We must be very careful, especially in these trying times, in filing a complaint against a government official or employee.
While we may have a legitimate grievance against governmental abuses, the very officials we attempt to hold accountable may get back at us and retaliate. Not in an underhanded fashion, but with the use of the law to their own advantage. Or worse, to silence us and transform us from disgruntled citizens to enemies of the state or villains of this republic.
A case in point is Section 35 of the Ombudsman Law. This inconspicuous provision gives to any public official the opportunity to file a criminal case for malicious prosecution against any person who, actuated by malice or gross bad faith, files a completely unwarranted or false complaint against said official or employee.
Of course, we can always say that our grievance is legally valid, designed solely to hold government men and women accountable for malfeasance. Yet they can also counter as a defense that our suit is malicious, or false, or unwarranted. And with the present state of our political and legal systems, the public official may conveniently assume the victim role and eventually vindicate themselves by legal maneuvering and tactics.
Lawfare may be a fresh nomenclature. But its essence has been studied and learned in law schools. It has always even been adopted by lawyers in their practice. Roughly defined, lawfare is the advocates’ diligent search and research for legal provisions or doctrines to serve the purpose of their client’s cause, or to counteract an otherwise potent cause of action in a courtroom battle. It is the adoption of a valid and recognized legal principle, statute, or method pitted against another legal principle, statute, or method which is equally valid and recognized – so that the judge may be confused, yet when rendering his decision either way, will always find his judgment justifiable and valid, and in accordance with the law. (READ: Media and lawfare: Journalists 'woke up to a storm' under Duterte administration)
This is the dynamics of the law. There will always be a remedy that can be found in the bland pages of our statute books and jurisprudence to propel the objective we want to accomplish. All we need is to have the combined astuteness and diligence of a legal mind. Figuratively, one can always draw a legal bullet that can be readily fired up when properly aimed. But the better question is: if law is a bullet, in whose gun is it loaded?
Citizens may have thousands of legal ammunition in their hands, but if they do not have the firearm, their bullets are useless. And even if the government may have no ammunition at all, because it has an arsenal, it still can intimidate its perceived enemies. It can aim a shot. Even if the barrel is empty, the one who holds the gun appears to be more superior and threatening.
We have been witnessing the dynamics of lawfare. Thus, while legal scholars are united in their interpretation that quo warranto is not proper in the case of ABS-CBN, still, the Office of the Solicitor General is more potent than the legal academe, because he is in the position to hold the gun, aim it at the network, and eventually pull the trigger. Later on, we will discover that the gun he is holding is empty of ammunition. But the damage has been done; the threat has been consummated. (READ: [OPINION] ABS-CBN and its struggle to obtain its franchise)
There is another instance. Under the Anti-Red Tape Act, if an office or agency fails to act on an application for permit or license for renewal within the prescribed period, the license sought to be renewed is automatically extended. It appears then, that there is a valid basis that the franchise of ABS-CBN can be considered as automatically renewed, owing to the languid process in the House of Representatives. But the very same law does not cover legislative function, hence ABS-CBN cannot rely on the provision of automatic renewal. Derisively, the law is always on the side of the lawmakers and they cannot be held accountable if they do not sit to work on the franchise renewal.
The narrative of “nanlaban” is another concrete example of lawfare. In a police operation against a drug suspect, drug operatives find it expedient to weave their story of the shootout. This is because the rules of evidence extend to them this very powerful presumption that their act was done in the regular performance of official duty. Never mind the fatalities. What is more important is that they are winning the campaign against illegal drugs. (Or are they really winning it?) (READ: [WATCH] War on drugs: 'Nanlaban')
At the core of lawfare is a legal experiment, an attempt to either stretch or narrow the interpretation or application of the law to suit a desired result.
A stretched legal interpretation is what happened when a quo warranto petition was used to remove the Chief Justice from her post. A legal theory was creatively crafted, hypothesizing that justices of the Supreme Court must be persons of proven competence, probity, and integrity. Then Chief Justice Sereno’s failure to file her SALN is a violation of the law. Hence, with that failure, she lacked the integrity to sit as Chief Justice. The SolGen’s theory is that impeachment is not viable because she has been usurper of a public office. And the majority of the justices believes it to be so.
At times, the application of the law is narrowed in such a way that those who must enjoy a legal right are precluded from its coverage by reason of some ambiguous text found in the law or the absence of applicable provision. A concrete example in recent memory is the denial to the Vice President of access to drug data by the same office which she co-chaired. It is highly unimaginable that a head of an inter-agency committee is deprived of access to information of her own office simply because she belongs to the opposition party.
Inversely, those who must be excluded from the coverage of the law may creatively find a legal justification to be included. This is exemplified by the appointment of a losing party-list nominee to a bureaucratic post even before the expiration of the one-year appointment ban, on the reasoning that a nominee is not a losing candidate, hence not covered by the prohibition. The justification defies logic. Yet it is accepted because nobody tries to rectify it.
But lawfare takes a different complexion when it is utilized by the State against its people, especially when it is used to suppress fundamental and guaranteed rights. When legal tools are renovated in such a way that oppression of our rights is dyed with a color of legitimacy, the citizens are in a serious trouble. It will invite chaos in the legal order. It will shatter our institutions gradually but certainly. It will cause antipathy between one sector who defies and another who upholds the law. It will create monopoly of power to a select few, or worse to a single person.
The resort to lawfare by the State and its agents poses a serious danger. Because it has a basis in law, it can be perceived to be a legitimate action. Soon, the people who are not keen on its repercussions or do not fully understand its dynamics may accept it as a normal occurrence. With such an acceptance, public officials may be able to perpetuate in power. The people will be caught by surprise with leaders who easily wield power without undergoing constitutional processes such as elections.
But how do we, as citizens, deal with this malevolent use of the law and its drastic consequences?
In answering this question, 3 tenets are worthy to consider.
Firstly, it is not the law which is the enemy here but the power holders who take advantage of the law’s imperfections. Secondly, in as much as we should always adhere to the rule of law, our own weapon should also be the law itself. So if our public officers are resorting to lawfare with the end in view of silencing democratic dissent, it is our right to challenge them, and our duty to preserve democracy within the bounds of the law. Admittedly, the battlefield is not level because public officials are at a vantage point, for they have the machinery of entire government resource. They can easily snipe on their target – the critics and the dissenters. This is where the dilemma lies, a sad reality we have to contend with.
Finally, when the fundamental rights are being unjustly defeated by the arbitrary use of the law, there is a paramount need to go back to the basics of constitutional precept of social contract. It must be remembered that sovereignty resides in us and all governmental powers emanate from us. If we know how to vest power and authority to our public officials, we should also care to know how to take back that same power and authority from them, more so, when they are acting beyond the limits of their mandate.
For these reasons, more than ever, it is high time to educate our citizenry. Lawfare is a product of diligent research of the law, thus, education is the key to combat the legal malaise that has been haunting our country.
This is the time that we have to relearn the painful lessons of our history as a nation. This is the time that responsible voting should be taught in schools as early as possible; the time to deeply inculcate in the minds of our young that they also have the obligation to preserve our democracy, and the time to reorient the older fellows of the forgotten ethics emblazoned in our national motto of “MakaDiyos, Makatao, Makakalikasan, at Makabansa.”
This is the time of planting the seeds of public accountability into our collective consciousness; the time to guard our institutions, especially the judiciary against the pressures of the powers that be. This is the time that we must learn and teach the youth to discern what is true from what is false, to recognize populist propaganda from democratic values. This is the time that we, as a people, act responsibly in our own personal circumstances at the same time with the same sense of responsibility to our homeland.
And maybe, just maybe, we can dispense with the guns and the bullets and ammunition, to live in a society with high respect for the majesty of the law. Such that, when the law is applied, it will not kill a drug suspect or shut down a media entity. We may look forward to a paradigm shift of legal creativity that saves and reforms lives and penalizes erring public officials, without fear of retaliation.
To the cynic, this call may appear as a rhetorically crafted motherhood statement – full of generalities, but lacking in concreteness. It may even appear to be too naïve and idealistic as a goal. Yes, it is. But perhaps this is what we need after all, an ideal government we deserve and should strive for as a people.
Our hope for these ideals should be thriving in a democratic space, even if such a space is slowly being constricted. – Rappler.com
After obtaining his Bachelor's in Liberal Arts from a private Catholic college in Guagua, Pampanga, KS David worked as a meter reader and field collector for his local water district. He eventually attended law school with help from a cooperative, though he has yet to pass the bar.