Will Justice Leonen, the “Great Dissenter”, be the next chief justice?
In a rather awkward scenario, the next Chief Justice of the Supreme Court may be its great dissenter. That is, if he survives the legal onslaught against his career.
Justice Marvic M.V.F. Leonen, known in legal circles for his dissenting opinions on numerous landmark cases, is ranked third in terms of seniority among the justices of the Supreme Court. His rise to the highest post may even come sooner, considering the early retirement of sitting Chief Justice Diosdado Peralta.
Following the “Seniority Rule” in appointing the Chief Magistrate, the next appointee would logically have to be Justice Estela Perlas-Bernabe, as the second most senior justice. However, she only has one year left to perform the duties of her office. This due to her mandatory retirement at the age of 70 by 2022, as Chief Justice Peralta would originally have.
Leonen would then be poised to be the next Chief Justice of the Supreme Court. If appointed, the Leonen Court will face the controversies of the upcoming 2022 elections, steer the 40,000 personnel of the judiciary in a post-pandemic legal landscape, and determine the parameters of what “The New Legal” may be. It will have to bring the final word on disputes that have created so much volatility in the country for the past few months.
ROAD TO CALVARY
But Leonen’s path to becoming the Chief Justice is rather uphill, if not dark.
In 2020 alone, three cases have been filed against him: a petition asking for his inhibition in the Marcos electoral case, a petition for disclosure of his SALN, and an impeachment complaint questioning his partiality and competence in the adjudication of cases.
No other member of the High Court has been hammered with such rapid legal jabs in a short period of time.
As if not enough, there looms the uppercut of discretion, one that not even the justices of the Supreme Court can evade from: the appointing power of the President.
Under the Article VIII, Sec. 9 of the Constitution, it is the President who has the power to select the next Chief Justice. By tradition, it is the most senior justice- the earliest to be appointed to the High Court- who gets to be the preferred choice in terms of selection. This rule, however, is more customary than entrenched in stone. There is no law that compels the President to appoint the most senior justice as the highest magistrate in the land. The choice exclusively remains within the discretion of the President.
Senior Associate Justice Carpio himself was bypassed on two occasions: in the aftermath of the impeachment of CJ Corona, where Sereno was appointed before him. The same thing occurred when it was CJ Bersamin who took on the seat of CJ Leonardo-de Castro, after the latter’s three-month stint.
In the three administrations that spanned SAJ Carpio’s career, he has penned numerous decisions that dealt a great blow against the Chief Executive, leading some to think that it was his lack of deference to the appointing power that made him less of a choice.
Leonen may be no different.
He was adamant in his position against the constitutionality of Martial Law. In Lagman vs Medialdea (G.R. 243522) and in the succeeding cases that tackled the constitutionality of Martial Law, his position was consistent: there is no sufficient factual basis to declare, much more extend, Martial Law in Mindanao.
Leonen was criticized by many in the social media, saying that his stance seemed supportive of the terrorist groups. But among the justices of the Supreme Court, only he had ground-level experience with working against the armed movements against the state. He was appointed chief negotiator of the government against the Moro Islamic Liberation Front, and held such position until 2012, leaving only when he finally took office before the Supreme Court. In a TEDxTalk, Leonen recounts his first case: freeing two NPA members arrested based on a defective warrant. Clearly, if there is anyone who has sat down and talk with armed militants wanting to bring down the government, it would be Leonen.
But to say that Leonen’s opinion only surface against the current administration and not in the past would be misleading.
In Belgica vs Ochoa (G.R. 208566), he was unequivocal in saying that the Aquino administration’s Priority Development Assistance Fund “has no discernable purposes”. He noted that a similar lump sum amount for each district did not reflect the measures of the government to address the developmental needs of the country, which had varying levels of poverty across the regions. Leonen performed the duty of the Court as a checking power of the legislative, claiming that PDAF unduly gave too much power for legislators when they claimed to use the said funds for “priority infrastructure projects”. This would be against the Constitution, as these projects “are not textually discoverable, and therefore, allow an incumbent to have broad leeway”, which was not a scenario contemplated under the law.
In Araullo vs Aquino (G.R. 209287), Leonen wrote against the constitutionality of the Disbursement Acceleration Program. While agreeing to the need to bolster the economy by accelerating spending by the government, Leonen disagreed with the “commingling of funds”, saying that the DAP made it difficult to determine how the money was spent, thus “public doubt will not be far behind” when it comes to the projects of the government.
In Saguisag vs Ochoa (G.R. 212426), the case which reviewed the constitutionality of the US-RP Mutual Defense Treaty, Leonen strongly wrote against the majority decision, claiming that it was “disturbing”. While he upheld the Commander-In-Chief powers of the President, he stressed that this was “limited by the sovereign through judicially determinable constitutional parameters”. Reading the Constitution, Leonen claims that there was no distinction between “initial entry” and “subsequent activities”, which would justify the presence of US soldiers on a “rotational basis” in the country. This interpretation of the majority, Leonen says, “is specious and ahistorical”.
Leonen has consistently decided against the power that appointed him, adding credibility to his name and making his integrity in the court unimpeachable.
TEEHANKEE 2.0
If Leonen gets bypassed, it won’t be the first time in history that the most senior justice was skipped for being unpopular with the current administration. In fact, the Court finds itself in the same situation that it was during the Martial Law years.
Justice Teehankee, then a strong dissenter during the Martial Law dictatorship, had been hopped over twice by junior candidates during his time in the court. While originally supportive of the Marcos dictatorship, he later opposed the policies of the dictator, which many cite as the reason why he was bypassed. Among his notable dissents was the one in Javellana vs Executive Secretary (G.R. L-36142), the decision which upheld the ratification of the 1973 Constitution and cemented the legitimacy of the Marcos rule. Since then his decisions against the majority established him as the pro-human rights justice who stood in the way of the abuses of the regime.
Leonen is no stranger to these facts: he was a law student at the UP College of Law in the late part of the Martial Law period. In his speech during the oath taking ceremony for the new lawyers, he cited the words of his friend Lean Alejandro, saying “the line of fire is always a place of honor”.
Alejandro was the famous pioneering chairperson of Bagong Alyansang Makabayan during Cory Aquino’s term. He would later be assassinated, fired with a shotgun to the face at a point-blank range. One year after his friend’s death, Leonen would sign the roll of attorneys and become a full-fledged lawyer. Decades later, Cory’s son stamped his presence in the Court.
In some of his decisions, there is a sense of harking back to the legal evils during the Martial Law period. In In Re Salibo (G.R. 197597), a case involving warrantless arrest and mistaken identity, Leonen’s ponencia overturned the ruling of the Court in the cases of Enrile vs Ilagan (G.R. 70748).
The ponencia in Enrile ruled that the habeas corpus cannot be availed of when a subsequent information has been filed and warrant of arrest issued, even if no preliminary investigation was conducted. In the same case, Teehankee put forward his dissent, which has now become a standing rule under the pen of Leonen: the writ of habeas corpus is not rendered moot and academic by the filing of information, to which no preliminary investigation has been conducted. This would constitute a violation of due process, thus rendering the information void.
Perhaps no other decision shows the stance of Leonen about Martial Law than his dissent in Ocampo vs Enriquez (G.R. 225973), where the Supreme Court upheld the legality of the burial of Marcos. Leonen lengthily cited the narrations of Martial Law survivors, coupling them with various cases by which the Court itself has recognized the human rights violations during the Marcos years. He called the decision of Duterte to push with the burial as “capricious”, when the President himself and Calida both admitted that Marcos was not a hero.
But Leonen has proven himself fair in the application of the law, even with his stance on the atrocities of the late dictator. In Chavez vs Imelda Marcos (G.R. 185454), Leonen acquitted the dictator’s daughter of the charges against her. The decision was based on the failure of the prosecution to properly authenticate their documentary basis for the crimes allegedly committed by Imelda. Leonen even took time to criticize the steps taken by the government lawyers, calling the prosecution “lackadaisical” and “apathetic”. This shows that Leonen’s judicial philosophy — utmost respect for human rights and disdain for abuse of power — does not get in the way of clear interpretation of the law, even when it means acquitting the daughter of a dictator from which his activist origins sprung.
QUESTIONS ON COMPETENCE
Issues on allegiance to the Chief Executive aside, Leonen’s competence as a judge is being questioned as well. This is because he never held a position as judge before he became a sitting justice. He was mainly an academic, being the dean of the UP College of Law. Many would criticize Leonen for having an overly pro-marginalized people’s view. He was a member of the Free Legal Assistance Group, a lawyers’ group founded by human rights champions Jose W. Diokno, Lorenzo Tanada Sr. and Joker Arroyo. Leonen was a founding member of the Legal Rights and Natural Resources Center, an NGO focusing on indigenous peoples rights vis-a-vis state law. In the landmark case of La Bugal Blaan Tribal Association vs DENR (G.R. 127882), he would later argue before the Supreme Court against the constitutionality of RA 7042, otherwise known as the Mining Act of 1995, the scorn of land rights activists for allowing large-scale mining in the Philippines.
In his interview with the Judicial and Bar Council, then Chief Justice Maria Lourdes Sereno conveyed to Leonen that “some characterized you as wearing your heart on your sleeve”. Many were worried that a public interest lawyer, soaked with lecture loads and administrative tasks as head of college, would not be up to the challenge of passing on other legal issues confronting the High Court.
The doubts couldn’t be more misplaced.
Leonen graduated magna cum laude from the UP School of Economics in 1983. He ranked fourth in his graduating class in the UP College of Law in 1987. When he took his Masters in Columbia School of Law, he majored in commercial law topics which were far from his preferred practice, in order to complement his understanding of the legal system. In a statement of support by over 100 lawyers and colleagues, they denounced the allegations over Leonen’s competence, claiming “to describe Justice Leonen as having no experience in legal practice is an extreme falsity”, as he had won landmark cases in the Supreme Court before becoming a judge himself.
In 2013, Leonen, along with Justice Perlas-Bernabe and Court of Appeals Justices Apolinario Bruselas and Japar Dimaampao, were representatives to the the International Judicial Colloquium on Insolvency organized by the International Association of Restructuring, Insolvency & Bankruptcy Professionals. True enough, in the 2016 case of Viva Shipping Lines vs Keppel Philippines Mining (G.R. 177382), Leonen gave a concise summation of the country’s law on insolvency, one that every law student can find a good reading for Corporation Law.
In Sameer Overseas Placement Agency vs Joy Cabiles (G.R. 170139), the Court was confronted with a strange scenario: Sec. 10 of RA 8042 had been previously declared unconstitutional, for violation of the Equal Protection Clause of the Constitution. However, a newly enacted law, RA 10022, revived the same provision. As to whether this reenactment cured the defect, Leonen’s ponencia says no, claiming “when a law or a provision of law is null because it is inconsistent with the Constitution, the nullity cannot be cured by reincorporation or reenactment of the same or a similar law or provision. A law or provision of law that was already declared unconstitutional remains as such unless circumstances have so changed as to warrant a reverse conclusion.”
All these show that Leonen is up to the challenge of resolving legal disputes, even if he never had prior experience in the Judiciary. Senior Associate Justice Carpio himself admits that it takes three years for an Associate Justice to be fully comfortable with the work in the Supreme Court. By 2022 Leonen will have spent 10 years as magistrate. Justice Caguioa, the second most senior and also an Aquino appointee, will have spent 6. Justice Gesmundo, the most senior Duterte appointee in the incumbent line-up, 5 years.
WHY IT MATTERS
The Supreme Court, as the final arbiter of disputes, is in a decisive position to bring order in this highly polarized country. More importantly, it stands as a vanguard of rights, at a time when basic human freedoms are under assault. The Court’s role is even more important as the country strives to bring the economy back to its knees. As one of the countries with the slowest economic recovery rate, it is vital that the Court properly determine whether the actions of the two other branches of the government remain in accordance with the law, or if their zeal oversteps the rules of the land.
What is needed is a Court that listens to all voices but knows only one law, and is consistent with its application. What is needed is a Chief Justice that can steer the legal process in the lawful direction, while keeping intact the diversity of opinion. Peers of Leonen may admit that they differ drastically with his opinions, but there is no doubt on his character and integrity. In a statement of support by the UP College of Law, it read: “We may not agree with everything he has written while on the Court, but we stand by his character, his integrity, and his principles.”
Even before writing dissents, Leonen was already notorious for differing with the opinion of the Court. In 2011, then Associate Justice Leonardo-de Castro penned a decision which admonished Leonen for his actions. Along with faculty members of the UP College of Law, Leonen signed a statement expressing concern over accusations of plagiarism against Justice Del Castillo in his ponencia in Vinuya vs Romulo (G.R. 162230).
Only a year later, Leonen would be sitting alongside the two justices he formerly crossed swords with. In a Rappler interview, Leonen expressed sadness when Del Castillo refused to accept the nomination for Chief Justice post, praising the man’s compassion and willingness to listen to the opinion of others.
Leonen was even chosen by former Chief Justice Bersamin to give him the testimonial in his retirement. This, despite the fact that the two conflicted over the decision in People vs Enrile (G.R. 213847), which Bersamin penned. According to Leonen, the circulated ponencia was not the same decision voted upon during the deliberations of the Court. This prompted Bersamin to file a complaint against Leonen, accusing him of “gross distortion” of the workings of the Court. Even so, this did not prevent both parties from complimenting each other on the occasion of Bersamin’s retirement.
The Supreme Court has a greater function other than to interpret the law. It has to determine the legitimacy of actions from various social forces. In doing so, it determines what will be legal, while the otherwise “illegal” will either be left to wither, blend in the gray areas of law, or persistently evade the reach of government. At a time when the Internet has connected many just to make their divisions clearer, the Court will have to be prompt in having the final word in the disputes put before it, lest it allow conflict to fan out even more. What better Chief Justice than one who has spent the most time in the Court, has been one of its fiercest critics, but at the same time its most able writing hand.
Will The Great Dissenter be the next Chief Justice? No one knows for sure, but there is no dissent that he is the main choice for this post.
