Rule of, or by, law
We hear often about there being “too many laws” in the Philippines, and that they’re made to be broken, with a tendency to blame the “lawlessness” on our lack of discipline.
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.
Let me complicate the “lawlessness” further by suggesting that the problem lies in the very concept of law.
Think of our term “batas,” which actually means “to decree.” Batas is something that is imposed by rulers, by the powerful. The English “law” is similar, derived from an old Norse word which means “that which is set, or laid down.”
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.”
To rate nations on each of these subfactors, several research methods were used. One was a general population poll (in the Philippines, 1,000 respondents in Manila, Cebu and Davao), “qualified respondents questionnaires” involving experts from each country in civil and commercial law, criminal justice, labor law and public health.
The general population poll is interesting in the way it focuses on people’s everyday experiences. For example, people are asked if they experienced a home burglary in the last three years. Those who say yes are then asked if they reported the crime or not, which provide insights into how people perceive the legal system.
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. Nothing should be considered too trivial if we look at the dismantling of the rule of law, and a case in point would be an incident last Jan. 21 where three minors, after being arrested and mauled by Davao City police, were made to kneel in front of, and apologize to, a photograph of President Duterte. That is another twist to our perceptions of what the law means.
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?
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