Lawful versus rightful

First day in freshman class, our constitutional law professor assigned us to read a story about a rich man whose son was about to join a college fraternity. The rich man hired a lawyer to research the rules and codes of the fraternity. As expected, the lawyer came back complete with the rules and regulations that govern the fraternity, complemented with tabs and page markers highlighting and explaining each important provision.

But with this accomplishment, the rich man was disappointed. What he wanted was not just to hear about the rules and preamble appearing in the written statutes of the fraternity. He wanted more to hear about the ones unwritten, those informal codes of conduct and power that are honed by the traditions of the fraternity and reflect its real culture and core beliefs.

The point of our freshman constitutional law professor: You can do better than the lawyer the rich man hired. Go beyond just knowing what the laws are, and understand the various factors that go with making and implementing them.

We’ve heard this before. Not all things lawful are rightful. Conversely, not all things rightful are lawful. Rightfulness, says Indian scholar Barun Kumar Sahu, is just one factor in rule-making and implementation. Other factors he identified are vested interests, pressure from outside organizations, pressure from various lobbies, realpolitik, legal or contractual obligations, collective wisdom, socio-economic environs, social prejudices, harsh realities of life, the security scenario, prevention of misuse and abuse, institutional or organizational experience, and problems in implementation.

Organizations, including the government, rarely declare categorically that they are not enforcing some aspects of their rules. Some simply declare that enforcing a particular provision of the law is the least of their priorities for now, while others say that enforcement will depend on their present capability but without lifting a finger to improve that capability.

These cases of non-enforcement makes conservative advocates of the “rule of law” uneasy. Popularity should not be allowed to take the place of the clear letter of the law, they say. Many of them may even rush into saying that non-enforcement is an invitation to anarchy, whatever that word means to them. (Authorities are divided. Some say anarchy is a “dangerous lack of control of power”; others say anarchy is in its purest form a “redistribution of power, where power is returned to the people.”)

This is exactly the scenario right now in the case of the habal-habal (motorcycle-for-hire), and its high-tech variety, the transport network vehicle service Angkas.

Transport regulators LTO and LTFRB together with their enforcement arm the Highway Patrol Group of the PNP are seemingly bent on apprehending drivers of motorcycles-for-hire and impounding their units. But, as one legal scholar would put it, “if one has legal power, this does not mean one will be able to exercise it.” That even if the law is enforced, it does not mean that it will be enforced uniformly. Lack of resources is the number one obstacle to enforcement. The habal-habals will simply wait it out and weather the storm.

Another irony is that the unlawful motorcycles-for-hire of today may soon become the lawful motorcycles-for-hire tomorrow. It is obvious that traffic-weary commuters are calling for a categorical non-enforcement of the ban against motorcycles-for-hire. This should push Congress to respond immediately to address this gaping divide between what the law says and what the commuters need.