Issue of February 7, 2016

Baguio Day Anniversary Issue
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Difficult cases make bad law

Watching developments in the Grace Poe disqualification cases before the Supreme Court brings to mind an old legal adage, which warns that “difficult and hard cases make bad law.” It is attributed to U.S. SC Justice Oliver Wendell Holmes in a dissent he wrote in 1904.

His exact words were, “Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance...but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

Indeed the Poe cases fit the description of being of “immediate overwhelming interest which appeals to feelings” but with the potential to “distort the judgment.”

The Poe cases are legally difficult because they tread on uncharted legal frontiers relative to foundlings. They are politically difficult because they involve a presidential candidate who was until recently leading the pack of aspirants. They are socially and emotionally difficult because any decision would impact, not just Sen. Grace Poe, but the fate of “foundlings” in the Philippines which may number into the thousands.

More importantly, it also affects the future of Overseas Filipino Workers who have for economic, security, and medical reasons temporarily adopted the nationality of the countries where they work, but intending to return someday to their family and country and reacquire undiminished citizenship. Unlike foundlings they number into the millions.

Unlike foundlings our OFWs are also heralded as the “unsung heroes” of the country that saved us from economic crunches in the past and into the present. Will our unsung heroes and saviors await second class status when they return?

Will the SC decision result in “bad law” and precedent? No one, at this stage, not even perhaps the justices themselves, knows how things will turn out.

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One thing is almost certain, however, and that is that the name of Grace Poe will remain in the ballot for the May 2016 presidential elections. The TRO issued by the SC against the Commission on Elections ensures that. Perhaps it is a “secret” alternative, reserved by the SC, in case they would find it more convenient to just throw the matter to the electorate instead of dividing the country with a “bad” or controversial decision.

Less difficult legal questions will arise if she is disqualified before the results are officially announced. Politically difficult will be a situation where she is disqualified after she has been proclaimed the winner and has taken her oath.

All of these can be averted if the SC decides in the next few days. But don’t hold your breath on that. As we see it, there is no way that it is going to happen. We are far from the light at the end of the tunnel.

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Sometimes even simple cases make bad law. For many, the best example of that is the grant of bail to Sen. Juan Ponce Enrile by the SC.

They granted him bail because he was supposed to be very sick and infirm. Now he is thumbing his nose at all of us. He seems physically and mentally healthier that some in the Supreme Court. One SC Justice has in fact just retired optionally due to reasons of health.

Perhaps our only consolation is that Enrile’s term is coming to an end. The 16th Congress has just adjourned. It is going to be his last. He is not running for re-election.

Enrile will return with potential to make noise and trouble only when Congress re-convenes in order to canvass the votes for the President and Vice President after the May elections. He has already announced that he will campaign for Vice Pres. Jojo Binay. After the May elections and when the 17th Congress enters, Enrile will hopefully fade into the sunset, with his exact impact on history to be determined later by the judgment of time and distance.

Enrile tried to pre-empt the judgment of history by publishing his biography. That attempt seems to have failed because portions of what he wrote were vehemently disputed and did not result in his glorification.

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