the upcoming 2019 elections.
The reporter, who quoted the line from newly-appointed Chief Justice Lucas P. Bersamin, seemed to have assumed that what the latter meant was that he is beholden to his benefactor and appointing power, Pres. Rodrigo Duterte, and thus, will decide, always, in the President’s favor.
Proof of that assumption is a listing of controversial decisions the Chief Justice had been a part of, such as the high-profile cases involving the acquittal of former President Gloria Macapagal-Arroyo, the ouster of former Chief Justice Maria Lourdes Sereno by quo warranto, the arrest of former Justice Secretary Leila de Lima, and the burial of former Pres. Ferdinand E. Marcos at the Libingan ng mga Bayani, to name a few.
As a journalist, I have always been on the watch for phrases that seem to carry a legal quality to them. In my years of interviewing justices of the High Court, three Chief Justices no less, I have learned not to jump the gun and attach any of my preconceived notions to these locutions.
Armed with just a single question in mind, I proceeded to go even deeper into who and what I was scheduled to interview on the afternoon of that day—the Chief Justice himself.
It is apparent in his brief biography published by the SC website that Lucas Bersamin’s track-record is anything but trifling.
As a young man, Bersamin graduated valedictorian in grade school and high school in Abra, sat as scholar of the University of the Philippines, and figured ninth place in the 1973 bar exams with a score of 100% in Criminal Law.
The biography says, “Chief Justice Lucas P. Bersamin was appointed an Associate Justice of the Supreme Court on April 2, 2009 by President Arroyo. He was then sitting as a Member of the Court of Appeals, to which he had been appointed on March 10, 2003 also by President Arroyo. Prior to his stint in the Court of Appeals, he had served as the Presiding Judge of Branch 96 of the Regional Trial Court Judge in Quezon City continuously since November 5, 1986.
“Chief Justice Bersamin hails from Bangued, Abra, where he was born on October 18, 1949 to the late Dr. Luis F. Bersamin, Sr., a World War II veteran and survivor of the infamous Death March involving the captured Filipino and American soldiers and the late Dr. Rosario Purugganan-Bersamin, a pharmacist and educator. His father was elected Provincial Governor of Abra after the conclusion of World War II. His oldest brother was the late Cong. Luis P. Bersamin, Jr., representing the Lone District of Abra. Another brother, Eustaquio P. Bersamin, completed three terms as an elected Provincial Governor of Abra.
“Chief Justice Bersamin finished his elementary and high school studies in Bangued, Abra at the top of his classes graduating in 1960 and 1965. He earned a Bachelor’s Degree (Major in Political Science) in 1968 from the University of the Philippines in Diliman, Quezon City. He received his Bachelor’s Degree in Law from the University of the East, Manila, in 1973. He placed 9th in the 1973 Bar Examinations, and was in active practice of law from 1974 until his appointment to the Regional Trial Court in November 1986.”
Prior to any work in the Supreme Court, Bersamin did the rounds of the academe. He taught Remedial Law at the Ateneo de Manila School of Law, the University of Sto. Tomas, the Pamantasan ng Lungsod ng Maynila, and the University of the East.
He was a lecturer in the various law review centers and a resource person at the UP Law Center-Institute of Judicial Administration and the Philippine Judicial Academy. He was a Fellow of the Commonwealth Judicial Education Institute based in Dalhousie University, Halifax, Nova Scotia, Canada, and an author on appellate remedies used by law students and lawyers.
“Chief Justice Bersamin has represented the Philippines in international judicial conferences and learning seminars in the USA, Canada, Switzerland, Germany, India, Japan, South Korea, Thailand and Singapore.”
Based on what I had read, I decided to take the interview to another level, beginning with the one and only question I had in mind. I figured that if I were to take on what seems to be an intellectual juggernaut, then the line of questioning must take on a different route.
I arrived at the Supreme Court thirty minutes ahead of schedule. I entered his chambers and was pleasantly surprised at the rather Spartan surroundings—none of the flashy embellishments I see in other government offices. Only a life-size painting hung on a wall adjacent to the staff room.
The interview kicked off at five in the afternoon, with our chairman, D. Edgard A. Cabangon accompanying me inside the Chief Justice’s chambers. CJ Bersamin seemed to be in good spirits. This told me that, regardless of the controversies hounding the country’s High Court, the Chief Justice has a level-headed confidence rarely seen in others of the same stature.
Q&A
PHILIPPINES GRAPHIC: I had read hours ago in a report that your philosophy for 2019 is “restraint in favor of government.” Unfortunately for me, the said report failed to expound on the meaning of the phrase. Instead, it presumed that you, having been appointed by President Duterte, would always decide in favor of government. Is that what the phrase meant?
CHIEF JUSTICE LUCAS P. BERSAMIN: Good you asked me. That’s a very good question. People do not generally understand the meanings of these approaches—I call them approaches, not philosophies. There are two that are usually mentioned in connection with the other: one is judicial restraint; the other is judicial activism. People misconstrue or misunderstand the significance of these two: They are really poles apart. Now, why do I say I said in one of my interviews, the first interviews, that I have to adopt both approaches? When it comes to government action, I have to presume them to be valid, not immediately to presume them to be invalid. That’s the theory of the petitioner all the time. So I have to exercise judicial restraint as far as exercising my power of judicial review is concerned. Why? Because if you presume them to be valid, that is, you have to be very careful in judging them to be invalid. Right? They start with a strong presumption.
This is necessary because the two other branches of government whom you are checking or are about to check, they are also presumed to have read the Constitution, and to be aware of the consequences and the import of the Constitution. I cannot presume that it is only the Supreme Court that interprets the Constitution or reads the Constitution. We are only authorized to say what the law is. But they are also authorized to say that this is how they read the Constitution, that’s why there is a presumption in their favor.
On the other hand, I will exercise judicial activism as an approach when it concerns the curtailment of people’s rights or civil rights or citizens’ rights, because there is a presumption in favor of those rights, that we must protect individual rights as well as civil and political rights more than we would join the one who curtails them. So, this comparison between these two approaches will be really very apparent, their dichotomy. They cannot be the same. Now there is also another one: judicial activism, we need that when we protect the environment. Because the environment is the right of every person, even the future generations. They have a stake in the environment.
So, if I am one of those who are to be benefitted by a healthy environment, ecological balance, then by all means, I am biased in favor of environment and against whoever will try to destroy or disturb the environment. That’s what they mean.
It was apparent that there was no follow-through to the question, leaving readers to speculate on what the phrase meant.
I come under the theory that you must presume them to have both—the Executive and the Legislative—acted in good faith, in the best lights that their conscience would give them before you ever say that they blundered in acting together. So, I hesitate and study very carefully the attack against their actions. And if the attack is valid, then I examine the charges closely because the motivation for their doing it may be more serious. Their perspective may be longer, perhaps even better than mine. I am only a judge after the fact. The perspective of legislation is different. It’s safe to presume that their vantage point can be different than the court. Good you asked me this question.
Is it safe to say that what you meant is no different from the presumption of innocence as against presumption of guilt?
Yes. The presumption of validity is really a presumption that is there. It is a legal presumption. The law requires me to presume them to have acted validly.
So, are you saying that the assumption the Chief Justice will only favor government is wrong?
It’s unfair. Many do not really know what legal and judicial restraint really mean. Maybe they have another understanding of judicial restraint and judicial activism, that is why they probably believe I will always decide in favor of government. No, not all the time. If you had known my background at the Trial Court, I always help the accused because that’s what the Constitution requires me to do. I presume him innocent. I have a good track-record of acquittals all because I don’t harbor any prejudice against the accused. I love the accused more than I love the prosecutor. That is what you can say.
I think most people, including netizens, based their understanding of judicial restraint in favor of government from past decisions you made on high-profile cases. What do you think of social media?
Well, it is there already, there is nothing to be said about it negatively or positively. I also am part of social media because I read it and I sometimes react. Sometimes, not all the time.
As to my siding with President Duterte, my explanation is this: whenever there is a case, I really study because you cannot be blind in voting. You have to explain to yourself, convince yourself that that is the right thing for you to do. The Supreme Court doesn’t have a herd mentality. We do not vote as a herd. I know that’s how the outside world perceives us. No. There are times that we differ from each other. And that is a very healthy kind of debate. So, the perception that I’ve always sided with government, if, assuming that is true, they must not say that I am doing this on purpose. I always try to study my cases very carefully. Individual cases. Not because it is government but on occasions, the argument of government prosecutors is better.
The government is represented by the Solicitor General, the legal officer of the government, who is backed up by a battery of other lawyers. The other is represented by another lawyer with just three or four. Where does the unfairness lie? No unfairness there. They came with the confidence that their argument is right.
But then the other side prepares a better argument. It’s all about a better, more profound argument. There were Solicitors General that offered bad arguments, too, and they didn’t even admit it. Some lawyers fail to recognize their weaknesses.
I have been wanting to ask this for a long time. What can you say about cases between political rivals that are only for show? You know, all theater and bombast, with neither the substance nor exhaustive evidence to prove their claims?
Let’s talk about the banc, the whole Supreme Court. Ang Supreme Court, they operate like Congress. The power lies in the plenary. Even if there has been a case that had been decided on, no matter how many years prior, how solidly that case was argued in previous decisions, this will not prevent the present Supreme Court from reversing, modifying or changing that. So, this present Supreme Court cannot be bound—the hands of this Supreme Court cannot be bound by this precedence. That is a very clear principle. In the case of the Congress: Congress cannot pass irrepealable laws. What it means is that all laws will have to conform to the sense and whim of the present Congress. That is absolute, with the plenary dictating the power to legislate.
There is an exception, however: If the law that was passed before was mandated by the Constitution to be passed.
Now, with the change of administration comes a change in ruling. There is a different ruling now of the Court, a different view from what was previously held. There are two explanations for this. One is what I just told you: The Supreme Court now is not handbound, the hands of the Supreme Court are not tied by any kind of principle. Anything is open.
The other one is this: the membership of the Court might have changed in the meantime. And if you have a change like that, the change may affect the leaning of the Supreme Court. You know, the Supreme Court acts as a body. It is collegial. I will give you an example: the so-called ‘flip-flop case’ of the League of Cities. We were not here when the decision was made. That was before 2009. In 2009, there were about seven of us, new Justices who came in because the same number retired in the meantime. And these people who retired were those who voted. So, if you have a big number like that coming in, there will surely be changes in a contentious case like the League of Cities.
So when we came in, it changed. The direction of the voting changed. There were those who also changed their previous decisions, about three of them. So that is what happened in the League of Cities case until it was settled. I was the one who wrote the final decision. The accusation we ‘flip-flopped’ was very unfair. If you have an interest to read the separate opinion, it said that it was unfair to accuse the court of committing a flip-flop. What really happened here is only a ‘flip’. The said decision illustrated this in a very nice way. There were only 23 justices in all who took part in the adjudication of this particular case. Of the 23, only three actually changed their positions during the entire course. Only three. So, everything changed because of the three who changed their vote, then the change would be unavoidable if another batch of justices came in. They would clash, surely. But always remember this: The result may have been changing but the reasoning remains intact.
Chief Justice, with your permission, may I ask a straight question: If the President approaches you and asks you to, say for example, for the benefit of political expediencies, that you can favor a certain case, then that’s not for you alone to decide, right? You’re a collegial body.
Allow me to clear the air of this idea that a President can come to us and ask us for favors. It’s not easy for any President to do that. We have not yet experienced a President directly telling us to vote this way or that way. That’s based on my personal experience. Even when I was in the Trial Court, people were ready to believe that we were getting allowances from mayors, which was why we sided with them. That opinion persists to this day.
However, it was altogether wrong because it never happened. Now, with a President like this, he does not do that. Others would say, well, it’s the job of his underlings to approach us. Even that is incorrect. Judging is based on our reading of the case. We always look at the impact of our vote. And assuming you’re the swing vote, the burden is very heavy.
Now, supposing you’re receiving communication from someone, this comes from the President, are you still going to inquire if the instructions came from the President himself? Of course not. You have your own way of deciding. Which is why it’s so unfair to accuse the President of influencing those he appointed in the High Court.
When people tell me that, I always say: Read what I have written about the case. Our Constitution requires anyone who does not agree with the majority to explain. Any dissenter, any opinion different from the main, must explain why he voted a certain way. In a collegial setting, no one can say you’ve been influenced in a certain way by someone. Now, as to other justices, I cannot speak for them. It’s their own conscience that they have to answer to. I like your line of questioning.
When I entered your chambers prior to this interview, I overheard you say that reputation is more important than the truth. Do you really believe that?
This is a verity, or a truth, that is embedded in every lawyer. From the time he starts law school and has read this. This is similar to to the case of Caesar’s wife. It’s all about the reputation of Caesar’s wife at the time, not the truth, which is why it became cliché.
Reputation is more valued than the truth because the truth is hard to know. And that is why people are more readily to believe one’s reputation because they really do not know the truth about that guy. That is why reputation is more important than the truth, because the truth may really be too far removed from what they are saying. But they cannot know it. Thus one must protect his reputation than any other. I’ll give you an example: If I don’t have a good reputation, do you think I’d achieve what I have achieved? But what I really am, nobody knows, except perhaps my wife [laughs]. To be frank about it. People do many things in secret. A judge whom you do not know, what he actually does, you judge him by his reputation, not by his truth. Because no one knows the truth. The truth is relative. You have a different truth as far as perspective is concerned. But your reputation, if I have a bad reputation, I would not have come this far. Your reputation precedes you, as the idiom goes. That is also why people judge you.
You don’t seem like the sort of person who fears easily. But then again, let me ask: What was your first fear when you received the appointment as Chief Justice, considering that the SC had figured in a number of controversies?
Well, people have expectations. And since I was not even ready to take this job, a job I did not aspire to, I am just one those nominated. That’s how I felt when I was contending for this. There was little expectation on my part that the choice would be me. That’s a frank statement that I make. I hardly gave it much thought. But suddenly, here I am. I didn’t follow-up, I didn’t campaign or do anything of the sort. I cannot, however, speak for my colleagues. When the appointment arrived, I just made the sign of the cross. If it’s mine, then it must be God’s will. My fear—it was not a big fear. It’s that I might not be able to perform and deliver the expectations. But then, that’s a very vague fear, very, very vague, because it is in every person. I’ve been here too long to be intimidated.
You’ll be spending your time in the Supreme Court for the next eight, nine months? Right? October?
I’ll give you an exact count: 324 days. Until October 17, the day before my 70th birthday.
Given a very small window of 324 days, what do you think can you accomplish?
You know, the measure of one’s accomplishment is whether you can you complete it or not, maybe that is the sense you are asking.
Yes. Like, for example, looking after the needs and concerns of the staff of the SC.
In the first 46 days, I have already accomplished a lot. Whether they are big accomplishments or small accomplishments, I am not the judge of that.
As far as I am concerned, by merely listening to those who have concerns—employees, personnel, judges, justices—I think I already accomplished a lot: Each time a call for a group of judges is made, I always see to it that Midas is around. Midas Marquez is the court administrator. Or, if he cannot be around, another one in his office. I’m aware of the usual concerns of judges: delayed cases, for one. I would instruct Midas to take note. Later, he would assure me that it is solved. You magnify that many times, because how many times did I do that to Midas? Which is why Midas is indispensable to me. Those are accomplishments.
But the magnitude of those accomplishments cannot be reckoned or counted until somebody comes here and says, chief, thank you very much. Maybe that is the edification that I will get. But, as far as quality accomplishments are concerned, I have defined for myself, for my tenure, four priority points.
These are limited to four, but not necessarily to four because they involve so many branches. The first one is the rules of court revision. I have acted on that already. I have reconstituted the revision of the rules committee headed by Justice Peralta. He was the working chairperson. While I am the titular chairman of all the committees, I have to appoint a working chairperson. Civil procedure was his priority, evidence and criminal procedure. This is a priority because everyone of us here, including people who are outside the court, they know and accept that technology is already upon us. And if we did not adapt to technology, we will not be updated.
This involves a lot of areas like evidence, document database. There are very many issues that are covered by these reforms. To quicken the process of resolving cases and satisfy the public demand for swift justice.
The second priority is improving the infrastructure of the courts. The first is the physical infrastructure, and here you can easily imagine court houses, adjunct buildings and equipment. We have only P37 billion allotted as budget. But P37 billion is P37 billion. We will have to ask for more funding for our infrastructure needs. We cannot use our savings for that. We will build probably new court houses and repair the existing ones.
As for the people working for the High Court…
Most of these are new judges. Many lack experience. But you see, the Philippine Judicial Academy (PHILJA), which is our training arm, must now be redirected from the knowledge-based approach into the skills-based approach. I have to encourage that shift because this will take the place of expecting a judge to obtain more experience. We have no time for that, eh. We have to give the judge orders to start working and running and performing the job from day one. Now, whether that is sufficient or not will depend on these persons that you are training now.
Another part of quality infrastructure is to ensure that you teach them ethics, good ethics.
In the provinces, the general perception is that most judges are abusive. So, either we make an example out of them, or train and retrain them constantly. That’s part of quality.
The other part involves the Judicial and Bar Council, and the way they recruit and process the applications. I am the chairman of JBC and the PHILJA. What I will probably do has never been done before: Have the two groups meet to expedite improvements. That would be a great achievement because as far as this priority is concerned, if you have these two meet and decide what to do, we would go a long way. But that is not yet to complete a delivery of a priority program.
There is the third one: Enhancing access to justice. We have very few lawyers. The distribution of lawyers is disproportionate. More lawyers are concentrated in the urban areas because there are more opportunities here than in the provinces. Cases in rural areas are neither interesting nor lucrative. Family quarrels for the most part. So even those who are not qualified are practicing in the city. How do we solve this? To expand the law student practice rule. Law students who have acquired the necessary knowledge and qualifications will be allowed ‘limited’ practice. That is one way.
I also intend to tell the Legal Education Board to adapt a certain approach as far as legal learning is concerned: It must be experiential. Experiential learning is very common in America but not here.
What is experiential learning? As early as second year or third year, lawyers should be allowed to garner clients. Not necessarily working for the courts, but drafting of contracts, for example. That way, you give to the people this image of an effective legal profession, of an effective judiciary. They have to complement each other. Without these lawyers, there is no good judiciary.
Now that I have revised the student practice law, I will be calling for an LEB Summit. I’m looking at increasing the legal population.
The fourth is reforming the bar exams. We are too preoccupied with bar top-notchers. That’s one drawback. We spend a lot of money, a lot of years for this. In America the review for the bar exams lasts only two months, and after two months, we go back to our normal lives. How will I reform it? I have asked those who will be chairman of the bar exams to adopt the bar exams in the States: Pass-fail. Pass-fail means it’s not based on grades but performance. That is the kind of bar exam that I would like to have.
Do you believe these are achievable in 324 days?
Cooperation is the key here. I began with small things: On the first day of my attendance at flag ceremony, immediately I said, let’s go back to the dress code. If you have people in the Supreme Court following that, that is a great achievement of a small matter.
I also instructed people not to use cellphones in the public areas of the courthouse, and I’m referring to all courthouses, not only in the Supreme Court. So, what does that mean? I’m not banning the cellphone. It’s a part of our lives. What I’m referring to is having the cellphone used inside the courthouse. You can go hands-free, just don’t walk around with the phone in your ears. Small things. Do not wear mini skirts. What are banned are mini-shorts. Some look like band-aids. Do not wear collarless t-shirts. Some come to the courts thinking it’s a wet market or a grocery.
We have to differentiate between a grocery store and a court house. Decorum is important.
And you cannot claim to be the king overall.
No, no. That is the one thing I will never do. It’s not worth it. Yes, if you want to achieve everything within a short span of time, make people believe in you, make people love you. And, even if you do not love them, at least know that you need them. They’re part of the organization. Besides, I have always been sincere from the start. If I really love you, you will feel it. And people who have been calling on me here have always told me that. We did not think that you were that down-to-earth. This is my true person.
For many people, to be appointed by the President demands a level of allegiance from the appointee based on debt of gratitude. This is probably one of many reasons the Supreme Court has suffered the mistrust and suspicion of the public. Utang na loob. In fact, some are suggesting that we should vote the justices into the High Court, and dispense with appointments altogether. What can you say about this?
Let’s talk about me: Did I vote against my appointing power? Gloria Macapagal-Arroyo is my appointing power. Well, fortunately for me and for her, we agreed on many issues.
Let me go to plunder: Why did I write that decision? I was the ponente of that. I wrote that decision to acquit her because the law is very clear. The law says plunder consists of three acts: Accumulate, acquire, amass. A public official must be proved to have amassed, acquired or accumulated at least P50 million of government money. That’s the threshold amount.
So one justice asked, where is the P350 million? Do you know where that went? Do you have evidence to show? The main witness of the prosecution said he didn’t know. It was in my decision. So what does amass, acquire, and accumulate mean? At the very least, there must be paper trail. However, they presented nothing else. They just said, she stole P350 million by signing in the marginal note on the PCSO.
Without any other evidence, then that’s not plunder. For plunder to be plunder, the law is very specific: To be able to pinpoint where the money is and where it went. How do you point that out if the money had been spent? You must be able to prove where the plunderer spent it. That’s the burden that the prosecution has.
Another point that I noticed, and which is what they are complaining about: In the charge, 10 government officials were named as the accused. No private individual, just government officials.
Law says that plunder can only be committed by a government official. It cannot be committed by a private individual. Good.
However, in the information, nothing was said about the main plunderer. The charge did not point to former President Gloria as the main plunderer. So I said, it is crucial to point the main plunderer because the charge is plunder. The others must form only the conspiracy. But since there was no mention of the main plunderer, then the charge should not be plunder but another offense.
Without a main plunderer, it is only logical to presume that the P350 million was divided equally among the 10. If so, then each of the 10 will have less than the threshold amount of P50 million.
Estrada’s case was different all because the charge pointed to Erap as the main plunderer even if the sources of the plundered money came from different sources. In matters of conscience alone, is Gloria a plunderer under these conditions? The law is clear: Amass, acquire, accumulate.
As for Enrile, I don’t even know him directly or personally. Here is this guy who was 90 years old at the time, more or less 91 when the case was filed. All he ever asked for was bail. Sandiganbayan denied him that. I said, he’s 90 years old. Try him for five years, he’ll be 95 by then. Convict him at 95, he’sd appeal his case. Give another two years, he’ll be 97 by then. Decide on his case, would he be alive still? The purpose of bail is to require him to appear during the trial, not to prevent him from committing any other crime, or any other purpose, but only to require him to appear for the trial.
Media said my reasons were humanitarian. Wrong. Humanitarian is only secondary. He’s not even a flight risk. To add, the Sandiganbayan acknowledged that he was sick. So, I was demonized because I allegedly tailor-fit my decision to fit Enrile. People said, he’s now back in the pink of health. Was that my fault? Even GMA’s neck brace was taken down after she was released.
I strongly suggest that the public read our decisions. Honestly, it is a difficult decision all the time. We are also conscious of the fact that we could be criticized.
But after everything is said and done, you have to do justice, as in the case of GMA. Was I grateful to her? Maybe. Maybe. But if you look at the letter of the law, you cannot really convict her.
What do you think about the plunder law? Do you think it’s high time to change it?
I don’t know. That’s a policy issue for Congress to consider. You have to understand that the plunder law was a reactionary law.
Right after the revolution, one of the priorities—Erap sat then as senator—it was not intended for anyone except to react to an event that may happen again. A reaction to the Marcos years. They have defined the offense in those terms.
We are now required to interpret this law, so where do we get this idea? It’s in the law. The law is very clear about the language it used.
Now, unless you tell me there is another meaning to accumulate, acquire or amass, I cannot agree with you if you were to tell me that I should have convicted. But all dictionaries will tell you the meaning of amass, acquire and accumulate.
As for GMA, they were so in a hurry to imprison her. They did not argue hard enough and well enough. You don’t rush these things.
We are so fond of branding. Branding without knowing. It damages the image of the court but only for a short period. We have to always be clear with our decisions.
If the ordinary janitor cannot read it, I will not come out with it. G
