Mixed feelings

I have mixed feelings regarding the most recent decision of our Supreme Court on the controversial League of Cities case which questions the constitutionality of the creation of 16 new cities.

On the one hand, I am pleased that the original November 18, 2008 decision has again been upheld (and hopefully with finality). On the other hand, I continue to be bothered by the High Court’s flip flops and wonder whether this will be the last.

By way of a brief and simplistic background, the original November 18 decision declared the cityhood laws unconstitutional by a vote of 6-5. Respondent cities filed a motion for reconsideration but which was denied by a vote of 7-5. Respondents filed a second motion for reconsideration (which is supposedly a prohibited pleading) but which was denied as well by a vote of 6-6. 

Enter lawyer of last resort. Reasoning that the 6-6 vote was not a denial, the Court allowed the filing of a (third) motion for reconsideration and on December 21, 2009, reversed its November 2008 ruling on a vote of 6-4. Thanks to the persistence of the League of Cities led by its immediate past and current president, Mayors Jerry Trenas and Oscar Rodriguez, respectively, the Court again reversed itself several days ago on a (fourth) motion for reconsideration and reverted to the original decision by a vote of 7-6.

I wish this were a case of a “no harm-no foul” situation. But there is harm if the reputation of the Court to render fair, consistent and impartial justice is placed in jeopardy. It puts into question the concept of the Court as a continuing body that is able to promulgate “blind folded” decisions regardless of the personalities involved (whether of the litigants, the lawyers or even its own changing membership).

It engenders doubt in the stability of its internal rules regarding the immutability of final judgments. Harvard Law Professor Andrew Kaufman wrote that the “Supreme Court’s only armor is the cloak of public trust; its sole ammunition, the collective hopes of our society.” Flip flopping does not help its cause either way for it erodes faith in the judicial system and at the same time shoots down the people’s aspirations.

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Here comes the Bar: At the onset of the first “ber” month, the legal community welcomes the annual ritual of the bar examinations. 5,041 legal gladiators will be trooping to De La Salle Taft for the next four Sundays to prove to the Supreme Court and to themselves that they have what it takes to become full pledged lawyers. This year’s bar chairperson, Justice Conchita Carpio-Morales, is no pushover (is this perhaps the reason why the number of examinees dropped by over 1,000 from last year?). As the 2001 examiner in legal ethics and practical exercises, she only passed 10% of the students who took that exam.

But she insists that she is also “pusong mamon” so that our legal hopefuls still have something to hope for.   

What makes the 2010 bar exam unique is that it may be the last “pure essay” type of an exam. The 2011 chair, Justice Roberto Abad, has announced that next year’s exam will be different in several respects. First, the coverage will no longer be based on an enumeration of laws but on a list of legal topics that a new lawyer is expected to know to begin a practice. Second, the introduction of a multiple choice question part that will measure an examinee’s knowledge of law and its applications. And third, an essay portion where an examinee will be directed to prepare a short memorandum, brief or decision that is expected to measure an examinee’s lawyering skills. In next week’s column, let me provide more information about these proposed changes and the reasons behind them. Meanwhile, let me push this year’s candidates to go the extra mile lest they wish to take the exam again albeit under the new format next year.

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Salary Caps: This week’s four centavos go to the Senate Finance Committee led by Senator Frank Drilon for conducting the ongoing investigation on the compensation received by GOCC officials. Indeed, some of the committee’s initial findings with respect to the SSS, MWSS and LWUA are astounding. Aside from excesses in compensation, there also seems to be abuses in the charging of extraordinary and miscellaneous expenses such as the ability of the Clark Development Corporation’s President to liquidate P10 million through mere certification. The committee is also turning out to be a productive collection agent of the executive branch as it shakes the GOCC dividend trees.

The hearings also produced an interesting legal and moral question of whether a government nominee is entitled to pocket the proceeds of exercised stock options or whether he should return any profit made to government. The argument for “pocketing” is that the director used personal funds to exercise the option and purchase the shares and is being rewarded for taking some market risk. The argument for “returning” is that the government, and not the nominee, is the shareholder and so any extra perks received should be held in trust for the benefit of government. Moreover, there is usually little market risk taken given that the options are purchased at a low price. Perhaps the SEC can be tasked by the committee to shed additional light on this issue.

But rather than recommending a fixed cap on bonuses, perhaps the committee should instead strongly urge GOCCs to be more transparent in their compensation structures. In addition, the latter should veer towards more performance based so much so that just like in the private sector, an agency should be given leeway to award higher bonuses if it is able to generate greater revenues.

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 “Change will not come if we wait for some other person or some other time.” — Barack Obama

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