LEST we forget, law is an instrument of social order. It is not an end in itself. Law is not the end all and be all. As a tool of social order, it is a two-bladed sword: it can be actually used against social order itself.
Former President Ferdinand Marcos wielded law as tool not to maintain social order but to ensconce him in power. He brandished the constitution to perpetuate him to power. The 1973 Constitution and the now infamous Amendment #6 made him a constitutional dictator. He padlocked the Congress and created his rubber-stamp Batasan Pambansa. Except for Justice Claudio Teehankee, the Supreme Court led by Chief Justice Enrique Fernando promulgated decisions which only gave the seal of constitutionality to an otherwise dictatorial laws.
Give it to then President Marcos: he had legal brilliance. He was able to maneuver through the legal mesh that all his acts were legal. But not all legal are not necessarily right and just.
During Marcos time, the entire legal system did not serve social order but the dictatorship. It was futile to argue within the legal context. When the legal system collapses, it is the Fourth Estate, the media that should banner the truth. And in dictatorial setting, all forms of truths are considered forms of protests, and half-truths and even lies that favor dictatorship, “truths.”
The veneer of social order during martial law conceals the boiling ferment. In the absence of redress in the legal system, the press that sprouted throughout the archipelago had to expose the Marcos administration as a dictatorship with strings of abuses and corruption.
That is why, when the legal system is systematically strangled to serve the powers that be, the media, with more reason, should be given more leeway for free expression. Resort to justice can only be had in the bar of public opinion. It is public opinion that should put pressure to the legal system and its officers to follow the mandate of law, the spirit of the law and not the wishes of the wielders of power.
The technicians of the law can easily twist legal interpretations to suit the purposes of the seat of power. The joke that lawyers can argue that “white” is “black,” and “black” is “white” conjures of legal Houdinis, lawyers who intentionally distort the interpretations of the law.
But the media should transcend the debate from the legal standpoint to the moral paradigm. What is legal is not always right. When the laws are used as ammunition to quell dissent, the debate must be centered on whether the executive actions are right.
In the legal context, the removal of Chief Justice Sereno through the quo warrants proceedings is legally questionable. However, at the legal standpoint, there is not much we can do. The Supreme Court, right or wrong, is the last interpreter of the law. It is moot to argue that the quo warranto proceeding was illegal. The law is what the Supreme Court says it is.
However, the better argument, which is winnable in the bar of public opinion, was whether the removal was right. Was it just and moral?
The problem with the removal of then Chief Justice Sereno was that it was preceded by incessant verbal threats and attacks by no less than the president. President Duterte minced no words in his contempt for Sereno. Obviously taking the cue from his boss, Solicitor General Jose Calida foisted the most creative, the unheard of procedure of removal a Chief Justice via quo warranto. Solgen Calida acts as alter-ego of the president. The rest was history.
You have also the indictment of Maria Ressa for cyber-libel, Senator Trillanes’ resurrected case of rebellion, and the drug case against Senator Delima. In a context where our judicial system is harangued by the executive, the laws can easily be used as ammunition, as tools of oppression.
The debate in this scenario must go beyond the court rooms. The bigger forum should be before the people, the particles of sovereignty. After all, no matter how imposing the dictatorial tendencies of the powers that be, the real power still rests in the enlightened citizens. History has shown many times that people can depose dictators.
That is why freedom of expression must be guaranteed. In this meta-legal realities, the true advocates of justice are not the lawyers who remain as mere technicians of law. We need the media to articulate the justness or the lack of it, of an executive action.
But we need more lawyers who are trained in the discipline of advocacy to articulate the metal-legal realities, the justness of the laws and not only the letters in the codal provisions.