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Sisyphus’ Lament

When is stupid legal opinion stupid?

I WAS deeply humbled when I first entered the Philippine Law Journal office as student chair and was greeted by a submission from retired Justice Vicente V. Mendoza, the living legend who taught my professors. He later stressed it was my duty to evaluate submissions to legal academia’s holy of holies without regard for authors’ stature. And so I policed three chief justices, Sen. Miriam Defensor Santiago and even Bayan Muna Rep. Neri Colmenares, who we offered a chance to respond after Santiago cited his party.

Law uniquely makes students responsible for its professional journals. The wise editor focuses not on a conclusion, but scrutinizes its underlying legal bases at each step. At a very basic level, even a student may pull out a law and raise that even a justice’s statement is clearly inconsistent. Law at this very basic level is no more than simple language.

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Contrary to what my friend John Nery insists in his last two columns, law is certainly like engineering at this basic level. While legal philosophers can argue beautiful enigmas for decades, most legal issues are exceedingly simple and leave no room for interpretation, except for lawyers arguing for clients. Not even Justice Mendoza may insist despite the Constitution that Manny Pacquiao may run for president before he is 40, nor that there can be 25 senators.

It frustrates me when veteran editors like John insist that law is inherently subjective and there is thus an unbounded range of valid opinion on law, unlike science. His last column title “When does opinion become an unpublishable stupidity?” is itself frustrating because I would prefer to call a legal opinion baseless than stupid, a subjective term. Media treat law as so inherently subjective that reporters would rather interview a lawyer from an irrelevant field than cite the actual law. Rep. Ronaldo Zamora was interviewed on Sen. Grace Poe and quoted a high court decision defining residence. Instead of exploring this decision, reporters emphasized his topping the 1970 bar exams, complete with his score. John stresses how editors examine a legal pundit’s credentials, “spotting obvious cranks,” which misses my invitation to also minimally scrutinize legal statements themselves independent of the author.

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I underestimated how seriously editors respond to anything that appears to be censorship. Free speech is irrelevant as I invite them to reconsider how they exercise their free speech to choose what to publish. Everyone has a right to an opinion, but not to insist that someone publish it.

Note that I ask editors to minimally scrutinize the bases of legal statements, not judge the statements themselves. Manuelito Luna astoundingly argued before the high court that the Disbursement Acceleration Program is unconstitutional because it violates the human rights doctrine of equal protection, because senators did not receive equal allotments. The court reached the conclusion, but not on this impossible basis.

In contrast, the Inquirer published Filipino Freethinkers founder and nonlawyer Red Tani’s “Churches should remove posters or pay taxes” (Opinion, 3/16/13). He cited the constitutional rule that a church must be actually, directly and exclusively used for religious purposes to be exempt from real property tax, then argued that putting “Team Patay” tarpaulins on Bacolod City’s cathedral denouncing pro-reproductive health candidates was a political act that removed the exemption. While some consider the conclusion stupid, no legal editor would label it baseless, unlike RH Law essays that purported to discuss law but went to ideology.

I make the narrow point that editors should minimally scrutinize legal bases and avoid confusing the public on what the law in textbooks actually is to begin with. Media do derail legal debate into nonexistent issues. When UP Law professor Sandra Olaso Coronel argued that the “condonation doctrine” absolves Mayor Junjun Binay for administrative acts from a previous term, reports made it appear that she was proposing a malicious new doctrine, not one entrenched in jurisprudence. Media gave the impression that the Cybercrime Law created online libel, yet while it was suspended, prosecution under the circa-1930 penal code continued. When Polytechnic University of the Philippines intellectual property professor Rod Vera tweeted that a Commission on Elections appointment violated the Constitution, reporters did not read the Constitution before reporting the nonexistent provision, confronting the President, and running the baseless story for up to five days (“The fake Comelec constitutional crisis,” Opinion, 4/24/13).

Finally, after watching comedian Jon Stewart’s powerful monologue on the Charleston church shooting and racism, I ask again whether we are unconsciously tolerant of baseless legal opinion when it involves Islam. For example, in “The constitutionality of Shari’ah,” (Opinion, 5/12/15) retired insurance executive Araceli Lorayes states that Shari’ah law allegedly weighs a woman’s testimony as half of a man’s. Even she seems to admit that this alleged rule cannot become law in the Philippines, given equal protection and our female chief justice; and Randy David reminded that Philippine Shari’ah courts have existed since 1977. Are there no better critiques of the Bangsamoro Basic Law than long lists of legal impossibilities? And why are we indignant over Gawad Kalinga founder Tony Meloto’s comment for Filipino women to marry white men and produce “cappuccino” kids, but readily accept alarmist warnings of legal changes under an alleged Islamic state in Mindanao, however legally impossible under our Constitution?

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

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