On stare decisis, obiter dicta, separate opinions, and dissents

By Atty. Eduardo T. Reyes III

The essence of collegiality is the cooperative relationship that projects cohesiveness of action or decision. Nothing could be truer than when talking about justices of the appellate courts and other constitutional bodies created to perform quasi-judicial functions. When the members of a particular division of a collegial court deliberates a decision in gestation, they brainstorm the facts and apply the law. There is no eluding this formula as “the judgment should be based upon a consideration of relevant facts, actual or possible- Ex facto jus oritur [Law must arise from facts]. That ancient rule must prevail in order that we may have a system of living law. (p. 484, Louis D. Brandeis, “A Life”, by Urofsky). 

But in a world comprised of independent and strong-minded cerebral beings like in the legal realm, divergences of opinion are rife such that cohesiveness of thinking is hard to come by. Decisions could not be unanimously assented to by every member all the time as some who would have to agree to the decision but by or through a different legal route. Or dissent from it altogether. Thus, there was a time when dissents and separate opinions of magistrates were not allowed to be published as they were believed to weaken the decision of the majority.

This prompts the question: how do collegial courts decide cases?

Civil law v. Common law

The journey to reaching a decision must reckon the distinction between the two (2) systems: ie., civil law and common law. The distinction between the two (2) systems is punctuated by the different approaches in deciding cases.

            Civil Law “is a body of rules that defines and protects the private rights of citizens, offers legal remedies that may be sought in a dispute, and covers areas of law such as contracts, torts, property and family law”. (https://legaldictionary.net). “In “Civil Law Systems”, the ‘written law’ is the basis for civil law. The late Justice Ginsburg of the US Supreme Court opined that: “there is no such thing as stare decisis in civil law regimes. Courts look not to prior decisions as precedents but to the statute itself with its inexorably one interpretation”. Thus, there is no alternative interpretation in civil law regimes.

By contrast, “the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. The “common law” is all the statutory and case law background of England and the American colonies before the American revolution. Such law consists of those principles, usages and rules of action applicable to government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature. (p. 144 Black’s Law Dictionary with Pronunciations, Abridged Fifth Edition).

Stare decisis

            To dispel doubts whether the Philippine jurisdiction adheres to the common law system aside from the civil law system, the mandate of Article 8 of the New Civil Code itself should lay the issue to rest because pursuant to said provision, our courts ‘do not look to the law alone’ but they take into account “judicial decisions applying or interpreting the laws or the Constitution as forming part of the legal system of the Philippines”. Time and again, the Court has held that it is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled”. (Hon. Jonathan A. De la Cruz v. Hon. Paquito N. Ochoa, G.R. No. 219683, January 23, 2018; Global Medical Center of Laguna, Inc. v. Ross Systems International Inc./Ross Systems International, Inc. v. Global Medical Center of Laguna, Inc., G.R. No. 230112/G.R. No. 230119. May 11, 2021). 

            But because every rule has an exception, the Supreme Court may come down with a ruling with a reservation that it will only apply to the present case and not in future. This is called a pro hac vice ruling.Pro hac vice means a specific decision does not constitute a precedent because the decision is for the specific case only, not to be followed in other cases”. (Knights of Rizal v. DMCI Homes, Inc. G.R. No. 213948, April 25, 2017; Highpoint Development Corp. v. Republic, GR No. 224389, November 07, 2018).

            Then there is the separate opinion of a justice. What is its value? “Judicial wisdom is, in large part, the art of discerning when courts choose not to exercise their perceived competencies. X x x A separate opinion is the expression of a justice’s individual view apart from the conclusion held by the majority of this Court. Even first year law students know that a separate opinion is without binding effect.  This Court may adopt in a subsequent case the views in a separate opinion, but a party invoking it bears the burden of proving to this Court that the discussion there is the correct legal analysis that must govern”. (Falcis III v. Civil Registrar General, G.R. No. 217910. September 3, 2019).

            Next comes the obiter dicta or a “judicial commentary beyond the holding of the case”.  (p. 206, March of Liberty: A Constitutional History of the United States by Melvin I. Urofsky, Knopf, New York 1988). It was also held as “a mere expression of an opinion with no binding force for purposes of res judicata and does not embody the determination of the court”. (Alejandro I. Alcantara v. The Guhay Clan, et al. and The National Commission On Indigenous Peoples and the Department of Environment and Natural Resources, G.R. Nos. 231410-11. September 11, 2019). Thus, lawyers must be wary of obiter dicta as they do not have precedential value to any subsequent case.


            And finally, the dissenting opinion. Simply stated, stare decisis declares that, for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different (G.R. No. 132051, June 25, 2001). However, a dissenting opinion does not become part of case law.  Following the foregoing premise, a dissenting opinion is not binding on the parties as it is a mere expression of the individual view of the dissenting member from the conclusion held by the majority of the Court (G.R. No. 155651, July 28, 2005). A dissenting opinion does not create a binding precedent unless eventually adopted by majority of the members of the Supreme Court; therefore, reliance by the Honorable Court to a mere dissenting opinion is erroneous.

But what then is the value of a dissenting opinion, if any?

Chief Justice Charles Evans Hudges had said it best: “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed. Nor is this appeal always in vain”. Benjamin Cardozo, whom many considered the greatest common law judge of the twentieth century, believed this as well: “The voice of the majority may be that of force triumphant, content with the plaudits of the hour and recking little of the morrow. The dissenter speaks to the future, and his voice is pitched to a key that will carry through the years. Read some of the great dissents… and feel after the cooling time of the better part of a century, the glow and fire of a faith that was content to bide its hour. The prophet and martyr do not see the booting throng. Their eyes are fixed on the eternities”. “Time is important, because one never knows which dissents will eventually be vindicated and which consigned to the dustbin of history”. “A more prosaic reason is that the cases that come to a court of last resort are for the most part difficult. Justice Tom Clark opined that “differences of opinion must be expected on legal questions as on other subjects… Clergymen differ on theology. Professors argue over philosophy. The history of progress is filled with many pages of disagreement. Chief Justice William H. Rehnquist believed that it ‘may well be that the nature of constitutional adjudication invites, if it does not require, more separate opinions than does adjudication in other areas’.” (Dissent and the Supreme Court, Its Role in the Court’s History and the Nation’s Constitutional Dialogue, by Melvin I. Urofksy).

Crafting a decision is not an easy feat. It entails dissecting previous decisions by weeding out obiter dicta. Separate and dissenting opinions may be consulted but are not binding. What is essential is what is in line with stare decisis.

Magistrates too must learn the facts in tune with the workings of the real world; but decide the case in seclusion, studying the ramifications in the vastness of inner contemplation- free from the ruckus of the outside world.

Indeed, this is how the legal word- and world- must be shaped.

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).