Wednesday, March 21, 2018
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From ‘behind cold desks and lofty pulpits’

05:02 AM February 27, 2018

Oscar Franklin Tan has been bragging for the longest time he has mastered the Constitution when, in fact, he has turned out to be all too fallible.

But we simply attribute his pontifications to the arrogance of tablet-pounding, armchair lawyers who simply want to be noticed by name-dropping those who supposedly belong to his social network.

This, in an attempt to imbue value to the currency of his discourse in a milieu where it would not even afford him the jeepney fare to the Supreme Court in Padre Faura.


Otherwise, he could be ridiculous.

Blaming the media and Justice Marvic Leonen for “winning the martial law extension” (7/24/17) and his recent attack on lawyer Neri Colmenares (among a long series of others), whom he cited as “winning the martial law extension” (2/19/18), could have been dismissed as his usual condescension over those who do not share his Harvard “pedigree.”

It could have been a discussion better ignored if not for the undeserved vileness hurled against those who even dared to try to challenge the current dispensation.

After all, he has been lambasting journalists for not researching on the law when they report on legal issues, students for walking out to demand free tuition, activists for being confused ignoramuses, and other lawyers for their nerve in historicizing the law in major constitutional discussions.

When he trumpets to be so damn good in his constitutional law even as he is ignorant of the basic constitutional issues in the martial law debate, someone has to put him in his proper place.

We drafted the martial law petition, so I feel it is my task to enlighten him on this issue.

His first Constitutional Law 101 mistake was that he confidently bragged that the Constitution allows for “only one attack: the sufficiency of the factual basis to believe (sic) that there is an actual rebellion.” He played with words in his June 5, 2017 article when he said there are two attacks: first, there is “rebellion or invasion,” and second “the rebellion or invasion is actual.” Both of course, are bloody wrong.

If he read the petitions correctly or listened closely to the oral arguments, he would know that there are two openings for attack under Section 18, Article VII of the Constitution: 1) insufficiency of the factual basis, referring to the existence of rebellion or invasion; and 2) insufficiency of the factual basis that the imposition is necessary to preserve public safety.


Blaming Colmenares (he seems fixated on maligning him publicly) for highlighting “pointless” arguments that martial law cannot be extended beyond 60 days and that Congress rushed the debates as well as raising human rights violations (which he deemed irrelevant to the martial law issue) is, of course, his second mistake as these discussions were the main arguments of Rep. Edcel Lagman.

Colmenares actually highlighted one basic issue during his oral arguments—the insufficiency of the factual basis that public safety requires the imposition of martial law. The respondents and the high court found it difficult to answer this novel attack in the first martial law case and even in the extension case.

Petitioners courteously supported and discussed each others’ arguments in their respective petitions, but their oral arguments would show the main issues they each wished to

Colmenares forwarded the novel definition of public safety to mean not the generic threat to the safety of the public, but the inability or difficulty of the civilian government to function, hence the need for military rule. He argued that President Duterte failed to prove this.

In fact, Colmenares stressed in the original martial law case that President Duterte only mentioned the existence of rebellion in his martial law proclamation but he forgot to mention the phrase “public safety” in the entire document, thereby maiming the whole martial law mantra of the administration.

Tan did not distinguish who actually argued what, so he attacked Colmenares, the seeming subject of his obsession, even if he is not even the main player in the issues Tan pontificated on.

He criticized Colmenares for raising human rights as a pointless argument against martial law, but spoke lovingly of Dean Raul Pangalangan for correctly arguing in the case of David vs. Arroyo that “under a state of emergency, possible abuses and violations of human rights might not be checked” (10/30/17).

He was amused when Chief Justice Maria Lourdes Sereno asked martial law victims to relate to the Supreme Court their horrendous experiences during the Marcos burial case, but spoke of Dean Pangalangan’s “magnificent three-hour” marathon on human rights in the said case.

Human rights may not be a valid issue for swivel chair lawyers like Tan, but it is important for the defenseless victims in Mindanao that their human rights lawyers raise these before the high court to demonstrate the reasonableness of their opposition to its imposition. But for supercilious lawyers like Tan who most probably have not experienced dealing with the poor and the helpless, of being a lawyer on the ground and in the trenches, these are irrelevant issues and “pointless arguments.”

Tan could have orally argued several times before the Supreme Court (did he?) or won thousands of criminal cases in court litigations (had he?) for all we care.

He should understand, however, that he has no monopoly over potent legal tactics and he has to respect the holistic legal tactics of others especially those who litigate public interest cases and who consider the people as part of the case rather than passive bystanders.

While he has the freedom to declare our legal praxis “pointless,” we have the liberty to call his legal theory bankrupt.

If he thinks the martial law case was lost because of the “own goal” legal activism of lawyers Christian Monsod and Florin Hilbay, and the “pointless” discussion on human rights by Colmenares, then he is either naive or bigoted.

Tan is biased, but we do not fault him for that. He is, after all, in the opinion page and is entitled to be opinionated.

The problem arises, however, when he pretends to know it all when he has little to no inkling of relevant facts and the law involved in the issues he discusses as he maliciously attacks others behind cold desks and lofty pulpits.

Arrogance is only forgivable when proven right after all.

MINERVA F. LOPEZ, cocounsel for the petitioner Cullamat et al.,

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TAGS: 1987 Constitution, Inquirer letters, Minerva F. Lopez, Neri Colmenares, Oscar Franklin Tan
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