The Doctrine Of The Operative Fact Fr. Ranhilio Aquino, The Manila Standard Today, July 7, 2014 While I was an undergraduate student at the University of Santo Tomas—at the time that Thomistic philosophy was taught by real heavy-weights in academe—there was something in one of Aquinas’ writings that caught my attention: his concept of “necessity of the hypothetical order”. That sounds intimidating. But the notion is not at all that abstruse. It is supposed to be distinguished from “logical necessity”—that a triangle have three sides—or “metaphysical necessity”—what begins to exist must have a cause. There is nothing necessary in either logical or metaphysical sense about being my baptized with the rather odd name “Ranhilio”—actually the result of juggling the letters in “Hilarion”, my dad’s name, who wanted his son to carry his name but would not be a “Jr”—but having been baptized with it, it cannot now be otherwise. That is the metaphysics of the doctrine that figures prominently in the lucid and well-argued ponencia of Justice Lucas Bersamin in the DAP cases. In Tagalog, it is simply: Nandiyan na yan. To be sure, it was not Justice Lucas who conjured “operative fact”. It was there even before he was an RTC judge. It was invoked in the cases that involved military commissions. Shortly after Ninoy Aquino and Jose Diokno were jailed, they were haled before a military commission that would try them. The Supreme Court was asked whether such military courts had jurisdiction over civilians in times of peace, when civilian courts were fully operative. The High Court ruled that they had jurisdiction, since martial law had been declared, and the creation of military commissions was part of the whole martial law apparatus. After EDSA, the question was revived, and this time, the Supreme Court ruled that military commissions could not try civilians while civilian courts were not hampered from disposing of cases. So, what was one to do about the scores who were incarcerated and had already served sentence meted out by military commissions? Nothing more, but accept the sad fact as operative. The same doctrine also found application in many other cases. In a sense, the doctrine of the operative fact is the “juridification” of a practical necessity. Because we have separated the power to write the legislative text from the power of interpreting it when applied to particular cases, it can happen that it is some time before we get a judicial declaration that a legislative provision or an executive act is void. And while, from legal ontology’s vantage point, what is unconstitutional is non-existent, in the real world, there have been practical effects that may sometimes be impracticable, if not unjust, to dismantle and undo. Nandiyan na yan. Henceforth, no more of those reproved acts—whether called DAP or disguised by some other subterfuge. But about whatever may have been distributed and accomplished, we deal with the necessity of the hypothetical order. The talk about liabilities is more involved because even philosophically, you leave the rather safe—because rarefied—realm of ontology and cross over to the whole minefield of ethics, and responsibility. Certainly, it will not do to excuse perpetrators with the pretext that before the case was decided by the Supreme Court, they did not know that what they were doing was wrong. Were this acceptable a defense, it might very well soon be the fad for many an accused to challenge the constitutionality of the law under which he is prosecuted, and then later claim that it took a Supreme Court pronouncement to clear the air—and so, he acted in good faith. That is what tricky business “good faith” can be. Our law reports in fact attest to this ploy. Some who were earlier charged with plunder challenged the constitutionality of the law. When the law was upheld, however, they were prosecuted nonetheless. In fact, traditional ethics had a clear norm: When in doubt, do not act. Do not shoot first, and only then check whether you felled a deer or your grandfather! Things become even worse for those who plead ‘good faith’ when clever sleuthing unearths a bill filed by the President while still a senator that would have statutorily proscribed some of the acts that he would later christen as DAP. So, he knew all along that these were, in the very least, of dubious legality! I have yet one more point. It is usual to distinguish between ratio decidendi and obiter dictum. When the Court addresses itself to an issue of law, that reason it advances for its holding is the ratio—and it is this that is doctrinally binding. An obiter is what texters today would pass on as “BTW”—by the way: Remarks made on what was not really in issue. And the reason that an obiter is never binding is because the Court’s judgment is only as authoritative as the issues it was asked to resolve! As far as I can read from the remarkable and erudite ponencia of Justice Lucas—whose prodigious research on the subject is quite impressive—liabilities were not really an issue. And so it seems to me that the pronouncement that “authors, proponents and implementers” are not shielded from liability unless they can show good faith is in the nature of an obiter. And I stake this claim not because I am eager for them to be discharged from liability, but because I would not like them hiding behind the nebulous claim of good faith! [email protected] manilastandardtoday/2014/07/07/the-doctrine-of-the-operative-fact/
Posted on: Mon, 07 Jul 2014 02:47:09 +0000
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