End the war on law and justice

"This isn’t an exaggeration. This is war, and it needs to end now."

 

A few weeks ago, a Calbayog police intelligence officer wrote to the clerk of court of the local Regional Trial Court for a list of lawyers representing “communist terrorist groups” and hoped for the court’s “kind” cooperation. The legal community immediately and understandably denounced this action. Then there were reports of a tarpaulin in EDSA tagging Mandaluyong RTC Judge Monique Quisimbing-Ignacio as a communist sympathizer, as though taunting the community of compañeros. Even the Supreme Court, in the twilight days of Chief Justice Diosdado Peralta, could no longer hold its silence. It ordered the Court Administrator and Public Information Office to investigate the matter and asked the community to come forward with its grievances. 

Between these, and notable instances where high-profile petitioners before the Supreme Court were approached by state agents either to dissuade, diminish, or demolish, and the revelation that more lawyers died under the present Administration than from Marcos to Noynoy Aquino combined, and we lawyers surveying the field cannot help but conclude: We are under siege. War has been declared on lawyers, judges, the legal system, on Law-with-a-capital-L itself. 

Admittedly, no legal system is without its grievances, and that such grievances are the subjects of criticisms of the legal system. Perfect Law, perfect Justice is something we always struggle toward. Yet we never give up on that struggle even as we are a flawed, imperfect humanity. The Law remains, as Pompeyo Diaz described, a noble profession, its agents tasked to ensure its nobility. It is an unceasing struggle, but to cease the struggle is to leave the Law and the peoples it serves in vain. 

This war aims precisely at that: to suppress that struggle, to make lawyers and judges, Law and Justice pliant beneath a dictatorial will, whoever that will may be. My present students were not even born at the time of the following anecdote, when after the 1972 Martial Law declaration soldiers reportedly visited law schools to announce to their students their prospective services were no longer required, with the New Society come to make everything all right. History has proven such a patronizing statement wrong, but in this present war, in the context of a global rollback of the democratic wave, the legal community is no longer being patronized, but terrorized into silence.

The present war is even worse than Martial Law because Martial Law required an extraordinary declaration, creating and exploiting extraordinary circumstances, to impose an extraordinary system. (No such creature as “constitutional dictatorship” may exist in the ordinary.) But now, the very ordinary systems used to guarantee both personal liberty and rights, and an accountable and responsive means of holding people liable for wrongdoing, are being used to strip liberties and rights, and subvert accountability for whimsical desire. The essence of war, after all, is the imposition of one will over another by force, to take property, liberty, even life itself to feed selfish interest, regardless of right. 

Law traditionally is the opposite of war—the very concept of the “law of war”, even cynically, is to impose restraint on war-conduct to make it “palatable” as an instrument of statecraft. But there is nothing palatable about a war on Law. The term “lawfare” describes the Philippines (under Noynoy Aquino) using law (UNCLOS arbitration) to achieve a legitimate state interest against a foreign power where the traditional high political instrument, military power, was unavailing, balanced unfavorably, or needed complementing. David against Goliath. But we also have used the term, sadly more often, to describe this twisting of the instruments of criminal litigation to suppress activists and progressives—Goliath against David. A war on Justice by hijacking the law against herself and her officers. 

“First, let’s kill all the lawyers.” Henry VI, Act IV, Scene 2. A temptation by that play’s Barabbas to rouse the common folk and their pitchforks into a rebellion playing into a political faction’s hands. Shakespeare may have intended that line to be relatable dark humor, but he does reveal an eternal truth. The legal system IS imperfect, but the common folk, especially the least, last and lost among us, have every right of appeal to Law to protect what little they have, and what they deserve from society, from life. And an equal right to inform law, to reform law, because the very notion of “Law as the opposite of War’’ is the bulwark against their conquest by the powerful without morality, without ethic, without right. Where Law restrains both the “nasty and brutish” state of Man and the equally brutish Leviathan State, from their worst impulses and tyrannies personal and societal. 

“First, let’s kill all the lawyers.” And then Law is without her defenders, when the tyrants come to take her away and rape her, kidnap her children for their ends, and murder her. This isn’t an exaggeration. This is war, and it needs to end now.

Next week, I will suggest how a Supreme Court, judiciary, and legal profession led by a dynamic Chief Justice—Alexander Gesmundo—can win against the enemies of the rule of just law.

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