Lawbreaker gov’t no better than felon it wishes to get rid of

I’m sorry to admit that I didn’t get what lawyer Bryan Dennis Gabito Tiojanco was saying about lawyers not knowing that President Duterte “represents a legal principle that springs from a widely shared intuition” (“What lawyers don’t get about Duterte,” Opinion, 1/5/17). And that legal principle is necessitas legem non habet, meaning, necessity knows no law.

Although maybe this principle was “endorsed” by some of history’s great statesmen, what the author did not say is that it is a medieval concept, articulated first by St. Augustine, and debated upon by the philosophers of his time, including some popes, but made applicable not to state actors but to people who are precisely the victims of society’s injustice, if not government’s oppression.

A man whose family is starving can be justified under this principle to break into a house to steal food. Poverty knows no law, it is argued. Shades of Jean Valjean in “Les Misérables” which Victor Hugo made into a long-running argument for necessitas (but not anymore when he stole church articles from a convent for which he was nonetheless forgiven by the priest).

The principle somehow stayed as private law until Machiavelli made it as a recommended practice for his Prince, and which Hitler later made as his own justification in slaughtering Jews “to defend the Motherland”—the same words used by Tiojanco in explaining the principle which could as well be the same justification for Mr. Duterte’s “If you destroy my country, I will kill you.” Which then obviously makes the principle very dangerous if government, rather than its victims, invokes it.

Government then, contrary to its very nature, would be ironically advocating lawlessness. Even out of whatever necessity, grave or extreme, when government itself breaks the law, it would be no better than the criminal it wishes to eliminate. Government can never be justified to disregard the very laws that it has sworn to enforce or the Constitution that created it.

Necessitas was never intended for government or the powerful to appeal to. Law, or specifically the Constitution, grants power and at the same time limits it. While it is true that our Constitution recognizes necessity (not the necessitas principle though, which should be distinguished), it is necessity exercised within the bounds of the law, not necessity in defiance of the law. After all, the three inherent powers of government—police power, eminent domain and taxation—are all motivated by necessity.  But limited always by constitutional precepts. Never the extrajudicial kind.

Even in the US war on terror, extrajudicial means have always been delicately approached, with former president Barack Obama insisting that “enhanced interrogation”—meaning, torture of suspected terrorists—must be avoided, and that government should not stoop down to the level of terrorists, necessity or even Donald Trump notwithstanding. Ever the constitutional law professor, Obama knew what Justice Louis Brandeis said of the government as “the omnipresent teacher” that teaches the people by example, and “if it becomes a lawbreaker, it breeds contempt for law, it invites every man to become a law unto himself, it breeds anarchy.”

Or do we rather welcome authoritarianism “with thunderous applause,” if that is the “shared intuition” or the popular demand?

Tiojanco knows that no dictatorship lasts, and eventually all responsible will face reckoning; and that’s probably the reason he calls on Congress and the Supreme Court to grant “legality” to Mr. Duterte’s extrajudicial methods in dealing with a perceived necessity. Indeed, after five and a half years, Duterte will be swamped with all the nasty cases, and that would include his PNP chief, some of his Cabinet members, etc.  So the law, after all, which necessitas denigrates, will then be another refuge for scoundrels.

At any rate, our Supreme Court—when it was at its highest in the national esteem after its reorganization post-Edsa—(speaking through the revered Justice Pedro Yap) shot down all logic and practicality of the necessitas principle in a case (Aberca vs Ver) finding Marcos henchman, Gen. Fabian Ver, liable for damages to their victims:  “In times of great upheaval or of social and political stress, when the temptation is strongest to yield—borrowing the words of Chief Justice Claudio Teehankee—to take the law of force rather than the force of law, it is necessary to remind  ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power.  The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made.”

Luis Ruben M. General is a practicing lawyer based in Naga City. He teaches constitutional law at the University of Nueva Caceres.