Convicting Imelda

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-year-old 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 we would 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 self-creating 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. We cannot 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.

We are 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.