Speaking pro hac vice | Newsbreak | Independent Journalism

Speaking pro hac vice | Newsbreak | Independent Journalism


It is good that Atty. T. Te has raised the issue of PRO HAC VICE voting in the Supreme Court. This mode of voting must not be ABUSED by the justices. Their constitutional duty is to determine constitutional and legal doctrines with finality not only to enrich Philippine jurisprudence, which is a secondary work, but, more importantly, to guide and strengthen the growth and stability of Philippine DEMOCRACY and REPUBLICANISM as the last bulwark of the rule of law.

- Atty. M. LASERNA JR.

Speaking pro hac vice
Published on Mar 1, 2011
by VINCULUM JURIS: Theodore Te

When the Supreme Court interprets the Constitution, it is supposed to tell us what a particular provision means. That is the role of the Supreme Court as the third branch of government—to interpret the Constitution, a written document that is supposed to outlast the generation that wrote it (except here in the Philippines as we’ve had at least two entire Constitutions written since 1973, not counting the amendments that Marcos made to the 1973 Constitution).

Thus, when the Court speaks, it speaks with authority and its rulings are intended to be precedents that will bind not only other courts but also parties and future litigants. There is a reason why it is called the Supreme Court and there is a reason why there is only one Supreme Court.

The authoritativeness of the Court’s pronouncements provide the basis for what lawyers call stare decisis, simply translated as “follow past precedents and do not disturb what has been settled.”

In Article VIII, section 1, paragraph 2 of the 1987 Constitution, judicial power “includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

This is a power vested in all courts but the difference is that it is only the Supreme Court that has the power to create precedent. Thus, when the Supreme Court rules on rights which are “legally demandable and enforceable,” its rulings become or remain precedents which bind not only the immediate parties but all other future litigants and all other courts.

Only for the occasion

Considering its nature, it should be rare for the Court to speak not to bind but simply to settle a dispute “for that occasion” or pro hac vice.

Yet, it has done so, usually in allowing petitions or other resorts to the Court that would have been disallowed because of non-compliance with technical rules of procedure. The general justification given by the Court in these pro hac vice occasions would be the general interests of justice. By underscoring its pronouncement as pro hac vice, the Court is saying that these instances constitute the exception not the rule, the isolated instance not the precedent.

On specific occasions, however, the Court has ruled on the Constitution pro hac vice, whether it has expressly stated so or otherwise. Here are some instances:

In the 1989 case of “Marcos v. Manglapus,” which involved the constitutional guarantee of the right to travel under Article III, section 6, the Court prefaced its ruling with this statement:

“This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country and who within the short space of three years seeks to return, is in a class by itself.”

The Court in “Marcos” proceeded to justify its barring the return of Marcos and his family, despite the right to travel, on “national security” concerns and on the “residual powers” theory, i.e., the Constitution is not an exhaustive listing of the powers of the President and that the President may exercise “unstated residual powers.”

Of course, the Marcos case was unique as he was the only former Chief Executive exiled and was thus the only Chief Executive who could petition for a return back to the country. Thus, even without saying so, the Court’s ruling was clearly one “only for that instance” or pro hac vice.

In 2001, through what is called a Minute Resolution, the Supreme Court granted “interim bail” to then Senator (now Senate President) Juan Ponce Enrile in connection with the so-called EDSA 3 uprising.

This Order is striking for three reasons: (1) Bail, by its nature, is already interim or provisional, i.e., it is the security that is provided so that an accused is set free temporarily; (2) The Court, in granting Senator Enrile “interim bail,” justified it on the grounds that the affidavits of the witnesses against him are hearsay, a determination that should properly be made by the trial court; and (3) The offense he was charged with was non-bailable as a matter of right. It is also clearly pro hac vice, in that it applied only to a specific person—Senator Enrile—and the Court has not applied it to any other person charged with the non-bailable offense of rebellion.

In 2010, in the case of De Castro et al. v. Judicial and Bar Council (JBC) and companion cases, the Court interpreted the ban imposed by Article VII, section 15 on a President to make appointments two months preceding a presidential election and until the end of his term in favor of the then President’s power to appoint.

Moreover, the Court limited this ruling to appointments to the Supreme Court and, by necessary implication as there was only one pending vacancy contemplated, to the position of Chief Justice.

While not expressly characterized as unique, the ruling of the Court in De Castro is clearly one that is unique and pro hac vice.

At no other point in the future would the confluence of events that took place in 2010 concur, i.e., the retirement of the then incumbent Chief Justice Reynato S. Puno falling within the prohibited two-month period before the presidential elections.

Shorn of legal language, De Castro was authority only for the appointment of one person, the Chief Justice and no other public official. Thus, the appointment of Chief Justice Renato Corona as allowed by the De Castro Decision is clearly not authority for an interpretation that the President now has power to make appointments despite the clear and express ban in the Constitution.
This is why the Court must be clear and definite in what it means

Court ratio

It is also possible for the Court’s ruling to become pro hac vice simply by the lack of concurrences to the reasoning, even if the Decision obtains a majority as to the result.

While the Constitution and the Court’s own Internal Rules do not so provide, the doctrinal or authoritative value of the Supreme Court’s decisions may become less so for lack of votes to support a specific line of reasoning or what the Court calls ratio.

This may happen if a majority of the justices participating agree with the result but not with the reasoning; thus, there are instances when justices vote to concur with the Decision “only in the result.”

In such a situation, the Court’s decision may not be said to be authoritative or doctrinal and may not constitute precedent.

The last word?

The Constitution is what the Supreme Court says it is.

This is why the Court must be clear and definite in what it means. This is also why the Court must take pains to ensure that its reasoning and its decisions achieve unanimity or near-unanimity, in order to ensure stability of its decisions and also to ensure that its interpretation of the Constitution would be binding for as long as the Constitution exists.

But when the Court speaks pro hac vice on a constitutional issue, it creates no precedent, it makes no law; it simply settles a controversy or answers a question without ensuring that the controversy will not repeat itself or the question will never be asked again.

There is a lot of wisdom to the notion that as important as what the Court actually says is what the Court does not say.

Thus, while the Court may feel freer to rule pro hac vice because it is not weighed down by the burden that its ruling will become precedent, doing so will detract from its role as the entity with the “last word on what the law is” not only to the immediate litigants but to the public at large.

In specific instances, the Court may wish to simply pass up a controversy that may require it to make a pro hac vice ruling and simply wait for the opportunity when it may be able to make a ruling that will stand the test of time. (Newsbreak)
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