Why SC divisions should stop deciding cases

GEORGE DEL MAR (gdmlaw111@gmail.com) has a wild and weird suggestion. He holds the view that Supreme Court divisions should NOT be allowed to decide cases. In an article he wrote for the Inquirer, he said: "I have a wild and weird suggestion. Why not simply solve the problem by making only decisions of the Supreme Court EN BANC form part of the legal system?"

This view proposes a major change which, luckily, does not require an amendment to or revision of the 1987 Constitution. While it is true that this major change will affect not only a long-standing tradition in the Judiciary but also the speedy disposition of cases, GEORGE believes that this will allow the Court to redeem itself from the public opinion that it is a "court of last error."

GEORGE anchors his argument first on a legal provision: Article 8 of the Civil Code of the Philippines. "Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines."

We all know what this means. It means that once a case has been settled by the Supreme Court with finality and a decision is promulgated, the text of said decision are deemed read into the provisions of the law and such ruling controls all future issues relating to the same or similar facts and legal disputes.

There is a problem, though. It is not only the Supreme Court en banc which has the power to decide cases. According to Article VIII of the Constitution, "The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members." The Supreme Court divisions, too, can be sources of jurisprudence.

Anyone who has taken a course in statutory construction would know that the word "may" denotes an option and not a mandate. This observation is bolstered by the fact that, in the same sentence, "in its discretion" is used. Two things must be clear here. First, the general rule is en banc. Second, the Court is allowed by the Constitution to stop deciding cases in division.

It is, of course, obvious that more cases can be decided within a shorter of period of time if the Court divides itself into multiple divisions. And so, this is now a question of whether we, as a people, will prioritize consistency in judicial decisions over the speedy disposition of cases.

GEORGE continues in his July 2017 article:

Bartolome Fernandez Jr. parodied the Supreme Court as the "court of last error" in his letter (Opinion, 7/18/2017) because of so many notorious errors in its decisions. How then, in heaven's name, can these "errors" form part of the law of the land? The problem lies in the fact that there are three divisions of the Supreme Court; in each one, only three out of five justices are enough to call the shots. As has often happened, each division renders decisions according to its own light or lack of it, such that one division says one thing and the other another, sometimes referring to the same material issues. If both contradictory decisions become "law," so to speak, which one should the people get their legal bearings from?

In response to the above, however, we remember what Justice Robert Jackson has said. The Supreme Court is not final because it is infallible; it is infallible because it is final. And because its decisions are final, even if faulty, the Supreme Court has had much occasion to mention that, "There must be every energy expended to ensure that the faulty decisions are few and far between."

The problem is, although errors committed by the High Court are only a few and are far apart, lawyers, bar candidates and law students somehow have a way to trace such errors and discuss them in academic fora..


"I have a wild and weird suggestion. Why not simply solve the problem by making only decisions of the Supreme Court EN BANC form part of the legal system? In that way, consistency is more or less guaranteed with 15 justices or a majority putting their heads together. Besides, Sec. 4 (3) of Article VIII of the Constitution says that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. So, ideally, a decision rendered by a division on a given subject matter, unperturbed by any decision of the court en banc, becomes jurisprudence, too, which should be followed by the others.""When the other divisions do not agree with the decision rendered by a division, the thing to do, in my humble opinion, is to have the matter referred as a matter of course to the court en banc with its recommendation for final disposition. But what is actually happening right now is the other divisions, claiming equal supremacy, just go ahead and make their own decisions regardless of what was earlier ruled upon in the decision of a division. Naturally, in the absence of a decision by the court en banc, lawyers are always in a mad scramble for the latest contradictory decision by a division to support their cases."

READ MORE: GEORGE DEL MAR, gdmlaw111@gmail.com (2017). ‘wild and weird’ suggestion for the Supreme Court. July 26, 2017. https://opinion.inquirer.net/105829/wild-weird-suggestion-supreme-court