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Monday, December 5, 2022

Tip for bar takers

To be more specific, the potential questions would revolve around quo warranto against a sitting Supreme Court Chief Justice (CJ) and impeachment of a CJ.

If I were the Bar Examiner, I would chose these for the following reason: They would test not only a bar candidate’s knowledge of the law but, just as important, also of current political and social events.

As a potential bar question, these two issues are closely inter-related and must necessarily be asked together.

While there are specific legal provisions on quo warranto, there has been no prior quo warranto brought against a CJ. It is the first case of its kind. The decision of the Supreme Court could go any which way.

In the case of impeachment, it will only be the second impeachment case against a CJ in our legal history.

To be sure, the remaining Associate Justices in the SC, will be reading and quoting the same exact legal provisions. They will be relying on the same rules of statutory construction that have been drilled on any freshman law student.

But how they individually interpret the law is entirely one’s own.

Seldom is there 100 per cent unanimity among the SC justices on most cases brought before the highest court. In many cases, there are dissenting opinions. There are also some so-called separate opinions.

The Supreme Court decisions form part of the law of land. Decisions today are relied upon in making decisions tomorrow. But It also sometimes happens that a dissenting opinion today becomes a majority opinion tomorrow.

I once asked a retired justice how he voted. Candidly, he described his personal formula: Law plus Circumstance equals Decision. He explained that he always considered the context under which a decision is called for.

As applied to then Candidate Rodrigo Duterte, there was a technical ground for disqualifying Duterte. But the majority justices felt that the defect in his certificate of candidacy was not fatal and the matter was better left for the electorate to decide.

Foregoing considered, when I am asked what the law on a particular issue is, my standard answer now is: The law is what a majority of the Supreme Court justices says it to be.

In all likelihood, a decision on the quo warranto against CJ Sereno would be rendered very soon, certainly way before the next bar exam.

If I were Bar Examiner, I would give 9 points for an answer that correctly quotes the majority decision. But I would give a 10 for an answer which discusses both the majority and the dissenting opinion.

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