Formal institutions and people power

In a democracy, it is natural for the public to wish to be freed of the burden of having to take direct action when there is a grave crisis in government. Yet, on two occasions in the recent past, under the spell of a diffused social movement, Filipinos found themselves taking the whole system in their own hands to re-establish their government. In retrospect, the experience still intimidates them.  Small wonder they are slow to pour out into the streets again.

Every radical is gripped by romantic visions of this sort, but, as our experience shows, the political costs can be very high.  Having achieved the nearly impossible in 1986 – the peaceful ouster of a tyrannical regime — Filipinos did not hesitate to reprise it in 2001.  In both instances, though violence was avoided, the public welcomed the intervention of the armed forces, something that should not have happened in a functioning democracy.

In many ways, we are haunted by the ghosts of this raw exercise of popular sovereignty.  That is probably why we have an ambivalent relationship to people power — we celebrate its emancipatory promise, but we fear its dark irrational side. It is a tool against tyranny, but it can also be mobilized in the service of reactionary impulses.  The same applies to military intervention.

Under our system, when government fails to perform its work, people can turn to the Supreme Court to interpret the law and to correct errors in its application.  In our current situation, for instance, there are things the Supreme Court can do to maintain public confidence in our institutions and in the rule of law.  First, it can rule decisively on the question of whether the manner in which the House of Representatives disposed of the three impeachment complaints against Gloria Macapagal Arroyo was in accordance with a rational understanding of the law.  There are pending petitions before the Court that raise this question.

Second, the Court can rule immediately on the constitutionality of Executive Order 464 which bars government officials and police and military officers from appearing in congressional hearings without prior permission from the President.  Third, the Court can, once and for all, rule on the meaning of the “no permit, no rally” rule, and the constitutionality of Batas Pambansa 880 or the Public Assembly Law, which is cited as its basis.

Fourth, as the Presidential Electoral TribunaI, the Court can attend with dispatch to the election protest of vice presidential candidate Loren Legarda.  The resolution of this protest may put to rest many questions about the credibility of the 2004 presidential election, which were left unanswered when the protest of presidential candidate Fernando Poe Jr. was dismissed after his untimely death.

There are other questions in which a quick and forthright opinion from the Court could defuse the tension that is tearing the nation apart. For example, can wiretapped recordings be admitted as evidence in proceedings where public interest of the utmost importance is involved?

In the past, the Supreme Court did not hesitate to wade in politically charged waters.  In January 2001, while Edsa II raged, it agreed to administer the oath of office of the president to Vice President Arroyo ahead of any full determination that there was a vacancy in the presidency.  Thereafter, it resolutely dismissed all challenges to the legality of Ms Arroyo’s assumption of the presidency. It sustained the legality of prosecuting former president Joseph Estrada for plunder on the ground that, having “constructively resigned” the presidency, he could no longer invoke immunity from criminal prosecution.

But, at crucial moments in our history, the Court did also allow itself to be overtaken by political events.  After Marcos declared Martial Law, the Supreme Court feebly acceded to the irregular way in which the 1973 Constitution was ratified.  That constitution sanctioned the existence of a continuing state of emergency and granted Marcos law-making powers.  Unable to assert its moral authority, the Court became an unwitting tool of the dictatorship.  As expected, after Marcos was overthrown, no one protested the Court’s reorganization when the Cory Aquino government scrapped the Marcos constitution.

What the rebuilding of institutions like Congress and the Judiciary means essentially is the restoration of their status as credible structures of rational deliberation. Unfortunately, this has not been easy. Our flawed electoral process has continued to breed politicians who do not have the slightest clue about governance.  The persistence of the culture of patronage has produced appointments to the judiciary that cannot be justified except as the prerogatives of power.

It is ironic that the Arroyo Administration derides the Citizens’ Congress for Truth and Accountability as a “kangaroo court” with no legitimacy.  Designed to gather information and hear viewpoints on legitimacy issues that our formal institutions have failed to address in an acceptable way, the CCTA can perform a crucial function in the political will-formation of our society.  It is people power by other means – held not in the streets, where reason’s voice can be drowned, but in a university, where reason can be heard.

Comments to <>