Legal and proper

Do the terms legal and proper go hand in hand? Or are they mutually exclusive concepts? Clearly, the general rule is that of the former although there are certain instances when this may not be so. There is usually no conflict between the two since laws are rules of conduct promulgated by the governing authority for the general welfare. Such rules are supposed to reflect the values and beliefs of a community.

For example would it be legal for the State to impose a penalty of amputation for the crime of robbery? In Middle Eastern countries, that may be both legal and proper as the penalty is an accepted practice in the community. In the Philippines, one could make the argument that it is within the prerogative of the legislature to impose such penalty as it would be proportionate to the crime committed (i.e., if the death penalty can be meted upon one who commits a heinous crime, then why can’t the penalty of amputation be imposed upon the lesser crime of robbery?) However, chances are that amputation will be deemed to be “cruel and unusual” by our courts and the law will be constitutionally struck down in this jurisdiction as violative of a person’s right to life under the due process clause. This is because taking a person’s limb by way of a penalty is not in accordance with the culture of our people.

I make this observation in light of the NTH midnight appointment involving PAGCOR officials. As a child, my mother would always remind me that a lot of bad things happen in the dark. Even Cinderella had to go back home before midnight lest her dress, carriage and footmen return to their original form. Yet this lesson seems to have been lost in translation as I cannot understand the propensity to make these last minute appointments.

Questions include: 1) If the appointments were made on March 9 or one day before the appointment ban kicks in, why were the papers only released to the media on May 28? Blackness truly ruled as people were kept in the dark about another midnight appointment; 2) as correctly pointed out by Fr. Bernas, an offer of appointment needs an acceptance from the presumptive appointee to be valid. I understand that the acceptances were made on the same day and notarized before a RTC Caloocan judge. Again, why the secrecy and indecent haste?; and 3) I also understand that the term of office of a PAGCOR chair and member of the board is one year. Query as to when the term started and when it is supposed to end? I would find it hard to believe that the one year term would really end on March 9 as that would make it unbelievably coincidental. Could it have been then extended prematurely?

But more than the legal points raised, the central issue to my mind is that of propriety. PMS head Len Bautista-Horn (who used to have a great last name till she got married) and deputy presidential spokesman Roger Peyuan’s insistence on legal niceties completely misses the mark. The dangers posed by allowing midnight appointments have been discussed in previous columns as well as in other fora. But what needs to be emphasized is that this is less an issue of doing what is legal and more an issue of doing what is right. Indeed, if we are to move forward as a nation, we will need to relearn some of the precious values that our foreparents imparted on us. Simplistically put, there is a distinction between legal and proper: the former is being right in the eyes of the law; the latter is being right using the eyes of heaven. 

 Verily, this debate on midnight appointments is not peculiarly ours as this has been discussed in other jurisdictions as well including the famous 1804 US case of Marbury v. Madison. If we are to believe PAGCOR SVP Edward King, there is really no issue as the PAGCOR chief will supposedly respect the incoming President’s decision on his reappointment. However, the legal historian in me hopes that he would contest any revocation as this would make an interesting test case on the independence of the Corona court in the months to come.  

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Birthday greetings: This column has strictly adhered to the policy of not greeting anyone except if the event actually falls on a Saturday. In this regard, let me greet my younger lawyer brother, Jose “Wito”, who celebrates his 42nd birthday today as well as close family friend Gloria Martirez Garcia, chairperson of Asiatrust Bank, who is now on her Nth year.

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Leadership by example: In a previous column relating to the last elections, I reminded voters of the need to mentally and physically prepare for long lines on voting day. The long waiting for many was not only a result of the initial confusion brought about by our first automated elections but also because the regular 200 voter precincts were merged to form larger 1000 person precincts. In this regard, this week’s four centavos go to Presidential frontrunner Noynoy Aquino for patiently lining up for four hours and not taking any short cuts or express lanes to exercise his right of suffrage. This, to me, was leadership by example. I truly hope that this but a foretaste of things to come . . .

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“And what does the Lord require of you? To act justly

and to love mercy and to walk humbly with your God.”

                                                                  — Micah 6: 8

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