We have rule by law, not rule of law

Is the Philippines following the Rule of Law, or Rule by Law? Two prepositions—“of” and “by”.  Tiny. Yet these make all the difference in the world, Reader.

According to Mortimer Sellers in his “What is the Rule of Law and Why is it so Important?”,  societies that enjoy rule of law (ROL) are vastly better situated than societies that do not, because ROL (or its absence) is “the central measure” dividing good governments from bad governments everywhere.

Do you agree? On the other hand, societies where rule BY law (RBL) prevails, although they claim to follow the rule OF law, are really de facto dictatorships.

How can we tell whether a society is following the rule of law or the rule by law masquerading as the rule of law? Here’s how:

ROL is a value-laden concept which includes democratic values of liberty, equality, fraternity, justice and others. Thus, it encompasses not only procedural aspects of law, but also its substance. RBL, however, is the mere legalism of ROL. Through RBL, one man, or a faction or a party, rules through positive law to impose his/her/their will on others.

Still don’t get it, Reader? Let’s try again. ROL encompasses both the letter and the spirit of the law, with greater emphasis on the spirit. RBL is limited to the letter of the law.

Or we can use an equation: ROL = RBL + values + checks and balances. Which means that if we remove the values and the checks and balances from ROL, you end up with RBL. ROL is RBL Plus.

The values we have already listed above.  What are the checks and balances that ROL employs? The most important is that ROL “requires of us that we remove the will of public officials as much as possible from the administration of justice in society.” Public authority is necessary to protect against private power, but ROL keeps public authorities honest.

I take the above to mean, Reader, that under ROL, public officials cannot hold themselves above the law, or use the law to attain their private objectives. No wonder, then, that ROL is the English translation of the Latin phrase “imperium legum”—the empire of laws and not of men.

Now comes the question, Reader: Is the Philippines under ROL or its inferior (and dangerous) version? Let’s look at what’s happening in the three major branches of government.

The executive: Here, you have a senator who is rotting in detention for almost two years now; a Chief Justice who, with 12 years to go in her term, was removed from the Court; an Australian nun with 27 years of service to Filipinos under her belt forced to leave her chosen country. Common denominator: They are all women, but the important similarity is that they ran afoul of the President for various reasons. And were attacked by him publicly. Then the Department of Justice, the Office of the Solicitor General, the Bureau of Immigration, etc., even Congress, all went into action, and used or misused the letter of the law, in order to accommodate him.

There is, of course, another senator who barely escaped a similar fate, but his case is not yet finished.

The legislative: Here you have a branch which has not only aided and abetted the executive, but has also used or misused the law. Think of its franchise-giving powers, and think also of the fact that the minority (opposition) floor leader is a member of the majority (defined as one who voted in favor of the incumbent Speaker). The members disobey their own rules.

The judiciary: Judges who accommodate the executive are promoted, and those who disagree are kicked out one way or another. The Supreme Court leads in the rush to accommodate the President’s wishes (martial law, burial of Marcos, etc.)

As a result of all this, the private sector is trembling in its boots, or rushing to accommodate the President’s wishes, too. Of course—dare I say?—a presidential crony (shades of Marcos) is a different matter—business expansion like there is no tomorrow.

Summary, Reader: Everybody and his brother in a rush to defer to or accommodate the President’s wishes. The independence of the other branches compromised. No more checks and balances.

What does that add up to? A de facto dictatorship. Ergo, Rule by Law. Not Rule of Law.

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