The good, the bad, and their lawyers

In the wake of the shocking Nov. 23, 2009, massacre in Maguindanao, the Ampatuan patriarch and his sons, the principal suspects in this heinous crime, began a frantic search for sharp lawyers who would take up their case and defend them. One of those sounded out was my brother Dante, a litigation lawyer with many years of experience in criminal law. He did not know any of the Ampatuans, but he knew many of those who had been initially hired for this difficult case. A huge acceptance fee was hinted. My brother turned it down without hesitation, politely saying he already had a crowded schedule.

I was quite sure his refusal to lawyer for the Ampatuans had nothing to do with his workload at that time. I can only suppose it had everything to do with his moral intuition: The case offered nothing more than fat legal fees and the prospect of making a mark in the media championing the rights of high-profile clients. To him, there were no crucial issues of legal doctrine that were at stake. And, if there were any rights that needed the greatest protection at that moment, they would be the rights of the victims who were mostly poor journalists, not of the suspected perpetrators who could afford to pay for the best legal service available.

This is consistent with the way sociologists think of morality: not so much a set of rules defining what is right and what is wrong as a method for allocating social esteem. Accordingly, the public will recognize at once who the “good” lawyers are: They are the ones—like the tireless Harry Roque—who come to the aid of victims, usually on pro bono.

I heaved a sigh of relief when my brother told me he had turned down the Ampatuan case. But, at the same time, I wondered how I would have dissuaded him if, for any reason, he had agreed to be an Ampatuan counsel. Do we have any right to criticize lawyers who defend the constitutional rights of suspected criminal offenders? I suppose not. But the issue goes into the very heart of what the law is supposed to be and what lawyers are supposed to do.

Too often, the law seems to favor the rights of criminals rather than the rights of victims and ordinary law-abiding citizens. The situation this creates is what is called “impunity”—the inability of society to punish brazen assaults on the rights of citizens. Impunity takes many forms. Sometimes, the police are simply unable to find and arrest the offenders. Most of the time, however, the prosecution gets bogged down in countless procedural questions, motions, objections, and appeals that have to be resolved before the case can proceed to the next stage. Some of these appeals or petitions are filed before other bodies like the Court of Appeals and the Supreme Court. When this happens, “judicial courtesy” obliges the lower court that is hearing the case to patiently wait. In the meantime, important documents are lost, witnesses die or vanish, and complainants are intimidated, run out of money, or lose interest.

The Ampatuan massacre case is probably one of the most closely monitored cases ever to be filed in a Philippine court. The Supreme Court issues a regular update on the case. According to the high court’s latest bulletin, 264 hearings have been held since the start of the proceedings on Jan. 5, 2010. That seems frequent enough, but the number itself does not tell the full story.

In the same report, the high court notes: “Excluding oral motions, 307 motions and other matters have been filed or raised, of which 204 have been resolved. As a result of these motions, 447 comments, oppositions, rejoinders, surrejoinders and manifestations have been additionally filed.  To date, the records of the case have reached 48 volumes.”  Here, one gets a good glimpse of what astute lawyers can do for their high-paying clients. They can make use of all the countervailing rights to which their clients are entitled in order to further complicate an already cumbersome justice system.  This, in the end, is what causes delays in the administration of justice.

There ought to be a limit to this. Something is wrong when the families of the Ampatuan massacre victims have to scrape from their meager savings to be able to stay indefinitely in Metro Manila for the hearings, even as the criminal defendants are able to sell properties to pay lawyers who will do everything to keep them from being convicted. The other day, Ed Lingao of the Philippine Center for Investigative Journalism (PCIJ) reported the timely “sale” or transfer of Ampatuan properties to two Ampatuan lawyers before the freeze on these assets could be effected. There is probably nothing illegal about this. But it certainly makes one wonder if criminal lawyers are just like the proverbial “bad men” they serve—responsive to incentives but generally without conscience.

The metaphor of the “bad man” comes from the great American jurist, Oliver Wendell Holmes Jr.  In the controversial essay titled “The path of the law,” Holmes argued that “if you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct … in the vaguer sanctions of conscience.” The bad man who is not bound by ethics or morality, Holmes said, may nonetheless care about the law as much as the good man if only to avoid being fined or jailed.

The strength of the law ultimately does not lie in its moral backup, but in the will to enforce it. But the force of morality comes from the sentiments of people we care about.