Year-end reflections

THE year about to end has been a good year. It is supposedly my first year in retirement but immediately halting the momentum built by 50 years of almost continuous work has been easier said than done. As a result, even before I finished my retirement book (My Judicial Journey), I had sat down to consider the question – what shall I do after this retirement book is done?

The site of my reflections was a dead giveaway of my inclinations: I considered the question while sitting in front of my old Siguion Reyna writing desk, with my reliable but fast aging ROG computer before me. The gut answers that expectedly came were: I would love to resume my law-related writing more than anything else; I yearned, too, for the give-and-take of debates that had enlivened my days with the court.

I am sure nothing bars me from the first, i.e., from law-related writing activities; their continuation would only give rise to questions of opportunity and the observance of established parameters. The second, on the other hand, leads to qualified answers: active court practice for a retired Supreme Court justice is no longer advisable, but limited legal consultancies, arbitration activities, and the legal academe should still be live and distinct possibilities.

Hence, I immediately concluded that I shall continue writing, possibly a newspaper column or a series of books if these opportunities would come; I would confine my writing to legal matters – the subject matter I dealt with for most of my professional life.

This column – The Legal Front – became a reality through the opportunity very kindly given me by the Manila Bulletin, the newspaper I had the occasion to represent (as an associate of the Siguion Reyna Law Office) in my earliest law practice days. This opportunity and association in a way bring me back to the law activities I started 43 years ago.

So far, I feel that I have not erred in my decision to write a column; I found the activity as invigorating and life-giving as the decision writing that I did in court. I can only now hope that at least some readers would find my column interesting and worth reading.

Column writing, like decision writing, entails a lot of reading. I have to keep myself informed of what is happening in and out of the country and in the law. I cannot hope to provide the readers an interesting and worthwhile point of view unless I can examine a chosen topic from its various perspectives. This continuing involvement renders column writing very invigorating.

Column writing likewise requires research since I write about a precise subject – the law and legal developments. The law, as a topic and unlike other topics, is not openended and operates along well-established parameters; opinions cannot contradict the Constitution, the law, and established jurisprudence, unless the objective is to provoke new thoughts and perspectives in viewing or examining the law and its interpretation.

With all available materials considered, the “thinking time” that leads to the outline of my column begins, in much the same way that I started decision writing in the court. A mind map usually allows me a bird’s eye view of a topic’s whole terrain and its potential hidden crevices. The yield from this approach and the actual writing that follows constitutes my first draft.

This first draft is invariably followed by another, then another, then another, until I am happy with the resulting redraft; when time permits, I even read the final draft aloud to hear how it sounds. Fortunately, in both decision and column writing, the writer works under strict deadlines at which point the drafting must end.

Delays in the writing process, however, inevitably take place, not only due to the ever-present wish for more precise or elegant language, but because of the need to undertake substantive editing, i.e., to address internal ambiguities and the second thoughts that may come because of the written work’s resulting conclusion or position. These second thoughts must necessarily be addressed as a written work that fails in its premises, logic, or conclusion is worthless.

Unknown to some perhaps (but well known among my lawyers), I have had many changes of views because of questions I myself raised as I read my final drafts. My response has inevitably been a critical re-examination and the preparation of an alternative draft or drafts (in difficult cases). I did the re-drafting myself or with the assistance of my lawyers who played devil’s advocate for the alternative views.

Unless time constraints intervene, I invariably set aside and sleep on my drafts for a fresh reading the morning after. Sleeping, for some reason, allows an unconscious review that is always more lucid and enlightening than an immediate deliberate review. This series of actions leads to the final version that the reader gets to read.

If I miss anything at all in my current writing activities, it is the assistance that was readily available to me when I was still in the judicial service, particularly the research that my court attorneys provided, our frank exchanges, the substantive alternatives the lawyers proposed, their editing skills, as well as the able and invaluable help of my clerical staff. They were all part of “the court” that is now gone, although some of my lawyers and a few friends continue to act as my sounding boards. In this sense, I am not ashamed to say that whatever I wrote while with the court were never wholly mine; they mostly resulted from my legal team’s collaborative and collective action, subject to the reservation that all faults and mistakes are mine.

Of course, I now miss too the chance for a definitive stand on pending issues that I could take then and which I am now barred by court rules from taking while issues are live and pending. The just-decided martial law case, for example, was a very tempting topic to write about especially after the oral arguments. But both delicadeza and the court rules prevented me from giving an untimely opinion. I can still recall how I fumed while I was with the court when I read out-of-court attempts to concur or to dissent on pending matters. I simply cannot join these writers and do now what I vigorously objected to then.

(In fact, I wrote about media coverage and out-of-court opinions in my Dissenting Opinion in the Hubert Webb case. A friend recently asked me, too, how I could testify at the House hearing of the Sereno impeachment complaint on what transpired in Jardeleza v. Sereno, given the rule that internal court deliberations are confidential and cannot be disclosed outside the court. I immediately clarified that I was testifying about the Concurring Opinion that I then filed with the court. This concurrence, a part of the promulgated decision, has become part of public record after the decision’s promulgation.)

Today, if I touch at all on some incidents of currently pending cases, I can assure the reader and the court that this was not done on purpose to interfere with the court’s coming ruling. I would impute such lapse, if it can be called a lapse at all, to the need to wholly cover the discussion of an unexplored legal issue not directly pending before the court.

This article wraps up my year with The Legal Front. Thanks to all of you for a lively and exciting year. Happy New Year to everyone!