People power and the law

Not being a lawyer, I cannot say if it was wise for President Gloria Macapagal Arroyo to anchor her claim to the presidency on the theory that Joseph Ejercito Estrada had suffered a permanent disability.  I think that doing so, in an attempt to satisfy the

Constitution, is to revise history.  It is to leave out of the narrative of her presidency the very factor that made her president, namely People Power.

The political reality is that Estrada was ousted from the presidency by the direct action of the Filipino people.  He was removed from office extra-legally.  The former president neither died nor was he mentally or physically incapacitated.  He was not impeached, nor did he resign. In his own words, he left his office because of circumstances beyond his control.  That’s just a polite way of saying he was deposed.  To say he is just on provisional leave is a delusion.

The Supreme Court justices saw that Estrada had lost control of the government after his Cabinet resigned and after the commanders of the Armed Forces and the police bowed to the people’s will and manifested their withdrawal of support for the beleaguered president. Chief Justice Hilario Davide Jr. put it succinctly in a recent speech: “I heard the voice of millions of Filipinos expressing their legitimate grievance and asserting their sovereign will.  I definitely witnessed the raw power of vigilance.”  His decision to administer the oath of office to Ms. Macapagal in order to prevent a vacuum in the national leadership and to avert unnecessary violence was an act of judicial wisdom.

The country now has a functioning government under President Macapagal.  The whole world recognizes the legitimacy of this government.  The question whether Joseph Estrada is still president or not is not a “justiciable” but a political issue.  The proper tribunal in which to settle it is not in a court of law, but in the hearts and minds of the Filipino nation.

The legal order of a society only reflects the state of its politics.  Law is frozen politics in the sense that it embodies the results of the continuous competition and struggle among society’s various interest groups.

Yet the law may often seem as if it stands among the gods, way above the messy conflicts of mortals.  That is why, paradoxically, the law is sometimes invoked against political results.  In the name of institutional stability, political reality is rejected.  The law becomes an instrument for defending a social order based on obsolete politics.

Yet we know that some of the most difficult problems of society often cannot be solved within the existing legal framework.  It takes sustained extra-parliamentary pressure to shake up institutions. I think we Filipinos are lucky to have stumbled upon people power as a means of correcting the major dysfunctional consequences of borrowed institutions.  Even as we try to master them, we do not allow our nation to be imprisoned by their logic.  In people power, we have found a tool that is far more effective than piecemeal pressure politics and far more powerful than amending a constitution.

But we must be alert to the dangers of people power. Demagogues and military adventurers may also simulate their own people power. Direct action by the people has the potential of opening up the entire horizon of political possibility.  One never knows where a crowd will go or what it will do when it is already out in the streets.  The chances are great that it may not stay within the parameters of its predetermined objectives.

People Power II could have dissolved the existing Constitution, abolished Congress, and declared a revolutionary government – just like People Power I.  It could have declared all government positions vacant and installed a provisional government rather than allow the Vice President to form a government.  But it did none of these.  After deposing an undesirable president, it instinctively reined itself and followed the Constitution.  Though limited in its objectives, PPII was bound by a stronger consensus than its predecessor was.  The moral sentiments that united it were strong enough to prevent its hijacking by adventurous individuals or groups with hidden agendas.

The main problem of people power is how to make its presence felt in the conduct of the government to which it gave birth.  Because of its movement character, it has no permanent figures or structures to oversee the realization of its goals.  In the race to political normalization, the new government may find itself slowly being captured by the very forces that people power sought to marginalize, e.g. corrupt businessmen and traditional politicians.  Soon such elements begin to deck themselves in the colors of people power, appropriating its symbols and its discourse.

Ironically, people power cannot criticize the government without sounding as if it is also confessing a mistake.  Thus it must learn to fight for its vision both outside as well as inside the corridors of power.  It must be active in elections even if this is not its preferred terrain.  It must bring its activism into the bureaucracy. It must constantly renew its links and support kindred spirits who have made the transition from the streets to the government. It must gather its forces regularly and form its own assessments of the state of politics.

Above all it must strive to translate its political gains into reformminded legislation.  By this alone can it meaningfully change the order of things.


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