|
THERE is much to commend and to learn in the insightful, stimulating
and thought-provoking articles of my friend and colleague, Prof.
Randy David, entitled, “Truth and institutions” and “A big
year for verity” (PDI, March 1 and 8, 2008). His breadth of
knowledge is encompassing, his observations astute, his arguments
deep and his logic compelling.
I share many of his ideas. Ultimately, however,
I disagree with his conclusions, which is probably due to a
difference in academic discipline and philosophical orientation.
Randy tackles the current pressing problem of
how to determine truth about corruption. He correctly places
importance on transparency and the right to public information.
He also correctly observes that in a complex
society, there exist “other institutions outside the legal and
political system—the media, the Church, the educational system,
the family, the economy,” with distinct spheres, each having
specialized procedures in locating truth.
However, he mistakenly concludes that due to the
complexity of modern society, “no single institution can claim
basic primacy over the others.”
The government enjoys basic primacy in two ways.
First, only its decisions are authoritative in that only it can
validly penalize those who defy its authority. Moreover, such
questions, being political in nature, fall within its special
competence and expertise, reserved finally for the courts to
determine.
He also concludes that questions on public
accountability “are decided not in court . . . but in the public
sphere of politics.” If, by that he means that such questions
ought to be decided by the court of public opinion, he is misguided.
First, the public may err because it is not
fully informed. It may be unaware of certain relevant information,
which would have led to a contrary conclusion.
Secondly, it may be misinformed. Sensationalism
and corruption in media come to mind. There is also the Filipino
obsessive delight in gossip and rumor-mongering, exacerbated by the
proliferation of text-messaging.
Thirdly, emotions such as disgust or rage are
not exactly reliable sources of truth. Fourthly, this leads to
volatility and frequent changes in opinion.
Fifthly, the public is partisan. Supporters
often accept unthinkingly what their political leaders or candidates
say. The sixth stems from lack of time, since the public’s primary
concern is to make a living.
Finally, there is lack of competence and
expertise. One with court experience is more suited to assess
evidence and to determine the credibility of witnesses. A witness,
for example, may be honest but he may err in perception,
recollection and description, distinctions which the layman does not
fully comprehend or appreciate.
History has shown that truth and justice are
best served under a system of due process where both parties are
able to present their side, confront each other’s witnesses, where
courts admit only reliable evidence and decide based only on law and
fact in an environment conducive to independent and impartial
judgment.
In any society, particularly a complex one,
there is need for such an authoritative determination. Ought that
function be reposed in an uninformed, misinformed, emotional,
volatile, partisan and incompetent public who lacks the time to
resolve truth, or an independent, neutral, competent body steeped
with the necessary training and experience and committed to fair and
impartial procedures?
Randy maintains, finally, that the public must
face the truth that institutional processes at present can no longer
be relied upon to determine truth. To me, the correct course lies in
the more skillful use by civil society of institutional processes
rather than resort to people power fueled by public opinion.
This is because, when an institution is deprived
the necessary experience with which to correct itself, it fails to
improve and mature as an institution. It is, to paraphrase Prof.
Thayer, “always attended with a serious evil, namely, that the
correction of (its) mistakes comes from the outside, and the
institutions thus lose the political experience, and the moral
education and stimulus that comes from fighting the question out in
the ordinary way, and correcting their own errors.”
There is, in connection with truth and
institutions, the related ideals of impartiality, the appearance of
impartiality and public acceptability. In society at present,
impartiality, although a better vehicle for arriving at truth than
public opinion, seldom leads to acceptability. It is the appearance
of impartiality which does, resulting in decisions not intrinsically
based on the merits.
It is only within a context of judicial
independence insulated from public opinion that an atmosphere of
impartiality is assured. According to the Supreme Court, media
coverage can “intentionally or inadvertently, destroy an accused
and his case in the eyes of the public.” It “gives rise to
prejudiced opinion and publicity and creates bias and sometimes
confusion among the people.” Moreover, it results not only in
unjust verdicts but also in bad precedent.
The Supreme Court resolves not only the present
dispute but interprets law in a way that guides judges in resolving
future ones. Unlike the elected branches of government which are
essentially accountable to public opinion, the Court, by its
function, ought to be more conscious of the judgment of its peers,
of history and of posterity.
eqfernando@hotmail.com
|
