NEA validly serving an invalid Order doesn’t make the Order valid
Pre-Semester Non-classroom Lecture 35
My bad, I forget to mention that some of my posts are really intended for our law students that we still can’t meet face-to-face. Even bar review is via Zoom these days. I can’t tell you how limiting and annoying that is. So I grab every chance I get to sneak in a basic concept or two whenever I can on any platform including Facebook. These zombies are only 3 months away from the rescheduled Bar Exam in January.
So a student PM’ed me if I could use the BENECO situation to explain DUE PROCESS. I said I will try.
Imagine Congress passed a law that said “All Filipinos born under the sign of Capricorn shall be executed by lethal injection.” It’s an absurd law–that’s why I said IMAGINE.
Next, imagine NEA served you a copy of that law, with a show-cause order giving you ten days to comment and to submit your birth certificate to prove that the law does not apply to you. You point out that the law is barbaric. NEA says that’s not an issue, the law enjoys the presumption of validity. You can question it in court if you want. But in the meantime, you have to follow the “rule of law” and do what it says. Was due process observed?
No.
Even if you give timely notice and conduct a hearing, even if you give somebody an opportunity to be heard and to submit his evidence, even if you allow him to ask for reconsideration, and even if you properly deny his motion for reconsideration, all you did is observe PROCEDURAL due process.
It is just as important to observe SUBSTANTIAL due process. This requires that the law itself—or order, instruction, resolution, appointment, whatever it is you want to enforce—must be valid. You cannot use a valid procedure to enforce an invalid law.
So figure out the rest, my dear students. If NEA prescribed the criteria, qualifications and vetting process in choosing a GM and then issues an appointment violating its own criteria, is the appointment valid? Will it matter that you observe “due process” in enforcing that appointment?
What happens if you defy that invalid order and NEA cites you in contempt for insubordination? I say that is the exact same situation of a kotong cop flagging you down at EDSA. You ask, “bakit po? Ano pong violation ko?” and the kotong cop tells you, “bakit ang dami mong tanong? RESISTING ARREST ka!”
Wait just a minute, shouldn’t the arrest ba VALID first before I can be guilty of resisting the arrest? At this juncture the kotong cop pulls out his gun and shoots you.
So you ask Saint Peter at the pearly gates, “What happened? Why am I here?”
“NANLABAN ka raw, eh,”
The author is a writer and lawyer based in Baguio City, Philippines. Former editor of the Gold Ore and Baguio City Digest, professor of journalism, political science and law at Baguio Colleges Foundation (BCF). He is a photographer and video documentarist. He has a YouTube channel called “Parables and Reason”