Thursday, January 08, 2009

What is Legal May Not Necessarily be Correct

The public has been treated to a revelation of the realities of the country’s drug problem. The congressional hearings on the Brodett-Joseph-Tecson drugs case has shown us the challenges faced by the agencies involved in the fight against dangerous drugs as well as the defects and shortcomings of the system.

One glaring and bitter lesson from these hearings is that what is legal may not necessarily be correct. Or, as others have said, what is legal may not necessarily be moral.

For instance, it was perfectly legal for the prosecutor not to ask clarificatory questions during his evaluation of the case. In deciding to dismiss the case of the Philippine Drug Enforcement Agency (PDEA) against the suspected drug pushers, Prosecutor John R. Resado only relied on the affidavits which were submitted to him by both sides. In defending his action (or inaction), Prosecutor John R. Resado said that both parties had the opportunity to file counter-affidavits which would have enabled the PDEA to explain their side.

While the prosecutor is correct in saying that (that’s what the law provides), it must be noted that it is the prosecutor who will make a decision on the case, therefore, it is he who is in the best position to determine which items need clarificatory questions. According to the prosecutor, the law does not require him to ask clarificatory questions. It was perfectly legal for him not to ask questions.

But was he correct in not asking questions?

For humans who have been blessed with the capacity to think, it is natural and even instinctive to ask questions. An inquisitive mind is one of the qualities which distinguish us from apes and robots. If something is not clear to you, questions automatically pop up in your mind.

But no, the prosecutor did not find it necessary to ask clarificatory questions before making his decision. He said the affidavits submitted were sufficient. In comparison, bills filed in Congress (which are products of extensive research and study) still get grilled with numerous clarificatory questions, because legislators want to make sure that before they make decisions, they have considered it with due diligence.

While the prosecutor says he found it unnecessary to ask clarificatory questions, his own resolution, which he supposedly wrote himself, posed several queries which were apparently playing around in his mind. These points he raised had the effect of making the case of the PDEA weak in the eyes of the reader of the resolution.

But while he had those questions in his mind, he never bothered to ask those questions directly to the PDEA in order to give them the chance to answer them.

In one example of the several questions posed by the prosecutor in his resolution but not in clarificatory questions, the prosecutor cast doubt on the buy-bust operation of the PDEA by citing as incredible the information that only one agent was involved in the buy-bust.

But the PDEA explained in the congressional hearing that yes, there was only one agent conducting the actual deal with the suspect but there was an arresting team and a back-up team within the vicinity of the operation ready to take action when appropriate and necessary. If the prosecutor had asked clarificatory questions, they could have explained that to him. But as he proudly he told the congressional committee, he did not see the need to ask.

His decision not to ask questions, though legal, seems to have jeopardized the case against the suspected drug traffickers. In the larger picture, it weakened the government’s war against dangerous drugs. A case of something legal that is not necessarily correct.

Another example of a legal but incorrect act is the use of a Department of Justice  letterhead by the counsel of the suspects to make a Release Order which he tried to have the DOJ Secretary sign outside the official process of the department.

Up to this time, Atty. Felisberto Verano insists that there was nothing illegal in his act of making a release order on a DOJ letterhead since the document was not signed by Secretary Gonzales. He maintains that since it was not signed, it remains to be a mere scrap of paper.

While it may not be illegal for him to use the letterhead, it is definitely not correct. He might escape the ethical case filed against him, but it does not change the fact that it is not right for someone not organic to the DOJ to type a letter on it for the purpose of effecting an official act of an officer of the agency. While he may have been performing his legal duty as counsel of the accused, he was wrong in pre-empting the Secretary of Justice by preparing the order especially because he is not even an employee of the DOJ.

The Secretary of Justice has his staff to do the work for him, staff who are accountable and responsible for the results of the process within their office.

This has even led me to propose a law specifically prohibiting unauthorized use of a government office’s letterhead. The proposal merited an amused comment from a radio announcer, who seemed to think that it was a petty proposal. Well, it may appear petty, but as we have seen, it has profound effects on the whole government system.

We have seen many times in the past lawyers who argue in favor of a position which they say is legal. Many times they have prevailed in the arguments because indeed, legality is on their side. But many times also, we have seen that what is legal may not necessarily be correct. Well, such is a lesson that legislators, myself included, must keep in mind while crafting the laws that will ultimately rule over our lives.





1 comment:

Christian D Sales said...

This is a court of law, young man, not a court of justice. ~Oliver Wendell Holmes, Jr.