Taking up law tongue in cheek

Dominador Awiten .

I ACQUIRED my legal education in the eighties. And in our class sessions, law jokes punctuated our recitation and our discussion. We had amused and amusing, amiable instructors in their happy notion that the students get the law from the humor in law practice and experience.

They come in all variety. There were jokes about the haplessness of studying law, about being a neophyte lawyer, about mental and language acrobatics in court. There was a trial lawyer being repeatedly ordered by the judge to rephrase his question to the witness on the stand on the repeated objection of the opposing counsel that finally, in exasperation, had to mutter: “M_ Witness, when the accused tried to overcome the victim, how did you do?”  And the answer was easily:  “Well, Attorney, I am fine. Thank you!”

Our criminal law instructor, a prosecutor, had this anecdote about a senior law partner hectoring his juniors: “When the facts are on your side, pound on the facts. When it is the law that favors your cause, pound on the law. But, when neither upholds your case, pound on the table!”

The joke merely portrays the lawyers’ need to impress the judge at once, getting their empathy for the lawyer’s cause. Truism it is that “first impression lasts” and that can only be surmounted by a later demonstration of inexplicable stupidity.

Ploddingly, the student gets the law, takes it by its horns, and ultimately retains the spirit if not the letter of it.   Not only repetitious reading and memorizing but also, equally helpful, is one’s “immersion in the nitty gritty of the real world” as our prosecutor-law instructor told us, with pomp and circumstance.

“Do not limit yourselves to the confines of the classroom nor habituate in the books and the cases. Visit the prison, observe the actual combat in a trial court, interview people in hospitals. Talk to the police, to the people in the streets. They will bring you enlightenment on how the law has a firm hold on us in our day-to-day living.”

There was the exercise of “passing on a story.” In the beginning, the instructor whispered something to a student in the front row, in turn the student passed on the story to the fellow beside, and so on. The last “transferee” had to report to the class what was passed on. So it came out that the initial “pretty lady on horseback escorted by a gentleman” ultimately became “the horse carried by the gentleman on his back with the lady in tow.” A lesson in vivid listening and empathy which come in handy in law practice.

There was a time when a classmate was reciting about what to advise his client, which came out as “clint” (“Clint Eastwood,” my seatmate whispered to me in glee).  The teacher yelled: “Clint? What Clint?” A classmate offered to help: “Maybe, Sir, he was referring to a person named Kevin Kline.”

Criminal Law provided macabre hilarity. The discussion was on the instruments or tools in the perpetration of a criminal offense being subject to destruction. The instructor, without any showing of emotion, asked the class: “In the crime of rape, what is the instrument or tool of the offender?” The class exploded in laughter.

We became sophomoric with the air of being a know-it-all in law. We called ourselves “justices,” self-assured in having the mastery of the assigned decisions of the Supreme Court.

We were brought down back to earth when we realized that becoming a judge was a tedious process of applying the law, given the established facts in evidence. (Only later would the reality bite: The appointment by the President of a judge is a “political” decision and the vetting by the judicial and bar council is an exercise of the law’s awesome doctrine called legal fiction.)

There was the joke about the might and majesty of the High Court: “If a mistake was committed by a trial court, it is denoted as a grave abuse of discretion. If the mistake was adopted by the appellate court, it is considered as reversible error. When it is upheld by the Supreme Court, it is now the new doctrine.”

At that time, when the President held almost infallible power, the Supreme Court was an object of derision of lawyers of the opposite persuasion. The nay-sayers held out as bad examples such instances as when the Chief Justice was an umbrella person for the First Lady or when Supreme Court decisions were rumored to have been drafted at the presidential palace.

The egregious instance was when a ponente pronounced a presidential proclamation as “infallible,” on the solemn ground that the President received the people’s mandate in every plebiscite. The critics accused the Comelec of not knowing how to count the votes correctly.

When unchecked, law and politics are partners in crime.

The high point of the travesty of the law was the decision in the “ratification cases” in which the issue was whether the 1973 Constitution was validly ratified, on the prism of the 1935 Constitution.

The ponencia, by the Chief Justice was a lengthy one, and together with the separate opinions of the other magistrates, was a grand discussion of Political Law.

Finally, at the end of the ponencia, almost as a hindsight but more of a sore thumb, an unwelcome appendage, an associate justice inserted the now infamous clause that stated:

“This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect.”

That was judicial legislation at its worst heretical manifestation. For, the Constitution required (as invariably it does) that a plebiscite be held, participated in by the enfranchised electorate. 

Instead, to hasten the legitimation of the one-man rule, there was instead conducted a voting by citizens’ assemblies that were hastily organized under the active supervision by the Executive Department. The pretext was the effort to establish a new society, make the nation great again.      

However, the majority may argue that the insertion may be upheld as a correct disposition of the Court .when we apply the provision of Article 8 of the New Civil Code that: Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.

Moreover, there is Article 10 that provides: “In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.”

Our batch was admitted to the legal profession at the onset of the new administration, with a new Constitution that made the Supreme Court more powerful than ever, granting it the authority to strike out an act as a grave abuse of discretion amounting to lack of, or excess in, jurisdiction.

Today, the Constitution is held to be an anachronism, if not a mistake.  Consider the recent events in the political arena:

1. The revision of the memory of one man rule as heroic and beneficial.

2. Removal of an impeachable officer not by the Constitutional method but by the majority vote of the Supreme Court.

3. A novel idea that a fact did not happen because no document is intact as evidence of such a fact.

And the joke continues when we will again have our elections this coming May.

The joke goes this way: “The law is mandatory before election day. It is only directory after the elections.” Corollary to the proposition is the doctrine in administrative law that a person is held blameless by their being reelected to office.  It is taking too far the principle that “Sovereignty resides in the people and all government authority emanates from them.” For it negates the more mandatory (by reason of its being in later place) principle that public office is a public trust and public officers are at all times accountable to the people.

Having been in government service for so long inured me in the tenets of administrative law and of the law on public officers.

The reign of administrative law was predicted to hold sway in the modern era of public governance.

Courts now defer to the doctrine of primary administrative jurisdiction and consent to the affirmative defense of the necessity for exhaustion of available administrative remedies before the litigants resort to judicial adjudication of their dispute or controversy.

They, together with the concept of alternative modes of dispute resolution, are meant to enforce the policy of speedy disposition of cases and do away with the inordinate delay in the administration of justice.

On that note comes to mind another anecdote about a new Bar passer to whom a case was entrusted by his father who was their law firm’s managing partner. After the court hearing, the son reported to his father:  “Pops, you should be glad with the fact that in today’s hearing I succeeded to put closure to the case!”

The father angrily retorted: “Son, that was ill-advised of you to have done.  That case was what funded your education up to your passing the Bar!”

(Dominador C. Awiten has been in government service ever since.  He studied Law at Xavier University – Ateneo de Cagayan and was admitted to the Bar in 1992.)