The Misrule of Law in the Philippines

THE MISRULE OF LAW IN THE PHILIPPINES

Rule of, or by, law

By Michael L. Tan

...In the past I’ve offered an alternative mix of cultural and social theories to explain laws being observed more in the breach. Foremost, we live in a terribly feudal society that encourages impunity. People in power and people who ride on power can flaunt the law and get away with it.

Which leaves the rest of the population looking at law as a game: If no one’s watching, then let’s try to get away with breaking it. Anyway, the rich and powerful are getting away with it, so we may as well all try our luck. There’s even a link to religion here, with good behavior tied to God, or a CCTV, watching. If the coast is clear, then make a run for it.

...Laws go back to a feudal era where rulers imposed what they wanted through a codified system that defined what was “lawful” and what punishments would be imposed for breaking the law (read: going against the will of the rulers).

Absolute power, and law

One of the first legal codes came from the Babylonian king Hammurabi (1810-1750 BC), with the code’s objectives spelled out: “that the strong might not injure the weak, in order to protect the widows and orphans… in order to declare justice in the land, to settle all disputes, and heal all injuries.”

Benevolent as it may have sounded, the code prescribed many harsh punishments, which is to be expected when the ruler has absolute power and, in effect, rules by law.

Only in the last three centuries or so have societies tried to move into rule of law, looking at laws as social contracts. The development, and implementation, of rule of law went hand in hand with the concept of human rights and freedom.

There is a World Justice Project (WJP) that has formulated a Rule of Law Index and issued, since 2010, annual reports comparing the nations of the world in relation to the rule of law. The ratings are based on a complicated methodology that starts out with 9 factors, broken down into 44 subfactors, identified by academics, practitioners and community leaders around the world as constituting the rule of law.

I don’t want to go into all the details of the factors and subfactors and instead want to cite the WJP’s four universal principles of the rule of law: accountability, just laws, open government, and accessible and impartial dispute resolution. Open government deserves a bit more explanation: “The processes by which the laws are enacted, administered, and enforced are accessible, fair and efficient.”

...What was disturbing was that the Philippines has been dropping in its rank, from 51st of 102 countries in 2015 to 70th of 113 countries in 2016, and now, 88th of 113 countries. Our drop of 18 places was the worst in the world.

What disturbed me even more was the way our neighboring countries have been overtaking us. Would you believe China ranked 75th in the latest report? Singapore, which we associate with authoritarianism, ranked 13th.

Law and development

We need to analyze the Rule of Law Index reports across time in relation to a longstanding debate, where one side argues that you need respect for human rights and the rule of law for a country to develop, and the other side cites Singapore and China to say: Look, they developed because they had authoritarian leaders, and one-party rule.

The Rule of Law Index shows that it isn’t that simple. The lowest-ranking countries for the Rule of Law Index—Venezuela and Cambodia—have one-party rule, too.

We keep going back to the contrast between rule by and rule of law. Even in authoritarian countries, you might find forms of checks and balances, including civil society, that function better than in countries that claim to be democratic, such as the Philippines.

The implications are far reaching. If the law is used to amass more power for a despot and his clique, then the country will quickly move toward economic ruin, as we saw during the Marcos martial law era.

Filipinos do tend to look at the law—batas—like they do human rights: as supposed obstacles to development. The totalitarian temptation is always there and, ironically, becomes even more alluring in times of crisis. The Rule of Law yearbook reminds us that “effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small.” We only have to look at current controversies—from the total disaster of mass transit to the vaccine scandal—to see how a lack of rule of law, especially around accountability, brings us to the edge of the precipice in terms of squandered public funds and lives put at risk.

What’s frightening, too, is the way our disregard of the law has moved from an almost playful cat-and-mouse routine to an acceptance of unlawful arrest, detention and execution.

...What should alarm us most today is the way power is being taken away from the legislature, the judiciary and, in civil society, the media. As the debates on constitutional change begin, we should be asking: Who wins, who loses, in the long run? Will we see the rule of law strengthened, or will it be more of rule by law, particularly by local warlords?

mtan@inquirer.com.ph

Link: https://opinion.inquirer.net/110720/rule-of-or-by-law#ixzz55vX5z7Xu

“Under a tyranny the law is misused as an instrument of injustice, persecution, repression, and oppression.”

“Correctly construed, the rule of law protects and upholds human rights and our God-given freedoms.”

“The rule of law creates, builds, and sustains just societies.”

Link: https://poetryofgonzalinhodacosta.blogspot.com/2018/01/aphorisms.html

Duterte’s agenda to destroy democratic institutions and increase his personal dictatorial power are the opposite of the rule of law, which entails at least eight factors:

- Constraints on Government Powers

- Absence of Corruption

- Open Government

- Fundamental Rights

- Order and Security

- Regulatory Enforcement

- Civil Justice

- Criminal Justice

Duterte’s attacks on democratic institutions have eroded Philippine performance in all eight factors without exception.

The Philippine people need to be deeply educated in democracy, of which the rule of law is a constitutive part.

We have to progress beyond feudal warlords and the gross abuse of power.