A Place for Honor

Marvic M.V.F. Leonen
September 3, 2010

“The line of fire is a place of honor.”

I first heard this from Lean Alejandro during one of his perorations on what the youth should do way back during Martial Law days. Then, the student body of the University of the Philippines was attempting to reestablish the University Student Council. The issues then were not solely about the UP but the context in which this academic institution operates. In my younger days, I had imagined that that meant standing in line in mass mobilizations, being found in rural areas deep into mountainous regions in the Philippines or even perhaps dying for one’s country.

Today, I find myself repeating that phrase in a totally different context. Certainly not in the rustic environment of my youthful dreams. I am Dean of the law school of the University of the Philippines where majority of the faculty and students came out with a statement asking a justice of the Supreme Court to resign for having written a decision with plagiarized and misleading contents. The decision concerns “comfort women” raped and used by the Japanese army during the second world war asking for reliefs from the Supreme Court. The theory of this case was developed by law students years ago with the support and encouragement by a UP law professor. Later, that same theory became dominant in international law academic circles. The case was then filed. It definitely presented an intellectual challenge to the court, not to mention giving it an opportunity to creatively read doctrine to serve values which we should, as a state, hold dear.

I have been advised by some that what we did may be construed as an indirect contempt of the Supreme Court. I hope that it is not seen in that way not for our sake but for the sake of something greater than the incumbents of the court or those in our faculty.

Since the publication of the decision, three known international authors, all from legal academia, wrote the Supreme Court. One of them attached a matrix in his two page letter showing clearly that entries in his book was lifted verbatim. He also asked the Supreme Court for an explanation why the conclusions that decision arrived at was different from that he argued for in his book. It matters to me that this book was published in Europe with a reputable academic publishing group. It is almost as if we are suffering from embarrassment in the international arena without us knowing because our newspapers and television channels do not seem to report on it anymore.

Standing up to the Philippine Supreme Court even as lawyers is not an easy thing to do. The most obvious limitation is that lawyers vicariously argue cases which are not really theirs. Many lawyers understandably would not risk losing a majority vote simply because it had spoken out of turn on matters that may not be directly related to cases which they bring to the court. It is normally a choice between risking getting the ire of some of the members of the court for an argument you have to make in a case and risking getting the same ire for a matter which has a more far reaching effect, i.e. a mistake or an impropriety done by a member of the court.

That is where I think the legal academia should come in.

Teaching the law as seen through various jurisprudence and other related literature puts us in a unique situation to be able to assess doctrine for what they are. Daily, we engage in critical irreverence simply so that our students develop the appetite to evaluate and rethink even the most canonical of beliefs. Doing so, we train them not to be glorified puppets of the perceived status quo but social leaders who are aware of the value and threat of institutions. You could say, that our work as law professors entail that we commit contempt daily in our classrooms.

To provide decent critique, our tools are not only the materials we read but also the network provided by our professional and academic engagements. We go to academic conferences: some bland, others esoteric, even those which are truly erudite. We write for foreign law journals and correspond with our peers in other jurisdictions. The conversations we have range from the very mundane to the seemingly profound elements of postcolonial praxis, semiotics, metaphysics that relate to our passion for the law. In a sense we are able to inhabit a part of the legal profession--that of the academia--that not many practicing lawyers may want to inhabit. But we see it as essential. How else would we be able to find out the nuances of the idea of jus cogens and how it has already been deployed elsewhere?

But, should decent critique be limited to our classrooms?

Decisions of our Supreme Court are accessible to the public. All you have to do is to click on the Philippine Supreme Court’s web page. Whether it is a simple read is another matter. Academics can help in guiding the public as to how each decision squares with existing precedents, or its relationship to the world of emerging approaches to interpretation in law. In doing so we can lead or mislead. The possibility that we may mislead is always there: for we are humans trying to make sense of this world. Humans, participating with our craft and modes of thinking, in what we know to be a democracy--one where the value of expression, free expression, is cherished.

You could say, that academics should be public intellectuals. Perhaps, they should be able to shape public opinion much more than some columnists in daily broadsheets.

The faculty of UP Law is different from other law schools. We have a core of regular faculty members whose principal job is to teach, do research and provide extension work. The value of this core faculty is that being sufficiently immune from having to participate in the pragmatic concerns of cases wading through our court system it can then responsibly discharge its duty to comment on the Supreme Court’s decisions for its students, other members of the faculty, other members of legal academia and the public in general. We do also have a substantial number of professorial lecturers, some of the best from the ranks of the practicing legal profession. Their presence balances the interests of those who wish to see legal developments from a broad perspective to those who see it from a professional point of view.

Our faculty’s consensus was that regardless of standpoint however, plagiarism and misrepresenting the conclusion in the works of others, should be denounced. We saw it clearly in Vinuya v Executive Secretary.

Others say that we are creating a crises in our court system. We see it as a crises already being there and coming to the aid of kindred spirits that want to restore integrity in our courts. Assessing the possible scenarios, we thought it best to request the concerned justice to own up to the mistake and spare the Supreme Court the agony of having to make a decision.

Consider these questions that can arise out of a decision that is plagiarized:

Who writes decisions for the justices of the Supreme Court? When others do research for them, are they expected to be familiar with the same literature that the researchers have read? Don’t we vet the candidates for the Supreme Court through a laborious process? Should we vet their researchers in a similar manner? How powerful are researchers in offices of justices of the court?

Or, do the canons of judicial responsibility also apply to researchers of justices in our court?

Whose thinking must a law practitioner try to discern when pursuing her/his case? Should s/he really be reading the decisions of the justices of the court? Or should their time be better placed in reading the writings of the researchers that they hire? If so, is there a listing of who the researchers are in each of the offices of all the justices of the Supreme Court.

When a Supreme Court justice signs a decision, can we be assured that the words and the argument are hers/his?

What do we tell a brilliant law student that comes across a Supreme Court decision where portions of two published legal articles and a textbook are lifted without proper citations? Can we then enforce our rules on intellectual dishonesty on our law students? Can any law school advise its students on the importance of intellectual honesty and integrity?

What leadership should we be entitled to expect from the Supreme Court?

Should a court expect academics to simply praise them and refrain from criticism? If that were so, then on what is its accountability based on? Do they see their methods and reasoning as so infallible? Do they honestly believe that undeserved praises from their audience have a better chance of ensuring judicial independence than harsh but well reasoned out critique?

Citing anyone for contempt defines what to a court is legitimate or illegitimate criticism. It is an attempt to ostracize those who have spoken out because it signals to the legal profession what is speech that is not accepted by that court.

We are certainly in that line of fire. We would not have been had we chosen to keep silent. We could have remained silent and spoke of the breach in intellectual honesty in hushed conversations. That is not our idea of a democracy where free speech is enshrined. And had we silenced and censored ourselves, we would not have created a place of honor that our justices may courageously take.

Comments

[Verina B. Almerol]

I'm home and I am not used to your silence in your FB account...

My second to the youngest brother died of heart attack last Saturday in Riyadh. His body will hopefuly arrive on Wednesday and internment will be on Saturday, Dec. 11 in Pozorrubio.

I'll try dropping by UP next week as I have to renew my passport on Tuesday, Dec. 7 and then proceed to Pozorrubio soon after.

I'm sorry if I have to acknowledge the past. You are doing very well in raising your daughter. If I will be honest, I'm actually glad that you already have your decree of divorce when you were brought in my life.

Whatever lies ahead let the Lord's will be done...the only thing I know is that I am myself with you...and I thank you for that...

And may I request that you please erase these posts after reading them...

[Verina Ballesca Almerol]

I think I need to rephrase the line...'I wonder if you attend church on Sundays and where'...

It should be: 'I wonder if you have plans of reconciling with your wife as I have always believed in exhausting all remedies for the sake of the family'...

[Verina Ballesca Almerol]

Re-reading this piece, I thought this is more than enough for the Court to withdraw the show cause order.

I like this better than the explanation submitted to the court last Nov. 19.

I'm leaving Medan at 5 pm on the 3rd of December, arriving in KL at 8 pm. Leaving KL at 1:20 am and arriving in Manila at 5 am on the 4th.

I wonder if you attend church on Sundays and where...

I'm hoping that the show cause order is withdrawn before I'm home...