The Ghost of UP Malcolm Hall!

Malcolm Hall houses  the UP College of Law in Diliman, Quezon City.  It was named after Justice George Malcolm of the colonial Supreme Court.  Though the college  was established in 1911 at UP Padre Faura,  it was only in 1948 where its facilities and its huge law library were transferred to its present site in UP Diliman Campus.

Fronting the main lobby of Malcolm Hall is a quotation inscribed in granite from the American jurist, Oliver Wendell Holmes, Jr:

“THE BUSINESS OF A LAW SCHOOL IS NOT SUFFICIENTLY DESCRIBED WHEN YOU MERELY SAY THAT IT IS TO TEACH LAW OR TO MAKE LAWYERS IT IS TO TEACH LAW IN THE GRAND MANNER, AND TO MAKE GREAT LAWYERS.”

This quotation inspires professors and young students alike to teach and study law seriously.  But our class “wizard”, Chito Balite would humor us with his wit that the business of law school is to make  business and make businessmen out of lawyers.

The college had produced great lawyers as well as scoundrels in the likes of  Manuel Roxas, Jose P. Laurel, Elpidio Quirino, Ferdinand Marcos, Abraham Sarmiento, Gerardo Roxas, Marcelo Fernan, Fred Ruiz Castro, Felix Makasiar, Juan Ponce Enrile,  Enrique Fernando, Hugo Gutierez, Hilario Davide, Jr. Jose Yulo, Ricardo Paras, Cesar Bengzon,  Ramon Aquino, Pedro Yap, and Reynato Puno, just to name a few.

One can close his eyes and allow his fingers to run through these names and chances are his fingers can make tactile contact to those  names who made  a pile of money in their careers and became successful businessmen.

But who is Justice Malcolm other than being a jurist of the colonial Supreme Court?

Peering into Justice Malcolm’s past – his kinky checkered past, and his bending of the law, we are actually peering into our courts today; on jurists who make money out of the law and make their courts a haven for monkey-business.

Does the legacy of Justice Malcolm, in whose name this hall was dedicated, continues to tar with corrupting brush the  alumni of this  great institution?

“In the early 1927 the Philippine Supreme Court heard oral arguments in the Board of Control case, docketed as Government of the Philippine Islands v. Milton.  In his memoirs, Justice Malcolm called this case “the most sensational to be brought before the courts during the entire history of the Government of the Philippine Islands.” explaining” “On one side was an American Governor-General seeking to restore the powers of his office under the Organic Act; on the other side were the Filipino President of the Senate and the Filipino Speaker of the House seeking to consolidate the powers of self-government.”  When it became his duty to write the majority opinion, Malcolm took great pains to assure readers of his Olympian objectivity.  “feeling ran so high,” he said in painfully contorted syntax, “that I conducted my study of the case and the preparation of an opinion written in longhand in the seclusion of my study of my home” Despite the high stakes, Malcolm insisted, I had to forget the personal equation entirely, for both General Wood and President Quezon happened to be my intimate friends.

Governor Wood was “intimate” with Justice Malcolm but not in the way the justice implied. From the time Malcolm had joined the court in 1917 as a very young, very liberal Wilson appointee, Justice E. Finley Johnson, an older Republican workhorse, perhaps forgetting earlier rumors of his own “improper relations” with a stenographer, had long been vocal in his outrage at his younger’s colleague’s libertine lifestyle, particularly his long-standing concubinage with a “native woman.”  During Wood’s 1921 investigative tour, Johnson had told him that Malcolm “was living with a native woman, by whom he had children.”  In February 1926, just a year before the National Coal case, Johnson filed a morals charge against Malcolm, which, if successful, would have meant his dismissal and disgrace.      Apparently supporting Johnson’s view, Wood ordered Chief Green’s detectives to investigate.  Their report on Malcolm, duly delivered to Johnson, documented the sordid details of “his visiting this woman’s house at night” and his illegitimate children, “one of whom is supposed to be alive in one of the convents here.”

In early 1926 Justice Johnson, armed with this damaging police dossier, steamed across the Pacific bound for Washington to press President Coolidge another stern moralist, for Malcolm’s dismissal.  But at this strategic moment Governor Wood interceded unexpectedly by telegramming the White House, first on  March 18 about his decision to refer this morals case to the justices for review and then, ten days later, about their report, which is strongly commendatory of Justice Malcolm’s efficiency.”  The next day, in a crude move, the governor showed Malcolm this second cable, which was marked “Strictly Confidential.”  The justice, in Wood’s words, seemed “very well satisfied in that he had been given a square deal.”  In sum, by ordering the police to collect derogatory information about Malcolm’s private life and then intervening to block his certain dismissal on charges of immorality, Wood bent the young justice to his will.

In April 1927, just 364 days after Wood had save him from public disgrace, Justice Malcolm, writing for the majority, handed down a decision that surprised observers and stunned Quezon.  Setting aside his years of liberalism, Malcolm affirmed the prerogatives of the colonial governor.  In this six-to-three decision for Wood, the four conservative American justices were joined by both the liberal Malcolm and, somewhat more surprisingly, his Filipino colleague Norberto Romualdez, whose brother Wood had appointed Mayor of Manila.  In addition to the lopsided vote, Malcolm’s strong endorsement of the governor’s position represented a stinging rebuke to Quezon’s nationalist crusade.  Noting that the parties wished to proved a definitive ruling in a case that had been “bitterly fought,” Malcolm, writing for the majority, decided that the U.S. Congress “never intended that the Governor-General should be saddled with the responsibility of … executing the laws but shorn of the power to do so.”  He therefore ousted Quezon’s appointees to National Coal’s board and found that the law allowing such appointment was “unconstitutional and void.”

By ruling ambiguously for Wood, Justice Malcolm effectively declared him the victor in the four-year war with Quezon that had started with the Conley controversy.   With blazing headlines the Manila Times called the court’s decision “a vindication… of the governor general” and the “worst beating the Filipino participation in the government ever had.”   A year later the U.S. Supreme Court reviewed this decision and ruled seven to two  on similar grounds in favor of Wood.  In his dissent from the majority ruling, however, the longtime liberal on the U.S, Court, Justice Oliver Wendell Holmes, wrote, with Justice Louis Brandeis concurring, that the Philippine corporations at issue “are no part of the executive functions of the Government but rather fall into the indiscriminate reside of matters within the legislative control,” a position strikingly similar to that of the Filipino minority in the Philippine Supreme Court’s original decision.

In retrospect, Malcolm’s strong defense of executive authority and narrow reading of the statute were at variance with his core judicial philosophy, which could, under other circumstances, have led him to rule against the governor-general.  Indeed, after the Philippine Congress voted unanimously to award Malcolm honorary citizenship in 1955, Filipino legal scholars surveyed his three thousand decisions over eighteen years to find a “liberal tendency” that, in the spirit of Justice Holmes’s  dictum, “conceived the rule of law in man’s social life as essentially dynamic and fluid.” In similar vein a leading legal scholar more recently wrote that Justice Malcolm’s “tendency in most of his decisions to escape from the rigid confines of statute and case books” had made him, for Filipino lawyers, “a symbol of progressive judicial thought.”  From both text and context, it thus seems unlikely that a liberal jurist like Malcolm would have ruled to narrowly or backed the executive so strongly had he not been blackmailed by the threat of sexual scandal.” (p. 289-91, Policing America’s Empire, Alfred W. McCoy).

If  we look at our Supreme Court during the tumultuous martial law period and during GMA’s equally perilous 9-year reign, we saw our distinguished jurists perverting the constitution and bending the statutes.   Had dossiers been flaunted on their faces by an overeager executive that they easily recoiled from being judicious jurists to become supine and spineless magistrates?  Or was servility to the modern-day Leonard Wood makes good business?