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Sisyphus’ Lament

Stop lawyers’ intellectual fraud, fear-mongering

NO ENGINEER claiming to build skyscrapers from toothpicks is quoted in headlines. No doctor claiming that babies come from storks dominates the evening news. So why do we give prominence to outlandish legal propositions that contradict freshman law books?

I protested the Inquirer’s publishing “The limits to free speech” by retired Court of Appeals Justice Mario Guariña III (Opinion, 1/20/15). This guest article defended activist Carlos Celdran’s arrest for the 1930 crime “offending religious feelings” with the generic proposition that free speech may be limited to protect free exercise of religion. It cited US Supreme Court decisions from 1919 to 1947 that discussed generic free speech limitations that had no direct relevance. It abruptly concluded that the crime is validly defined, without explaining why.

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The Celdran debate is nuanced as one cannot crudely invoke free speech to protest in private property. The commentary pointedly ignored the ongoing debate of whether the crime permissibly regulates only the manner and not the content of speech, or whether it is impermissibly defined to allow one viewpoint on religion but censor the opposite view, an insidious albeit technical free speech violation. It was intellectually sloppy, and even the choice of legal authorities cited was visibly poor.

I now protest Guariña’s commentary “An Islamic state under the BBL” (Opinion, 5/25/15). Allusions to the Islamic State of Iraq and Syria’s atrocities cannot be made irresponsibly during our peace process. Guariña warns of a Philippine Isis after the Bangsamoro Basic Law allegedly suspends the separation of Church and State in Mindanao and creates a Bangsamoro parliament authorized to make Islam a state religion there. However, even high school students know that Congress neither has authority to establish a state religion, nor has authority, logically, to create a Bangsamoro parliament to do what it cannot.

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One would publish Guariña’s essays only if one unduly weighs his being a retired Court of Appeals justice over dubious legal bases. This assumes that law is inherently subjective and that any statement of law is inherently opinion and incapable of independent verification, hence the focus on the author’s identity.

This is clearly problematic. Basic legal statements may be objectively verified against a law’s actual text, or a principle so indubitable as Congress having no power to suspend the separation of Church and State. Basic legal propositions are indeed judged separate from their proponents’ stature—many law journals have author-blind submissions.

Law is as much science as art. A legal argument is judged on its supporting authorities in exactly the same way a scientific argument is on supporting data. The appeal to authority is a logical fallacy in law as it is in science, and becoming a justice cannot possibly make one an expert in every field of law.

Editors have a duty to present different opinions and promote healthy debate. However, it actually pollutes, not strengthens, the marketplace of ideas when one assumes that law is inherently subjective and that all legal opinions must be equally valid. An engineering debate would be inutile if allowed to begin from 1+1=3. A legal debate likewise cannot be enriched by arguments based on premises that cannot possibly be correct. Free speech in a professional or academic context demands that one first scientifically validate one’s premises before speaking.

Should editors not filter legal pronouncements by so-called experts as rigorously as they do normal sources instead of according law a deference it does not merit? Does it not diminish the free market of ideas when an editor automatically assumes that he has no right to gauge a justice’s legal pronouncements and that his duty to free speech is to publish them for another lawyer to refute? Even if refuted, are not legal pronouncements with clearly flawed bases a waste of everyone’s time? And when blatantly flawed legal pronouncements are published in the context of potential tensions in Mindanao, is there a point when media become complicit in fear-mongering?

Media often quote legal experts from the wrong field of law. Last week’s headlines prominently featured Romulo Macalintal’s proposal that the president should no longer enjoy immunity from prosecution if the vice president does not, as a matter of equal protection, because it “smacks of unjust or inviduous discrimination.” Why was this news given space when he is an election, not a constitutional, lawyer?

The human rights doctrine of equal protection is a dubious choice given presidential immunity is hardly a human rights issue. And we stress to freshmen that few inequalities are discrimination in law. Government may treat two people differently if it cites a rational basis. A court cannot judge whether it is correct, only if it is rational, a low bar. Equal protection becomes much stricter only given “suspect” classifications (race, religion, gender).

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Beyond a mere compilation of prohibitions, we now see law as a foundation for society, a repository for its most enduring values, a call to men’s better selves. Law must empower, it must inspire, it must educate. The plaque above the Harvard law library’s main stairwell invites students to shape “those wise restraints that make men free.”

Law is a noble profession and nothing debases its majesty more than the respect for its learned wardens being twisted to sow confusion, fear and hatred. We need to be more discerning. Not every lawyer is an expert in every field. Perhaps democratic debate is better served by giving the limelight to idealistic, more diligent law students instead of experts.

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

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