Of decent indecent dissents

is the subject of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld:

It was quite disconcerting last week to see Justice Secretary Leila de Lima answering the way she did in the witness stand at the impeachment trial of Chief Justice Renato Corona. For one who had taught law as long as she has, along with (presumably) respect for it, her answers were (to put it politely) quite disappointing to her former students (such as myself). If her answers were sincere (and the courteous presumption is that they were), then she revealed an appreciation of the law that is sorely lacking in depth.

By admitting (in so many words) under the questioning of Senator Juan Ponce Enrile and Justice Serafin Cuevas that she would have refused to carry out a disputed Supreme Court temporary restraining order, she was -- in effect -- arrogating unto herself a function or mandate that the Constitution assigned to the Supreme Court. But the Constitution, being the product of the sovereign act of the people, she essentially, therefore, declared that her judgment and intelligence are far better than the rest of the Filipinos. The weightlessness of her justifications are seen from the fact that one can easily refute them by two legal/philosophical cliches: might does not make right and the ends do not justify the means. To that I add a third and fourth: "Do unto others what you want others do unto you," and "Whatever you do to the least of My brethren, you do unto Me."

And her reliance on dissenting opinions, particularly to rely on the dissenting opinion of Justice Maria Lourdes Sereno, is misplaced, mistaken, and utterly misguided.

Dissenting opinions have practically no weight as legal arguments. They are, in fact, of lower persuasiveness compared to published articles by legal commentators. At the least, it provides psychological comfort to the losing party of the case the dissenting opinion was given or to be quoted by pompous lawyers during parties wanting to impress better lawyers. At most, it perhaps gives an indication of "future wisdom" that the Supreme Court may adopt, which has happened in the case of the dissents of US Supreme Court Justice Oliver Wendell Holmes.

However, Justice Holmes’s dissents were the exception rather than the rule, for which several things must be considered: for one, they would have remained of minimal value were it not for their eventual adoption by the US Supreme Court. More importantly, his dissents were elegant thoughtful works by a first-class intellect that focused on legal arguments rather than being gossipy allegations of intrigues against his colleagues.

For that matter, it must be mentioned that dissenting opinions are relatively modern occurrences. Even now, such is certainly not a common thing. Take the United Kingdom. In a study cited by Chris Hanretty, comparing "the House of Lords, the US and Canadian Supreme Courts, the Australian High Court, and the South African Supreme Court of Appeal and, from 1995, the Constitutional Court… the House of Lords, as was, displays much greater comity than its Canadian, Australian or American counterparts, and is only bested in the percentage of unanimous decisions by the South African courts." Even in the US Supreme Court, great care is taken in making dissents. As John Frank wrote, random or inappropriate dissents "weaken the institutional impact of the Court and handicap it in the doing of its fundamental job. Dissents… need to be saved for major matters if the Court is not to appear indecisive and quarrelsome."

Furthermore, proper dissents focus only on legal arguments. They are not supposed to disparage or demean fellow members of a court. What does it matter if a judge or justice is known to be leaning towards certain political or philosophical considerations if in the end his legal arguments are reasonable and logic is justifiable? It also leads to this point: internal judicial deliberations (like the president’s cabinet meetings) are and should always remain confidential. As Paul Woodruff (in his article "Paideia and Good Judgment," 1999) wrote: "The best defense against error is to give full play to opposing arguments and to sift them carefully for potential defeaters of the conclusion you are inclined to accept. A person of good judgment…. should be capable of constructing arguments on both sides of an issue." To make public court deliberations remove that possibility. Besides, nobody likes an uncouth person displaying dirty laundry.

Finally, alone among the top of the three branches of government, it’s only the members of the Supreme Court that are required to possess "proven competence, integrity, probity, and independence." Righteousness (not self-righteousness), as well as maturity, self-restraint and being psychologically able to work collegially are what’s needed in a Supreme Court justice. The weakest among the three, the Supreme Court’s authority rests delicately on its unified voice, dignity, and prestige. Anybody, whatever declared good intentions, who robs our Supreme Court of those does not deserve respect for him or her opinions.