Sisyphus’ Lament

Binay, BBL and misrepresented legal doctrines

CRUCIAL misrepresentations of law are circulating. These relate to two important issues that a citizen cannot weigh without appreciating their legal aspects: the unprecedented court freeze order against Vice President Jejomar Binay’s assets and the Bangsamoro Basic Law’s constitutionality. Media is not yet capable of filtering respectable legal interpretation from what contradicts the freshman syllabus. Nor can we simply outsource our thought process to lawyers whenever a legal issue crops up.

I have been critical of the Vice President’s lawyers after they proposed theories that contradict the naked text of our laws. At the Supreme Court hearing on the Court of Appeals’ temporary restraining order on the mayor of Makati’s suspension, they proposed that the Ombudsman Law, which prohibits TROs against the Ombudsman’s investigations, is invalid because a TRO is a court procedure that only the high court may set. The justices cited the explicit sentence in the Constitution that states lower court jurisdiction is set by law, not the high court.


The same lawyer threatened to prosecute the Inquirer for reporting the Court of Appeals’ freeze order, supposedly in violation of the Anti-Money Laundering Act. The Amla section he cited reads: “When reporting covered or suspicious transactions to the AMLC… Neither may such reporting be published or aired in any manner or form by the mass media….” A child can see that this covers reports to the Anti-Money Laundering Council (AMLC), not court orders.

A legal expert proclaimed that Senate contempt orders against resource persons linked to the Vice President are illegal because the relevant Senate inquiry is not related to the proposed legislation. He claimed that the 2008 Neri decision during the Arroyo administration narrowed the scope of Senate inquiries. Nothing in the two Neri decisions says this. They even affirm: “The power of Congress to conduct inquiries in aid of legislation is broad… a legislative body cannot legislate wisely or effectively in the absence of information….”


The actual doctrine is that senators need only state that they are contemplating legislation without giving specifics, as they are free to consider what comes to mind after their investigations. Further, the Neri decisions actually dealt with executive privilege, which can only be invoked by the President, and the Senate’s alleged failure to publish its regulations governing inquiries (which has since been done).

The media also inadvertently misrepresented a key issue in the TRO hearing. They highlighted how a justice questioned a lawyer’s integrity for invoking the so-called “condonation doctrine,” and made it appear that this doctrine was a devious new proposal to the high court. However, this doctrine is taught as gospel and is legitimately in the law books until revised by the high court.

Regarding the BBL, it is lamentable how so many who have not read it yet react strongly on the basis of vague impressions or dubious summaries that contradict the text, or on the basis of informal head counts of legal experts. Mahar Mangahas quantified in the Inquirer: “The national average of -24 reflects a favorable +28 among those with extensive knowledge, a neutral -2 among those with partial knowledge, an unfavorable -27 among those with a little knowledge, and a worse -35 among those with no knowledge about the BBL.” When friends decry the BBL, I ask which sentence they refer to and conversations end abruptly.

Public attention focused on individual amendments only when they were actually voted upon. Reporters were at a loss on how to intelligently communicate the large number of amendments to a lengthy law. In an attempt to be objective, they focused on the numbers of amendments rejected and accepted, and latched onto the human interest angle of a persistent Rep. Celso Lobregat repeatedly proposing amendments until a precious few were accepted. Unfortunately, the number of proposed changes is irrelevant to how the proposed law’s nature changed after the marathon voting. In another attempt to be objective, some simply reported a list of all the amendments made, hardly the most digestible format.

It is a failure of democracy that op-eds have yet to discuss specific sections of the BBL. Ideally, there should have been robust debate on key sections well before they were voted upon. For example, some ask why the proposed change to describe the Bangsamoro area as “integral and inseparable” instead of just “integral” was rejected. They mean the same thing and there can only be so many redundant anti-secession phrases in the law before it becomes demeaning. Nevertheless, it would have been a good public debate to have.

It would have been even better to see separate public debates on key sections, such as how natural and water resources would be apportioned and how indigenous people’s rights will be respected. If the BBL is taken to the high court, it is far better for it to arrive as the political product of our entire citizenry’s robustly debated wisdom that our justices should hesitate to upend, not as a sterile intellectual puzzle.

It undercuts democracy when we cannot even begin our debates from the correct versions of simple legal doctrines. Law is often too important to be left to lawyers, and in an age of Google, it may be worth double checking the actual laws being cited by experts. In 2013, media discussed an allegedly invalid appointment to the Commission on Elections for five days, based on a nonexistent constitutional provision cited by an “Atty. Rod Vera” on Twitter (“The fake Comelec constitutional crisis,” 4/24/13). There are times when actually reading is worth more than being a legal expert.


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React on Twitter (@oscarfbtan) and facebook.com/OscarFranklinTan.

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