Con­vict­ing Imelda

Philippine Daily Inquirer - - OPINION - RANDY DAVID

Those who fought the Mar­cos regime and re­joiced over its over­throw in 1986 will surely wel­come the re­cent Sandi­gan­bayan de­ci­sion con­vict­ing Imelda Mar­cos for graft and cor­rup­tion, and or­der­ing her ar­rest and im­pris­on­ment. They have waited a long time for this. De­spite re­peated dis­ap­point­ments over the fail­ure of our le­gal sys­tem to de­liver a clear judg­ment on the nu­mer­ous cases filed against the Mar­coses, this de­ci­sion af­firms the moral and po­lit­i­cal one that had long been passed on the Mar­cos regime.

Still, many greet this rul­ing with great reser­va­tion, if not skep­ti­cism. They know that the de­ci­sion will be promptly ap­pealed—that Mrs. Mar­cos’ bat­tery of bright and well-paid lawyers will ex­haust all the means avail­able in the dense world of lit­i­ga­tion to ob­tain re­con­sid­er­a­tion and re­ver­sal of this lat­est de­ci­sion. In a pre­vi­ous case, her lawyers did suc­ceed in per­suad­ing the Supreme Court to re­verse the Sandi­gan­bayan’s rul­ing.

The le­gal sys­tem fol­lows its own code and moves ac­cord­ing to its own tempo, and, as this case has shown, it can­not be rushed by the pref­er­ences of a chang­ing so­ciopo­lit­i­cal en­vi­ron­ment. The fi­nal res­o­lu­tion of th­ese cases could be quick, or it could take an­other decade.

In the mean­time, the durable 89-yearold Imelda—for­mer first lady and for­mer min­is­ter in her hus­band’s regime, in­cum­bent Ilo­cos Norte rep­re­sen­ta­tive, and can­di­date for Ilo­cos gov­er­nor in the 2019 elec­tions—need not spend a sin­gle day in prison. She will be al­lowed to post bail. And while the Sandi­gan­bayan’s rul­ing is on ap­peal, she will, with­out any doubt, con­tinue her can­di­dacy, win, and as­sume the gov­er­nor­ship presently held by her daugh­ter Imee. As though noth­ing hap­pened.

Even if the Supreme Court af­firms her Sandi­gan­bayan con­vic­tion within the next three years, Pres­i­dent Duterte, who holds a pos­i­tive view of the Mar­coses, can be re­lied upon to grant her par­don—for hu­man­i­tar­ian rea­sons in view of her ad­vanced age, or in con­sid­er­a­tion of her fam­ily’s “ser­vice” to the na­tion.

Be­cause this turn of events has hap­pened many times be­fore, it has eroded our be­lief in the courts as dis­pensers of jus­tice. Yet, our faith in the nor­ma­tiv­ity of the law as a source of ex­pec­ta­tions of what is right and what is wrong is undi­min­ished. While pub­lic of­fi­cials seem to do it al­most as a mat­ter of rou­tine, no one will say that steal­ing from the pub­lic cof­fers is okay. Many in govern­ment ser­vice brazenly did so not too long ago with the ex­pert as­sis­tance of Janet Lim Napoles, se­cure in the thought that no one re­ally cared. But the law, with its long mem­ory and prospec­tive ori­en­ta­tion, even­tu­ally caught up with them.

I sup­pose a most un­usual in­sight from the so­ci­ol­ogy of law does make sense: that the prin­ci­pal func­tion of the le­gal sys­tem is not so much to de­liver jus­tice as sim­ply to main­tain nor­ma­tive ex­pec­ta­tions across chang­ing mores and prac­tices in so­ci­ety.

In truth, peo­ple ( and that in­cludes lawyers and judges) will al­ways have dif­fer­ing no­tions of what jus­tice en­tails in every given case. What’s im­por­tant is the con­sis­tency that the le­gal sys­tem as­pires to achieve and ex­press when it de­fines what is le­gal and il­le­gal across count­less cases. If we can learn to see the Sandi­gan­bayan rul­ing in this light, per­haps we­would not be cyn­i­cal.

It is this le­gal nor­ma­tiv­ity that we re­fer to when we say that ours is a govern­ment of laws and not of men. This is the nor­ma­tive bedrock on which all the other do­mains of so­ci­ety de­pend when their en­gage­ment with the rest of so­ci­ety re­quires spec­i­fy­ing the bound­aries of le­gal rights and obli­ga­tions. With­out this bedrock, po­lit­i­cal rule would be ar­bi­trary, eco­nomic trans­ac­tions would be purely pri­vate agree­ments, schools and teach­ers would teach and treat their stu­dents as they please, re­li­gious preach­ers and the clergy would have to­tal free­dom over their con­gre­ga­tions, and hus­bands could do any­thing they want to their wives and off­spring, etc.

Law serves this func­tion best when it is au­ton­o­mous from all the other do­mains of so­ci­ety—that is to say, when its code and its op­er­a­tions are not di­rected from out­side. The word “au­topoi­etic”—mean­ing self­cre­at­ing and self-re­pro­duc­ing—might be a bet­ter term to use to de­scribe this ideal.

To be sure, we may ex­pect po­lit­i­cal lead­ers and busi­ness groups to try to in­flu­ence le­gal in­ter­pre­ta­tion. This poses no real prob­lem so long as it is done us­ing the lan­guage of the law and within the pa­ram­e­ters of le­gal pro­ce­dure. For then, it can be coun­tered within the sys­tem, us­ing the same vo­cab­u­lary, pro­ce­dures and ju­rispru­dence. It is an­other mat­ter when court de­ci­sions are ignored or set aside capri­ciously, judges are strong-armed or in­tim­i­dated, or bought, or, worse, killed.

The cre­ation of a just so­ci­ety is, in the last anal­y­sis, the task of pol­i­tics. We­can­not ex­pect the courts to do for us what we our­selves can­not summon enough mem­ory and will to pur­sue in the realm of pol­i­tics. And that is: to ac­tively par­tic­i­pate in craft­ing or protest­ing the poli­cies that af­fect us all, to choose lead­ers who can best rep­re­sent our peo­ple’s high­est as­pi­ra­tions, and to per­sist in hold­ing th­ese of­fi­cials an­swer­able for the ac­tions they take in our name.

Weare thank­ful to the govern­ment pros­e­cu­tors who pur­sued the cases against the Mar­coses af­ter all th­ese years—cases that were filed long be­fore many of th­ese young lawyers had even en­tered law school. The le­gal sys­tem bound them to their duty, and they de­liv­ered. Present and fu­ture lead­ers are thus fore­warned: The law doesn’t for­get.

———— pub­lic.lives@gmail.com

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