Activating the rule of law
Over the last three decades, many of us took comfort in the belief that the Constitution that was crafted and ratified in the aftermath of the 1986 People Power Revolution will never again permit any would-be autocrat to use any of its provisions to override the rule of law. How illusory that belief has proven to be!
The 1987 Constitution, overwhelmingly ratified by the Filipino people in a historic national plebiscite on Feb. 2, 1987, sought to buttress the bill of rights and enlarge the scope for civil society participation in decision-making. In particular, it rewrote the martial law provisions that Ferdinand Marcos had used in 1972 to install himself as a dictator, virtually making it obligatory for the coequal branches of government to check nearly every exercise of executive power.
Today, hardly anybody remembers or celebrates Feb. 2 as Constitution Day. More significantly, no one seems to think the constitution holds any special value in the face of the tough problems that a leader of a struggling country like ours needs to solve. And so, in an astonishing display of submissiveness and timidity, the legislature and the courts have permitted President Duterte to run the country with as much leeway as he had been allowed to rule over Davao City when he was its mayor. And, all this, without Mr. Duterte having to invoke the emergency powers of the presidency.
“How did this happen?” my friend Nandy Pacheco of The Gunless Society wondered in a conversation the other day. He was not so much interested in figuring out what the President is up to, as in understanding how the Filipino people could possibly rationalize and support his brand of governance. “Duterte is merely acting true to form,” Nandy says, referring to his unorthodox ways as Davao mayor. “The question is: why do we allow it.”
It’s a good question. But, I think the answer cannot be divorced from the reasons why Mr. Duterte has been bold enough to act the way he has — that is, without regard for what we have long assumed to be the established norms governing the conduct of the presidency and the exercise of political power in a democracy.
If he had any reservations about applying the same style he had perfected as mayor to the larger arena of national politics, these would have been quickly put to rest by the awesome public approval he has been getting through the opinion surveys. This approval cuts across all social classes and regions.
The Duterte style appears to be a blend of at least two things. The first is a unique way of engaging audiences that combines tough talk with crass humor, and self-righteous moralizing with an oversimplified view of the world. And, the second is an unfaltering will to act that eschews reasoned discussion of any issue.
This style seems to serve him well regardless of the issue. It could be the jailing of Sen. Leila de Lima, the cancellation of the Inquirer owners’ contract of lease on a government-owned property, the cancellation of the “onerous” contracts of the water companies, the renewal of the franchise of the ABS-CBN broadcasting network, the withdrawal of the country’s membership in the International Criminal Court, the abrogation of the Visiting Forces Agreement, or the so-called pivot to China and the concomitant refusal to assert the favorable arbitral tribunal ruling on the West Philippine Sea. Or, to take a more recent instance, the issue could be the fairness and wisdom of imposing a travel ban to and from China in the wake of the coronavirus outbreak.
Whatever reasons he gives for his decisions, they rarely rise above his personal feelings or grudges. He shows no patience for nuanced arguments or for the need for careful study by experts. He delights in being able to interrupt all debate by the mere issuance of a decision, leaving his spokespersons and members of his Cabinet to either soften the blow or to find a legal and nonpersonal justification for the decision.
As the surveys show, this style of governance appears to work most of the time. The public doesn’t seem to care about the issues. Sometimes, as in the case of the public’s attitude toward China, the popular view may even be at odds with the President’s own thinking. Yet, the people continue to believe in him, to hang on to his every word, to laugh at his jokes even when they are improper, and to break into applause whenever he rants against the “enemies” of the people.
To ask how Filipinos’ manifest approval of Mr. Duterte’s opinions and actions can be reconciled with their own beliefs and normative instincts may be the wrong question to raise. Clearly, they like the man not for what he believes in or stands for, but for what he symbolizes — the antithesis of an elite-dominated liberal Establishment that promised a better life after Marcos but miserably failed to deliver.
Like other populist politicians in the world today, Mr. Duterte speaks to the people’s deepest unexamined resentments. Thus, even when they can’t identify with the undisguisedly personal reasons he gives for his actions, they find a way to portray these actions as necessary. In this, they are not very different from Solicitor General Jose Calida — ever prepared to flash the most improbable moral justification or legal norm in order to give the boss’ wishes a veneer of constitutionality and correctness.
This should make clear to us a lesson so commonsensical that it needs no restating: no constitution is self-executing. No law is. The power of any fundamental law rests in the people’s collective readiness to wield it as a shield — as though their lives depended on it — whenever freedom and the rule of law are threatened.
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