A dangerous doctrine

An interesting issue is presently being debated at the Supreme Court. It has to do with what acting Solicitor General Florin Hilbay calls the “doctrine of condonation.” What it entails—here I quote from the Inquirer account of the presentation of oral arguments last April 14—is that “an elected official’s liability for an alleged wrongdoing is extinguished by virtue of his reelection.” Solgen Hilbay has asked the high court to take another look at this doctrine.

As it is sub judice, we are restrained from commenting on its legal merits. Moreover, not being a lawyer, I am not qualified to argue questions of law. But, indeed, we can talk about the law from another angle—for example, from the standpoint of its origins and its relationship to the society from which it arises. In my field, sociology, we think of law as a dynamic achievement of society. It is never static. The trajectory of law’s evolution in modern society is toward an increasing autonomy from politics or from religion from which it is sprung. Many legal controversies reflect the strains created by law’s continuing readjustment of its relationship to the rest of society.

The corruption case against incumbent Makati Mayor Junjun Binay at the Office of the Ombudsman has brought this fascinating issue to the fore. By invoking it, the embattled mayor effectively questions the Ombudsman’s jurisdiction over the case. I understand that ample jurisprudence exists upholding this doctrine.

It will be recalled that the Ombudsman had ordered Mayor Binay’s preventive suspension for 60 days on the basis of what it said was strong evidence against him. This prompted his lawyers to go to the Court of Appeals to stop the enforcement of the suspension order. But because the order had been served by the time the temporary restraining order was delivered, the appellate court issued a writ of preliminary injunction lifting his suspension. The Ombudsman has questioned the appellate court’s action at the Supreme Court, arguing that the writ of injunction unduly intrudes upon the Ombudsman’s legal mandate.

Anyone who has been following the protracted Senate hearings on alleged irregularities under the Binays in Makati may remember that the case revolves around the alleged overpricing of Makati City Hall Building II. Again, I quote from the April 15 Inquirer report: “The younger Binay first signed a contract on the building in question during his first term as mayor, from 2010 [to] 2013. The fact that he was elected anew in 2013, said the appellate court, showed that the public still had trust in the official.”

This is an interesting philosophy. What it is saying is that victory at the polls effectively cancels whatever legal accountability a public official may have incurred during a previous term. At once, one can see how this contradicts contemporary practice, which grants to the legal system autonomy and operative closure, thus insulating it from the vagaries of politics.

This logic scandalizes us today because we are wont to think of law as a realm separate from politics. But that is how it was in the past. The law made no sense unless it was enforceable, and this meant basically retaining a connection to the ultimate weapon of politics, violence. As Niklas Luhmann put it, in his discussion of law’s evolution as a function system: “In its readiness for violence, law was tied and remained tied to the structures of its societal environment, which it could not control, and it was tied above all, to the kinship and clan formations of segmental societies.”

But, from its starting point of dependence on violence, law has evolved into an autonomous sphere. The time finally came, Luhmann notes, when: “Punishable offences were no longer understood as the violation of a victim, who could defend himself or demand satisfaction, but as a violation of criminal law…. The archaic law of the repayment of violence with violence was broken, or transferred to the state as the only actor entitled to apply a violent response.”

The condonation of criminal liability by reelection, clearly, is an atavistic survival that rests on the archaic assumption that if people felt wronged by their rulers, they could always, as citizens, take direct action by throwing them out by violent means or through the ballot. Therefore, if rulers are returned to office despite allegations of wrongdoing against them, it has to be assumed that the citizens either did not see their alleged wrongdoing, or did not feel injured by it.

This made a lot of sense in early societies when the absence of peaceful conditions constrained the processes of the law. But, mercifully, this is no longer how modern societies operate. The legal system has evolved in such a way that it has “replace[d] its test of power… with self-regulating proceedings.” Its own rules and procedures have proven adequate to its purposes that it no longer needs to turn to politics to complete the administration of justice.

Indeed, even during those times when the use of physical force seems justified and legal procedure is ignored—as in the events leading to the ouster of President Joseph “Erap” Estrada in 2001—the paradox of legal coding appears, “but in a form which is immediately unfolded within the legal system through setting conditions which make the paradox invisible.” Thus, in the eyes of the high court, Erap’s presidency was ended, not by people power, which the Constitution does not recognize as a means for changing presidents, but by “constructive resignation.”

Exculpation by reelection is a dangerous doctrine. It is contrary to everything we know about the modern rule of law.

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