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Enrique Fernando

Enrique Fernando

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Enrique M. Fernando was the 13th Chief Justice of the Supreme Court of the Philippines
Chief Justice of the Philippines
The Chief Justice of the Supreme Court of the Philippines presides over the Supreme Court of the Philippines and is the highest judicial officer of the government of the Philippines...

. A noted constitutionalist and law professor, he served in the Supreme Court
Supreme Court of the Philippines
The Supreme Court of the Philippines is the Philippines' highest judicial court, as well as the court of last resort. The court consists of 14 Associate Justices and 1 Chief Justice...

 for 18 years, including 6 years as Chief Justice.

Early career


Fernando was born in Malate, Manila
Malate, Manila
Malate is an old district of the city of Manila in Metro Manila, the Philippines. The district is located at the southern end of the city of Manila, bordered by Pasay City to the south, by Manila Bay to the west, by the district of Ermita to the north and by the districts of Paco and San Andres to...

. He obtained his Bachelor of Laws
Bachelor of Laws
The Bachelor of Laws is an undergraduate, or bachelor, degree in law originating in England and offered in most common law countries as the primary law degree...

 degree at the University of the Philippines College of Law
University of the Philippines College of Law
University of the Philippines College of Law or UP Law is the law school of the University of the Philippines. Since 1948, it has been located at the University of the Philippines Diliman in Quezon City, the flagship campus of UP's seven constituent universities. Until the 1970s, night classes of...

, graduating magna cum laude in 1938. Shortly after admission to the bar, he joined the faculty of his alma mater, where he taught as a full-time member of the faculty until 1953, and as a professorial lecturer for decades afterwards. He was eventually appointed as the George A. Malcolm
George A. Malcolm
George A. Malcolm was an American lawyer who emerged as an influential figure in the development of the practice of law in the Philippines in the 20th century. At age 35, he was appointed Associate Justice of the Supreme Court of the Philippines, where he would serve for 19 years...

 Professor of Constitutional Law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

. Later, he would also teach constitutional law at the Lyceum of the Philippines. Fernando was feared for his rather tyrannical manner in the classroom, yet many of his law students would emerge as Supreme Court justices or prominent practitioners in their own right.

In 1947, he was admitted by the Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...

 as the first Filipino
Filipino people
The Filipino people or Filipinos are an Austronesian ethnic group native to the islands of the Philippines. There are about 92 million Filipinos in the Philippines, and about 11 million living outside the Philippines ....

 Sterling Fellow, earning his Master of Law degree the following year.

Fernando was appointed as a Code Commissioner in 1953 and served in that capacity until 1964. In the 1950s, he served as a Presidential adviser to Presidents
President of the Philippines
The President of the Philippines is the head of state and head of government of the Philippines. The president leads the executive branch of the Philippine government and is the commander-in-chief of the Armed Forces of the Philippines...

 Ramon Magsaysay
Ramon Magsaysay
Ramón del Fierro Magsaysay was the third President of the Republic of the Philippines from December 30, 1953 until his death in a plane crash in 1957. He was elected President under the banner of the Nacionalista Party.-Early life:Ramon F...

 and Carlos P. Garcia
Carlos P. Garcia
Carlos Polistico García was a Filipino teacher, poet, orator, lawyer, public official, political economist and guerrilla leader...

. He likewise engaged in an extensive private practice prior to his appointment to the Supreme Court. Among his law partners was Senator
Senate of the Philippines
The Senate of the Philippines is the upper chamber of the bicameral legislature of the Philippines, the Congress of the Philippines...

 Lorenzo Tañada
Lorenzo Tañada
Lorenzo Martinez Tañada was a Filipino politician. Elected to the first Philippine Senate in 1947, he was the longest-serving senator in Philippine history. He served as a Philippine senator for 24 years.-Early life:...

, with whom he would co-author a popular hornbook
Hornbook
A hornbook is a book that serves as primer for study. The hornbook originated in England in 1450 . The term has been applied to a few different study materials in different fields...

 on constitutional law. In his lifetime, Fernando would author several books on constitutional and administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...

.

Supreme Court years


In 1966, Fernando was appointed as Presidential Legal Counsel by Ferdinand Marcos
Ferdinand Marcos
Ferdinand Emmanuel Edralin Marcos, Sr. was a Filipino leader and an authoritarian President of the Philippines from 1965 to 1986. He was a lawyer, member of the Philippine House of Representatives and a member of the Philippine Senate...

. The following year, he was named as an Associate Justice of the Supreme Court
Associate Justice of the Supreme Court of the Philippines
An Associate Justice of the Supreme Court of the Philippines is one of 15 members of the Philippine Supreme Court, the highest court in the Philippines. The Chief Justice presides over the High Court, but carries only 1 of the 15 votes in the court...

 by Marcos appointed.

If not for the death of Chief Justice Fred Ruiz Castro
Fred Ruiz Castro
Fred Ruiz Castro was the Chief Justice of the Philippines from January 5, 1976 until his death on April 19, 1979 while on an official trip to India.-Personal life:...

 in 1979, Fernando would have had the opportunity to become the Chief Justice only in 1984, after Castro reached the mandatory retirement age of 70, and serving for only 1 year until his own retirement. However, Castro died suddenly of a heart attack on April 19, 1979, and Fernando, by then the most senior of the Associate Justices, was promoted by Marcos as Chief Justice.

Jurisprudence


At the time of his appointment to the Court, Fernando was already recognized as one of the country's leading authorities on constitutional law, and as an ardent civil libertarian and active member of the Civil Liberties Union founded by his colleague on the Court, J.B.L. Reyes. He was especially noted for his mastery of American jurisprudence on republicanism
Republicanism
Republicanism is the ideology of governing a nation as a republic, where the head of state is appointed by means other than heredity, often elections. The exact meaning of republicanism varies depending on the cultural and historical context...

 and individual rights
Individual rights
Group rights are rights held by a group rather than by its members separately, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their group membership or lack thereof...

. He would have ample opportunity to expound on these subjects during his 17-year tenure on the Court.

In Morfe v. Mutuc, 130 Phil. 415 (1968), Fernando wrote for the Court that an anti-graft law requiring the periodic submission by public officials of their statements of assets and liabilities did not infringe on the officer's right to liberty under the due process clause, or on the right to privacy. Nonetheless, Morfe marked the first time the Philippine Supreme Court recognized the existence of a constitutional right to privacy as "accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection." The then-recent United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 ruling in Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...

, 381 U.S. 479 (1965) was favorably cited.

Fernando was also a persistent proponent of the clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

 test as the only acceptable limitation on the right to free expression, as expressed in his ponencia
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....

 in Gonzales v. COMELEC, 137 Phil. 471 (1969), and his dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....

 in Badoy v. Ferrer, 35 SCRA 285 (1970).

Controversies


Along with Claudio Teehankee, Sr.
Claudio Teehankee, Sr.
Claudio Teehankee was the 16th Chief Justice of the Supreme Court of the Philippines.He was also the most senior associate justice and chairman of the First Division of the Supreme Court of the Philippines....

, Fernando was the longest serving of the Justices appointed during the 20-year rule of Ferdinand Marcos. However, unlike Teehankee who progressively became a consistent dissenter to the martial-law rule of Marcos, Fernando frequently voted to affirm challenged acts of the martial law regime. Even though Fernando often qualified his opinions to voice concerns about potential violations of the Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...

, his voting record, as well as his relatively lengthy tenure as Chief Justice during martial law tied him closely with the Marcos regime, and to a Supreme Court perceived as a "lackey of Malacañang". This reputation was further enhanced when Fernando was photographed holding an umbrella to the then First Lady Imelda Marcos
Imelda Marcos
Imelda R. Marcos is a Filipino politician and widow of 10th Philippine President Ferdinand Marcos. Upon the ascension of her husband to political power, she held various positions to the government until 1986...

, a seeming act of chivalry many considered it inappropriate for the Chief Justice of the Supreme Court. Critically, Justice Isagani Cruz observed that "as Chief Justice, Fernando emphasized that one of the important functions of the judiciary was the 'legitimizing' function. This was to be the stand-by excuse of the Court under him whenever it had to sustain the acts of President Marcos."

In 1982, controversy arose after reports that in the bar examinations
Philippine Bar Examination
The Philippine Bar Examination is the professional licensure examination for lawyers in the Philippines.It is the only professional licensure exam in the country that is not supervised by the Professional Regulation Commission...

 held that year, the test booklets had been rechecked in order to confer a passing grade to the son of one of the Justices who had initially flunked. The rechecking was reportedly permitted by Fernando. Justice Ameurfina Melencio-Herrera complained of the action, and the story broke in the media. As a result, all the members of the Court, including Fernando, submitted their resignations to President Marcos, who later rejected all but two of the resignations.

Shortly after the murder of opposition leader Benigno Aquino, Jr.
Benigno Aquino, Jr.
Benigno Simeon "Ninoy" Aquino, Jr. was a Filipino Senator and a former Governor of Tarlac. Aquino, together with Gerry Roxas and Jovito Salonga, formed the leadership of the opposition to the Marcos regime in the years leading to the imposition of martial law in the Philippines...

 in 1983, Marcos named Fernando to head a fact-finding commission tasked with investigating the assassination. The appointment drew controversy due to concerns that the it violated the constitutional separation of powers, and also out of concerns that a commission headed by a man so closely identified to the Marcos regime would not be sufficiently independent. Fernando promptly resigned, and retired Court of Appeals
Philippine Court of Appeals
The Court of Appeals of the Philippines is the Philippines' second highest judicial court, just after the Supreme Court. The court consists of 68 Associate Justices and 1 Presiding Justice...

 Justice Corazon Juliano-Agrava was appointed to head what became known as the Agrava Fact Finding Commission.

Later years


Fernando's lengthy service in the Court ended in 1985, when he reached the compulsory retirement age of 70. Marcos would be toppled from power the following year, and Fernando's most prominent rival Teehankee would be named Chief Justice by Corazon Aquino
Corazon Aquino
Maria Corazon Sumulong Cojuangco-Aquino was the 11th President of the Philippines and the first woman to hold that office in Philippine history. She is best remembered for leading the 1986 People Power Revolution, which toppled Ferdinand Marcos and restored democracy in the Philippines...

.

Fernando remained in active practice until shortly before his death at the age 89 in 2004. His expertise as amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...

 was sought by the Court in the controversial case of Manila Prince Hotel v. GSIS, 267 SCRA 408 (1997).

Fernando is buried at the Libingan ng mga Bayani
Libingan ng mga Bayani
is a national cemetery within Fort Bonifacio in Taguig City, Metro Manila in the Philippines. It was established as a fitting resting place for Filipino military personnel from privates to generals, as well as heroes and martyrs...

.

Selected books

  • Brief Survey of Administrative Law Including Public Officers and Election Law (with Emma Quisumbing Fernando, 1950)
  • Constitution of the Philippines (with Lorenzo Tañada
    Lorenzo Tañada
    Lorenzo Martinez Tañada was a Filipino politician. Elected to the first Philippine Senate in 1947, he was the longest-serving senator in Philippine history. He served as a Philippine senator for 24 years.-Early life:...

    , 1952–1953)
  • Law of Public Administration with Emma Quisumbing Fernando, 1954)
  • Labor and Social Legislation (with Gil R. Carlos, 1964)
  • The Power of Judicial Review (1968)
  • Bill of Rights (1970)
  • Jose P. Laurel on the Constitution (1972)
  • Bill of Rights and the Revised Constitution (1973)
  • American Constitutional Influence in Asia: Its Impact on the Philippine Legal System (1976)
  • Perspectives on Human Rights: the Philippines in a Period of Crisis and Transition (1979)
  • Cases on the Bill of Rights (1981)
  • Cases and Text in Constitutional Law (1984)
  • Separation of Powers: The Three Departments of the Philippine Government (1985)

External links