Rule of law

We have been hearing the phrase “rule of law” much too often since Gloria Macapagal-Arroyo assumed the presidency. In the context in which it is used, it appears to be a way of telling people that when they are penalized for being out of line or falling short of the standard, it is nothing personal. It is not because of who they are.  It is just the way things are.  Dura lex sed lex, so the mantra goes. The law is hard, but it is the law.

This representation of the law as an anonymous force standing above and regulating the affairs of human beings is one of the necessary fictions achieved by modern societies.  The automaticity of the law’s operations confers upon it an impersonal and almost inanimate quality.  Yet everyone knows that behind the law are human beings with motives and will. The law’s basic function, says the theorist Niklas Luhmann, is to stabilize people’s expectations of what is right and wrong.   Modern legal systems succeed in this not by pretending that the law is self-evident, or that those who interpret it are gifted with extraordinary insight.  They succeed by making the law apply to everyone.

One of the big problems of our society is precisely this – that the law says something, but culture dictates something else.  Culture trumps the law because the rationality of the law finds little support in our daily experience.

The practice of maintaining so-called “ghost” and “15-30” employees on the payroll, for which Makati City Mayor Jejomar Binay is being charged, is a case in point.  It exists in a variety of work contexts.  I first saw it among the stevedoring work gangs on the Manila waterfront in the 1960s.  They have a term for “ghost workers” there – “pitik”.  The wages of the “pitik” are collected by the “cabo” who shares them with his immediate bosses. This practice is found at almost all levels of the public bureaucracy as a mechanism for raising slush funds or rewarding political workers.  The money that is set aside in this manner is taken for granted in our political culture as part of the spoils of political contests.

Corrupt practices like this are so integral to our patronage-based political system that it is nearly impossible to get rid of them.  That is why it is a cause for celebration when the government of the day wages a campaign to prosecute public officials who enrich themselves from such misuse of public funds.

But the rule of law is not strengthened when it is wielded like a weapon against our enemies.  It is reinforced by universally and consistently applying it.  Indeed, in societies like ours, we add to the law’s majesty by letting its axe fall in the first instance on those to whom we are closest.  Nothing erodes the rule of law more than when it is invoked by the very ones who brazenly and routinely manipulate it.

Social theory says that the institutionalization of the rule of law is not something that is achieved overnight.  It comes as a result of modernity — the gradual differentiation or separation of the various spheres of social life, e.g., religion, science, economy, politics, law, etc.   Perhaps the differentiation between law and politics is the slowest to happen, for after all law-making is an aspect of politics. And indeed, judges owe their appointment to politicians.  But if the law is to effectively regulate politics, as it must in modern society, the judicial system has to attain a certain level of autonomy.  This autonomy is realized only when courts are insulated from politics.

Viewed from this perspective, one can only feel horrified by the manner in which politicians exert all kinds of pressure on our courts in order to secure a favorable ruling.  It is irresponsible if not mindless. A few days ago, President Gloria Macapagal-Arroyo used the occasion of a dinner for Supreme Court justices and their foreign counterparts to harp on the pressing need for Charter change, knowing fully well that the issue is pending before the justices.  If she permits herself to publicly pressure the SC like this, one can imagine what kind of covert pressure she uses on the justices to get her way on this and many other issues.

Ironically, in the same speech, the nation’s highest politician also said: “Politics dominates our lives way out of proportion to the real needs of the people and a change in politics must be accompanied by a change in our system of government.  To that end, we seek to amend our Constitution so as to modernize, if we are to build a modern Philippines.”

A day after Ms Arroyo spoke, it was Speaker Jose de Venecia’s turn to publicly plead with the SC justices in the same forum to support the bid to change the Constitution.  While he did not expressly refer to the issue of Charter change by people’s initiative, his words left no doubt about where he stood and what he was championing.  “I beg you to decide these questions with your hearts and minds.  Whether our country is to have a new beginning or stay in the same political rut in which it has been trapped this half century, this question is in your hands.”

Ms Arroyo is right about the effects of politics on our lives, but wrong about modernity.  Modernity is not just something you write into a constitution.  Modernity is a whole way of life that a nation grows into, and politicians like Ms Arroyo and Jose de Venecia are its biggest enemies.

Comments to <>