Kicking the law around | Lifestyle.INQ

OCTOBER 27, 2022

It’s rarely happened to me, but it just did. I started to write, then, distracted, put the work aside and forgot about it. Thankfully, I parked it in a place I visit every day, my laptop screen, signified by a filename and materializable by a double tap on it. But, thrown in a fair crowd of filenames, it still required a trigger of memory to be noticed.


At any rate, being something of the sort that one must get off one’s chest for one’s own health, it just had to be remembered; forgotten for long, it would have lost its currency and caused one an awful, nagging regret.


Well, it was found, completed, and dispatched with every hope that it would see the light of print before it could lose its topical value. With great luck, it’s here.


Begun upon provocation, it was intended as a riposte to a column by Oscar Franklin Tan in this paper (Feb. 23, 2015) on the Supreme Court decision upholding Joseph Estrada’s eligibility to run as mayor of Manila. (As if to give my cause extended currency, the court just this week reaffirmed its ruling.)


Estrada had won the mayoralty in 2012 under protest from his rival, Alfredo Lim, who contended that Estrada, with his conviction, for plunder, had lost his right to be elected to public office. But the Supreme Court has ruled that, upon being pardoned by Gloria Arroyo, who succeeded him to the presidency when he was impeached and taken to court, he regained not only the eligibility but all his rights, his crime having been effectively erased, as if he did not commit it. The court also acknowledged, implicitly, that a presidential pardon reverses a Supreme Court’s affirmation of the conviction, thus trumping its own supposed judicial supremacy.


Now comes lawyer-columnist Tan, explaining the court to us simpleminded lay public who can take no heavier reading than newspapers: “[T]he president’s power to pardon is traditionally unrestricted [the italic mine]. The … president is entrusted with the final option to temper the administration of justice and check Congress and the courts.” He brings up American jurisprudence from the 18th century: A law is passed punishing, for sedition, malicious writing against the president or Congress. But the next president, Thomas Jefferson, pardons everyone convicted of it.


I’m not a lawyer, and not unhappy about it either; neither do I feel apologetic for excursions I make now and then to the territory lawyers, jurists and other legalists feel fraternally proprietary about. And why should I? Like everyone else, I’m entitled to the law; I’m not going, just because I don’t belong to the legal club, to be deprived the fun of fooling around with the law, of kicking it around to maneuver it toward where I want it to go.


Conspiracy encouraged


And in the case in question, involving presidential pardon, I refuse to play traditionally; I want to play reform-mindedly, progressively. I don’t want a plunderer president given another go at it by allowing him to stand for public office. I don’t wish a conspiracy encouraged between presidents, a conspiracy in which one plunders and the other pardons, or a conspiracy between them and courts of law that are given to a sense of indebtedness by patronage.


But what can one do? Tan seems to say. And, if there be yet any doubts as to which team he’s playing for, he gives the law a kick of unmistakable assist to the 11-member majority. Picking out one line of counterargument presented by Justice Marvic Leonen for his minority of three, Tan declares that it “strains ordinary language,” and proceeds to tell a story around that one line as if a case could turn on a mere matter of language, indeed on one lousy word!


“The majority asked why Leonen would distinguish the phrase ‘restored to his full civil and political rights’ from ‘restored to his civil and political rights,’” Tan notes, and quotes Justice Arturo Brion’s pronouncement of Leonen’s argument as “a very literal reading.”


Frankly, I don’t see where “ordinary language” has been “strained,” as Tan says, or where Brion observes “a very literal reading.” The exact opposite in fact comes across once Leonen’s argument is fitted contextually into the preamble to the presidential pardon: “Whereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office…”


Limited restoration


The distinction Leonen draws thus becomes clear in meaning: With Estrada getting his pardon on his own word that he would not run for any election, the absence of the word “full” to describe the rights being restored to him signifies that the restoration is limited—less than full, in any case—and, specifically, that it does not cover the right to be elected, the very right on which he was allowed to sit as mayor while the Supreme Court took up his case.


Actually Tan himself brings it to our attention (if he didn’t he’d look guilty of convenient omission), but, still, he does so only to let us know that “preambles or so-called ‘whereas clauses’ are intended to have no legal effect. They merely give introductory context to a reader, a godsend when dealing with complicated or multiple, interrelated legal documents.”


Proceeding to educate us, at the same time warning his fraternal fellows, he says, “Binding language belongs in a document’s body, and to draft otherwise is a mark of astounding incompetence in a lawyer.”


In other words, preambles and “whereas clauses” are nothing, nothing more than matters of form, although we should be thankful for them as mere readers, who, being nonlawyers, do not possess the capacity and strength to carry the volume and weight of legal words, even after they have been translated from the Latin.


The height of patronization!


I happen myself to work words for a living, although not in any such heavy and complicated way or multiple and interrelated volumes as Tan and his ilk do; in fact in my quotidian case, where verbal leanness is a high virtue, I let go without saying things needless to say.


But I’d be fearful to be dismissive of “context,” let alone context coming as a “godsend.” Indeed, I look in preambles and “whereas clauses” for alerts to ensuing revelations, if not, as seems to me the case in Leonen’s point, for the revelations themselves. I definitely will not have any such things ignored, or excised, especially not from any documents such as bind one even with only one’s words.



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