Laserna Cueva-Mercader Law Offices : Supreme Court in a social media age

Sunday, December 29, 2013

Supreme Court in a social media age | Inquirer Opinion

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The Supreme Court entered popular consciousness in 2013. One recalls how the oral arguments on the Reproductive Health Act saw vocal justices such as Roberto Abad turned into Internet memes, graphics with their quotes bouncing around Facebook. In traditional media, headlines quoted Senior Associate Justice Antonio Carpio as saying lawmakers’ pork barrel “on its face is unconstitutional” and “riddled with unconstitutionality.” For all the dignified silence, opening proceedings to the Internet means the Court now speaks to the people beyond the anthologies.

The justice now has a pulpit. It is telling that the media try to cite justices’ statements during arguments far more than they do our legislators’. The Court is the least dangerous branch as it holds neither purse nor sword, but must appeal to public morality. That the politically insulated branch now broadcasts these appeals real time grants it undreamed-of institutional strength.

Greater access reminds us that there are distinct personalities behind the bench. Carpio has unintentionally become the social media justice’s mold. He distills a complex philosophical debate into a single, purely legal issue on which a case turns. On RH, he stymied Ma. Concepcion Noche by showing that the law prohibits drugs that interfere with a fetus’ implantation, rendering her debate on whether life begins at fertilization or implantation irrelevant. On pork, he argued that because the president has a line item veto power, the budget must necessarily be written as line items, prohibiting discretionary lump sums. This sparked a side debate in the written decision, with Chief Justice Ma. Lourdes Sereno defending lump sums. Carpio’s stern, businesslike and eminently quotable manner has made him the reporter’s darling and a petitioner’s worst nightmare.

Perhaps the justice with the most questions is Marvic Leonen. The opposite of Carpio, he circles an issue like a predator toying with prey or a law professor mentally eviscerating a hapless freshman, asking numerous questions on smaller details. For example, when Solicitor General Francis Jardeleza argued that the Aquino administration has used the Malampaya Fund strictly for energy-related purposes as intended by law, Leonen raised that an Arroyo executive order stated it may be used as the president sees fit. Also the opposite of Carpio, Leonen will then remind a petitioner that a justice’s questions do not necessarily reflect how he intends to rule. Such persistent probing of both sides has allowed prepared petitioners to shine, such as cyberlaw professor JJ Disini and former defense undersecretary Rodel Cruz, who argued both technology issues and constitutional jargon perfectly in the Cybercrime Act arguments.

Sereno is likewise less direct, raising the broader policy issues of a legal decision. On RH, for example, she confronted Luisito Liban on claims regarding alleged coercion, health risks and a decadent Western culture of contraception where 12-year-olds have multiple sex partners. Known as a woman of faith who was quoted that her appointment as chief justice was God’s will, she proved quite effective in that exchange.

There are 15 justices and more are likely content to hold their cards closer to their chests unless they are the designated author of a decision, which was why Justice Estela Perlas-Bernabe was active and meticulous during the pork barrel arguments. Nevertheless, we have seen that Diosdado Peralta and Lucas Bersamin take a more casual, folksy approach, a welcome balance to how Carpio always sounds like ice water runs through his veins. Bersamin, for example, lightened the tense RH debate by noting that the anti-RH lawyer was named Concepcion. Presbitero Velasco and Mariano del Castillo seem to be the pragmatists and mediators. Finally, one may fairly include Jardeleza as a 16th justice, and increased access to arguments has only highlighted his office’s contribution to raising the bar of constitutional litigation.

One hopes the increased transparency sharpens the “vital national seminar.” In the cybercrime arguments, for example, Rep. Neri Colmenares responded: “I’m not very good at the Internet.” In the pork arguments, Manuelito Luna claimed that alleged presidential pork is unconstitutional because unequal allocations to senators violated equal protection—the year’s most bizarre human rights argument. In the RH arguments, countless nonlegal arguments aside, Noche quipped, “I don’t think there’s a need to further consult the people on the meaning of the Constitution,” while former senator Francisco Tatad seemed to cite the Pope as legal basis. Further, some justices were criticized for asking the same questions during each hearing, leading the Court to move questions after all initial statements are made. One hopes that transparency will likewise improve Judicial and Bar Council interviews. The interviews for the selection of the chief justice were criticized for having almost no questions on judicial philosophy and deciding cases, and a persistent question on how a candidate would wish to be remembered if appointed chief justice.

Ultimately, one hopes the transparency will stimulate a broader consciousness of rights and institutions. The decision striking down lawmakers’ pork, for example, affirmed popular sentiment, but one hopes the citizenry appreciates the underlying reasoning on the separation of powers. One likewise hopes the RH arguments caused people to consider what informed right a woman should have over her body independent of one’s RH views. A litmus test might be whether people appreciate the difference between the Court declining jurisdiction and its actual rulings. For example, can people reconcile how different contexts might mean telling anti-RH petitioners that their arguments should be taken to Congress while rejecting the same argument for antipork petitioners?

The media and the academe remain crucial to fully appreciate the Court. The cybercrime arguments, for example, received clumsy media treatment, such that teenagers were convinced that the Cybercrime Act created online libel—ongoing prosecutions are under a 1930 law—and coverage of the arguments latched onto sound bites that were peripheral to the legal issues.

The Court had a wonderful entry into social media. This reinforces that great contradiction that it is a countermajoritarian institution of unelected justices yet is the venue for many of our democracy’s greatest moments. Technology highlights that our justices are statespersons, too.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.

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