MARIE YUVIENCO | Independent Decisions: The SC and US jurisprudence
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President Rodrigo Duterte is nothing if not consistent.
If Congress refuses to enact a freedom of information bill, then he was going to do it on his own, issuing an executive order that let the daylight in in all offices of the executive department. He pursues his domestic policy on illegal drugs regardless of criticism from whatever source. Then, in the field of foreign relations, he shakes up networks with traditional allies grown smug in favor of new, eyebrow-raising frenemies.
These, and more, show that he is someone who is unafraid to chart his own course; in the last example given, he says that henceforth, under his watch, the Philippines will be pursuing an independent foreign policy that will not be dictated by the caprices of the United States.
I begin to wonder if this independent streak should be contagious, one that will spread to the other two branches of government.
Let us concentrate on the judiciary. I have been reading a lot of Supreme Court decisions and I have noticed a trend that perhaps most lawyers will find impressive, if not intimidating, or at the least innocuous in that they perceive nothing objectionable.
The trend I speak of is the conspicuous reliance on foreign sources, consisting mostly of jurisprudence from the United States courts plus textbooks and legal articles by American authors. In lawyerspeak, these are called “authorities” whose function is to serve as logical support for a particular conclusion or as precedent for resolving an issue involving a particular set of facts. Technically, there is nothing wrong with relying on foreign authorities, and in fact, the practice is, if not encouraged, at least acceptable in our legal system, the justification being that, being a former colony of the United States, many of our laws and even the Constitution, are based on the American model. It is about time, however, that we explore the idea of cutting the umbilical cord, as the Jesuit-trained constitutionalist Fr. Joaquin Bernas once urged.
Language is a good starting point. Our Constitution anoints Filipino as the national language; English, in turn, is designated as an “official” language. An official language is not the same as a national language, and it does not share the same stature. English is considered “official” only because it is widely used in education, government and commerce, but other than that, it will never be the same as Filipino.
When the Supreme Court was but a toddler, justices often wrote their opinions either in Spanish or English, until gradually, the latter became paramount. I never could explain why Filipino -- which regionalists criticize for its synonymy with Tagalog -- has never gained popularity as the language of Supreme Court decisions. English reigns and the bias starts as early as the conduct of the bar exams which, again, emphasize written English. The Supreme Court has issued instructions as to the efficient use of paper, but this pays attention only to the form; as to the substance, specifically the efficient use of Filipino, the Court is silent.
Going back to the continued dependence on American authorities, it is not, as many would believe, a totally harmless practice -- it has its pitfalls, too. Consider Chavez v. Romulo. In that case, the late Solicitor General Frank Chavez argued that he had a constitutionally protected right to carry firearms; our Constitution, it should be noted, does not have an equivalent of the Second Amendment like its American counterpart.
Rather than restrict itself to discussing our own Charter, the Supreme Court made the rather ambitious attempt to interpret the Second Amendment and in the process concluded that the US Constitution did not give its citizens the right to bear arms. Great, except that a few years after Chavez, the US Supreme Court ruled in two landmark cases that the Second Amendment does in fact grant Americans the right to bear arms for reasons totally unrelated to service in the militia. Question is: where does that now leave Chavez?
There is another more insidious reason as to why reliance on foreign authorities should be discouraged. As I’ve noted, recent Supreme Court cases, with their pages of American citations, are formidable accomplishments of research. Well and good, some would say, because who can argue against a researcher who has done his homework?
The other side of the argument is that over-research does not encourage original thinking, that in fact, it facilitates intellectual laziness. After all, if a foreign authority has devoted thought to a matter, why should a researcher waste time thinking about the same even though the facts may not be foursquare?
The dearth of original thinking therefore lays the foundation for intellectual dishonesty, which in its most infamous example offers the temptation to plagiarize. That was exactly what happened in Vinuya v. Romulo, the Supreme Court decision on the Filipina comfort women, wherein a researcher failed to properly attribute statements in the decision to their rightful authors. As if that weren’t sin enough, the authors whose works had been plagiarized complained that their works had been misused to support a conclusion different from theirs. Ultimately, the Court declared that no plagiarism was committed, ergo, the decision was sound. The damage, however, had been done.
I would say that it will be difficult to wean ourselves from foreign authorities simply because the Internet makes access to them oh-so-easy. The choices, however, are starkly simple: either gradual withdrawal or quitting cold turkey.