Law and its uncertainties

DURING CERTAIN periods, crime acquires a high visibility, the result usually of diligent reporting by the mass media. “Moral panic” sets in, putting pressure on the police and the courts to show that justice is not asleep. Thus, for a while, the public may be treated to a flurry of arrests and a surge of decisions meting out harsh penalties to convicted offenders. In such ways do societies seek to restore the authority of the law.

There is a downside to this, however. Rights may be violated when the police are forced to resort to shortcuts in order to produce results. Judges may sometimes issue decisions aimed more at asserting the majesty of the law and deterring future violators than at dispensing justice.

Many years ago, Justice Jerome Frank of the United States Court of Appeals provoked a passionate debate by assailing what he called “the myth of the certainty of law.” A leading advocate of legal realism in his time, Justice Frank contended that a lot of things affected the process by which evidence is transformed into “facts-in-law.”

This phenomenon is of great interest to scholars in the social sciences. Using it as a takeoff point for a book chapter on “Dispute and Settlement,” the anthropologist Max Gluckman synthesized Frank’s controversial thesis thus: “Economic interests, religious values, social and individual prejudices, and even the judge’s or a juryman’s digestive state and particular dislike of witnesses’ idiosyncrasies, or their susceptibility to counsel’s arguments, might influence the course of a suit. Hence decisions of these courts cannot be predicted with assurance, and law is highly uncertain.”

My mind kept returning to this thought as I pondered a recent Supreme Court decision affirming the conviction (for graft and corruption and grave abuse of authority) of two of my colleagues in the University of the Philippines. If the high court sitting en banc upholds this decision of one of its divisions, the two professors will be sent to jail for 17 years and ordered to pay P336,000—the amount of money that was supposed to have been unlawfully collected from the government. In the wake of the media reports on the pork barrel scam, I could not help but compare this princely sum with the billions that legislators allegedly skim with impunity from their pork barrel allocations.

I am not a lawyer, and it is not my business to question the wisdom of our courts. I certainly mean no disrespect. My concern as a sociologist and as a commentator is to show why cases like this, viewed from outside the legal system, do not elicit the same kind of response they get from lawyers and judges.

Dr. Roger Posadas is accused of accepting appointments in 1995 as project director and consultant of a foreign-assisted project to work out the specialized curriculum of a new academic unit inside UP while he was chancellor of UP Diliman. These appointments were issued by Dr. Rolando Dayco, acting as officer-incharge of the office of the chancellor while Posadas was on an official trip abroad. Posadas oversaw the project to its completion, as a result of which the Technology Management Center is today fully operational. For his services, UP paid him, in addition to his salary as chancellor and professor, P30,000 per month as project director for one year, and a one-time honorarium of a hundred thousand pesos as consultant. These remunerations were paid from a grant by the Canadian government.

These are normal events in university settings, where professors are allowed to augment their meager incomes from the limited practice of their professions and fields of expertise, outside their regular functions as teachers and administrators. Posadas did not hide these additional assignments, but he did not think it was necessary to get the approval of his superior, the UP president, to take them on. That was probably a mistake.

The courts have since judged these appointments to be illegal and the money paid out to him as constituting double compensation. The two professors have been pronounced guilty of conspiring to give undue advantage to Posadas, resulting in injury to the government.

One would think that, in situations like this, where an appointment turns out to be invalid, it would suffice to simply revoke it and to demand the return of whatever compensation had been paid. In severe cases, disciplinary action like reprimand or suspension might be imposed on erring officials.

But everything about this case seems to have been blown out of proportion. The then UP president, Dr. Emil Javier, went on to file administrative charges against the two professors, and, after an investigation, ordered their dismissal from the service. The board of regents softened this action into “forced resignation,” and gave them the option to re-apply for reinstatement after one year if they publicly apologized.

The two accepted this punishment with a heavy heart, believing they were being persecuted, and resigned. That is where it could have ended. But, President Javier, who was finishing his term, had taken the additional step of filing criminal charges before the Ombudsman. From there, the case assumed a life of its own and reached the Sandiganbayan, which rendered a judgment of conviction in 2005. It was then appealed to the Supreme Court.

Dissenting from the majority opinion which upheld the Sandiganbayan ruling, Supreme Court Justice Roberto Abad voted to acquit Posadas and Dayco, arguing that bad faith had not been proven, and firmly convinced that they “did not willfully defraud the government.” At times like this, the law does seem uncertain.

*** public.lives@gmail.com