Flip flops

In past columns, I have sounded alarm bells against a string of cases where our high court performed a judicial flip flop, the latest of which was the reconsidered February 22, 2010 Quinto decision (decided with finality on March 2, 2010) which upheld the constitutionality of an election rule that considers appointed officials automatically resigned upon filing of a certificate of candidacy. Voting 10-5, the Court reversed its earlier 8-6 decision promulgated less than three months ago which, in turn, had overturned their original 2003 decision in Farinas v. Executive Secretary. The shift could be accounted for by the retirement of Justice Nazario who had voted with the majority, the participation of Justices Perez and Mendoza and two changing their mind (Justices Brion and Del Castillo). While I am generally bothered by flip flops, I am actually not complaining this time as more distasteful is a hard headed adherence to a seemingly wrong interpretation of the law. That said, I do empathize with Secretary Art Yap’s complaint that the deemed resignation provision should equally apply to elective officials since they would be able to use their positions for their campaigns as well. Perhaps this could be future Bohol Representative Yap’s first bill upon his assumption into office.

Flip flops are frowned upon for several reasons. First, it confuses the public as to what the proper interpretation of the law is. Second, it gives the impression that the case was not properly studied and does not therefore promote judicial stability. Finally, the resulting confusion may engender disrespect for the majesty of the law. This is also the reason why the principle of stare decisis or “law of the precedent” is a cornerstone of American jurisprudence. It promotes the idea that justice is an objective and continuing concept that should withstand the test of time. In theory, justice must be oblivious to the personalities involved. But this should not also mean that decisions of the past are cast in stone and should be followed blindly. After all, the society within which the law operates also changes so that the latter should also adjust to meet the needs of the former.

Case in point is the 1896 decision of the US Supreme Court in Plessy v. Ferguson where it upheld a Louisiana law calling for separate-but-equal accommodations for white and black railroad passengers. In a decision penned by the first Justice Oliver Wendell Holmes, the majority reasoned that the Louisiana law related only to “social” equality, not to political or civil equality. Social equality was not, the Court held, a goal of the equal protection clause, and could be attained only through voluntary action by individuals, not statutes. The Court further reasoned that the law did not “stamp… the colored race with a badge of inferiority” and if African Americans felt inferior under the law, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

In a classic dissent, Justice John Harlan (also the first) argued that although the law appeared neutral on its face, “everyone knows that it had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.” 

This separate-but-equal doctrine was the law until the 1954 case of Brown v. Board of Education where the Court, with the first African American Supreme Court Justice, Thurgood Marshall as ponente, ruled that separate educational facilities are inherently unequal. The Court reasoned that even where all-black and all-white schools were equal in terms of tangible factors, intangible factors necessarily prevented children who were restricted to all-black schools from receiving equal educational opportunities. In reaching this conclusion, the Court relied on expert findings that segregation gave African American pupils a sense of inferiority that impaired their motivation to learn and their success at learning which, in turn, “affected their hearts and minds in a way unlikely ever to be undone.” 

I have cited Plessy and Brown to illustrate the point that court interpretations should only change when the values and needs of a community change. Otherwise, the principle of stare decisis should be given great weight.

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This week’s four centavos go to ace photographer Patrick Uy for doing what he does best — capturing life’s most memorable moments with his lens. One such occasion was the coronation of His Majesty King Jigme Namgyel Wangchuk, the fifth Thunder Dragon King of the tiny Himalayan kingdom of Bhutan. Patrick brought home with him tons of photographs that portray the stunning colours, the rich tradition, and the vibrant spirit of this nation whose barometer of progress is measured through Gross National Happiness. He assembled these photos in an expertly curated exhibit at the Shangri-La Plaza Mall’s Grand Atrium that ran for two weeks in August of last year.

Those who had the privilege of experiencing Bhutan through Patrick’s photo exhibit were amazed by the magical images and, more importantly, by the brand of leadership that the Royal family espouses. The new King had vowed to walk the same path that his father had taken, and to continue his legacy of selfless and inspiring governance based on the tenets of peace, security and happiness.   

With our own national elections looming in the near future, recollections of this grand celebration cannot but leave us with a deep yearning for a leader who could be revered and beloved by all, and who could provide a safe, peaceful, and happy refuge for our ailing nation. My four centavos is we should elect a leader who will subscribe to the motto below.

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“Throughout my reign I will never rule you as a King.

I will protect you as a parent, care for you as a brother, and serve you as a son.

I shall give you everything and keep nothing…”   — King Jigme of Bhutan

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