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The voodoo of the law

(Article published in the Dec 19, 2007 issue of Manila Standard Today)  

Just before she took her much deserved place amongst the favored members of the President’s party that visited the English Queen, Senator Miriam Defensor-Santiago let loose some critical words about her fellow Senator and just as unorthodox colleague, Antonio Trillanes IV.  She was reported to have said: 

“Nadudurung-dunungan kasi (He is feigning intelligence).  He is interpreting the Constitution as a layman, which should not be because you need four years to have the skill to interpret it.”

“The lady”, if I may borrow from Hamlet, “doth protest too much, methinks.”  On two counts: first, on the hidden and unexamined premise that the ability to interpret the Constitution constitutes intelligence; and second, that interpreting the Constitutions is the exclusive province of persons who have had four years, presumably, of law school.  The first, in my view, is preposterous; the second presumptuous.

Both stem from an archaic view of the law, an antiquated claim that the law is rightfully beyond the ken of laymen, or, worse, a subject verboten to non-lawyers.  Modern science and technology had long demystified the world around us.  Today, the accepted view is that if law is to deserve some measure of respect and obedience, it ought to be understandable even to minds not deformed by four years of law school.  This is true for any statute, much more it ought to be true for the Constitution.


        The good senator, of course, had grounds to find the constitution difficult to understand. Our fundamental law, despite efforts of the members of the 1986 Constitutional Convention, bears the features of law acquired in times gone by for reasons now, for the most part, forgotten.

For instance, the Constitution uses of common words with uncommon meanings.  Take for example, the common  word “party”.  Its common meaning that is found in “Let’s party!” is not anywhere in the Constitution.  Instead, we find at least its two uncommon meanings: (a) “party-list” and “political party” to refer to organizations; (b) “party” to signify a litigant in court.

“Verified” in “verified complaint” is used not to mean the usual “tested” but the unusual “sworn”. “Recall” is not used to mean “remember” but instead “to call back by popular vote a person from public office.” The “poll” in “poll tax” does not have the same meaning when “poll” is used in the provisions on elections.

“Said” is used as an adjective instead of a verb. “Save” means “except” and not “conserve.” “Alienated” means “transferred,” not “unfriendly” or “estranged.” “Qualified” though sometimes meaning the state of having qualifications as when used in “qualified Filipinos” means “having taken his oath of office” when the Constitution asks the Vice-President to act as President until the President-elect shall have “qualified.”

It uses Old English, once prevalent, now extant only in yellowed tomes of quaint rules.  It employs the “there” words, such as “thereof”, “thereafter”, “thereto”, and “thereon” and the “here” words, “herein”, “hereof”, “hereafter” and ‘hereunder”.

Foreign words, i.e. not English inspite of English being one of two languages of promulgation of the constitution itself,  frequently crop up: “en banc,” “reclusion perpetua”, “ex post facto” law, “incommunicado”, “quorum”, “habeas corpus”, “certiorari”, “quo warranto”, “ex officio”, “qiasi-“ as in “quasi-judicial”, “bona fide” etc.

Terms or words of the legal art, i.e. those words which have a specific meaning among those in the legal profession, abound.  We see provisions on  “human rights”, “due process of law”, “equal protection of the laws”, “just compensation”, “bill of attainder”, “public interest”, “progressive system of taxation,” “fiscal autonomy”, “unfair competition”, etc.

Even the shibboleths of other professions, in both the senses of belief as well as discipline, have crept into the constitutional text.  There is the Scholastic Philosopher’s  “the common good”; Liberation Theology’s “labor as a primary social economic force” and “total human liberation and development” balanced by the Capitalism’s “indispensable role of the private sector” and “private enterprise”; the Socdem’s “dynamic social order” side by side the Natdem’s “independent foreign policy”; the NGOs’ “rights of indigenous cultural communities”, and even Women’s lib’s “fundamental equality before the law of women and men” and protection of “the life of the mother” quickly followed by the Catholic Church’s “life of the unborn from conception.”

Moreover, despite the dignity of the document, the Constitution contains argot, jargon or slang used by lawyers, and those mimicking lawyers, talking to one another.  There is “lower court”, “miscarriage of justice”, “natural-born”, “quasi-judicial”, “majority vote”, “the senior Justice”, “government-owned or controlled”, “error or question of law”, “due course”, “higher learning”, “ill-gotten” wealth, “red tape”, etc.

 Finally, there are texts whose meanings are most obscure.  Witness: (a)  “the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature”, (b) “optimum opportunity to develop” and (c) “a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.”

There was, once upon a time, a reason for all these lawyerly gibberish: they were the functional equivalents of an armored personnel carrier crushing through the front doors of the Manila Peninsula Hotel and parking at the lobby, just beside the Christmas Tree.  The legal priesthood needed “shock and awe” to ensure belief in the law’s legitimacy, particularly in those rules of behavior where legitimacy was not self-evident.  Mumbo-jumbo was a time-tested tool,  both for the ancient witch doctor and the present day doctor of jurisprudence.

The time for the mysterious, however, had long passed with the coming of the scientific age.  Even religion had given up on the occult; Pope John XIII had told his priests, decades ago, to face the people and speak in the language they understood.  The priests of the law, the members of the legal profession, ought to follow suit. 

           The law, particularly the Constitution, at this our day and age ought to be made understandable to the people, to all the people.  Otherwise, it will go the way of superstition.  And for the law, particularly the Constitution, to be understood by all, all must be able, nay encouraged, to interpret it. Everyone, lawyer or layman, Senator or soldier, at liberty or in detention, brain-damaged or barracks-trained.   The Constitution is everyone’s scriptures; let everyone speak of it, in street or synagogue.